[Cite as Hixson v. Ohio State Univ., 2012-Ohio-6313.]



                                                         Court of Claims of Ohio
                                                                                 The Ohio Judicial Center
                                                                         65 South Front Street, Third Floor
                                                                                    Columbus, OH 43215
                                                                          614.387.9800 or 1.800.824.8263
                                                                                     www.cco.state.oh.us



JAMES B. HIXSON

       Plaintiff

       v.

THE OHIO STATE UNIVERSITY

       Defendant

Case No. 2010-07334

Judge Joseph T. Clark
Magistrate Lewis F. Pettigrew

DECISION OF THE MAGISTRATE

        {¶ 1} Plaintiff brought this action alleging discrimination in violation of the
Americans with Disabilities Act (ADA).                  The issues of liability and damages were
bifurcated and the case was tried to a magistrate of the court on the issue of liability.1
        {¶ 2} As a child, plaintiff was diagnosed as being severely hard of hearing in both
ears. He wears hearing aids, relies on reading lips, and he has a speech impediment.
Plaintiff testified that he was employed by defendant, The Ohio State University (OSU),
for 19.5 years, where he worked in several different positions. For example, plaintiff
had previously worked for OSU as a maintenance repair worker (MRW) II and as a
laboratory demonstrator in the geology department.                   His position in the geology
department was eliminated due to a reduction in force (RIF). According to plaintiff, after
the RIF, he assumed a “preferred status” for three to four months, during which time he
was given a hiring preference by OSU. Plaintiff applied for many jobs at OSU. In late
2006, with his preferred status nearing an end, plaintiff contacted Scott Lissner, OSU’s
Case No. 2010-07334                               -2-                                     DECISION

ADA Coordinator, to help him find a job. Lissner informed plaintiff that it was not his
responsibility to find plaintiff a job but that he could assist him if he needed an
accommodation during the application and interview process. Even though plaintiff told
Lissner that he did not need an accommodation, Lissner elected to assist plaintiff as he
sought employment.
        {¶ 3} Plaintiff testified that Donald Capps, who was employed by OSU as a
Building Maintenance Superintendent II, Craig Knotts and Michael Mitchell interviewed
him for a MRW I position, as well as an Electrician I position, at the Maintenance Rec
Sports and Athletics Shop (MTRSA shop) in OSU’s Facilities Operations and
Development Department (FOD). Plaintiff knew that the MRW I position required using
a walkie talkie radio, and that he was unable to hear voices over a walkie talkie. Plaintiff
testified that during the interview he told the interviewers that they needed to face him
when they spoke but that he did not mention the need for an accommodation regarding
the walkie talkie.
        {¶ 4} Plaintiff was hired as a MRW I as a probationary employee and began
working in July 2007. In the FOD MTRSA shop, Capps supervised 13 employees.
Plaintiff testified that during the first month as MRW I, he worked Monday through
Friday, but in August he requested a shift change to work Friday through Monday, so
that he could spend more time with his wife. Plaintiff testified that Mitchell was his
immediate supervisor on the weekends and that Knotts supervised him one to two times
a month.      Plaintiff explained that as a MRW I his daily work included completing
“preventive maintenance” work orders (PMs), such as checking belts, filters and
electrical connections, and he also performed emergency response jobs.
        {¶ 5} Plaintiff testified that he attended a two-day “new employee orientation” one
or two weeks after he began working for FOD. The tables in the orientation room were

        1
         On August 24, 2011, the court granted defendant’s motion for summary judgment as to plaintiff’s
claims for breach of contract, wrongful discharge in violation of public policy, and promissory estoppel.
Case No. 2010-07334                             -3-                               DECISION

positioned in the shape of a “U” with the speaker standing in the middle of the tables.
According to plaintiff, the first day of orientation ended at 3:00 or 3:30 p.m., and that the
40-50 employees attending the orientation were specifically told that they could go
home and did not need to return to their job site. Peggy Barylak, an employee in FOD’s
human resource department, spoke during the second day of the orientation and
testified that orientation ended around 1:45 or 2:00 p.m.           Plaintiff testified that the
second day of orientation also concluded around 3:00 p.m., but that he did not hear any
instructions of what they were supposed to do, and he elected to go home instead of
returning to FOD. Russell Brobst, an OSU employee for 30 years before retiring in
2009, also attended the orientation and worked with plaintiff. Brobst testified that the
second day of orientation did not last the whole work day and when someone asked
Barylak what they were supposed to do after the orientation Barylak told the group that
they were supposed to return to their job location. Brobst testified that Barylak had her
back to plaintiff when she made the announcement and that even he barely heard
Barylak’s response. Brobst stated that no other announcement was made, and when
orientation ended plaintiff told him he would see him at work the next morning. When
Brobst returned to the shop, Capps inquired about plaintiff’s whereabouts and he
informed Capps that plaintiff went home and that he believed plaintiff did not hear the
announcement to return to the job site.
       {¶ 6} Plaintiff testified that when he arrived at work the following day, Capps
approached him to ask why he did not return to work the previous day. When plaintiff
explained to Capps that he did not hear anyone say that he was supposed to return to
FOD, Capps told plaintiff that he would receive a written corrective action. However,
after a meeting with Peter Calamari, who was employed by OSU in 2007 as Assistant
Director of Maintenance for FOD, a union representative, Capps, and plaintiff, Capps
agreed to reduce the reprimand to a verbal warning.


However, summary judgment was denied as to plaintiff’s ADA claim.
Case No. 2010-07334                          -4-                                 DECISION

         {¶ 7} Within a few weeks of plaintiff’s employment as MRW I, Capps noticed that
plaintiff did not respond to calls made to him on the FOD-issued walkie talkie radio.
According to Capps, FOD employees use walkie talkie radios to communicate from the
work site to the FOD building, and he estimated that they are used three to seven times
per shift by each employee. Capps explained to the court that it concerns a supervisor
when an employee does not respond to a call because it may mean that the employee
is injured. Plaintiff testified that Capps approached him about not responding to calls on
his walkie talkie radio and plaintiff testified that he was unable to hear the radio due to
his hearing loss. Once Capps was made aware of the problem, Capps provided plaintiff
with a microphone to wear on his shoulder which amplified the sound of the walkie talkie
radio.
         {¶ 8} According to plaintiff, a meeting was subsequently arranged with Capps and
Lissner, to discuss an accommodation for his hearing loss and his inability to hear the
walkie talkie radio. Plaintiff explained that he was evaluated by an audiologist in July
2007 and that in August 2007 the audiologist issued a report which recommended that
plaintiff be issued a special T-4 cellular phone. Plaintiff received the phone on October
15, 2007.
         {¶ 9} Capps testified that for the first four to six weeks of plaintiff’s employment,
plaintiff performed PM work orders with another employee to learn how to perform the
jobs and both employees reported the same amount of time on the work order. Capps
admitted that plaintiff’s timekeeping records early in his probation were adequate.
However, Capps testified that after about three months, he noticed an increase in the
time plaintiff took to complete PM work orders.         He explained to the court that he
compared times for the same activities because the same PMs are performed every
three months.
         {¶ 10} In his performance review in mid-November 2007, Mitchell and Capps
informed plaintiff that his performance did not meet expectations. Plaintiff’s final written
Case No. 2010-07334                                -5-                                       DECISION

performance evaluation states that he “does not meet” expectations in the categories of
quality, quantity and timeliness, and communication. (Defendant’s Exhibit Q.) Plaintiff
was issued a probationary removal at the end of the probationary period effective
December 8, 2007. Plaintiff testified that he is currently unemployed and receiving a
disability retirement from PERS. Plaintiff alleges that defendant discriminated against
him in violation of the ADA by basing its decision to remove plaintiff on plaintiff’s
performance before he received his accommodation.
        {¶ 11} Former 42 U.S.C. 12112(a) states:
        {¶ 12} “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, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment.”2
        {¶ 13} In a similar fashion, R.C. 4112.02 states, in part:
        {¶ 14} “It shall be an unlawful discriminatory practice:               (A) For any employer,
because of the * * * disability * * * of any person, to discharge without just cause, to
refuse to hire, or otherwise to discriminate against that person with respect to hire,
tenure, terms, conditions, or privileges of employment, or any matter directly or
indirectly related to employment.”
        {¶ 15} “To establish a prima facie case of discrimination under the ADA, a plaintiff
must prove that ‘(1) [he] has a disability; (2) [he] was qualified for the job; and (3) that
[he] either was denied a reasonable accommodation for [his] disability or was subject to
an adverse employment decision that was made solely because of [his] disability.’”
Walser v. Ohio Univ., Ct. of Cl. No. 2003-03680, 2004-Ohio-4722, ¶ 8, quoting Johnson

        2
           The current version of the ADA, as amended in 2008, provides, at 42 U.S.C. 12112(a): “No
covered entity shall discriminate against a qualified individual on the basis of disability in regard to job
application procedures, the hiring, advancement, or discharge of employees, employee compensation,
job training, and other terms, conditions, and privileges of employment.” As the events giving rise to
plaintiff’s claim occurred before the January 1, 2009 effective date of the ADA Amendments, the court will
apply the statute in place prior to January 1, 2009. See Carpenter v. Ohio Health Corp., S.D.Ohio No.
2:09-CV-965, 2011 U.S. Dist. LEXIS 113067 (Sept. 30, 2011).
Case No. 2010-07334                             -6-                                    DECISION

v. Mason, 101 F. Supp.2d 566, 573 (S.D.Ohio 2000); see also Talley v. Family Dollar
Stores of Ohio, Inc., 6th Cir. No. 07-3971, 2008 U.S. App. LEXIS 19342 (Sept. 11,
2008), Taylor v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 11AP-385, 2011-
Ohio-6060, ¶ 18-19.
       {¶ 16} Under Ohio law, “[t]o establish a prima facie case of handicap
discrimination, the person seeking relief must demonstrate (1) that he or she was
handicapped, (2) that an adverse employment action was taken by an employer, at
least in part, because the individual was handicapped, and (3) that the person, though
handicapped, can safely and substantially perform the essential functions of the job in
question.” Columbus Civ. Serv. Comm. v. McGlone, 82 Ohio St.3d 569, 571 (1998).3
       {¶ 17} Defendant does not dispute that plaintiff has a disability and that plaintiff’s
probationary removal is an adverse employment action. Rather, defendant disputes
that plaintiff was qualified for the position. “The prima facie burden of showing that a
plaintiff is qualified can be met by presenting credible evidence that his or her
qualifications are at least equivalent to the minimum objective criteria required for
employment in the relevant field.            Although the specific qualifications will vary
depending on the job in question, the inquiry should focus on criteria such as plaintiff’s
education, experience in the relevant industry, and demonstrated possession of the
required general skills.” Saha v. Ohio State Univ., 10th Dist. No. 10AP-1139, 2011-
Ohio-3824, ¶ 49, citing Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 575-576
(6th Cir.2003). Inasmuch as plaintiff had previously been employed by OSU as a MRW
II, the court finds that plaintiff was qualified for the position.
       {¶ 18} Further, to the extent that defendant maintains that plaintiff may recover
only if the adverse employment action was “solely” due to his disability, the Sixth Circuit
Court of Appeals recently decided that the “sole cause” requirement in an ADA case is

       3
        Ohio courts often look to the ADA for assistance in interpretation of Ohio law. Columbus Civ.
Serv. Comm. v. McGlone, 82 Ohio St.3d 569, 571 (1998).
Case No. 2010-07334                                   -7-                                         DECISION

improper.4 However, even if the court were to find that the delay in providing plaintiff
with an accommodation was attributable to OSU and that plaintiff’s removal was due, at
least in part, to his disability, an employer may avoid liability by articulating a legitimate
reason for the adverse employment action. Talley, supra; McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).                  Once the employer has produced evidence of a
nondiscriminatory reason for the adverse action, plaintiff must produce sufficient
evidence from which the trier of fact may reasonably reject the employer’s explanation.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000).
        {¶ 19} Defendant has produced evidence to support several legitimate,
nondiscriminatory reasons for plaintiff’s discharge.                     First and foremost, plaintiff’s
honesty was discredited when Capps thought plaintiff lied to him.                             With regard to
plaintiff’s honesty, the evidence shows that Capps believed that when plaintiff was
interviewed for the MRW I position, he did not address the need for an accommodation
in place of the walkie talkie radio even though he knew he was unable to hear the radio.
Plaintiff acknowledged at trial that he withheld this information because he did not want
to jeopardize his chances of getting the job. Capps testified that plaintiff “misled” him by
stating that he did not need an accommodation. According to Capps, he thought that
this showed a lack in plaintiff’s honesty. Capps explained that he would still have hired
plaintiff had he known the extent of his hearing loss but that he would have been able to
assist plaintiff in receiving an accommodation earlier if he had known about his needs.
Capps believed that the subsequent communication problems could have been avoided
had plaintiff simply been honest with him.



        4
          See Lewis v. Humboldt Acquisition Corp., 6th Cir. No. 09-6381, 2012 U.S. App. LEXIS 10618
(May 25, 2012). (“At no point * * * has the ADA used the ‘solely’ because of formulation found in the
Rehabilitation Act. * * * The sole-cause standard in the end is a creature of the Rehabilitation Act, and
that is where we should leave it. The standard does not apply to claims under the ADA.”) In that case,
the court of appeals found that the district court erred in instructing the jury that plaintiff could only prevail
on an ADA discrimination claim if defendant’s decision to fire plaintiff was “solely” because of plaintiff’s
disability. Id.
Case No. 2010-07334                         -8-                                  DECISION

       {¶ 20} Further, plaintiff’s failure to return to the job site after the second day of
orientation led Capps to doubt plaintiff’s honesty.       Capps testified that he was not
“thrilled” that plaintiff did not return to FOD and he thought plaintiff should be disciplined
because he failed to work a full work day. While plaintiff testified that the orientation did
not end until 3:00 p.m., Capps testified that Brobst returned to the FOD shop around
1:00 p.m., and Barylak testified that the second day of orientation ended around 2:00
p.m. Capps explained that this incident affected his opinion about plaintiff’s credibility.
Brobst testified that he had previously worked for Capps and knew that Capps does not
respect individuals who lie.
       {¶ 21} A second reason relied upon by OSU is Capps’ belief that plaintiff did not
take pride in his work. The evidence establishes that plaintiff felt “entitled” to a position
at OSU and that he only took the MRW I job so that he could work his way up to a
management position. Lissner has been employed by OSU as the ADA Coordinator
since January 3, 2000. According to Lissner, his job duties at OSU included reviewing
disability policies, dispute resolution, and human resources and employment issues.
Lissner testified that plaintiff first contacted him when plaintiff’s job in the geology
department was eliminated as a result of the RIF. According to Lissner, plaintiff told
Lissner that he needed to find plaintiff a new job because he was disabled. Lissner
testified that it was not his responsibility to find employment for plaintiff, but that if
plaintiff needed assistance or an accommodation for the interviewing process, he would
help him. Lissner stated that he thought plaintiff acted as though he was entitled to a
job.
       {¶ 22} Plaintiff’s own testimony confirmed Lissner’s opinion of plaintiff’s attitude.
Plaintiff testified that the MRW I position was “below his skill level” and that he only
accepted the MRW I position because his RIF preference was close to expiring.
Plaintiff admitted that he hoped to be able to work up to a management position.
Further, Barylak testified that plaintiff approached her at the end of the second day of
Case No. 2010-07334                              -9-                                     DECISION

orientation and told her that he only took the MRW I position while he waited for a
management position.
        {¶ 23} Defendant presented evidence that plaintiff displayed this “entitled” attitude
while working at FOD.         Knotts, who in 2007 was employed by OSU as a building
maintenance supervisor I, testified that he occasionally supervised plaintiff and plaintiff
did not show much enthusiasm for his job. He related one instance where plaintiff was
driving a university-owned truck and lightly hit another vehicle.                Knotts testified his
impression was that plaintiff did not seem to think that hitting another vehicle was a “big
deal.” (Defendant’s Exhibit P.) Similarly, Knotts informed Capps that plaintiff damaged
the fireproofing on a ceiling when he used an extension ladder after he had been told
not to do so. (Defendant’s Exhibit P.) According to Capps, in the aggregate, plaintiff’s
attitude indicated that he did not care about his job and that he thought it was below his
skill level. Furthermore, the evidence shows that plaintiff spent over six hours in the
OSU football stadium looking for a room where he needed to perform a work order.
Plaintiff admitted that the stadium was located across the street from the FOD shop.
Plaintiff testified that he could not find the room using the blueprints given to him and
that he spent over six hours looking for it. Plaintiff’s explanation was that he did not
want to “bother” his supervisor with questions but that he eventually asked Mitchell, who
helped him find the room.
        {¶ 24} Although defendant also points to plaintiff’s untimely completion of PM
work orders as a legitimate nondiscriminatory reason for his removal, and there is some
evidence that plaintiff’s time to complete PM work orders increased when he repeated
the same tasks, even after he received his accommodation, the court believes that this
was a secondary reason for plaintiff’s removal.5
        {¶ 25} Based upon the evidence, the court finds that plaintiff believed he was
“entitled” to a position at OSU and that this belief led to a bad attitude on the job. Capps

        5
         Defendant introduced the individual work orders in Defendant’s Exhibit G. At trial, defendant’s
Exhibits G, I, and L were admitted over plaintiff’s objections.
Case No. 2010-07334                         - 10 -                               DECISION

testified credibly that he believed plaintiff lied to him. Further, plaintiff’s actions on the
job show that he was not a dedicated worker. In short, the court finds that defendant
had legitimate nondiscriminatory reasons for plaintiff’s removal.
       {¶ 26} Since defendant has articulated legitimate nondiscriminatory reasons for
its action, the burden shifts back to plaintiff to prove by a preponderance of the evidence
that the reason offered by defendant was not the true reason by merely a pretext for
discrimination. McDonnell Douglas, supra. Plaintiff “may challenge the credibility of the
employer’s explanation by demonstrating: ‘(1)that the proffered reason had no basis in
fact, (2) that the proffered reason did not actual motivated the discharge, or (3) that the
proffered reason was insufficient to motivate the discharge.’” Owens v. Boulevard Motel
Corp., 10th Dist. No. 97APE12-1728 (Nov. 5, 1998), quoting Frantz v. Beechmont Pet
Hosp., 117 Ohio App.3d 351, 359 (1st Dist.1996); see also Manzer v. Diamond
Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir.1994).
       {¶ 27} Plaintiff argues that Capps’ animosity towards plaintiff is evidence of
pretext.   Plaintiff testified that Capps was not “very friendly” when he approached
plaintiff to inquire why he did not return to FOD after the orientation. However, plaintiff
admitted that Capps told him that he did not believe plaintiff’s story about not hearing
the announcement at the end of orientation. Plaintiff was expected to work a full day
and when the orientation ended early, he should have returned to FOD.                Further,
Brobst, who had past work experience with Capps, testified that he knew that Capps
expected his employees to be honest in their work.            The court finds that Capps’
testimony is credible that he believed plaintiff lied to him about why he did not return to
FOD after the second day of orientation.
       {¶ 28} Plaintiff argues that Capps became frustrated when he learned, about a
month after plaintiff began working, that plaintiff was unable to communicate with the
walkie talkie radio. The court finds that Capps became “frustrated” because plaintiff
failed to disclose that fact during the interview and wasted valuable time that could have
Case No. 2010-07334                         - 11 -                               DECISION

been used to arrange an appropriate accommodation. On the heels of the orientation
incident, Capps had grounds to question plaintiff’s honesty.
       {¶ 29} For the reasons stated above, the court finds that Capps’ perception of
plaintiff was not due to his disability but because of his attitude and integrity. In fact, it
was Capps who arranged a meeting with Lissner to discuss an accommodation as soon
as he learned that plaintiff could not hear the radios. Further, Capps stated credibly that
he would still have hired plaintiff for this position even if he had known this information
at the interview but that he could have assisted plaintiff in receiving an accommodation
earlier in his employment. Capps was also instrumental in arranging for plaintiff to
retain his previous rate of pay when he became a MRW I. Plaintiff testified that the
MRW I was posted at a lower salary than his previous job in the geology department but
that Capps was able to increase plaintiff’s pay. Capps testified that he made a “strong
pitch” to keep plaintiff’s salary at the same level he had in the geology department and
Calamari confirmed Capps requested increase in plaintiff’s pay rate. Capps’ actions in
helping plaintiff do not indicate any animosity.
       {¶ 30} Plaintiff also alleges that his probationary removal was based on plaintiff’s
hearing both because Capps’ mid-probationary review was conducted before plaintiff
received his accommodation and because the final evaluation contained multiple drafts
defendant decided to terminate plaintiff and then created the documentation to support
its decision. Capps, however, testified that a mid-probationary review of plaintiff was
most likely conducted in either August or September 2007 but that he cannot recall any
details about such evaluation. Additionally, the September 10, 2007 email from Becca
Hubbard, a human resources consultant for FOD, to Capps stating that she spoke “at
length with Jan about the possibility of a probationary removal for Jim,” does not prove
that Capps had already decided at this time to remove plaintiff. (Plaintiff’s Exhibit 4.)
Further, both Chitra Iyer, an OSU employee in its central human resources department
and Ladonia Coatney, an employee in FOD’s human resource department, testified that
the purpose of the probationary period is for management to assess whether the
Case No. 2010-07334                        - 12 -                               DECISION

probationary employee is a good fit for the position. The 180-day probationary period
helps management see if the employee demonstrates the proper skill set for the
position.     Accordingly, the court finds that Capps evaluated plaintiff’s performance
throughout his probationary period, both before and after he had the accommodation.
       {¶ 31} Regarding plaintiff’s final evaluation, Capps testified that several drafts
were completed for plaintiff and that he communicated with Peggy Barylak about the
evaluation.     Capps explained that Barylak has offered clarifications on performance
evaluations in the past.     Barylak, a 13-year employee in FOD’s human resources
department, testified that she reviews most employee evaluations; that she offers
assistance to supervisor’s completing the evaluation; and that maintenance and
technical supervisors tend to ask many questions about evaluations. Barylak stated
that her goal is to ensure that evaluations are fair and accurate. Further, she testified
that she may review a probationary evaluation with the supervisor if the employee is
going to be removed from the position. She testified that Capps expressed concerns
about plaintiff’s timeliness but that when she reviewed Capps’ draft it stated that plaintiff
met “quantity and timeliness.” (Defendant’s Exhibit U.) As a result, Capps revised
plaintiff’s evaluation accordingly. The court finds that this testimony is credible and that
Capps’ initial performance evaluation was a draft which Barylak reviewed for accuracy.
       {¶ 32} Further, plaintiff argues that his probation should have been extended
since his accommodation was not in place for most of his probationary period. Although
Capps made an effort to extend plaintiff’s probationary period because he was unsure if
the accommodation had been fully implemented, Barylak responded that probation
could not be extended unless the employee had been on a leave of absence.
(Defendant’s Exhibit U.)     Moreover, as stated above, defendant’s true reasons for
plaintiff’s probationary removal were plaintiff’s sense of entitlement on the job and
Capps’ impression that plaintiff lacked integrity and honesty in his work. Accordingly,
Case No. 2010-07334                        - 13 -                              DECISION

plaintiff has failed to prove that defendant’s claimed inability to extend his probation was
a pretext for discrimination.
       {¶ 33} Defendant asserts that one of its reasons for removing plaintiff was
because of plaintiff’s increased time in completing PM work orders even after plaintiff
received his accommodation. Plaintiff argues that the work orders defendant cites to
show an increase in time do not compare the same work and therefore are evidence of
pretext.   However, as noted above, the court has not given great weight to the
timeliness issue inasmuch as defendant has provided a legitimate nondiscriminatory
reason for plaintiff’s removal. Moreover, “[a] reason cannot be proved to be a pretext
for discrimination unless it is shown both that the reason was false, and that
discrimination was the real reason.” Knepper v. Ohio State Univ., 10th Dist. No. 10AP-
1155, 2011-Ohio-6054, ¶ 12, citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515
(1993); see also Northern v. Med. Mutual of Ohio, 8th Dist. No. 86527, 2006-Ohio-1075,
¶ 19. Accordingly, plaintiff’s argument that his timeliness in performing work orders was
a false reason for his removal is not dispositive of his claims. While defendant may
have used plaintiff’s timeliness as a reason for removing plaintiff, the court finds that
defendant provided several other legitimate nondiscriminatory reasons that plaintiff has
failed to prove were pretext for discrimination.
       {¶ 34} The court finds that defendant’s reasons for removing plaintiff are credible,
including his apathetic attitude towards his job and his dishonesty. Plaintiff has not
shown that defendant’s legitimate reasons are not credible nor has he shown that
discrimination was the reason for his removal. Plaintiff has failed to present evidence of
pretext. Simply stated, plaintiff did not prove by a preponderance of the evidence that
defendant’s decision was because of plaintiff’s disability.
       {¶ 35} For the foregoing reasons, the court concludes that plaintiff has failed to
prove his claims by a preponderance of the evidence. It is recommended that judgment
be rendered in favor of defendant accordingly.
Case No. 2010-07334                        - 14 -                               DECISION

         {¶ 36} A party may file written objections to the magistrate’s decision within 14
days of the filing of the decision, whether or not the court has adopted the decision
during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files
objections, any other party may also file objections not later than ten days after the first
objections are filed. A party shall not assign as error on appeal the court’s adoption of
any factual finding or legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely
and specifically objects to that factual finding or legal conclusion within 14 days of the
filing of the decision, as required by Civ.R. 53(D)(3)(b).



                                           _____________________________________
                                           LEWIS F. PETTIGREW
                                           Magistrate

cc:


Robert D. Noble                               Velda K. Hofacker
261 South Front Street                        Assistant Attorney General
Columbus, Ohio 43215                          150 East Gay Street, 18th Floor
                                              Columbus, Ohio 43215-3130

007
Filed July 2, 2012
To S.C. Reporter January 16, 2013
