# Petition for Writ of Certiorari — Fasone v. Clinton Township

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 870

## Text

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

a7

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Sixth Circuit

o-

PETITION FOR A WRIT OF CERTIORARI
e

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

I

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.

I]

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

1]

i

iv

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

V1

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.

e

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

Y
+

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.

VI

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

NJ

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.

10

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

11

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

12

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

Oe

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

14

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

—

15

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

16

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

18

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

19

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:

20

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

21

~

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

ya

—

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

ad

S

23

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

24

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

]
—
J}

aes »] , Dotytye 12¥r
Counsel for Petitioner

Al

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.,

)
)
as

(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

A?

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]

A3

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

A4

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

A5

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”).

A6

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):
or

(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

A7

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).

A8

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

A9

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.

I.

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

T
‘
Fasone in either ty pe of position

ee

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

on
ao
~
——
a
~

- 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.

~
a
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-

5
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

3
§

rr
-

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.

(c) The rights protected by this section are protected
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).

42

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

5

;

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?

eo

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.

©. He’s treated you to help you cope with your

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?

SS

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.

© That is one of the things you heard?

\ Yes

©. Did you ever hear the term sandblasted nigger?
\. | 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

©. Did you ever hear the term dago?

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.

©. Do you make that statement based on personal

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
1

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
4
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

T

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.
©. What is light duty?

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.

©. Was the denial o

=
a
—
=
_
j
“
J
.
a
¢
oo
-
f
~

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

©. And who was that?

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.

©. So basically he had those duties in addition to
those of a firefighter?

A And an on company lieutenant, yes.

©. Was Carl Brandon an employee during the time

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.

©. Back to Mr. Fasone, do you recall him requesting
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.

©. At the present time since you've been Chief?

A. Yes.
QO. And when was that?

A. February of ‘93
©. And what was your response to that?

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

ate assignment in the fire service.

©. Are all businesses in Clinton fownship required

[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 -

i
i
i
;
|

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.

©. You have no reason to know that, in fact, there
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.

©. Did she cite to you any specific figures or any

specific resources that could be looked at to determine -
A. Not that I recall.
©. Where did you have this meeting with her?
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 question

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1230%3A1. Public record. Not legal advice.