Mattessich v. Weathersfield Twp.

[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.

2
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

3
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.

4
 {¶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’.

5
 {¶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

6
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.”

7
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,

8
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.”

9
 {¶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

10
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

11
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

12
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.

16
 {¶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.)

17
 {¶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