Office of Occupational Medicine & Safety v. Baltimore Community Relations Commission

DAVIS, Judge. Charles E. Johnson (Johnson), a former employee of the Baltimore City Fire Department, filed a complaint with the Baltimore Community Relations Commission (Commission) on May 15, 1985, alleging that the Office of Occupational Medicine and Safety of the Mayor and City Council of Baltimore (OOMS) discriminated against him on the basis of a physical disability. Following an investigation, the Commission issued a probable cause finding in support of Johnson’s allegation. A hearing was held before the Honorable Milton B. Allen, the administrative hearing examiner, on April 8, 1987.

Judge Allen held that OOMS failed to show beyond a mere possibility that Johnson’s physical “condition” might create a future hazard to himself and others and ordered that he be reinstated and awarded back pay. The Commission concurred and affirmed the hearing exam ⁴²² iner’s decision. Thereafter, the Commission issued an order reinstating Johnson and awarding him back pay. A complaint to enforce the Commission’s order was filed, after which a hearing on the matter was held in the Circuit Court for Baltimore City.

OOMS appeals from the court’s order that the Commission’s order be enforced. Because we find that there was substantial evidence from which a reasoning mind could have reached the conclusion reached by the Community Relations Commission, we affirm. BACKGROUND Charles Johnson was hired by the Baltimore City Fire Department as a fire fighter cadet on April 22, 1985. He was conditionally hired, his continued employment being contingent upon his ability to pass the physical examination performed by OOMS.

Included in the physical examination were chest and spinal x-rays. The results of those x-rays indicated that Johnson had a bullet lodged behind his sternum 1 and that he suffered from a bone spur on the C-6 vertebra complicated by degenerative arthritis in that area. Medical testimony established that 10 to 15 percent of the population in Johnson’s age group have such spur development. Dr. Altieri, an internist and Chief of Occupational Medicine and Safety of the City of Baltimore, determined that Johnson was “not acceptable” as a fire fighter due to his spur and the increased “probability of future problems.” Thus the Board of Fire Commissioners, based on the medical conclusions reached by OOMS, concluded that the latter condition disqualified Johnson from service as a fire fighter because he did “not successfully [meet] the physical requirements 2 for appointment to the Baltimore City Fire ⁴²³ Department.” Consequently, the complainant was terminated and compensated for time served as a cadet.

At the hearing on the matter before the hearing examiner, on April 8, 1987, Dr. Robert Draper, an orthopedic surgeon who had reviewed Johnson’s x-rays, reported that Johnson had a 50 percent probability of either future injuries or deterioration of his present condition were he to perform the duties of a fire fighter. Dr. Elroy Young, also an orthopedic surgeon, who had examined Johnson and reviewed his x-rays, testified that he found no cervical spine abnormalities and concluded that Johnson is unrestricted in his ability to lift, push, climb, and stoop. Dr. Altieri examined Johnson’s medical records and testified that he was not acceptable as a fire fighter because, in his opinion, the risk of future injury due to the bone spur and attendant arthritis would be very great. Dr. Altieri specifically testified that he was not concerned with Johnson’s ability to perform the job with regard to his medical “condition” but with the probability of further aggravation of the condition over the years and the prolonged periods of recovery after an injury. ⁴²⁴ Although the job specifications of a fire fighter were never specifically delineated by OOMS, Johnson testified at the hearing that he was familiar with the duties of a fire fighter and that he believed he could perform those duties.

He also testified that he had performed strenuous physical activity regularly in his previous employment and also does so without restriction in his present job. The basis of Johnson’s termination was Dr. Altieri’s prognostication of increased “probability of future [physical] problems” and the corresponding financial liability the city could incur in the future. OOMS, however, in its brief and at oral argument, bottoms its decision on Johnson’s ability to satisfy the qualifications of a fire fighter. LAW I. Standard of Review The standard of review we employ gives great deference to the findings of the hearing examiner and the Commission, who are experienced in the matters that come before them.

Thus, “[w]e may not ... substitute our judgment for the expertise of the agency.” Maryland Comm’n On Human Relations v. Mayor and City Council of Baltimore, 86 Md.App. 167, 173 , 586 A.2d 37 (1991). The test of appellate review stated by the Court of Appeals is “whether ... a reasoning mind could reasonably have reached the conclusion reached by the [agency], consistent with a proper application of the [controlling legal principles].” Ramsay, Scarlett & Co. v. Comptroller, 302 Md. 825, 838 , 490 A.2d 1296 (1985). Thus, this Court will only reverse the trial court’s holding if there was no substantial evidence before the Commission on which to support its conclusions and, therefore, arbitrarily decided the issues presented. As we shall explain, there was more than substantial evidence presented to the Commission on which to base its conclusions.

Thus, we are bound to defer to the decision of the Commission and must affirm the circuit ⁴²⁵ court which independently determined that the Commission had not acted arbitrarily. It is not within our mandate to substitute our judgment for the expertise of the agency, and we decline to do so.

II

Jurisdiction OOMS’s first contention is that Johnson does not suffer from a “physical disability” within the meaning of the Baltimore City Code, Article 4, § 9(14) (1988), but merely has a “physical limitation” which makes him “unsuited” for the job. Accordingly, OOMS argues that Johnson could not have been discriminated against on the basis of a handicap, as he was not “handicapped” and thus does not come within the ambit of Baltimore City Code, Article 4, § 9(6). In support of its contention that Johnson is unfit for the position of a fire fighter, OOMS relies on § 9(6), which provides in pertinent part: Discrimination means any difference in the treatment of an individual or person because of race, color, religion, national origin, ancestry, sex, physical or mental disability ... except that it shall not be discrimination ... for an employer to disqualify a person with a physical or mental disability when the nature or extent of the disability makes the person unfit or unsuited for the job____ Judge Alpert of this Court reasoned in a factually similar case that if an employee’s rejection was based on his actual or perceived “handicap” and he failed to satisfy the requirements for the job, his dismissal was not discriminatory. Mass Transit v. Comm’n on Human Relations, 68 Md.App. 703, 708-09 , 515 A.2d 781 (1986), cert. denied, 308 Md. 382 , 519 A.2d 1283 (1987).

The logical extension of the reasoning in Mass Transit , as it applies to the case sub judice, is that Johnson’s rejection was based on a perceived “handicap” and was unlawful and discriminatory because he satisfied the requirements for the job. We hold that the ⁴²⁶ complainant had no handicap or disability but was erroneously determined to be lacking the necessary qualifications for the job because of a perceived future handicap. Thus, we consider the propriety of Johnson’s cause of action under the pertinent discrimination laws. Id. 68 Md.App. at 715 , 515 A.2d 781 .

In Mass Transit , a bus driver was denied employment on the basis of his elevated blood pressure. The complainant in that case alleged that “he was discriminated against because the MTA perceived him as an individual suffering from the handicap of hypertension.” Id. at 711 , 515 A.2d 781 . The only reason that the result in Mass Transit , affirming the denial of employment due to the applicant’s inability to satisfy the job requirements, is at odds with the result in the instant case is because Johnson was able to meet the bona fide job qualifications. Id. at 715 , 515 A.2d 781 .

In a case in which an applicant for an entry-level fire fighter position was refused employment because of poor eyesight, which was correctable to 20/20, the Supreme Court of Colorado, in setting forth the burden of proof where discrimination based on a perceived handicap is claimed, held that [t]o make out a prima facie case of employment discrimination under section 24-34-402(l)(a), an applicant bears the burden of showing that he or she is handicapped within the meaning of section 24-34-301(4), that the applicant was otherwise qualified to perform the job, and that an employer refused to hire the applicant “because of handicap.” Once these three conditions are met, the burden shifts to the employer to show that there is no reasonable accommodation that the employer can make with regard to the handicap, that the handicap actually disqualifies the applicant from the job, and that the handicap has a significant impact on the job. Colorado Civil Rights Commission v. North Washington Fire Protection District, 772 P.2d 70, 75-76 (1989) (citations omitted). ⁴²⁷ In discussing “perceived handicap,” Colorado Civil Rights Commission observes that [a] person “is regarded as having an impairment” under Rule 60.1(B)(1)(d) in three circumstances: first, although the person has a physical impairment, the impairment does not substantially limit one or more of the person’s major life activities yet the employer treats the person as being substantially limited in one or more major life activities; second, the person has a physical impairment which substantially limits one or more of a person’s major life activities but does so only as a result of the employer's attitudes; and third, the person has no physical impairment but is treated by the employer as having an impairment. The court further reasoned as follows: Rule 60.1(B)(l)(d)(l) clearly contemplates that an applicant could be “regarded as having an impairment” when he or she has a physical impairment but the impairment does not substantially limit one or more major life activities, so long as the employer treats the applicant’s impairments as substantially limiting one or more of the person’s major life activities. Accepting this reasoning, we agree with the applicants that the court of appeals erred in concluding that the District did not regard Gargano to be handicapped.

We hold as a matter of law that Gargano is handicapped within the meaning of section 24-34-301(4) because the District treated him as being substantially limited in one or more major life activities even though he possessed no such substantial limitation. Rule 60.1(B)(l)(d)(3) provides that an applicant “is regarded as having an impairment” even if the person has no impairment, so long as the employer treats the applicant as having an impairment. This category protects individuals who may be completely recovered from a previous impairment or who may be erroneously classified as having an impairment. ⁴²⁸ Id. at 79 (citation omitted). Thus in reversing the Colorado Court of Appeals, 3 the Supreme Court interpreted a statute similar to Article 4, § 9(6) and expressly held that jurisdiction attaches where the employer regards the applicant as handicapped. 4 The Maryland statute governing discriminatory practices in the work place, art. 49B, § 16(g) (1979), employs a very similar broad definition of the word “handicap” as the Baltimore City Code employs for “physical disability.” The interpretive handicapped discrimination guidelines reflect this broad definition in the same way as the Commission’s guidelines by including within it individuals who are regarded as having a handicap 5 or who have a past history or record of having a handicap, as well as those who are actually handicapped.

COMAR 14.03.02.03(B) and (C) (1979) (emphasis added). The Code of Maryland Regulations, in language which OOMS argues is clearly intended to be applicable under the city legislation, delimits the concept of a handicap to “a substantial limitation on one or more of a person’s major life activities.” COMAR 14.03.02.-03(A)(1979). “Major life activities may be considered to include, but are not limited to, employment, transportation, adapting to housing, communication, self care, recreation, socialization, education, and vocational training.” Id. ⁴²⁹ Thus it is clear that an individual is “physically disqualified” or “handicapped” for purposes of invoking the state or city legislation prohibiting discrimination