HR-87-026-PE

4-1700-1473-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE MINNESOTA DEPARTMENT OF HUMAN RIGHTS

State of Minnesota, by Jayne B.

Khalifa, Acting Commissioner,

Department of Human Rights, ORDER

Complainant,

Hennepin County,

Respondent.

The above-entitled matter was initiated by the Complainant, Minnesota

Department of Human Rights, by the issuance of a Complaint and a Notice of and

Order for Hearing on or about April 8, 1987. This matter was assigned to

Administrative Law Judge Peter C. Erickson. Helen G. Rubenstein, Special

Assistant Attorney General, 1100 Bremer Tower, Seventh Place and Minnesota

Street, St. Paul, Minnesota 55101, has appeared on behalf of the Complainant.

Janeen E. Rosas, Assistant County Attorney, 2000 Government Center,

Minneapolis, Minnesota 55487, has appeared on behalf of the Respondent,

Hennepin County.

A Prehearing Conference was held on May 14, 1987, at which time discovery

and briefing schedules were set for the purpose of bringing dispositive

motions prior to any hearing on this matter. Motions have been filed by both

parties, however, only the motions for summary judgment filed by the

Respondent will be considered in this Order. The motions filed by the

Complainant will be reserved for a later determination. Consequently, this

Order is not dispositive of all the issues which must be determined in this

case. The issues which have been briefed and will be decided in this Order

are: (1) whether the "Langevin" allegations should be dismissed with or

without prejudice; and (2) whether summary judgment should be ordered in

Respondent's favor because the Charging Party does not qualify as a " disabled

person".

Based upon all of the records, files and arguments of counsel, the

Administrative Law Judge makes the following:

ORDER

1. Respondent's motion to dismiss the "Langevin" allegations with

prejudice is GRANTED, unless Complainant chooses to respond to the motion for

summary judgment on the merits; and

2. Respondent's motion to dismiss the "Tervo" disability discrimination

allegations is GRANTED.

Dated this day of September, 1987.

PETER C.ERICKSON

Administrative Law Judge

MEMORANDUM

PROCEDURAL HISTORY

As stated above, this case was initiated by the issuance of a Complaint

which was dated April 8, 1987. This Complaint was brought on behalf of two

Charging Parties, William Langevin and Allan Tervo. The "Langevin" count

alleged that Hennepin County discriminated against Mr. Langevin on the basis

of disability when Respondent disqualified Langevin from employment in June of

1977. A Charge had been filed by William Langevin on June 24, 1977 and

probable cause found by the Department of Human Rights in late December, 1980.

Count 11 of the Complaint concerns an allegation of disability

discrimination against Respondent for disqualifying Allan Tervo from

employment because of the results of a pre-employment physical examination.

This disqualification occurred in June of 1984. Mr. Tervo filed a Charge of

discrimination in July of 1984 and the Department found probable cause in May

of 1986.

On June 22, 1987, a First Amended Complaint was issued by the Department

of Human Rights. This Complaint contained an additional allegation in Count I

(Langevin) that Hennepin County discriminated because it required Langevin to

furnish information pertaining to disability. Additionally, Count II (Tervo)

was amended by adding an allegation that Hennepin County discriminated against

Mr. Tervo when it required him to furnish information pertaining to

disability. Before the First Amended Complaint was issued, an Answer to the

initial Complaint had been filed by the Respondent on May 4, 1987. An

"informal" Amended Answer to the Amended Complaint was filed by Hennepin

County on July 16, 1987.

After Respondent filed its Motion for Summary Judgment, a Second Amended

Complaint was issued-by the Complainant which eliminated all of the

allegations concerning William Langevin (Count I). Complainant has stated

that it "agrees to dismissal without prejudice of those allegations relating

to the Charge of Mr. Langevin." Letter from Ms. Rubenstein dated August 6,

1987. Mr.-Langevin's deposition had been taken on June 11, 1987 by the

Respondent to support its Motion for Summary Judgment concerning the

allegations contained in Count 1. Complainant's briefs did not address the

Motion to Dismiss the Langevin allegations.

On August 13, 1987, a Third Amended Complaint was issued by the Department

of Human Rights to correct the case title (insertion of the new Commissioner's

name) and to correct certain clerical errors. A Supplemental Answer to the

Third Amended Complaint was filed on September 4, 1987.

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this factual statement is for the purpose of deciding this motion only

and shall not be considered "undisputed" facts for the purpose of any other

motion in this proceeding.

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Allan E. Tervo applied for employment as a detention deputy with the

Hennepin County Sheriff's Office on or about February 21, 1984. Tervo

completed each stage of the selection process for the position of detention

deputy including a written test, oral interview, strength and agility test,

and psychological testing. He provided information requested by the County

for purposes of a background investigation. A county official informed Tervo

and other applicants that the County screened out individuals it considered

unqualified for the position of detention deputy at each stage of the

selection process, and that only qualified candidates proceeded to the next

stage of the process. Following completion of a strength and agility test,

the County informed Tervo that he was among 30 finalists out of 900 original

applicants for the detention deputy position.

As the final stage of the selection process, the County required Tervo to

submit to a pre-employment physical examination by Dr. Richard Cohan on or

about May 30, 1984. At this time, no conditional offer of employment had been

made to Tervo. As part of the examination process, Tervo was required to

complete a questionnaire form concerning his own and his family's medical

history.

During the pre-employment physical examination, Dr. Cohan determined that

Tervo's distant vision in each eye was 201200 and that he suffered from a high

tone hearing loss in his right ear. Mr. Tervo's eyesight was corrected, by

use of glasses or contacts, to 20120. However, the report from Dr. Cohan

stated that "physical and laboratory results show that the applicant does not

meet the requirement of the Hennepin County Sheriff's Department because of

distant vision not 201100 uncorrected and high tone hearing loss R ear. "

Following this pre-employment physical examination, the County sent Tervo a

letter notifying him that he was disqualified for employment as a detention

deputy because he had failed to meet the County's uncorrected vision standard.

The vision standard of 201100 uncorrected in each eye for employees of the

Hennepin County Sheriff's Department was established by Dr. Richard Cohan for

the following reasons:

. . . The reason why law enforcement agencies of all types

do set up a limit on uncorrected vision is the possibility

that the Peace Officer may have to function without his

glasses or contact lenses for various reasons. The glasses

could be knocked off in a struggle with another individual,

sometimes Peace Officers will remove their glasses when

they enter a cell with a prisoner because of the

possibility that in a struggle the glasses might break and

cause damage to the eye, or perhaps the glasses could be

taken from the Peace Officer and used as some type of a

weapon, because broken glass is a sharp instrument. We set

the standard that a Peace Officer would need 20/100

uncorrected in each eye because we felt that was the bare

minimum that they could function and carry on their job.

201100 is poor vision, and even at that level an individual

would most likely have trouble reading normal signs,

identifying someone and just difficulty carrying on

activities because again 201100 is quite poor vision.

Medically when you measure vision after 201100, the next

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medical measurement is 201200, which is legally blind.

Thus, if the individual does not meet our standard of

201100 in an eye, that means that his vision in that eye

would be 201200 or worse, or in other words he would be

legally blind in that eye. I just think that from a medical

point of view, it would be a mistake to let an individual

function as a Peace Officer of any type who is legally

blind in an eye if for one reason or another his glasses or

contact lenses were not available to him.

Exhibit 9 attached to Complainant's responsive brief.

Mr. Tervo graduated from college with a degree in mass communications and,

at that time, hoped to obtain a job in social services, preferably working

with juveniles in the capacity of a counselor. Mr. Tervo worked at several

jobs for short periods of time and then, in January of 1984, began working

toward a certificate in law enforcement at Minneapolis Community College. He

applied for the Hennepin County Sheriff's Department position as a detention

deputy shortly after he began the program at Community College. Mr. Tervo is

scheduled to graduate with a degree in law enforcement from the Minneapolis

Community College this year. Other than being a bar to employment by the

Hennepin County Sheriff's Office, Mr. Tervo's poor uncorrected vision has not

hindered his daily life activities in any way. Mr. Tervo currently wears

contacts which correct his vision to 20/15. He currently plays basketball,

softball, football, raquetball, tennis, jogs and lifts weights.

Mr. Tervo desires to work in the area of law enforcement or corrections

and is willing to accept a job in either of these areas in any part of the

state or metropolitan region. Although most law enforcement agencies do have

uncorrected vision standards, there is nothing in the record to indicate

whether Mr. Tervo would meet or fail the standards of other law enforcement

agencies. Additionally, there is nothing to show whether employment in the

corrections field would require a mandated "level" of uncorrected vision.

At the time Mr. Tervo applied for the job with Hennepin County, he also

applied for other jobs in "management". Additionally, he applied for a job as

a juvenile correction counselor at Glen Lake with Hennepin County but was not

hired for that position. Mr. Tervo also applied for a position as a health

care assistant at the Detox Center in Minneapolis.

Mr. Tervo currently is employed as a Human Services Technician at the

Metro Regional Treatment Center in Anoka. Mr. Tervo is aware of jobs in the

law enforcement and correction fields that do not have vision acuity standards

but has not applied for any of these jobs because he has not been aware of any

openings (e.g., probation or parole officers). Tervo has filed applications

for corrections officer positions with the correctional facilities at Lino

Lakes and at Shakopee. He was given an oral examination for the Shakopee job

and is currently on their potential employee list.

Analysis

Obviously, a critical element in proving a case of disability

discrimination is proof that the Charging Party is afflicted with a

"disability". Minn. Stat. 363.01, subd. 25 (1984) defines that term as

follows:

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"Disability" means any condition or characteristic that

renders a person a disabled person. A disabled person is

any person who (1) has a physical or mental impairment

which substantially limits one or more major life

activities; (2) has a record of such an impairment; or

(3) is regarded as having such an impairment.

The above-facts (Mr. Tervo's own admissions) show that Mr. Tervo has not

experienced any limitations on his normal life activities except for his

rejection for employment at the Hennepin County Sheriff's Office. Mr. Tervo

has not applied for employment for any other jobs where rejection was based on

his poor uncorrected vision. The record does show that Hennepin County

regarded Mr. Tervo as having an impairment that precluded him from being

considered for employment as a detention deputy with the Sheriff's Office.

As yet, there are no Minnesota cases which address the interpretation and

implementation of Minn. Stat. 363.01, subd. 25 (1984) as it would apply to a

factual situation like the one presented herein. The federal anti-

discrimination statute contains language similar to the Minnesota statute and

has been interpreted in the form of regulations which: (1) list working as a

major life activity; and (2) define "regarded as having such an impairment" to

include a physical impairment that does not substantially limit a major life

activity but is treated by an employer as constituting such a limitation. 29

C.F.R. 1613.702 (1986); 45 C.F.R. 84.3 (1986). The Judge will adopt these

"interpretations" of what constitutes a disability as a starting point for

this analysis.

If "working" is a "major life activity" within the meaning of the statute,

then Mr. Tervo's ability, or inability, to work must be examined. Complainant

relies on Wisconsin case law which holds that if an employer perceives that a

job applicant cannot perform a particular job due to a physical anomaly, the

applicant is entitled to the protections afforded by the Fair Employment Act.

City of LaCrosse v. LIRC, 407 N.W.2d 510 (Wis. 1987); Brown County v. LIRC,

369 N.W.2d 735 (Wis. 1985). However, the Wisconsin statute defines

"handicapped individual" as a person who:

(a) Has a physical or mental impairment which makes

achievement unusually difficult or limits the capacity to

work;

(b) Has a record of such an impairment; or

Section 111.32(8), Wis. Stats. (1983-84.) This definition is significantly

different than the Minnesota statutory definition of "disabled person" set

forth above. Consequently, the Judge will not follow the holdings in City of

LaCrosse and Brown County.

The Minnesota statute requires that there be a substantial limitation on a

person's ability to work (major life activity) . The Judge concludes that

disqualification from one job with specific qualifications does not, in

itself, meet the standard set forth in Minn. Stat. 363.01, subd. 25(l).

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See, Salt Lake City Corp. v. Confer, 674 P.2d 632 (Utah 1983). Respondent

contends that Complainant has offered no evidence to raise a factual issue

concerning Allan Tervols ability to work. Tervo has admitted that he wishes

to work in either law enforcement or corrections; he will accept a job in any

part of Minnesota; there are jobs which Tervo would accept which have no

vision requirements; and he is qualified to apply for jobs in law enforcement

related areas. See, E. E. Black v. Marshall, 497 F. Supp. 1088, 1100-01

(D. Ha. 1980).

After a motion for summary judgment has been made with supporting

affidavits, the burden shifts to the party opposing the motion to provide

sufficient specific facts to raise a jury issue. Lundgren, 370 N.W.2d at 881;

Brookshaw v. South St. Paul Feed, inc., 381 N.W.2d 33, 36 (Minn. App. 1986).

Complainant has provided no affidavits or documentary evidence to show that

Mr. Tervo's job opportunities are substantially limited due to his eyesight.

Complainant asserts, however, that it should be permitted to litigate the

issue of whether Respondent regarded Mr. Tervo as having an impairment which

substantially limits one or more of his major life activities. It cites Dr.

Cohan's statement that a person with Mr. Tervo's uncorrected eyesight would be

"legally blind" as support for its assertion.

The Judge reads Dr. Cohan's statement in the context of the specific job

requirements for a position with the Hennepin County Sheriff's Office. As Dr.

Cohan states, a deputy sheriff must be able to function without his or her

contacts or glasses in an emergency-type situation. The Judge does not read

Dr. Cohan's "legally blind" statement as a perception by the employer that Mr.

Tervo has a physical impairment which substantially limits one or more of his

major life activities. The Judge concludes that no "material issue of fact"

has been raised by Dr. Cohan's statement. Rather, Complainant has argued a

legal conclusion which the Judge has rejected. The Judge additionally points

out that in Padilla v. City of Topeka, 708 P.2d 543 (Kan. 1985), the court

held that an applicant who was disqualified from employment with the city

police department because she failed the uncorrected vision standard was not a

"handicapped person" as defined by the Federal Rehabilitation Act of 1973

which defines the term "handicapped individual" identically to the definition

of "disabled person" in chapter 363. See also, Burgess v. Joseph Schlitz

Brewing Co., 259 S.E.2d 248 (N.C. 1979).

P.C.E.

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