BAY CITY FIRE DEPARTMENT v. DEPARTMENT OF CIVIL RIGHTS Ex Rel ROZNOWSKI

451 N.W.2d 533, 182 Mich. App. 145, 1989 Mich. App. LEXIS 687, 52 Fair Empl. Prac. Cas. (BNA) 1465

• Court: Michigan Court of Appeals
• Decided: October 25, 1989
• Docket: Docket 110324
• Status: Published

Opinions

Per Curiam;.

Respondent appeals as of right from a circuit court order vacating a decision of the Michigan Civil Rights Commission and dismissing the underlying complaint, which asserted a claim under the Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq. We reverse and remand.

In June of 1982, claimant, Raymond Roznowski, applied to petitioner for employment as a fire fighter. Approximately one year later, after successfully completing a written examination and certain agility tests, claimant was informed that a position was available. However, prior to being hired, claimant underwent a physical examination conducted by petitioner’s regular physician, Dr. Louis Berta. As part of this examination, Dr. Berta sent claimant’s x-rays to Dr. John Fenton, a radiologist. Based on his review of these x-rays, Dr. Fenton concluded claimant was suffering from a narrowing of certain "disc spaces” in his spine and related to Dr. Berta that claimant had a "class iv” back, a rating presumably indicating back problems. Although claimant was otherwise physically fit and apparently well suited to employment as a fire fighter, petitioner ultimately declined to hire him because of his back condition.

Thereafter, claimant filed a complaint with the Civil Rights Commission under the hcra. Claimant asserted his back condition was a "congenital birth defect of the spine” and that petitioner had discriminated against him "because of this handicap.” Following an evidentiary hearing, the commission agreed claimant had been discriminated against under the hcra and ordered petitioner to offer claimant employment as a fire fighter. However, the commission did not find claimant "handicapped” according to the commonly understood meaning of the term, i.e., a physical disability or mental deficiency arising from disease or trauma. Rather, the commission indicated that claimant was protected under the hcra because petitioner "perceived and treated him as a handicapped person,” and because petitioner "rejected his application on account of generalized and stereotypical notions as to how his spinal column should be formed.” This conclusion was apparently influenced by a medical diagnosis made by Dr. Richard Sheridan, an orthopedic physician who examined claimant at the commission’s request. As phrased by the commission, Dr. Sheridan "found that claimant’s spinal column was normal, healthy, and lacking pathological signs of degeneracy or trauma.”

Petitioner appealed the commission’s order to circuit court. Petitioner maintained that claimant was not entitled to bring a claim under the hcra because, as indicated by the commission’s own findings, claimant did not have an "actual handicap,” in the sense of a physical disability or mental deficiency. Petitioner essentially argued that a claimant must have such a disability or deficiency in order to assert a claim under the hcra. The circuit court agreed with this conclusion, vacating the commission’s order and dismissing claimant’s discrimination complaint. The circuit court did not address petitioner’s argument concerning whether the commission’s order was supported by the record. Respondent now appeals as of right.

Respondent first argues that the trial court erred in concluding the hcra does not protect persons perceived and treated as handicapped by employers where no handicap in fact exists. However, we need not address the question whether "perceived handicaps” are protected under the hcra in the instant case. The hcra defines the term "handicap” as follows:

(b) "Handicap” means a determinable physical or mental characteristic of an individual or a history of the characteristic which may result from disease, injury, congenital condition of birth, or functional disorder which characteristic:

(i) For purposes of article 2, is unrelated to the individual’s ability to perform the duties of a particular job or position, or is unrelated to the individual’s qualifications for employment or promotion. [MCL 37.1103; MSA 3.550 (103).]

We are not here presented with a "perceived handicap” situation as all parties agree the claimant has a determinable characteristic arising from a congenital condition of birth, a congenital defect of the spine. Instead, the parties dispute whether the commission’s finding that the claimant’s "physical characteristic” is unrelated to his ability to be a fire fighter is supported by competent, material and substantial evidence. As the trial court did not address this issue, we remand for such a determination.

Reversed and remanded.