[Cite as Weitzel v. Cincinnati, 2016-Ohio-1322.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
DAVID WEITZEL, : APPEAL NO. C-150415
TRIAL NO. A-1402917
Plaintiff-Appellant, :
vs. : O P I N I O N.
CITY OF CINCINNATI, :
and :
CIVIL SERVICE COMMISSION OF :
THE CITY OF CINCINNATI,
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed from is: Affirmed
Date of Judgment Entry on Appeal: March 30, 2016
William M. Gustavson, for Plaintiff-Appellant,
Paula Boggs Muething, City Solicitor, and William C. Hicks, Sr., Assistant City
Solicitor, for Defendants-Appellees.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Judge.
{¶1} Plaintiff David Weitzel appeals from the judgment of the Hamilton
County Court of Common Pleas affirming the Cincinnati Civil Service Commission’s
(“Commission”) denial of Weitzel’s appeal regarding the grading of his 2013
Cincinnati Fire Captain’s promotional exam. Weitzel contended that the use of Z-
scoring, and the Z-scoring formula that was used, contradicted the stated terms of
the promotional exam and the Commission’s rules, and the formula was arbitrary,
capricious, and unreasonable when giving effect to seniority points. For the reasons
that follow, we affirm.
I. Background Facts and Procedure
{¶2} The city of Cincinnati announced Fire Captain promotional exam 13-
00005 in January 2013. Shortly thereafter, the city informed the candidates that the
exam would consist of four parts and specified what percentage each part would be
worth in calculating the final exam grade. The city also announced that a “cut score
of 65” on the written exam was necessary to sit for the other three parts, which were
administered on a later date.
{¶3} After all four parts were completed, the exams were graded. The city
posted an eligibility list containing the 51 applicants who passed. Weitzel ranked
13th on the eligibility list.
{¶4} At subsequent review sessions, the city provided the examinees a
written detailed explanation of the method used to determine the final exam score.
Ultimately, the final overall score was determined by adding the weighted scores of
the four parts together with the seniority points. But the raw scores had been
standardized with a statistical measurement called a Z-score as part of the formula
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OHIO FIRST DISTRICT COURT OF APPEALS
applied for weighting the individual parts before combining them. The Z-score
measured a score’s relationship to the mean, or average, in a group of scores by
considering the mean and the standard deviation, or variability in the candidate’s
performance, for each exam part. According to the city’s explanation, a Z-score of
zero indicated an average score, but a positive number indicated a score above the
mean and a negative number indicated the opposite.
{¶5} Weitzel filed an appeal to the Commission challenging the use of Z-
scoring. He claimed that the use of Z-scoring, instead of simply weighting and
combining his raw scores, contradicted the weighting terms announced for the exam,
and that the Z-scoring formula diluted the effect of his seniority points. He argued
also that the use of Z-scoring violated Civil Service Rule 10, Section 5, which required
the scores for each part to be on a “continuous” scale if they were not “discrete,” such
as “pass/fail,” which was also allowed under the rule.
{¶6} Two hearings were held before the Commission. Both the city and
Weitzel submitted evidence concerning the appropriateness of Z-scoring. The city
submitted exhibits demonstrating that it has been using Z-scores for almost two
decades on “any exam” using “multiple components that differ in type, length, and
score range,” such as Weitzel’s promotional exam. Additionally, the city submitted
two reports from S. David Kriska, Ph.D., of Restat Systems, Inc., who reviewed the
city’s scoring method. Dr. Kriska condoned the use of Z-scoring in light of the
different scales for the test components. He recognized that Z-scoring is a legitimate
statistical method to place the four tests “on a common scale based on candidate
ability,” and determined that the Z-scoring formula used by the city in grading
Weitzel’s exam was a “meaningful and proper application of the test weights.” He
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OHIO FIRST DISTRICT COURT OF APPEALS
also concluded that the scoring procedure was “reasonable” when viewed from the
perspective of adding and giving “effect” to seniority points.
{¶7} Included in Weitzel’s evidence was a report from Jeffrey Mills, Ph.D.,
an Associate Professor of Economics at the University of Cincinnati, who arrived at
the same conclusion as Dr. Kriska—that the use of Z-scoring was legitimate and
appropriate, and that the city’s formula gave proper weight to each of the four exam
parts. Weitzel maintained, however, that the examination had to be rescored
without Z-scoring to comply with the “continuous” scale rule and the announcement
concerning the weighting of the four parts.
{¶8} The Commission ruled in favor of the city and issued a written opinion
explaining the basis of its decision. Weitzel then appealed the Commission’s decision
to the Hamilton County Court of Common Pleas under R.C. 2506.01. A magistrate
determined that the Commission’s decision was not “unconstitutional, illegal,
arbitrary, capricious, unreasonable, or unsupported by a preponderance of
substantial, reliable and probative evidence on the whole record.” Weitzel filed
objections, but the trial court overruled the objections and adopted the magistrate’s
decision. This appeal ensued.
{¶9} In his sole assignment of error, Weitzel argues that the trial court erred
by affirming the Commission’s decision “where the city parties presented no
evidence to refute the issues [he] raised, including that the Civil Service Commission
illegally violated its own rules by allowing Z-[s]coring.”
II. Judicial Review of the Commission’s Decision
{¶10} Weitzel’s administrative appeal is governed by the standards of review
set forth in R.C. 2506.04, which differ for common pleas and appellate courts. The
common pleas court may determine whether the administrative decision was
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OHIO FIRST DISTRICT COURT OF APPEALS
“unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the
preponderance of substantial, reliable, and probative evidence on the whole record.”
R.C. 2506.04. The common pleas court may make factual and legal determinations
and provide for the introduction of new or additional evidence, although the
standard of review is not de novo. Cleveland Clinic Found. v. Cleveland Bd. of
Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 23, quoting
Kisil v. Sandusky, 12 Ohio St.3d 30, 34, 465 N.E.2d 848 (1984). This court’s
authority is limited to reviewing the common pleas court’s decision on “questions of
law” only, and does not encompass the same power to weigh the evidence. Id. at ¶
25, citing Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147, 735
N.E.2d 433 (2000).
{¶11} Ultimately, the standard of review that we apply in this administrative
appeal “is designed to strongly favor affirmance. It permits reversal only when the
court of common pleas errs in its application or interpretation of the law or its
decision is unsupported by a preponderance of the evidence as a matter of law.” Id.
at ¶ 30.
III. Analysis
{¶12} Both parties agree that when grading Weitzel’s exam for Fire Captain,
the city was bound by the “continuous” requirement of Civil Service Rule 10, Section
5, and the preannounced weighting concerning the four parts. Weitzel argued that
the city’s use of Z-scoring violated these requirements and that the Z-scoring formula
arbitrarily diluted the effect of his seniority points. The Commission rejected these
arguments based on the evidence presented and denied Weitzel’s request to regrade
the examination. The trial court affirmed the Commission’s decision. We find no
error as a matter of law.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} Civil Service Rule 10, Section 5’s “continuous” requirement. The
relevant part of this civil service rule provides:
Each part of the examination for each classification shall
be graded separately. Scores for each part shall be
continuous (e.g. 1 to 100) or discrete (e.g. pass/fail).
Weighting of the various parts of the examination shall
be based upon the results of the job analysis. When
supported by the results of the job analysis, parts of the
exam may be used to determine eligibility to compete on
later parts of the exam, and such parts may either be
weighted or not weighted in the computation of the final
score. * * * The final grade for each candidate shall be a
single score. * * * In promotional examinations, credit
for seniority in service shall be added to the examination
grade, but no credit for seniority or any other reason
shall be added to an examination grade unless the
applicant achieves a passing score on the examination
without counting such extra credit.
(Emphasis added.) Civil Service Rule 10, Section 5.
{¶14} Weitzel argues that Z-scoring is not a “continuous” scale because it
compares candidates based on standard deviations instead of the simple and
sequential raw score scale. The Commission determined that “the scores for each
part were continuous,” and it further suggested that Z-scoring is a continuous scale,
even though the scores are derived statistically to standardize the test. We read the
trial court’s decision as arriving at this same conclusion in interpreting and applying
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OHIO FIRST DISTRICT COURT OF APPEALS
the “continuous” requirement of Civil Service Rule 10, Section 5, and ultimately
affirming the Commission’s decision.
{¶15} The scores for each part were continuous. The basis of our decision
affirming the trial court’s decision on this issue is narrower. On its face, the
applicable rule requires only that “[s]cores for each part shall be continuous.” The
rule further recognizes, however, that weighting can occur, and that there will be a
“final grade” that will be reported as a “single score.” Here, according to the
explanation of the scoring provided to the candidates, the city’s exhibit No. 4, each
candidate received a raw score for “each part” of the exam, which even Weitzel
concedes was on a numerical continuum and met the “continuous” requirement.
Consistent with this, as the city explained in another exhibit, the “cut score” for the
written exam was not based on a Z-score, but instead was based on the raw score.
Thus, Weitzel has not demonstrated that the trial court erred as a matter of law in
resolving this issue.
{¶16} Weighting of the four parts of the exam. The pretest announcement
established that the exam would consist of four parts and indicated what percentage
of the exam grade each part would be worth, consistent with the following: (1) a
written examination, worth 40 percent, (2) an in-basket/essay exercise, worth 10
percent, (3) an emergency situation exercise, worth 20 percent, and (4) an oral board
assessment, worth 30 percent. The city’s explanation of the exam scoring
demonstrates that the final overall test score was determined by adding the weighted
scores of the four parts of the examination with the seniority points, and that the raw
scores were standardized by converting them to Z-scores as part of the weighting
formula.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} Weitzel argues that the record contains no evidence demonstrating
that the proper weighting of the four parts occurred with the use of the Z-score, and
therefore the trial court erred by affirming the Commission’s decision. But as the
trial court noted, Dr. Kriska’s reports addressed the weighting issues, and he
concluded that the formula used by the city that employed the use of Z-scores
resulted in a proper application of the tests weights. Dr. Kriska also concluded that
the scores had to be standardized for the weighting to be proper because the
components were measured on different scales. Dr. Mills made the same
observation in his report that Weitzel offered at the hearing before the Commission.
And both Dr. Kriska and Dr. Mills concluded that the specific formula used by the
city—which involved using whole number multipliers instead of decimals—was
appropriate to give the proper weights to each part of the exam consistent with the
pretest announcement. We find that the trial court’s decision on the weighting issue
was supported by a preponderance of reliable, probative and substantial evidence.
{¶18} Effect of seniority points. Weitzel also maintains that the weighting
formula the city used was arbitrary, capricious, unreasonable and, therefore, illegal
because it diluted the effect of his seniority points compared to the formula that he
advanced. But he fails to articulate how this resulted in a violation of the
Commission’s rules. Nor has he shown that the weighting formula used to grade his
exam was arbitrary, capricious or unreasonable, as the record contains evidence
showing that the weighting formula used by the city appropriately applied the proper
weighting, was consistent with the formula used in the past to grade similar types of
exams, and was deemed by Dr. Kriska as “reasonable” and an appropriate method
for giving effect to seniority points.
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OHIO FIRST DISTRICT COURT OF APPEALS
VI. Conclusion
{¶19} The trial court’s decision affirming the Commission was not contrary
to law and was supported by a preponderance of reliable, probative and substantial
evidence. Accordingly, we overrule the assignment of error and affirm the trial
court’s judgment.
Judgment affirmed.
HENDON, P.J., and DEWINE, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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