Robert Kelsey v. Wal-Mart Stores, Inc.

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OHIO CIVIL RIGHTS COMMISSION

IN THE MATTER OF:
ROBERT W. KELSEY
Complainant

and

WAL-MART STORES, INC.

Respondent

Complaint #8035
(CIN) 25042596 (25675) 071296
221-96-0832

HEARING EXAMINER'S FINDINGS OF FACT,

CONCLUSIONS OF LAW, AND RECOMMENDATION

BETTY D. MONIGOMERY
ATTORNEY GENERAL

Barbara J. Morsa, Esq.
Assistant Attomey General
Civil Rights Section

1600 Carew Tower

4A1 Vine Street

Cincinnati, OH 45202-2809
(513) 852-3497

Counsel for the Commission
Ivan L. Tamarkin, Esq.

Second National Bank Building
830 Main Street, Suite 999
Cincinnati, OH + 45202-2130

Counsel for Complainant

Roy A. Hulme, Esq.
Reminger & Reminger

The 113 St. Clair Building

Cleveland, OH 44114

(216) 687-1311

Counsel for Respondent

Robert W. Kelsey
5157 Paddock Road
Cincinnati, OH 45237

Complainant

HEARING EXAMINER'S REPORT BY:

Franklin A. Martens, Esq.

Chief Hearing Examiner

Ohio Civil Rights Commission
1111 East Broad Street, Suite 301
Columbus, OH 43205-1379
(614) 466-6684

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INTRODUCTION AND PROCEDURAL HISTORY
Robert Kelsey (Complainant) filed a sworn charge affidavit with the Ohio
Civil Rights Commission (Commission) on July 12, 1996.
The Commission investigated and found probable cause to believe that
unlawful discriminatory practices had been engaged in by Wal-Mart Stores,
Inc. 	(Respondent) 	(Wal-Mart) 	in 	violation 	of 	Revised 	Code 	§ 	(R.C.)
4112.02(A).
The 	Commission's 	efforts 	to 	eliminate 	the 	alleged 	unlawful
discriminatory practices by conciliation were unsuccessful. 	A complaint
was issued on July 10, 1997.
The 	Complaint 	alleges 	that 	Respondent 	discharged 	Complainant
because of his race.1
1 The Complaint alleged “that the Complainant’s race was a consideration in the
Respondent’s decision to discharge him.”

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Respondent 	filed 	an 	Answer 	to 	the 	complaint, 	admitting 	certain
procedural 	allegations 	but 	denying 	that 	it 	engaged 	in 	any 	unlawful
discriminatory practices.
A public hearing was held on February 24-25, 1998 at the Commission’s
office in Cincinnati, Ohio.
The 	Record 	consists 	of 	the 	previously 	described 	pleadings; 	the
transcript consisting of 383 pages of testimony; exhibits admitted into
evidence at the hearing; and the post-hearing briefs filed by the Commission
on May 12, 1998 and by Respondent on June 12, 1998.
FINDINGS OF FACT
The following findings are based, in part, upon the Hearing Examiner's
assessment of the credibility of the witnesses who testified before him in this
matter. 	The Hearing Examiner has applied the tests of worthiness of belief
used in current Ohio practice. 	For example, he considered each witness's
appearance and demeanor while testifying. 	He considered whether a witness

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was evasive and whether his or her testimony appeared to consist of
subjective opinion rather than factual recitation. 	He further considered the
opportunity each witness had to observe and know the things discussed; each
witness's strength of memory; frankness or the lack of frankness; and the
bias, prejudice, and interest of each witness. 	Finally, the Hearing Examiner
considered the extent to which each witness's testimony was supported or
contradicted by reliable documentary evidence.
1. 	Complainant filed a sworn charge affidavit with the Commission on
July 12, 1996.
2. 	The Commission determined on May 15, 1997 that it was probable
that unlawful discriminatory practices had been engaged in by Respondent in
violation of R.C. 4112.02(A).
3. 	The Commission attempted to eliminate the alleged unlawful
discriminatory practices by conciliation. The Commission issued its complaint
after conciliation failed.

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4. 	Respondent is a corporation doing business in Ohio and an
employer.
5. 	Complainant is a black person.
6. 	Complainant was employed by Respondent as photo lab manager in
the Tylersville store in Cincinnati, Ohio. 	He began his employment with
Wal-Mart 	as 	a 	lab 	technician 	at 	the Ridge Avenue store in December
1994. He was trained by Mario Lemuel, photo lab manager at the Ridge
Avenue store. 	Lemuel had a practice of giving customers extra copies of
photos that were printed as part of the process of obtaining a quality
enlargement. 	He also did not charge them for pictures that he judged were
not good quality pictures.
7. 	Lemuel’s practice was not consistent with Wal-Mart’s policies.2
Pursuant to Wal-Mart’s policies, customers were never to be given free
photos.
2 Wal-Mart’s policy handbook states, “If the customer is unhappy with the quality of
a picture, offer to reprint that picture at no charge.” (Tr. 164) 	A notice posted in the photo
lab states: “For customers unhappy with their pictures, we will gladly remake the pictures or
refund their money.” 	(Tr. 165)

Photos that were not of good quality were not to be given to the

customer

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they were to be redone. 	If a customer decided that photos were not
acceptable, Wal-Mart would refund their money or offer to redo their photos.
Extra copies that were made as part of the developing process that were not
ordered by the customer were to be destroyed.
8. 	Becky Schultz, Caucasian, was a Wal-Mart associate at the Ridge
Avenue store. 	Some time prior to April 1996, she brought a picture to the
photo lab for copying. 	Schultz gave the photo to Complainant. 	Complainant
told her the machine was down and that he could use her picture to calibrate
the machine. 	Complainant reset the machine and copied the photograph.
Some of the copies were not the size that Schultz wanted. Complainant gave
Schultz the copies that she ordered and also gave her some copies that were
the wrong size. 	He did not charge Complainant for any of the copies.
9. 	Shortly thereafter, Schultz brought another photo to Complainant for
copying. 	She wanted the original photo enlarged. 	When Complainant
printed the copies, they came out the same size as the original. Complainant
adjusted the machine and printed an enlarged copy as Schultz had requested.

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Complainant told Schultz he used her photograph to calibrate the machine
and gave Schultz the enlargement and the copies at no charge.
10. 	Schultz told a co-worker about receiving free photographs. 	The
co-worker advised her that she should not have received the photographs free
of charge. 	Schultz went back to Complainant and asked him if he did not
want her to pay for the enlargement. 	Complainant made a gesture which she
interpreted as “never mind”. 	Schultz had another conversation with her co-
worker and told her she did not know what she should do. 	Her co-worker
told her she should talk to the store manager.
11. 	Schultz reported both incidents to the store manager, Dane Bryan,
Caucasian. 	Bryan contacted Keith Johnson, Caucasian, the district loss
prevention 	supervisor. 	The 	district 	photo 	lab 	manager, 	Keith 	Ehlers,
Caucasian, was also contacted.
12. 	It was Ehlers’ understanding that it was Wal-Mart’s policy not to
give away any pictures. 	Pictures that were developed by mistake were to be

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destroyed. 	Pictures that were of poor quality were to be done over. 	Poor
quality pictures were never to be given to the customer at no charge.
13. 	Ehlers believed that Complainant’s violation of company policy
should result in his termination of employment. 	He contacted the person at
Wal-Mart’s headquarters who was in charge of all the photo labs to make sure
that 	his 	understanding 	of 	the 	policy 	was 	correct. 	She 	agreed 	that
Complainant’s 	employment 	should 	be 	terminated. 	Complainant’s
employment was terminated on April 25, 1996.
14. 	After Complainant was discharged, Joseph Woods, district
manager 	over 	the 	Tylersville 	store, 	learned 	from 	Keith 	Johnson, 	loss
prevention supervisor, that John Collins, assistant store manager, had
accepted free photographs from 13 rolls of film that Complainant had
developed of Collins’ daughter’s wedding and honeymoon. 	Complainant told
Collins that he had taken care of the charges and that Collins should consider
it a wedding present. 	Woods decided not to terminate Collins’ employment.
Instead, Collins was given a final written warning and transferred to another

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store. Woods did not play a role in the decision to terminate Complainant’s
employment.
CONCLUSIONS OF LAW AND DISCUSSION
All proposed findings, conclusions, and supporting arguments of the
parties have been considered. 	To the extent that the proposed findings and
conclusions submitted by the parties and the arguments made by them are in
accordance with the findings, conclusions, and views stated herein, they have
been accepted; to the extent they are inconsistent therewith, they have been
rejected. 	Certain proposed findings and conclusions have been omitted as
not relevant or as not necessary to a proper determination of the material
issues presented. 	To the extent that the testimony of various witnesses is not
in accord with the findings herein, it is not credited.3
1. The Commission alleges in its complaint that Respondent discharged
Complainant because of his race.
3 Any Finding of Fact may be deemed a Conclusion of Law, and any Conclusion of
Law may be deemed a Finding of Fact.

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2. 	This allegation, if proven, would constitute a violation of R.C.
4112.02, which provides in pertinent part that:
It shall be an unlawful discriminatory practice:
(A) 	For any employer, because of the . . . race, . . . 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.
3. 	The Commission has the burden of proof in cases brought under
Chapter 4112 of the Revised Code. 	The Commission must prove a violation
of 	Section 	4112.02(A) 	by 	a 	preponderance 	of 	reliable, 	probative 	and
substantial evidence. 	R.C. 4112.05(G) and 4112.06(E).
4. 	The Commission is not required to prove that Complainant's race
was the sole reason for the employer's decision. 	The Commission must
prove by a preponderance of reliable, probative, and substantial evidence that
Complainant's race was at least a "motivating factor" in the employment
decision. 	Price Waterhouse v. Hopkins, 49 FEP Cases 954, 959 (1989).

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5. 	Title VII standards are to be used in evaluating alleged violations of
Chapter 4112 of the Revised Code. 	Therefore, reliable, probative and
substantial evidence means evidence sufficient to support a finding of
discrimination under Title VII of the Civil Rights Act of 1964, U.S.C. Sec.
2000e et. seq., Little Forest Med. Ctr. of Akron v. Ohio Civil Rights Comm.,
(1991), 61 Ohio St.3d 607.
6. 	Normally, 	the 	order 	of 	proof 	in 	a 	Title 	VII 	case 	requires 	the
Commission to prove a prima facie case of discrimination.
The plaintiff in a Title VII case possesses the ultimate burden of
persuasion 	and 	the 	intermediate 	burden 	of 	proving 	by 	a
preponderance 	of 	the 	evidence 	a 	prima 	facie 	case 	of
discrimination.
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101
S. Ct. 1089, 1093, 25 FEP Cases 113 (1981).
7. 	Once the Commission establishes a prima facie case, the burden
shifts to the employer to "articulate some legitimate, nondiscriminatory
reason" for its action. 	McDonnell Douglas Corp. v. Green, 411 U.S. 792 at
802, 5 FEP Cases 965 (1973); Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 101 S. Ct. 1089, 1093, 25 FEP Cases 113 (1981).

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8. 	The employer articulates a legitimate, nondiscriminatory motive
when it produces admissible evidence which allows the trier of fact to
rationally conclude that the employer's decision was not motivated by
discriminatory animus. 	The Commission retains the burden of persuasion
throughout the proceeding. 	Burdine, 450 U.S. at 254, 25 FEP Cases at 116.
9. 	An employer is not required to prove absence of discriminatory
intent. Board of Trustees v. Sweeney, 439 U.S. 24 (1978), 18 FEP Cases 520;
Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978), 17 FEP Cases 1062.
10. 	However, it is not necessary to follow the traditional allocation of
the 	burdens 	of 	proof 	when, 	as 	here, 	Respondent 	responded 	to 	the
Commission's case in chief by offering a legitimate, nondiscriminatory reason
for its action. U.S. Postal Svc. Bd. of Governors v. Aikens, 460 U.S. 711, 31
FEP Cases 609 (1983). The articulation of a legitimate, nondiscriminatory
reason by Respondent removes any need to determine if the Commission
proved a prima facie case, and the "factual inquiry proceeds to a new level of

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specificity." 	Id., 460 U.S. at 713, 31 FEP Cases, at 611, quoting Texas Dept.
of Community Affairs v. Burdine, 450 U.S. 248, 255, 25 FEP Cases 113, 116.4
11. 	Respondent’s articulated nondiscriminatory reason for discharging
Complainant was that he gave away free photo finishing services to an
associate on two occasions. 	The decision was also based on Complainant’s
overall work record.5 (Tr. 362)
12. Respondent having met its burden of production, the Commission
must prove that Respondent intentionally discriminated against Complainant
because of his race. 	The factfinder must be persuaded that Complainant
"has been the victim of intentional discrimination . . . ." 	St. Mary's Honor
Center v. Hicks, 62 FEP Cases 96, 103 (1993). 	The Commission must
"demonstrate by competent evidence" that the legitimate, nondiscriminatory
4 "Where the defendant has done everything that would be required of him if the
plaintiff has properly made out a prima facie case, whether the plaintiff really did so is no
longer relevant." 	Aikens, 460 U.S. at 713, 31 FEP Cases at 611.
5 Although the decision to discharge Complainant was primarily based on the free
film incidents, Bryan testified that if Complainant had been an outstanding manager,
he might have given him a final warning instead of terminating his employment.
Complainant’s evaluation showed he was not an outstanding performer. 	Although his
technical skills were in the “meets” category, his people skills were mixed. 	In five of ten
categories he was deemed not to meet performance standards. 	(R.Ex. O)

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reasons 	given 	by 	Respondent 	"were 	in 	fact 	a 	coverup 	for 	a 	racially
discriminatory decision." Id., at 103 (emphasis theirs).
13. 	Thus, even if the Commission proves that Respondent's proffered
reasons were false, the Commission does not automatically succeed in
meeting its burden of persuasion.
That the employer's proffered reason is unpersuasive, or even
obviously contrived, does not necessarily establish that the . . .
[Commission's] proffered reason of . . . race is correct. 	That
remains a question for the factfinder to answer . . . .
Id., at 106.
The factfinder's disbelief of the reasons put forward by the
defendant (particularly if disbelief is accompanied by a suspicion
of mendacity) may, together with the elements of the prima facie
case, suffice to show intentional discrimination.
Id., at 100.6
14. 	The essence of discrimination, of course, is disparate treatment.
Thus, the ultimate decision to be made in a discrimination case where the
Complainant alleges disparate treatment was explained as follows in Boyd v.
U.S. Steel Corp., 20 FEP Cases 727 (W.D. Pa. 1979):
6 Even though rejection of a respondent's legitimate, nondiscriminatory reason is
"enough at law to sustain a finding of discrimination, there must a finding of discrimination."
Hicks, 113 S. Ct. at 2749, 62 FEP Cases at 100, n.4.

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The ultimate decision to be made . . . is whether it is reasonable
to infer from all the evidence that the challenged action was based
in whole or in part on race. 	The focus must be on the similarity
between the situations of different employees -- whether the
situations are comparable for purposes of applying the doctrine of
McDonald 	and 	McDonald 	Douglas. 	The 	more 	distinct 	the
situations of the two employees of different races [protected
classes] who are treated differently, the less compelling is the
inference that race played a role in the disparate treatment.
Id., at 730.
15. 	The Commission must prove that the "comparables" are similarly
situated in all relevant respects:
A “similarly situated non-minority employee” is one who has “dealt
with 	the 	same 	supervisor, 	[has] 	been 	subject 	to 	the 	same
standards and [has] engaged in the same conduct without such
differentiating or mitigating circumstances [as] would distinguish
their conduct or the employer’s treatment of them for it.” 	[Mitchell
v. Toledo Hospital, 59 FEP Cases 76 (6th Cir. 1992)] 	A “precise
equivalence in culpability” . . . is not required; misconduct of
“comparable seriousness” is sufficient. 	[Harrison v. Metro Gov’t.
of Nashville and Davidson County, 73 FEP Cases 109 (6th Cir.
1996)] 	Similarly situated employees “need not hold the exact
same jobs; however, their duties, responsibilities and applicable
standards of conduct must be sufficiently similar in all relevant
aspects so as to render them comparable.” 	Jurrus v. Frank, 932
F.Supp. 988, 995 (N.D. Ohio 1993).
Hollins v. Atlantic Company, 76 FEP Cases 553, 557 (N.D. Ohio
1997).

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16. 	The Commission argues that two Caucasian employees were
treated 	more 	leniently 	than 	Complainant 	was 	treated 	under 	similar
circumstances. 	This could be evidence that Respondent’s reasons for
discharging Complainant were pretextual. 	However, the employees were not
similarly situated.
17. 	The first employee, Becky Schultz, was not a management
employee. 	Respondent holds employees in management to a higher
standard of conduct because they have to serve as examples to the persons
they supervise.7 (Tr. 367; R.Ex. B) 	Therefore, Schultz would not be similarly
situated to Complainant because her duties, responsibilities, and applicable
standards of conduct were not similar to his duties and responsibilities.
Likewise, her conduct in accepting free photographs is not conduct of
“comparable seriousness”. 	Schultz offered to pay for the photos, and
Complainant made it clear payment was not necessary.
7 “Integrity” is one of Respondent’s ten basic principles set out in the associate
handbook. 	Integrity includes honesty. 	The handbook states, “Dishonesty in any form will
result in immediate termination . . . You should always conduct yourself in a manner that
will leave no doubt about your honesty.” 	(R.Ex. B)

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18. 	The second employee that the Commission argues was similarly
situated to Complainant and not discharged was the assistant manager at the
Tylersville 	store. 	Shortly 	after 	Complainant 	was 	discharged, 	it 	was
discovered 	that 	he 	also 	received 	free 	photographs 	from 	Complainant.
However, the assistant manager was not similarly situated to Complainant.
He was not similarly situated because the person who decided the level of
discipline in his case was not involved in the decision that Complainant should
be 	discharged. 	Also, 	accepting 	free 	photographs 	is 	not 	conduct 	of
“comparable seriousness”. There was no evidence that the photographs the
assistant manager received were not paid for by Complainant.
19. 	After Complainant’s employment was terminated, another incident
occurred involving Becky Schultz. 	Schultz was given some pictures she
ordered when she was passing by the photo lab while she was working. 	She
could not pay for the pictures at the time because Wal-Mart policy prohibits
employees from paying for merchandise while they are on the clock. 	Schultz
took the pictures back to her work area intending to pay for them after she
was off the clock. 	She forget she had not paid for them, and apparently
walked out of the store with them. 	She was disciplined. 	She was given a

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second written warning which is the highest form of discipline at Wal-Mart
short of termination. Again, Complainant was not similarly situated to Schultz
because Schultz was not in management, and her misconduct was not of
comparable seriousness to Complainant’s misconduct.
20. 	The Commission also introduced evidence regarding conduct of
Complainant’s subordinate (Sharp). 	Complainant testified that Sharp gave
free pictures to an associate on one occasion just after the store opened and
counseled him about it. 	He told him it was a “dismissal offense”. 	(Tr. 26)
Complainant testified Sharp also gave double prints to an associate on
another occasion and charged her for single prints. 	Complainant testified he
gave Bryan counseling forms for his signature, and they were never returned
to 	him. 	Bryan 	testified 	that 	he 	never 	received 	any 	documents 	from
Complainant and that Complainant had authority to give his subordinate
counseling forms on his own. 	Even if the conflict in testimony is resolved
in Complainant’s favor, this evidence is insufficient to support the conclusion
that Complainant’s discharge was racially motivated. 	See Shank v. Kelly-
Springfield Tire Co., 75 FEP Cases 36 (7th Cir. 1997) (“. . . one example of
better treatment is not enough to support an inference of discrimination.”

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Citation omitted). 	See also Gleason v. Mesirow Financial Inc., 74 FEP Cases
1365 (7th Cir. 1997) (“Our opinions emphasize the need to go beyond a few
comparison cases, and we cannot stress this point enough.” 	Citation
omitted).8
21. 	Complainant also testified about a series of incidents that led him
to believe that the store manager approved of his practice of giving free
photos to customers. 	For example, Complainant testified that Bryan
instructed him to give free photos on one occasion to a Girl Scout troop
touring the photo lab. However, the evidence showed that Complainant had
contacted Ehlers in advance and gotten permission to give the group
disposable cameras and to develop the pictures on site at no charge. 	This is
not the same as giving pictures to customers who bring film to be developed
and expect to pay for it.
22. 	The Commission also offered testimony from a former Wal-Mart
employee who was supervised by Bryan who testified that another employee
once complained to her that Bryan had made racially discriminatory remarks
in her presence. 	Although double hearsay is inherently unreliable, assuming
8 Other alleged violations of Wal-Mart’s policies by Complainant’s subordinate were
not relevant because they were not similar to the violation that led to Complainant’s

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that the remarks were made, they would be classified as “stray remarks” and
would not be probative of Bryan’s intent regarding his role in the decision to
terminate Complainant’s employment. 	Although such remarks are admissible
into evidence,
their probativeness is circumscribed if they were made in a
situation temporally remote from the date of the employment
decision 	or 	if 	they 	were 	not 	related 	to 	the 	employment
decision . . . Stray remarks by . . . decisionmakers unrelated to the
decision process are rarely given great weight . . . .
McMillan v. Mass. SPCA, 77 FEP Cases 589, 596 (1st Cir. 1998)
(Citations and quotations within a quotation omitted).
Furthermore, the evidence showed that Bryan was not a key decision-maker.
His role was more like the role of an investigator. 	The decision-makers were
Keith Johnson, district loss prevention supervisor, and Keith Ehlers, the
district photo lab manager, who shared the responsibility with Bryan for
supervising Complainant.
23. 	Having considered all of the arguments and reviewed all of the
evidence in the record, this is another one of those cases where the employer
made a business decision to discharge an employee for violating a company
discharge.

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policy that, in the opinion of the employer, warranted discharge.9 There was
no direct evidence and insufficient circumstantial evidence from which one
could infer that Complainant’s race was a motivating factor in this decision.
Therefore, the Complaint must be dismissed.
9 Although there was a dispute about the company policy regarding those occasions
when customers were to be given free photographs, the issue was never really brought to
Respondent’s attention by Complainant. Complainant was given the opportunity before he
was discharged to submit a written statement where he could have indicated that he had
been trained to give customers extra copies of photos that were used to make
enlargements or to calibrate the machine. 	He could have indicated that he was trained to
give customers free photographs when, in his judgment, the photographs were not of good
quality. 	Instead, when he was given the opportunity, he wrote: “Machine broken . . . used
test paper for results.” 	Thus, the issue of Complainant’s interpretation of Wal-Mart policy
was never brought to Wal-Mart’s attention when they were considering the level of
discipline. 	Complainant also testified that he had been instructed by Bryan to give the
customer poor quality pictures at no charge. 	It would also seem reasonable that he would
have communicated this to Ehlers when he was given an opportunity to make a written
statement. 	Therefore, his testimony in this regard was not credible.
Complainant’s testimony about his rationale for giving free photos to Schultz was
also not credible. 	He testified that he gave her the photos because they were of poor
quality. Respondent introduced the photos into evidence. A reasonable person would find
them to be of good quality. 	Also Schultz testified that she had no problem with the quality
of the photos. 	Thus, even assuming that Complainant was trained to give photos that
were developed as part of the enlargement process, he was not trained to give the
enlargement to the customer at no charge.
Complainant’s testimony regarding his understanding of Wal-Mart’s policy regarding
returning photos that were of poor quality to the customer was also not credible. 	Although
he testified that he was trained that it was appropriate for him to make the judgment
regarding whether the film was of good quality, he testified that he was instructed by Bryan
to give pictures at no charge when a customer complained. 	(Tr. 34) 	Wal-Mart policy
states that the issue of quality only arises when the customer brings it to Wal-Mart’s
attention.

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RECOMMENDATION
For all the foregoing reasons, it is recommended that the Commission
issue a Dismissal Order in Complaint #8035.
FRANKLIN A. MARTENS
CHIEF HEARING EXAMINER
December 31, 1998