Silverstein v. Sisters of Charity of Leavenworth Health Services Corp.

• Decision Date: 20 December 1979
• Docket Number: No. 78-135,78-135
• Citation: 614 P.2d 891,43 Colo.App. 446
• Parties: , 21 Fair Empl.Prac.Cas. (BNA) 1077, 23 Empl. Prac. Dec. P 31,103, 1 A.D. Cases 125 Lynne SILVERSTEIN, Plaintiff-Appellant, v. SISTERS OF CHARITY OF LEAVENWORTH HEALTH SERVICES CORPORATION, and Saint Joseph Hospital, Inc., Defendants-Appellees. . III
• Court: Colorado Court of Appeals

Page 891

614 P.2d 891

43 Colo.App. 446, 21 Fair Empl.Prac.Cas. (BNA) 1077,

23 Empl. Prac. Dec. P 31,103, 1 A.D. Cases 125

Lynne SILVERSTEIN, Plaintiff-Appellant, v. SISTERS OF CHARITY OF LEAVENWORTH HEALTH SERVICES CORPORATION, and Saint Joseph Hospital, Inc. Defendants-Appellees.

No. 78-135.

Colorado Court of Appeals, Div. III.

Dec. 20, 1979.

Rehearing Denied Feb. 21, 1980.

Certiorari Denied June 30, 1980.

Bruce C. Bernstein, Denver, for plaintiff-appellant

Holme, Roberts & Owen, Richard L. Schrepferman, John R. Webb, Denver, for defendants-appellees.

RULAND, Judge.

The plaintiff appeals from a judgment which dismissed her complaint after trial to the court. We affirm in part and reverse in part.

This action was based upon the defendants' refusal to employ the plaintiff as a respiratory therapist. In a prior appeal between the parties, this court affirmed the trial court's dismissal of the plaintiff's claims: (1) for damages under § 24-34-801(1)(b), C.R.S. 1973; (2) for exemplary damages under both the state act and § 504 of the Federal Rehabilitation Act of 1973, 29 U.S.C. § 794; and (3) for attorney's fees. The trial court's dismissal of her claim for a declaratory judgment under the state act was reversed. Silverstein v. Sisters of Charity, 38 Colo.App. 286, 559 P.2d 716 (1976).

Upon remand, trial was held on the plaintiff's claims (1) for damages for breach of contract and for violation of the federal act, and (2) for declaratory judgments that the defendants' policy of refusing to hire anyone with a history of epilepsy in a position involving direct patient care was unlawful under both the federal and state acts. The parties stipulated that the defendants received the funding which makes the state act applicable. They also stipulated that the defendants have a program or activity receiving financial assistance within the meaning of the federal act.

The trial court found that there is a divergence of competent medical opinion regarding the likelihood of future seizures for persons with epilepsy and the possible risks attendant thereto. It further found that there was substantial and respectable medical opinion supporting the reasonableness of the defendants' employment policy. Consequently, the court concluded that the plaintiff was not "otherwise qualified" under the federal act, and that her disability prevented performance of the work involved under the state act. The court also dismissed the breach of contract claim, a ruling which is not involved in this appeal.

I. The Federal Act

Silverstein argues that the trial court erred in finding that she was not otherwise qualified under the federal act and, therefore, wrongfully dismissed her claims for damages and for declaratory relief under that act. We need not reach the merits of this argument since we conclude that, under the circumstances here, the federal statute does not permit an action against this employer for employment discrimination. A correct judgment by the trial court will not be disturbed on review because the reasoning which led to the result is inaccurate. Metropolitan Industrial Bank v. Great Western Products Corp., 158 Colo. 198, 405 P.2d 944 (1965); Klipfel v. Neill, 30 Colo.App. 428, 494 P.2d 115 (1972).

In Trageser v. Libbie Rehabilitation Center, Inc., 590 F.2d 87 (4th Cir. 1978), cert. denied, 442 U.S. 947, 99 S.Ct. 2895, 61 L.Ed.2d 318 (1979), the Fourth Circuit held that "(a) private action under (the federal act) to redress employment discrimination . . . may not be maintained unless a primary objective of the federal financial assistance is to provide employment." We are persuaded by the Trageser court's interpretation of the relevant statutes and its conclusions. See White v. Anderson, 155 Colo. 291, 394 P.2d 333 (1964).

As in Trageser, supra, there has been no allegation in this case that providing employment is a primary objective of the federal aid received by defendants. Rather, the evidence shows that, at the time of the plaintiff's employment application, the only federal aid received by the defendants was in the form of Medicare and Medicaid benefits, and that those funds were provided by the federal government to pay patients' hospital bills. Thus, as in Trageser, the plaintiff could not prevail on her claims under the federal act.

II. The State Act

Silverstein asked the trial court to declare the hospital's exclusionary employment policy violative of the state statute prohibiting discrimination against handicapped persons in employment. Section 24-34-801(1)(b), C.R.S. 1973, provides that otherwise physically disabled persons shall be employed, where the employment is supported in whole or in part by public funds, on the same terms and conditions as the able-bodied, unless it is shown that "the particular disability prevents the performance of the work involved."

Based on uncontroverted facts, the trial court found that the defendant hospital elected not to hire Silverstein solely because of her history of epilepsy. It also found that the hospital's policy with regard to the hiring of persons with a history of epilepsy was to exclude them from positions involving direct patient care and that this restriction did not involve individualized evaluation of each applicant. The court concluded that this employment policy was based upon substantial and respectable medical opinion, and that because of the duty owed by a hospital to its patients, the particular disability, epilepsy, prevented the performance of the work involved.

In so ruling, the trial court held that the hospital's policy of excluding persons with a history of epilepsy from positions involving direct patient care was permissible under the state act. This construction of the statute by the trial court allowing such a policy is a conclusion of law which is not binding on an appellate court. Sunshine v. M. R. Mansfield Realty, Inc., 195 Colo. 95, 575 P.2d 847 (1978).

Because our inquiry is limited to deciding whether the hospital's exclusionary policy is permissible under the statute, and because the hospital admittedly rejected Silverstein immediately upon discovering that she had a history of epilepsy, without evaluating the degree of her disability, we do not, of course, determine whether Silverstein was qualified under the statute. Rather, two issues are significant in evaluating the trial court's conclusion. Does § 24-34-801(1)(b), C.R.S. 1973, allow an employer to exclude from certain positions all persons having a particular disability; and, if not, does the fact that the employer is a hospital affect the application of the statute?

The answer to the first inquiry depends on what the General Assembly intended the words "the particular disability" in the statute to mean. The trial court adopted the defendants' interpretation that the General Assembly intended this language to provide, as to certain employment, for the exclusion of physically disabled persons by virtue of the nature of their disability. We conclude that the consequence of such a construction would frustrate the apparent legislative purpose. See Mooney v. Kuiper, 194 Colo. 477, 573 P.2d 538 (1978).

The legislative intent in enacting this statute was to provide penalties for those employers who exclude handicapped persons from employment solely because of their disability. Section 24-34-802, C.R.S. 1973. The exception provided where a particular disability prevents the performance of the work is a recognition that physical disabilities vary from one individual to another, and that, under some circumstances, the degree of disability may be disqualifying. See, e. g., Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979). Thus, the language of the statute necessarily requires individual consideration of each application to determine whether that person is prevented from performing the work by the particular disability. Consequently, a policy is prohibited which excludes from consideration a group whose members are determined by the nature of their handicap.

There may be cases where individualized consideration of an employment application would require a most cursory analysis, as, for example, if a blind person were to apply for a hospital position where sightedness is obviously necessary to assure patient safety. However, the evidence presented in this case cogently demonstrates why individualized consideration is necessary in order to effectuate the legislative purpose of the act.

While, as the trial court found, there is competent medical testimony to support the hospital's premise that epilepsy is not curable as such and that there is a likelihood of recurring seizures probable for one with a history of epilepsy, the facts pertinent to this particular plaintiff strongly suggest that her alleged disability would not affect her care of patients.

Silverstein has been employed as a respiratory technician for approximately eight years in several different hospitals. Each of her employers was acquainted with Silverstein's history of epilepsy. She has treated thousands of patients and has never been involved in any incident in which her epilepsy affected her work in any way. Representatives of two of the hospitals testified that her job performance was excellent. Finally, two physicians who are experts in the field of diagnosis, treatment, and control of epilepsy who had examined Silverstein, testified at trial. In summary, based upon her medical history, one expert opined that Silverstein's condition presented no danger to any patient under her care. The other expert testified that, assuming that Silverstein took the prescribed medication, her chances of having a seizure were one in 1,000, that she was medically qualified to work as a respiratory technician at the hospital, and that he considered her as being completely controlled insofar as the occurrence of a seizure during the daytime. Yet, the hospital's policy precludes...