[Cite as Mattessich v. Weathersfield Twp., 2016-Ohio-458.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
RICHARD MATTESSICH, : OPINION
Plaintiff-Appellant, :
CASE NO. 2015-T-0068
- vs - :
WEATHERSFIELD TOWNSHIP, :
Defendant-Appellee. :
Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2014 CV
00233.
Judgment: Affirmed.
John F. Myers, 960 Wye Drive, Akron, OH 44303 (For Plaintiff-Appellant).
Abraham Cantor, Johnnycake Commons, 9930 Johnnycake Ridge Road, #4-F,
Concord, OH 44060, and Cherry Lynne Poteet, Daniel Daniluk, LLC, 1129 Niles-
Cortland Road, S.E., Warren, OH 44484 (For Defendant-Appellee).
DIANE V. GRENDELL, J.
{¶1} Plaintiff-appellant, Richard Mattessich, appeals from the Judgment Entry
of the Trumbull County Court of Common Pleas, granting summary judgment in favor of
defendant-appellee, Weathersfield Township, and dismissing Mattessich’s Complaint.
The issue to be decided by this court is whether summary judgment as to a claim of
disability discrimination can be granted when the plaintiff fails to present evidence that
the basis provided for his firing was false. For the following reasons, we affirm the
decision of the lower court.
{¶2} On February 3, 2014, Mattessich filed a Complaint in the Trumbull County
Court of Common Pleas against Weathersfield Township.1 It alleged that Mattessich
was unlawfully terminated by Weathersfield Township following seventeen years of
service as a police officer. He asserted that he was disabled, was required to perform
multiple fitness for duty examinations prior to returning to work from leave, and that,
when he did return, he had to complete a “temporary schedule for evaluation” which
was based on a perceived risk he presented due to his disabling condition.
{¶3} Count One raised a violation of the Ohio Civil Rights Act, based upon the
contention that Mattessich was fired due to discrimination because of his disability or a
perceived disability. Count Two was for Defamation, Count Three raised a claim of
“‘False Light’ Invasion of Privacy” for releasing private medical information, and Count
Four was for Intentional Infliction of Emotional Distress.
{¶4} Weathersfield Township filed its Answer on March 5, 2014.
{¶5} Weathersfield Township filed a Motion for Summary Judgment on
February 13, 2015. Regarding the disability claim, it argued that no discrimination
occurred, as there was no evidence that Mattessich was fired due to a disability but,
instead, the evidence showed that he was terminated based on his deception. In
opposition, Mattessich argued that he established a prima facie case that Weathersfield
Township regarded him as disabled, given its knowledge of his possible psychological
problems.
{¶6} The following facts regarding the events leading to Mattessich’s
termination were adduced through testimony presented at a December 20, 2011
1. This was a refiling of a prior case, Case No. 2012 CV 1049.
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hearing before the Weathersfield Township Board of Trustees and depositions taken in
the present matter and filed with the summary judgment motions:
{¶7} Mattessich was an officer with the Weathersfield Township Police
Department since 1994. On the night shift beginning December 12, 2010, an incident
allegedly occurred between Mattessich and another officer, George Antonell. According
to Captain Michael Naples, Mattessich, the officer in charge that night, informed him
that Antonell had been late to work, failed to attend roll call, and had an “attitude”
regarding the issue.
{¶8} Both Antonell and Mattessich interviewed for a sergeant’s position the
following day. According to Captain Naples and Chief Joseph Consiglio, when
confronted with these allegations, Antonell denied them, stating that he had not been
late to work and did not see Mattessich that night. Officer Antonell testified that he
arrived on time, at approximately 11:00 p.m. on December 12, waited 10-15 minutes for
“roll call”, which did not occur, and left when Mattessich had not yet arrived. At the
hearing, Antonell testified that he did not see, speak to, or have a confrontation with
Mattessich on that evening, nor was he insubordinate. Antonell stated in his deposition
that he was sure they had some contact during the shift, although he did not elaborate
on this point. Mattessich testified that he did interact with Antonell on that shift, when
they briefly discussed a traffic matter.
{¶9} Regarding this incident, Mattessich testified that he had arrived at the
station around 11:30 p.m., after Antonell had left, because of several duties he had to
complete. According to Mattessich, he did not tell Captain Naples that Antonell was late
but only that he had not been there for roll call. On a prior date, Mattessich had told
Chief Consiglio that Antonell was sometimes late and that, when Mattessich discussed
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this matter with Antonell directly, he stated he did not have a policy and procedure
manual. Mattessich believed there had merely been a misunderstanding as to his
comments.
{¶10} Captain Naples investigated the incident by viewing records and video,
which showed Antonell arriving in the squad room at 11:02 p.m. and Mattessich at
approximately 11:32 p.m. There was no video of any interaction between Antonell and
Mattessich.
{¶11} Captain Naples prepared a memorandum to Chief Consiglio describing his
findings and conclusion that Mattessich had been untruthful about the incident.
According to the memorandum, Mattessich denied speaking with Antonell but also
described confronting him. Captain Naples clarified that Mattessich had told him he
talked to Antonell after Antonell arrived late for roll call and did not speak to him the rest
of the shift.
{¶12} Chief Consiglio noted that he had received a phone call on December 13,
2010, from Mattessich, who was upset that Antonell, a probationary officer, was being
permitted to interview for sergeant. When the matter with Antonell was discussed with
Mattessich, he stated that there was a misunderstanding and agreed that “Officer
Antonell got in his head about [the] promotion.” Based on the foregoing facts, both
Captain Naples and Chief Consiglio believed the conversation where Antonell
expressed an attitude toward Mattessich never occurred and Mattessich had lied.
{¶13} Due to this incident, Chief Consiglio considered recommending the
termination of Mattessich but chose not to based on his years of service and work
performance. Chief Consiglio wanted to give him a second chance.
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{¶14} As a result, Mattessich was suspended for 30 days. He filed a grievance
contesting the suspension, and the matter was resolved by a written agreement.
Mattessich testified that he was told three officers were going to make statements
against him, which led to him entering into the agreement.
{¶15} The agreement stated that there was no admission of guilt by either party
and that the disciplinary suspension would terminate on February 24, 2011. It also
included a clause requiring Mattessich to have a psychological evaluation. In the
evaluation, Dr. Michael Heilman determined that Mattessich lacked the “cognitive ability
and emotional stability” to function as a police officer at that time. Mattessich
subsequently went on sick leave until September 2011. Several individuals, including
Chief Consiglio, testified that there was no requirement that Mattessich complete
counseling while on leave, although Dr. Heilman recommended it.
{¶16} Regarding his mental health status, in 2011, Mattessich saw Dr. William
Diorio for depression. His general physician, Dr. Cayovec, prescribed him medication
for depression. Mattessich believed the depression affected his job at the time it began,
around December 2010.
{¶17} On September 6, 2011, Dr. Heilman found Mattessich fit to return to duty.
Following testing with other doctors required by the department, Mattessich returned to
duty on September 19, 2011.
{¶18} According to Mattessich, when he returned to work in September 2011, he
was fine. Upon beginning work again, some of his duties had been changed or
removed and his police car had been replaced. He also believed he was scheduled to
“odd” shifts that were not like other officers’.
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{¶19} Captain Naples testified that he was not told why Mattessich was on
medical leave. When Mattessich returned to duty, Captain Naples had concerns that he
was “a little hesitant, timid, or lacked some confidence.” Chief Consiglio was worried
about how Mattessich would adjust to coming back to work. Officer Kris Hodge
believed that Mattessich seemed timid and lacked confidence. When Hodge went on a
call with Mattessich, he was “dazed” and “wasn’t with it.”
{¶20} These circumstances led to a meeting on September 27, 2011, with Chief
Consiglio, Captain Naples, Officer Hodge, the director of the Weathersfield Police
Department’s branch of Ohio Patrolmen’s Benevolent Association (OPBA) and
Mattessich’s “representative,” Cindy Smith, a secretary/clerk for the police department,
and Mattessich. According to Hodge, Chief Consiglio explained that he had concerns
about Mattessich’s behavior on certain calls, since he was “nervous, [and] afraid to * * *
get involved,” as well as “his overall safety for him and the other officers.” Hodge,
Captain Naples, and Chief Consiglio all presented similar testimony that, at that
meeting, when asked whether he had gone to counseling while off of work, Mattessich
stated that he did not.
{¶21} Chief Consiglio testified that, following the meeting where counseling was
discussed, Mattessich went back to work, performed his responsibilities, and Chief
Consiglio “felt confident in him having the ability to do the job.” Mattessich had returned
to his midnight shift because Chief Consiglio “felt he was ready to go.”
{¶22} Another meeting was held on October 31, 2011, at which an e-mail was
discussed, sent from Jeff Perry, Mattessich’s OPBA Business Agent, to Chief Consiglio,
in which he stated that Mattessich provided him with proof that he went to counseling
while he was on sick leave. Chief Consiglio and Captain Naples explained that
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Mattessich admitted to lying in the prior meeting about not attending counseling, stating
when questioned, “I lied to you.”
{¶23} According to the Weathersfield Township Administrator David Pugh’s
deposition testimony, a disciplinary meeting was held on November 8, 2011, with Chief
Consiglio and others in attendance, after which it was recommended that Mattessich be
terminated. Minutes of this meeting were taken, which noted that Mattessich had
depression and had been on sick leave. The notes stated that the Chief had explained
that Mattessich had been “shaking on calls,” stepped back, failed to take the lead, and
his work had been substandard. He also noted that police officers who had lied were
dismissed in the past. Fire Chief Randy Pugh mentioned that Mattessich could resign
and file for disability and that he “should have filed for disability.” Throughout the
meeting minutes, concerns were expressed about the inability to trust an officer who is
dishonest.
{¶24} On November 21, 2011, a “pre-termination” meeting was held with Chief
Consiglio, Captain Naples, Hodge, Perry, Mattessich, Antonell, and Pugh. Pugh
testified that, at that meeting, Mattessich admitted lying to Chief Consiglio about the
counseling issue. Antonell confirmed this admission occurred. After that meeting a
recommendation was made to the Board of Trustees to terminate his employment.
{¶25} Chief Consiglio recommended Mattessich’s termination based on him “not
telling the truth a couple of times,” since he was concerned about Mattessich’s honesty
and integrity in performing his duties. He would not tolerate having a dishonest officer
on the police force. Captain Naples also testified that trust is important with police
officers, given their interactions with the public, the court system, and others within the
department. Prior to these incidents, Mattessich’s performance had been “satisfactory.”
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While there were concerns with his performance when he returned, Chief Consiglio
wanted to give Mattessich an opportunity to prove that he was capable of doing the job,
but when Mattessich lied, he decided termination was necessary.
{¶26} When asked at the Board of Trustees hearing if he admitted to lying at the
November meeting, Mattessich testified “I’d say yes.” He later stated, however, that he
did not lie and that he said “it was none of your business.” He also explained that he did
not lie “completely,” since he was referring to the psychologist that the police
department had sent him to, Dr. Heilman, whom he did not see during the period in
question. He did go to counseling with his wife, but he did not believe that he needed to
divulge that information since it was separate from the issue of whether he was seeing a
counselor for work purposes. Mattessich testified that, at the meeting where counseling
was discussed, he stated that he was being counseled by his personal physician, Dr.
Cayovec.
{¶27} Jeffrey Perry, a business agent for the OPBA, represented Mattessich
during the disciplinary proceedings in this matter. During the course of the
investigation/proceedings against Mattessich, he agreed to take a lie detector test.
Pursuant to Perry’s memory of the results, the polygraph examiner concluded that there
were indications of Mattessich being deceitful with some of his answers. Mattessich
denied that this was the case.
{¶28} On December 20, 2011, a hearing was held before the Weathersfield
Township Board of Trustees, at which testimony was presented pursuant to the
grievance procedure in the collective bargaining agreement and pursuant to R.C.
505.492. The hearing related to the allegations and testimony outlined above. At the
beginning of the hearing, Mattessich requested that it be public. Following the hearing,
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the Board of Trustees voted to remove Mattessich and found that he committed
misfeasance, malfeasance, misconduct in office, nonfeasance, and failure to obey
orders.
{¶29} On June 1, 2015, the trial court granted Weathersfield Township’s Motion
for Summary Judgment as to all claims. In pertinent part, the court found that evidence
showing Mattessich had a disability was “scant.” It held that Mattessich “cannot show
that the reason given for his termination from employment—his dishonesty—was false.
Nor can [he] show that the dishonesty was not the actual motivation for the termination
or that his dishonesty was insufficient to warrant the termination.” He was unable to
establish pretext, especially given that the testimony showed that honesty is “a crucial
attribute of a police officer.”
{¶30} Mattessich timely appeals and raises the following assignments of error:
{¶31} “[1.] The trial court erred in finding that Appellant failed to demonstrate a
prima facie case that he was regarded as disabled by Appellee.
{¶32} “[2.] The trial court erred in finding that Appellant had not demonstrated
by a preponderance of the evidence that Appellee’s stated reasons for termination were
pretextual.”
{¶33} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the
evidence shows “that there is no genuine issue as to any material fact” to be litigated,
(2) “the moving party is entitled to judgment as a matter of law,” and (3) “it appears from
the evidence * * * that reasonable minds can come to but one conclusion and that
conclusion is adverse to the party against whom the motion for summary judgment is
made, that party being entitled to have the evidence * * * construed most strongly in the
party’s favor.”
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{¶34} A trial court’s decision to grant summary judgment is reviewed by an
appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77
Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “A de novo review requires the appellate
court to conduct an independent review of the evidence before the trial court without
deference to the trial court’s decision.” (Citation omitted.) Peer v. Sayers, 11th Dist.
Trumbull No. 2011-T-0014, 2011-Ohio-5439, ¶ 27.
{¶35} In the present matter, Mattessich appeals the grant of summary judgment
in favor of Weathersfield Township only as it relates to the disability discrimination claim
(Count One), based on his depression.
{¶36} Pursuant to R.C. 4112.02(A), it is an “unlawful discriminatory practice” for
an employer “because of the * * * disability * * * of any person, to discharge without just
cause * * * or otherwise to discriminate against that person with respect to hire, tenure,
terms, conditions, or privileges of employment.” The term “disability” is defined 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.” R.C.
4112.01(A)(13). A person is protected under the disability discrimination laws, even if
he or she is not disabled, if the employer regards the person as being disabled.
Columbus Civ. Serv. Comm. v. McGlone, 82 Ohio St.3d 569, 572, 697 N.E.2d 204
(1998).
{¶37} Since Ohio’s disability discrimination statute is similar to the federal
Americans with Disabilities Act, Ohio courts have considered federal cases for guidance
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in interpreting the Ohio statute. Id. at 573; Barreca v. Travco Behavioral Health, Inc.,
11th Dist. Trumbull No. 2013-T-0116, 2014-Ohio-3280, ¶ 19.
{¶38} “To establish a prima facie case of disability discrimination, the person
seeking relief must demonstrate (1) that he or she was disabled, (2) that an adverse
employment action was taken by an employer, at least in part, because the individual
was disabled, and (3) that the person, though disabled, can safely and substantially
perform the essential function of the job in question.” Hammercheck v. Coldwell Banker
First Place Real Estate, 11th Dist. Trumbull No. 2007-T-0024, 2007-Ohio-7127, ¶ 22;
Hazlett v. Martin Chevrolet, Inc., 25 Ohio St.3d 279, 281, 496 N.E.2d 478 (1986).
{¶39} Once the plaintiff establishes a prima facie case of disability
discrimination, the burden shifts to the employer to set forth some “legitimate,
nondiscriminatory reason” for the employee’s discharge. Plumbers & Steamfitters Joint
Apprenticeship Commt. v. Ohio Civ. Rights. Comm., 66 Ohio St.2d 192, 197, 421
N.E.2d 128 (1981). “Legitimate, nondiscriminatory reasons for the action taken by the
employer may include, but are not limited to, insubordination on the part of the
employee claiming discrimination, or the inability of the employee or prospective
employee to safely and substantially perform, with reasonable accommodations, the
essential functions of the job in question.” Hood v. Diamond Prods., 74 Ohio St.3d 298,
302, 658 N.E.2d 738 (1996). “[I]f the employer establishes a nondiscriminatory reason
for the action taken, then the employee or prospective employee must demonstrate that
the employer[’]s stated reason was a pretext for impermissible discrimination.” Id.
{¶40} To establish pretext for a claim under the Civil Rights Act, “a plaintiff must
demonstrate that the proffered reason (1) has no basis in fact, (2) did not actually
motivate the employer’s challenged conduct, or (3) was insufficient to warrant the
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challenged conduct.” (Citation omitted.) Cavins v. S&B Health Care, Inc., 2nd Dist.
Montgomery No. 26615, 2015-Ohio-4119, ¶ 92; Dews v. A.B. Dick Co., 231 F.3d 1016,
1021 (6th Cir.2000). “[T]he plaintiff must produce sufficient evidence from which the
trier of fact could reasonably reject the employer’s explanation and infer that the
employer intentionally discriminated against him.” Knepper v. Ohio State Univ., 10th
Dist. Franklin No. 10AP-1155, 2011-Ohio-6054, ¶ 12; Johnson v. Kroger Co., 319 F.3d
858, 866 (6th Cir.2003). “A reason cannot be proved to be a pretext for discrimination
unless it is shown both that the reason was false, and that discrimination was the real
reason.” Knepper at ¶ 12; St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct.
2742, 125 L.Ed.2d 407 (1993).
{¶41} We will first address Mattessich’s second assignment of error, as it is
dispositive of the appeal. In his second assignment of error, Mattessich argues that he
demonstrated that the firing was pretextual adequately to survive summary judgment.
{¶42} In response to Mattessich’s claim of discrimination, Weathersfield
Township provided testimony from multiple individuals that Mattessich was fired for lying
to his superiors, including the Police Chief and the Captain. Under these
circumstances, it was then incumbent upon Mattessich to demonstrate that this reason
was a pretext for the actual basis for his discriminatory firing, a perceived disability
related to his depression.
{¶43} While there was testimony presented regarding Mattessich’s history and
issues related to his depression, this was generally given to provide background into the
basis of the lie he told related to the counseling, not as a basis for his firing. Chief
Consiglio stated that he wanted to work with Mattessich, who had demonstrated he was
capable of returning to work. While there was a meeting shortly after Mattessich came
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back from leave to discuss his performance, Chief Consiglio subsequently returned him
to his midnight shift and believed all issues were resolved. This occurred prior to the
discovery that Mattessich had lied about the counseling issue. Mattessich points to no
testimony or evidence that contradicted the explanation that the firing was based solely
on the incident of lying, especially when considering the prior incident of lying for which
he had been suspended.
{¶44} It is also not clear that the statements about Mattessich’s performance
when he returned from leave, i.e., that he was hesitant or lacked confidence, had any
relationship with the asserted disability of depression. It is not unreasonable that, after
an extended leave, the police department was concerned about ensuring Mattessich
was able to perform his job properly. There is again no evidence that his job
performance or disability was the reason he was terminated.
{¶45} As noted above, in order to advance a valid claim that the firing was
pretextual, Mattessich was required to demonstrate that the reason for his firing, the lie
or lies he told, was false. He fails to do so when he can point to no evidence
contradicting the testimony of various officers that he was fired solely for this reason.
See Noday v. Mahoning Cty. Sheriff’s Dept., 7th Dist. Mahoning No. 03-MA-203, 2005-
Ohio-4682, ¶ 47 (in a discrimination case under R.C. 4112.02(A), where sexist
statements were made by the sheriff toward the employee, it did not rebut the showing
of why the employer’s discipline was handled in the manner that it was, which was
unrelated to a discriminatory purpose). More importantly, Mattessich himself admitted
in his own testimony before the Board of Trustees that he had lied, and other witnesses
testified that they had heard him admitting to lying during a past meeting. While he now
argues that he had disclosed counseling from his primary care physician when he was
13
questioned about counseling, there is repeated testimony from other individuals and
Mattessich himself that he did lie. Mattessich essentially asks us to find an issue of
material fact exists when he has already admitted, under oath, that he lied.
{¶46} Further, multiple witnesses, including Chief Consiglio, provided testimony
establishing why lying would provide grounds for termination. They explained the
consequences of being untruthful, including a lack of trust from the community and
possible issues with officer testimony in a defendant’s trial. This further bolstered the
truthfulness of the basis for Mattessich’s termination.
{¶47} The mere fact that individuals within the police department knew of
Mattessich’s problems with depression does not mean that pretext exists, since it does
not establish that Mattessich was fired because of that disability or that the reason for
firing him was false. Ceglia v. Youngstown State Univ., 2015-Ohio-2125, 38 N.E.3d
1222, ¶ 51 (10th Dist.) (the fact that an employee’s health was discussed on several
occasions was not enough to establish that he was fired on that basis). A conclusion
that Mattessich was fired based on his disability would require making an assumption
that is not supported by the evidence in the record. Morrissette v. DFS Servs., LLC,
10th Dist. Franklin No. 12AP-611, 2013-Ohio-4336, ¶ 41 (summary judgment is proper
where a plaintiff failed to present evidence of pretext beyond allegations and conclusory
statements, given the lack of a link between allegedly inappropriate questions asked
and evidence that the employee was fired discriminatorily).
{¶48} Further, the “honest belief” rule applied in federal courts has also been
applied in Ohio. An employer’s “honest belief” precludes a finding of pretext “if the
employer honestly, but mistakenly, believes in the proffered reason given for the * * *
decision at issue * * *.” (Citations omitted.) Ceglia at ¶ 45; Smith v. Chrysler Corp., 155
14
F.3d 799, 806 (6th Cir.1998). “The key inquiry in assessing whether an employer holds
such an honest belief is ‘whether the employer made a reasonably informed and
considered decision before taking’ the complained-of action.” Michael v. Caterpillar Fin.
Servs. Corp., 496 F.3d 584, 598-99 (6th Cir.2007), citing Smith at 807.
{¶49} Even if the Board of Trustees was mistaken in believing that lying was the
actual cause for the recommendation to fire Mattessich, all of the evidence presented to
the Board established this was the basis. It held a hearing, allowed Mattessich to
present his case, considered the results of the police department investigation of the
lying incidents, and reviewed related exhibits. It made a reasonably informed decision
in terminating Mattessich’s employment. King v. Jewish Home, 178 Ohio App.3d
387, 2008-Ohio-4724, 898 N.E.2d 56, ¶ 12 (1st Dist.) (“The relevant inquiry is whether,
after construing the evidence most strongly in [the nonmoving party’s] favor, reasonable
minds could have only concluded that” the employer believed that the employee lied.
When an investigation and evidence before the employer showed that the lie occurred
and no evidence disproved this, there was not sufficient evidence to create a question
of fact regarding the employer’s “honest belief.”).
{¶50} While Mattessich notes that “a perception that [he] was disabled
permeated the Disciplinary Committee meeting which led to the decision to terminate
him,” Mattessich was terminated by the Board of Trustees following its hearing and
consideration of the matter. While there were apparently statements at that Disciplinary
Committee meeting about whether he should be on disability retirement, this evidence
was not presented to the Board of Trustees in its hearing through an exhibit or
otherwise. Regardless, the statements in the committee meeting, that Mattessich could
or should have filed for disability, made by the Fire Chief, and Chief Consiglio’s
15
response that “we opened the door for that,” are not indicative of any belief that
Mattessich should be fired for his depression. As noted above, the main discussion at
that meeting related to the untrustworthiness of Mattessich and the danger of having
untrustworthy officers on the police force.
{¶51} Based on the foregoing, we find that Mattessich failed to demonstrate
pretext sufficient to survive summary judgment.
{¶52} The second assignment of error is without merit.
{¶53} In his first assignment of error, Mattessich argues that the trial court erred
in finding that he failed to demonstrate a prima facie case that he was regarded as
disabled by Weathersfield Township. Since Mattessich failed to present evidence to
disprove Weathersfield Township’s legitimate basis for firing him, whether he was
disabled or perceived to be disabled is irrelevant and this assignment of error is moot.
{¶54} The first assignment of error is without merit.
{¶55} For the foregoing reasons, the Judgment Entry of the Trumbull County
Court of Common Pleas, granting summary judgment in favor of Weathersfield
Township and dismissing Mattessich’s Complaint, is affirmed. Costs to be taxed
against appellant.
CYNTHIA WESTCOTT RICE, P.J., concurs,
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
______________________________________
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
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{¶56} The majority finds the trial court properly granted summary judgment in
favor of Weathersfield Township. For the reasons that follow, I disagree.
{¶57} “Summary judgment is a procedural tool that terminates litigation and thus
should be entered with circumspection. Davis v. Loopco Industries, Inc., 66 Ohio St.3d
64, 66 * * * (1993). Summary judgment is proper where (1) there is no genuine issue of
material fact remaining to be litigated; (2) the movant is entitled to judgment as a matter
of law; and (3) it appears from the evidence that reasonable minds can come to but one
conclusion, and, viewing the evidence in the non-moving party’s favor, that conclusion
favors the movant. See, e.g., Civ.R. 56(C).
{¶58} “When considering a motion for summary judgment, the trial court may not
weigh the evidence or select among reasonable inferences. Dupler v. Mansfield
Journal Co., 64 Ohio St.2d 116, 121 * * * (1980). Rather, all doubts and questions must
be resolved in the non-moving party’s favor. Murphy v. Reynoldsburg, 65 Ohio St.3d
356, 359 * * * (1992). Hence, a trial court is required to overrule a motion for summary
judgment where conflicting evidence exists and alternative reasonable inferences can
be drawn. Pierson v. Norfork Southern Corp., 11th Dist. No. 2002-A-0061, 2003-Ohio-
6682, ¶36. In short, the central issue on summary judgment is, ‘whether the evidence
presents sufficient disagreement to require submission to a jury or whether it is so one-
sided that one party must prevail as a matter of law.’ Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-252 * * * (1986). On appeal, we review a trial court’s entry of
summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 * * *
(1996).” Meloy v. Circle K Store, 11th Dist. Portage No. 2012-P-0158, 2013-Ohio-2837,
¶5-6. (Parallel citations omitted.)
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{¶59} In this appeal, appellant presents two assignments of error. However, the
majority, in affirming the trial court’s judgment, only addresses the second assignment
of error indicating it is dispositive of the appeal. As I believe this matter should be
reversed and remanded, I will address both assignments.
{¶60} In his first assignment of error, appellant argues the trial court erred in
finding that he failed to demonstrate a prima facie case that he was regarded as
disabled by his employer, Weathersfield Township.
{¶61} To state a prima facie claim of employment discrimination on the basis of
disability/handicap under R.C. 4112.02(A), the party seeking relief must establish: “‘(* *
*) (1) That he or she was handicapped; (2) that an adverse employment action was
taken by an employer, at least in part, because the individual was handicapped, and (3)
that the person, though handicapped, can safely and substantially perform the essential
functions of the job in question. (***)” House v. Kirtland Capital Partners, 158 Ohio
App.3d 68, 75, 2004-Ohio-3688 (11th Dist.2004), quoting Columbus Civ. Serv. Comm.
v. McGlone, 82 Ohio St.3d 569, 571 (1998), citing Hazlett v. Martin Chevrolet, Inc., 25
Ohio St.3d 279, 281 (1986).
{¶62} Ohio Adm. Code 4112-5-02(H) states: “‘Disabled person’ includes any
person who presently has a disability as defined by division (A)(13) of section 4112.01
of the Revised Code or any person who has had a disability as defined by division
(A)(13) of section 4112.01 of the Revised Code, who no longer has any functional
limitation, but who is treated by a respondent as having such a disability, or any person
who is regarded as disabled by a respondent.”
{¶63} Based on the record before this court, I disagree with the trial court’s
opinion that the evidence that appellant actually suffers from a disability is “scant.”
18
Appellant need not show that he is actually disabled but rather that Weathersfield
Township regarded him as disabled. See Ohio Adm. Code 4112-5-02(H). There is
competent and credible evidence that Weathersfield Township did regard appellant as
disabled and not able to perform his job duties after he returned from medical leave.
{¶64} Specifically, appellant was off on medical leave due to depression
following his 30-day suspension. The record demonstrates that Weathersfield
Township authorities saw and/or knew of the psychological report which determined
appellant’s lack of cognitive ability and emotional stability to function effectively in his
capacity as a police officer. In addition, when appellant returned to work, the Police
Chief, the Captain, and appellant’s fellow officers had concerns about his ability to
perform his duties, due to his emotional instability, and expressed their concerns. Also,
the Police Chief felt appellant needed ongoing counseling.
{¶65} Based on the foregoing, there was sufficient evidence to establish a prima
facie case that Weathersfield Township regarded appellant as disabled.
{¶66} This writer finds merit in appellant’s first assignment of error.
{¶67} In his second assignment of error, appellant contends the trial court erred
in finding that he had not demonstrated by a preponderance of the evidence that
Weathersfield Township’s stated reasons for termination were pretextual.
{¶68} Once a prima facie case of disability discrimination is established, “[t]he
burden of proof then shifts to the employer to articulate a legitimate, nondiscriminatory
reason for the plaintiff’s discharge. * * * Once established, the burden shifts back to the
plaintiff to prove that the employer’s articulated nondiscriminatory reason for its action
was merely pretext for unlawful discrimination.” (Citations omitted.) Egli v. Congress
19
Lake Club, 5th Dist. Stark No. 2009CA00216, 2010-Ohio-2444, ¶39 (O’Toole, J., sitting
by assignment).
{¶69} Weathersfield Township terminated appellant for two alleged incidents of
dishonesty. However, appellant has denied he was dishonest. In addition, the record
reveals genuine issues of fact regarding the dishonesty allegations. Appellant has
established that he informed Weathersfield Township he sought counseling from his
primary care physician, Dr. Cayavec. Appellant did not seek counseling from Dr.
Heilman because Dr. Heilman had indicated he would report appellant’s statements
back to Weathersfield Township. The Police Chief did not accept appellant’s
explanation. Appellant was forced to give in with the Chief’s demands. This writer
stresses that this does not amount to dishonesty on behalf of appellant.
{¶70} Further, with respect to the Antonell incident, there was no admission of
liability and no formal finding that appellant lied to the Police Chief and the Captain.
Instead, appellant disputes it. Nevertheless, the trial court disregarded and
impermissibly weighed these material facts.
{¶71} Appellant has provided evidence which could lead a reasonable trier of
fact to determine that Weathersfield Township’s stated reason for terminating him was
in fact false. The trial court erred in finding that appellant could not establish pretext as
there are genuine issues of fact as to whether the reason for his termination was
credible or worthy of belief. The facts presented do not support that Weathersfield
Township held an honest belief that the reason for appellant’s termination was a lack of
veracity. Rather, a rational trier of fact could conclude that Weathersfield Township’s
true motivation for terminating appellant was Weathersfield Township’s regarding him
as disabled.
20
{¶72} This writer also finds merit in appellant’s second assignment of error.
{¶73} Accordingly, because I believe the trial court erred in granting summary
judgment in favor of Weathersfield Township, I respectfully dissent.
21
Mattessich v. Weathersfield Twp.
Combined Opinion