9174•Garry Zuelsdorf v. Aircraft Braking Systems
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OHIO CIVIL RIGHTS COMMISSION IN THE MATTER OF: GARRY D. ZUELSDORF Complainant Complaint #9174 (AKR) B3092500 (25291) 102700 and 22A –A1 –5080 AIRCRAFT BRAKING SYSTEMS Respondent CHIEF ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION JIM PETRO ATTORNEY GENERAL David A. Oppenheimer, Esq. Edward C. Kaminski, Esq. Assistant Attorney General Amer Cunningham Civil Rights Section Key Building, 6th Floor State Office Building, 11th Floor 159 South Main Street 615 West Superior Avenue Akron, OH 44308-1322 Cleveland, OH 44113-1899 (330) 762-2411 (216) 787-3030 Counsel for Respondent Counsel for the Commission Michael J. Manella, Esq. Garry D. Zuelsdorf Aircraft Braking Systems 681 Timothy Drive 1204 Massillon Road Tallmadge, OH 44278-2422 Akron, OH 44306-4186 Complainant Corporate Counsel ALJ'S REPORT BY: Denise M. Johnson Garry D. Zuelsdorf Administrative Law Judge 681 Timothy Drive Ohio Civil Rights Commission Tallmadge, OH 44278-2422 1111 East Broad Street, Suite 301 Columbus, OH 43205-1379 Complainant (614) 466-6684
1 INTRODUCTION AND PROCEDURAL HISTORY Garry D. Zuelsdorf (Complainant) filed a sworn charge affidavit with the Ohio Civil Rights Commission (Commission) on October 27, 2000. The Commission investigated the charge and found probable cause that Aircraft Braking Systems Corporation (Respondent) (ABS) engaged in unlawful employment practices in violation of Revised Code Section (R.C.) 4112.02(A). The Commission attempted, but failed to resolve these matters by informal methods of conciliation. The Commission subsequently issued a Complaint on October 18, 2001. The Complaint alleged that Respondent refused to return Complainant to work and discharged him because of a perceived disability. Respondent filed an Answer to the Complaint. Respondent admitted certain procedural allegations, but denied that it engaged in any unlawful discriminatory practices.
2 A public hearing was held on June 24-25, 2002 at the Ocasek Government Building in Akron, Ohio. The record consists of the previously described pleadings, a 301- page transcript of the hearing, exhibits admitted into evidence during the hearing, stipulated exhibits, and post-hearing briefs filed by the Commission on October 10, 2002; by Respondent on November 27, 2002; andt heCommi ssi on’ sr epl ybr i ef ,f i l edonDecember 9, 2002. FINDINGS OF FACT The following findings of fact are based, in part, upon the Admi ni s t r at i v e Law Judge’ s ( ALJ)as ses smentoft he cr edi bi l i t y oft he witnesses who testified before the ALJ who presided at the hearing. The ALJ has applied the tests of worthiness of belief used in current Ohio practice. She considered whether a witness was evasive and whether testimony appeared to consist of subjective opinion rather than factual recitation. She further considered the opportunity each witness had to obser v e and know t he t hi ngs di sc uss ed,each wi t ness ’ s st r engt h of memory, frankness or lack of frankness, and the bias, prejudice, and interest of each witness. Finally, the ALJ considered the extent to which
3 each wi t ness’ s t est i mony was supported or contradicted by reliable documentary evidence. 1. Complainant filed a sworn charge affidavit with the Commission on October 27, 2000. 2. The Commission determined on August 30, 2001 that it was probable that Respondent engaged in unlawful discrimination in violation of R.C. 4112.02(A). 3. The Commission attempted to resolve this case by informal methods of conciliation. The Commission issued the Complaint after conciliation failed. 4. Respondent is a corporation and an employer doing business in Akron, Ohio. Respondent manufactures wheels, brakes, and other landing gear components for aircraft. Respondent employs several hundred employees in various departments of its three plants located at one complex.1 1 Edward Searle, the Vice President of Human Resources, testified that Respondent employed approximately 850 to 900 employees in September 2000. (Tr. 226)
4 5. Complainant began his employment with Goodyear Aerospace in 1981. Complainant initially worked as a bench machinist. Approximately nine months after his hire, Complainant successfully bid on an all-around machinist position in the Wheel and Brake Division. Complainant worked in this position throughout the 1980s and continued to perform this job after the Wheel and Brake Division became ABS in 1989. (Tr. 96) 6.Compl ai nantper f or med“ pr eci si onmachi ni ngoper at i ons”asanal l - around machinist. (Comm.Ex. 39) He set up and operated the various machines in the division. This position also involved some heavy lifting. Id. For example, Complainant lifted carbon discs by the handful and, occasionally, an airplane wheel.2 (Tr. 9) 7. In late May 1991, Complainant injured his lower back lifting carbon discs onto a cart. Complainant notified his supervisor of the injury and immediately went to a local hospital. Complainant subsequently went on medical leave and began physical therapy recommended by his treating physician, Dr. Paul St eur er .Compl ai nantsuf f er eda“ r ecur r ence”i near l y 2 Compl ai nantt est i f i edt hat“ ahandf ul ”ofcar bondi scswei ghs20t o40pounds. (Tr. 11)
5 August 1991. (Comm.Ex. 2) Complainant eventually returned to work in December 1991. 8. Compl ai nanthad “ r ecur r i ng pr obl ems”wi t h hi sbacki n 1992. (Tr. 14) He went on medical leave from mid-February to mid-September, 1992. (Comm.Exs. 4, 5) He continued to undergo physical therapy for his back. 9. In November 1992, Respondent laid off Complainant as an all-around machinist. With his seniority Complainant bumped into the job of tool room operator. (Tr. 16, Comm.Ex. 6) Among other duties, Complainant issued equipment, pulled fixtures from racks, performed pre- set operations on all required tools, and assembled tools and fixtures for machine operations. (Tr. 16, Comm.Ex. 40) 10. In January 1993, Respondent laid off Complainant as a tool room operator. Complainant again exercised his seniority and bumped into set- up and machining operations. In this position, Complainant lifted parts for production jobs, operated a tow motor, and performed other set-up and
6 machining operations. (Tr. 17) This position required occasional heavy lifting. (Comm.Ex. 41) 11. In September 1993, Complainant went on medical leave because of his back. (Comm.Exs. 6, 38) This leave lasted approximately three months; Complainant returned to set-up and machining operations in December 1993. 12. In March 1994, Complainant went on medical leave after hi sbac kcondi t i on“ wor sened. ”( Tr .18,Comm. Ex s.6,44)Whi l eonl eav e, Complainant attended the Walker Center (the Center), a state-operated r ehabi l i t at i oncent er ,andr ecei v ed“ ex t ensi v e”phy si calt her apyonhi sback . (Tr. 18) Complainant also received training at the Center on how to deal with his back condition. 13. Complainant returned to set-up and machining operations in December 1994 with work restrictions. Dr. Steurer recommended a “ gr adualr et ur n”t o f ul l -time employment; he restricted Complainant to four hours per day the first two weeks and six hours per day the following
7 two weeks. (Comm.Ex. 7) Dr. Steurer also restricted Complainant from repetitive lifting over fifty pounds and operating the Nadco machine.3 14. On March 17, 1995, Complainant was involved in an automobile accident where he was rear-ended by another vehicle. (Tr. 21) He pr ov i dedaphy si ci an’ ss t at ementst at i ngt hatheneededt obeof fwor kf r om April 21-23, 1995. (Comm.Ex. 8) 15. Complainant did not return to work in the machinist position until May of 1995 because of carpal tunnel. (Tr. 22) Upon his return to work, Complainant presented a document to the hospital at work that contained work restrictions.4 (Comm.Ex. 9) 16. Complainant was off work from July 28, 1995 through August 6, 1995. Complainant was hospitalized from July 28, 1995 until July 30, 1995 due t o “ new onsetdi abet esmel l i t uswi t h dehy dr at i on;acut e pr ost at es. ” (Comm.Ex. 10) Complainant returned to work on August 7, 1995 in the machinist position. 3 Complainant described the Nadco as a “ machi ne you have t o wor k atan awkward angle and load parts in by bending your back. It basically is not sound body mechani cssoIwasexcusedf r om r unni ngt hatmachi ne. ” ( Tr .20) 4 “ Nol i f t i ngover20l bs,l i mi t edr epet i t i vewor kr i ghtwr i st ,nogr i ndi ng,noNat co” .
8 17. Complainant was off work from January 3, 1996 until January 10, 1996 because he had carpal tunnel surgery. (Tr. 24) The Personnel Depar t ment ’ smedi calr el easer ecor dcont ai nednor es t r i c t i ons.( Comm. Ex . 12) 18. Troy Trice, Department Manager, assigned Complainant to machines that he was restricted from using due to his previously- documented medical condition. Complainant objected to management about the lifting of the restrictions; as a result, the restrictions were reinstated. (Tr. 26) 19.Compl ai nantnex tsubmi t t edt oRes pondent ’ sMedi cal Depar t ment a “ Di sabi l i t y -Rel ease ForWor k”f or m si gned byDr .St eur erwhi ch was dated May 17, 1996. The release stated that Complainant was under the doct or ’ st r eat mentf orbacki nj ur yandcont ai nedt hef ol l owi ngr est r i c t i ons : “ l i ght dut y ; no gr i nder , no degr easing;5 no Nat co f or si x mont hs” . (Comm.Ex. 13) 5 Thedegr easer” i sanoper at i onwher eyoubendoverandl oadsomepar t sont oa crane and lift them up into a tank. The crane lifts them up and you walk on a platform and then you put the parts down in. Some of the parts you havet ol oadmanual l y. “ (Tr. 27)
9 20.Respondenthonor ed Dr .St eur er ’ s r es t r i ct i ons unt i lDr .Gr oh, Respondent ’ sdoc t or ,ex ami nedCompl ai nant . 21. On May 24, 1996, Dr. Groh examined Complainant and indicated the following permanent work restrictions for him: no lifting over 20 pounds, no frequent bending at waist. 22. When Complainant went back to the department, he was restricted to operating the ream and radius machines.6 23. During 1998, Complainant was off work for two weeks from May 12-26,1998 due t o bac kpai n.( Comm. Ex .15)Compl ai nant ’ sback condition flared up; he experienced severe pain, even while sitting operating the ream and radius machines. (Tr. 32) 24. From June 28, 1998 until October 30, 1998, Complainant was off work because he had a heart attack and underwent quadruple bypass surgery. (Comm.Ex. 16) 6 Complainant testified that he could operate the ream and radius machines whi l eseat edandf el tt hati twasa“ sui t abl ej ob”f orhi m. ( Tr .30)
10 25. Complainant returned to work on October 31, 1998 to the position he held prior to his medical leave with the same restrictions. 26. On August 30, 1999, Complainant strained his right shoulder while at work. On September 8, 1999, he strained his back while at work. As a result of these injuries, Complainant was on medical leave from September 17, 1999 until October 31, 1999. (Comm.Ex. 18) 27. Complainant returned to work on November 1, 1999 with a work release from his doctor that contained no restrictions. Dr. Groh placed the same work restrictions on Complainant that were in effect prior to his last medical leave. (Tr. 36) 28. On January 10-11, 2000, Complainant was off work because he experienced chest pains and was hospitalized for testing. (Comm.Ex. 21) Complainant returned to work on January 12, 2000. 29. Complainant was off work from January 17, 2000 until September 25, 2000. Compl ai nant ’ s i nj ur i es ar ose as a r esul t of “ st r ai ni ngi nj ur i est obackandnec k”i nc ur r edwhi l eatwor k.( Comm. Ex .22)
11 During the time that Complainant was on medical leave, he received therapy for his injuries. (Tr. 39) 30. Complainant received a release-for-work slip from Dr. Steurer, dated September 15, 2000, which indicated his return to work date as September 25, 2000.7 (Comm.Ex. 23). 31. On September 21, 2000, Dr. Groh examined Complainant. Dr. Groh did not make a recommendat i on aboutCompl ai nant ’ sempl oy - ability or a return-to-work date after the examination based upon a request byPatHar nes s ,Respondent ’ sAss i st antDi r ec t orofHuman Resour ces . (Comm.Ex. 24) 32. Complainant met with Ms. Harness on September 25, 2000. At t hatt i meshei nf or medCompl ai nantofRespondent ’ sdeci si ont ot er mi nat e his employment based on his unsuitability for work at ABS. This decision occurred as a result of a meeting in March of 2000. (Tr. 44) 7 The return-to-wor ksl i pcont ai nednor est r i ct i ons.“ I twasat r i alr eturn to work to see whet herIcoul d getby wi t houtt he r est r i ct i ons. ” Compl ai nant ’ s r eason f orno r est r i ct i onswast obeabl et oposi t i onhi msel ft omovei nt oaposi t i ont o“ getof fof ”hi s repetitive-motion job. (Tr. 40)
12 33. Ms. Harness further communicated to Complainant that Respondenthadr eachedi t sconcl usi onbaseduponCompl ai nant ’ si nabi l i t y to work without sustaining injuries, and his other injuries and illnesses. The decision further took into account the last job that Complainant performed as a result of his work restrictions and other jobs within ABS. 34. Complainant received a certified letter dated September 26, 2000, memorializing the September 25, 2000 termination meeting. (Comm.Ex. 25) CONCLUSIONS OF LAW AND DISCUSSION All proposed findings, conclusions, and supporting arguments of the parties have been considered. To the extent that the proposed findings and conclusions submitted by the parties and the arguments made by them are in accordance with the findings, conclusions, and views stated herein, they have been accepted; to the extent they are inconsistent therewith, they have been rejected. Certain proposed findings and conclusions have been omitted as not relevant or as not necessary to a proper determination of the material issues presented. To the extent that the testimony of various witnesses is not in accord with the findings herein, it is not credited.
13 1. The Commission alleged in the Complaint that Respondent discharged Complainant because of a perceived disability. This allegation, if proven, would constitute a violation of R.C. 4112.02 which provides, in pertinent part, that: It shall be an unlawful discriminatory practice: (A) For any employer, because of the . . . disability, . . . of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment. 2. The Commission has the burden of proof in cases brought under R.C. Chapter 4112. The Commission must prove a violation of R.C. 4112.02(A) by a preponderance of reliable, probative, and substantial evidence. R.C. 4112.05(G) and 4112.06(E). 3. The order of proof in a disability discrimination case requires the Commission to first establish a prima facie case. The Commission has the burden of proving that: (1) Complainant is disabled under R.C. 4112.01(A)(13); (2) Complainant, though disabled, could safely and sub- stantially perform the essential functions of the job in question, with or without reasonable accommodation; and
14 (3) Respondent took the alleged unlawful discriminatory act i on, at l east i n par t , bec ause of Compl ai nant ’ s disability. Columbus Civ. Serv. Comm. v. McGlone (1998), 82 Ohio St.3d 569. 4. R.C. 4112.01(A)(13) defines "Disability" as: . . . a physical or mental impairment that substantially limits one or more major life activities, including the functions of caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment. 5. It is undisputed in this case that Complainant has been medically diagnosed as having the following conditions: back pain, diabetes, prostates, and carpal tunnel. 6. The aforementioned conditions fall within the scope of R.C. 4112.01(A)(16)(a)(i) and (iii) as ex ampl es of “ phy si c al or ment al i mpai r ment [ s ] . ”Thi sl i st i ngdoesnotest abl i sht hatComplainant is disabled undert he st at ut e;t he Commi s si on mustpr ov e t hatCompl ai nant ’ sbac k pain or other impairments, either individually or collectively, substantially limited a major life activity. Toyota Motor Mfg., Ky., Inc. v. Williams (2002), 534 U.S. 184; See also, Hood v. Diamond Products, Inc. (1996), 74 Ohio
15 St . 3d298( whet herpl ai nt i f f ’ scancers ubst ant i al l yl i mi t edmaj orl i f eac t i v i t y must be decided on case-by-case basis even though cancer was included as physical or mental impairment under R.C. 4112.01(A)(16)(a)(iii)). Determining whether a physical or mental impairment exists is only the first step in determining whether or not an individual is disabled. Many impairments do not impact an individual's life to the degree that they constitute disabling impairments. An impairment rises to the level of disability if the impairment substantially limits one or more of the individual's major life activities. The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of the impairment on the life of the individual. Interpretive Guidance of Title I of the Americans with Disabilities Act (EEOC Interpretive Guidance), 29 C.F.R. 1630 App., § 1630.2(j). 7. In its brief, the Commission argues that Complainant is protected under the statute because Respondent perceived him to be disabled. 8. To determine whether Respondent perceived Complainant to be disabled, it is appropriate to refer to relevant case law under analogous federal statutes, such as the Americans with Disabilities Act of
16 1990 (ADA).8 McGlone, supra at 572. Likewise, it is appropriate to refer to the regulations and guidelines of the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcement of the ADA. 9. The Supreme Court has recognized two scenarios where an i ndi v i dualmaybe“ r egar dedas”orper c ei v edt obedi sabl ed: (1) A covered entity mistakenly believes that a person has a physical [or mental] impairment that substantially limits one or more major life activities; or (2) A covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. Sutton v. United Air Lines, Inc., (1999), 527 U.S. 471, 489. In either event, employees must prove that their employers perceived or treated them as having an impairment that substantially limits one or more major life activities.9 Id.,at490. ( “ An employer runs afoul of the 8 TheADA’ sdef i ni t i onofdi sability under 42 U.S.C. § 12102(2) is substantially the same as R.C. 4112.01(A)(13). 9 Maj orl i f eact i vi t i esar e“ t hosebasi cact i vi t i est hatt heaver ageper soni nt he gener alpopul at i oncanper f or m wi t hl i t t l eornodi f f i cul t y. ”EEOC Interpretive Guidance, supra at1630. 2( i ) . Suchact i vi t i esi ncl ude,butar enotl i mi t edt o,“ car i ngf oronesel f , performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, . . . wor ki ng,...si t t i ng,st andi ng,l i f t i ng,andr eachi ng. ” Id. (legislative citations omitted); Bragdon v. Abbott (1998), 524 U.S. 624, 638-39( “ Ast heuseoft het er m ‘ suchas’ conf i r ms,t hel i sti si l l ust r at i ve,notexhaust i ve” ) .
17 ADA when it makes an employment decision based on a physical or mental impairment, real or imagined, that is regarded as substantially limiting a maj orl i f eac t i v i t y ” ) . 10. In this case, the Commission does not contend that Respondent perceived Complainant to be substantially limited in a major life activity outside of the workplace. Instead, the Commission argues that Respondent regarded Complainant as substantially limited in the major life activity of working. An employer does not perceive an employee to be substantially limited in working by finding the employee unsuitable for a particular job. Murphy v. United Parcel Service (1999), 527 U.S. 516, 523. Thest at ut or yphr as e“ subst ant i al l yl i mi t s”r equi r est heCommission to show t hatRes pondentr egar dedCompl ai nantasunabl et owor ki na“ subs t ant i al cl ass”ora“ br oadr ange”ofj obs : To be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job of choice. If jobs utilizing an i ndi v i dual ’ ss ki l l( butper hapsnothi sorheruni quet al ent s)ar e available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs. Sutton, supra at 492; See also, McGlone, supra (plaintiff who f ai l edci t y ’ sv i sualacui t yst andar df orf i r ef i ght er swasr equi r ed to show that city perceived his nearsightedness as foreclosing him from a class of jobs).
18 11. The issue of whether an impairment substantially limits the major l i f eac t i v i t yofwor ki ng“ dependspr i mar i l yont heav ai l abi l i t yofj obsf orwhi ch t hei mpai r edper sonqual i f i es . ”Duncan v. Washington Metro. Area Trans. Auth. (C.A. D.C., 2001), 240 F.3d 1110, 1114. This individualized inquiry r equi r esconsi der at i onof“ t hegeogr aphi calar eat owhi cht hei ndi v i dualhas reasonable access and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within the geographical area, from whi cht hei ndi v i duali sal so di squal i f i ed. ” Sutton, supra at 491-92 (citing and quoting EEOC Guidelines, § 1630.2(j)(3)(ii)(A) and (B)). 12. Respondent testified that she and the other decision-makers did not feel that there was any job within the factory setting that Complainant coul dper f or m wi t houti nj ur i nghi msel f . AsRespondentputi t ,“ Compl ai nant i snotsui t edf orwor ki ngaj obi naf ac t or yset t i ng. “ 13. Respondent ’ st es t i monyal sosat i s f i est heCommi ssi on’ spr oof requirement that Respondent regarded Complainant as precluded from working in either a“ subs t ant i alcl as s”or a“ br oadr ange”ofj obs . I nt he instant case, the testimony of Respondent that Complainant could not wor k atany j ob i n a “ f ac t or y set t i ng”was notspeci f i c t o t he j obs at
19 Respondent ’ s f aci l i t i es,butwas gener aland r ef er enced any f act or y job. See Beason v. United Technologies Corp. (March 15, 2002), D. Conn. No. 3:97 CV 2654, 2002 U.S. Dist. LEXIS 6078 (plaintiff failed to present evidence of specific job market in local geographical area allowing reasonable jury to conclude that he was perceived to be substantially limited in his ability to perform a broad range or a class of jobs). 14. Although the Commission concedest hatCompl ai nant ’ si mpai r - ments did not rise to the level of disability, there is evidence in the record t hatRespondent ’ sdoct orr ecommendedt omanagementt hatCompl ai nant be given permanent work restrictions. (Comm.Ex. 14) Management accommodated the request, and Complainant worked with permanent restrictions. 15. Establishing that the employer perceived the employee as disabled is not the end inquiry. 16. In order to be a qualified disabled individual, the next level of inquiry is whether the individual can safely and substantially perform the essential functions of the job, with or without accommodation.
20 17. In the instant case, the employer attempted to accommodate Compl ai nant ’ sbac kcondi t i on bygi v i ng hi m f i r s tt empor ar yr est r ictions and then permanent restrictions. 18. Each time Respondent attempted to accommodate Complain- ant ’ si mpai r mentwi t hl i ghtdut yand/ orr es t r i c t i ons ,Compl ai nant ’ scondi t i on “ f l ar edup” ,andher equi r edex t endedper i odsofl eav ef r om wor k. 19. Under the ADA an employer may assert an affirmative defense to cont i nui ngt heempl oy mentofadi sabl edper son.The“ saf et ydef ens e”has recently been interpreted to extend to denying employment to a disabled i ndi v i dualwher et hei ndi v i dual ’ sdi sabi lity poses a direct threat of harm to the individual. Chevron v. Mario Echazabal, 536 U.S. 73, 122 S.Ct. 2045, 152 L.Ed. 2d 82 (2002). 20. The direct threat defense must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence, and upon an expressly i ndi v i dual i zed as s essmentoft he i ndi v i dual ’ s pr esentabi l i t y t o saf el y perform the essential functions of the job, reached after considering,
21 among other things, the imminence of the risk and the severity of the harm portended. 29 C.F.R. § 1630.2(R)(2001). The Chevron court further stated that: . . . EEOC was certainly acting within the reasonable zone when it saw a difference between rejecting workplace paternalism and ignoring specific and documented risks to the employee himself, even if the employee would take his chances for the sake of getting a job. Id. at 94. (Emphasis added.) 21. Complainant went off from work in January of 2000 because his nec k“ wasgi v i nghi m ex t r emepai n” . ( Tr . 38) 22. The ev ent t hat t r i gger ed Compl ai nant ’ s r ecor d of 50% absenteeism from 1997-2000 began with a work-related back injury. (See Chart.) 23. In September 2000, Complainant testified about his ability to return to work after his release by his physician, Dr. Steurer. (Tr. 40)
22 24. Complainant did not want to return to work with restrictions. Al t houghhi sdoct oragr eedwi t hhi m,Compl ai nants t at edt hat ,“ i twasat r i al return to work to see whet herIcoul d getbywi t houtt he r es t r i ct i ons . “ (Tr. 40) 25.Compl ai nant ’ shopewast hati fhecoul dr et ur nt owor kwi t hno restrictions, he could possibly move into another job and get off of the repetitive motion job that he was on which he descr i bed as “ di f f i cul t f ormeatt hatt i me” . ( Tr .40) 26. Complainant testified that his condition worsened, and he was placed on medical restrictions in September 2001. 27. During cross-examination, Complainant stated that in his job applications made out in 2002 hewasl ooki ngf orempl oy mentasa“ l i ght dut ymachi ni st ” . ( Tr .67) 28. A reasonable inference can be drawn from the foregoing evidence that Complainant is the type of employee referred to in the Chevron deci s i onasone“ whoin the face of known risks to his own health andsaf et y ,woul dt aket her i skf ort hesak eofaj ob. ”
23 29. Although Ms. Harness testified that she is aware that other ABS employees were terminated due to excessive absenteeism, those employees were not deemed to be unsuitable for work in a factory environment due to an inability to work without sustaining injuries. CONCLUSION 30. After a careful review of the entire record, the evidence supports a finding that Respondent terminated Complainant from employment based onCompl ai nant ’ si nabi l i t yt osaf el yandsubst ant i al l yper f or m t heessent i al functions of the job in question, with or without accommodation. RECOMMENDATION For all of the foregoing reasons, the Administrative Law Judge recommends that the Commission issue a Dismissal Order in Complaint #9174. DENISE M. JOHNSON CHIEF ADMINISTRATIVE LAW JUDGE December 1, 2003
MEDICAL LEAVE OF GARRY ZUELSDORF 1991 - 1995 YEAR POSITION DUTIES MEDICAL LEAVE – WORK –RELATED INJURIES MEDICAL LEAVE RETURN TO WORK 19 8 1 Bench Machinist Set Up – operated various machines, required some heavy lifting 1 9 9 1 May 1991 – injured lower back lifting carbon disc onto cart December 1991 1 9 9 2 November 1992 laid off - bumped into Set Up and Tool Room Operations Among other things, issued equipment, pulled fixtures from racks, performed pre-set operations, assembled tools February 1992 – recurring problems with back September 1992 1 9 9 3 January 1993 – laid off – bumped into Set Up and Machine Operations Lifted parts for production jobs, operated a tow motor and performed other Set Up machine operations, required occasional heavy lifting September 1993 – problems with back December 1993 1 9 9 4 March 1994 – back condition worsened December 1994 – with restrictions 1 9 9 5 March 1995 – auto accident - carpal tunnel July 28, 1995 – diabetes melitas with dehydration, acute prostates May 1995 – with restrictions August 6, 1995
MEDICAL LEAVE OF GARRY ZUELSDORF 1996 - 2000 YEAR POSITION DUTIES MEDICAL LEAVE – WORK –RELATED INJURIES MEDICAL LEAVE RETURN TO WORK 1 9 9 6 May 17, 1996 – Complainant underwent treatment for back i nj ur i esandCompl ai nant ’ sdoct orr equested 6 mont hs’r est r i ct i ons.Respondent ’ sdoct or examined Complainant and indicated permanent restrictions: Restricted to operating ream and radius machine, no lifting over 20 pounds, no frequent bending at waist January 3, 1996 – carpal tunnel surgery January 10, 1996 No restrictions – Complainant objected to lifting of restrictions; management reinstated restrictions 1 9 9 8 May 12, 1998 – Back pain condition flared up while sitting and operating ream and radius machine June 28, 1998 Heart attack, Quadruple bypass surgery Returned in two weeks October 30, 1998 1 9 9 9 September 17, 1999 shoulder and back strain October 31, 1999 Complainant returned with no restrictions. Respondent ’ sdoct or placed same work restrictions that were in effect prior to last medical leave. 2 0 0 0 January 17, 2000 Straining injury to neck and back January 10-11, 2000 chest pains – hospitalized September 25, 2000 No restrictions from Compl ai nant ’ sdoct or Terminated from work
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