Asplundh Tree Expert v. Civil Rights Comm.

I cannot concur in the majority's reversal of the court of common pleas and must respectfully dissent.

The record reveals that when Payton returned to work following his initial injury and each subsequent surgery, he was under medical restrictions which prevented him from climbing trees or lifting any weight in excess of thirty-five pounds. Consequently, Payton, by his own admission, could only perform approximately sixty percent of his job duties. The remaining forty percent of his duties were handled by Payton's foreman or the other members of Payton's crew.

Under R.C. 4112.06(E), the findings of the Ohio Civil Rights Commission ("commission") shall be conclusive on appeal to the common pleas court if supported by reliable, probative and substantial evidence. Columbus v. Ohio Civil Rights Comm. (1985), 23 Ohio App. 3d 178, 180, 23 OBR 421, 423-424,492 N.E.2d 482, 484-485. This determination is essentially a question of the presence or absence of a requisite quantum of evidence which, although primarily a legal question, involves consideration of the evidence and, to a limited extent, permits a substitution of judgment by the reviewing common pleas court.Id., citing Univ. of Cincinnati v. Conrad (1980), 63 Ohio St. 2d 108, 17 O.O.3d 65, 407 N.E.2d 1265.

Inasmuch as our function in the case at bar involves appellate review of the court of common pleas decision, our review is accordingly "* * * limited to determining whether the common pleas court abused its discretion in * * * [reversing] the commission's finding that unlawful discrimination occurred. * * *" Cleveland Civil Serv. Comm. v. Ohio Civil Rights Comm. (1991), 57 Ohio St. 3d 62, 65, 565 N.E.2d 579, 582. The common pleas court must give due deference to the commission's resolution of evidentiary conflicts unless there is "a legally significant reason to reverse the commission's order." Id.

Appellee does not dispute Payton's status as a "handicapped person" within the meaning of R.C. Chapter 4112. Rather, it is appellee's contention that Payton is not a "qualified handicapped person," one who can successfully and substantially perform essential functions of the job in question. Ohio Adm. Code 4112-5-02(K). The common pleas court concluded that a prima facie case of handicapped discrimination had not been established because of the absence of requisite proof that Payton was a qualified handicapped person who could safely perform the functions of the job in question.

The majority finds that a prima facie case was established since Payton could safely and substantially perform his job's essential functions. See Hazlett v. Martin Chevrolet, Inc. (1986), 25 Ohio St. 3d 279, 25 OBR 331, 496 N.E.2d 478. The majority opinion notes that Payton was not required to climb trees and that this work involved lifting objects weighing thirty-five pounds or less, that his work crew had one of the highest productivity records in their area, and that Payton was never disciplined for failing to perform his job duties throughout the relevant time period. This is cited as reliable, probative and substantial evidence in support of the commission's determination of discrimination.

I would initially note that this analysis ignores the proper standard of review. Our function is not to ascertain whether reliable, probative and substantial evidence exists, but whether the common pleas court abused its discretion by reversing the commission in the absence of a legally significant reason to do so. Cleveland Civil Serv. Comm., supra, 57 Ohio St.3d at 65,565 N.E.2d at 582. In addition, the fallacy of the majority's analysis lies in its assumption that Payton's limited duties, his crew's overall performance, and the lack of any disciplinary action against Payton constitute evidence that Payton can perform the essential functions of his job. It is equally conceivable that the only way Payton could perform the essential functions of his job was if he was helped by others. In such instance, the job is performed not by Payton, but by his co-workers.

Furthermore, the majority assumes that Payton's friendly foreman and helpful co-workers will always be available, not only to assume those essential functions of the job which Payton cannot perform himself, but to also successfully execute any necessary emergency rescue procedures.

I cannot agree that appellee's safety argument is "tenuous at best." Payton's job involved the trimming of tree limbs and brush from electrical lines and must necessarily present situations where the crew works in close proximity to uninsulated high tension electrical wires. Under such dangerous circumstances, the ability of each crew member to respond quickly and completely in the event of an emergency is of paramount importance. Anything less entails accommodation beyond the point where the safety of the handicapped person and others is seriously jeopardized. See Ohio State Univ., College of Social Behavioral Sciences v. Ohio Civil Rights Comm. (Nov. 9, 1989), Franklin App. No. 88AP-1072, unreported, 1989 WL 135298, appeal dismissed as improvidently allowed in (1991), 57 Ohio St. 3d 615,567 N.E.2d 260.

While Payton may be capable of performing some functions of his job, his inability to respond in an emergency situation in an unrestricted fashion limits his capability to safely perform the job in question. Such constitutes a legally significant reason to reverse the commission's order. Cleveland Civil Serv.Comm., supra. I would find no abuse of discretion and affirm the court of common pleas. I, therefore, dissent.