Providence Journal Co. v. Mason
| Decision Date | 08 July 1976 |
| Docket Number | Nos. 75-85-M,s. 75-85-M |
| Citation | 359 A.2d 682,116 R.I. 614 |
| Parties | , 13 Fair Empl.Prac.Cas. (BNA) 385, 90 A.L.R.3d 383, 12 Empl. Prac. Dec. P 11,080, 1 A.D. Cases 3 PROVIDENCE JOURNAL COMPANY v. Jacqueline MASON. P. and 75-91-M.P. |
| Court | Rhode Island Supreme Court |
These petitions for certiorari seek review of a Superior Court judgment affirming in part and reversing in part an order of the Rhode Island Commission for Human Rights in a case of alleged employment discrimination of a physically handicapped person in violation of General Laws 1956 (1968 Reenactment) § 28-5-7(A), as amended.
On February 11, 1974, the Providence Journal Company (hereinafter Journal) terminated the employment of Jacqueline Mason because of her failure to pass a physical examination required of all employees.
The record indicates that Mrs. Mason was employed as a copy editor on a trial basis between January 7 and January 11, 1974, and was hired permanently effective January 29, 1974. At the physical examination, administered on January 30, 1974, Mrs. Mason was wearing a modified Thomas Collar for relief from symptoms of a whiplash injury which she had received in an automobile accident in early 1973. The examining physician, Dr. Joseph Johnston, would not recommend her for employment because of stiffness, limited motion, and pain with motion in her neck.
Thereafter Mrs. Mason filed a complaint with the Rhode Island Commission for Human Rights (hereinafter commission) alleging that she had been discriminated against by the Journal because of her physical handicap in violation of § 28-5-7(A) 1 of the Rhode Island Fair Employment Practices Act (G.L.1956 (1968 Reenactment) § 28-5-1 et seq.).
At a hearing before the commission Mrs. Mason testified that during her approximately three weeks of employment she performed all assigned tasks without difficulty or complaint and introduced into evidence a letter from her physician which stated that in his opinion she was 'almost fully recovered'. Doctor Johnston, the Journal's examining physician, testified that in his opinion Mrs. Mason was temporarily unsuited for a desk job at the time he examined her. In support of Dr. Johnston's testimony, Dr. Vincent Zecchino, a specialist in orthopedic surgery, in answer to a hypothetical question, testified that a person is Mrs. Mason's condition on January 30, 1974, should not have been employed at a desk job at that time because the work involved could have aggravated her condition.
In its order the commission found as a fact that Mrs. Mason had suffered a 'whiplash' neck and back injury in early 1973 and that she suffered some pain and discomfort before, during, and after her employment with the Journal. However, it found that there was no evidence to suggest that she was unable to perform the duties of her position. It ruled as a conclusion of law that Mrs. Mason had a 'physical disability' and 'infirmity' within the meaning of § 28-5-6(H), as amended 2 which section defines '(p)hysical handicap' as that term is applied to the Fair Employment Practices Act. The commission then concluded that the Journal had terminated Mrs. Mason because of her 'physical handicap' in violation of § 28-5-7(A). Thereupon it ordered the Journal to hire Mrs. Mason with back pay and seniority to January 29, 1974, and to pay reasonable attorneys' fees to Mrs. Mason's attorneys.
As a party aggrieved by the commission's order, the Journal sought judicial review of that order by filing a complaint in the Superior Court under G.L.1956 (1969 Reenactment) § 42-35-15 of the Administrative Procedures Act. 3 At a subsequent hearing in Superior Court, the Journal argued (1) that Mrs. Mason did not have a 'physical handicap' within the meaning of § 28-5-6(H), (2) that an employer does not violate § 28-5-7(A) if it considers in its employment decision of a handicapped person the possibility that working might aggravate that person's physical condition and (3) that the commission was in error in ordering the Joural to pay attorneys' fees.
The Superior Court justice affirmed the commission's conclusion that Mrs. Mason had a 'physical handicap' within the meaning of § 28-5-6(H) and affirmed the commission's finding that the Journal had unlawfully discriminated against Mrs. Mason in violation of § 28-5-7(A). In affirming this finding the trial justice noted that as long as a physically handicapped person's 'fullest capabilities' are sufficient for the position, an employer may not consider the possibility of aggravation of that person's condition. Finally, the trial justice ruled that the commission was in error in awarding attorneys' fees because it lacked specific statutory authority for such award. A judgment incorporating his decision was duly entered.
The Journal thereupon filed a petition for certiorari under § 42-35-16 of the Administrative Procedures Act to review that portion of the judgment of the Superior Court which sustained the order of the commission. 4 Subsequently, Mrs. Mason as intervenor filed a separate petition for certiorari under § 42-35-16 of the Administrative Procedures Act to review that portion of the judgment of the Superior Court which reversed the commission's award of attorneys' fees. 5
The Journal challenges the trial justice's decision on two grounds: (1) that Mrs. Mason's 'whiplash' injury was not a 'physical handicap' within the meaning of § 28-5-6(H) and (2) that, even if such 'whiplash' is a physical handicap, § 28-5-7(A) does not prohibit an employer from refusing to hire a handicapped person where the employment may aggravate that person's injury. In view of our concurrence with the Journal's first proposition, namely that Mrs. Mason's 'whiplash' injury was not a 'physical handicap' within the meaning of § 28-5-6(H), we need not consider the Journal's second proposition nor Mrs. Mason's petition for certiorari.
The scope of our review is controlled by § 42-35-16. It may be well to point out as we did in Lemoine v. Department of Mental Health, Retardation, & Hospitals, 113 R.I. 285, 288, 320 A.2d 611, 613 (1974), that the writ of certiorari brings up the record of the lower court for inspection and review on questions of law only and any ground for reversal must be found on the face of the record. It is also the rule in this state that where the court is reviewing the decision of a subordinate tribunal by way of certiorari, that review is limited to the allegations of error which appear in the petition for the writ. A.T. & G., Inc. v. Zoning Bd. of Review, 113 R.I. 458, 462, 322 A.2d 294, 296 (1974).
With respect to Mrs. Mason's injury, the Journal does not argue that the commission's findings of fact as affirmed by the Superior Court were erroneous. Therefore, we are bound by the commission's unchallenged findings that Mrs. Mason suffered a 'whiplash' neck and back injury in early 1973, that she was wearing a Thomas Collar during her employment with the Journal, and that she suffered some pain and discomfort, before, during, and after her employment with the Journal. Therefore, the specific question presented to us by the Journal's petition is whether a 'whiplash' injury, caused by an automobile injury, resulting in the wearing of a Thomas Collar and causing some pain and discomfort is a '(p)hysical handicap' within the meaning of § 28-5-6(H).
In support of the Superior Court's interpretation of § 28-5-6(H), Mrs. Mason argues that nothing within § 28-5-6(H) suggests that a whiplash injury from an automobile accident, resulting in the use of a soft cervical collar, is not included within the definition of a 'physical handicap'. In fact, by the terms of the statute itself, a '(p)hysical handicap' includes, 'any physical disability' resulting from injury, 'any degree of paralysis,' or 'physical reliance on * * * (a) remedial appliance or device.' Mrs. Mason buttresses her argument by noting that § 28-5-38 mandates that the provisions of the Fair Employment Practices Act be 'construed liberally for the accomplishment of the purposes thereof' and by further noting that the declared policy of the Fair Employment Practices Act is '* * * to foster the employment of all individuals in this state in accordance with their fullest capacities, regardless of their * * * physical handicap * * *.' Section 28-5-3, as amended. 6
We do not agree with Mrs. Mason's construction of § 28-5-6(H). A literal reading of § 28-5-6(H) does appear to declare that any physical disability caused by injury, no matter how slight, is a 'physical handicap.' However, it is a well-settled rule of statutory construction that this court will not undertake to read an enactment literally if to do so would result in attributing to the Legislature an intention that is contradictory of or inconsistent with the evidence purposes of the Act. Angel v. Murray, 113 R.I. 482, 322 A.2d 630 (1974); Rhode Island Consumers' Council v. Public Util. Comm'n, 107 R.I. 284, 267 A.2d 404 (1970). We have consistently subscribed to the principle that a legislative enactment should be given what appears to be the meaning most consistent with its policy or obvious purposes. Angel v. Murray, supra; Mason v. Bowerman Bros., 95 R.I. 425, 187 A.2d 772 (1963). After closely scrutinizing the provisions of the Fair Employment Practices Act, we conclude that the Legislature could not have intended the suggested literal interpretation, namely, that a person with any physical disability, no matter how slight, is entitled to protection under the Fair Employment Practices...
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