Garry Zuelsdorf v. Aircraft Braking Systems

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

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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.

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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

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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

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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”	.

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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)

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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.

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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

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(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

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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).

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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