Mattessich v. Weathersfield Twp.

• Decision Date: 08 February 2016
• Docket Number: No. 2015–T–0068.,2015–T–0068.
• Citation: 59 N.E.3d 629
• Parties: Richard MATTESSICH, Plaintiff–Appellant, v. WEATHERSFIELD TOWNSHIP, Defendant–Appellee.
• Court: Ohio Court of Appeals

59 N.E.3d 629

Richard MATTESSICH, Plaintiff–Appellant,

v.WEATHERSFIELD TOWNSHIP, Defendant–Appellee.

No. 2015–T–0068.

Court of Appeals of Ohio, Eleventh District, Trumbull County.

Feb. 8, 2016.

John F. Myers, Akron, OH, for Plaintiff–Appellant.

Abraham Cantor, Johnnycake Commons, Concord, OH, and Cherry Lynne Poteet, Daniel Daniluk, LLC, Warren, OH, for Defendant–Appellee.

OPINION

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 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 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.

{¶ 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'.

{¶ 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 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...