Tremblay v. Reid, 84-98

• Decision Date: 28 May 1985
• Docket Number: No. 84-98,84-98
• Citation: 700 P.2d 391
• Parties: Michael J. TREMBLAY, Appellant (Plaintiff), v. George McCreidie "Scotty" REID, individually; Charles H. Garey, individually and in his capacity as Chief of the Cheyenne Fire Department; Lt. James Herrin, individually and in his capacity as Internal Affairs Officer of the Cheyenne Fire Department; the City of Cheyenne, a Municipal Corporation organized pursuant to the laws of the State of Wyoming; and the Civil Service Commission of the Fire Department of the City of Cheyenne, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 391

700 P.2d 391

Michael J. TREMBLAY, Appellant (Plaintiff), v. George McCreidie "Scotty" REID, individually; Charles H. Garey, individually and in his capacity as Chief of the Cheyenne Fire Department; Lt. James Herrin, individually and in his capacity as Internal Affairs Officer of the Cheyenne Fire Department; the City of Cheyenne, a Municipal Corporation organized pursuant to the laws of the State of Wyoming; and the Civil Service Commission of the Fire Department of the City of Cheyenne, Appellees (Defendants).

No. 84-98.

Supreme Court of Wyoming.

May 28, 1985.

Rodger McDaniel and Jennifer Hager of Southeast Wyoming Law Offices of

McDaniel and Salazar, Cheyenne, for appellant (plaintiff).

Gary R. Scott of Hirst & Applegate, Cheyenne, for appellees (defendants).

Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.

ROONEY, Justice.

Appellant's amended complaint alleged that appellee Reid slandered him and that the other appellees unlawfully denied him employment by the Cheyenne Fire Department as a fire fighter. The slander action was severed. In the remaining case, summary judgment was entered in favor of appellee Garey, Chief of the Cheyenne Fire Department, and judgment was entered in favor of the other appellees after a trial to the district court.

We affirm.

Appellant words the issues on appeal as follows:

"I. ARE THE APPELLEES ESTOPPED FROM DENYING APPELLANT TREMBLAY A POSITION AS FIRE FIGHTER BY THE DOCTRINE OF PROMISSORY ESTOPPEL TO THE CIRCUMSTANCES OF THIS CASE?

"II. WERE THE CIVIL SERVICE COMMISSION'S MEDICAL AND HEALTH STANDARD REQUIREMENTS ON HEIGHT, WEIGHT AND VISION SELECTIVELY ENFORCED AND, THEREFORE, INVALID?

"III. DID THE COURT INCORRECTLY CONSTRUE THE VISION ACUITY STANDARDS SET OUT IN THE RULES AND REGULATIONS OF THE FIRE DEPARTMENT CIVIL SERVICE COMMISSION?

"IV. DID THE COURT ABUSE ITS DISCRETION BY SEVERING THE ACTION AGAINST GEORGE McCREIDIE 'SCOTTY' REID?"

The first two issues are founded on the contention that the trial court erred in findings of fact. Appellant contends that he was unconditionally promised a position as a fire fighter, and appellees contend that the availability of the position was conditioned upon meeting vision requirements. Whether the promise was conditioned or unconditioned is a question of fact. Appellant's contention that the vision requirements were selectively enforced was denied by appellees. Again, whether or not the requirements were selectively enforced is a question of fact.

The standard for review of factual issues is whether or not there was substantial evidence to support the finding of the trial court, and, in doing so, we assume evidence in favor of the successful party as true, leave out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference which may reasonably and fairly be drawn from it. Distad v. Cubin, Wyo., 633 P.2d 167, 180 (1981); Western National Bank of Lovell v. Moncur, Wyo., 624 P.2d 765, 766 (1981).

In granting the summary judgment to appellee Garey, the trial judge, the Honorable Joseph F. Maier, set forth in an Opinion Letter the factual background as then before him and from which he found no genuine issue as to a material fact with reference to the claim for relief against appellee Garey. The letter reads in pertinent part:

"2. In support of the motion for summary judgment there was filed an affidavit an affidavit [sic] of Chief Charles H. Garey which refers to an exhibit A which is sworn to be a true and complete copy of the medical and physical examination record which was submitted by Michael J. Tremblay when he applied for a position as a fire fighter. This medical report shows the plaintiff's vision in the left eye to be 20/70 and the medical examiner who signed the report indicated that the applicant was qualified 'except for vision in left eye.'

"3. The affidavit of defendant Garey further states: 'That the reason he refused to hire Michael J. Tremblay as a fire fighter with the Cheyenne Fire Department was that two different eye examinations given Mr. Tremblay by qualified physicians indicated that Mr. Tremblay had 20/70 and 20/60 vision in his left eye. Such vision is inadequate and substandard according to the Rules and Regulations of the Cheyenne Fire Department Civil Service Commission. That there were no other reasons for he not hiring Michael J. Tremblay as a fire fighter for the Cheyenne Fire Department.'

"4. The affidavit of defendant Garey further states that an exhibit C that is attached is a true and complete copy of the notice which was published in the Cheyenne Eagle-Tribune on or about 1 May 1981. This notice is entitled, 'Fire fighter exams announced' and in the notice it was further stated, 'Applicants must be between the ages of 21 and 32 and have visual acuity of not less than 20/30 with either eye and 20/20 combined. Corrective lenses may be worn for vision of not less than 20/30. A physical examination will be given the applicant by the Civil Service Commission medical examiner at the applicant's expense after the entrance exam has been passed....'

"5. The affidavit of the plaintiff states, in part, as follows:

" 'I reported to Chief Garey's office where I was informed that I had the job if I were still interested, and further was told how many hours I was to work, the amount of pay I would earn, the benefits I would be receiving, and that I should begin learning the location of the streets in the City of Cheyenne. I was further informed that I was to report to the new Western Hills fire station on Tuesday, February 1, 1983, to begin work with one month of training, was told where to park my car and to purchase a pair of Levis TM for wear during training. Neither the chief nor anyone else ever told me that I must pass an additional physical examination before I was hired. During the above described meeting with Chief Garey, I was informed that an appointment had been made for me for Wednesday, January 12, 1983, at 1:30 P.M. at the office of Internal Medicine Group for a physical examination, and further that the results of that physical examination should be delivered by me to the chief as soon as the doctor made the results available.... On January 17th I received a call asking if I would be at the Fire Administration Office at 10:30 that morning. Upon arrival at the Fire Administration Office I was escorted to Chief Garey's conference room and was told I was disqualified because my vision did not meet civil service requirements....'

"6. The affidavit of J. Arling Wiederspahn filed by the plaintiff in opposition to the motion for summary judgment states in part as follows:

" 'Attached to my affidavit is a true and accurate copy of the civil service commission rules as they existed from the 23rd of January, 1959, until September of 1979. The vision rules in effect under the attached rules are identical to those vision standards adopted under the rules promulgated in 1979....'

"The vision requirements thus referred to in the affidavit of Mr. Wiederspahn provide as follows from the attached copy of the rules:

" '1. Vision:

" 'Not less than 20/30 with either eye or 20/20 with both eyes only acceptable; no glasses allowed; ...'

"Based on all of the foregoing, the Court concludes that there is no material issue of fact as to the plaintiff's failure to meet the vision requirements of the Firefighters Civil Service Commission Rules and there is no material issue of fact that the defendant Garey refused to hire the plaintiff for the reason that his vision did not meet these requirements and for no other reason. The affidavits of plaintiff and those submitted in his behalf do not raise an issue as to these last cited facts.

"The affidavits submitted by plaintiff, however, do in the Court's opinion raise an issue of fact as to whether the Fire Department Civil Service Commission Rules and Regulations as to vision have been in the past selectively enforced and whether the same are in fact valid and reasonable rules and regulations. The distinction must be clearly noted, however, that in none of the plaintiff's affidavits or supporting material is it alleged by any competent witness under oath that the defendant Garey selectively applied these rules to this plaintiff or to others or that the defendant Garey refused to hire the plaintiff for any reason other than his failure to meet these vision requirments [sic]."

After the trial, Judge Maier made the following Findings of Fact:

"1. In May, 1981, plaintiff, Michael Tremblay, successfully completed all written, oral, and agility examinations as required for service with the Fire Department of the City of Cheyenne.

"2. Chapter III, Section 1(g) of the Rules and Regulations promulgated by the Civil Service Commission for the Fire Department of the City of Cheyenne requires applicants to have vision of '20/30 in either eye.' Vision in plaintiff's left eye was determined to be 20/70 in an examination conducted by Internal Medicine Group on January 12, 1983; and a subsequent examination a few days later conducted by Dr. Stadnik indicated the vision in plaintiff's left eye was evaluated at 20/60.

"3. In January, 1983, Fire Chief Charles Garey disqualified plaintiff for an available position with the Fire Department of the City of Cheyenne because plaintiff's vision did not meet the standard established by the Civil Service Commission in their rules (see above).

"4. Of the group which took the written examination with plaintiff in May of 1981, Chief Charles Garey had disqualified at least six other applicants for failure to meet the vision standards before plaintiff was disqualified for that reason.

"5. No evidence indicates that Chief Garey had ever waived the vision requirements with regard to any applicant.

"6. The alleged height and weight standards, which the evidence shows Chief Garey did waive in several separate...