[Cite as Weitzel v. Cincinnati , 2016-Ohio-1322.]

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



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## IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

DAVID WEITZEL, Plaintiff-Appellant,

vs. CITY OF CINCINNATI,

and

CIVIL SERVICE COMMISSION OF THE CITY OF CINCINNATI, Defendants-Appellees. :

:

:

:

:

:

: APPEAL NO. C-150415 TRIAL NO. A-1402917

O P I N I O N.O HIO F IRST D ISTRICT C OURT OF A PPEALS

2 C UNNINGHAM , Judge. 

### {¶1} Plaintiff David Weitzel appeals from the judgment of the Hamilton County Court of Common Pleas affirming th e 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 Zscoring, 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 wh en giving effect to senior ity points. Fo r 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, th e city informed the candidates that the exam would consist of four parts and specif ied 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 us ed 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 seniorit y points. But the raw scores had been standardized with a statistical measurement called a Z-score as part of the formulaO HIO F IRST D ISTRICT C OURT OF A PPEALS

3 applied for weighting the in dividual parts before comb ining 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 vari ability 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 Zscoring. 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 ef fect of his seniority points. He argued also that the use of Z-scoring violated Civi l 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 th e 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 comp onents 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.” HeO HIO F IRST D ISTRICT C OURT OF A PPEALS

4 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, th at the examination had to be rescored without Z-scoring to comply with the “con tinuous” 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 Commi ssion’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 cour t overruled the objections an d 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 fo r common pleas and appellate courts. The common pleas court may determine whether the administrative decision wasO HIO F IRST D ISTRICT C OURT OF A PPEALS

5 “unconstitutional, illegal, arbitrary, capr icious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record.” R.C. 2506.04. The common pleas court ma y 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 th at 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 applicat ion 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.O HIO F IRST D ISTRICT C OURT OF A PPEALS

6 

### {¶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 part s 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 Serv ice 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 suggest ed 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 sa me conclusion in interpreting and applyingO HIO F IRST D ISTRICT C OURT OF A PPEALS

7 the “continuous” requirement of Civil Serv ice 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 de cision 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 weig hting 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 pr ovided 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 th e 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 poin ts, and that the raw scores were standardized by converting them to Z-scores as part of the weighting

formula.O HIO F IRST D ISTRICT C OURT OF A PPEALS

8 

### {¶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 affirmin g the Commission’s decision. But as the trial court noted, Dr. Kris ka’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 test s 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 hear ing 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 ea ch part of the exam consistent with the pretest announcement. We find that the tr ial 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 maintain s that the weighting formula the city used was arbitrary, capric ious, unreasonable and, therefore, illegal

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

advanced. But he fails to articulate ho w 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 fo rmula used by the city appropriately applied the proper weighting, was consistent with the formula us ed 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.O HIO F IRST D ISTRICT C OURT OF A PPEALS

9 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.

H ENDON , P.J. , and D E W INE , J., concur. Please note: The court has recorded its own entry on the date of the release of this opinion.