Sandy Leasure v. State of Ohio, Rehab Services Commission

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
SANDY L. LEASURE
Complainant 	Complaint #8864
(COL) B1071999 (27000) 100599
and 	22A – A0 – 3007
STATE OF OHIO,
REHAB SERVICES COMMISSION
Respondent
HEARING EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATIONS
BETTY D. MONTGOMERY 	BETTY D. MONTGOMERY
ATTORNEY GENERAL 	ATTORNEY GENERAL
Patrick M. Dull, Esq. 	Richard N. Coglianese, Esq.
Assistant Attorney General 	Assistant Attorney General
Civil Rights Section 	Employment Law Section
State Office Tower, 15th Floor 	140 East Town Street, 14th Floor
30 East Broad Street 	Columbus, OH 	43215-6001
Columbus, OH 	43215-3428 	(614) 644-7257
(614) 466-7900
Counsel for the Respondent
Counsel for the Commission
HEARING EXAMINER'S REPORT BY:
Franklin A. Martens, Esq.
Sandy L. Leasure 	Chief Hearing Examiner
2475 Township Road 180 	Ohio Civil Rights Commission
Fredericktown, OH 	43019 	1111 East Broad Street, Suite 301
Columbus, OH 	43205-1379
Complainant 	(614) 466-6684

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INTRODUCTION AND PROCEDURAL HISTORY
Sandy L. Leasure (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on October 5, 1999.
The Commission investigated and found probable cause that the State
of Ohio, Rehab Services Commission (Respondent) (RSC) engaged in
unlawful 	discriminatory 	practices 	in 	violation 	of 	Revised 	Code 	(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 August 10, 2000. The Complaint alleged that Complainant was denied a
reasonable accommodation and was forced to go on medical leave because
of her disability.
Respondent filed a timely Answer to the Complaint, admitting certain
procedural 	allegations 	but 	denying 	that 	it 	engaged 	in 	any 	unlawful
discriminatory practices. 	Respondent also pled affirmative defenses.

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A public hearing was held on March 12, 2001 at the Commission’s
Central Office in Columbus, Ohio.
The record consists of the previously described pleadings; the transcript
consisting of 283 pages of testimony; exhibits admitted into evidence at the
hearing; and the post-hearing briefs filed by the Commission on August 1,
2001 and by Respondent on September 21, 2001. 	The Commission filed a
reply brief on October 2, 2001.
FINDINGS OF FACT
The following findings are based, in part, upon the Hearing Examiner's
assessment of the credibility of the witnesses who testified before him in this
matter. 	The Hearing Examiner has applied the tests of worthiness of belief
used in current Ohio practice. 	For example, he considered each witness's
appearance and demeanor while testifying. 	He considered whether a witness
was evasive and whether his or her testimony appeared to consist of
subjective opinion rather than factual recitation. 	He further considered the
opportunity each witness had to observe and know the things discussed; each

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witness's strength of memory; frankness or the lack of frankness; and the
bias, prejudice, and interest of each witness. 	Finally, the Hearing Examiner
considered the extent to which each witness's testimony was supported or
contradicted by reliable documentary evidence.
1. 	Complainant filed a sworn charge affidavit with the Commission on
October 5, 1999.
2. The Commission determined on June 8, 2000 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. 	Respondent is a state agency doing business in Ohio and an
employer.

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5. 	Complainant was first employed by Respondent in 1974. 	In 1999
she was a Disability Claims Specialist 2. 	Her primary duty consists of
conducting hearings to determine if recipients of Social Security benefits are
still disabled.
6. 	Complainant was diagnosed with bronchial asthma in 1994. 	Her
asthma is triggered by allergens in the air: 	dust mites, molds, trees, grass,
ragweed, 	and 	weed 	pollens. 	(Comm.Ex. 	3) 	In 	the 	fall 	of 	1998,
Complainant’s asthma was out of control. 	She was continuously wheezing
and short of breath. 	Her asthma was so severe that she was unable to
breathe, talk, or walk normally. 	(Tr. 21)
7. 	In order to minimize her exposure to allergens at the work site that
were exacerbating her asthma, Complainant requested Respondent to allow
her 	to 	work 	at 	home, 	where 	she 	could 	have 	more 	control 	over 	her
environment. She submitted a written request on March 31, 1999. 	In a letter
dated April 13, 1999, Respondent asked for more detailed information.
Respondent 	inquired 	how 	Complainant’s 	condition 	prevented 	her 	from
performing her essential job functions.

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8. 	Complainant replied on April 21, 1999 through a letter from her
physician, Dr. Abner H. Bagenstose. 	Dr. Bagenstose is Board certified and
specializes in allergic diseases and asthma. 	In his letter he recommended
that 	Respondent 	either 	modify 	Complainant’s 	office 	area 	by 	providing
Complainant an office with carpeting on a ventilated floor, apply pesticides to
the 	carpeting 	in 	Complainant’s 	office 	to 	reduce 	dust 	mites, 	or 	allow
Complainant 	to 	remain 	in 	her 	current 	building 	in 	an 	office 	without
carpeting. 	At 	Complainant’s 	request 	he 	also added a post script
suggesting that Complainant be permitted to perform the bulk of her duties
from her home office.
9. 	When Complainant did not receive a response from Respondent to
the April 21 letter, she obtained another physician’s letter on May 19, 1999.
This letter was from her primary care physician. 	He suggested Complainant
would have less problems with her asthma if she was allowed to work at home
where she could avoid exposure to many of the allergens that she was
sensitive to. 	(Comm.Ex. 4) 	Complainant also sent Respondent a letter on
May 20, 1999 detailing some work-related problems caused by her asthma.

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(Comm.Ex. 5) 	Respondent acknowledged receipt of these documents in
writing one month later. 	(Comm.Ex. 6)
10. 	On 	July 	14, 	1999, 	Respondent's 	representatives 	met 	with
Complainant. 	Complainant 	was 	informed 	that 	her 	condition 	did 	not
substantially limit a major life activity. 	(Tr. 173) 	This was followed up with a
written memorandum on July 19, 1999, where Respondent re-stated that
Complainant’s 	request 	for 	reasonable 	accommodation 	would 	not 	be
considered because she had not provided documentation that showed her
asthmatic condition substantially limited a major life activity.
11. 	When Respondent denied Complainant’s request for a reasonable
accommodation, Complainant felt compelled to apply for disability leave. 	Her
request was approved, effective July 28, 1999.
12. 	On January 11, 2000, Complainant’s treating physician advised
Respondent that her condition had significantly improved. He requested that
Respondent provide her with an air cleaner and released her to return to work
part-time, 	effective 	February 	1, 	2000. 	Respondent 	requested 	more

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information about Complainant’s restrictions. 	Complainant responded on
January 26, 2000 with a letter detailing what she believed was the nature and
extent of her asthma and how it impacted her. 	(Comm.Ex. 16)
13. 	On January 26, 2000, Respondent agreed to put an Alpine air
purifier in Complainant’s work area. 	This was in anticipation of Complainant
returning to work on February 1, 2000.
14. 	Complainant intended to return to work on February 1, 2000, but
was ordered not to return by Respondent until additional information was
submitted by her doctor about her condition. 	This information was submitted
on February 9, 2000. 	Complainant returned to work part-time on February
15, 2000 and full-time on April 19, 2000.
15. 	On March 10, 2000, RSC asked Complainant for more information
from her physician, attaching a questionnaire for him to fill out. 	The doctor
filled out the questionnaire. 	After Respondent received the questionnaire,
Respondent decided Complainant was disabled and reasonably accom-
modated Complainant by temporarily moving her to an enclosed room where

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she had some control over the environment. 	Seven months later Respondent
provided Complainant with an office which has an air filter, laminated wall
panels, and vinyl flooring.
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.1
1 Any Finding of Fact may be deemed a Conclusion of Law, and any Conclusion of
Law may be deemed a Finding of Fact.

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1. 	The Commission alleged in its Complaint that Respondent denied
Complainant a reasonable accommodation and forced her to go on medical
leave because of her disability.
2. 	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.
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).
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

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evidence sufficient to support a finding of unlawful discrimination under the
Americans with Disabilities Act of 1990 (ADA) or the Rehabilitation Act of
1973.
5. 	The Commission’s administrative rules also apply. 	Administrative
Code 4112-5-08(E) provides that Respondent has an affirmative duty to
provide a disabled employee with a reasonable accommodation.
6. 	In order to apply this section to Respondent, the Commission must
first prove Complainant is disabled. 	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.2 (Emphasis added.)
2 The ADA’s definition of disability under 42 U.S.C. § 12102(2) is substantially the
same as R.C. 4112.01(A)(13). 	42 U.S.C. § 12102(2) provides:
The term “disability” means, with respect to an individual —
(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.

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7. 	R.C. 4112.01(A)(16) provides that any physical condition affecting
the respiratory system is a physical impairment. 	Therefore, asthma is a
physical impairment.
8. 	However, not all physical impairments rise to the level of disabilities.
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. 	Three factors should be considered when determining whether an
impairment substantially limits an individual's ability to perform a major life
activity:
(1) 	The nature and severity of the impairment;
(2) 	The duration or expected duration of the impairment; and

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(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).
10. 	Based on the foregoing discussion and the evidence in this case,
Complainant’s 	asthma 	substantially 	limited 	the 	major 	life 	activities 	of
breathing, speaking, and walking. 	Complainant testified, and her doctor
affirmed, that her asthma was severe. 	(Resp.Ex. E)3 She could not walk two
blocks without getting out of breath. 	(Resp.Ex. G) 	She could not speak a full
sentence without pausing for breath. 	(Resp.Ex. H)
3 In its brief Respondent argued the letters from Complainant’s physicians were not
credible evidence. 	(Resp.Br. 5) 	This argument is not well taken. 	See The State Medical
Board v. Sun, 1981 WL 3668 (Ohio App. 10th Dist.), citing Richardson v. Perales, (1971)
402 U.S. 389 (physician’s written reports are substantial evidence and can be used to
support findings).

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11. 	Complainant’s asthma was also chronic. 	The evidence showed
she has suffered from asthma for seven years. 	It was not a temporary
condition.
12. 	The 	evidence 	also 	showed 	that 	Respondent 	eventually
acknowledged that Complainant was disabled. 	(Comm.Ex. 21) They agreed
to provide her with a filter and an office that did not have carpeting or fabric-
covered walls.
13. 	There can be no dispute that although Complainant was disabled,
she was qualified to perform her job duties with reasonable accommodation.
Respondent’s argument that she was not qualified because she applied and
was granted disability benefits is not dispositive of that issue. 	The disability
determination process does not take into consideration the possibility of
reasonable accommodation.
14. 	Therefore, under the facts and circumstances in this case,
Complainant’s application for disability benefits was not evidence that she was
not qualified to perform the essential functions of her job. 	Cf. Cleveland v.

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Policy Mgt. Sys. Corp., 526 U.S. 795 (1999) (applicant for Social Security
disability insurance benefits can still be a qualified individual with a disability
within the meaning of the ADA).
15. 	The Commission having proven that Complainant was disabled
and 	able 	to 	perform 	the 	essential 	functions 	of 	her 	position 	with
accommodation, 	Respondent 	had 	a 	duty 	to 	provide 	a 	reasonable
accommodation for Complainant. 	However, an employer is not required to
accommodate an employee in the manner requested or provide the employee
with the “best” accommodation.4 Vande Zande v. Wis. Dept. of Admin., 2 AD
Cases 1846 (W.D. Wisc. 1994), quoting EEOC Interpretive Guidance, at §
1630.9. Employers are only required to provide an accommodation that is
reasonable.
See Kerno v. Sandoz Pharmaceuticals, 4 AD Cases 1196, 1200 (N.D. Ill.
1994) (“the bottom line is . . . simply that the employer must offer the
employee a reasonable accommodation”).
4 Although the preference of the disabled person should be considered, the EEOC
Interpretive Guidance provides that:
. . . the employer providing the accommodation has the ultimate discretion to
choose between effective accommodations, and may choose the less

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16. 	Thus, Respondent did not have to provide Complainant the option
of working at home as a reasonable accommodation. 	However, other
reasonable accommodations were requested on Complainant’s behalf. (See
Findings of Fact, ¶ 8)5 Ultimately, Respondent provided Complainant with a
combination of these requested accommodations.
17. 	Was the accommodation timely? 	An accommodation that is made
in an untimely fashion is not reasonable. 	James v. Frank, 772 F.Supp. 984, 2
A.D. Cases 815 (S.D. Ohio 1991).
18. 	In this case, the accommodation was not timely. 	Respondent had
a four-month period from the first request for accommodation to engage
in 	the 	interactive 	process 	with 	Complainant 	and 	her 	physicians 	to
determine if Complainant had a disability and if the disability could be
reasonably accommodated. 	See Beck v. University of Wisc. Bd. of Regents,
5 AD Cases 304 (7th Cir. 1996) (employer must make a reasonable effort to
determine appropriate accommodation in an interactive process that requires
expensive accommodation or the accommodation that is easier for it to
provide. 	Id., at § 1630.9.

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5 The EEOC Interpretive Guidance provides that a health professional may request
a reasonable accommodation on behalf of an individual with a disability. 	See, 29 C.F.R.
1630.

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participation by both parties). 	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.
Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1116 (9th Cir. 2000).
19. 	Respondent appropriately initiated the process, but failed to act
after Complainant had submitted sufficient information that would cause a
reasonable person to conclude that Complainant was entitled to a reasonable
accommodation. 	There were a number of reasonable accommodations that
Respondent could have easily made during the four-month period preceding
Complainant’s disability leave.6
20. 	If Respondent believed that any of the information Complainant
provided was untrue, then Respondent had an obligation to send Complainant
to another physician to evaluate her condition. 	If Respondent believed the
picture was not complete, then Respondent had an obligation to follow-up and
6 Respondent’s argument that Complainant rejected the other options is not
supported by the evidence. 	They were never offered. 	(At the most there were vague
references to “administrative adjustments.”) 	Much later, when they were offered,
Complainant embraced them and abandoned her request that she be allowed to work at
home.

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complete the picture in a timely manner. 	The questionnaire that was sent to
Complainant’s treating physician in March 2000 should have been provided in
June 1999, nine months earlier.
21. 	The Commission proved that Complainant was disabled. 	She
requested a reasonable accommodation for her disability. Respondent did not
provide a reasonable accommodation in a timely manner. 	Therefore, the
Commission is entitled to relief.
RELIEF
22. 	When 	the 	Commission 	makes 	a 	finding 	of 	unlawful 	discrim-
ination, the victims of such behavior are entitled to relief. R.C. 4112.05(G)(1).
Title VII standards apply in determining the appropriate relief under the
statute. Ohio Civ. Rights Comm. v. David Richard Ingram, D.C., Inc. (1994),
69 Ohio St.3d 89.

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23. Like Title VII, one of the purposes of R.C. Chapter 4112 is to make
“persons whole for injuries suffered through past discrimination.” Albemarle
Paper Co. v. Moody, 422 U.S. 405, 421, 10 FEP Cases 1181, 1187 (1975).
The attainment of this objective requires that:
. . . persons aggrieved by the consequences and effects of the
unlawful employment practice be, so far as possible, restored to a
position where they would have been were it not for the unlawful
discrimination.
Franks v. Bowman Transportation Co., 424 U.S. 747, 763, 12 FEP
Cases 549, 555 (1976) (footnotes omitted).
24. 	Normally 	the 	issue 	of 	relief 	evolves 	from 	some 	adverse
employment decision. 	In this case, arguably the adverse employment
decision was the failure to accommodate. If the failure to accommodate is the
adverse employment action, then Complainant is not entitled to any monetary
relief since Respondent has accommodated her disability and the issue of
accommodation is moot. 	Instead, the Commission claims that Complainant
was 	forced 	to 	go 	on 	disability 	leave 	because 	Respondent 	did 	not
accommodate her in a timely manner. 	This is akin to a constructive
discharge.

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25. 	The issue of constructive discharge that arises from a failure to
accommodate appears to be a case of first impression in Ohio. 	Likewise,
there are few federal cases on the issue. 	There is one that provides some
guidance. 	Hurley-Bardige v. Brown, 900 F.Supp. 567 (D. Mass. 1995).
26. 	According to Hurley-Bardige, the failure to accommodate, in itself,
is not sufficient evidence of constructive discharge, except in cases where the
employer failed to make any accommodation at all. 	Such behavior by an
employer would be strong circumstantial evidence that the employer had a
“deliberate intent” to discharge the employee.
27. 	In this case, Complainant testified that she was told, “. . . if you’re
sick, you should leave.” 	(Tr. 43) 	If this were true, there would be no
question that Respondent intended to force Complainant to leave her
employment. Complainant also testified she believed that if she continued
working in the office environment, her condition could become life-threatening.
Thus, she felt compelled to go on disability leave.

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28. 	Respondent’s witnesses had a different version of what was said
and the context of the conversation. 	They testified Complainant said that the
only way she could get her asthma under control would be if she was allowed
to work at home. 	Respondent's representative replied (since working at
home was not an option) that if Complainant needed to be at home, then
disability leave would be an option she would want to consider. 	(Tr. 259-
260)
29. 	Based on the foregoing discussion, the evidence supports the
conclusion that Complainant objectively and subjectively believed that her
health would be endangered if she continued to work in the existing office
environment. 	The evidence also supports the conclusion that Respondent
did not offer any reasonable accommodation in July 1999 and encouraged
Complainant to go on disability leave. 	Therefore, Complainant is entitled to
damages that resulted from her disability leave status.

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30. 	The parties stipulated to damages. 	The damages included the
following:
• 	$6,446.89 in wages;
• 	151.45 hours of vacation time;
• 	15.47 hours of sick time;
• 	17.06 hours of personal time;
• 	.05 hours of compensatory time (probably .50 hours of
compensatory time); and
• 	128.52 hours of vacation time that Complainant failed to
accrue because she could not accrue vacation time while
on disability leave.

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RECOMMENDATIONS
For all the foregoing reasons, it is recommended in Complaint #8864
that:
1. 	The Commission order Respondent to cease and desist from all
discriminatory practices in violation of Chapter 4112 of the Revised Code;
2. The Commission order Respondent to credit Complainant for all of
the hours of vacation time, sick time, and personal time she used, and hours
she failed to accrue, as a result of being on disability leave; and
3. 	The Commission order Respondent to pay Complainant $6,446.89
for lost wages, plus interest at the maximum rate allowed by law.7
FRANKLIN A. MARTENS
CHIEF HEARING EXAMINER
December 12, 2001
7 As an alternative, the parties may consider cashing out the leave time that can be
cashed out. 	Interest would not accrue on cashed-out leave time.