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Kemo v. St. Clairsville6/4/1998
COX, Judge.
This timely appeal arises from a December 4, 1996 judgment of the Belmont County Common Pleas Court granting plaintiff-appellee Jack Kemo back wages in the amount of $45,212.79 upon finding that defendant-appellant city of St. Clairsville had discriminatorily refused to offer him employment because of a handicap pursuant to R.C. 4112.02(A). Though the parties stipulated that appellee did not in fact have a disability, the trial court concluded that appelleswas handicapped as a matter of law pursuant to R.C. 4112.01(A)(21) because appellant "regarded" him as having a handicap.
In October 1992, appellant placed a job notice in the local newspaper for an "entry level employee in the water/wastewater plant." The ad required that applicants possess a minimum of an associate degree in civil engineering technologies and live no further than twenty minutes from St. Clairsville, Ohio. After responding to the ad in November 1992, appellee was granted an initial interview with the superintendent of the water department, Richard Bauer, and a second interview with the director of public services, Dennis Bigler.
The position for which appellee was being considered was a "hybrid" job consisting primarily of general labor duties and inspecting duties on an as-needed basis. The record reveals that starting pay for the hybrid position was $7.70 an hour, plus full medical benefits, and was to be covered by a collective bargaining agreement upon satisfactory completion of a probationary period. An official job posting dated December 12, 1992 described the labor duties as "typical duties in the water/wastewater department." A review of the record indicates that both Bauer and Bigler considered appellee qualified to execute the inspection duties.
In December 1992, the city council approved an offer of employment to appellee, contingent upon his submitting to a routine medical examination. That the contingent offer was orally presented to appellee as such does not appear to be disputed.
Prior to appellee's taking the required medical exam, Bigler was informed by one of appellee's prior employers during a routine reference check that appellee had suffered a back injury several years earlier that caused him to take time off for treatment and rehabilitation. In a January 27, 1993 report prepared as a result of appellee's medical examination, appellant's examining physician, Dr. Murray, noted that appellee disclosed a prior herniated disk injury, that appellee had a "somewhat rigid lumbar spine with loss of normal lumbar lordosis," and that his "forward flexion is to only 45 degrees." Though Dr. Murray made no specific conclusory statements as to the aforementioned medical notations, he did write in an attached letter dated January 29, 1993 that appellee "appears currently to be well and denies any back problems. Although recurrence remains a possibility, he should be able to perform routine activities."
On or about February 10, 1993, Bigler informed appellee that he would not be hired for the "hybrid" position. Bigler, however, proposed that appellee consider providing inspection services for the city as an independent contractor on an "as needed" basis. The record indicates that both parties understood at the time of this discussion that the starting pay for the inspector's position was $12 an hour, no benefits were provided, and appellee would not be covered by a collective bargaining agreement. Both parties to this discussion also agree that there wasno discussion as to the number of hours appellee would be guaranteed as an inspector or the potential for such a position developing into full-time employment. Though the city
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