The Akron Legal News

City of Akron did not discriminate against mentally ill fire dept. lieutenant

ANNIE YAMSON
Special to the Legal News
Published: April 29, 2014

Recently a summary judgment in favor of the Akron Fire Department was affirmed by the 9th District Court of Appeals when it found Richard Chiancone’s claims that he was discriminated against based on disability were without merit.

Chiancone filed a disability discrimination action following a sequence of events that took place about one month after he was promoted to lieutenant.

Case summary states that, on June 18, 2006, Chiancone’s then-wife, Stacie Frabotta, arrived home to fine Chiancone “on edge.”

He got into his SUV and demanded, without explanation, that Frabotta move her car from the driveway so that he could leave.

When she refused, Chiancone rammed her car with his SUV in order to create enough space to exit the driveway.

After he left, Frabotta ran inside to find the couple’s office ransacked.

When she noticed that one of their hunting rifles was missing, she called 911 and reported that Chiancone had a firearm and had been drinking.

In the meantime, Chiancone drove onto the highway and began striking other cars with his SUV.

He ran two cars off the road, striking one three times and causing it to do a 360-degree spin before leaving the roadway.

The second driver reported to police that the SUV “came out of nowhere” and struck his vehicle from behind.

The impact caused him to cross several lanes of traffic before driving off the road.

Once the police arrived, a high-speed chase ensued, but Chiancone was eventually able to escape.

Later that day, a friend convinced Chiancone to surrender himself to the authorities and he was charged with two counts of felonious assault, one count of failure to comply with the signal of a police officer, one count of reckless operation and one count of failure to stop after an accident.

The prosecutor later dismissed the charges.

After spending three days in jail, Chiancone went to the Akron General Medical Center where he remained under psychiatric evaluation for more than a week.

He was diagnosed with severe bipolar disorder and manic depression.

Following the diagnosis, Chiancone notified city officials of his medical condition.

The city placed Chiancone on indefinite suspension for violation of the Civil Service Rules.

About five months later, the indefinite suspension was converted to a definite suspension without pay and he was notified that he had failed his 90-day probationary period for his promotion to lieutenant.

Chiancone’s subsequent complaint alleged that the city violated the Americans with Disabilities Act.

He claimed he suffered from psychological disorders and was a recovering, non-abusing alcoholic.

A federal court dismissed the claims and the case was remanded to the Summit County Court of Common Pleas which granted summary judgment to the city.

In his direct appeal, Chiancone argued that “a reasonable jury could easily conclude that the fire department’s favorable treatment of non-disabled employees charged with criminal conduct and it’s decision-makers’ negative attitudes toward, and biased comments about, Chiancone’s medical condition, constitute evidence of disability discrimination.”

“Assuming, as the trial court did, that Chiancone made a prima facie case of discrimination, the primary issue presented in this appeal is whether the city acted with discriminatory intent in disciplining Chiancone,” wrote Judge Donna Carr on behalf of the court of appeals.

The three-judge appellate panel noted that, pursuant to city policy, any fire department employee accused of a felony is placed on indefinite suspension.

Upon resolution of the criminal case, the city then determines whether further discipline of the employee is appropriate.

In his merit brief, Chiancone contended that two similarly situated, non-disabled employees received favorable treatment from the city.

“To establish that another employee qualifies as an appropriate comparator, the plaintiff must demonstrate that he or she is similarly situated to the claimed comparator on all relevant respects,” wrote Judge Carr.

In its review of the record, the appellate panel found that the other employees were not similarly situated because Chiancone held a position of authority as supervisor and lieutenant when he was charged with multiple felonies.

“Chiancone was still in his 90-day probationary period as a lieutenant,” wrote Judge Carr. “Thus, unlike (the other firefighters), Chiancone was under a period of heightened evaluation to determine whether he was fit to serve in a supervisory capacity where he would be responsible for the conduct of other employees.”

The court of appeals also pointed out that the prosecutor dismissed the charges against Chiancone but reserved the right to re-file the charges at a later date.

On the other hand, a grand jury specifically found that there was no probable cause to indict the other firefighters.

“Accordingly, Chiancone did not demonstrate that the city’s reasons were pretextual, and summary judgment was, therefore, properly granted,” Judge Carr concluded.

Judge Jennifer Hensal concurred and Presiding Judge Eve Belfance concurred in judgment only.

The case is cited State v. Chiancone, 2014-Ohio-1500.

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