John Tornichio v. City of Beavercreek, Parks, Recreation, and Culture**

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
JOHN TORNICHIO
Complainant
Complaint No. 9503
and (DAY) B6032702 (15626) 081402
22A – A2 – 03895
CITY OF BEAVERCREEK,
DEPARTMENT OF PARKS,
RECREATION AND CULTURE
Respondent
ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATIONS
JIM PETRO
ATTORNEY GENERAL
Duffy Jamieson, Esq. Matthew D. Stokely, Esq.
Deputy Attorney General Altick & Corwin
Civil Right Section 1700 One Dayton Centre
State Office Tower, 15th Floor One South Main Street
30 East Broad Street Dayton, OH 45402-1104
Columbus, OH 43215-3428 937 – 223 – 1201
614 – 466 – 7900
Counsel for Respondent
Counsel for the Commission
ALJ'S REPORT BY:
Denise M. Johnson
John Tornichio Chief Administrative Law Judge
3598 Highmont Street Ohio Civil Rights Commission
Dayton, OH 45432 1111 East Broad Street, Suite 301
Columbus, OH 43205-1379
Complainant 614 – 466 – 6684

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INTRODUCTION AND PROCEDURAL HISTORY
John Tornichio (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on August 14, 2002.
The Commission investigated the charge and found probable cause
that the City of Beavercreek, Department of Parks, Recreation and Culture
(Respondent) engaged in unlawful employment practices in violation of
Revised Code Section (R.C.) 4112.02(A).
The Commission attempted, but failed to resolve this matter by
informal methods of conciliation. The Commission subsequently issued a
Complaint on May 22, 2003. The Complaint alleged that Respondent failed
and refused to rehire Complainant for reasons not applied equally to all
persons without regard to their age and disability (perceived).
Respondent filed an Answer to the Complaint on June 24, 2003.
Respondent admitted certain procedural allegations, but denied that it
engaged in any unlawful discriminatory practices. Respondent also pled
affirmative defenses.

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A public hearing was held April 27, 2004 at the Greene County
Courthouse in Xenia, Ohio.
The record consists of the previously described pleadings, a
transcript of the hearing (315 pages), exhibits admitted into evidence during
the hearing, and the post-hearing briefs filed by the Commission on
October 29, 2004; by Respondent on December 20, 2004; and a reply brief
filed by the Commission on December 23, 2004.

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FINDINGS OF FACT
The following findings of fact are based, in part, upon the
Administrative Law Judge’s (ALJ) assessment of the credibility of the
witnesses who testified before her in this matter. The ALJ has applied the
tests of worthiness of belief used in current Ohio practice. For example,
she considered each witness’s appearance and demeanor while testifying.
She considered whether a witness was evasive and whether his or her
testimony appeared to consist of subjective opinion rather than factual
recitation. She further considered the opportunity each witness had to
observe and know the things discussed, each witness’s strength of
memory, frankness or lack of frankness, and the bias, prejudice, and
interest of each witness. Finally, the ALJ considered the extent to which
each witness’s testimony was supported or contradicted by reliable
documentary evidence.
1. Complainant filed a sworn charge affidavit with the Commission
on August 14, 2002.

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2. The Commission determined on April 10, 2003 that it was
probable that Respondent engaged in unlawful discrimination in violation of
R.C. 4112.02(A).
3. The Commission attempted to resolve this matter by informal
methods of conciliation. The Commission issued the Complaint after
conciliation failed.
4. In 1994 Complainant started working for Respondent as a
seasonal worker in the position of Parks Maintenance Worker.
5. Complainant was seventy (70) years old when he applied for
the position.
6. Mr. Lywick, Respondent’s Director of Parks, Recreation, and
Culture (PRC), hired Complainant.
7. Complainant’s job was to mow the park grass.

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8. In 1997 Marilyn Court (Court) became the Director of PRC.
Like her immediate predecessor, Court was responsible for hiring seasonal
workers.
9. Court hired Complainant as a seasonal worker from 1997 to
2001.
10. Jeff Stine (Stine) was Complainant’s supervisor during the time
that he worked as a seasonal worker for Respondent.
11. In April 2000 Sherry Callahan (Callahan) began her
employment with Respondent as Personnel Director. She was the first
Personnel Director to be hired by Respondent.
12. Callahan began instituting procedures for hiring and evaluating
employees.
13. Complainant interviewed for the 2001 season with Court and
Callahan. This was the first time Complainant was required to interview for
the position.

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14. After the 2001 season ended, written evaluations were done for
all seasonal employees.
15. Court and Stine did Complainant’s evaluation.
16. Complainant’s performance was rated as “Average”. The
evaluation contained the following comments by Court and Stine,
respectively: (1) “can only perform limited tasks, always shows up”,
“cannot maintain mower” and (2) “naps on job, mows hoses, base, and
grass.”
17. At the end of the evaluation a checkmark was made next to
“Do Not Rehire”.
18. Complainant did not have knowledge of the written evaluation
that had been completed by Respondent.
19. Complainant submitted an application (dated January 14, 2002)
for 2002 seasonal employment.

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20. By letter dated March 27, 2002, Complainant was informed by
Callahan that he had “not been selected to proceed further in the selection
process”.
CONCLUSIONS OF LAW AND DISCUSSION
All proposed findings, conclusions, and supporting arguments of the
parties have been considered. To the extent that the proposed findings
and conclusions submitted by the parties and the arguments made by them
are in accordance with the findings, conclusions, and views stated herein,
they have been accepted; to the extent they are inconsistent
therewith, they have been rejected. Certain proposed findings and
conclusions have been omitted as not relevant or as not necessary to a
proper determination of the material issues presented. To the extent that
the testimony of various witnesses is not in accord with the findings therein,
it is not credited.1
1 Any Conclusion of Law may be deemed a Finding of Fact, and any Finding of
Fact may be deemed a Conclusion of Law.

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1. The Commission alleged in the Complaint that Respondent
failed and refused to rehire Complainant for reasons not applied equally to
all persons without regard to their age and disability (perceived).
2. This allegation, if proven, would constitute a violation of R.C.
4112.02, which provides, in pertinent part, that:
It shall be an unlawful discriminatory practice:
(A) For any employer, because of the . . . age,2 . . . disability,
. . . of any person, to discharge without just cause, to
refuse to hire, or otherwise to discriminate against that
person with respect to hire, tenure, terms, conditions, or
privileges of employment, or any matter directly or
indirectly related to employment.
3. The Commission has the burden of proof in cases brought
under R.C. Chapter 4112. The Commission must prove a violation of R.C.
4112.02(A) by a preponderance of reliable, probative, and substantial
evidence. R.C. 4112.05(G) and 4112.06(E).
2 R.C. 4112.01(A)(14) defines age as “. . . at least forty years old.”

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4. Federal case law generally applies to alleged violations of R.C.
4112. Columbus Civ. Serv. Comm. v. McGlone (1998), 82 Ohio St.3d 569.
Therefore, reliable, probative, and substantial evidence means evidence
sufficient to support a finding of unlawful discrimination under the Age
Discrimination in Employment Act of 1967 (ADEA) and the Americans with
Disabilities Act of 1990 (ADA) or the Rehabilitation Act of 1973.
AGE DISCRIMINATION
5. The Commission may establish a prima facie case of age
discrimination by proving that:
(1) Complainant is a member of a protected class; and
(2) Respondent treated Complainant differently from similarly
situated non-minority employees for the same or similar
conduct.
Hollins v. Atlantic Co., Inc., 188 F.3d 652 (1999).
6. With regard to age discrimination, since discrimination exists in
various forms, the Commission is not required to prove that the decision-
makers in this case harbored discriminatory animus toward Complainant
personally because of his age or older persons generally. The Supreme

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Court recognized that age discrimination is rarely based on the sort of
animus that often motivates other forms of discrimination. Hazen Paper
Co. v. Biggins, 507 U.S. 604, 610 (1993).
7. The passage of the ADEA was prompted by a “concern that
older employees were being deprived of employment on the basis of
inaccurate and stigmatizing stereotypes.” Id., at 610.
8. Like its federal counterpart, R.C. 4112 requires that employers
evaluate older employees on their individual merits, not group stereotypes.
Thus, the prohibition of age discrimination (and other forms of
discrimination) extends to employer acts based on conscious discriminatory
animus and those rooted in stereotypical beliefs or other forms of less
conscious bias.3
3 Federal Courts of Appeals have consistently found that age discrimination may
result from unconscious stereotypical beliefs about older persons. For example, the
Eight Circuit ruled that:
Age discrimination is often subtle and may simply arise from an
unconscious application of stereotyped notions of ability rather than from a
deliberate desire to remove older employees from the workforce.
Brooks v. Woodline Motor Freight, 47 FEP Cases 654, 656 (8th Cir. 1988)
(citation and quotation marks omitted).

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9. Once the Commission establishes a prima facie case, the
burden of production shifts to Respondent to “articulate some legitimate,
nondiscriminatory reason” for the employment action.4 McDonnell Douglas,
supra at 802. To meet this burden of production, Respondent must:
. . . “clearly set forth, through the introduction of admissible
evidence,” reasons for its actions which, if believed by the trier
of fact, would support a finding that unlawful discrimination was
not the cause of the employment action.
St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507 (1993),
quoting Burdine, supra at 254-55.
10. The presumption created by the establishment of a prima facie
case “drops out of the picture” when the employer articulates a legitimate,
nondiscriminatory reason for the employment action. Hicks, supra at 511.
4 Although the burden of production shifts to Respondent at this point, the
Commission retains the burden of persuasion throughout the proceeding. Burdine,
supra at 254.
The defendant’s burden is merely to articulate through some proof a
facially nondiscriminatory reason for the refusal to rehire; the defendant
does not at this stage of the proceedings need to litigate the merits of the
reasoning, nor does it need to prove that the reason relied upon was bona
fide, nor does it need to prove that the reasoning was applied in a
nondiscriminatory fashion.
EEOC v. Flasher Co., 986 F.2d 1312, 1316 (10th Cir. 1992) (citations and
footnote omitted).

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11. In this case, it is not necessary to determine whether the
Commission proved a prima facie case. Respondent’s articulation of a
legitimate, nondiscriminatory reason for the refusal to rehire Complainant
removes any need to determine whether the Commission proved a prima
facie case, and the factual inquiry proceeds to a new level of specificity.”
U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713 (1983),
quoting Burdine, supra at 255.
Where the defendant has done everything that would be
required of him if the plaintiff has properly made out a prima
facie case, whether the plaintiff really did so is no longer
relevant.
Aikens, supra at 713.
12. Respondent met its burden of production with the introduction
of evidence that Complainant was unable to perform the job satisfactorily.
13. The Commission may indirectly challenge the credibility of
Respondent’s reason by showing that the sheer weight of the
circumstantial evidence makes it “more likely than not” that the reason is a
pretext for age discrimination. Manzer, supra at 1084. This type of
showing, which tends to prove that the reason did not actually motivate the
employment decision, requires the Commission produce additional

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evidence of unlawful discrimination besides evidence that is part of the
prima facie case. Id.
14. Complainant is in the protected age group, age seventy (70) at
the time he was first employed.
15. Complainant testified that he found out about the position with
Respondent when he went to the Senior Citizens Center for an event and
saw a job posting:
Well, after the first year I went to the Senior Citizen’s Center
because my wife and I was going to put on a spaghetti supper
for them. And there was a notice there that they wanted two
senior citizens to work in the park. And I put in for that position.
(Tr. 52)
16. Respondent introduced evidence that Howard Chandler
(Chandler), a retired school teacher who had been with the City for many
years, was rehired in 2002. (Tr. 280) Chandler’s date of birth is 1931.
17. Respondent also hired Rob Withridge (Withridge) in 2002 as a
Parks Maintenance Worker. He worked in the cemetery doing mowing and
trimming, in addition to other duties. Withridge’s date of birth is 1938.

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18. I was not persuaded by the Commission’s evidence that the
reason that Complainant was not rehired for the 2002 season was because
of his age.
19. When Withridge was rehired by Respondent in 2002 he was
sixty-four (64) years old. Similarly, when Respondent rehired Chandler in
2002 he was seventy-one (71) years old.
20. A reasonable inference can be drawn from the evidence in the
record that Respondent did not harbor a “stereotyped” notion regarding the
ability of older workers.
DISABILITY DISCRIMINATION
21. The order of proof in a disability discrimination case requires
the Commission to first establish a prima facie case. The Commission has
the burden of proving:
(1) Complainant was disabled under R.C. 4112.01(A)(13);
(2) Complainant, though disabled, could safely and
substantially perform the essential functions of the job in
question, with or without reasonable accommodation;
and

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(3) Respondent took the alleged unlawful discriminatory
action, at least in part, because of Complainant’s
disability.
McGlone, supra at 571 (citation omitted).
22. R.C. 4112.01 (A)(13) sets forth a three prong definition of
disability:
[1] “Disability” means 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;
[2] a record of a physical or mental impairment; or
[3] being regarded as having a physical or mental
impairment.
23. Complainant has heart disease (Tr. 29) and an orthopedic
condition that requires him to wear leg braces. (Tr. 21) Court assumed
that Complainant had a visual impairment. (Tr. 45) All three of these
conditions fall within the definition of physical impairment. R.C.
4112.01(A)(16)(iii).

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24. In this case, the Commission does not argue that Complainant
had an actual disability during the relevant period. Instead, the
Commission argues that Complainant is protected under the statute and its
rules because Respondent perceived him to be disabled.
25. Since the language of R.C. 4112 and Title VII are analogous,
the Ohio Supreme Court has held that federal case law arising under Title
VII can be used in interpreting cases brought pursuant to R.C. 4112.
McGlone, (1998), 82 Ohio St. 32d 569.
26. However, federal law is only persuasive when the statutory
language in question is not “markedly different”. Genaro v. Central
Transport, Inc., (1999), 84 Ohio St. 3d 293; 703 N.E. 2d 782.
27. R.C. 4112.08 mandates that R.C. 4112 shall be construed
liberally for the accomplishment of its purposes. The court in Genaro
elaborated on the statutory mandate by holding that R.C. 4112 is to be
construed broadly “to reflect strong public policy against workplace
discrimination”. 703 N.E. 2d at 786.

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28. The ADA defines “disability” using three alternatives:
(i) a physical or mental impairment that substantially
limits one or more of the major life activities of such
individual;
(ii) a record of such an impairment; or
(iii) being regarded as having such an impairment.
42 U.S.C. 12102(2).
29. In Sutton v. United Airlines, (1999), 527 U.S. 471, the court
employed a strict grammatical and syntactical reading of the plain language
of the above mentioned statutory provisions. The court reasoned that the
restrictive language of the dependent clause in the first prong of the
definition, “that substantially limits one or more of the major life activities of
such individual”, also affected the interpretation of the second and third
prongs because both prongs contain the phrases “such an impairment” that
relates back to the definition in the first prong. Sutton, at 483.
30. By applying Sutton to interpret cases arising under analogous
but “markedly different” state law, the result is a narrow and restrictive view
which is inconsistent with the statutory mandate of R.C. 4112.08.

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31. The third alternative of the disability definition is “regarded as
having a physical or mental impairment”. R.C. 4112.01(A)(3). As written,
Ohio’s statute protects individuals who are regarded having an impairment
that might become burdensome to the employer or limit the employee’s
major life activities in the future, even though the impairment is not
currently debilitating:
Not only do two of the three alternatives in R.C. 4112.01 (A)(13)
fail to qualify the term "physical or mental impairment, "R.C.
4112.01(A)(16) defines that term and clarifies its use in the
definition of "disability." Under R.C. 4112.01 (A)(16)(a)(iii),
cancer qualifies as a physical or mental impairment and, even
though Johnson concedes that her condition did not limit a
major life activity, she correctly asserts that she satisfied one of
the other alternative definitions of "disability" in R.C.
4112.01(A)(13).
Johnson v. MetroHealth Med. Ctr., 2004 Ohio 2864, 2004 Ohio
App. LEXIS 2544.
32. Without the “substantially limiting” language being applied to
the third prong of the definition of disability discrimination, in order to prove
that Respondent regarded Complainant as disabled, the Commission must
establish that:
(1) Complainant is a disabled person within the meaning of
4112.01(A)(13) of the Revised Code and Administrative
Code 4112-5-02(H);

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(2) Complainant, though disabled, can safely and
substantially perform the essential functions of the job in
question, with or without reasonable accommodation.
Admin. Code 4112-5-02(H)(K); and
(3) The alleged unlawful discriminatory action by Respondent
was taken, at least in part, because Complainant was
disabled.
Hazlett v. Martin Chevrolet, Inc., (1986), 25 Ohio St. 3d 279.
33. The most disturbing evidence in this case regarding
Respondent’s perception that Complainant is disabled is the memo that
Court wrote memorializing a conversation she had with the new City
Manager, Dan Dubruiel (Dubruiel), dated April 7, 1999:
The new chairperson of the City’s Safety Committee stopped by
to see me today to bring to my attention the physical condition
of Mr. John Tornichio, seasonal employee.
The Chair is concerned that since John can’t walk well, we are
looking at a potential hazard. He offers no solution, other than
to improve our hiring techniques. Although he didn’t say it, I
think he would like us to develop some kind of physical skill
evaluation to apply retroactively. He seemed concerned, rather
than demanding.
He sees a situation where John could possibly not be able to
escape from a fire fast enough or could slip under the blades
and not move away fast enough. He sees a situation where
John could not react fast enough with the mower and hit
someone or something. Those situations could happen to
anyone, so the potential is there for all of us.

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John Tomichio is assigned to a small riding mower at Rotary
Park. John has severe arthritis, but wears a leg brace to assist
him in walking. John cannot lift the required 50 pounds of
weight, nor can he walk or stand for long periods of time, as
listed on the job requirements. John has trouble walking. John
can mow. John shows up for work, on time if not early, and
works very hard. He just cannot perform every task that
someone younger can.
This memo is informational, and requires no action.
(Comm. Ex. 4)
34. The memo supports the reasonable inference that Respondent
perceived that Complainant‘s medically diagnosed conditions, arthritis, and
the leg braces he used to ameliorate that condition, heart condition, and
vision made him unable to perform the job of mowing park grass.
35. The memo acknowledges that Complainant can mow but states
that Complainant cannot lift the required fifty (50) pounds of weight, nor can
he walk or stand for long periods of time.
36. This observation by Court is inconsistent with a doctor’s note
dated January 7, 2000 that Complainant was required to provide to
Respondent after he had heart surgery:

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Mr. Tornichio is under my care for cardiovascular concerns.
Fortunately he has officially convalesced and he may
completely resume his duties with your department as he had in
the 1999 season with no restriction.
Please call me if you have any questions regarding this matter.
Sincerely yours,
Paul Lindower, M.D.
(Comm. Ex. 5)
37. Marilyn Court and Jeff Stine stated during their direct
examination that Complainant did not service his mowing equipment as is
required of other employees.
38. During cross-examination Stine admitted that he never asked
Complainant to get his own gas or do the required maintenance on the
equipment he used.
39. Stine testified about one occasion where he saw Complainant
napping on the job.

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40. The Commission introduced evidence that showed that at the
time that the job performance issues raised by Respondent regarding
Complainant occurred they were not a concern for Respondent.
Additionally, other employees engaged in the same or similar conduct and
were not given a “Do Not Rehire” recommendation:
 running over a hose (Tr. 47, 218, 258);
 running over bases (Tr. 47, 48, 216, 217, 259);
 shredding trash (Tr. 49, 158, 159, 188, 189, 220); and
 sleeping on the job (Tr. 224, 225, 266, 267).
41. Kent Kadel (Kadel), a group leader who was responsible for
overseeing Complainant’s daily work, also testified that he did not know if
anyone ever told Complainant to perform maintenance, or if Complainant
ever refused to perform maintenance on the mowers that he operated.
(Tr. 172)
42. Kadel testified that Stine told him to give Complainant a low
mark on his evaluation for maintenance of the equipment. (Tr. 172)

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43. Additionally, the reasons pointed out by Court for the
recommendation not to rehire Complainant involved conduct which other
employees engaged in but were not used as a basis to deny rehire:
 Tr. 188, 189, by witness Seitner: Other seasonal
employees run over trash. “It happens.”
 Tr. 158, 159, by witness Kadel: Hitting balls is a common
thing if the grass is long.
 Tr. 47, by witness Court: Other workers ran over hoses.
 Tr. 173, by witness Kadel: Other seasonal employee hit
trees.
 Tr. 194, by witness Ketzel: Other seasonal workers have
caused damage to equipment. Somewhat have to expect
damage given the time they spend with the equipment.
44. Court’s own assessment of the Safety Director’s concerns was
that he would probably like the City to develop “a physical skill evaluation to
apply retroactively”.
45. Respondent asserts that the April 7, 1999 memo reflected the
words and opinions of Mr. Dubruiel, not Court who evaluated Complainant
in 2000.

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46. A reasonable inference can be drawn from the evidence that
before the April 17, 1999 memo, if Court or Stine had concerns about
Complainant’s performance it did not prevent Court from rehiring him.
However, after the memo, Court’s and Stine’s concern’s were serious
enough to warrant a non-rehire recommendation.
47. Complainant never requested an accommodation to assist him
in performing the tasks associated with mowing the park grass and
servicing the equipment.
48. The credible evidence in the record persuades me that
Respondent’s articulated reasons for not rehiring Complainant were based
on illegal disability discrimination.

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RECOMMENDATIONS
For all of the foregoing reasons, it is recommended in Complaint No.
9503 that:
1. The Commission order Respondent to cease and desist from all
discriminatory practices in violation of R.C. Chapter 4112;
2. The Commission order Respondent to make an offer of
employment to Complainant within 10 days of the Commission’s Final
Order for the position of seasonal Park Maintenance Worker. If
Complainant accepts Respondent’s offer of employment, Complainant shall
be paid the same wage he would have been paid had he been employed
as a seasonal Park Maintenance Worker for the period of 2002 and
continued to be so employed up to the date of Respondent’s offer of
employment; and
3. Whether Complainant accepts Respondent’s offer of
employment, Respondent shall submit to the Commission within 10 days of
the offer of employment a certified check payable to Complainant for the

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amount that Complainant would have earned had he been employed as a
seasonal Park Maintenance Worker and continued to be so employed up to
the date of Respondent’s offer of employment, including any raises and
benefits he would have received, less his interim earnings, plus interest at
the maximum rate allowed by law.5
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
February 27, 2006
5 Any ambiguity in the amount that Complainant would have earned during this
period or benefits that he would have received should be resolved against Respondent.
Likewise, any ambiguity in calculating Complainant’s interim earnings should be
resolved against Respondent.