Opinion
No. 89-1522
Submitted October 3, 1990 —
Decided January 16, 1991.
Ohio Civil Rights Commission — Employer and employee — Misconduct or absenteeism of prospective employee attributable to alcoholism may be considered by an employer in making its hiring decision, when.
O.Jur 3d Civil Rights § 20.
Misconduct or absenteeism of a prospective employee, even if attributable to alcoholism, may be considered by an employer in making its hiring decision, so long as the same neutral criteria are applied to handicapped and non-handicapped persons alike.
APPEAL from the Court of Appeals for Cuyahoga County, No. 55325.
In 1982, Ronald Patterson passed a written examination for the position of patrol officer with the Cleveland Police Department. He was ranked 458th on an eligibility list of 1,070 persons.
In 1985, the police department and the city civil service commission began the process of selecting candidates for the next police academy class. As part of this process, the civil service commission contacted certain persons on the eligibility list, including Patterson. Patterson underwent a series of tests to determine whether he should be hired. He passed an agility test and was ultimately found to be medically qualified.
Patterson encountered difficulties in two other aspects of the selection process. In a background check, the department learned that Patterson had been previously arrested for five offenses: auto theft as a juvenile in 1965, intoxication in 1966 and 1968, and disorderly conduct and resisting arrest in 1979. However, only the disorderly conduct charge was known to have resulted in a conviction. The background check also revealed that Patterson's employment with the city's water department had ended after he was found to be AWOL. Finally, the background check found that Patterson averaged twenty-one days of sick leave per year in his current job as a corrections officer in the Cuyahoga County Sheriff's Department and that he had spent twentyeight days at a VA hospital in 1983 for an unknown ailment.
Patterson also encountered difficulties when he was evaluated for his mental fitness. Patterson first took a psychological test known as the Minnesota Multiphasic Personality Inventory ("MMPI") (a true-false test that measures various personality traits). Patterson tested "essentially within normal limits." However, he was found in the test to have an elevated score on the MacAndrew Alcoholism Scale ("MAH"), which measures potential for addiction to alcohol and drugs.
After taking the MMPI, Patterson was evaluated by three mental health professionals. Two of these professionals found Patterson "psychiatrically unacceptable." Psychologist James L. Knott stated in his report that Patterson had a "fairly weak willpower" and a "tendency towards depression," and that Patterson's ego was "too weak" for the role of patrol officer. Knott further noted that the "MAH ** * [suggests] [h]eavy alcoholic use related to depression tendency but this is still a risk factor."
Psychiatrist Edward Dutton noted Patterson's alcoholism and his hospitalization for treatment of that problem at a VA hospital in 1983. Dutton stated in his report that Patterson "[i]n past when drinking had bad temper with resulting problems with law ie public intoxication. Other legal problems such as disorderly conduct, resist. arrest, theft, may or may no[t] be alcohol related. Claims sobriety since '83." Dutton concluded that Patterson "has had difficulty behaving in past in responsible fashion and in conducting his affairs in an appropriate legal fashion. These would seriously impair his functioning as a police officer."
In contrast to Knott and Dutton, psychiatrist Valerie H. Boulware found Patterson to be "[m]arginally acceptable." She noted that Patterson had a "[s]ignificant history * * * [of] alcohol abuse from which he claims to have recovered completely." She concluded that Patterson's "[c]urrent psychiatric status is fine, but history of problems with excessive alcohol use and recent absenteeism may be of concern."
The Director of Public Safety, Reginald Turner, was the ultimate decisionmaker on Patterson's employment status. After the psychiatric evaluations, the chief of police sent a memorandum to Turner recommending that Patterson be removed from the eligibility list for "background" reasons. Copies of the psychiatric reports and a copy of a written summary of the problems with Patterson's background were also sent to Turner. The written summary noted most of Patterson's arrests, his AWOL termination, his excessive sick time usage, and the twenty-eight days he spent at a hospital for an unknown ailment. The summary also noted that two psychiatric reports found Patterson unacceptable and one report found him marginally acceptable. On July 24, 1985, Turner approved the recommendation to remove Patterson from the list.
Patterson learned of his impending removal and obtained an interview with Turner, which was held on July 26, 1985. During the interview, Turner discussed with Patterson some of the background problems that had been noted in the written summary. Patterson explained to Turner that he had not been fired from his water department job for being AWOL, but that he had voluntarily resigned from that position. He also explained that he missed twenty-eight days of work in 1983 because of his attendance at and completion of an alcohol treatment program. Patterson stated that he had not had a drinking problem since his completion of the alcohol treatment program two years before. After a discussion of Patterson's alcohol problem, Turner stated that he would not change his decision to remove Patterson from the eligibility list. Turner's stated reason was that Patterson was "a drunk" and that "once a drunk, always a drunk."
The civil service commission formally removed Patterson's name from the eligibility list on July 29, 1985. Patterson could not appeal because the list expired as of July 31, 1985.
Patterson later filed a charge with the Ohio Civil Rights Commission ("commission"), claiming that he was removed from the eligibility list because of his handicap of alcoholism. Patterson testified at an evidentiary hearing in November 1986 that he had not had any alcohol since his completion of the alcohol treatment program in 1983. A hearing examiner nevertheless ruled that no unlawful discrimination had occurred. The hearing examiner determined that Patterson "was not rejected out of hand because of a history of alcoholism. He was rejected because his employment history, his legal history, his psychiatric evaluation (as well as the results of the MMPI), indicated that he was not likely to succeed as a police officer." The commission, however, unanimously overruled the hearing examiner and determined that there had been unlawful discrimination on the basis of Patterson's handicap. The commission awarded back pay and ordered that Patterson be offered a position as police cadet in the next police academy class.
On appeal by the appellants, the civil service commission and the Department of Public Safety (hereinafter "the city"), the common pleas court affirmed the Ohio Civil Rights Commission's order without opinion. With one judge dissenting, the court of appeals affirmed the judgment of the common pleas court.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Craig S. Miller, director of law, and Janet E. Burney, for appellants.
Anthony J. Celebrezze, Jr., attorney general, and Charles E. Cook, for appellee Ohio Civil Rights Commission.
George W. Macdonald, for appellee Ronald Patterson.
Calfee, Halter Griswold, John E. Gotherman and Stanley J. Dobrowski, urging reversal for amicus curiae, Ohio Municipal League.
In the absence of a legally significant reason for discrediting a determination of the Ohio Civil Rights Commission, a common pleas court must give due deference to the commission's resolution of evidentiary conflicts. Plumbers Steamfitters Joint Apprenticeship Commt. v. Ohio Civil Rights Comm. (1981), 66 Ohio St.2d 192, 20 O.O. 3d 200, 421 N.E.2d 128; Univ. of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 17 O.O. 3d 65, 407 N.E.2d 1265. Our review of this case is therefore limited to determining whether the common pleas court abused its discretion in affirming the commission's finding that unlawful discrimination occurred. Columbus Mun. Civil Serv. Comm. v. Ohio Civil Rights Comm. (1985), 23 Ohio App.3d 178, 180, 23 OBR 421, 423-424, 492 N.E.2d 482, 485. We conclude that there is a legally significant reason to reverse the commission's order and therefore that the common pleas court abused its discretion.
The city contends in its first proposition of law that the commission improperly excused Patterson's poor work history because that history may have been attributable to his alcoholism. We find merit in this argument.
A distinction must be drawn in these cases between a person's status as a recovering alcoholic and his or her poor work history, some of which may be attributed to alcoholism. In Hazlett v. Martin Chevrolet, Inc. (1986), 25 Ohio St.3d 279, 25 OBR 331, 496 N.E.2d 478, this court held that alcoholism is a handicap for purposes of R.C. Chapter 4112. However, the court made it clear that an employer may discharge an employee "[w]here chemical dependency adversely affects job performance * * *." Id. at 281, 25 OBR at 333, 496 N.E.2d at 480. This principle was recently reiterated in Harris v. Ohio Bur. of Emp. Serv. (1990), 51 Ohio St.3d 37, 553 N.E.2d 1350, after the commission in this case made its finding against the city. In Harris, we stated that "the adverse effects that alcohol has on a person's job performance will permit an employer to discharge an employee for just cause, and thereby prevent the employee from obtaining unemployment compensation benefits." Id. at 40, 553 N.E.2d at 1353. These cases recognize that alcoholism is a handicap, but that misbehavior attributable to alcoholism nevertheless may be properly considered by an employer in discharging an employee.
Although not a discharge case, the basic distinction recognized in Harris is applicable to this case. Patterson's work history and background had many undesirable aspects that could have caused Safety Director Turner to remove Patterson from the eligibility list. We note in particular that Patterson's history of arrests, his conviction for disorderly conduct, and his "excessive" absenteeism all could have been properly relied on by Turner. Discrimination based on an arrest record or on a record of absenteeism is not discrimination "because of * * * handicap" under R.C. 4112.02(A). We conclude that misconduct or absenteeism of a prospective employee, even if attributable to alcoholism, may be considered by an employer in making its hiring decision, so long as the same neutral criteria are applied to handicapped and nonhandicapped persons alike.
We note here that the commission's role in this case was to determine whether handicap affirmatively played a role in Turner's decision, not whether Turner erroneously relied on other, nondiscriminatory factors. Plumbers Steamfitters Joint Apprenticeship Commt., supra, at 119, 20 O.O. 3d at 204, 421 N.E.2d at 133, quoting Williams v. Yazoo Valley-Minter City Oil Mill, Inc. (N.D. Miss. 1978), 469 F. Supp. 37, 49 ("`Even if the employee is discharged unnecessarily or in error, the employer is not guilty of racial discrimination, unless plaintiff proves that he was treated differently on account of his race * * *.'").
In reviewing the commission's order, we conclude that the commission improperly discounted Patterson's history of absenteeism because the absenteeism may have been attributable to alcoholism. In discussing a document that detailed Patterson's poor work history and background, the commission stated:
"* * * The Summation also indicated that Complainant was currently employed by the County Sheriff's Department as a corrections officer and had a record of excessive sick time usage. It indicated he spent 28 days in Brecksville Hospital for an unknown ailment. (The report did not identify the date of these absences or the date of his participation in the alcoholism treatment program in Brecksville. Nor did the report indicate whether Complainant's absences occurred before, during, or after, his treatment for alcoholism.)" (Emphasis added.)
In using the emphasized language as it did, the commission apparently thought it relevant that Patterson's absenteeism may have been related to alcoholism. However, we find no relevance in whether Patterson's absenteeism was related to alcoholism. As stated above, even if the absenteeism and alcoholism were related, the city would have been within its rights to consider the absenteeism as a reason not to hire Patterson.
The commission had before it evidence that Turner may have based his decision on Patterson's poor work history, including his absenteeism. The aforementioned language in the commission's order suggests that it incorrectly thought Turner could not have properly relied on those reasons. We therefore find that the commission erred in its analysis of the evidence in this case.
On this record, we cannot hold that the commission's error was harmless. The commission found that Patterson was removed "because of" his alcoholism. However, there was evidence supporting the view that Patterson was removed because of his poor work history and background. In erroneously analyzing the case, the commission may have disregarded this evidence when it instead should have taken it into consideration in determining whether Patterson was removed because of handicap.
Furthermore, we note that the commission made no express finding that Patterson's alcoholism was the sole reason for Turner's decision to remove him from the eligibility list. The commission simply stated that Patterson was removed "because of" his alcoholism. Present case law supports the view that "because of" causation can be found even when handicap was only a factor, rather than the sole factor, in the employment decision. Miller Properties v. Ohio Civil Rights Comm. (1972), 34 Ohio App.2d 113, 63 O.O. 2d 169, 296 N.E.2d 300 (For an act to constitute unlawful discrimination under R.C. Chapter 4112, it need only be proved that the race of the complainant was one factor, rather than the sole basis, of a discriminatory practice.); see, also, Westerville City Schools v. Ohio Civil Rights Comm. (App. 1980), 1 OBR 312, 315-316.
Consistent with Miller Properties, the commission may have found that Patterson's alcoholism and his poor work history were both factors in Turner's decision. When an employer has mixed legitimate and nonlegitimate factors in making its decision, the employer may prove that it would have made the same decision even if it had not considered the nonlegitimate factors. See Price Waterhouse v. Hopkins (1989), 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775; Mt. Healthy City School Dist. Bd. of Edn. v. Doyle (1977), 429 U.S. 274. In this context, the commission's erroneous analysis of the legitimate reasons for removing Patterson may have tainted the determination of whether Turner would have made the same decision even if he had not considered Patterson's alcoholism.
In conclusion, we find that the commission did not properly consider certain aspects of Patterson's work history and that this error was prejudicial. We therefore reverse the judgment of the court of appeals, remand the case to the commission, and instruct it to assess the evidence in a manner consistent with this opinion.
Judgment reversed and cause remanded.
HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.
SWEENEY, J., dissents.