         [Cite as Weitzel v. Cincinnati, 2016-Ohio-1322.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



DAVID WEITZEL,                                     :        APPEAL NO. C-150415
                                                            TRIAL NO. A-1402917
        Plaintiff-Appellant,                       :

  vs.                                              :          O P I N I O N.

CITY OF CINCINNATI,                                :

  and                                              :

CIVIL SERVICE COMMISSION OF :
THE CITY OF CINCINNATI,

    Defendants-Appellees.                          :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed from is: Affirmed

Date of Judgment Entry on Appeal: March 30, 2016


William M. Gustavson, for Plaintiff-Appellant,

Paula Boggs Muething, City Solicitor, and William C. Hicks, Sr., Assistant City
Solicitor, for Defendants-Appellees.




Please note: this case has been removed from the accelerated calendar.
                       OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Judge.

        {¶1}    Plaintiff David Weitzel appeals from the judgment of the Hamilton

County Court of Common Pleas affirming the Cincinnati Civil Service Commission’s

(“Commission”) denial of Weitzel’s appeal regarding the grading of his 2013

Cincinnati Fire Captain’s promotional exam. Weitzel contended that the use of Z-

scoring, and the Z-scoring formula that was used, contradicted the stated terms of

the promotional exam and the Commission’s rules, and the formula was arbitrary,

capricious, and unreasonable when giving effect to seniority points. For the reasons

that follow, we affirm.

                       I. Background Facts and Procedure

        {¶2}    The city of Cincinnati announced Fire Captain promotional exam 13-

00005 in January 2013. Shortly thereafter, the city informed the candidates that the

exam would consist of four parts and specified what percentage each part would be

worth in calculating the final exam grade. The city also announced that a “cut score

of 65” on the written exam was necessary to sit for the other three parts, which were

administered on a later date.

        {¶3}    After all four parts were completed, the exams were graded. The city

posted an eligibility list containing the 51 applicants who passed. Weitzel ranked

13th on the eligibility list.

        {¶4}    At subsequent review sessions, the city provided the examinees a

written detailed explanation of the method used to determine the final exam score.

Ultimately, the final overall score was determined by adding the weighted scores of

the four parts together with the seniority points. But the raw scores had been

standardized with a statistical measurement called a Z-score as part of the formula




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applied for weighting the individual parts before combining them. The Z-score

measured a score’s relationship to the mean, or average, in a group of scores by

considering the mean and the standard deviation, or variability in the candidate’s

performance, for each exam part. According to the city’s explanation, a Z-score of

zero indicated an average score, but a positive number indicated a score above the

mean and a negative number indicated the opposite.

       {¶5}   Weitzel filed an appeal to the Commission challenging the use of Z-

scoring. He claimed that the use of Z-scoring, instead of simply weighting and

combining his raw scores, contradicted the weighting terms announced for the exam,

and that the Z-scoring formula diluted the effect of his seniority points. He argued

also that the use of Z-scoring violated Civil Service Rule 10, Section 5, which required

the scores for each part to be on a “continuous” scale if they were not “discrete,” such

as “pass/fail,” which was also allowed under the rule.

       {¶6}   Two hearings were held before the Commission. Both the city and

Weitzel submitted evidence concerning the appropriateness of Z-scoring. The city

submitted exhibits demonstrating that it has been using Z-scores for almost two

decades on “any exam” using “multiple components that differ in type, length, and

score range,” such as Weitzel’s promotional exam. Additionally, the city submitted

two reports from S. David Kriska, Ph.D., of Restat Systems, Inc., who reviewed the

city’s scoring method. Dr. Kriska condoned the use of Z-scoring in light of the

different scales for the test components. He recognized that Z-scoring is a legitimate

statistical method to place the four tests “on a common scale based on candidate

ability,” and determined that the Z-scoring formula used by the city in grading

Weitzel’s exam was a “meaningful and proper application of the test weights.” He




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also concluded that the scoring procedure was “reasonable” when viewed from the

perspective of adding and giving “effect” to seniority points.

         {¶7}     Included in Weitzel’s evidence was a report from Jeffrey Mills, Ph.D.,

an Associate Professor of Economics at the University of Cincinnati, who arrived at

the same conclusion as Dr. Kriska—that the use of Z-scoring was legitimate and

appropriate, and that the city’s formula gave proper weight to each of the four exam

parts.    Weitzel maintained, however, that the examination had to be rescored

without Z-scoring to comply with the “continuous” scale rule and the announcement

concerning the weighting of the four parts.

         {¶8}     The Commission ruled in favor of the city and issued a written opinion

explaining the basis of its decision. Weitzel then appealed the Commission’s decision

to the Hamilton County Court of Common Pleas under R.C. 2506.01. A magistrate

determined that the Commission’s decision was not “unconstitutional, illegal,

arbitrary, capricious, unreasonable, or unsupported by a preponderance of

substantial, reliable and probative evidence on the whole record.” Weitzel filed

objections, but the trial court overruled the objections and adopted the magistrate’s

decision.       This appeal ensued.

         {¶9}     In his sole assignment of error, Weitzel argues that the trial court erred

by affirming the Commission’s decision “where the city parties presented no

evidence to refute the issues [he] raised, including that the Civil Service Commission

illegally violated its own rules by allowing Z-[s]coring.”

                II. Judicial Review of the Commission’s Decision

         {¶10} Weitzel’s administrative appeal is governed by the standards of review

set forth in R.C. 2506.04, which differ for common pleas and appellate courts. The

common pleas court may determine whether the administrative decision was



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“unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the

preponderance of substantial, reliable, and probative evidence on the whole record.”

R.C. 2506.04. The common pleas court may make factual and legal determinations

and provide for the introduction of new or additional evidence, although the

standard of review is not de novo. Cleveland Clinic Found. v. Cleveland Bd. of

Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 23, quoting

Kisil v. Sandusky, 12 Ohio St.3d 30, 34, 465 N.E.2d 848 (1984).          This court’s

authority is limited to reviewing the common pleas court’s decision on “questions of

law” only, and does not encompass the same power to weigh the evidence. Id. at ¶

25, citing Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147, 735

N.E.2d 433 (2000).

       {¶11} Ultimately, the standard of review that we apply in this administrative

appeal “is designed to strongly favor affirmance. It permits reversal only when the

court of common pleas errs in its application or interpretation of the law or its

decision is unsupported by a preponderance of the evidence as a matter of law.” Id.

at ¶ 30.

                                   III. Analysis

       {¶12} Both parties agree that when grading Weitzel’s exam for Fire Captain,

the city was bound by the “continuous” requirement of Civil Service Rule 10, Section

5, and the preannounced weighting concerning the four parts. Weitzel argued that

the city’s use of Z-scoring violated these requirements and that the Z-scoring formula

arbitrarily diluted the effect of his seniority points. The Commission rejected these

arguments based on the evidence presented and denied Weitzel’s request to regrade

the examination. The trial court affirmed the Commission’s decision. We find no

error as a matter of law.



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       {¶13} Civil Service Rule 10, Section 5’s “continuous” requirement. The

relevant part of this civil service rule provides:

               Each part of the examination for each classification shall

               be graded separately.      Scores for each part shall be

               continuous (e.g. 1 to 100) or discrete (e.g. pass/fail).

               Weighting of the various parts of the examination shall

               be based upon the results of the job analysis. When

               supported by the results of the job analysis, parts of the

               exam may be used to determine eligibility to compete on

               later parts of the exam, and such parts may either be

               weighted or not weighted in the computation of the final

               score. * * * The final grade for each candidate shall be a

               single score. * * * In promotional examinations, credit

               for seniority in service shall be added to the examination

               grade, but no credit for seniority or any other reason

               shall be added to an examination grade unless the

               applicant achieves a passing score on the examination

               without counting such extra credit.

(Emphasis added.) Civil Service Rule 10, Section 5.

       {¶14} Weitzel argues that Z-scoring is not a “continuous” scale because it

compares candidates based on standard deviations instead of the simple and

sequential raw score scale. The Commission determined that “the scores for each

part were continuous,” and it further suggested that Z-scoring is a continuous scale,

even though the scores are derived statistically to standardize the test. We read the

trial court’s decision as arriving at this same conclusion in interpreting and applying



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the “continuous” requirement of Civil Service Rule 10, Section 5, and ultimately

affirming the Commission’s decision.

       {¶15} The scores for each part were continuous. The basis of our decision

affirming the trial court’s decision on this issue is narrower.      On its face, the

applicable rule requires only that “[s]cores for each part shall be continuous.” The

rule further recognizes, however, that weighting can occur, and that there will be a

“final grade” that will be reported as a “single score.”      Here, according to the

explanation of the scoring provided to the candidates, the city’s exhibit No. 4, each

candidate received a raw score for “each part” of the exam, which even Weitzel

concedes was on a numerical continuum and met the “continuous” requirement.

Consistent with this, as the city explained in another exhibit, the “cut score” for the

written exam was not based on a Z-score, but instead was based on the raw score.

Thus, Weitzel has not demonstrated that the trial court erred as a matter of law in

resolving this issue.

       {¶16} Weighting of the four parts of the exam. The pretest announcement

established that the exam would consist of four parts and indicated what percentage

of the exam grade each part would be worth, consistent with the following: (1) a

written examination, worth 40 percent, (2) an in-basket/essay exercise, worth 10

percent, (3) an emergency situation exercise, worth 20 percent, and (4) an oral board

assessment, worth 30 percent.        The city’s explanation of the exam scoring

demonstrates that the final overall test score was determined by adding the weighted

scores of the four parts of the examination with the seniority points, and that the raw

scores were standardized by converting them to Z-scores as part of the weighting

formula.




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       {¶17} Weitzel argues that the record contains no evidence demonstrating

that the proper weighting of the four parts occurred with the use of the Z-score, and

therefore the trial court erred by affirming the Commission’s decision. But as the

trial court noted, Dr. Kriska’s reports addressed the weighting issues, and he

concluded that the formula used by the city that employed the use of Z-scores

resulted in a proper application of the tests weights. Dr. Kriska also concluded that

the scores had to be standardized for the weighting to be proper because the

components were measured on different scales.           Dr. Mills made the same

observation in his report that Weitzel offered at the hearing before the Commission.

And both Dr. Kriska and Dr. Mills concluded that the specific formula used by the

city—which involved using whole number multipliers instead of decimals—was

appropriate to give the proper weights to each part of the exam consistent with the

pretest announcement. We find that the trial court’s decision on the weighting issue

was supported by a preponderance of reliable, probative and substantial evidence.

       {¶18} Effect of seniority points. Weitzel also maintains that the weighting

formula the city used was arbitrary, capricious, unreasonable and, therefore, illegal

because it diluted the effect of his seniority points compared to the formula that he

advanced.     But he fails to articulate how this resulted in a violation of the

Commission’s rules. Nor has he shown that the weighting formula used to grade his

exam was arbitrary, capricious or unreasonable, as the record contains evidence

showing that the weighting formula used by the city appropriately applied the proper

weighting, was consistent with the formula used in the past to grade similar types of

exams, and was deemed by Dr. Kriska as “reasonable” and an appropriate method

for giving effect to seniority points.




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                                  VI. Conclusion

       {¶19} The trial court’s decision affirming the Commission was not contrary

to law and was supported by a preponderance of reliable, probative and substantial

evidence. Accordingly, we overrule the assignment of error and affirm the trial

court’s judgment.

                                                                    Judgment affirmed.

HENDON, P.J., and DEWINE, J., concur.

Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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