Asplundh Tree Expert Co. v. Ohio Civil Rights Comm.
| Decision Date | 09 April 1991 |
| Docket Number | No. 90AP-320,90AP-320 |
| Citation | 68 Ohio App.3d 550,589 N.E.2d 102 |
| Parties | , 2 A.D. Cases 1503, 1 NDLR P 302 ASPLUNDH TREE EXPERT COMPANY, Appellee, v. OHIO CIVIL RIGHTS COMMISSION, Appellant; Payton. * |
| Court | Ohio Court of Appeals |
Vorys, Sater, Seymour & Pease and Andrew C. Smith, Columbus, for appellee Asplundh Tree Expert Co.
Lee I. Fisher, Atty. Gen., and Larry Y. Chan, Columbus, for appellant Ohio Civil Rights Com'n BOWMAN, Presiding Judge.
This is an appeal by appellant from a judgment of the Franklin County Court of Common Pleas reversing appellant's decision that appellee had discriminated against an employee on the basis of the employee's handicap. The trial court found that appellant had failed to establish a prima facie case of handicap discrimination.
Appellee, Asplundh Tree Expert Co. ("Asplundh"), is a multi-national company with offices in this state engaged in the business of tree trimming. Appellee employed Gary Wayne Payton in September 1977 as a tree trimmer, which position was classified as a Trimmer E. Over the ensuing two and one-half years, Payton held several positions with the company, ultimately holding the position of Trimmer A, the highest classification of tree trimmer. As a Trimmer A, Payton worked on a three-man crew which trimmed tree limbs and brush from electrical supply lines. Most of this trimming work was done from a lift bucket so that little tree climbing was involved. In performing his duties from the bucket, Payton was sometimes required to use a saw weighing in excess of thirty-five pounds in addition to tools weighing less.
Payton was injured in May 1980 when he was struck by an automobile during the course of his employment as he was removing brush from the road. As a result of the accident, Payton sustained two broken legs which required him to be off work for approximately eight months. When he was released for work in January 1981, Payton continued to perform his previous job duties with the medical restriction that he not climb trees. The foreman of Payton's crew accommodated this restriction by having himself or another crew member climb trees on the infrequent occasion that such climbing was required.
Because Payton continued to have problems with his left knee, he underwent additional surgery on that knee in 1982 and was again released to work on August 30, 1982, with the previous restriction against climbing and an additional restriction against lifting weight in excess of thirty-five pounds. Payton was able to perform the majority of his duties, the other crew members assisting him when lifting weights in excess of thirty-five pounds.
During the period 1982 through 1986, Payton's work crew received high ratings for its productivity. Payton's foreman considered the crew his best crew ever. Also, during this period, in November 1985, Payton assisted a co-worker in a race discrimination claim filed with respondent-appellant, Ohio Civil Rights Commission ("commission"). The substance of Payton's statement to the commission was that appellee had continued to employ Payton with his medical restriction while failing to accommodate a black co-worker who also was medically restricted.
When Payton experienced increased swelling and pain in his left knee in early 1986, he underwent additional surgery. Subsequent to the surgery, Payton's physician once again released him in May 1986 to return to work with the same medical restrictions against climbing and lifting weights over thirty-five pounds. Appellee, on May 12, 1986, informed Payton that, due to a change of policy, the company was unwilling to accommodate any medical restriction and that Payton could not return to his former position until he was one hundred percent fully recovered.
Thereafter, on May 16, 1986, Payton filed a charge affidavit with the commission alleging unlawful discriminatory practices by appellee. Specifically, Payton alleged that appellee had discriminated against him in the terms and conditions of his employment on account of his handicap and that appellee had failed to reinstate him in retaliation for having participated in the prior race-discrimination investigation conducted by the commission.
The commission's efforts to eliminate the alleged discriminatory practices through conciliation were unsuccessful and a complaint was issued on March 4, 1987. The complaint alleged that appellee's failure to reinstate Payton was motivated in part by Payton's handicap and in retaliation for Payton's having participated in the commission investigation.
The matter was heard before a hearing officer of the commission in July 1987, who issued findings of fact, conclusions of law and recommendations in February 1988. The hearing officer concluded that the commission had established a prima facie case of handicap discrimination and that appellee had failed to prove its affirmative defense. More particularly, the hearing officer concluded that Payton, although handicapped, could safely and substantially perform the essential functions of his job. As support for this conclusion, the hearing officer pointed to the fact that Payton continued to perform his job duties following his July 1982 surgery until March 1986, although working under climbing and weight-lifting restrictions. During this time period, the hearing officer noted that there was no evidence that Payton experienced any problems in performing his job or that he had ever received any discipline regarding his job performance. This fact was underscored, in the hearing officer's opinion, by the testimony of Payton's foreman that Payton's crew was highly productive. The hearing officer also concluded that Payton could perform his job duties in a safe manner despite climbing and weight-lifting restrictions.
The hearing examiner did, however, conclude that the alleged retaliatory conduct engaged in by appellee was not proved by the commission.
Accordingly, the hearing examiner recommended that the commission order appellee to cease and desist from all discriminatory practices in contravention of R.C. Chapter 4112, that appellee recall Payton to his former position of employment, and that appellee pay Payton back wages for the period he was wrongfully excluded from his position.
Following the objections filed by appellee, the commission filed its own findings of fact, conclusions of law and order, which essentially reproduced the recommendation of its hearing examiner.
Appellee, on June 3, 1988, timely appealed the commission's findings and order to the Franklin County Court of Common Pleas pursuant to R.C. 4112.06. Upon consideration of the administrative record compiled before the commission, the common pleas court determined that the commission's finding that Payton could safely and substantially perform the essential functions of his job was not supported by reliable, probative and substantial evidence. Accordingly, the common pleas court, on February 15, 1990, reversed and vacated the May 1988 commission order and entered judgment on behalf of appellee.
The commission now appeals and sets forth the following assignments of error:
Although the commission assigns four errors for our review, its arguments center upon one issue. Specifically, the commission contends that the common pleas court abused its discretion in reversing the commission's order since that order was supported by reliable, probative and substantial evidence in the record. It is the position of the commission that it adduced sufficient evidence to sustain its burden of establishing that Payton could safely and substantially perform the functions of a Trimmer A. As support for this position, the commission points to Payton's ability to perform the trimming and brush-clearing activities required of a Trimmer A for the four-year interval between his July 1982 surgery and his March 1986 surgery, the testimony of Payton's foreman regarding the productivity of Payton's crew, and the absence of any disciplinary action taken against Payton by appellee because of Payton's inability to perform his job.
Appellee, on appeal, concedes that the sole issue presented is whether Payton could safely and substantially perform the duties of his job. Specifically, appellee maintains that the commission failed to adduce sufficient evidence as to Payton's ability to safely or substantially perform his job duties.
As to the former, appellee contends that Payton's handicap posed an elevated risk of injury to either himself or his fellow employees as evidenced by Payton's history of medical treatment and surgeries. As support for this contention, appellee relies upon the decision rendered in Mantolete v. Bolger (C.A.9, 1985), 767 F.2d 1416. Appellee underscores its argument regarding Payton's ability to safely perform his job duties by the fact that Payton essentially admitted that he could not participate in rescuing a fellow worker who has been accidentally electrocuted while working from the bucket. As to Payton's ability to substantially perform his job duties, appellee relies upon Payton's testimony that he was able to perform only sixty percent of his job duties as a result of his handicap.
Since the parties' arguments focus on the requisite quantum of evidence necessary to establish a prima facie case of handicap discrimination, it is important to note the elements of a prima facie case for handicap discrimination:
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