Tino Rodriguez v. United Parcel Service

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OHIO CIVIL RIGHTS COMMISSION

IN THE MATTER OF:
TINO RODRIGUEZ
Complainant

and

UNITED PARCEL SERVICE, INC.

Respondent

Complaint #8525
(TOL) B2052798 (23381) 063098
22A-98-7814

HEARING EXAMINER'S FINDINGS OF FACT,

CONCLUSIONS OF LAW, AND RECOMMENDATION

BETTY D. MONIGOMERY
ATTORNEY GENERAL

Susan J. Reynolds, Esq.
Assistant Attomey General
Office of the Attomey General
One SeaGate, Suite 2150
Toledo, OH 43604-1551
(419) 245-2550

Counsel for the Commission

Tino Rodriguez
8714 Now Road
Celina, OH 45822

Complainant

John M. Stephen, Esq.
Chnstopher C. Russell, Esq.

Porter, Wnght, Moms & Arthur

41 South High Street

Columbus, OH 43215-6194

(614) 227-2000

Counsel for Respondent

HEARING EXAMINER'S REPORT BY:

Franklin A. Martens, Esq.

Chief Hearing Examiner

Ohio Civil Rights Commission
1111 East Broad Street, Suite 301
Columbus, OH 43205-1379
(614) 466-6684

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INTRODUCTION AND PROCEDURAL HISTORY
Tino Rodriguez (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on June 30, 1998.
The Commission investigated the charge and found probable cause that
United 	Parcel 	Service, 	Inc. 	(Respondent) 	(UPS) 	engaged 	in 	unlawful
discrimination 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 	April 	8, 	1999. 	The 	Complaint 	alleged 	that 	Respondent 	denied
Complainant reasonable accommodation for his disability.
Respondent filed a timely Answer to the Complaint, admitting certain
procedural 	allegations 	but 	denying 	that 	it 	engaged 	in 	any 	unlawful
discriminatory practices.
The parties agreed to submit Stipulations of Fact in lieu of the public
hearing. 	The Stipulations were submitted on October 22, 1999.

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The 	record 	consists 	of 	the 	previously 	described 	pleadings; 	the
Stipulations; exhibits; Complainant’s deposition, consisting of 50 pages; and
the post-hearing briefs filed by the Commission on November 15, 1999
and by Respondent on December 3, 1999. The Commission filed a reply brief
on December 6, 1999.
FINDINGS OF FACT
1. 	Complainant filed a sworn charge affidavit with the Commission on
June 30, 1998.
2. The Commission determined on February 18, 1999 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.

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4. 	Respondent is a corporation doing business in Ohio and an
employer.
5. 	Complainant has been employed by Respondent from 1982 until the
present. 	From September 1984 he has held the position of utility driver.
Complainant’s primary duties as utility driver consist of delivering packages to
individuals and businesses in Celina, Ohio and some surrounding areas.
6. 	In November 1996, Complainant injured his right knee stepping off
his truck while working. 	Complainant went to see his family physician, Dr.
Hendricks, because he was experiencing severe pain in his knee. 	Dr.
Hendricks referred Complainant to an orthopedic specialist, Dr. John Speca.
Dr. Speca performed an MRI and x-rayed Complainant’s knee. He concluded
that Complainant had a stress fracture somewhere in his right knee.
7. 	Based on Dr. Speca’s diagnosis, Complainant was off work for
approximately six months. 	He was on bed rest for one month and received
physical therapy for the remainder of the time he was off work. 	After the

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physical therapy was completed, he returned to work performing the same job
he had performed when he went on medical leave.
8. 	When Complainant returned to work, he was wearing a knee brace.
As part of his uniform, he was also wearing shorts. 	Respondent’s uniform
policy permits employees to wear shorts to work. 	However, the policy
specifically states that shorts cannot be worn if the employee has a knee
brace.
9. 	On May 27, 1998, Complainant submitted a slip from his doctor
asking Respondent to permit Complainant to wear shorts with his knee brace
while at work because wearing long pants in the hot weather tended to cause
a rash and blisters around the brace. 	Pursuant to Respondent’s uniform
policy, Respondent advised Complainant that he could not wear a knee brace
and wear shorts.
10. 	After Complainant was advised by management at UPS that he
was not permitted to wear shorts and a knee brace, he began wearing long
pants. When he began wearing long pants with his knee brace, Complainant
developed a rash and water blisters around the knee brace. 	After the rash

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developed, Complainant put ointment on the rash, and it resolved itself in a
couple of weeks. 	A callus behind the knee joint subsequently developed.
11. 	Complainant stopped wearing a knee brace in March 1999 and has
not worn a knee brace at work since.
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.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 	Complaint 	alleged 	that 	Respondent 	denied 	Complainant
reasonable accommodation because of his 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
Chapter 4112 of the Revised Code. 	The Commission must prove a violation
of 	Section 	4112.02(A) 	by 	a 	preponderance 	of 	reliable, 	probative 	and
substantial evidence. 	R.C. 4112.05(G) and 4112.06(E).
4. Since Ohio’s laws against discrimination are “as broad as, if not
broader than,” similar federal statutes, federal case law may be used to
interpret Ohio law. 	Wooten v. City of Columbus, Div. of Water, 3 AD Cases
631, 635 (Franklin Cty. 1993) (commas inserted). 	See also Columbus CSC
v. McGlone, 8 AD Cases 737, 739 (Ohio 1998) (“We can look to regulations

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and cases interpreting the federal Act for guidance in our interpretation of
Ohio law”). 	Therefore, reliable, probative, and substantial evidence means
evidence sufficient to support a finding of unlawful discrimination under the
Rehabilitation Act of 1973 or the Americans with Disabilities Act (ADA).
5. 	The order of proof in a disability discrimination case requires the
Commission to prove that Complainant is disabled within the meaning of R.C.
4112.01(A)(13). 	Hazlett v. Martin Chevrolet, Inc., 25 Ohio St.3d 279 (1986).
6. 	R.C. 4112.01(A)(13) defines “disability” as a:
. . . physical or mental impairment that substantially limits
one or more major life activities, including the functions of
caring 	for 	oneself, 	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.
7. 	Anatomical loss affecting the musculoskeletal system is a physical
impairment. 	Orthopedic 	disease 	is 	also 	a 	physical 	impairment. 	R.C.
4112.01(A)(16).

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8. 	Complainant’s condition may be an impairment. 	However, “not
every impairment qualifies as a disability . . .” 	McKay v. Toyota Mfg., 6 AD
Cases 933, 936 (6th Cir. 1996).
9. 	Whether an impairment is a disability must be determined on a case-
by-case basis. 	“The inquiry is an ‘individualized one’, not one that can be
made by looking only at the type of injury.” 	Desai v. Tire Kingdom, Inc., 6 AD
Cases 143, 146 (M.D. Fla. 1996) (citation omitted).
10. 	The key is whether the impairment substantially limits a major life
activity. 	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.
Interpretive Guidance of Title I of the Americans with Disabilities
Act, (EEOC Interpretive Guidelines), 29 C.F.R. 1630 App. Sec.
1630.2(j).

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11. 	An impairment must be substantially limiting. 	This means that it
must be significant when compared to 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.
Id.
12. 	Based 	on 	the 	foregoing 	discussion, 	as 	a 	matter 	of 	law,
Complainant was never disabled. 	His major life activities were only
substantially limited for a brief period of time when he was on bed rest. 	Once
he was off bed rest, he was not working, but he was otherwise leading a
normal life while he was receiving physical therapy. 	He was able to perform
his everyday activities.
13. 	Assuming that some of Complainant’s major life activities were
significantly restricted when compared with the abilities of the average person
while he was recuperating from his knee injury, the impairments did not last
beyond 	the 	six-month 	period 	that 	Complainant 	was 	off 	work. 	When
Complainant returned to work in May, there were no restrictions on his

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activities at work or his activities when he was not at work. 	The problems
Complainant had with his knee were not chronic. 	There was no permanent,
long-term impact.
14. 	The federal courts that have considered similar or more serious
medical conditions under more exacerbated circumstances have reached the
same conclusion. 	See, e.g. Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1025
(5th Cir. 1999) (holding that a leg deformity which caused moderate difficulty in
walking and a limp resulting in walking at a “significantly slower pace than the
average person” were not substantial limitations in the major life activity of
walking); Rogers v. International Marine Terminals, Inc., 87 F.3d 755, 759 (5th
Cir. 1999) (chronic ankle problems including gout, bone spurs, and ligament
damage that required plaintiff to miss more than one year of work were not
severe or chronic enough to qualify as a disability).
15. 	Complainant’s condition was temporary. 	The courts and the
EEOC do not consider persons with temporary impairments to be disabled.
See 	29 	C.F.R. 	Pt. 	1630, 	App. 	§ 	1630.2(j) 	(“temporary, 	non-chronic
impairments of short duration, with little or no long term or permanent impact,

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are usually not disabilities”); Huff v. UARCO, Inc., 122 F.3d 374 (7th Cir. 1997)
(temporary condition not disability under the Act); 	Sanders v. Arneson
Products, Inc., 91 F.3d 1351, 1354 (9th Cir. 1996) (plaintiff’s four-month
temporary impairment was too brief to be a “disability”); Vande Zande v.
Wisconsin 	Dept. 	of 	Administration, 	44 	F.3d 	538, 	544 	(7th Cir. 	1995)
(“intermittent episodic impairments are not disabilities”); Evans v. City of
Dallas, 861 F.2d 846, 852-53 (5th Cir. 1988) (knee injury not a disability).
16. 	The ADA was never intended to cover persons with temporary
impairments.
The ADA simply was not designed to protect the public from all
adverse effects of ill-health and misfortune. 	Rather, the ADA
was designed to assure that truly disabled, but genuinely capable,
individuals will not face discrimination in employment because of
stereotypes 	about 	the 	insurmountability 	of 	their 	handicaps.
Extending the statutory protections available under the ADA to
individuals with broken bones, sore muscles, infectious diseases,
and other ailments that temporarily limit an individual’s ability to
work would trivialize this lofty objective.
Halperin v. Abacus Technology Corp., 7 AD Cases 406 (4th Cir.
1997) (citation omitted).
17. 	My conclusions about Complainant’s impairment and its temporary
nature are based on his deposition testimony. 	He returned to work with no
restrictions six months after his injury. 	He was able to work from eight to ten

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hours per day delivering packages which required him to step on and off a
truck 70 to 100 times a day.2 Complainant also follows a vigorous exercise
regimen. 	He works out twice a week. 	He swims, jogs on a treadmill, and
lifts weights.3
18. 	Since the Commission was unable to prove that Complainant was
disabled, 	it 	is 	not 	necessary 	to 	consider 	whether 	Respondent 	had 	to
reasonable accommodate Complainant by allowing him to wear shorts while
he was wearing a knee brace.
RECOMMENDATION
For all the foregoing reasons, it is recommended that the Commission
issue a Dismissal Order in Complaint #8525.
2 Smith v. United Parcel Service, 50 F.Supp 2d 649 (S.D. Texas 1999) (package
car drivers are required to make 70 to 100 stops per day).
3 The Commission offered Complainant’s physician’s statement (a questionnaire
that the physician filled out for the Commission) as evidence that Complainant is
substantially and permanently impaired because of his knee condition. 	The physician’s
statement was contrary to Complainant’s testimony and was not credible. 	Furthermore,
the physician was equivocal. 	He stated Complainant’s condition was “potentially
permanent”. 	He stated that Complainant’s condition will “probably get worse over time”.
However, the evidence showed that Complainant’s condition was never serious, and he
made a full recovery.

FRANKLIN A. MARTENS
CHIEF HEARING EXAMINER

March 24, 2000

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