[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. 

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.

 
OHIO FIRST DISTRICT COURT OF APPEALS

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CUNNINGHAM, 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 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 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 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 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. 
OHIO FIRST DISTRICT COURT OF APPEALS

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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. 
OHIO FIRST DISTRICT COURT OF APPEALS

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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.