Rozanski v. A-P-A Transport, Inc., A-P-A

• Decision Date: 11 July 1986
• Docket Number: A-P-A
• Citation: 512 A.2d 335
• Parties: 47 Fair Empl.Prac.Cas. (BNA) 179, 1 A.D. Cases 938 Stephen ROZANSKI, et al. v.TRANSPORT, INC.
• Court: Maine Supreme Court

Page 335

512 A.2d 335

47 Fair Empl.Prac.Cas. (BNA) 179, 1 A.D. Cases 938

Stephen ROZANSKI, et al. v. A-P-A TRANSPORT, INC.

Supreme Judicial Court of Maine.

Argued April 30, 1986.

Decided July 11, 1986.

Angoff, Goldman, Manning, Pyle, Wanter & Hiatt, Harold L. Lichten (orally), Boston, Mass., for plaintiff.

Preti, Flaherty & Beliveau, Michael G. Messerschmidt (orally), Portland, for defendant.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, VIOLETTE, WATHEN and SCOLNIK, JJ.

McKUSICK, Chief Justice.

Defendant A-P-A Transport, Inc., an interstate trucking company operating in Maine, appeals a judgment of the Superior Court (Androscoggin County) that (1) held that A-P-A had violated the Maine Human Rights Act, 5 M.R.S.A. §§ 4551-4632 (1979 & Supp.1985), by refusing plaintiffs Stephen Rozanski and Ronald Berube nonprobationary employment as truck drivers because of their latent lower back defects, and (2) awarded reinstatement, back pay, and attorney's fees to plaintiffs. On appeal to this court the trucking company urges that the Superior Court erred in affording the protection of the Maine Human Rights Act to these plaintiffs, in rejecting all of the company's affirmative defenses, and in fashioning the relief to which plaintiffs are entitled as a result of the company's discrimination against them. We affirm the Superior Court judgment in all respects, with the sole exception of its estimation of plaintiffs' lost wages for the period after the record closed as of March 30, 1985. We remand solely for the purpose of having the Superior Court reconsider that limited determination.

In the fall of 1981 Rozanski and Berube were hired as truck drivers at the newly opened A-P-A terminal in Lewiston. Both men, then in their early thirties, were experienced truck drivers and neither had experienced previous back problems. Pursuant to a collective bargaining agreement governing employment with A-P-A, Rozanski and Berube were subject to a 30-day probationary period, which they agreed to extend an additional 30 days. After that probation, they could be terminated only for cause under the collective bargaining agreement. Both men successfully completed A-P-A's employment examinations, save one. During the last week of their probation, Rozanski and Berube were informed that they had failed A-P-A's pre-employment lower back x-ray screening. Those x-rays revealed that Rozanski had a small osteophyte or spur on his spine and that Berube had a condition known as spondylolysis. On the sole basis of those x-rays, A-P-A terminated Rozanski and Berube from employment.

Following their termination, the employees won a ruling from the Maine Human Rights Commission that A-P-A had violated the Maine Human Rights Act by terminating them because of physical handicap. Unable to obtain conciliation with A-P-A, the employees commenced the present action in the Superior Court. Based on four and a half days of hearings and voluminous documents entered in evidence, the Superior Court held that the employees had proved a prima facie case of discrimination by A-P-A on account of physical handicap in violation of the Maine Human Rights Act. It found that Rozanski and Berube were qualified to perform the duties of A-P-A truck drivers and that they were terminated solely because of the company's mistaken belief that their back conditions created a greater likelihood of disability if they engaged in heavy work such as truck driving. From the medical evidence before it, the court concluded that neither Rozanski's spurring condition nor Berube's spondylolysis is of any predictive value for future back injury, that neither condition alone is likely to result in a person's disability, even when that person is engaged in heavy work, and that given each employee's age, physical condition, and work and activity history, his risk of lower back injury or disability is even less likely. Finally, the court rejected all of the affirmative defenses raised by A-P-A. Accordingly, it entered the following order:

1. Judgment to be entered for plaintiffs.

2. Defendant A-P-A is ordered to hire plaintiffs as soon as is reasonably practicable, without defendant having to lay off any employees presently employed, with plaintiffs to have status relating back to January 12, 1982, for purposes of seniority, future layoffs and other determinations based on date of commencement of employment.

3. Plaintiffs to have judgment for back pay to August 3, 1985, plus interest and costs, as follows: plaintiff Rozanski, $86,548.93; plaintiff Berube, $80,256.19.

4. Defendant to continue to pay said wages to plaintiffs, in amounts consistent with this Judgment and Order, until defendant offers to each respective plaintiff a position substantially equivalent to the positions originally applied for by plaintiffs.

The Superior Court stayed its order pending appeal to the Law Court.

I. Federal Preemption of State Law

We reject A-P-A's first argument, as did the Superior Court, that the Interstate Commerce Act, 49 U.S.C.A. § 304 (1963), and the Department of Transportation Act, 49 U.S.C.A. § 1655 (1976 & Supp.1986), preempt application of the Maine Human Rights Act in the case at bar. Federal law may preempt state law in one of three ways.

First, in enacting the federal law, Congress may explicitly define the extent to which it intends to preempt state law. Second, even in the absence of express preemptive language, Congress may indicate an intent to occupy an entire field of regulation, in which case the States must leave all regulatory activity in that area to the Federal Government. Finally, if Congress has not displaced state regulation entirely, it may nonetheless preempt state law to the extent that the state law actually conflicts with federal law. Such a conflict arises when compliance with both state and federal law is impossible, or when the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

Michigan Canners and Freezers Association, Inc. v. Agricultural Marketing and Bargaining Board, 467 U.S. 461, 468, 104 S.Ct. 2518, 2523, 81 L.Ed.2d 399, 406 (1984)) (citations and quotation omitted). We can find nothing in those federal statutes that preempts the Maine Human Rights Act's prohibition against discrimination in the work place. First, A-P-A does not point to any provision in the Interstate Commerce and the Department of Transportation Acts in which Congress explicitly expressed an intent to preempt application of a state's laws prohibiting employment discrimination to any employer operating in that state, including a federally regulated motor carrier such as A-P-A. Second, A-P-A does not show that by enacting either statute Congress indicated an intent to occupy the entire field regarding the physical qualifications of truck drivers.

Finally, A-P-A cannot be heard to complain that compliance with both state and federal law is impossible. Although in the case at bar both the federal statutes and the Maine Human Rights Act touch on the physical qualifications of Rozanski and Berube as truck drivers, they address two entirely separate and independent objectives and therefore complement rather than conflict with one another. Department of Transportation regulations, 49 C.F.R. § 391 (1985), promulgated pursuant to the federal statutes, set physical qualifications that are designed solely to promote the safe operation of trucks on the highways. In contrast, the Maine Human Rights Act bars employment discrimination on the basis of certain physical qualifications. Nowhere has A-P-A shown that the Maine law in any way conflicts with the general objective or the specific requirements of those federal regulations. Nor could it on the facts of this case, since both Rozanski and Berube meet federal physical standards and both hold federal drivers' certificates. See Colorado Anti-Discrimination Commission v. Continental Airlines, 372 U.S. 714, 83 S.Ct. 1022, 10 L.Ed.2d 84 (1963) (extensive federal regulation barring discrimination by an interstate airline does not preempt Colorado from also barring discrimination in the hiring and firing of that airline's employees). Cf. Higgins v. Maine Central R.R., 471 A.2d 288, 292 (Me.1984) (application of Federal Employers' Liability Act does not excuse railroad company from full compliance with Maine Human Rights Act). Maine employees of an interstate trucking company are entitled to the same protection of the Maine Human Rights Act as other employees in Maine.

II. Scope of the Maine Human Rights Act

A-P-A's next argument is that the employees are not handicapped within the meaning of the Maine Human Rights Act. The Act defines "physical or mental handicap" as "any disability, infirmity, malformation, disfigurement, congenital defect or mental condition caused by bodily injury, accident, disease, birth defect, environmental conditions or illness...." 5 M.R.S.A. § 4553(7-A) (1979). Both Rozanski and Berube fit within the express terms of that definition since the asymptomatic condition of each of the men constitutes a "malformation" of the spine. Their conditions are indistinguishable from that of the railway employee involved in Maine Human Rights Commission v. Canadian Pacific Ltd., 458 A.2d 1225 (Me.1983), who because of his asymptomatic heart murmur was deemed to be handicapped within the meaning of the Act. Similarly, Rozanski's and Berube's latent back conditions, which were the sole ground for their termination, are physical handicaps that entitle them to the protection of the Maine Human Rights Act.

III. Affirmative Defenses

Before the Superior Court, A-P-A raised three affirmative defenses--safety, bona fide occupational qualification, and alternative justification for Berube's termination--to avoid liability under the Maine Human Rights Act. We can find no reversible error in the Superior Court's rejection of all of these defenses.

A. Safety

The Maine Human...