Petition for Writ of Certiorari — Fasone v. Clinton Township

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Supreme Court, U.S.

FILED

: 98 638 JuL2- 19%

1O. Ortice OF THE CLERK

In The

Supreme Court of the United States

October Term, 1997

S. AUGUST FASONE,

Petitioner,

CLINTON TOWNSHIP, ET AL.,

Respondents

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

BENSON A. WoLMAN

Counsel of Record

SusAN B. GELLMAN

NELSON E. GENSHAFT

WoLMAN, GENSHAFT & GELLMAN

341 South Third Street, Suite 301

Columbus, Ohio 43215-5463

Telephone: (614) 280-1000

Facsimile: (614) 280-9000

Davip K. STEIN

32 West Hoster Street

Columbus, Ohio 43215

Telephone: (614) 221-9100

Facsimile: (614) 221-7145

Counsel for Petitioner

QUESTIONS PRESENTED FOR REVIEW

Whether evidence of discrimination occurring

before the 1991 amendment of 42 U.S.C. § 1981 may

be considered in determining whether an employer

has engaged in an ongoing pattern of discrimination.

Whether an employer has a duty to interact with

an employee in an attempt to find a reasonable

accommodation under the Americans with Disabil-

ities Act.

PARTIES TO THE PROCEEDING

IN THE COURT BELOW

The parties to the proceeding in the court below

were: S. August Fasone (the appellant below), Clin-

ton Township (an appellee below), John W. Frost (an

appellee below), Larry L. Wilkes (an appellee below),

Penny S. Pember (an appellee below), Randy Stickle

(an appellee below), and Rebecca Christian (an

appellee below).

ill

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW.......

PARTIES TO THE PROCEEDING IN THE

NE RO en a ee ee

STATEMENT OF JURISDICTION OF THE

EES ACRE Fant an igre

BASIS FOR FEDERAL JURISDICTION.........

TN os fg iss ook

|. EVIDENCE OF DISCRIMINATION OCCUR-

RING BEFORE THE 1991 AMENDMENT OF

42 U.S.C. § 1981 SHOULD BE CONSIDERED

IN DETERMINING WHETHER AN

EMPLOYER HAS ENGAGED IN AN

ONGOING PATTERN OF DISCRIMINA-

MM AUES SSeO See Dia er mange nen eae nea

A. The Sixth Circuit’s Analysis Conflicts

with Decisions of Other Circuits ......

B. The Sixth Circuit’s Analvsis Fails to Fol-

Tee” , ~< ~s “7

low Decisions of this Court on Similar

ESSE aS SESS ea ee

TABLE OF CONTENTS - Continued

Page

II. AN EMPLOYER HAS A DUTY TO INTER-

ACT WITH AN EMPLOYEE IN AN

ATTEMPT TO FIND A REASONABLE

ACCOMMODATION UNDER THE AMERI-

CANS WITH DISABILITIES ACT.......... 17

A. Summary Judgment in a Reasonable

Accommodation Case Requires the

Employer to Bear the Burden of Show-

ce ee ya eee 17

B. The Sixth Circuit’s Affirmance Of Sum-

mary Judgment Conflicts with Other

Circuits’ Decisions that the ADA

Requires an Employer to Engage in an

I PAO a rie esos bce 21

&e | WEE. 8 BRR ere eer tee ma ena Er 25

PR os sey ony eige Beer pete eel ee eee Al

TABLE OF AUTHORITIES

Page

CASES

Beck v. University of Wis. Bd. of Regents, 75

yh Bp t Be. Be ey | ey re arene, 22

Boyce v. Dickinson County, Kan., 1994 WL

Ee As A BS ows oo ok ws ee eae 13, 14

Cunningham v. Kansas City Star Co., 995

F. Supp. 1010 (W.D. Mo. 1998)............ LY eee

Dalton v. Subaru-Isuzu Automotive, Inc., 141

ee OR ) Re mae ree. 21, 24

Deane v. Pocono Medical Center, 142 F.3d 138

fees: Ge SN ede oo ces Zi, me 23, of

Delph v. Dr. Pepper Bottling Co. of Paragould,

130 F.3d 349 (8th Cir. 1997) EC alek ka Oke alee 12

DeNovellis v. Shalala, 124 F.3d 298 (1st Cir.

SRE Pe ah Se eS CERRO Cee ae 14, 15

Faragher v. City of Boca Raton, 1998 WL 336322

ED oi ioe ee eee eee 12

Harris v. Forklift Sys., 510 U.S. 17 (1993) ........ 12

Havens Realty Corp. v. Coleman, 455 U.S. 363

CRORES pd saa ho Wwets ec ALES ee eee 16

Hunt-Golliday v. Metropolitan Water Reclama-

tion Dist., 104 F.3d 1004 (7th Cir. 1997) ... 21, 22

Jensen v. Frank, 912 F.2d 517 (1st Cir. 1990)...... 15

Landgraf v. USI Film Prods., 511 U.S. 244

CE or ee aie eee 14

Mengine v. Runyon, 114 F.3d 415 (3d Cir. 1997)

eR RRR EN 6 Re EG oa a ee Yb a a Se

TABLE OF AUTHORITIES - Continued

Page

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 |

PE Ge Sone ee EUS dae RETRO OCR RL Le 10

Rivers v. Roadway Express, Inc., 511 U.S. 298

PE 4 oe CRG o RG Ge eae ee err Rae passim

Shiring v. Runyon, 90 F.3d 827 (3d Cir. 1996) ....19

St. Francis College v. Al-Khazraji, 481 U.S. 604

Fee is Kk Kena be Cee des kde ee Eee eRe R ED 10

Stone v. City of Mount Vernon, 118 F.3d 92 (2d

Cir. 1997), cert. denied, 118 S. Ct. 1044 (1998)

ie rane a arioa at a ee aie get Le eae aes Tah 18, 19, 20

Taylor v. Principal Fin. Group, 93 F.3d 155 (5th

Cir. 1996), cert. denied, 117 S. Ct. 586 (1996)

United Air Lines v. Evans, 431 U.S. 553 (1977) ....16

Valentine v. American Home Shield Corp., 939

PS. TSF GND. SOWE TPS OS see cen ek’ 24

Vande Zande v. Wisconsin Dept. of Admin., 44

Pace oe Cee Cer SO. Cs veo ea eae 19, 21

White v. Honeywell, Inc., 141 F.3d 1270 (8th

io OTE es eka CR ee ee Oe ee eee eee oe

STATUTORY AND JURISDICTIONAL AUTHORITIES

So 35 © piel. BOT. EY ons Fe ee een 2

Oe Glee Lae ko cctv eae chs eee eee eee l

SUSC. £131 See Se 2

TABLE OF AUTHORITIES —- Continued

Page

ee Weer Oe BEE is a VERN hae ks vanes eh on eek 2

Ce as ci en heey Cie N er eehGke eee ais 2

29 U.S.C. § 706 (Rehabilitation Act of 1973)....21, 22

a SUR REE Ko ae es ee eee ee Eee es passim

Ae I P58 800 OF Anko ks Oe *

42 U.S.C. § 2000e (Title VII of the Civil Rights

Pe OE CROs ha cineca ich aeekeia ke 12,23, 14, 36

ee Ae ss EES vais Aa ans eee oe ee ee 18

Oe Sea AREAS 855 ENTS So cae eee > A A

7 Gis Tae Boo: © AR eine tin set etn MARAT aN: 2

ra BSS Ting go” BERR neg seer oir, ae ete 20

PETITION FOR WRIT OF CERTIORARI

The petitioner, S. August Fasone, respectfully

prays that a writ of certiorari be issued to review the

judgment of the United States Court of Appeals for

the Sixth Circuit entered in the above-entitled pro-

ceeding on April 3, 1998.

OPINIONS BELOW

[he opinion of the Court of Appeals for the

Sixth Circuit is unreported and is reprinted in the

Appendix (hereinafter “A___”) to this petition at Al-

A4. The Sixth Circuit’s opinion affirmed both the

unreported February 28, 1997 Opinion and Order of

the United States District Court for the Southern

District of Ohio, reprinted at A5-A11, and its unre-

ported July 23, 1996 Opinion and Order, reprinted at

A12-A32.

rr > _

STATEMENT OF JURISDICTION OF THE COURT

The decision of the Court of Appeals for the

Sixth Circuit was entered on April 3, 1998. See A1.

This petition is timely filed within ninety days of

that date. This Court has jurisdiction pursuant to 28

U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

[his case involves 42 U.S.C. § 1981, a Recon-

struction civil rights act as amended November 21,

1991. It also involves 42 U.S.C. §§ 12111 and 12112 of

the Americans with Disabilities Act. The pertinent

portions are reprinted at A33-A36.

BASIS FOR FEDERAL JURISDICTION

The District Court had jurisdiction pursuant to

28 U.S.C. §§ 1331 and 1343 to address questiv.'s

raised under 42 U.S.C. §§ 1981, 1983, and 12112 and

the Fourteenth Amendment, and supplemental juris-

diction pursuant to 28 U.S.C. § 1367 to address the

state law claims

INTRODUCTION

[his case presents two issues In ferment within

}

the federal court svstem which are substantial in

nature and which are receiving different treatment in

‘

differing circuits.

One issue involves 42 U.S.C. § 1981, which was

amended in 1991: Where there is a continuing pat

tern of discrimination, beginning before the amend-

ment and continuing after the amendment, should

the pre-amendment conduct be admissible in pro

ving a continuing offense? In approving a grant of

summary judgment, the Sixth Circuit answered in

the negative

The other issue involves the Americans with

Disabilities Act: Does an employer have a duty to

interact with an employee in an attempt to find a

reasonable accommodation? In approving a grant of

summary judgment, the Sixth Circuit again appears

to have answered in the negative.

STATEMENT OF THE CASE

S. August Fasone, who is of Italian ancestry,

filed this action on April 23, 1993, against Clinton

fownship, Ohio. His Third Amended Complaint,

filed May 19, 1994, alleged, inter alia, ethnic and

disability discrimination under 42 U.S.C. §§ 1981,

1983, and 12111 (the Americans with Disabilities Act)

and under Ohio law.

Following a period as a volunteer firefighter, Mr.

Fasone was hired as a full-time firefighter on April

12. 1982. A37. His job duties included fire suppres-

sion, paramedic services, and the use of other skills

customarily associated with firefighting. In 1992,

during the normal course of performing his job, Mr.

Fasone suffered injuries which ultimately necessi-

tated hip replacement surgery. Al3-A14. As a result,

he is unable to perform all of the full duties of a

firefighter, but his physician stated that he could

engage in light duty firefighting, such as office work

or serving as a fire pre\ ention officer, conducting

building inspections and issuing permits. A44.

Ethnic Discrimination Under 42 U.S.C. § 1981

From 1982, and even before that as a volunteer

with the township fire department, Mr. Fasone, who

is of Italian ancestry and who pronounces his name

Fah-so-nee, was the object of a barrage of derogatory

remarks directed at him mostly by supervisors and

sometimes by his peers. These included denigration

as an “ignorant Italian,” “dago,” “half-breed,” A15,

“WOP,” and “sandblasted nigger,” A46-A47, on an

almost daily basis. He was told that he would never

be promoted because an ignorant immigrant or igno-

rant Italian wouldn’t be promoted to the rank of

lieutenant. A38. All of this caused him to become

and remain clinically depressed, and he entered psy-

chotherapy for a substantial period of time - several

years — in order to cope with the ethnic conflict. A39-

A43. Following the filing of the Complaint and

extensive discovery, the trial court granted summary

judgment to the defendants on all counts, Al2-A32,

and denied Mr. Fasone’s Motion to Alter or Amend

Judgment. A5-A11. In granting summary judgment,

the trial court refused to consider any evidence of

discriminatory conduct occurring before November

21, 1991, when § 1981 was amended to include acts

occurring in the course of employment. A26-/ 27

(citing Rivers v. Roadway Express, Inc., 511 U.S. 298

(1994)). Although the claim of continuing conduct

was presented to the Sixth Circuit, that court, with-

out discussion of the issue, affirmed the holding of

the district court in a cursory, unpublished opinion.

A1-A4.

Mr. Fasone contends that, where there is a con-

tinuing pattern of discrimination, beginning before

and continuing for after the amendment, pre-amend-

ment conduct should be admissible in proving a

continuing offense.

Discrimination Under the

Americans with Disabilities Act

As an active firefighter for Clinton Township

Mr. Fasone’s job definition was not limited to fire

suppression, but included responsibilities of

participating in fire prevention, station

maintenance and training activities, per-

form{ing] other related duties or jobs as

may, from time to time, be required.

A49. Aside from the suppression of fires and

responding to emergency calls, the typical tasks of

the firefighter position included checking, testing

and maintenance of apparatus and equipment;

assisting in maintaining the fire station grounds;

making residential, commercial and industrial

inspections; and educating the public in fire preven-

tion. A4Y.

Clinton Township has historically allowed

injured firefighters to work with modified or restruc-

tured work duties, performing fire and safety inspec-

tions, reviewing paperwork, and engaging in other

functions that are within the firefighter’s job descrip

tion. A52, A55-A56. This type of restructure has

occurred where firefighters “were incapable of per

forming their normal duty position task.” A55.

[his traditional approach of accommodating the

disabilities of injured firefighters was rejected when

it came to Mr. Fasone. Following further injury to his

hip in 1992, Mr. kasone requested on numerous occa-

sions that he be allowed to have his duties restruc-

tured or modified. These requests were denied. A52,

\56. During the same period of time, however, the

position of Fire Protection Officer of Clinton Town

ship was vacant yet fully funded, per the union

: c+

contract. A5d2.

Randy Stickle became Fire Chief in late 1992. Mr.

Stickle possesses strong opinions that firefighters

should not be offered the accommodation of mod-

ified or restructured duties. In Mr. Stickle’s deposi

tion, he states

| believe that every member of the Clinton

fownship Division of Fire should pull his or

her own weight to fight fire and to perform

emergency services, and if they can’t per-

form those services, then I’m not sure that

I’m using the taxpayers’ dollars effectively.

A63.

As far as | am concerned there is no light

duty in Clinton Township Division of Fire.

In the past, | am aware of some light duty

temporary assignments that were given

prior to my appointment and the Fire Chief.

A67

Chief Stickle repeatedly refused Mr. Fasone’s

requests for accommodation, and told Mr. Fasone

that he was not going to pay for Mr. Fasone’s injuries

for the next forty years. A52. However, Chief Stickle

never investigated the feasibility of light duty at the

Clinton Township Fire Department, explaining: “I

didn’t believe that light duty was an appropriate

assignment in the fire service.” A59.

Appellee Penny Pember was the oversight

trustee for the fire department beginning in 1992,

and acted as liaison between the Township Board of

frustees and the fire department. A70. Upon becom-

ing the liaison trustee, Pember conducted no investi-

gation of the policy surrounding job modification for

firefighters. Nevertheless, Pember made the decision

that this accommodation could not be made avail-

able and that firefighters who were disabled would

not be accommodated with any form of job restric

tion, as they had been in the past. A71-A72.

While Chief Stickle and Trustee Pember have

adamantly concluded that jobs cannot be restruc

tured within the Fire Department, the facts indicate

otherwise. As set forth above, this modification of

job duties was historically provided to injured

employees of Clinton Township. Even after Mr.

Fasone’s request was denied, Chief Stickle assigned

an injured Lieutenant, Paul Stokes, to work only fire

prevention duties following a non-work related

injury. A72-A74. Stokes confirms that following a

neck injury, he was assigned to work only as a fire

prevention officer for the Fire Department, and per-

formed no duties related to actual fire suppression.

A74-A76.

By July, 1993, Mr. Fasone had depleted his per-

sonal leave time and was forced to retire from the

Fire Department because no accommodation was

made for him to return to work. A53. This was the

same period of time that Clinton Township main-

tained the unfilled position of Fire Prevention Offi-

cer. The Fire Department continued to maintain this

position within the Union contract and budget, but

these duties were actually filled by firefighters who

otherwise would have been riding with the fire com-

pany in the suppression of fires or with the EMS

team. Although capable of performing these duties,

Mr. Fasone was denied the opportunity to do so.

A52-A53.

REASONS FOR GRANTING THE WRIT

The decision below, in affirming summary judg-

ment granted by the district court, presents two fed-

eral questions of great importance: First, may

evidence of discrimination occurring before the 1991

amendment of 42 U.S.C. § 1981 be considered in

determining whether an employer has engaged in an

ongoing pattern of discrimination? Second, does an

employer have a duty to interact with an employee

in an attempt to find a reasonable accommodation

under the Americans with Disabilities Act? As both

questions implicate a conflict of authority in the

lower courts, involve important federal questions,

and were incorrectly decided below, Mr. Fasone

respectfully submits that the writ should be granted.

I. EVIDENCE OF DISCRIMINATION OCCUR-

RING BEFORE THE 1991 AMENDMENT OF 42

U.S.C. § 1981 SHOULD BE CONSIDERED IN

DETERMINING WHETHER AN EMPLOYER

HAS ENGAGED IN AN ONGOING PATTERN

OF DISCRIMINATION.

This case presents an important issue, now per-

colating in the federal courts, that was left unre-

solved by this Court's decision in Rivers v. Roadway

Express, Inc., 511 U.S. 298 (1994), namely, whether a

plaintiff who alleges continuing and ongoing acts o!

discrimination occurring from the period prior to the

enactment of the 1991 amendment to 42 U.S.C. § 1981

and continuing for a substantial period thereafter is

entitled to present evidence of all such conduct in an

action under the amended statute. In Rivers, this

Court limited its holding against retroactive applica-

tion to “cases pending when it was enacted.” How-

ever, since that time, a number of federal courts

around the country have addressed the issue of com-

plaints filed after the amendment but alleging con-

duct both prior to and after the amendment.

In Mr. Fasone’s case, the district court, for pur-

poses of summary judgment, found: that there had

been numerous anti-Italian derogatory remarks,

including some after the enactment of the amend-

ment to § 1981; that the slurs and insults were

directed at Mr. Fasone by his peers and supervisors

up to and including the fire chief; that he kept track

of all of the insults and referred each to his super-

visors; and that Mr. Fasone asserted that the prob-

lems were not remedied. A15-A16.

The district court, properly following this

Court’s dictum in St. Francis College v. Al-Khazrayi,

481 U.S. 604, 611-13 (1987), determined that Mr.

Fasone had made a colorable claim that his Italian

ancestry constituted a race as understood by the

drafters of § 1981 and therefore would fall under that

statute. A26. However, the district court specifically

held that the Clinton Township Fire Department

“can be held liable to Fasone only for acts of harass-

ment that occurred after the effective date of the

statute.” A27. The post-1991 acts were fewer in

number than the near-decade long barrage of similar

acts that preceded the amendment of § 1981, and it is

the unabated stream of acts which both constitutes

the continuing conduct at the heart of the case and

makes effects of the later ones all the more severe. In

excluding pre-amendment conduct from consider-

ation, even as evidence, the district court misread the

holding of this Court in Rivers:

The second problem with Fasone’s claim,

however, is fatal; Fasone has not produced

evidence of a system of harassment so per-

vasive as to impinge upon the anti-discrimi-

nation laws. As discussed above, only acts

that occurred after November 21, 1991 are

actionable under § 1981. Rivers, 114 S. Ct. at

1519-20. |

A28. The district court then properly noted that the

harassing conduct had to be “sufficiently severe or

pervasive” to alter the conditions of employment.

A28 (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S.

57, 67 (1986)). However, it then grounded its grant of

summary judgment to the defendants on the section

1981 claim by limiting not only liability, but also evi-

dence of the pervasiveness of the harassment, solely to

acts occurring after November 21, 1991. A28.

A. The Sixth Circuit’s Analysis Conflicts with

Decisions of Other Circuits.

When this Court decided Rivers, it stated that it

had granted certiorari “on the sole question whether

[the 1991 amendment to § 1981] applies to cases

pending when it was enacted.” 511 U.S. at 303. It did

not address cases in which there was a continuing

course of conduct beginning prior to the 1991

amendment and continuing after it, as in the case at

bar. The question simply was not before the Court.

hus, it was approached neither as a matter of statu-

tory interpretation nor as an evidentiary issue.

The present case raises the issue of continuing

course of conduct from both perspectives, and in so

doing, it identifies an application of the Sixth Circuit

that conflicts with decisions of the First and Eighth

Circuits in § 1981 cases.

After the Sixth Circuit decided the case at bar,

the Eighth Circuit issued an opinion in White v

Honeywell, 141 F.3d 1270 (8th Cir. 1998). In White, the

plaintiff had filed claims under Title VII and § 1981.

[he district court limited her § 1981 claim “to acts

occurring after November 21, 1991.” Id. at 1272. She

attempted to show a pattern of harassment from

1984 and continuing through 1992. With regard to

Ms. White’s § 1981 claim, the jury was limited to the

special verdict issue “whether White was subject to a

racially hostile work environment between Novem-

ber 21, 1991 and June 24, 1992 [her last day of work

before going on disability leave].” Id. at 1274. The

Eighth Circuit noted that the trial court had barred

some evidence of statements “not made during the

actionable period of time.” Id. at 1275. That court

observed that hostile environment evidence “ ‘must

not be compartmentalized, but must instead be

based of the totality of circumstances of the entire

hostile work environment.’” Id. (quoting Delph v.

Dr. Pepper Bottling Co. of Paragould, 130 F.3d 349, 355

(8th Cir. 1997)). In that respect, the Circuit was

applying the standards set forth by this Court in

Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993),

regarding the necessity of “looking at all the circum-

stances,” id. at 23, and most recently reaffirmed by

this Court in Faragher v. City of Boca Raton, 1998 WL

336322 (U.S.). The Eighth Circuit held that the barred

evidence of conduct that occurred before the action-

able period of time “would have helped White to

demonstrate knowledge and an ongoing pattern of

racial harassment.” White, 141 F.3d at 1276. But in the

present case, evidence from the pre-amendment

period was excluded from consideration of the total-

ity of circumstances. A27.

Another case arising within the Eighth Circuit,

Cunningham v. Kansas City Star Co., 995 F. Supp. 1010

(W.D. Mo. 1998), approaches the Fasone issue by

examining the policy in, and interpretations of,

§ 1981 and the 1991 amendment. The district court

began by observing that Rivers “applied to pending

cases of preenactment conduct.” Id. at 1016 (emphasis

added). The court then noted that Rivers and Eighth

Circuit cases “do not address preenactment conduct

that continued through November 21, 1991, the date

Section 1981 was amended. In the present case,

plaintiffs clearly allege discriminatory conduct that

occurred before November 21, 1991, and continue to

the present date.” Id. The Cunningham court con-

cluded that “because plaintiffs allege continuous and

ongoing acts of discrimination occurring from the

period prior to the enactment of the 1991 amend-

ment into the present date, they are entitled to bring

all such alleged conduct under the amended version

of Section 1981.” Id. at 1017.

Other district courts have come to like conclu-

sions. See Russell v. Overland Police Dept., 838 F. Supp

350 (E.D. Mo. 1993); Boyce v. Dickinson County, Kan.,

1994 WL 174021 (D. Kan. 1994).

In Russell, the district court found that

when the alleged acts of .~ . harassment and

discrimination are alleged to have been

ongoing and continuous into the period fol-

lowing the enactment of the Civil Rights Act

of 1991, then plaintiff is entitled to a jury

trial as to those claims, whether they

occurred prior to the enactment of the Civil

Rights Act of 1991 or thereafter.

838 F. Supp. at 1354. Likewise, in Boyce (a Title VII

case), the court observed that

not all relevant conduct occurred before

November 21, 1991. ... The relevant con-

duct is not merely that which occurred pre-

Neen a

Act but consists of ongoing conduct occur-

ring both pre- and post-Act. This conduct

cannot be distilled into a single pre-Act unit.

Nor can it be fragmented into discrete units

of pre- and post-Act conduct.

1994 WL 174021 (D. Kan. 1994) at 2

In DeNovellis v. Shalala, 124 F.3d 298 (1st Cir.

1997), the plaintiff, a white male of Italian descent,

brought race and national origin discrimination

claims under Title VII. The First Circuit considered

his claim that he was “entitled to the remedies delin

eated in the Civil Rights Act of 1991 because his pre

Act and post-Act deprivation of duties were part of

One continuing violation and the effects of his

‘employment purgatory’ extended beyond the effe«

tive date of the Act.” Id. at 305. The First Circuit,

noting this Court’s decision in Landgraf v. USI Film

Prods., 511 U.S. 244 (1994), held that the 1991 act was

not retroactive. However, the court examined the

claim of continuing violation and invoked its earlier

classification system, delineating “two types of con-

tinuing violation cases: systemic and serial.” Id. at

307.

A systemic violation usually “has its roots in

a discriminatory policy or practice; so long

as the policy or practice continues into the

limitation period, a challenger may be

deemed to have filed a timely complaint,”

even if he fails to show “an identifiable dis-

crete act of discrimination transpiring

within the period.” ... A serial violation “is

composed of a number of discriminatory

Sey 5 oer a

—

acts emanating from the same discrimina-

tory animus, each act constituting a separate

wrong. i

Id. at 307 (quoting Jensen v. Frank, 912 F.2d 517

522-23 (1st Cir. 1990)).

[he First Circuit noted that the DeNovellis plain-

tiff did not claim a systemic violation. It then

addressed his claim of a serial violation, concluding

that he “did not seriously contest” the district court's

finding that he had not presented evidence of post-

Act discrimination. 124 F.3d at 308-09. In contrast,

Mr. Fasone alleges both systemic and serial continu-

ing violations, and he offered evidence to support

them both. A15-A16. Moreover, Mr. DeNovellis

pressed the First Circuit on a related theory — that of

pre-Act conduct that became a “continuing violation

through its continuing effects.” 124 F.3d at 309. The

First Circuit rejected Mr. DeNovellis’s claim, holding

that “continuing effects, without additional post-Act

discriminatory actions, do not turn a discrete pre-Act

decision into a continuing violation.” Id. By contrast,

in the case at bar, Mr. Fasone alleged and offered

substantial evidence of both pre- and post-Act dis-

criminatory conduct. A53.

B. The Sixth Circuit’s Analysis Fails to Fol-

low Decisions of this Court on Similar

Issues.

This Court has already held that, with regard to

statutes of limitation in civil rights cases, courts

should look to the issue of continuing violations. It

, Havens

Realty Corp. v. Coleman, 455 U.S. 363 (1982), and in

litle VII cases. United Air Lines v. Evans, 431 U.S. 553

(1977).

has done so in the arena of fair housing

In Havens Realty, this Court held that “a ‘con-

{

tinuing violation’ .. . should be treated « ifferently

from one discrete act of discrimination.” 455 U.S. at

380. To ignore “the continuing nature of the... vi-

olation, only undermines the broad remedial intent

of Congress embodied in the Act.” Id. This Court

found that “a continuing violation manifested in a

number of incidents — including at least one . . . that

is asserted to have occurred within the [limitation|

period” was sufficient to bring all of the conduct

within the purview of the statute. Jd. at 381.

Moreover, the language in United Air Lines is

relevant to the case at bar because, while the Court

held that “[a] discriminatory act which is not made

the basis for a timely charge is the legal equivalent of

a discriminatory act which occurred before the stat-

ute was passed,” the Court went on to hold that such

acts could “constitute relevant background evidence

In a proceeding in which the status of a current

practice is at issue.” 431 U.S. at 558 (emphasis

added). The lower courts in Mr. Fasone’s have

refused to consider such evidence — even as back

ground.

ll. AN EMPLOYER HAS A DUTY TO INTERACT

WITH AN EMPLOYEE IN AN ATTEMPT TO

FIND A REASONABLE ACCOMMODATION

UNDER THE AMERICANS WITH DISABIL-

ITIES ACT.

Genuine issues of material fact existed as to

Clinton Township’s failure to fulfill its duty to make

reasonable accommodation for Mr. Fasone. F.R.Civ.P.

56. Mr. Fasone properly requested reasonable accom-

modation for his disability; Clinton Township did

not even consider accommodation and failed to com-

municate with him regarding possible accommoda-

tions. The lower courts’ acceptance of Clinton

Township’s conclusory assertions of undue hardship

was an improper basis for summary judgment.

Moreover, in failing to require the employer to inter-

act with the employee in seeking an accommodation,

the Sixth Circuit decision is in direct conflict with the

position of other federal courts of appeal, including

the Third, Fifth, and Seventh Circuits

A. Summary Judgment in a Reasonable

Accommodation Case Requires the

Employer to Bear the Burden of Showing

Undue Hardship.

To make out a prima facie case under the Ameri-

cans with Disabilities Act (ADA), 42 U.S.C. § 12101 et

seqg., an employee must be able to establish that he or

she has a disability, is a qualified individual, and has

suffered an adverse employment action because of

that disability. If the employee requires a reasonable

accommodation in order to perform the job, the

employer may rebut that prima facie case with a

showing that making a reasonable accommodation

for the employee’s disability would cause it undue

hardship. See Stone v. City of Mount Vernon, 118 F.3d

92 96-97 (2d Cir. 1997), cert. denied, 118 S. Ct. 1044

(1998). The following threshold issues are undis-

puted: (1) that Mr. Fasone was disabled within the

meaning of the ADA and (2) that Clinton Township

terminated Mr. Fasone’s employment because of his

disability. A2. As Mr. Fasone made out his prima

facie case and requested a reasonable accommoda-

tion, the only issue here was whether Clinton Town-

ship properly met its burden to show that there was

no genuine issue of material fact on the question

whether the accommodation would have created an

undue hardship. It did not.

The lower courts summarily concluded that the

accommodation requested by Mr. Fasone was unrea-

sonable because it would have required the creation

of a new position The record does not support that

conclusion, nor does the law. Clinton Township

maintained an unfilled, funded position of Fire Pro-

tection Officer. A52. The duties of this unfilled posi-

tion were placed upon other firefighters. A55.

Indeed, the Fire Chief assigned someone to those

duties after Mr. Fasone’s request for accommodation

was denied. A66

It is certainly correct that an employer need not

go to the extreme of creating a new and unnecessary

job for an employee who, because of a disability, can

no longer perform the necessary tasks of his or her

iob. This limitation is a sensible balance, recognizing

the practical limits of accommodation; however, it

does not stretch so far as to allow characterization of

any differences in responsibilities or functions to

amount to the creation of a new position. Indeed, by

definition, every accommodation will involve some

change. Thus, “[t]he employer must be willing to

consider making changes in its ordinary work rules,

facilities, terms, and conditions in order to enable a

disabled individual to work.” Vande Zande v. Wiscon

sin Dept. of Admin., 44 F.3d 538, 542 (7th Cir. 1995)

(emphasis added). Moreover, the ADA specifically

includes reassignment as an option for a reasonable

accommodation. 42 U.S.C. § 12111(9)(B). An

employer is required to reassign a disabled employee

if there is a vacant, funded position and the

employee is capable of performing the essential ele-

ments of that position. Shiring v. Runyon, 90 F.3d 827,

832 (3d Cir. 1996).

In Stone v. City of Mount Vernon, 118 F.3d 92 (2d

Cir. 1997), cert. denied, 118 S. Ct. 1044 (1998), the

Court of Appeals for the Second Circuit reversed a

grant of summary judgment in favor of a fire depart-

ment that had refused to accommodate a firefighter

who had been rendered a paraplegic in an off-duty

accident. Like Mr. Fasone, Mr. Stone requested

accommodation through assignment to non-firefight

ing duties, and like Clinton Township, the Stone

- defendants argued that even its non-firefighting per-

sonnel had to be ready to fight fires when necessary

The Second Circuit concluded that summary judg

ment was inappropriate:

We in no way suggest that the essential

duties of a firefighter do not normally

include fighting fires. However, proper anal-

ysis of a claim under the federal disability

statutes, must be focused on “the fundamen-

tal job duties of the employment position the

individual with a disability . . . desires,” 29

C.F.R. § 1630.2(n)(1) (emphasis added),

rather than solely on the title held by a

person occupying that position or the other

positions occupied by most persons holding

that title.

Second, the district court appears to

have relied exclusively on the commis-

sioner’s opinion that the Department’s

capacity to fight multi-alarm fires would be

unduly hampered by having assigned to

[non-firefighting sections] a firefighter who

could not engage in fire-suppression activ-

ity. While plainly the “employer’s judgment

as to which functions are essential,” 29

C.F.R. § 1630.2(n)(3)(1), is highly relevant

evidence, it is only one of the regulations’

seven illustrative categories.

Id. at 99. Clinton Township has likewise failed to

present sufficient evidence, other than its own

unsupported conclusions, that accommodating Mr.

Fasone’s disability would create an undue hardship.

Those conclusions, moreover, were Suspect in light

of Clinton Township’s having had a fully-funded slot

available for a full-time Fire Protection Officer. More-

Over, modified duties have historically been made

available to injured firefighters, even after Mr.

Fasone requested the accommodation. A55, A58. The

defendants’ vague and conclusory statements that

WMS ee ee ee

accommodating Mr. Fasone would have been too

expensive for its stretched budget fell far short of the

burden required for summary judgment.

B. The Sixth Circuit’s Affirmance Of Sum-

mary Judgment Conflicts with Other Cir-

cuits’ Decisions that the ADA Requires an

Employer to Engage in an Interactive Proc-

ess.

The ADA is designed to encourage employers

and their disabled employees to work together and

to communicate meaningfully to try to find an

accommodation. To that end, several federal courts

of appeals have held that the ADA places upon

employers the obligation to engage in an interactive

process with the employee to determine whether a

reasonable accommodation is possible. See, e.g.,

Deane v. Pocono Medical Resi 142 F.3d 138, 149 (3d

Cir. 1998); Dalton v. Subaru-Isuzu Automotive, Inc., 141

F.3d 667, 677 (7th Cir. 1998); Hunt-Golliday v. Metro-

politan Water Reclamation Dist. 104 F.3d 1004, 1012

(7th Cir. 1997); Taylor v jetinsuer Fin. Group, 93 F.3d

155, 165 (5th Cir. 1996), cert. denied, 117 S. Ct. 586

(1996); Vende Zande, 44 F3 : 538. As the Court of

Appeals for the Third Circuit recently stated:

In Mengine [v. Runyon, 114 F.3d 415 (3d Cir.

1997)], we highlighted the importance of

communication and coope ration between

employers and employees in seeking reason-

able accommodations. Specifically, we noted

that, in the context of the Rehabilitation Act,

“both parties have a duty to assist in the

—

search for appropriate reasonable accom-

modation and to act in good faith.”

Deane v. Pocono Medical Center, 142 F.3d at 149 (quot-

ing Mengine, 114 F.3d at 416, 420 (citations omit-

ted)).!

In Mengine v. Runyon, 114 F.3d 415 (3d Cir. 1997),

the court Stated that

both employer and employee must “make

reasonable efforts” to help determine “what

specific accommodations are necessary.”

Beck [v. University of Wis. Bd. of Regents, 75

F.3d 1130, 1135 (7th Cir. 1996)].

[B]oth parties have a duty to assist

in the search for appropriate reasonable

accommodation and to act in good faith. In

order to satisfy the requirements of the

Rehabilitation Act, the Postal Service had

the duty to make reasonable efforts to assist

Mengine, to communicate with him in good

faith, and to not impede his investigation.

see Beck, 75 F.3d at 1135 (“A party that

obstructs or delays the interactive process is

not acting in good faith. A party that fails to

communicate,—by way of initiation or

response, may also be acting in bad faith.”):

see also Hunt-Golliday v. Metropolitan Water

Keclamation District of Greate? Chicago, 104

[he Rehabilitation Act, not the ADA, was construed in

Deane. However “Interpretations of the Rehabilitation Act’s

reasonable accommodation’ provisions are relevant to [the]

analysis of the ADA and vice versa because in 1992, Congress

amended the section of the Rehabilitation Act defining

reasonable accommodation’ to inc orporate the standards of the

ADA.” Deane, 142 F.3d at 149 fn. 1

F.3d 1004, 1012 (7th Cir. 1997) (“[D]etermin-

ing what specific actions should be taken by

an employer requires an interactive process

involving participation by both sides.”); Tay-

lor v. Principal Financial Group, Inc., 93 F.3d

155, 165 (5th Cir. 1996) (The “employee's

initial request for an accommodation

triggers the employer’s obligation to partici-

pate in the interactive process. ee re.

denied, U.S. OLS: oe ah aoe oe

L.Ed.2d 515 (1996)

Id. at 420.

As the Third Circuit concluded in Deane, “an

employer who fails to engage in the interactive proc-

ess runs a serious risk that it will erroneously over-

look an opportunity to accommodate a statutorily

disabled employee, and thereby violate the ADA.”

142 F.3d at 149

That is just what Clinton Township failed to do

in Mr. Fasone’s case, and the result is just what the

Third Circuit warned. When Mr. Fasone’s disability

made it impossible for him to perform some of the

tasks of firefighting, he requested assignment to the

position of Fire Prevention Officer. This position had

already been created and was fully funded, but was

unfilled. A52. See Mengine. The duties of that posi-

tion were performed by firefighters. And after Mr.

Fasone’s request was denied, the Fire Chief assigned

someone else to those duties. A66.

But Clinton Township never even considered

accommodating Mr. Fasone, investigating possi-

bilities in which it might do so, or even discussing

the possibility with him. Appellee Pember candidly

admitted that she did not even investigate the mat-

ter. A71-73. See also A67-A69. This failure to consider

accommodation indicates bad faith on the part of

Clinton Township, raising the inference of a pretext:

“Bad faith in the interactive process necessarily sug-

gests a desire not to accommodate an employee's

disability, or to put it another way, suggests discrimi-

natory animus,” so that there is “consequentially an

inference of pretext and intentional discrimination.”

Valentine v. American Home Shield Corp., 939 F. Supp.

1376, 1401-02 (N.D. Iowa 1996). Because of Clinton

Township’s admitted failure to engage in the interac-

tive process as required by Deane and other cases.

the District Court’s grant of summary judgment in

this case was improper. The Sixth Circuit’s Opinion

affirming that grant of summary judgment is in

direct conflict with the position of the Third, Fifth,

and Seventh Circuits, as set forth in, inter alia, Deane,

Taylor, and Dalton.

CONCLUSION

For each of the foregoing reasons, and for all of

them, the Petitioner respectfully submits that the

Court should grant the writ in this case.

Respec tfully submitted,

Br NSON A. WOLLMAN

Counsel of Record

SusAN B. GELLMAN

NELSON E. GENSHAFI

WoLtMAN, GENSHAFT & GELLMAN

341 South Third Street, Suite 301

Columbus, Ohio 43215-5463

felephone: (614) 280-1000

Facsimile: (614) 280-9000

Davip K. STEIN

32 West Hoster Street

Columbus, Ohio 43215

felephone (614) 221-9100

Facsimile: (614) 221-7

]

—

aes »] , Dotytye 12¥r

Counsel for Petitioner

NOT RECOMMENDED FOR FULL-TEXT

PUBLICATION

No. 97-3267

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Defendants-Appellees.

AUGUST FASONE, ’ ON APPEAL FROM THE

ee ) UNITED STATES

ff-

Plaintiff-Appellant, . istrict COURT FOR

¥. ) THE SOUTHERN

CLINTON TOWNSHIP, ) DISTRICT OF OHIO

et al.,

)

(Filed April 3, 1998)

Before: Merritt and Clay, Circuit Judges; and Bell,” Dis-

trict Judge.

MERRITT, Circuit Judge. Plaintiff August Fasone

sued the Clinton Township and several of its employees

alleging: (1) discrimination based on handicap in viola-

tion of the Americans with Disabilities Act, 42 U.S.C.

§ 12112(a); (2) a hostile work environment based on his

Italian heritage in violation of 42 U.S.C. § 1981 and Ohio

Revised Code § 4112.02; and (3) a due process violation

with respect to a five-day suspension. The District Court

dismissed Fasone’s case on summary judgment. We

affirm.

* The Honorable Robert Holmes Bell, United States District

Court Judge for the Western District of Michigan, sitting by

designation

eae manana ia

Fasone’s handicap discrimination claim is without

merit. A plaintiff who has suffered an adverse employ-

ment decision because the employer relief on the plain-

tiff’s disability must show: (1) that he is a disabled person

within the meaning of the Act; and (2) that he is “other-

wise qualified” for the position despite his disability: (a)

without accommodation; (b) with an alleged “essential”

job requirement eliminated; or (c) with a proposed rea

sonable accommodation. Monette v. Electronic Data Sys

1186 (6th Cir. 1996). There is no

tems Corp., 90 F.3d 1173,

dispute that Fasone lost his job because his disability

prevented him from accomplishing the duties of a fire-

fighter. Fasone argued that the fire department could

have made a reasonable accommodation by permitting

him to work in the light duty job of fire prevention

officer. However, Fasone was unable to rebut defendants’

evidence that there was no vacant position of fire preven

tion officer. Thus, Fasone was actually requesting that the

fire department create a new position for him

“|E]mployers are not required to create new positions for

disabled employees in order to reasonably accommodate

the disabled individual.” Monette, 90 F.3d at 1187. More-

over, the position of fire prevention officer or fire inspec -

tor “would also be required to function as an on-company

firefighter at anytime” (App. 97, affidavit of Fire Chief

Slickle). Therefore, Fasone’s proposed accommodation

was not reasonable because it was based on speculation

or hopes about what the city might do, not on the exis-

tence of a ready accommodation

Fasone’s claim that the fire department discriminated

wainst him and created a hostile work environment

because of his Italian ethnicity fails as well. Under federal]

law, a plaintiff can prove that he was subject to a hostile

work environment by showing “the frequency of the

discriminatory conduct; its severity; whether it is physi-

cally threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an

employee’s work performance.” Harris v. Forklift Systems,

Inc., 510 U.S. 17, 23 (1993). Ohio law also creates a claim

for workplace harassment that interfered with the

employee’s work performance or ¢ reated an intimidating

or hostile environment. Delaney v. Skylire Lodge, Inc., 642

N.E.2d 395 (O'o Ct. App. 1994) (listing elements for

workplace ha ‘ment claims). Although Fasone stated

that he was subject to constant harassment, he was able to

identify only a few specific discriminatory comments

rhe few comments were insufficient to establish a hostile

work environment under either federal or Ohio law.

Fasone’s claim that Clinton Township violated his

right to due process by giving him a five-day suspension

without a thorough hearing fails because Fasone has not

proved that he had a protec ted property interest at stake

in his suspension. During the period immediately before

the suspension, Fasone was expending his accrued sick

leave and knew that he could not return to work as a

front-line firefighter. During the suspension, Fasone was

not forced to expend his sick leave Therefore, he received

the five days of pay two months later, at the end of his

leave period. The inconvenience that resulted from the

delay was de minimus and does not require due process

protection. See Carter v. Western Reserve Psychiatric Habilt

tation Ctr., 767 F.2d 270 (6th Cir. 1985) (holding that a two

day suspension without pay involving a matter of routine

discipline was a de minimus property deprivation not

deserving of due process protection); Sewell v. Jefferson

County Fiscal Court, 863 F.2d 461 (6th Cir. 1988) (holding

no due process violation for plaintiff who was demoted

without a hearing but subsequently reinstated with full

back pay).

Accordingly, we affirm the District Court’s grant of

summary judgment in favor of the defendants

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

AUGUST FASONE,

Plaintiff,

CLINTON TOWNSHIP, et al.,

Defendants

OPINION AND ORDER

(Filed Feb. 28, 1997)

On July 18, 1996, this Court issued an opinion grant

ing summary judgment in favor of Clinton Township and

the other defendants in this case. The Court entered

judgment on July 23, 1996. Plaintiff August Fasone

(“Fasone”) asks this Court to alter that judgment or to

give him relief from judgment under Rules 59(e) and

60(b) of the Federal Rules of Civil Procedure. For the

reasons that follow, the Court DENIES the motion.

I. Standard of Review

Fasone’s motion cites two standards of review. First,

Fasone moves for this Court to alter its judgment put

suant to Rule 59(e) of the Federal Rules of Civil Pro-

cedure. This portion of the motion asks the Court to

review and correct a manifest error of law. See 6A James

Wm. Moore et al., Moore's Federal Practice | 59.03 at p

59-13 (2d ed. 1996) (Rule 59(e) motion falls within court's

‘plenary power over interlocutory motions”).

Second, Fasone argues that his motion should be

considered under Rules 60(b)(2) and (6). Rule 60(b) pro-

vides, in pertinent part:

On motion and upon such terms as are just, the

court mav relieve a party .. . From a final

udgment .. . for the following reasons:

(2) newly discovered evidence which by

due diligence could not have been discov-

ered in time to move for a new trial under

Rule 59(b):

(6) any other reason justifying relief from

the operation of the judgment

Fasone argues that relief from judgment is necessary in

this case because Fasone produced evidence partic-

ularly, the depositions of Ronald Legg and defendant

Peggy Pember that repudiates the Court’s judgment

entered in this case. Fasone asserts that these depositions

were not available before the Court entered judgment

because the depositions were taken on July 2, 1996, about

two weeks before the Court entered its summary judg-

ment opinion

\lthough Fasone cites two separate procedural rules

Fasone essentially seeks reconsideration of this Court’s

iudgment. Motions for reconsideration serve a limited

function to correct manifest errors of law or fact or to

. . ”A — . . Deajshhech Doc? ;

pre ent ne w ly discovered evidence ruHOLUSHeETS NESOUTCE

In Walker-Davis Publishing, Inc., 762 F.2d 557, 561 (7th

Cir. 1985). Motions for reconsideration should not intro-

duce evidence that could have been adduced during the

pendency of a summary judgment motion. I[d.; see also

Hopper v. Euclid Maner Nursing Home, Inc., 867 F.2d 291,

294 (6th Cir. 1989). Accordingly, reconsideration is not an

appropriate forum for rehashing previously rejected

arguments or arguing matters that could have been heard

earlier. Caisse Nationale de Credit v. CBI Industries, 90 F.3d

1264, 1270 (7th Cir. 1996).

Here, Fasone has not presented the Court with

“newly acquired evidence” sufficient to satisfy the

requirements of either Rules-59 or 60. The depositions of

Legg and Pember were taken weeks before the Court

entered its opinion on summary judgment, and the tran-

scripts could have been available to the parties (and

therefore the Court) well before judgment was entered

Fasone has not given any reason for his failure to submit

this evidence as soon as it was available. Because Fasone

has not presented evidence that was truly newly discov-

ered. and because he has not cited new law, Fasone’s

motions for reconsideration are without merit.

Il. Reconsideration of the Federal and State Handicap

Discrimination Claims

Fasone’s failure to come forward with “new evi-

dence” or legal arguments is dispositive of his motions

However, a week after this Court entered judgment in

this case, and before Fasone filed the instant motion for

reconsideration, the Sixth Circuit announced a major

opinion interpreting the Americans with Disabilities Act.

In order to resolve Fasone’s motion completely, the Court

will briefly address the standards enunciated in Monette

Electronic Data Systems Corp., 90 F.3d 1173 (6th Cir

1996).

In this Court’s original opinion dated July 18, 1996,

the Court concluded that Fasone satisfied his prima facie

burden to show that a reasonable accommodation to his

disability was possible because Clinton fownship

employed a light duty firefighter in the past. (Op. and

Order dated July 18, 1996 at p. 11.) This Court then

shifted the burden of production to the defendants to

show that the proposed accommodation created an undue

hardship. The Court concluded that the accommodation

was an undue hardship as a matter of law because

Fasone’s proposed accommodation would have required

Clinton Township to create a new light duty position

where none existed. (/d. at pp. 12-13.)

In light of Monette, the Court reconsiders the frame-

work that it used to analyze Fasone’s arguments. Roger

Monette was a customer service representative for Elec

tronic Data Systems (“EDS”) when a workplace injury

rendered him unable to work. Monette received indef;

nite medical leave from EDS. When EDS refused to give

Monette long term disability benefits, however, Monette’s

employment with EDS terminated. A month later, Mon-

ette returned to EDS and requested his old job. EDS could

not give Monette his old job because it had already filled

the position; instead, EDS put Monette on unpaid leave

for thirty-seven days. When nothing opened up during

that time, EDS terminated Monette.

Like the present case, Monette addressed the common

situation where an employer is aware of an employee's

disability and makes an employment decision based at

least in part on the limitations imposed by the disability

In such a case, a burden-shifting analysis similar to the

familiar framework of McDonnell Douglas Ci rp. v. Green

411 U.S. 792, 802-3 (1973), applies. Under the Monette

framework, a plaintiff employee bears the prima facie

burden to show that he is disabled and that, with or

without a reasonable accommodation, he is “otherwise

qualified” for an existing position. Monette, 90 F.3d at

1186. The burden then shifts to the employer to produce

evidence of a legitimate explanation for its decision not to

place the plaintiff in that position. Id. If the employer

satisfies this burden, the burden then shifts back to the

plaintiff to show that the employer’s proffered explana-

tion is pretextual. Id. The ultimate burden of persuasion

always remains with the employee. /d. at 1186-1187. The

employer, meanwhile, may use “undue hardship” as an

affirmative defense.

Fasone’s claims fall short of Monette’s legal standards

because an employee's prima facie burden under Monette

is more substantial than the burden that this Court origi

nally applied in this case. An employee has not met his

prima facie burden, for example, where he requests indefi

nite leave until a position opens up or where he would

require the employer to create a new position in order to

accommodate his disability. Jd. at 1187. By this standard,

Fasone’s proposed accommodations were unreasonable

[he uncontradicted evidence presented on the motion for

summary judgment was that Clinton Township does not

employ a light duty firefighter because the regular front

line firefighters perform all of the light duties during

their down time at the fire station. (See Op. and Order

dated July 18, 1996 at pp. 12-13.) Placing Fasone in a light

duty firefighter role would, therefore, create a new posi-

tion, an accommodation that is presumptively unreason

able. Here. where Fasone has not shown that financial

A110

considerations make the creation of a light duty position

possible, he has not carried his burden on summary

judgment.

III. Reconsideration of the Federal and State Hostile

Work Environment Claims

In addition to his failure to present evidence that is

sufficient to satisfy the Sixth Circuit’s standard for

addressing ADA claims, Fasone has also failed to pro-

duce evidence sufficient to maintain his hostile work

environment claims. Under Harris v. Forklift Systems, Inc.,

510 U.S. 17, 23 (1993), a plaintiff can prove that he was

subject to a hostile work environment by showing “the

frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a

mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.” Id. at

23. Here, even with Fasone’s “new” evidence, he has not

adequately addressed Harris’s elements. Even assuming

that Fasone’s vague description of “continuous” abuse

can show that he was often the butt of fire station jokes,

Fasone does not describe the conduct sufficiently to indi-

cate that the abuse was based on Fasone’s ethnic heritage.

Indeed, although Fasone argues that the abuse was

severe, he can list only four arguably ethnic epithets

directed at him over a two year period, and he has not

adduced evidence linking a physical assault to his ethnic

heritage. Fasone has not shown that his work perfor-

mance suffered as a result of the slurs that were directed

towards him. Accordingly, the Court cannot alter the

All

judgment that it entered on Fasone’s hostile work envi-

ronment claims.

IV. Conclusion

Fasone’s motions to alter judgment or for relief from

judgment are based upon evidence that was available at

the time that this Court issued its original opinion for

summary judgment. Therefore, the motions are not well

taken and are DENIED. Notwithstanding Fasone’s failure

to present a proper basis for reconsideration of this

Court's prior decision, however, the Court has considered

Fasone’s additional evidence and arguments and con-

cludes that Fasone’s motions also fail as a matter of law.

Under the new Monette standard for addressing ADA

claims, Fasone has not satisfied his burden to show that a

reasonable accommodation of his disability was possible.

In addition, Fasone has not fulfilled the Harris require-

ments for proving a claim of hostile work environment.

IT IS SO ORDERED.

/s/ Joseph P. Kinneary

UNITED STATES DISTRICT

JUDGE

Al2

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

AUGUST FASONE, et al.,

Plaintiffs,

V. Case No. C-2-93-420

CLINTON TOWNSHIP,

et al.,

Defendants.

OPINION AND ORDER

(Filed Jul. 23, 1996)

[his matter is before the Court on the Defendants’

motion for summary judgment on all of the Plaintiff’s

remaining claims. For the reasons that follow, the Court

GRANTS the motion.

Summary judgment is available in favor of a moving

party when there is no issue of material fact and the

moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c). The moving party has the initial

burden of either submitting affidavits in support of its

motion or pointing to unproven elements in the adverse

party’s claim. Id. Once the initial burden is fulfilled, the

adverse [nonmoving] party may not rest upon

the mere allegations or denials of the adverse

party’s pleading, but the adverse party’s

response ... must set forth specific facts that

show that there is a genuine issue for trial.

Al3

Fed. R. Civ. P. 56(e). If the nonmoving party presents

evidence that is “merely colorable” or “not significantly

probative,” then summary judgment may be granted.

Anderson v. Liberty Lobby, 477 U.S. 242, 249-250 (1986).

Thus, summary judgment must be entered “against a

party who fails to make a showing sufficient te establish

the existence of an element essential to that party’s case,

and on which that party will bear the ultimate burden of

proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). In this posture, all of the nonmoving party’s evi-

dence must be believed and all reasonable inferences

drawn in his favor. Russo v. City of Cincinnati, 953 F.2d

1036, 1042 (6th Cir. 1992).

In this case, however, the traditional rule of drawing

inferences in favor of the nonmoving party has one slight

twist: the Court will not find that an issue of material fact

exists if the only basis for the question of fact arises from

differences between statements made by a deponent at

his deposition and statements made by the same depo-

nent in a subsequent affidavit. See Gagne v. Northwestern

at’l Ins. Co., 881 F.2d 309, 315 (6th Cir. 1989)

II.

August Fasone (“Fasone”) became a full time “front

line” firefighter for the Clinton Township Fire Depart

ment (“CTFD”) on April 2, 1982. In the CTFD, a fire-

responsible for responding to fire alarms and

other emergency calls to protect life and prop-

erty, and for participating in fire prevention,

Al4

station maintenance and training activities, per-

forms [sic] other related duties or jobs as may,

from time to time, be required.

(Personnel Procedures of CTFD § 600.00.) In Fasone’s ten

years as a firefighter, he performed duties that included

physical exertion, such as fire suppression and paramedic

services. His other duties included performing safety

inspections and reviewing paperwork.

In 1991 and 1992, Fasone suffered a series of hip

injuries that forced him to take time off from work, to ask

the Fire Chief for light duty work, and even to pursue the

possibility of collecting disability benefits. When the Fire

Chief denied Fasone’s request for light duty work,

though, Fasone went back to work as a front line fire-

fighter. In late 1992, Fasone suffered another injury and

underwent hip replacement surgery. As a result of this

surgery, Fasone cannot engage in activities that include

lifting, bending, twisting, or prolonged standing; Decem-

ber 16, 1992 was his last day as a front line firefighter.

Fasone used sick leave to extend his employment until

1993 and retired from the CTFD on June 29, 1993.

foday, although Fasone is completely disabled from

his job as a front line firefighter, he can perform less

strenuous job duties; he asserts that he could, for exam-

ple, fill the role of a “light duty” firefighter, who would

handle office work but not respond to emergency calls, or

serve as a fire prevention officer, whose job it is to con-

luct building inspections and issue permits. The CTFD

has, in the past, assigned firefighters to temporary light

duty positions and has also employed a full time fire

yrevention officer. The CTFD refused, however, to place

‘

Fasone in either ty pe of position

Al15

After Fasone suffered his final hip injury and during

the time that Fasone was on leave, Fire Chief Stickle, who

replaced Fire Chief Mitchell in November 1992, told

Fasone that he was under investigation for using a fire

truck for personal business and asked Fasone for his side

of the story. Fasone later received a written notice of an

impending disciplinary hearing. Fasone brought an attor-

ney to the hearing, which was held on February 18, 1993.

At the hearing, however, Fasone was never afforded the

opportunity to present his side of the facts or to present

evidence in mitigation of his punishment. The CTFD

found that Fasone used a fire truck for personal business,

and further found that he obstructed the CTFD’s investi-

gation. As a result of these charges, Fasone was sus-

pended without pay for five days. He did not have to use

leave days during the suspension.

In addition to his problems at the end of his tenure,

Fasone’s experiences while a member of the CTFD were

not pleasant ones, as he endured “countless” derogatory

remarks directed at him by his peers on the squad. Some

of these remarks were motivated by Fasone’s half-Italian

ancestry; for example, since 1991 he has been called an

“ignorant Italian” and a “dago.” According to one former

firefighter, almost every member of the Cl FD made jokes

about Italians at one time or another. In addition, Fasone

suffered insults directed at his religion (“no-account

Catholic”) and his parents’ different ancestries (“half-

breed”). Fasone attributes most of the derogatory com-

ments directed at him to one man, Lieutenant Pat Stokes,

but two other men, former Fire Chief Michael Mitchell

and Lieutenant John Harris, also made these types of

comments.

OR ne ee

Al6

Fasone kept track of the insults directed at him in a

calendar; he also referred each instance to his super-

visors, including Fire Chief Mitchell and Trustee Larry

Wilkes. However, Fasone asserts that neither man

remedied the problem. The cumulative effect of the slurs

made Fasone feel “bitter” and like a “third-class citizen.”

Based upon the foregoing facts, Fasone seeks relief

from Clinton Township; John Frost, Larry Wilkes, and

Penny Pember, who are all trustees of Clinton Township;

Randy Stickle, the current Fire Chief of the CTFD: and

Rebecca Christian, Clinton Township Clerk.i Fasone

claims relief on several separate theories. First, he claims

that his suspension from the CTFD was without due

process of law because he was denied a postdeprivation

hearing; this claim is brought under 42 U.S.C. § 1983.

Second, Fasone claims that the CTFD discriminated

against him on the basis of his handicap in violation of

both federal and state law when it refused to reasonably

1! The Court is somewhat puzzled as to which theories

Fasone is pursuing against which Defendants. Fasone’s third

amended complaint, his most recent, captions “Clinton

Township, et al.” as the Defendants. In that compiaint, Fasone

refers by name to Defendants John Frost, Larry Wilkes, Penny

Pember, and Randy Stickle, but he does not identify any

particular conduct by these persons that falls within the scope

of his claims. Defendant Rebecca Christian, meanwhile, is

mentioned in several depositions and exhibits but, to the best of

the Court’s observation, is not mentioned in any of the parties’

pleadings. Nevertheless, because the Defendants have retained

joint counsel and because they jointly submitted their motion

for summary judgment, the Court will consider this motion as to

all Defendants. Moreover, unless otherwise noted, the Court

will refer to the Defendants collectively as “the CTFD.”

A117

accommodate his physical impairment by assigning him

to light duty work or to duty as a fire prevention officer.

Third, Fasone claims that he was discriminated against by

the CTFD on the basis of his Italian-American heritage in

violation of 42 U.S.C. § 1981 and state civil rights law.

Ill.

A. Procedural Due Process Claim

Fasone’s first claim is that Clinton Township violated

his constitutional right to due process by giving him a

five day suspension without a thorough hearing on the

suspension. This constitutional tort claim, which is

brought under 42 U.S.C. § 1983, requires Fasone to show

that he had a protected constitutional right and that the

CTFD violated that right. See Collins v. City of Harker

Heights, 503 U.S. 115, 119 (1992). Because Fasone’s partic-

ular allegations involve due process, Fasone must first

show that he had a legally protectable interest that enti-

tled him to due process. Mathews v. Eldridge, 424 U.S. 319,

332-33 (1976). Here, although Fasone could presumably

allege that he has either a protectable property interest o;

liberty interest at stake in his suspension, this Court

concludes that he had neither and therefore that he had

no actionable right to due process in the events surround-

ing his suspension.

Fasone asserts that he had a property interest at stake

at the time of his suspension because “he would have

been compensated during the time [of the suspension]

but because of the . . . suspension he received no compen-

sation during the five day period.” (Mem. Opp. D.’s Mot.

for Summ. J. at 18.) The Sixth Circuit has held that five-

A18

day suspensions from work can qualify as protected

property interests. See Boals v. Gray, 775 F.2d 686, 689 n.5

(6th Cir. 1985) (addressing a five day suspension com-

prised of separate two and three day suspensions). This

case, however, does not involve a typical five day suspen-

sion; unlike the regular government employee who has a

property interest in his job, Fasone was on leave at the

time of his suspension, knew that he would not be able to

return to work as a front line firefighter, and had

informed the CTFD of his condition. He was merely

expending his accrued sick leave. The CTFD, meanwhile.

did not force Fasone to expend his sick days during his

suspension period, and did not permanently withhold

iny wages; Fasone’s wages for the five day period were

merely delayed from the time of his suspension until the

end of his leave period two months later. Thus, the prop-

erty interest involved in this case is similar to the interest

involved in a case in which an employee is suspended

without due process but is subsequently reinstated with

tull backpay. Cf. Sewell v. Jefferson County Fiscal Court, 863

F.2d 461, 467 (6th Cir. 1988). In either case, there is no

permanent loss of wages and, accordingly, only a de min

ins loss of property. No cognizable property interest is

affectea by the emplover’s actions.

In addition to the property interest that this Court

holds to be de minimis, Fasone’s pleadings suggest that he

believes that he suffered an injury to a protected liberty

interest because the incomplete process afforded him by

the CTFD harmed his reputation. Like Fasone’s asserted

property interest, however, this claim fails. The Supreme

Court has declared that injuries to reputation alone are

. . . . Da f =o, fF Tat"

not enough to create a need for due process. Paul v. Davis

Al9

424 U.S. 693, 710-711 (1976); see also Mertik v. Blalock, 983

F.2d 1353, 1362 (6th Cir. 1993). Fasone has not asserted

that any harm to his reputation spread further. Fasone

has not, for example, asserted that his suspension has

caused a stain on his resume or hindered his job search.

In fact, Fasone has not sought new employment of any

kind since his suspension. Moreover, and as discussed

above, any property interest affected by the suspension

was minimal. Therefore, this Court concludes that Fasone

has not alleged a sufficient liberty interest to give rise to

due process protection. Because Fasone was similarly

deficient in his burden to allege an injury to a property

interest, this Court GRANTS the Defendants’ motion for

summary judgment on Fasone’s § 1983 claim.

B. Discrimination on the Basis of Handicap

Fasone’s second set of claims is that the CTFD dis-

criminated against him on the basis of his physical

impairment by not placing him in a permanent light duty

position. For the reasons that follow, the Court concludes

that these claims are without merit.

1. Federal Claim

——

- the Americans with Disabilities Act, discrimi-

nation on the basis of handicap occurs w hen an employer

fails to make “reasonable accommodations to the known

physical . limitations of an otherwise qualified individ-

ual with a disability who is an applicant or employee.” 42

U.S.C. §& 12112(b)(5)(A). Fasone asserts and this Court

A20

employer’s accommodation of a disabled employee is an

individualized one that must turn on the circumstances of

the individual employer and employee. See Hall v. United

States Postal Service, 857 F.2d 1073, 1078-1079 (6th Cir.

1988) (under the Rehabilitation Act). The need for an

individualized inquiry, however, does not foreclose the

appropriateness of summary judgment when as a matter

of law no reasonable accommodation is possible. See Han

kins v. The Gap, Inc., 84 F.3d 797 (6th Cir. 1996).

On a defense motion for summary judgment, ADA

claims involve the same shifting-burden test that is used

in Title VII disparate treatment cases. See Blankenship v.

Martin Marietta Energy Systems, 83 F.3d 153, 154 (6% Cir.

1996) (listing elements of a prima facie case as (1) disabil-

ity; (2) adverse action by the employer because of the

disability; and (3) ability to perform “essential functions”

of the job with reasonable accommodations). First, the

handicapped individual must make a prima facie show-

ing that he has faced adverse employment action even

though he is a “qualified individual with a disability.” 42

U.S.C. § 12212(b)(5)(A); Jasany v. United States Postal Ser

755 F.2d 1244, 1249-50 (6th Cir. 1985) (discussing

Rehabilitation Act). A “qualified individual with a dis-

vice,

ability” is one who, with or without reasonable accom-

modation, can fulfill the essential qualifications of the job.

42 U.S.C. § 12111(8). A reasonable accommodation can

include “job restructuring” or “reassignment to a vacant

position.” 42 U.S.C. § 12111(9)(B). After identifying an

accommodation that could have been made, an otherwise

qualified employee must show that the proffered accom-

modation is reasonable “in the sense both of effi-

cacious[ness] and of proportion[ ] to costs.” Vande Zande

A2]

v. State of Wisconsin Dep’t of Admin., 44 F.3d 538, 543 (7th

Cir. 1995) (identifying separate meanings for the statutory

terms “reasonable” and “undue hardship”). Thus, in

addition to showing that an accommodation Is physically

possible, a plaintiff under the ADA has some minimal

burden to show that the proposed accommodation 1s

economically tenable.

Once the plaintiff makes his prima facie showing, the

defendant employer must demonstrate that the estab-

lished criteria for a job are related to the essential func

tions of the job and that altering the conditions would

cause that employer to suffer an undue hardship. Jasany

755 F.2d at 1250. An accommodation imposes an “undue

hardship” when the costs of the accommodation art

excessive “in relation either to the benefits of the accom-

modation or the employer's financial survival or health

Id.; see also 42 U.S.C. § 12111(10)(B) (factors to be consid

ered in determining whether an accommodation imposes

an undue hardship). The plaintiff then has the oppor-

tunity to produce evidence refuting the employer's pro!

fered explanation and evidence. The Court considers ea:

of these stages in turn.

pad

Fasone has met his prima facie burden. Cl

fownship does not contest, at least at this stage of the

proceedings, that Fasone is an individual with a disability

within the definition of the Act. See Taylor v United State:

Postal Service, 946 F.2d 1214, 1217-18 (6th Cir. 1991) (hand

icapped individual is one who has physical impairment

that limits a major life activity). Moreover, because

Fasone has limited his claim to his belief that he was

entitled to a “light duty” position, Fasone need not show

A22

that he was qualified for the position of front line fire-

fighter, and the CTFD apparently does not contest that

Fasone is qualified for permanent light duty or fire pre-

vention work. In addition, Fasone has put forth evidence

suggesting that the CTFD has light duty work that must

be done, that the CTFD has, on occasion, assigned people

to temporary light duty, and that the CTFD even used to

have a permanent fire prevention officer, a role that

Fasone could fill. As a result of these showings, Fasone

has fulfilled his prima facie burden to show that he is a

qualified individual who can be accommodated by

assigning him to duties that are currently within the

purview of others in the CTFD

[he burden now shifts to the CTFD to return with

showing that the accommodation suggested by Fasone

would cause the CTFD to suffer undue hardship. The

CTFD has met this burden. The following facts are undis-

puted: (1) the CTFD has not had a full time fire preven

tion officer since 1991; (2) since 1992, the duties of the fire

prevention officer have been handled by a full time front

line firefighter in conjunction with his other front line

duties; (3) the CTFD has never provided a permanent

light duty position to a firefighter; (4) since 1991, revenue

in Clinton Township has declined because businesses in

the township have closed; (5) the lower revenues for the

township have resulted in lower allocations for the

C TED; (6) since 1993, the CTFD has closed one of its two

fire stations and reduced its payroll from sixteen full time

and twelve part time firefighters to eight full time and

twenty part time firefighters; and (7) the reduction in the

number of firefighters was a response to the increasing

osts of maintaining the force, and in particular to the

A23

cost of the benefit package given to full time firefighters.

Based on these undisputed facts, the Court concludes that

the CTFD did not have an open position available at the

time that Fasone says that the CTFD should have given

him a fire prevention or light duty post. The CTFD could

not have reassigned him to a vacant position to accommo-

date his disability

In addition, the Court concludes that the Cl FD could

not have reconfigured its work duties to allow for a light

duty position without suffering undue hardship because

duties within the CTFD are currently configured so as to

maximize fire protection while minimizing cost to the

ownship. A firefighter must spend twenty-four consecu-

tive hours at the fire station. During this time, the fire-

shter has office duties to perform between 8:00 a.m. and

-.(\() p.m. The remainder of the day is basically free time

for the firefighters, although the firefighters on duty must

remain at the station prepared to respond to emergency

calls throughout the twenty-four hour shift, including

their daytime period of office duty. By arranging the

work schedules in this manner - so that front line fire-

fighters can do light dutv work while they are on hand

for emergency duty — the CI FD minimizes the number of

firefighters necessary and therefore minimizes its budget

If the CTFD were to assign one employee to purely light

dutv work, it would not only have to create an entirely

new position, but it would also lose some portion of the

benefit of having its other employees doing office work

. - ] f }

hile they wait for an emergency call. Cf. School Bd. of

au Cty. v. Arline, 480 U.S. 273, 289 n.19 (1987) (duty to

restructure job functions does not include duty to create

b); Cooper Oak Rubber Co., 15 F.3d 1375, 1379-80

A24

(6th Cir. 1994) (no duty to add a new employee in order

to accommodate religious beliefs); Hall v. United States

Postal Service, 857 F.2d 1073, 1079 (6th Cir. 1988) (under

Rehabilitation Act, elimination of an essential element of

a job is not a reasonable accommodation). Based upon

these facts, this Court concludes that no reasonable juror

could find that Fasone’s proposed accommodation

which would have the CTFD retaining him in a light duty

capacity at a time when budgetary considerations were

forcing it to reduce the number of front line firefighters

on duty — could be accomplished without undue hard-

ship. Fasone has not offered any evidence that tends to

rebut the CTFD’s argument and evidence, so Fasone must

lose his ADA claim based upon the CTFD’s failure to

reasonably accommodate his disabilities.

Fasone’s second argument under the ADA - that the

CTFD discriminated against him on the basis of his dis-

ability by failing to consider him for a light duty post

even though none was available - is similarly without

merit. Although Fasone’s argument arises squarely out of

the policies behind the ADA and the desire to prevent

employers from deciding ab initio that the handicapped

are not able to meet the standards of “able” society, the

argument creates a cause of action that is impossible to

police and that results in no damages. Here, even if

Fasone had come forth with some evidence showing that

the CTFD never considered accommodating him -— which

he has not, because the only testimony on the record is

that the cost of a light duty position was too high for

Fasone to be retained in that capacity (Stickle Depo. at 62,

66, 84) — he still would not be able to produce evidence of

damages that he suffered. In addition, Fasone’s argument

virtually opens the door on imposing civil liability based

only on bad thoughts, an area perilously close to

encroaching upon the protections of the First Amend-

ment. This Court has no reason to take that step in this

case, and doubts that it would in others. The CTFD’s

motion for summary judgment on Fasone’s ADA claim is

GRANTED.

2. State Claim

In addition to his federal ADA claim, Fasone asserts

that the CTFD violated his rights under Ohio anti-

discrimination law. However, the Ohio laws parallel the

federal ADA. Wooten v. City of Columbus, 91 Ohio App. 3d

326, 334-35 (1993). Ohio law even includes the shifting

burden of proof structure for addressing a defendant's

motion for summary judgment. Little Forest Med. Ctr. of

Akron v. Ohio Civ. Rights Comm'n, 61 Ohio St. 3d 607,

609-10 (1991). Accordingly, by concluding that the CTFD

was entitled to judgment as a matter of law on Fasone’s

federal handicap discrimination claims, this Court almost

necessarily concluded that Fasone’s state claim for hand-

icap discrimination under Ohio Revised Code § 4112.02

was without merit. Moreover, Fasone has not put forth,

and this Court cannot find, precendent [sic] suggesting

that § 4112.02 should be interpreted more broadly than

the ADA in this case. The Court GRANTS the CTFD's

§ 4112.02

motion for summary judgment on Fasone’s §

claim.

A26 -

C. Discrimination on the Basis of Ethnicity

Fasone’s next set of claims allege that he was dis-

criminated against by the CTFD based upon his ethnicity

as an Italian-American. The federal claim is brought

under 42 U.S.C.

Revised Code §

1981 and the state claim under Ohio

4112.02 and 4112.99. Neither claim

alleges that this discrimination cost Fasone his job with

the CTFD; instead, Fasone’s claims are based upon a

workplace harassment theory of liability. The Court

GRANTS the CTFD’s motion for summary judgment on

these claims.

1. Federal Claim

On its face, § 1981 guarantees all citizens rights equal

to those given to “white persons”; however, white per-

sons may seek protection under the section if they belong

to an ethnic group that was considered a discrete race to

the nineteenth century drafters of § 1981. St. Francis Col-

lege v. Al-Khazraji, 481 U.S. 604, 612-13 (1987); see also

Bisciglia v. Kenosha Unified School Dist. No. 1, 145 F.2d 223

(7th Cir. 1995) (Italians have colorable § 1981 claims).

Accordingly, and as discussed in this Court’s Opinion

and Order of November 22, 1994, Fasone’s claim under

§ 1981 is colorable because he asserts that he suffered

workplace discrimination due to his Italian ancestrv.

Similarly, even though the language of § 1981 only

protects the right to “make and enforce contracts,” § 101

of the Civil Rights Act of 1991 broadened the scope of

making and enforcing contracts to include acts that occur

A27

in the course of employment.2 However, because a civil

cause of action for workplace harassment did not arise

until the passage of § 101 of the 1991 Act, only acts of

workplace harassment that occurred after November 21,

1991 are actionable under § 1981. Rivers v. Roadway

Express, Inc., 511 U.S. 298, 114 S. Ct. 1510, 1519-20 (1994).

Thus, the CTFD can be held liable to Fasone only for acts

of harassment that occurred after the effective date of the

statute.

The CTFD challenges Fasone’s § 1981 claim on two

grounds. First, even though § 1981 protects persons based

on their ethnicity, the CTFD asserts that ethnicity still

must be clearly distinguishable from “national origin”

and must be recognizable and definable. According [sic]

the CTFD, Fasone, whose father was born in Italy but

whose mother was not of Italian ancestry, does not fit this

requirement. Allowing persons to choose their own eth-

nic identity could, in some cases, permit persons to “opt

in” to a protected group. This case, however, presents no

such dangers. Fasone identifies himself as an Italian-

American and pronounces his name FAS-O-NEE in recog-

nition of his Italian ancestry. Moreover, some of the state-

ments identified by Fasone as discriminatory — for

example, that he is a “dago” — are clearly of an ethnic

Specifically, § 101 of the Civil Rights Act of 1991 added

subsection (b) to 42 U.S.C. § 1981. Subsection (b) reads:

For the purposes of this section, the term “make and

enforce contracts” includes the making, performance,

modification, and termination of contracts, and the

enjoyment of all benefits, privileges, terms, and

conditions of the contractual relationship

~ A28

nature. Thus, this is a claim for ethnic harassment within

the scope of § 1981.

The second problem with Fasone’s claim, however, is

fatal; Fasone has not produced evidence of a system of

harassment so pervasive as to impinge upon the anti-

discrimination laws. As discussed above, only acts that

occurred after November 21, 1991 are actionable under

§ 1981. Rivers, 114 S.Ct. at 1519-20. Moreover, in order to

be actionable, harassing conduct must be “sufficiently

severe or pervasive” to alter the conditions of employ-

ment. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57,

67 (1986) (addressing Title VII sexual harassment claims);

see also Cariddi v. Kansas City Chiefs Football Club, 568 F.2d

87, 88 (8th Cir. 1981) (upholding factual finding that

occasional “conversational” use of the words “dago” and

“Mafia” was insufficient to be actionable under Title VII

or § 1981). Fasone has not produced evidence of a perva-

sive or employment-altering level of harassment after

November 1991. Indeed, Fasone can identify only two

particular post-1991 instances of ethnic slurs directed at

him — once when he was called an “ignorant Italian” and

once when he was referred to as a “dago.” These two

instances, which occurred over a one-and-a-half year

span, are not enough to make a work environment hos-

tile. The addition of two more slurs, “half-breed” and

“no-account Catholic,” even if a juror could infer that

they were based upon Fasone’s ethnicity, are not enough

to make the harassment pervasive.* Moreover, Fasone’s

Fasone’s catalog of the slurs directed against him puts

only the “no-account Catholic” remark within the period during

which ethnic statements have been actionable under § 1981. The

A29

conclusory statement that he suffered “countless jokes”

and “abuse” on a “daily” basis and the supporting affi-

davit from Ron Legg are too vague and ambiguous to

survive summary judgment, particularly when at least

thirteen of the seventeen specific “discriminatory” state-

ments set forth by Fasone, though reprehensible, were

not aimed at his ethnic heritage. Accordingly, this Court

GRANTS the Defendants’ claim for summary judgment

against Fasone on his claim of discrimination in violation

of 42 U.S.C. § 1981.

2. State Claim

The final claim that this Court must address is

Fasone’s claim that he was discriminated against on the

basis of his ethnicity in violation of Ohio law. Unlike

Fasone’s § 1981 claim, this claim is based upon the broad

antidiscrimination provisions that were present in Ohio

Rev. Code § 4112.02(A) from the beginning, and not upon

the recent amendments to the scope of 42 U.S.C. § 1981's

protection of contract rights; accordingly, all of the

harassing incidents that occurred during Fasone’s

employment are potent allv includable in his state claim

Under Ohio law, a plaintiff-employee’s claim for

workplace harassment must show the following ele-

ments: (1) that the employee is a member of a protecte d

class; (2) that the employee was subjected to unwanted

harassment: (3) that the harassment was based upon the

Court, however, has included all of the statements that Fasone

alleges were directed at him from both 199] and 1992 in its

analysis

A30

employee's status as a member of a protected class; (4)

that the harassment interfered with the employee’s work

performance or created an intimidating or hostile envi-

ronment; and (5) that the employer is responsible for the

acts of the harassers. Delaney v. Skyline Lodge, Inc., 95

Ohio App. 3d 264 (1994) (sexual harassment). In the pre-

sent case, Fasone has fulfilled the first and fifth of these

elements easily; he identifies himself as an Italian-Ameri-

can and he alleges both that his superiors, Lieutenants

Harris and Stokes, harassed him and that the top man-

agement of the township, including Fire Chief Mitchell,

Fire Chief Stickle, and the Township Board of Trustees,

knew about all of the harassment that occurred. More-

over, the Court accepts as true the second and third

elements of workplace harassment because Fasone can

identify specific incidents of harassing conduct and

because some of the alleged harassment was based speci-

fically upon his identity as a member of a protected class

rhe main issue for adjudication, therefore, is whether the

incidents alleged by Fasone, when combined with

Fasone’s broad statements of “daily” harassment, are

enough for a reasonable juror to infer that the harassment

altered the conditions of his employment by creating a

hostile work environment

This Court concludes that Fasone has not presented

facts which, if believed, are sufficient for a reasonable

‘uror to conclude that Fasone suffered from a workplace

-o contaminated by harassment that the conditions of his

employment changed. Fasone’s allegations concerning his

coworkers’ harassing behavior can be divided into three

different time periods. First, Fasone was subject to

harassment from members of the CTFD while he was

A31

only a volunteer firefighter for the township. These inci-

dents, which included references to Fasone’s “Italian tem-

per” and the term “whop,” were obviously the most

severe. (See Fasone Depo. at 85-86.) However, because

Fasone was only a volunteer at the time and because the

slurs slowed afterwards, these incidents are not part of

the same course of conduct as the later incidents. Second,

Fasone was subject to harassment on the basis of his

ethnicity from 1982, when he was hired as a full time

front line firefighter, until 1986. Fasone does not remem-

ber specific instances from this period, but he did pursue

administrative and civil means to stop the harassment

and was able to do so in 1986. (Fasone Depo. at 91-92.)

[he third and, for the purposes of this claim, most

important period of harassment against Fasone is

between 1986, when Fasone sought remedies against his

harassers, and the present. Fasone asserts that he suffered

sreatly during this period at the hands of both then-

lieutenant Harris and current Lieutenant Stokes. These

two men, say Fasone, critiqued his every mistake and

hounded him for his use of leave time. Fasone cannot,

however, specifically identify more than one statement

a reference to Fasone as a “faggot Italian” — that occ urred

before 1991. (See Fasone Depo. at 92-99.) The incidents

that Fasone recalls during and after 1991 are discussed

aDO\V

Based upon the record in this case, the Gourt con-

cludes that Fasone was harassed by various members of

the CTED and that he may have been harassed severely.

The Court cannot conclude, however, that the harassment

of Fasone — at least not the harassment attributable to the

antipathy that various members of the CTFD may have

had toward Italians — was sufficient to allow a reasonable

juror to find that the harassment altered the conditions of

Fasone’s employment to such a degree that it is action-

able. This is particularly true because Fasone’s only

asserted harm is “bitterness.” Fasone’s state claim is DIS-

MISSED.

IV.

The Court has reviewed the record and, even after

taking all of the Plaintiff’s statements as true and making

all reasonable inferences in his favor, concludes that there

are no remaining issues of material fact and that the

Defendants are entitled to judgment as a matter of law.

[herefore, upon consideration and being duly advised,

the Court GRANTS the Defendants’ motion for summary

judgment as to all remaining counts of Fasone’s third

amended complaint. This case is terminated

IT IS SO ORDERED.

s/ ] osep h F, K inneary

UNITED STATES DISTRICT TUDGE

42 U.S.C. §§ 1981, 12111 and 12112 (excerpt)

42 U.S.C. § 1981. Equal rights under the law.

(a) All persons within the jurisdiction of the United

States shall have the same right in every State and Terri-

tory to make and enforce contracts, to sue, be parties,

give evidence, and to the full and equal benefit of all laws

and proceedings for the security of persons and property

as is enjoyed by white citizens, and shall be subject to like

punishment, pains, penalties, taxes, licenses, and exac-

tions of every kind, and to no other.

(b) For the purposes of this section, the term “make

and enforce contracts” includes the making, periormance,

modification, and termination of contracts, and the enjoy-

ment of all benefits, privileges, terms, and conditions of

the contractua relationship.

against impairment by nongovernmental discrimination

and impairment under color of State law.

412 U.S.C.A. § 12111. Definitions.

As used in this subchapter

(8) Qualified individual with a disability

The term “qualified individual with a disability” means

sn individual with a disability who, with or without

reasonable accommodation, can perform the essential

A34

functions of the employment position that such individ-

ual holds or desires. For the purposes of this subchapter,

consideration shall be given to the employer’s judgment

as to what functions of a job are essential, and if an

employer has prepared a written description before

advertising or interviewing applicants for the job, this

description shall be considered evidence of the essential

functions of the job.

(9) Reasonable accommodation

The term “reasonable accommodation” may include

(A) making existing facilities used by employ-

ees readily accessible to and usable by individ-

uals with disabilities; and

(B) job restructuring, part-time or modified

work schedules, reassignment to a vacant posi-

tion, acquisition oF modification of equipment

or devices, appropriate adjustment or modifica-

tions of examinations, training materials or poli-

cies, the provision of qualified readers or

interpreters, and other similar accommodations

for individuals with disabilities.

(10 Undue hardship

(A) In general

[he term “undue hardship” means an action

requiring significant difficulty or expense, when

considered in light of the factors set forth in

subparagraph (B).

A35

(B) Factors to be considered

In determining whether an accommodation

would impose an undue hardship on a covered

entity, factors to be considered include -

(i) the nature and cost of the accommodation

needed under this chapter;

(ii) the overall financial resources of the facil-

ity or facilities involved in the provision of the

reasonable accommodation; the number of per-

sons employed at such facility; the effect on

expenses and resources, or the impact otherwise

of such accommodation upon the operation of

the tacility;

(iii) the overall financial resources of the cov-

ered entity; the overall size of the business of a

covered entity with respect to the number of its

employees; the number, type, and location of its

facilities; and

(iv) the type of operation or operations of the

covered entity, including the composition, struc-

ture. and functions of the workforce of such

entity; the geographic separateness, administra-

tive, or fiscal relationship of the facility or facili-

ties in question to the covered entity.

U.S.C.A. § 12112. Discrimination

(A) General rule

No covered entity shall discriminate against a qualified

individual with a disability because of the disability of

such individual in regard to job application procedures,

A36

the hiring, advancement, or discharge of employees,

employee compensation, job training, and other terms,

conditions, and privileges of employment.

(b) Construction

As used in subsection (a) of this section, the term “dis-

criminate” includes —

(A) not making reasonable accommoda-

tions to the known physical or mental lim-

itations of an otherwise qualified individual

with a disability who is an applicant or

employee, unless such covered entity can

demonstrate that the accommodation would

impose an undue hardship on the operation

of the business of such covered entity; or

(B) denying employment opportunities to

a job applicant or employee who is an other-

wise qualified individual with a disability, if

such denial is based on the need of such

covered entity to make reasonable accom-

modation to the physical or mental impair-

ments of the employee or applicant

lo heed

A3/

Deposition of Fasone (excerpt)

[p. 24] is that correct?

A. No, I didn’t.

Q. Just for the sake of the record, I want to get your

work history straight. You began full time at Clinton

1982; is that

;

Township Fire Department on April ]

correct?

A. Yes.

Q. Prior to that you worked for a few years as a

volunteer fireman?

A Yes.

O. So your actual work as a fireman was April 12,

1982 to December 16, 1992?

A. No, that’s not correct. It is to the date I retired

Q. Okay. But your actual dates of

A. Physical labor.

©. : physical Service were April ‘2. 1982 to Decem-

ber 16, 1992?

A. Yes.

QO. Your date of retirement was June of 1993?

A. Yes.

QO. Who was

, . -

A. I think the actual date that it started was July 5th

A38

Q. Your retirement was effective a week later?

[p. 97] Q. What do you mean by constant aggrava-

tion and hostility?

A. Just constant harassment.

Q. What do you mean by that?

A. What do you mean by it? What do you think it

neans?

Q. Fortunately I am not the one being deposed here.

MR. MATHEWSON: Off the record. Let me talk

tO you.

(Recess taken.)

Q. (By Mr. Jennings) Hostile environment, you

know that as a legal term?

A. I didn’t understand.

Q. Is it just something you made up?

A. No, it is not something I made up. What I meant

by a hostile environment, I was called ignorant, ignorant

dago, ignorant Italian. Mr. Stokes advised me since he

was on the board, him and Harris, to be interviewed for

promotions, they would never promote an ignorant

immigrant or ignorant Italian to the rank of lieutenant.

QO. When did Mr. Stokes say that?

\. I think it is in there.

;

Q. Is it one of your things that is listed in

A39

[p. 149] Q. Let's talk about those. What depression

has this caused you?

A. Just being treated like a third-class citizen.

Being - you don’t feel you are good enough.

E Q. Same with mental anguish, similar thing?

A. Uh-huh.

Q. Depression, mental anguish, resentful, those are

all kind of interrelated.

A. Uh-huh.

QO. Would that be correct?

A. Correct

QO. You mentioned something about a psychiatrist.

Do you have a psychiatrist?

A. Yes.

©. Who is that?

A. John Mason.

Q. When did you first see Mr. Mason?

A. The first time I was suspended the township

ordered me to see him. That was the township’s psychol-

ogist.

O That was in 1986?

A. Whenever the first time I was suspended.

©. It was after your altercation with the pedestrian?

A40

A. Correct.

[p. 150] Q. Have you seen him since then?

A. Yes.

Q. When was the next time you saw him after 1986?

A. It was continuous.

Q. You have seen him continuously since 1986?

A. Yes.

Q. And how often do you see Mr. Mason?

A. Once - sometimes once a week, sometimes once

every two weeks.

Q. And you still see him today?

A. Yes.

Q. Is he the only psychiatrist you have seen?

A. No, the police and firemen’s pension sent me to

one of their psychologists.

Q. But you have been treating with Mr. John Mason

since 1986?

A. Correct.

Q. And you have continued to see him on a weekly

basis?

Biweekly or weekly, whatever he prefers.

Q. Are you alleging that Mr. Mason has given you

treatment for anything related to this lawsuit?

A4l

A. He has been treaving me for the abuse that |

received and the conflicts that I received from [p. 151]

Clinton Township and their employees.

Q. When did he first treat you for that?

A. When I went to him for the incident.

QO. What incident?

A. That I had with the pedestrian.

Q. No, I’m sorry, when has he first treated you for

anything that you relate to ethnic slurs?

A. About the same time, about a week after.

Q. Your testimony is that he has treated you for

your feelings about ethnic slurs since 1986?

A. Yes.

O. And on a continuing basis since 1986?

A. Yes.

©. What else has he treated you for?

A. Conduct of the fire department, retiring.

retirement?

A. Yes.

Q. Has he treated you to help you cope with physi-

cal ailments and injuries you have had?

A. He’s a psychologist. I mean, how is he going to

treat me for injuries to my body?

“4 A42

Q. Being able to cope mentally with those hand-

icaps.

A. Yes.

[p. 152] Q. He has treated you for that?

Q. Has he treated you for anything else?

A. No.

Q. Just for the record, if he is claiming treatment

because of anything that you relate to this lawsuit, |

would like copies of those medical records.

Has he treated you for anything else?

A. Fire related?

©. Yeah.

A. No.

Q. Your testimony is he hasn't treated you for any-

thing that is not fire related?

A. We talk about family problems but that is nota

treatment, it 1s not an issue.

Q. Right. Treatment for family problems obviously

my clients aren’t responsible for that

A. So what's your question?

Q. Let me ask that in question form. Isn’t it correct

your discussions with Mr. Mason about family problems

aren’t my client’s responsibility in this lawsuit?

A. That’s correct.

Q. Okay. What other things has he treated you for

that my clients are responsible?

* * *

A44

Exhibit 2

Affidavit Of David K. Halley, M.D.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

August Fasone, et al.,

Plaintiffs, CASE NO. C2-93-420

VS. Judge Kinneary

Clinton Township, et al., Magistrate Judge King

Defendants.

AFFIDAVIT BY DR. DAVID K. HALLEY

First being duly sworn and cautioned hereby states

as follows: Mr. Fasone presented to me in my office on

November 13, 1992, with the complaint of pain in his

right hip. At the time Mr. Fasone was rated an A334 on

the Charnley Scale and had limited motion and some

spasms. At that time Mr. Fasone was disabled from his

profession as a firefighter. Mr. Fasone was not helpless or

immobile, but was permanently disabled until the com-

pletion of surgery. It was my impression that after sur-

gery to Mr. Fasone’s right hip he would have a disability

period of 3 to 4 months at which time he would be able to

return to another type of job, but never as a firefighter

performing his front line firefighting duties. My recom-

mendation at the time was that Mr. Fasone should be

retrained so that he could perform duties in a new posi-

tion in which no lifting, bending, twisting, or prolonge?

standing was required. It was my impression as of

November 13, 1992, that Mr. Fasone was permanently and

A45

totally disabled from being a frontline firefighter. Mr.

Fasone would have been perfectly capable of performing

duties such as, fire inspection, arson investigation, arson

investigation, or clerical work.

Further affiant sayeth not

/s/ David K. Halley, M.D.

Sworn to before me and subscribed in my presence this

13th day of February, 1996.

ls / Martin E. Batross

Notary Public

Martin E. Batross,

Attorney-At-Law

NOTARY PUBLIC

STATE OF OHIO

MY COMMISSION HAS

NO EXPIRATION DATE

Section 147.03 R.¢

A46

Deposition of Ronald Legg (excerpt)

* * *

oe)

[p. 22] regarding some things that you had testified to

with Mr. Jennings

Mr. Jennings asked you whether you remember any

specific slurs from specific people, and you didn’t have

any recollection as to specifics of that; is that correct?

A. No specific slur to a specific person, specific

time. As I was trying to tell the gentleman here, that it

was an ongoing thing; that, you know, Gust was Italian,

all that, even a gay person. Sorry, Gus. Wop. That he was

| mean, around the firehouse, just things like that

Q. You heard wop referred to as Mr. Fasone; is-that

- 5

correct

\. I heard a number of different things.

\ Yes

\. | have heard that

MR. JENNINGS: Objection. Move to strike

O Was that in reference to Mr. Fasone?

\ | belie, € SO

MR. JENNINGS: Objection. Move to strike

A47

[p. 23] MR. JENNINGS Objection. Move to

O. Was that in relation to Mr. Fasone?

A. Yes. because Gust was the only Italian there at

the time.

MR. IENNINGS: Objection. Move to strike.

O. Did vov work the same unit as Pat Stokes?

A. Yes, I did, worked with Pat.

O. Do you recall whether Mr. Stokes was eve!

| | . +»

around at the same time as Mr. Fasone:

O. Do vou recall Mr. Stokes ever acting in a deroga-

wr 4

torv manner in relation to Mr. Fasone’s Italian ethnic?

MR. JENNINGS: Objection to the form of the

question.

\. Pat was — he would say things to people. I don't

remember exactly what it would be or whatever, but I am

sure that things like that would have happened.

MR. IENNINGS: Objection. Move to strike.

knowledge of Mr Stokes?

A. Yes

A48

Q. Mr. Stokes was a Lieutenant on the Fire Depart-

ment; is that correct?

\. Yes, he was.

A49

EXHIBIT 3

CHAPTER 6

PERSONNEL PROCEDURES

JOB DESCRIPTION - FIREFIGHTER

600.00

600.02

DEFINITION:

Under immediate supervision, is responsible for

responding to fire alarms and other emergency

calls to protect life and property, and for partici-

pating in fire prevention, station maintenance

and training activities, performs other related

duties or jobs as may, from time to time, be

required.

TYPICAL TASKS: (Illustrative Only)

Responds to alarms and assists in the suppres-

sion of fires, including rescue, entry, ventilating

and salvage work; after the fire has been extin-

guished, performs clean-up and over-haul work

checking, testing, and maintenance of apparatus

and equipment to return it to readiness for fur-

ther alarms.

Assists in maintaining fire apparatus and equip-

ment and fire station grounds; responds to emer-

gency calls; operates emergency medical

equipment, administers first aid and other emer-

gency medical service; assists in making residen-

tial, commercial, and industrial inspections to

discover and eliminate potential fire hazards, to

educate the public in fire prevention and to be

prepared for fire suppression tactics.

Participates in continuing education and instruc-

tion programs by individual study of technical

A50

material, and by attendance at scheduled drills

and training classes

When assigned, maintains passenger Car used by

the Fire Chief.

Mav serve as a Acting Lieutenant or an Inspector,

if certified.

Responds to major alarms while off duty; when

alled. When assigned, acts as emergency squad

leader

EMPLOYMEN] STANDARDS: (At time ol filling

out application)

Graduation from high school with a diploma or a

certificate of equal value

Must possess valid 200 hr. certificate, EMI-A

card and a valid Ohio motor vehicle operators

| .

incense.

General knowledge of elementary physics, chem-

‘strv, and mechanics; ability to learn te« hnical fire

fighting principles and tec hniques and principles

of hy draulics applied to fire suppression, ability

to understand and follow oral and written direc-

tions; ability to establish and maintain coopera-

tive relationships with fellow employees and the

public; ability to keep simple records and pre

pare reports; mec hanica: aptitude; physical

;

endurance and agility

A51

EXHIBIT

Affidavit Of August Fasone (Excerpt)

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

AUGUST FASONE,

Plaintiff,

CLINTON TOWNSHIP, et al Judge Kinneary

Defendants Magistrate Ty

AFFIDAVIT OF PLAINTIFF AUGUST FASONE

;

State of Onio

; f L]

Cou of Franklin

| }- , ‘

i 4 igust Fas U 4

}

ereby state the followin S

| sry) fF pP .

i Lil c i

: ’

rd kn ive rf tne tc Ss ‘1 w a

. + b { | } I

T; 4 . Vi

w= mY) ret I, + oa ;

Liat ;

I S

| é * } ~ r ~

T A, 4

t 4 a i ~ ‘ Pa x

5 t - ta ~ r

4 rift DI ito A A ~ -

\ r |

e perfor ~ skills ass

A52

3. During my employment, I sustained injuries

through the normal course of performing my job duties.

These injuries included back and hip injuries. On the

occasions when I was injured on duty, I provided notice

of said injuries to my supervisors.

4. In 1992, I sustained further injury to my right hip.

The injury necessitated care by my doctor, and eventual

hip replacement surgery, and impaired my abilities to

perform all of my job duties.

5. In 1992 and 1993, I requested on numerous occa-

sions that I be allowed to work light duty or receive some

other form of job restructure. Clinton Township has his-

torically allowed injured firefighters to work light duty.

My requests were denied. On one occasion, in denying

my request, Chief Randy Stickle told me that he had no

intention of paying for my injuries for the next forty

years.

6. From 1991 on, Clinton Township maintained an

unfilled position to Fire Prevention Officer. This position

has been filled for over ten years by Carl Brandon. Mr.

Brandon eventually left his Job and was never replaced.

Although the job was never filled permanently, the Fire

Department maintained this pesition within the Union

Contract and budget. The duties of the Fire Prevention

Officer position were performed by Firefighters who oth-

erwise would have been riding with the fire company in

the suppression of fires or with the EMS team. The duties

of Fire prevention Officer did not include the heavy labor

which I was unable to perform. I am fully trained to

perform the functions associated with that job.

A53

-y

7. By July, 1993, I had depleted all leaves available

to me except for injury leave (because it was denied to

me) and was forced to retire from the Fire Department

due to my disability and the fact that no accommodation

was made to me to allow me to return to work. At that

time, I was capable of performing a position on the fire

force that was essentially vacant.

8. Over the course of my employment with Clinton

Township, | was forced to endure constant harassment

regarding my ethnic identity. My name is pronounced

FAS-O-NEE, highlighting my Italian ancestry and my

identity as an Italian American.

9. The ethnic harassment that I received was a daily

circumstances [sic], received from both my co-workers

and supervisors on a constant basis. Given the fact that |

had complained on various occasions, without stopping

the persecution, I considered that putting up [sic] the

ethnic abuse was a term and conditicn of my being

employed by Clinton Township

10. The abuse I received was squarely directed at

my ethnic background. This ongoing harassment

included the following statements made to me by my

own supervisors: That I was an ignorant Italian; That

Clinton Township employees its [sic] token minorities, a

nigger and a dago; That I am a no-account catholic; That |

was a half-breed (apparently because only one of my

parents is Italian). These are just examples ot the daily

slurs and insults directed at me.

11. I was subjected to countless jokes in which Ital-

ian bashing was the sum and substance. I was subjected

to this type of abuse on a daily basis simply because I am

A54

identified as an Italian. I was forced to seek psychological

counselling as a result of this abuse.

12. In 1993, I received a suspension from work with-

out-pay because it was alleged that I had driven a squad

for personal business. I have first hand knowledge that

this type of punishment was not handed down to other

workers accused of the same type of infraction.

Deposition Of James A. Winters (Excerpt)

* * *

[p. 26] the BWC did kick in the payments for specific

dates off, I do know that, but I’m not sure which injury

date they went to. I think there were a couple different

blocks that we took to the board, then they kicked them

out.

Q. So when you were interim chief you were par-

tially responsible for handling those claims?

A. To a limited extent, yes.

Q. Were you ever aware of a request that Gus made

to be placed upon light duty?

A. Yes.

A. Light duty can be kind of defined as, for general

purposes, office duties not connected with the firefight-

ing or EMS work.

O. And for what purpose are people placed on light

duty?

A. In the past they have been placed on light duty

when for underlying temporary reasons, you know, they

were incapable of performing their normal duty position

task. It was not granted, you know, across the board. It

was, I would say, granted on an individual basis.

Q. And what factors were considered as to whether

or not light duty would be granted to any particular

individual?

A56

A. Part of it was based on departmental need.

[p. 27] Q. What other factors?

A. Individual capabilities.

Q. What type of capabilities?

A. Specifically when my knee was damaged in 1982,

[ was working as a part-time dispatcher. Our full-time

first shift dispatcher had a heart attack and prior to

Garcia they allowed you to work in other departments of

the township and that’s where I was placed because they

had a need and I could not perform those tasks of fire-

fighter.

Q. Do you recall what action was taken on Gus’s

request for light duty when you were chief or interim

chief?

A. The request was denied.

Q. And why was it denied?

A. As interim chief I know that I asked Ms. Pember,

who was the fire department liaison trustee at the time,

and the answer came back no. | do not recall a specific

reason for denial

Q. So the decision really was made by the Board of

Township trustees and not by you as chief or interim

chief?

A. As interim chief when you don’t have full power

you ask the people that hold the reins over you.

Q. And you don’t recall that Mrs. Pember gave you

[p. 28] any reasons? She said just no?

A57

A. No, I do not recall a reason.

Q. Do you know, were other people granted light

duty during that same period of time that Gus made a

request?

A. No.

Q. Have people been granted light duty since then?

A. No.

Q. What's the last time you can recall that someone

was granted light duty?

A. The last person that I can recall who was granted

light duty was Doug Brown.

QO. And when was that?

A. And without having the records I can guess, and

I'm guessing ‘90 or ’91.

Q. And do you recall how long he was on ligh

duty.

A. Again a guess, less than three weeks.

Q. And was that prior to your becoming interim

A. That’s correct

Q. Now, incidents of people being placed on light

duty, would that be entered in their personne! file

A. I don’t know.

—

“

A58

Deposition Of Randy Stickle (Excerpt)

* * *

[p. 23] A. Not within the fire department.

Q. Has the system manual been changed since

you've been Chief?

A. Well, it was recently updated, yes.

Q. Did the 1990 system manual under which Mr.

Fasone was employed contain specific provisions for a

tire prevention position?

A. For an actual position, I'm not sure. I don't

recall. It did have a section in it that addressed the issue

of fire prevention, ves.

QO. Was anybody ever assigned to that position since

you've been Chief?

a ee

A. Assistant Chief Dick Fisher was assigned to han-

dle fire prevention when I was hired in November of

1992. He retired in, I believe, late February, early March

of 1993. At that time lieutenant Pat Stokes was assigned

to fire prevention but he was assigned to fire prevention

while he was still assigned to a 24-hour firefighter shift.

those of a firefighter?

A And an on company lieutenant, yes.

s ¥ *

[p. 28] A. Yes.

MR. JENNINGS: Again, I’m going to object as

to the relevance of this time period, but you can ask

away.

MR. MATHEWSON: Okay.

Q. Did you refer him to a physician?

A. No.

MR. JENNINGS: Same objection.

MR. MATHEWSON: Okay.

light duty of you in November of 1992?

A. Mr. Fasone?

©. Yes.

MR. JENNINGS: November of ‘92?

MR. MATHEWSON: Yes.

A. No.

QO. Or December of “92?

A. No.

A. Yes.

QO. And when was that?

A. February of ‘93

A. I didn’t believe that light duty was an appropri-

ate assignment in the fire service.

[p. 62] Q. What is your understanding of the con-

cept of light duty?

A. Light duty in some organizations is a temporary

assignment when the employee can’t perform his full

duties. This temporary assignment could include work

that is more restrictive physically.

Q. Is that the definition that you applied to the

request for light duty in this circumstance?

MR. JENNINGS: Objection. I think he just

stated what he thought it generally was as opposed to

some specific policy or definition of the Township, but

you can answer.

A. My opinion is that the Township does not have

the resources to have many people working light duty,

and after discussions with Trustee Penny Pember decided

it was in the best interest of the Township to not continue

light duty as it had been in the past.

Q. What is your understanding as to what hap-

pened in the past prior to you coming?

A. I have no personal knowledge of that.

Q. My question is what is your understanding?

MR. JENNINGS: Objection.

A. I have no personal knowledge of that.

Q. Well, you just testified thirty seconds ago that

you had an opinion that there were no resources to [p. 63}

continue light duty after discussing with Penny Pember

at least light duty as it happened in the past.

A. I’m aware that some -

;

Aél

Q. Let me ask you, do you know or do you have

reason to know what happened in the past?

A. The only issues that I’m certain of is that there

were some individuals within the fire department that

had been granted light duty in the past. I don’t know the

specifics of the injury. I know that they were all tempor-

ary assignments and I don’t know if anybody was

accepted, denied, approved. I don’t know the details.

Q. Did you ever inquire as to what the details were?

A. Brief discussion.

Q. With whom?

A. Penny Pember.

Q. What did she tell you?

A. That this was a practice that we needed to look

at a little closer, see if we want to continue it.

Q. Did she say why?

A. Well, if you continue with granting light duty on

a regular basis you can end up with more people doing

paperwork than you do fighting fires.

Q. Do you have any reason to believe that actually

[p. 64] happened with regard to the Clinton Township

Fire Department?

A. I know that they have had people on light duty

in the past. I do not know the specifics.

were more light duty people than there were front line

firefighters, do you?

A. I know that light duty does cost the Township.

A62

Q. Well, my question was to you, you had discus-

sions with Penny Pember and there was a concern that if

this didn’t stop there could be a day that there were

people simply performing light duty work and no one

fighting fires; is that correct?

A. She was concerned about the light duty to the

Township.

specific resources that could be looked at to determine -

A. Not that I recall.

A. I met with her on a regular basis.

Q. Was this in your office?

A. I don’t recall.

Q. Did she order you to cease light duty?

A. I don’t recall.

[p. 65] Q. When I asked you what your understand-

ing of the concept of light duty was you said in some

organizations it’s a temporary assignment. Do you have

knowledge as to what other organizations consider light

duty?

A. No, no firsthand knowledge.

Q. Have you ever, with regard to your education or

training, discussed how light duty fits into the scope of

accommodating disabilities or handicaps?

A. I recall a very short discussion about that in

some college level course.

Q. Do you recall any specifics of the discussion?

A63

A. Basically that some organizations can reassign

somebody to a different position if the position is avail-

able.

Q. Do you recall whether it was discussed whether

that simply is temporary or whether it can also be perma-

nent?

A. You must remember that when I took this course,

the Americans with Disabilities Act was very new and

there were a lot of different interpretations about what

this law was going to mean to employers and to

employees, and at that time there just was no case law to

try to sort the thing out.

Q. It is your understanding today that light duty

needs to be a temporary assignment?

[p. 66] MR. JENNINGS: Objection as to the rele-

vance of what his understanding is today, but you can

answer.

A. Lbelieve that every member of the Clinton Town-

ship Division of Fire should pull his or her own weight to

fight fire and to perform emergency services, and if they

can’t perform those services, then I’m net sure that I’m

using the tax payers’ dollars effectively.

Q. You don’t feel that someone that can no longer

use their services or pull their own weight, as you said, is

entitled to be accommodated in some manner by the

department?

MR. JENNINGS: I’m going to object. You're

asking him a legal question and an opinion that he’s not

qualified to give and it has no relevance to the lawsuit.

Q. You can answer.

A64

A. I believe that some organizations that are much

larger than Clinton Township, they have the capability of

reassigning people to positions that may be less, I guess,

physical. Clinton Township is a small organization that

does not have the resources to accommodate people who

cannot perform the full firefighting duties, and request-

ing that Clinton Township make that type of accommoda-

tion would be an excessive strain on the budget.

[p. 67] Q. Inthe February 3rd meeting that you had with

Mr. Myers and Mr. Fasone did you deny the request for

light duty work?

A. Yes.

Q. When they requested - when I am saying “they,”

they came to you together; is that correct?

A. Yes.

Q. Did one speak for the other or were they both

speaking individually?

A. I don’t recall.

Q. So when I refer to they, let me know if one

applies to one or the other. I don’t want to confuse

anything. When they came to you to request light duty,

did they define to you what they were looking for?

A. I don’t recall.

Q. When light duty was requested, was there any

specifics proposed as far as follow-up on fire prevention,

inspection or other paperwork?

A. I don’t recall.

A65

Q. When light duty was requested was there any

specific requests as far as job parameters with regard to

full time versus part time?

A. I don’t believe that was discussed.

Q. The request for light duty was denied; is that

correct?

[p. 68] A. Correct.

OQ. And that was denied by you right there on the

spot?

A. Correct.

Q. Did you say that you’re not going to pay for the

injuries for the next 40 years?

A. I don’t recall.

Q. Is it possible that you said something like that?

A. I don’t recall the content of the entire conversa-

tion.

Q. Earlier there was some questions posed to you

with regard to Mr. Stokes or Lieutenant Stokes. At some

point he was injured during 1993, I believe you testified;

is that correct?

A. I’m aware that he had a medical condition that

he acquired off duty.

Q. He was restricted in terms of being a front line

firefighter for a period of time; is that correct?

A. Iwas not aware that he was restricted until after

he had been assigned for a couple weeks doing fire

A66

prevention. When he told me he was restricted, I told him

that was light duty and he had to go off to sick leave.

Q. We then redefined restricted. When I say

[p. 72] authorization to move about as they choose

because they may not be, | guess, contagious or some-

thing to that effect. So I received this on September 6 and

considering that you are limited and that you are not ill, I

will lift the restriction of being home while on sick leave

until such time as you return to work.

Q. So you basically were giving him permission to

not be under house arrest, so to speak?

A. That’s your perspective. That’s essentially cor-

rect though, yes.

Q. You said that Mr. Stokes returned to work for

about two weeks following his sick leave; is that correct?

A. Sometime in the summer of 1993, Mr. Stokes

apparently developed some sort of medical condition. He

was off work for a time period. I don’t remember what

the exact time period was. When he returned to work I

assigned him to perform the duties of the fire prevention

officer which also includes full fire fighting duties in an

effort to get caught up on fire prevention. He worked that

position for approximately two weeks when he gave me

this memo. I said this is light duty, you can’t do this and

we sent him home.

Q. Have any other employees, since you’ve been

Chief, been injured requiring them to miss work?

A67

[p. 92] A. With Penny Pember, yes. With the other

trustees, no.

Q. Did you seek input from legal counsel or from

any other person as to what you should, what standards

you should apply as to whether you can be convinced of

the facts of any particular injury leave?

A. That legal counsel was consulted regarding stan-

dards, no.

Q. I want to make sure that I’m clear from what you

said earlier with regard to reasonable accommodations

and light duty, that light duty is something that’s only

given temporarily, is that correct, as far as you're con-

cerned.

A. As far as 1 am concerned there is no light duty in

Clinton Township Division of Fire. In the past, I am

aware of some temporary light duty assignments that

were given prior to my appointment as the Fire Chief.

Q. Have you ever made inquiries with previous

chiefs or through looking through documents to deter-

mine what standards those people applied in determining

whether people could be awarded light duty?

A. I have not discussed it.

Q. Didn’t look at any paperwork?

A. I’m aware that there is some paperwork that

shows some people were granted light duty. I have no

[p. 93] idea what the specifics to that was at the time.

A68

Q. Your fire department you said has eight full-time

employees, 20 part-time employees. Can you tell me off

the top of your head, it’s not a memory contest, but what

their jobs are as far as you’re one of the employees so

you're the Chief. Who are the others, not names, but what

are the positions?

A. There’s an Assistant Chief, there are three lieu-

tenants, and three firefighters.

Q. What about the 20 part-time empioyees?

A. The 20 part-time employees fill one position

that’s available every day and then they fill in when the

three lieutenants or three firefighters are off duty on

vacation or sick leave.

Q. These are firefighters?

A. Yes.

Q. In earlier questioning from Mr. Mathewson you

said that you don’t believe that light duty is an appropri-

ate assignment in the fire service. Do you recall saying

that?

A. That’s correct.

Q. And you were talking about fire service in gen-

eral not necessarily Clinton Township; is that correct?

A. That’s correct, I believe that the tax payers

[p. 94] have the right to have their tax dollars used in the

most effective manner and that means out there handling

the emergency when they need help, and you can’t do

that when you’re on restricted duty.

Q. And that no fire department -

A69

A. That’s my personal opinion only. Obviously,

other departments disagree with that. Some do it, some

don't.

Q. You're familiar then with fire departments that

do provide?

A. No specifics, I just know that there are some that

do and some that don't.

QO. You learn of these at conventions or whatever?

A. Exactly.

QO. You testified earlier that you had confiscated Jim

Myers’ gear while he was a full-time employee. Do you

recall that?

A. I believe so, yes.

Q. Had he already retired by the time you took his

gear?

A. I don’t believe so.

MR. STEIN: I think that’s all the questions |

have for you right now, and I thank you for your time.

MR. MATHEWSON: I’m done.

MR. JENNINGS: If it is ordered, we'll read.

* * -

A70

Deposition Of Penny Pember (Excerpt)

* * *

[p. 12] Q. And it’s my understanding that you were

the liaison or the oversight of the fire division for Clinton

Township during your term of office. Is that correct?

A. Not the full term, no.

A. I’m not exactly sure of the — the date. It was

sometime I think in 1992 for the fire department.

Q. Sometime - a short time after you started in

ottice?

A. I really don’t recall.

and the fire department prior to Chief Stickle being hired;

is that correct?

A. Yes.

Q. And do you recall who Chief Stickle’s prede-

cessor was?

A. Chief Mitchell.

Q. And do you recall — was Chief Mitchell a tempo-

rary chief? Was he in office for a long time?

A. Yes, he had been.

Q. Okay. So you became the liaison while Chief

Mitchell was still in office; is that correct?

a Te.

A71

Q. Now, how did you come to become the liaison

* * *

[p. 31] A. No.

anyone ever working light duty in the past, is it fair to

say that you did not perceive light duty to be a central

problem to the budget of Clinton Township?

MR. JENNINGS: Objection.

A. No. I’m-I-I’m-I didn’t think it was a real big

problem, no.

Q. Did you ever investigate light duty or restricted

duty work to determine whether it was appropriate in

light of federal or state law?

MR. JENNINGS: Objection. Calls for a legal

answer. This witness —

MR. STEIN: I’m asking her whether she ever

investigated it. Let’s limit - your objections can be objec-

tion, but you shouldn’t make suggestions.

A. I can’t say I actually investigated it, no. I may

have read it in what the law says or whatever in that -

you know, the big poster that they send about discrimina-

tion, but that was probably about it, and I seen that at my

regular job, so -

| Q. Did you investigate or cause to be investigated

: whether light duty or — the types of costs that light duty

| could potentially cause to the township?

A. Yes.

Ri ee ee ee aie

A72

[p. 33] Q. Okay. But this - you did not do — all right.

Let me — let me make sure I understand you then.

Shortly after Chief Stickle began, you and he had a

conversation. One of the things discussed was light duty;

is that correct?

A. Yes.

Q. And at that point in time, the two of you came to

a consensus that it was not appropriate for the fire divi-

sion; is that correct?

A. Well, “appropriate” may not be the correct word.

It was not — you can’t have a light duty fire fighter.

Q. Okay. You and — you and he came to that conclu-

sion shortly after he began?

A. Right.

A. As far as - yeah, sometime in that time.

Q. At that point in time or any point in time prior to

that date, did you ever make a financial investigation as

to the potential costs to the township of employing a fire

fighter at light duty or restricted duty?

A. Prior to that, no.

Q. The shorthand calculations you referred to

* 6 a

[p. 61] for injury leave?

A. I don’t recall that. | know we - we continued to

grant, I think, sick leave on one fire fighter, but I couldn't

tell you which one it was, and he was continue - he was

paid constantly. He ~ he never did without any money.

Q. Were you aware that Mr. Myers in February of

1993 requested to be allowed to work in a manner that

would not be affected by his medical restrictions?

A. I don’t recall that, and if -

Q. In other words, he made request for light duty or

restricted duty. You don’t recall that?

A. No. But like, again, I say, fire fighters cannot

perform light duty. There is just no means for light duty

in Clinton Township.

QO. Well, my question goes to whether you knew

whether he made a request, since you don’t know - well,

I don’t want to put words in — was it your testimony that

you don't recall or that he — that you were never told that

he made a request?

A. I really don’t — I don’t recall.

QO. You don’t recall then investigating Mr. Myers’

request for light duty to determine whether or not it

would be reasonable?

A. No, I don’t recall that.

77 * *

A74

Deposition Of Paul Stokes (Excerpt)

. ‘ ,

)} A. No

Q. You were not.

A. No.

Q. Did you return to work following your surgery?

A. Yes, I did

A. I don’t recall the exact time, but it was 60 to 90

days, and I reported directly back to company as I recall.

Q. Okay. What about then just prior to your surgery

let me ask you this, what caused your neck injury?

A. I injured my neck on a roller coaster at Cedar

Point and had to have surgery.

A. No, it was not work related.

Q. Following your injury was there a period of time

you were — prior to surgery was there a period of time

that you were unable to work fire suppression?

A. Yes

Q. And during that period of time were you

allowed to work limited to fire prevention duties for the

lfownship?

A. Not limited but, yes. I did work fire prevention

duties

A75

[p. 11] Q. Okay. What period of time are we talking

about here?

A. A couple of weeks.

Q. Well - chronologically is this September of ‘93?

A. I was injured in July of ‘93. I believe to the best

of my memory, I was on - my doctor put me on sick leave

for about 30 days and then released me to go back to

work and I went back to work as my duties as fire

prevention officer and then a couple of weeks after that, I

went back to the doctor and she then said my duties had

to be restricted because of the healing [sic] was not going

as necessary and then the fire department said I could not

work anything and then several weeks later I had sur-

gery. That’s the best [I can recall. The chronological dates

may be off a little bit.

Q. All right. That’s fine. Prior to this ill-fated day at

Cedar Point — by the way which ride was that so I know

to avoid it?

A. Some roller coaster.

Q. Prior to that day at Cedar Point what were your

job duties?

A. I was fire prevention officer for Clinton Town-

ship Fire Department, and | worked as a unit supervisor

at Station 62.

[p. 26] Q. Do you remember when you wrote this?

A. No, I don’t remember the exact date.

A76

Q. The basic gist of this letter is that you were -

following your accident but prior to your surgery, you

were — this letter says you were allowed to work light

duty so you didn’t deplete your sick leave, and you don’t

feel that’s accurate?

A. No, it is not an accurate statement.

Q. During the period of time that this letter refers

to, is that the period of time that you were working fire

prevention?

A. Yes, it is.

Q. Okay. And during that period of time, do you

recall doing anything other than fire prevention duties?

MR. JENNINGS: I think he already answered

that. You can answer again.

A. I don’t recall doing anything other than fire pre-

vention.

Q. Okay. Did you discuss prior to your return to

work — following your injury at Cedar Point and prior to

your return to work, did you discuss with Chief Stickle

the type of injury you had and what limitations that

might have caused you?

A. Prior to when now?

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.