City of Columbus Civil Service Commission v. McGlone

[This opinion has been published in Ohio Official Reports at 

82 Ohio St.3d 569

.]




 CITY OF COLUMBUS CIVIL SERVICE COMMISSION, APPELLANT, v. MCGLONE
                                   ET AL., APPELLEES.

       [Cite as Columbus Civ. Serv. Comm. v. McGlone, 

1998-Ohio-410

.]
Civil Rights Commission—Complaint alleges discrimination against applicant for
        position as firefighter recruit on basis of a handicap, his visual
        impairment—Person denied employment because of a physical impairment
        is not necessarily “handicapped” pursuant to former R.C. 4112.01(A)(13).
A person denied employment because of a physical impairment is not necessarily
        “handicapped” pursuant to former R.C. 4112.01(A)(13).
      (No. 97-980—Submitted March 25, 1998—Decided August 12, 1998.)
APPEAL from the Court of Appeals for Franklin County, Nos. 96APE08-1032 and
                                     96APE08-1083.
                                  __________________
        {¶ 1} Appellee James McGlone applied for a position as a firefighter recruit
with the city of Columbus on April 2, 1990. At that time, the application process
consisted of a written examination and a physical capability test. Applicants who
passed those tests were ranked on an eligible list based on their combined scores.
Applicants on the eligible list then moved on to the next phases of the process,
which included an aerial ladder climb, a background review, and a medical
examination which included a vision test. Applicants who failed any portion of the
application process could not be considered for appointment to the firefighter
training academy.
        {¶ 2} McGlone was ranked number 156 on the eligible list after the written
examination and physical capability test. He then successfully completed the
ladder climb and background review portions of the process. However, McGlone
failed the vision test portion of his medical examination. The city’s visual acuity
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standard requires a firefighter applicant to have not less than 20/40 vision in both
eyes without correction, acuity of not less than 20/20 in both eyes with correction,
and normal color vision. McGlone’s vision was 20/100 in both eyes without
correction. A person with 20/100 vision can see an object from twenty feet only as
well as a person with 20/20 vision can see an object at one hundred feet. Since he
failed the vision portion of the medical examination, McGlone was removed from
the eligible list on June 9, 1992.
       {¶ 3} On November 17, 1992, McGlone filed a charge with the Ohio Civil
Rights Commission (“OCRC”), alleging that the city had discriminated against him
on the basis of a handicap, his visual impairment. The OCRC investigated the
charge, issued a complaint, and held a hearing. The OCRC hearing examiner found
that the city had discriminated against McGlone on the basis of a perceived
handicap and recommended that he be reinstated to the eligible list. The hearing
examiner did not recommend any back pay. The OCRC adopted the hearing
examiner’s finding of discrimination, but also awarded back pay and ordered the
city to offer McGlone employment as a firefighter.
       {¶ 4} The city appealed that decision to the Franklin County Common Pleas
Court. The common pleas court upheld the discrimination finding, but reversed the
OCRC’s remedy. The OCRC appealed the remedial portion of the court’s decision;
the city cross-appealed on the discrimination finding. The appellate court affirmed
the finding of discrimination, holding that the city perceived McGlone to be
handicapped and removed him from the eligible list because of that handicap,
despite the fact that he could safely and substantially perform the essential functions
of a firefighter with the reasonable accommodation of being allowed to wear
contact lenses while on duty.
       {¶ 5} With respect to the remedy, the appellate court reversed the trial court,
holding that the remedy ordered by the OCRC was supported by reliable, probative,
and substantial evidence.




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                               January Term, 1998




       {¶ 6} The cause is now before this court upon the allowance of a
discretionary appeal.
                             __________________
       Janet E. Jackson, City Attorney, Sherrie J. Passmore, Chief Labor
Attorney, and Stephanie M. Hughes, Assistant City Attorney, for appellant.
       Michael G. Moore, for appellee James McGlone.
       Betty D. Montgomery, Attorney General, Duffy Jamieson and Matthew D.
Miko, Assistant Attorneys General, for appellee Ohio Civil Rights Commission.
       Louis A. Jacobs; Spater, Gittes, Schulte & Kolman and Frederick M. Gittes,
urging affirmance for amicus curiae, Ohio Employment Lawyers Association.
                             __________________
       PFEIFER, J.
       {¶ 7} We hold that a person denied employment because of a physical
impairment is not necessarily “handicapped” pursuant to former R.C.
4112.01(A)(13).
       {¶ 8} To establish a prima facie case of handicap discrimination, the person
seeking relief must demonstrate (1) that he or she was handicapped, (2) that an
adverse employment action was taken by an employer, at least in part, because the
individual was handicapped, and (3) that the person, though handicapped, can
safely and substantially perform the essential functions of the job in question.
Hazlett v. Martin Chevrolet, Inc. (1986), 

25 Ohio St.3d 279, 281

, 25 OBR 331, 333,

496 N.E.2d 478, 480

. This case revolves around the first element, i.e., whether
McGlone was handicapped. At the time this case arose, the predecessor to the
current R.C. 4112.01(A)(13) was in effect, and it defined “handicap” as follows:
       “ ‘Handicap’ means a medically diagnosable, abnormal condition which is
expected to continue for a considerable length of time, whether correctable or
uncorrectable by good medical practice, which can reasonably be expected to limit
the person’s functional ability, including, but not limited to, seeing, hearing,




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thinking, ambulating, climbing, descending, lifting, grasping, sitting, rising, any
related function, or any limitation due to weakness and significantly decreased
endurance, so that he cannot perform his everyday routine living and working
without significantly increased hardship and vulnerability to what are considered
the everyday obstacles and hazards encountered by the non-handicapped.” 143
Ohio Laws, Part III, 4156.
        {¶ 9} In the current version of R.C. 4112.01(A)(13), even if a person is not
handicapped, he can gain the protection of handicap discrimination laws if he is
“regarded [by an employer] as having a physical or mental impairment.” While the
“regarded as handicapped” language was not part of the statute when this case
arose, the pertinent Administrative Code section in effect at the time, Ohio
Adm.Code 4112-5-02(H), included in its definition of a “handicapped person” “any
person who is regarded as handicapped by a respondent.” We therefore find that it
was appropriate for the OCRC and the reviewing courts to consider whether the
city perceived McGlone as handicapped.
        {¶ 10} The question before this court then is whether a person can be
foreclosed from a particular job based upon a physical impairment without at the
same time being handicapped, or perceived as handicapped, under former R.C.
4112.01(A)(13), and therefore due the protections of the Ohio Civil Rights Act.
We find that McGlone was neither handicapped nor perceived as handicapped by
the city.
        {¶ 11} To find that McGlone was handicapped, we would have to conclude
that his nearsightedness was a “medically diagnosable, abnormal condition which
is expected to continue for a considerable length of time * * * which can reasonably
be expected to limit [his] functional ability * * * so that he cannot perform his
everyday routine living and working without significantly increased hardship and
vulnerability to what are considered the everyday obstacles and hazards
encountered by the nonhandicapped.”




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                                  January Term, 1998




         {¶ 12} There is no dispute that McGlone’s 20/100 vision is a medically
diagnosable condition that is expected to continue. Whether that condition limits
his functional ability so that he cannot perform his everyday routine living and
working without significantly increased hardship is another matter. The record
shows that McGlone leads a normal life. The fact that he wears eyeglasses or
contact lenses is not a significant hardship. It is a common burden shared by
millions, including a majority of this court.
         {¶ 13} McGlone’s nearsightedness has led to one major hardship in his life,
his inability to become a firefighter. But the statute speaks in terms of “everyday
routine living and working.” It is a broad reference to a general quality of life. The
handicap discrimination statute was designed to protect those who live with a
handicap that significantly affects the way they live their lives on a day-to-day
basis.
         {¶ 14} The federal Americans with Disabilities Act (“ADA”) is similar to
the Ohio handicap discrimination law. It defines a disability as a “physical or
mental impairment that substantially limits one or more of the major life activities
of [an] individual.” Section 12102(2)(A), Title 42, U.S.Code. We can look to
regulations and cases interpreting the federal Act for guidance in our interpretation
of Ohio law. Little Forest Med. Ctr. v. Ohio Civ. Rights Comm. (1991), 

61 Ohio St.3d 607

, 

575 N.E.2d 1164

.
         {¶ 15} In its interpretation of the ADA, Section 1630.2(j)(3), Title 29,
C.F.R. discusses what factors should be considered in determining whether an
individual is substantially limited in a major life activity:
         “With respect to the major life activity of working —
         “(i) The term substantially limits means significantly restricted in the ability
to perform either a class of jobs or a broad range of jobs in various classes as
compared to the average person having comparable training, skills, and abilities.




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                             SUPREME COURT OF OHIO




The inability to perform a single, particular job does not constitute a substantial
limitation in the major life activity of working.” (Emphasis added.)
       {¶ 16} There is no evidence that McGlone’s vision disqualified him from a
class of jobs or a wide range of jobs. The city merely precluded him from one
position, firefighter. In Bridges v. Bossier (C.A.5, 1996), 

92 F.3d 329

, the court
held that an applicant who was disqualified from performing firefighting jobs for
the city based on a mild form of hemophilia was not disabled under the ADA, since
the field of firefighting jobs was too narrow a field to constitute a “class of jobs.”
We agree with the Bridges court’s interpretation that the position of firefighter does
not constitute a class of jobs, but is merely one job. We further conclude that the
inability to perform a single job does not present significantly increased hardship
to a person’s everyday routine living and working.
       {¶ 17} Other federal courts have refused to find that nearsightedness
constitutes a disability. In Sutton v. United Air Lines, Inc. (C.A.10, 1997), 

130 F.3d 893

, plaintiffs, twin sisters, were denied employment by United Air Lines for
failure to have uncorrected vision of 20/100 or better in each eye. The Sutton court
found that the impairment did not substantially limit a major life activity, and that
the sisters were not disabled. In Chandler v. Dallas (C.A.5, 1993), 

2 F.3d 1385, 1390

, the court held that a person is not handicapped if his vision can be corrected
to 20/200. In Joyce v. Suffolk Cty. (E.D.N.Y.1996), 

911 F.Supp. 92

, a plaintiff
denied a job as a police officer because of impaired eyesight was found not to have
a disability. See, also, Walker v. Aberdeen-Monroe Cty. Hosp. (N.D.Miss.1993),

838 F.Supp. 285

; Trembczsynski v. Calumet City (Aug. 31, 1987), N.D.Ill. No. 87
C 0961, unreported, 

1987 WL 16604

.
       {¶ 18} We conclude that McGlone’s 20/100 vision is not a handicap under
the statute. His vision problem did not create significantly increased hardship in
McGlone’s functional ability to perform his everyday living and working.




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                                  January Term, 1998




        {¶ 19} We further conclude that the city did not perceive McGlone as
handicapped. We stated above that the inability to perform a single job because of
an abnormal condition does not transform that condition into a handicap. The city
in this case considered McGlone nearsighted, not handicapped, merely lacking a
single physical requirement for a single job. For McGlone to succeed on a theory
of perceived handicap, the city would have had to consider McGlone’s
nearsightedness as foreclosing him from a class of jobs. There is no evidence that
the city had such a perception.
        {¶ 20} Accordingly, we reverse the judgment of the court of appeals in its
entirety.
                                                              Judgment reversed.
        MOYER, C.J., F.E. SWEENEY, COOK and LUNDBERG STRATTON, JJ., concur.
        RESNICK, J., concurs in judgment only.
        DOUGLAS, J., dissents.
                                 __________________




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