Raymond F. Pandelli v. Land O Lakes, Inc.

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
RAYMOND F. PANDELLI
Complaint No. 9842
Complainant (AKR) B3041904 (28705) 04232004
22A–2004–02095C
v.
Complaint No. 9961
LAND O’LAKES, INC. (AKR) B3040105 (29885) 04272005
22A–2005–02567C
Respondent
CHIEF ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATIONS
MIKE DeWINE
ATTORNEY GENERAL
David A. Oppenheimer, Esq. Patricia F. Weisberg, Esq.
Associate Attorney General Walter & Haverfield
Civil Rights Section Tower at Erieview
State Office Building, 11th Floor 1301 East 9th Street, Suite 3500
615 West Superior Avenue Cleveland, OH 44114-1821
Cleveland, OH 44113-1899 216 – 781 – 1212
216 – 787 – 3030
Counsel for Respondent
Counsel for the Commission
ALJ'S REPORT BY:
Denise M. Johnson
Chief Administrative Law Judge
Raymond F. Pandelli Ohio Civil Rights Commission
9156 Slagle Road State Office Tower, 5th Floor
Windham, OH 44288 30 East Broad Street
Columbus, OH 43215-3414
Complainant 614 – 466 – 6684

1
INTRODUCTION AND PROCEDURAL HISTORY
Raymond F. Pandelli (Complainant) filed sworn charge
affidavits with the Ohio Civil Rights Commission (the Commission)
on April 23, 2004 and April 25, 2005, respectively.1
The Commission investigated the charges and found probable
cause that Land O’Lakes, Inc. (Respondent) 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 Complaints on March 17, 2005 and November 17, 2005,
respectively.
Complaint No. 9842 alleged on or about April 23, 2004,
and continuing thereafter, Respondent failed and refused to
continue reasonably accommodating Complainant’s disability, and
placed him on inactive status.2
1 Parties filed a Joint Motion to Stay and Consolidate regarding
Complaint No. 9842. The Motion was granted. On January 9, 2006,
the Commission filed a Motion to Lift Stay and Consolidate Complaint Nos.
9842 and 9961. The Motion was granted.
2 The Commission filed a Motion to Amend Complaint No. 9842 on
March 26, 2006. Respondent filed an Amended Answer to Complaint No. 9842
on April 5, 2006.

2
Complaint No. 9961 alleged Respondent failed and refused
to reasonably accommodate Complainant, and transfer him,
for reasons not applied equally to all persons without regard to
their disability status.
Respondent filed Answers to the Complaints on April 25, 2005
and December 27, 2005. Respondent admitted certain procedural
allegations, but denied it engaged in any unlawful discriminatory
practices. Respondent also pled affirmative defenses.
A public hearing was held on May 1-3, 2007, at the Lausche
State Office Building, 615 West Superior Avenue, Cleveland, Ohio.
The record consists of the previously described pleadings; a
transcript of the hearing, consisting of 656 pages; exhibits admitted
into evidence during the hearing; and the post-hearing briefs filed
by the Commission on September 23, 2008; by Respondent on
November 25, 2008; and a reply brief filed by the Commission on
December 11, 2008.3
3 On December 18, 2008, Respondent’s filed a Motion for Leave to File
Surreply Instanter. On December 29, 2008, the Commission filed a
Memorandum in Opposition. Under the Commission’s rules the briefing of
legal arguments by the parties pursuant to an administrative hearing does not
include a sur-reply by Respondents. Respondent’s Motion is, therefore, denied.

3
FINDINGS OF FACT
The following Findings of Fact are based, in part, upon the
Administrative Law Judge’s (ALJ) assessment of the credibility of
the 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, she considered each witness’s appearance
and demeanor 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
the things discussed, each witness’s strength 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
witness’s testimony was supported or contradicted by reliable
documentary evidence.
1. Complainant filed sworn charge affidavits with the
Commission on April 23, 2004 and April 25, 2005, respectively.
2. The Commission determined on October 7, 2004 and
August 4, 2005 it was probable Respondent engaged in unlawful
discriminatory practices in violation of R.C. 4112.02(A).

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3. The Commission attempted to resolve these matters by
informal methods of conciliation. The Commission issued the
Complaints after conciliation failed.
4. Respondent is a farmer-owned cooperative and a leading
marketer of dairy-based products.
5. The facility located in Kent, Ohio manufactures spreads
and operates three shifts:
 7:00 a.m. to 3:00 p.m.
 3:00 p.m. to 11:00 p.m. and
 11:00 p.m. to 7:00 a.m.
(Tr. 112)
6. The employees at the Kent facility are represented by the
United Automobile, Aerospace and Agricultural Implement Workers
of America, UAW Local #70.
7. The Collective Bargaining Agreement (CBA) that covered
employees at the Kent facility for the period of June 8, 2002 to
June 8, 2005 required Respondent follow a specific procedure in
forcing employees to work overtime. (Comm. Ex. 43)
8. Complainant first started working at Respondent’s Kent
facility in 1985 as a Maintenance Mechanic. The position was later
reclassified as Certified Mechanic with no change in job duties.

5
9. A few months after Complainant started working for
Respondent he went to second shift.
10. A Certified Mechanic at the Kent facility is a specially
trained maintenance individual who keeps the lines and equipment
properly maintained. (Tr. 557)
11. Complainant assisted operators, and maintained and
repaired equipment and packaging materials for butter and
margarine products.
12. Complainant was responsible for taking care of the
building, pumps and other equipment.
13. Occasionally, he assisted vendors with vehicles and
provided emergency response for product releases. (Tr. 251)
14. Complainant also completed preventive maintenance
programs to discover parts that were failing on equipment and
replaced them to prevent a problem before it happened, ensuring
the machinery continued to work uninterrupted. (Tr. 255)
15. The number of mechanics at the Kent facility during
the relevant time periods was approximately 13 to 15. Seven
mechanics worked first shift, three or four worked second shift,
and three or four worked third shift. (Tr. 112)

6
16. Article 12, Section 1 of the CBA states:
(d)epending upon operational requirements, employees
may be expected to work more than 8 (eight) hours per
day or forty (40) hours in a given week.
Mandatory overtime is in effect when all departments are
scheduled full. Overtime will not be charged when all
departments are scheduled full (sixth and/or seventh
day), in which case all employees must work.
Employees are required to be available to work four
hours before and four hours after their shift and on
weekends.
(Comm. Ex. 43, 55)
17. If not enough employees made themselves available to
work on a voluntary basis, the employee with the least amount of
seniority within the classification on the shift scheduled to work
who had not worked eight hours of overtime was “forced” to work.
18. Employees avoided being forced to work overtime if they
were qualified to work outside their classification on their shift,
provided this did not cause any other employee to be forced in their
classification.
19. Employees who were unavailable to work due to medical
restrictions were not included in the calculation when rolling back
the eight hours to zero.

7
20. In 1990 Dr. Jose Rafecas (Dr. Rafecas) diagnosed
Complainant with narcolepsy.
21. Narcolepsy is a neurologic disease and a sleep disorder.
It is a condition where the brain control systems that keep an
individual awake are not functioning properly. As a consequence
the symptoms manifested by the condition are excessive sleepiness
and occasional muscle paralysis which relates to abnormal dream
sleep physiology. (Tr. 25)
22. Individuals who have narcolepsy may have a sleep
attack. Sleep attacks happen as a result of excessive sleepiness
caused by a sleep disorder. When individuals with narcolepsy
get sleepy they struggle to fight off the sleepiness and the onset
of sleep. (Tr. 26)
23. In 1997 Complainant returned to Dr. Rafecas because
Complainant noticed when he worked overtime until 3:00 a.m.
he did not feel well rested no matter how late he slept the next day.
24. Complainant presented a letter to Respondent from
Dr. Rafecas, dated June 26, 1997, which identified Complainant’s
condition as narcolepsy and set forth work restrictions.

8
25. The letter advised Complainant’s condition causes sleep
attacks, and further advised Complainant should not work past
2:00 a.m. Daylight Savings Time (DST) or 1:00 a.m. Eastern
Standard Time (EST). (Comm. Ex. 8)
26. Because Complainant worked between 3:00 p.m. and
11:00 p.m. and overtime for Certified Mechanics could include
four hours before or after their shift, Complainant’s restrictions
required an accommodation between 1:00 a.m. and 3:00 a.m.
27. Respondent accommodated Complainant by excusing
him from working overtime after 1:00 a.m. or 3:00 a.m. (Tr. 267)
28. Complainant returned to Dr. Rafecas because he noticed
when he reported to his regular work shift after working overtime
in the early morning hours he experienced the symptoms of not
feeling well rested.
29. In October of 2000, Dr. Rafecas extended Complainant’s
restrictions to not working between 1:00 a.m. and 6:00 a.m.
30. Denise Rice (Rice) became the Human Resources
Manager at the Kent facility in March of 2002. Rice reported to
Karen Darwin (Darwin), the General Manager of the plant.

9
31. Rice determined there was a problem with how
employees’ medical restrictions affected the process of overtime.
(Tr. 383)
32. She concluded from her investigation of the issue there
were an unusually high number of employees who had medical
work restrictions. The employees were never asked to update their
medical restrictions.
33. Rice decided to create the Transitional Work Policy (TWP),
at least in part, to address this situation.
34. The TWP set forth the process for accommodating an
employee with a temporary or permanent medical restriction,
effective January 1, 2004. (Comm. Ex. 36)
35. Under the TWP an employee with a temporary restriction
would have their restriction honored for up to ninety (90) days.
36. If a restriction exceeded ninety days, the employee’s
physician needed to classify the restriction as permanent, or else
the employee would be taken off of work.
37. If the restriction was classified as permanent the
restriction would be reviewed to determine if the employee could be
accommodated on a permanent basis.

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38. On March 25, 2004, Complainant met with Rice and
Daniel Cornelius (Cornelius), Maintenance Manager. He was told
if he did not get a change to his work restriction he would no longer
be working for Respondent.
39. On April 21, 2004, Complainant submitted a Patient Visit
Form (PVF) to Respondent which stated he had a permanent
work restriction between 1:00 a.m. and 6:00 a.m.
40. Respondent made the decision it would not accom-
modate Complainant’s permanent restriction.
41. By memo dated April 23, 2004, Rice informed
Complainant as of that date she had not received any updated
medical information that changed his ability to perform the
essential functions of his position. (Comm. Ex. 38)
42. On May 1, 2004, Complainant reported to work but Rice
would not allow him to work without a change to his work
restriction.
43. Complainant went to Dr. Rafecas’ office and wrote a note
which asked his restriction be changed so he could work until
3:00 a.m. on a “trial” or “temporary basis” until he could resolve his
“employer HR issues”. (Comm. Ex. 40)

11
44. Dr. Rafecas’ nurse practitioner received the request and
decided the negative impact of Complainant not working would be
greater than the negative impact of changing his restriction to allow
him to work until 3:00 a.m.
45. Complainant submitted the PVF to Respondent with the
revised restriction on May 3, 2004. Complainant was allowed to
return to work.
46. In February of 2005 Complainant bid on a first shift
Certified Mechanic position.
47. Under the CBA if multiple people bid on the same
position the person with the most seniority received the position.
48. Although Complainant was the most senior employee
bidding on the open position he did not receive the job because of
his restriction. (Tr. 168)
49. In March of 2005 another first shift Certified Mechanic
position was open. Complainant bid on that position and was the
most senior applicant but was rejected because of his restriction.
(Tr. 172-173)
50. Complainant bid for the open position of DAF Operator.
The position was posted on May 26, 2005.

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51. DAF Operators operate the waste water treatment
facilities for the plant.
52. The DAF Operator position is the only position in the
Maintenance Department that works the second shift.
53. Complainant was awarded the position.
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.4
4 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 on or about April 23, 2004, and
continuing thereafter, Respondent failed and refused to continue
reasonably accommodating Complainant’s disability, and placed
him on inactive status. Additionally, the Commission alleged
Respondent failed and refused to reasonably accommodate
Complainant, and transfer him, for reasons not applied equally to
all persons without regard to their disability status.
2. These allegations, if proven, would constitute violations
of R.C. Chapter 4112 and the Commission’s rules embodied in the
Ohio 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.
3. The Commission’s rules require an employer to
reasonably accommodate an employee’s disability unless the
employer demonstrates that such accommodation would impose
an undue hardship on the employer’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

14
Cty. 1993) (the employer bears the burden of showing undue
hardship).
4. 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), 4112.06(E).
5. 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
(ADA) or the Rehabilitation Act of 1973.
6. 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 accom-
modation; and

15
(3) Respondent took the alleged unlawful discrim-
inatory action, at least in part, because of
Complainant’s disability.
McGlone, supra at 571 (citation omitted).
7. 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
8. The Commission presented testimony from Dr. Jose
Rafecas, Complainant’s treating physician, about Complainant’s
narcolepsy.
9. Narcolepsy is a neurologic disease and a sleep disorder.
(Tr. 25)
5 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.

16
10. Although Complainant has narcolepsy, the first part of
R.C. 4112.01(A)(13) requires the Commission to show that
Complainant has an actual disability. The Commission must
prove Complainant’s condition substantially limits one or more
major activities.
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).
11. Major life activities are “those basic activities that the
average person in the general population can perform with little or
no difficulty.” EEOC Interpretive Guidance, at § 1630.2(i). Such
activities include, but are not limited to:
caring for oneself, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, …
working, … sitting, standing, lifting, and reaching.
Toyota Motor Mfg. v. Williams, 534 U.S. 184 at 197-198
(Legislative citations omitted).

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12. 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
(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).
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).
The Commission alleges Complainant is substantially limited in the
major life activities of learning, reading, the manual task of driving,
and working.
13. The substantial limitation of a major life activity applies
to the entire range of the life activity, not merely to one sub-class of
that activity. Id.

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14. Major life activities constitute tasks central to most
people's daily lives, and include "speaking, learning, and working.";
Swanton v. Univ. of Cincinnati, 268 F.3d 307, 314 (6th Cir. 2001)
(citing 29 C.F.R. § 1630.2(i) [emphasis added]).
15. When determining whether someone is substantially
limited in the ability to learn, courts look at the effect an
impairment has on memory, the ability to learn new things,
succeed in school and concentrate. Mulholland v. Pharmacia &
Upjohn, Inc., (6th Cir. 2002), 52 Fed. Appx. 641, 645-646.
16. Because medical diagnoses can describe a wide range of
people with differing levels of actual impairment, a court must make
an individualized assessment the plaintiff is actually impaired.
Toyota, Id. at 198-199.
17. Dr. Rafecas testified how the condition generally affects
individuals without explaining how Complainant was specifically
affected by the condition. (Tr. 30-32, 50-52)
18. Complainant testified how his condition affected his
ability to read, concentrate, and learn, and was based on
generalized recollections. (Tr. 244-247, 269-270)

19
19. Complainant recalled that he was unable to complete
sustained reading for course work at Kent State University (KSU) in
1990. When Complainant was attending KSU in 1990 he was
working from 3:00 p.m. to 11:00 p.m. (sometimes longer), and then
going to school from 7:00 a.m. to 2:00 p.m. Complainant admitted
anyone would be overwhelmed with this schedule. (Tr. 353)
20. The testimony of Complainant regarding the effect of
the narcolepsy on his reading and learning does not amount to
a significant restriction when compared with the abilities of the
average person.
21. The Commission also alleged that Complainant is
substantially limited in the manual task of driving.
22. Complainant testified he drove home the wrong way
numerous times while he was working on second shift. (Tr. 344)
23. Courts have concluded the task of driving is one of a
list of manual tasks performed by an individual, in addition to
other manual tasks, such as typing, writing, grocery shopping,
making beds, doing laundry, and dressing oneself. Sanders v. First
Energy Corp., (Jefferson Cty., 2004) 157 Ohio App. 3d 826.
24. Driving is the only manual task Complainant testified
he had trouble performing.

20
25. The evidence in the record does not support a
determination Complainant’s condition interfered with his ability
to perform a broad range of manual tasks:
… plaintiff's impairment fell "short of substantially
limiting the major life activity of performing manual
tasks" because the plaintiff admitted he could perform
daily activities such as dressing himself, driving, and
working with a computer. Id. The court concluded "a
plaintiff must demonstrate that he is substantially
limited in a range of manual tasks rather than a narrow
category thereof."
Chandra v. Engelhard/ICC, 234 F.3d 1219, 1223 (11th
Cir. 2000). [Emphasis added.]
… plaintiff failed to demonstrate a substantial limitation
when, although she could not type or write for long
periods of time, she could perform "a wide range of
manual tasks, including grocery shopping, driving,
making beds, doing laundry, and dressing herself."
Thornton v. McClatchy Newspapers, Inc., 261 F.3d 789,
797 (9th Cir. 2001).
26. Dr. Rafecas testified individuals with narcolepsy tend
to fall asleep or lose focus while performing sedentary activities,
but more physically active endeavors enable them to remain
awake and function.

21
27. Complainant’s inability to drive is one sub-set of a
range of manual tasks, only one of which he cannot perform.
Therefore, Complainant is not restricted in the major life activity of
being able to perform manual tasks.
28. The Commission posits Complainant’s ability to drive
only short distances before he becomes sleepy and disoriented
results in a substantial limitation in the major life activity of
working.
29. The Commission’s argument is well taken.
With respect to the major life activity of working …
[t]he term substantially limits means significantly
restricted in the ability to perform either a class of jobs or
a broad range of jobs in various classes as compared to
the average person having comparable training, skills,
and abilities. The inability to perform a single, particular
job does not constitute a substantial limitation in the
major life activity of working.
29 C.F.R. Section 1630.2.
30. Truck driving constitutes a class of jobs and the courts
have held that a person who is unable to work as a truck driver is
substantially limited in the major life activity of working. Best v.
Shell Oil Co., 107 F.3d 544, 548 (7th Cir. 1997); see also DePaoil v.
Abbott Labs., 140 F.3d 668, 673 (7th Cir. 1998); Baulos v. Roadway
Express, Inc., 139 F.3d 1147, 1152-53 (7th Cir. 1998).

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31. The credible testimony in the record supports the finding
that the effect of narcolepsy on Complainant’s ability to perform the
manual task of driving would prevent him from working at any
job which would require him to drive more than fifteen (15) minutes
at a time. This is one of those cases in which the effect of
Complainant’s impairment on his ability to drive is so severe that
his substantial foreclosure from the job market is obvious.
REASONABLE ACCOMMODATION
32. The next step in the analysis is to determine whether
Complainant can perform the essential functions of the job with or
without accommodation.
33. Because Complainant worked on the second shift (3:00
p.m. to 11:00 p.m.) his restriction (not working overtime from 1:00
a.m. to 6:00 a.m.) only prevented him from working four hours
overtime at the end of the shift. Respondent asserts eight hours
of overtime both before and after a shift is an essential function of
the job of a Certified Mechanic.
34. The ADA's implementing regulations provide the term
“essential functions” means “the fundamental job duties of the
employment position the individual with a disability holds or
desires,” and “does not include the marginal functions of the
position.” 29 C.F.R. § 1630.2(n)(1).

23
35. Whether a function is essential is evaluated on a
case-by-case basis by examining a number of factors. Davis v.
Florida Power & Light Co., 205 F.3d 1301, 1305.
36. In making this determination, the statute provides:
… consideration shall be given to the employer's
judgment as to what functions of a job are essential, and
if an employer has prepared a written description before
advertising or interviewing applicants for the job, this
description shall be considered evidence of the essential
functions of the job.
42 U.C.S. § 12111(8); see also Holbrook v. City of
Alpharetta, 112 F.3d 1522, 1526 (11th Cir. 1997).
37. The ADA regulations provide other factors to consider
are:
(1) the amount of time spent on the job performing the
function,
(2) the consequences of not requiring the incumbent to
perform the function,
(3) the terms of the collective bargaining agreement,
(4) the work experience of past incumbents in the job,
and
(5) the current work experience of incumbents in
similar jobs.
Davis, supra, citing 29 C.F.R. § 1630.2(n)(3).

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38. The CBA states mandatory overtime is in effect when all
departments are scheduled full sixth and/or seventh days, in which
case all employees must work. (Comm. Ex. 43, p. 7)
39. In a forced overtime situation all overtime offered but not
work is charged to the employee who did not work the overtime.
40. To read the CBA in the manner the Commission
suggests would render the language in Article 12 as being
voluntary. The language of the CBA and the testimony of
Respondent’s witnesses, in addition to the testimony by
Complainant, require a different outcome.
41. Under mandatory overtime employees are required to
work more than a 40 work week. If additional work is needed
during mandatory overtime, the company first posts a sign-up
sheet for overtime. If not enough employees sign-up in a
classification on the shift for overtime, then overtime is offered to
the employee that is qualified to perform the work in the
department on the shift.
42. If not enough employees make themselves available for
mandatory overtime then an employee can be forced to work
overtime based on seniority.

25
43. Employees cannot be forced to work more than four
hours before or four hours after the end of their shift.
Respondent also provided credible evidence the operation of the
Kent facility from 2002 through 2006 included the working of
overtime hours by employees.
44. Overtime is an essential function of the job of a Certified
Mechanic at Respondent’s Kent facility. Because the plant runs a 7
day, 24 hour operation and Certified Mechanics are responsible for
making sure the production lines and equipment are operating,
overtime is an essential function of the job of a Certified Mechanic.
45. Although the job description does not list overtime as
an essential function of the job of a Certified Mechanic at
Respondent’s Kent facility, Complainant admitted he was aware
employees at the facility were required to work overtime.
46. On the other hand, to read the CBA in the manner
Respondent suggested would render the language regarding
overtime calculation and medical restrictions under Article 12
meaningless.

26
47. The CBA allows employees who are on medical
restrictions to avoid the accounting consequences of not having
their overtime hours rolled back associated with the failure to
work forced overtime. (Kunich Tr. 30-33, Comm. Ex. 43, p. 10)
48. The last step of the analysis is whether Complainant
can perform the essential functions of the job of Certified Mechanic
with a reasonable accommodation.
49. Complainant continued to work with his restriction when
the CBA came into effect in June of 2002 until April of 2004.
50. Karen Darwin has worked for Respondent in several
different positions since 2000:
Mr. Greenburg: What did you do at Land O’Lakes
the two years, three years prior, ’00, ’01 and ’02? What
did you do for the company in the three years prior?
Ms. Darwin: I started out I was a what they call a
strategic operations director on the operations team that
mainly looks at operational efficiencies for different
businesses. I was in the retail business and I did that
for about nine months. After that I was the director of
food safety and quality systems for about another nine
months or so and my third assignment with Land
O’Lakes was as the plant manager at the Kent facility.
(Tr. 519-520)

27
51. In regards to whether overtime was an issue at the Kent
plant when she was the plant manager at the Kent facility:
Mr. Greenburg: Well was there a mandatory over-
time requirement?
Ms. Darwin: Yes as business needs supported that,
yes.
Mr. Greenburg: Was it part of the collective
bargaining agreement?
Ms. Darwin: Yes.
Mr. Greenburg: Was there an overtime issue at this
plant?
Ms. Darwin: What do you – was there an –
Mr. Greenburg: Was there a problem with overtime
at the plant?
Ms. Darwin: No. It was a necessary business process
to run the facility.
Mr. Greenburg: Was there a problem staffing or
having enough workers to do the overtime that was
required?
Ms. Darwin: I would say not for the most part, no.
Mr. Greenburg: Um, do you remember whose idea it
was to revise this transitional work policy?
Ms. Darwin: I don’t remember a specific person, I
think there was more of a business need to do that.
Mr. Greenburg: What was the business need?

28
Ms. Darwin: The business need was that we needed to
make sure that obviously that there was adequate
staffing for the plant and we had to staff the facility and
we needed a way to make sure that work restrictions
were dealt with in a fair manner and that had a program
to deal with that. Have some time limit to the amount of
time that could be associated with a work restriction.
(Tr. 523-525)
52. A part of Darwin’s professional expertise was operational
efficiencies. When she was asked if overtime was a problem at the
plant she responded in the negative.
53. The regulations implementing the ADA define essential
functions as “those functions that the individual who holds the
position must be able to perform unaided or with the assistance of a
reasonable accommodation.” 29 C.F.R. 1630.
54. Usually, an employer does not have to accommodate a
disabled employee if the accommodation would violate a CBA.
In other words, a proposed accommodation is unreasonable
if it conflicts with a bona fide seniority system established under
a CBA. Willis v. Pacific Mountain Assoc., 8 AD Cases 1632
(9th Cir. 1998); Marcum v. Consol. Freightways, 9 AD Cases 1484
(N.D. Ohio 1999).

29
55. The accommodation asked for by Complainant when he
was working the second shift was to not work overtime four hours
after the shift. Complainant could work overtime four hours before
the shift.
56. The CBA does not penalize employees with medical
restrictions who do not work forced overtime hours.
57. Complainant’s medical restriction prohibited him from
working four hours after his shift.
58. Although Respondent keeps records of the amount of
overtime worked by employees, it does not keep records regarding
how much of the overtime, if any, was forced overtime.
59. Respondent offered no credible evidence that the
efficiency of the Kent facility was based on the need for every
Certified Mechanic to work four hours before and four hours after
the shift.
60. As with many of the multiple issues often in dispute in
disability cases, an intensive inquiry and analysis is required and
more often than not the “devil is in the details”.

30
61. The question of what constitutes reasonable accom-
modation requires a “fact-specific, case-by-case” analysis. Eckles
v. Consolidated Rail, 4 AD Cases 1134, 1141 (S.D. Ind. 1995)
(legislative citation omitted).
62. The Commission has the initial burden of proposing
a reasonable accommodation and proving Complainant is capable
of performing the essential functions of the job with the proposed
accommodation. Monette v. Electronic Data Systems Corp., 90 F.3d
1173 (6th Cir. 1996).
[I]f the employer claims that a proposed accommodation
will impose an undue hardship, the employer must prove
that fact. If the employer claims instead that the disabled
employee would be unqualified to perform the essential
functions of the job even with the proposed accom-
modation, the disabled individual must prove that he or
she would in fact be qualified for the job if the employer
were to adopt the proposed accommodation.
Monette, supra at 1184.
63. Generally, a request for an accommodation from a
disabled employee triggers the need for the employee and
employer to interact with the common goal of determining the
appropriate reasonable accommodation. See Beck v. University of
Wisc. Bd. of Regents, 5 AD Cases 304 (7th Cir. 1996) (employer has
some responsibility in determining necessary accommodation of

31
disabled employee; however, EEOC regulations envision an
interactive process that requires participation by both parties).
64. There was no credible evidence presented by Respondent
that requiring every Certified Mechanic to work four hours of
overtime before and after shift violated a long-standing practice.
Before the implementation of the Transitional Work Program,
Respondent accommodated Complainant’s medical restriction with
no problem.
65. Respondent can accommodate the essential job
requirement of working overtime by not requiring Complainant to
work four hours of overtime after his shift where the working of
overtime would fall within Complainant’s medical restrictions.
INTERACTIVE PROCESS
66. The Commission argues Respondent failed to engage in
an interactive process with Complainant to determine available
reasonable accommodations. 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 participation by both parties).
EEOC regulations state it “may be necessary” for the employer to
initiate “an informal, interactive process” with the disabled
employee to determine possible reasonable accommodations.

32
29 C.F.R. § 1630.2(o)(3). The steps of this process are provided in
the EEOC Interpretive Guidance:
(1) Analyze the particular job involved and determine
its purpose and essential functions;
(2) Consult with the individual with a disability to
ascertain the precise job-related limitations
imposed by the individual’s disability and how
those limitations could be overcome with a reason-
able accommodation;
(3) In consultation with the individual to be accom-
modated, identify potential accommodations and
assess the effectiveness each would have in
enabling the person to perform the essential
functions of the position; and
(4) Consider the preference of the individual to be
accommodated and select and implement the
accommodation that is most appropriate for both
the employee and the employer.
EEOC Interpretive Guidance, at §1630.9, (“Process of
Determining the Appropriate Reasonable Accom-
modation”).
67. The language of 29 C.F.R. § 1630.2(O)(3) suggests this
interactive process is not necessary in all cases. As the last step
indicates, the primary goal of this process is to identify the
reasonable accommodation that is most appropriate for both the
employer and the employee. See Sieberns v. Wal-Mart Stores, 6 AD
Cases 403, 409 (N.D. Ind. 1996) (“[t]he entire purpose of the

33
interactive process is to find a reasonable accommodation if one
exists”).
68. The testimony from Denise Rice and Mark Kunick
regarding the process used by Respondent in determining whether
Respondent could reasonably accommodate Complainant’s medical
restriction was vague and not specific.
69. Respondent went from a lax policy where little or no
evaluation was performed regarding the legitimacy of work
accommodations based on medical restrictions to the opposite
extreme where no real evaluative process was used to determine
whether employees’ medical restrictions could be reasonably
accommodated.
70. Complainant had the most seniority of all employees who
bid on the two open positions for first shift Certified Mechanic;
however, he was denied both positions because he could not work
eight hours of overtime.
71. Although overtime is an essential function of the job of
Certified Mechanic, reducing the amount of overtime Complainant
was required to work is a reasonable accommodation. Respondent
engaged in discriminatory conduct when it failed to provide a
reasonable accommodation to Complainant so he could work the
third shift and first shift with his medical restriction.

34
RECOMMENDATIONS
For all of the foregoing reasons, it is recommended in
Complaint No. 9842 and Complaint No. 9961 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
employment to Complainant within ten (10) days of the
Commission’s Final Order for the position of Certified Mechanic. If
Complainant accepts Respondent’s offer of employment,
Complainant shall be paid the same wage he would have been paid
had he been employed as a Certified Mechanic in February of 2005
and continued to be so employed up to the date of Respondent’s
offer of employment; and
3. Whether Complainant accepts Respondent’s offer of
employment, Respondent shall submit to the Commission within
ten (10) days of the offer of employment a certified check payable
to Complainant for the amount he would have earned had he been
employed as a Certified Mechanic in February of 2005 and
continued to be so employed up to the date of Respondent’s offer of
employment, including any raises and benefits he would have

35
received, less interim earnings, plus interest at the maximum rate
allowed by law.6
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
June 17, 2011
6 Any ambiguity in the amount that Complainant would have earned
during this period or benefits that he would have received should be resolved
against Respondent. Likewise, any ambiguity in calculating Complainant’s
interim earnings should be resolved against Respondent.