Cincinnati v. Dixon

• Decision Date: 29 January 1992
• Docket Number: No. C-910107,C-910107
• Citation: 604 N.E.2d 193,78 Ohio App.3d 164
• Parties: , 61 Fair Empl.Prac.Cas. (BNA) 1733 CITY OF CINCINNATI, Appellant, v. DIXON, Appellee.
• Court: Ohio Court of Appeals

Page 164

78 Ohio App.3d 164

604 N.E.2d 193, 61 Fair Empl.Prac.Cas. (BNA) 1733

CITY OF CINCINNATI, Appellant, v. DIXON, Appellee.

No. C-910107.

Court of Appeals of Ohio, First District, Hamilton County.

Decided Jan. 29, 1992.

Fay D. Dupuis, Acting City Sol., and Mark C. Vollman, Cincinnati, for appellant.

Sandra Mendel Furman, Columbus, for appellee.

PER CURIAM.

This cause came on to be heard upon the appeal, the transcript of the docket, journal entries and original papers from the Hamilton County Court of Common Pleas, including the transcript of proceedings before the Cincinnati Civil Service Commission, the briefs and the arguments of counsel.

The city of Cincinnati appeals to this court from the order of the court of common pleas which affirmed a decision of the Cincinnati Civil Service Commission. The decision of the commission at issue ordered Paulette Dixon reinstated to the position of Meter Reader for the Cincinnati Water Works, the position from which she was demoted because of her failure to wear a standard uniform. Because we conclude that the appointing authority lacked a reason grounded in the applicable statute to demote Dixon, we affirm the order of the court of common pleas.

I

In December 1988, a promotional exam was given for the position of Meter Reader in the Cincinnati Water Works. Among those taking the exam was Paulette Dixon, who was employed at that time by the Water Works. In March 1989, Dixon interviewed for the meter reader job. After being told by Water Works management that meter readers are required to wear a uniform that includes trousers, Dixon declined the job. She was again offered the job in June 1989, and this time Dixon accepted the job.

Dixon and two others started work as meter readers on July 9, 1989. Soon thereafter they were issued the standard uniform, including trousers, and were told to wear them during field training. On the first day of field training, Dixon reported to work wearing the uniform shirt and a skirt. She was sent home to change into the uniform trousers. The next day she was directed to report to work in the standard uniform to continue field training.

Dixon requested permission to continue field training wearing the standard uniform but substituting a navy blue uniform skirt for the standard navy blue trousers. She explained to Water Works management that the wearing of trousers by a woman offended her religious convictions. Dixon is a member of the House of God, Holy Church of the Living God, Ground of the Truth, House of Prayer for All People, Incorporated. According to the tenets of this church, women are not permitted to wear men's apparel, including trousers.

Citing safety reasons, Water Works management refused to allow Dixon to wear a skirt while working as a meter reader. A standard form 32, which provides notice to the employees of Cincinnati of disciplinary actions, layoff, or displacement, was processed specifying that Dixon was being demoted to the position of Customer Relations Representative because she failed probation. Attached was a standard form 34, a Cincinnati Performance Report, which indicated that Dixon's quality and quantity of work was inadequate and included documentation of Dixon's refusal to wear trousers.

Dixon appealed her demotion to the Cincinnati Civil Service Commission pursuant to R.C. 124.34. A hearing was held before the commission at which Dixon was represented by an attorney. During the hearing, Dixon's attorney argued that the Water Work's employment action constituted religious and sex discrimination and that no genuine safety rationale supported the Water Work's requirement that meter readers wear trousers.

Various witnesses testified about the safety rationale advanced by the Water Works for its trousers requirement. Ciro Farino, Superintendent of Commercial Affairs for the Cincinnati Water Works, testified that trousers reduce the possibility that meter readers will trip as they climb into meter pits, and protect their skin from exposure to insects, weeds and other hazards. He identified a letter, prepared by a Water Works official at the time of Dixon's demotion, documenting the safety rationale for the trousers requirement. The letter includes the safety advantages discussed by Farino, and also claims that trousers protect legs from exposure to acids, alkalis, jagged edges, protruding objects, and avoid the possibility that a skirt would get entangled in machinery. Frank Bellissemo, the immediate supervisor of the meter readers for the Water Works, added that trousers also help protect the meter readers from dog bites.

Michael Gunn, the assistant to the city manager in charge of employee safety, risk management, and employee health services, testified that, in his opinion, trousers protect meter readers from injury to their skin and provide for the mobility necessary to do the job. He concluded that the wearing of skirts would prove hazardous to meter readers.

Anita Boseman, a former meter reader, testified that, in her opinion, a meter reader could safely perform her job while wearing a skirt like the one Dixon wanted to wear.

Audricia Brooks testified that she had worked at one time as a community health nurse. In that capacity, she explained, she was exposed to many of the hazards encountered by meter readers. In her work she sometimes descended into basements, climbed fences, navigated unstable stairways, and was exposed to weeds, but she was not required to wear trousers.

After hearing this and other testimony and reviewing exhibits offered by both an assistant city solicitor and Dixon's attorney, the civil service commission issued a written decision in which it ordered Dixon reinstated to the position of Water Meter Reader. The commission concluded that Dixon's demotion offended her right to freely practice her religion, as protected by the federal Constitution and the Civil Rights Act of 1964. In reaching this decision, the commission found that:

"With regard to the question of whether the requirement of trousers is reasonable, the City recited a list of hypothetical and possible hazards risked by one wearing a skirt rather than trousers. It is the opinion of the Commission that these allegations were not persuasive, and that wearing a neat and conservative skirt as alleged by the appellant would constitute a reasonable accommodation as required by the [federal civil rights] statute. It is our opinion that the arbitrary requirement of trousers in this case is not a reasonable means of promoting a legitimate public interest."

Cincinnati and Scott Johnson, the City Manager and the appointing authority with respect to Dixon's position, appealed the decision of the civil service commission to the court of common pleas pursuant to R.C. Chapters 2505 and 2506. The court found that no reason grounded in the civil service statutes was alleged or proven by the city to support Dixon's demotion, and that absent such a statutory reason, the demotion must fail. The court further concluded that the commission's findings, including the arbitrariness of the trousers requirement as applied to Dixon and its unpersuasive safety rationale, were supported by the preponderance of reliable, probative, and substantial evidence contained in the record. The court of common pleas therefore affirmed the decision of the civil service commission.

II

In its single assignment of error...