Brenda Tyson v. City of Cleveland

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
BRENDA J. TYSON
Complainant Complaint No. 9208
(CLE) 24100900 ( 32684) 010501
v. 220 –A1 –0405
CITY OF CLEVELAND
Respondent
CHIEF ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATIONS
JIM PETRO
ATTORNEY GENERAL
David A. Oppenheimer, Esq. Theodora M. Monegan, Esq.
Associate Attorney General Chief Assistant Director of Law
Civil Rights Section Emily A. Smayda, Esq.
State Office Building, 11th Floor Assistant Director of Law
615 West Superior Avenue City of Cleveland, Department of Law
Cleveland, OH 44113-1899 601 Lakeside Avenue, Room 106
216 –787 –3030 Cleveland, OH 44114-1077
216 –664 - 2800
Counsel for the Commission
Counsel for Respondent
ALJ'S REPORT BY:
Denise M. Johnson
Brenda J. Tyson Chief Administrative Law Judge
1728 Lee Road Ohio Civil Rights Commission
Cleveland Heights, OH 44118 1111 East Broad Street, Suite 301
Columbus, OH 43205-1379
Complainant 614 –466 –6684

1
INTRODUCTION AND PROCEDURAL HISTORY
Brenda J. Tyson (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on January 5, 2001.
The Commission investigated the charge and found probable cause
that the City of Cleveland, Police Department (Respondent) engaged in
unlawful employment practices in violation of Revised Code Section (R.C.)
4112.02(A).
The Commission attempted, but failed to resolve this matter by
informal methods of conciliation. The Commission subsequently issued a
Complaint on November 29, 2001.
The Complaint alleged that Respondent failed and refused to provide
reasonable accommodation to Complainant, and reinstate her, because of
her disability.

2
Respondent filed an Answer to the Complaint on December 31, 2001.
Respondent admitted certain procedural allegations, but denied that it
engaged in any unlawful discriminatory practices. Respondent also pled
affirmative defenses.
A public hearing was held on July 1, 2003 at the Lausche State Office
Building, Room 205, 615 West Superior Avenue, Cleveland, Ohio.
The record consists of the previously described pleadings, pre-
hearing motions, a transcript of the hearing consisting of 122 pages,
exhibits admitted into evidence during the hearing, and post-hearing briefs
filed by the Commission on October 2, 2003, and by Respondent on
October 23, 2003, and a reply brief filed by the Commission on October 27,
2003.

3
FINDINGS OF FACT
The following findings of fact are based, in part, upon the
Administrat	i	v	e Law Judge’	s (	ALJ)as	ses	smentoft	he cr	edi	bi	l	i	t	y oft	he
witnesses who testified before her in this matter. The ALJ has applied the
tests of worthiness of belief used in current Ohio practice. For example,
shecons	i	der	edeachwi	t	nes	s’	sappear	anceanddemeanor while testifying.
She considered whether a witness was evasive and whether his or her
testimony appeared to consist of subjective opinion rather than factual
recitation. She further considered the opportunity each witness had to
observe 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
each wi	t	ness’	s t	est	i	mony was suppor	t	ed or cont	r	adi	ct	ed by r	el	i	able
documentary evidence.
1. Complainant filed a sworn charge affidavit with the Commission on
January 5, 2001.

4
2. The Commission determined on October 18, 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 matter by informal
methods of conciliation. The Commission issued the Complaint after
conciliation failed.
4. Complainant was first employed by Respondent in 1974. In
1985 Complainant was placed in the position of traffic controller due to the
phase out of her previous position, that of para/police.
5. Compl	ai	nant	’	spr	i	mar	ydut	yasat	r	af	f	i	ccont	r	ol	l	erwast	odi	r	ect
traffic. She also towed cars and issued traffic tickets.
6. Her position required her to remain standing and walk in order
to perform her duties over the period of an eight-hour shift, which at times
included overtime.

5
7. In April of 1995, Complainant fell in a chuckhole in
Respondent	’	spar	ki	nggar	agewher	et	hes	coot	ers	heus	edt	oper	f	or	m her
duties was stored.
8. Complainant was in a significant amount of pain and was
granted time off from work. At that time Complainant saw Dr. Perryman,
who referred her to Mt. Sinai Hospital for further treatment and evaluation.
9. Complainant also began receiving treatment from Dr.
Castleberry.
10. I	tt	ook Compl	ai	nant	’	s doc	t	or	s sev	er	aly	ear	s t	o pi	n down an
accurate diagnosis of her condition.
11. From July of 1995 through September of 1998 Complainant
was unable to perform her duties as a traffic controller due to problems
caused by her condition.
12. Complainant had pain in her neck, left side, back, both elbows
and left ankle.

6
13. Compl	ai	nant	’	smedi	calandt	r	eat	menthi	st	or	ywasev	al	uat	ed by
Dr. Sanford, an independent medical examiner, who determined that
Complainant suffered from spondylosis and degenerative disc disease.1
14. These conditions involve the degeneration of both the spinal
discs and the joints between those discs. The discs dehydrate, bulge and
may crack open into fissures. As the discs and the joints between the discs
degenerate, pain can occur in the back and neck areas. Also, this
degeneration can compress nerves that cause pain in the arms and the
legs.
15. Degeneration in discs and joints occurs over a long period of
time, and someone may be asymptomatic for a number of years. Once the
compression reaches a significant state or the nerve fibers in the discs
begin to be irritated, then pain can develop.
16. Dr. Sanford determined that Complainant became symptomatic
in 1995 when she fell.
1 Evidentiary deposition of Dr. Sanford, Comm. Ex. 2, Independent Medical
Examination, dated October 3, 2002.

7
17. Compl	ai	nant	’	scondi	t	i	oncausedpai	nt	or	adi	at	edownhernec	k	,
back, right arm and right leg, with the degree of pain increasing over time.
18. As a result Complainant could not lift more than twenty (20)
pounds, and her walking and standing were limited to three to four hours in
an eight-hour period.
19. Consequent	l	y	,t	hes	el	i	mi	t	at	i	onsaf	f	ect	edCompl	ai	nant	’	sabi	l	i	t	yt	o
perform household chores, such as getting clothes out of a washer,
vacuuming, and cleaning.
20. Addi	t	i	onal	l	y	,Compl	ai	nant	’	s l	i	mi	t	at	i	onswi	t	h r	egar	d to working
affected her ability to stand, sit, and walk for extended periods of time.
Complainant needed a job that would allow her to alternate between
standing, sitting, and walking at least every two to three hours.
21. Respondent	’	spr	oc	edur	ef	orr	et	ur	ning employees to work after
an injury first required an employee to see the Medical Director of the
Safety Forces for the City of Cleveland who, at all times relevant to this
case, was Dr. Edweana Robinson.

8
22. The employee is required to bring a return-to-work slip from a
physician to the Medical Director who reviews the completed form.
23. I	ft	heempl	oy	ee’	sphy	si	ci	anr	equest	sanaccommodat	i	onf	ort	he
empl	oy	ee, t	he empl	oy	ee t	hen appl	i	es t	o t	he Ci	t	y of Cl	ev	el	and’	s
Accommodation Review Committee (the Committee) for an assignment
within his or her physical abilities.
24. The Committee reviews requests for accommodations made by
employees to determine if those requests should be granted. The
Committee will not grant a request for an accommodation unless it
concludes that the particular restrictions that brought about the need for the
accommodation are permanent.
25. Further, the Committee will only approve a request for an
accommodation if it concludes that the employee suffers from a condition
that meets the definition of disability under the American with Disabilities
Act [of 1990] (ADA).

9
26. After approval the Committee first attempts to find something
within the division that the employee is in when the request is made. If the
division is unable to place the person in a position, the Committee expands
its search to other divisions of the City.
27. In October of 1996 Complainant underwent a vocational
evaluation by Dr. Yi. He determined that Complainant was capable of
performing the jobs of general office clerk, file clerk, truck routing clerk, and
rehabilitation clerk.
28. On December 9, 1996, Complainant applied to the Committee
for an assignment within her physical abilities. Complainant received the
application from Dr. Robinson.
29. The Committee approved Complainant for alternative
placement in February of 1997.
30. On July 7, 1997, Complainant was allowed to work in the Traffic
Bureau, filing and signing accident reports.

10
31. After a few days of working with the accident reports,
Complainant was told that she was not authorized to return to work and
was sent home.
32. Again, in December of 1997, Complainant provided Dr.
Robinson with documentation from her physician and was given a Return
to Duty order which stated that Complainant could perform light-duty work.
33. Complainant worked in the impound lot for only a half day. She
was again told that she was not authorized to work and was sent home.
34. By June of 1998 Complainant had not heard from Respondent
and she decided to apply for disability retirement with the Public Employees
Retirement System (PERS).
35. Compl	ai	nant	’	s appl	i	cat	i	on was appr	ov	ed and she wenton
disability retirement and remained under that status until May of 2000.
36. From the time that Complainant went on disability retirement
until she was taken off, her condition worsened. Although Complainant

11
appeal	ed PERS’	sdet	er	mi	nat	i	on t	o r	emov	e herf	r	om di	s	abi	l	i	t	yr	et	i	r	ement
status in May 2000, her appeal was denied by the PERS Board.
37. After being taken off disability retirement, Complainant
contacted Respondent and asked what she should do to report to work.
38. Respondent told Complainant to go to the Personnel
Department.
39. When she went to the Personnel Department she provided a
copy of the PERS letter of determination and was told by the Personnel
Department that she would hear back from them within a week.
40. When she did not hear back within a week, as she was told by
the Personnel Department, she gave them a call.
41. She was told by Personnel to go to the Medical Unit in order to
get cleared to return to work.

12
42. On September 28, 2000, Dr. Robinson provided Complainant
with a Return to Duty order stating that she was to remain on restricted
duty, performing office work. The date for Complainant to report to work
was October 9, 2000. Dr. Robinson also provided Complainant with
another application for the Committee and told her to complete the
appl	i	cat	i	onbyJune2001,t	hedat	eofCompl	ai	nant	’	snex	tappoi	nt	mentwi	t	h
Dr. Robinson.
43. Complainant took the Return to Duty order to Personnel as
instructed by Dr. Robinson.
44. When Complainant had not heard from Respondent by
October 9, 2000, she reported to the Traffic Bureau.
45. Complainant spoke with the traffic commissioner who told her
he had no knowledge and no paperwork regarding her returning to work.
He directed her to report to Personnel.
46. Complainant went to Personnel and spoke with Lt. McCartney.
He explained that there was no light duty for traffic controllers and that she
would not be allowed to return to work.

13
47. Complainant questioned why she would not be allowed to
return to work in a light-duty capacity.
48. Lt. McCartney told her that they did not need any more traffic
controllers on light duty.
49. Lt. McCartney also handed Complainant a copy of a document
that contained the recommendation that Complainant not be allowed to
return to work until such time as she was physically fit for full duty. Deputy
Chief Bounds and Chief Flash agreed with this recommendation.

14
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 therein, it is not
credited.2
1. The Commission alleged in the Complaint that Respondent
failed and refused to provide reasonable accommodation to Complainant,
and reinstate her, because of her disability.
2 Any Finding of Fact may be deemed a Conclusion of Law, and any Conclusion
of Law may be deemed a Finding of Fact.

15
2. These allegations, if proven, would constitute violations of R.C.
Chapt	er 4112 and t	he Commi	s	si	on’	s r	ul	es embodi	ed i	n t	he Ohi	o
Administrative Code (O.A.C.). R.C. 4112.02 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.
TheCommi	ssi	on’	sr	ul	esr	equi	r	eanempl	oy	ert	or	easonabl	yaccommodat	e
an empl	oy	ee’	s di	s	abi	l	i	t	y unl	es	s t	he empl	oy	erdemonst	r	at	es t	hatsuch
accommodation would impose an undue hardship on t	he empl	oy	er	’	s
business. O.A.C. 4112-5-08(E)(1); See also Greater Cleveland Regional
Transit Authority v. Ohio Civ. Rights Comm., 55 FEP Cases 826
(Cuyahoga Cty. 1993) (the employer bears the burden of showing undue
hardship).
3. 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).

16
4. Federal case law generally applies to alleged violations of R.C.
Chapter 4112. Columbus Civ. Serv. Comm. v. McGlone (1998), 82 Ohio
St.3d 569. Therefore, reliable, probative, and substantial evidence means
evidence sufficient to support a finding of unlawful discrimination under the
Americans with Disabilities Act of 1990 or the Rehabilitation Act of 1973.
5. 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:
(1) Complainant was disabled under R.C. 4112.01(A)(13);
(2) Complainant, though disabled, could safely and
substantially perform the essential functions of the job in
question, with or without reasonable accommodation; and
(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.
McGlone, supra at 571 (citation omitted).

17
6. 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.3
7. The Commi	ssi	on pr	esent	ed t	est	i	mony aboutCompl	ai	nant	’	s
condition from Dr. Sanford, an independent medical examiner. Dr. Sanford
testified that Complainant suffered from spondylosis and degenerative disc
disease.
8. Although Complainant has a physical impairment, the first part
of R.C. 4112.01(A)(13) requires the Commission to show that Complainant
hasanac	t	ualdi	sabi	l	i	t	y	.TheCommi	ssi	onmus	tpr	ov	et	hatCompl	ai	nant	’	s
medical condition substantially limits one or more major activities.
3 TheADA’	sdef	i	ni	t	i	onofdi	sabi	l	i	t	yunder42U.	S.	C. § 12102(2) is substantially
the same as R.C. 4112.01(A)(13). 42 U.S.C. § 12102(2) provides:
Thet	er	m “	di	sabi	l	i	t	y”means,wi	t	hr	espectt	oani	ndi	vi	dual—
(A) a physical or mental impairment that substantially limits one or more
major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.

18
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. pt.
1630 App., § 1630.2(j).
9. Major life activiti	esar	e“	t	hos	ebasi	cact	i	v	i	t	i	est	hatt	heav	er	age
per	son i	n t	he gener	alpopul	at	i	on can per	f	or	m wi	t	h l	i	t	t	l	e orno di	f	f	i	c	ul	t	y	.	”
EEOC Interpretive Guidance, at § 1630.2(i). Such activities include, but
ar	enotl	i	mi	t	edt	o,“	car	i	ngf	oronesel	f	,per	f	or	mi	ngmanual tasks, walking,
seeing, hearing, speaking, breathing, learning, . . . working, . . . sitting,
st	andi	ng,l	i	f	t	i	ng,andr	eachi	ng.	” Id. (legislative citations omitted).
10. Three factors should be considered when determining whether
an impairment substantially limits an individual's ability to perform a major
life activity:

19
(1) The nature and severity of the impairment;
(2) The duration or expected duration of the impairment; and
(3) The permanent or long-term impact, or the expected
permanent or long-term impact of or resulting from the
impairment.
29 C.F.R. § 1630.2(j)(2).
This determination, which must be made on a case-by-case basis, requires
comparison with the abilities of the average person.
An individual is not substantially limited in a major life activity if
the limitation, when viewed in light of the . . . [three factors],
does not amount to a significant restriction when compared with
the abilities of the average person.
EEOC Interpretive Guidance, at § 1630.2(j).
11. Additionally, the court in Albertsons, Inc. v. Kiringburg, 119 S.
Ct. 2162 (1999), [citing Sutton v. United Airlines, Inc., 119 S. Ct. 2139
(1999)], held that mitigating measures such as medication and assistive
dev	i	ces,and “	t	he body	’	s own sy	st	ems“ar	e t	o be considered on a
case-by-case basis in the analysis of whether or not an individual is
disabled.

20
12. Generally, "[s]omething more than the self-serving testimony of
the person claiming the handicap might be needed to demonstrate an
otherwise hidden disability." Babcock & Wilcock Company v. Ohio Civ.
Rights Comm., 510 N.E. 2d 368, 369-370 (Ohio 1987) (Judge George's
concurrence).
13. Dr	.Sanf	or	dt	es	t	i	f	i	edt	hatCompl	ai	nant	’	scondi	t	i	onaf	f	ec	t	edher
ability to walk and stand because Complainant is only able to do either
activity three to four hours in an eight-hour period.
14. Dr. Sanford also testified that Complainant could not lift more
than twenty (20) pounds.
15. Complainant testified that her limitations affected her ability to
perform household chores, such as getting clothes out of a washer,
vacuuming, and cleaning.

21
16. During some of the time that Complainant was attempting to
return to work for Respondent, she was unable to afford medications that
would reduce the pain caused by her condition.4
17. Respondent argues that Complainant is not a handicapped
individual because she is not substantially limited in the area of walking,
caring for herself and working.
18. Following is the evidence presented by the Commission
r	egar	di	ngt	heaf	f	ec	tt	hatCompl	ai	nant	’	scondition had on her ability to walk
and care for herself:5
4 Complainant testified that she could not afford the pain medications after she
was taken off of disability retirement. (Tr. 37-38)
5 Whether Complainant	’	s i	mpai	r	ment const	i	t	ut	es a si	gni	f	i	cant bar	r	i	er t	o
employment depends on a number of factors.
While the [EEOC] regulations define a major life activity to include
wor	ki	ng,t	hi	s does notnecessar	i	l	y mean wor	ki	ng att	he j	ob ofone’	s
choice. The proper inquiry is whether the particular impairment
constitutes for the particular person a significant barrier to employment.
Relevant to the inquiry are the number and type of jobs from which the
impaired individual is disqualified, the geographical area to which the
i	ndi	vi	dualhas r	easonabl	e access,and t	he i	ndi	vi	dual	’	s j	ob expect	at	i	ons
and training.
Williams v. City of Charlotte, 4 AD Cases 1675, 1678 (W.D.N.C. 1995),
quoting Jasany v. U.S.P.S., 1 AD Cases 706 (6th Cir. 1985).
There is scant/insufficient evidence in the record to support a finding that Complainant
was limited in the major life activity of working.

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1. Even when the pain did not prevent her from walking, the
dizziness caused by her condition confined her walking to
an absolute minimum. (Tr. 38)
2. Complainant was rarely able to walk enough to leave her
house, could not walk sufficiently to cook, shop for
groceries, care for her children or perform other
household tasks. (Tr. 38-39)
3. Complainant even required assistance from her mother
and her friends to travel to the city to explore what was
happening with her efforts to return to work. (Tr. 49-50)
4. Dr	.Sanf	or	dt	est	i	f	i	edt	hatCompl	ai	nant	’	scondi	t	i	onbecame
symptomatic when she fell in 1995. From 1995 through
the date of the hearing Complainant experienced pain
while walking, standing, doing household tasks, and
caring for her children.
19. Respondent offered no evidence that Complainant had access
to mitigating measures, such as pain medication, during the entire period
that Complainant sought to return to work.
20. Compl	ai	nant	’	s ec	onomi	c c	i	r	cumstances prevented her from
securing medical services, let alone medications, during the time that she
sought to be reinstated.
21. Respondent argues in the alternative that Complainant did not
request an accommodation.

23
22. The question of what constitutes reasonable accommodation
r	equi	r	esa“	f	ac	t	-specific, case-by-cas	e”anal	y	si	s. Eckles v. Consolidated
Rail, 4 AD Cases 1134, 1141 (S.D. Ind. 1995) (legislative citation omitted).
23. Theempl	oy	eehast	hebur	den“	t	ot	i	mel	yal	er	tt	heempl	oy	er	”t	o
the claimed disability and, thus, afford the employer an opportunity to make
a reasonable accommodation. Fussell, supra at 1239 (citations omitted).
24. While employers are not required to reassign disabled persons
to occupied positions or create new positions to accommodate them,
empl	oy	er	s cannot deny a di	sabl	ed empl	oy	ee “	al	t	er	nat	e empl	oy	ment
oppor	t	uni	t	i	esr	easonabl	yav	ai	l	abl	eundert	heempl	oy	er	’	sex	i	st	i	ngpol	i	ci	es.	”
School Board of Nassau Co. v. Airline, 480 U.S. 273, 289, 1 AD Cases
1026, 1032 n.19 (1987).

24
25. Although Complainant was unable to perform the job duties of
traffic controller because of her disability, Respondent had a process to
consider alternative light-duty job placement for employees who follow
Respondent	’	si	nt	er	nalpr	ocedur	esr	egar	di	ngr	equests for light duty.
26. It is, without doubt, a prudent business practice for employers
to engage in an interactive process with disabled employees to find a
reasonable accommodation. However, like their federal counterparts,
neither R.C. Chapter 4112 nort	heCommi	ssi	on’	sr	ul	escr	eat	ei	ndependent
l	i	abi	l	i	t	yf	oranempl	oy	er	’	sf	ai	l	ur	et	odoso.See Barnett v. U.S. Air, Inc., 8
AD Cases 1073,1079 (9th Ci	r	.1998)(	“	TheADA andi	t	sr	egul	at	i	onsdonot
. . . create independent liability for the employer for failing to engage in
ritualized discussions with the employee to find a reasonable
acc	ommodat	i	on.	”	) TheCommi	ssi	on’	si	nabi	l	i	t	yt	oshow t	hatar	easonabl	e
acc	ommodat	i	onex	i	st	edr	ender	sRespondent	’	sef	f	or	t	st	of	i	ndonei	r	r	el	ev	ant	.
The ADA, as far as we are aware, is not intended to punish
employers for behaving callously if, in fact, no accommodation
f	ort	heempl	oy	ee’	sdi	sabi	l	i	t	ycoul	dr	eas	onabl	yhav	ebeenmade.
Willis v. Conopco, Inc., 6 AD Cases 806, 808 (11th Cir. 1997).

25
27. Consequently, the employer who fails to foster an interactive
process or otherwise search for a reasonable accommodation risks later
liability if such accommodation was possible for the disabled employee.
28. Respondent makes circuitous arguments regarding the
empl	oy	er	’	sandempl	oy	ee’	s responsibilities in the process of determining
whether or not a reasonable accommodation can be made for
Complainant.6
29. Respondent	’	s pol	i	ci	es pl	ac	e t	he r	esponsi	bi	l	i	t	y upon t	he
Committee for finding alternative employment for employees approved by
the Committee for light-duty positions.
30. Although Dr. Robinson testified that it sometimes takes a long
time to find an alternative light-duty position for Committee-approved
employees, the Commission introduced uncontroverted evidence that a
light-duty position,consi	s	t	entwi	t	ht	heDr	.Robi	nson’	sRet	ur	nt	oWor	kor	der	,
was available in September of 2000,7 and it was not offered to
Complainant.
6 Resp’	sBr	i	ef	,p.7.
7 Tr. 87.

26
31. A vacancy does not necessarily have to exist at the time the
employee requests reassignment as a reasonable accommodation. If a
v	acancyex	i	st	swi	t	hi	na“	r	easonabl	eamountoft	i	me”	,anempl	oy	ershoul	d
reassign the individual to the position when it becomes available. EEOC
Interpretive Guidance, supra at § 1630.2(o). The EEOC Guidelines, in
Section 1630.2(o), state that this time period should be determined in light
of the totality of the circumstances. For example,
[S]uppose there is no vacant position available at the time that
an individual with a disability requests reassignment as a
reasonable accommodation. The employer, however, knows
that an equivalent position for which the individual is qualified,
will become vacant next week. Under these circumstances, the
employer should reassign the individual to the position when it
becomes available.
32. The evidence supports the determination that a position was
available in September of 2000 in which Complainant could have been
pl	aced.BasedonDr	.Robi	nson’	ss	t	at	ementr	egar	di	ngt	heamountoft	i	me
that it takes to find light-duty positions, the open position available in
Sept	emberof2000 woul	d nothav	e been “	an unr	eas	onabl	e amountof
t	i	me”	.

27
RECOMMENDATIONS
For all of the foregoing reasons, it is recommended in Complaint No.
9208 that:
1. The Commission order Respondent to cease and desist from all
discriminatory practices in violation of R.C. Chapter 4112;
2. The Commission order Respondent to make an offer of
empl	oy	mentt	o Compl	ai	nantwi	t	hi	n 10 day	s oft	he Commi	ssi	on’	s Fi	nal
Order for an alternative light-duty position. If Complainant accepts
Respondent	’	sof	f	erofempl	oy	ment	,Compl	ai	nantshal	lbepai	dt	hesame
wage she would have been paid had she been employed in an
alternative light-duty position from September 2000 and continued to be so
empl	oy	edupt	ot	hedat	eofRespondent	’	sof	f	erofemployment; and
3. Whet	her Compl	ai	nant ac	cept	s Respondent	’	s of	f	er of
employment, Respondent shall submit to the Commission within 10 days of
the offer of employment a certified check payable to Complainant for the
amount that Complainant would have earned had she been employed in an
alternative light-duty position in September 2000 and continued to be so

28
empl	oy	edupt	ot	hedat	eofRespondent	’	sof	f	erofempl	oy	ment	,i	ncl	udi	ng
any raises and benefits she would have received, less her interim earnings,
plus interest at the maximum rate allowed by law.8
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
August 31, 2004
8 Any ambiguity in the amount that Complainant would have earned during this
period or benefits that she would have received should be resolved against
Respondent	.Li	kewi	se,any ambi	gui	t	y i	n cal	cul	at	i	ng Compl	ai	nant	’	s i	nt	er	i	m ear	ni	ngs
should be resolved against Respondent.