Lisa Crosby v. Drake Center, Inc.

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Ohio Civil

Rights Commission

Memo

To: Desmon Martin, Chief of Enforcement and Compliance
From: Denise M. Johnson, Chief Administrative Law Judge
Date: March 26, 2010
Re: Lisa Crosby v. Drake Center, Inc.
(CIN) 75022703 (30229) 04032003 * 22A—2003 — 01985C
Complaint No. 9584

CONSIDERATION OF
ADMINISTRATIVE LAW JUDGE’S REPORT

ALJ RECOMMENDS DISMISSAL ORDER

Report issued: March 26, 2010
Report mailed: March 26, 2010

** Objections due: April 19, 2010

DMU:tg

RIGHTS CO
OHIO CIV
AMISSION
STATE OF OHIO
Governor Ted Strickland
Ohio Civil Rights Commission
Board of Commissioners Eddie Harrell, Jr., Chairman Leonard J. Hubert Stephanie M. Mercado, Esq. Tom Roberts Rashmi N. Yajnik
G. Michael Payton, Executive Director
March 26, 2010
Lisa Crosby
11472 Geneva Road
Cincinnati, OH 45240
David Torchia, Esq. Tobias, Kraus & Torchia 911 Merchantile Library Bldg. 414 Walnut Street Cincinnati, OH 45202
Deborah S. Brenneman, Esq. Thompson Hine 312 Walnut Street. 14th Floo Cincinnati, OH 45202-4089
Re: Lisa Crosby v. Drake Center, Inc. (CIN) 75022703 (30229) 04032003 22A -2003 - 01985C Complaint No. 9852
Enclosed is a copy of the Administrative Law Judge's Findings of Fact, Conclusions of Law, and Recommendations (ALJ's Report). You may submit a Statement of Objections to the ALJ's Report within twenty (20) days from the mailing date of this report.
Pursuant to Ohio Admin. Code § 4112-1-02, your Statement of Objections must be received by the Commission no later than Monday, April 19, 2010. No extensions of time will be granted.
Any objections received after this date will be untimely filed and cannot be considered by the Ohio Civil Rights Commission.
Please send the original Statement of Objections to: Desmon Martin, Chief of Enforcement and Compliance, Ohio Civil Rights Commission, State Office Tower, 5th Floor, 30 East Broad Street, Columbus, OH 43215-3414. All parties and the Administrative Law Judge should receive copies of your Statement of Objections.
FOR THE COMMISSION
Desmon Martin/ tg
Desmon Martin Chief of Enforcement and Compliance
DM:tg
Enclosure
CC: Lori A. Anthony, Chief - Civil Rights Section Denise M. Johnson, Chief Administrative Law Judge
CENTRAL OFFICE . State Office Tower, 5th Floor, 30 East Broad Street, Columbus, OH 43215-3414
. Central Office: 614 - 466 -2785 . TOLL FREE: 1 - 888 - 278 -7101 . TTY: 614 - 466 - 9353 . FAX: 614 - 644 - 8776
REGIONAL OFFICES AKRON . CINCINNATI . CLEVELAND . COLUMBUS . DAYTON . TOLEDO www.crc.ohio.gov

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
LISA CROSBY

Complainant
Complaint No. 9584
v. (CIN) 75022703 (30229) 04032003
22A-2003-01985C

DRAKE CENTER, INC.

Respondent

CHIEF ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,

CONCLUSIONS OF LAW, AND RECOMMENDATION

RICHARD CORDRAY
ATTORNEY GENERAL

Lori A. Anthony, Esq. ; Deborah S. Brenneman, Esq.
Chief, Civil Rights Section Thompson Hine

State Office Tower, 15 Floor 312 Walnut Street, 14% Floor
30 East Broad Street — Cincinnati,OH 45202-4089 -

Columbus, OH 43215-3428 513 - 352 - 6700

614 — 466 — 7900
Counsel for Respondent

Counsel for the Commission

David Torchia, Esq. Lisa Crosby

Tobias, Kraus & Torchia 11472 Geneva Road
911 Merchantile Library Building Cincinnati, OH 45240
414 Walnut Street

Cincinnati, OH 45202 _ Complainant
513 — 241 - 8137

Counsel for Complainant
ALJ'S REPORT BY:

Denise M. Johnson

Chief Administrative Law Judge
Ohio Civil Rights Commission
State Office Tower, 5th Floor

30 East Broad Street
Columbus, OH 43215-3414
614 - 466 — 6684

INTRODUCTION AND PROCEDURAL HISTORY

Lisa Crosby (Complainant) filed a sworn charge affidavit with

the Ohio Civil Rights Commission (Commission) on April 3, 2003.

The Commission investigated the charge and found probable
cause that Drake Center Inc. (Respondent) engaged in unlawful

employment practices in violation of Revised Code Sections (R. C.)

4112.02(A) and (1).

The Commission attempted, but failed to resolve this matter
by informal methods of conciliation. The Commission subsequently

issued a Complaint on November 20, 2003.

The Complaint alleged the following: (1) that Respondent
subjected Complainant to unwanted and unwelcomed acts of sexual
harassment that had the purpose or effect of creating a sexually
offensive, intimidating, or hostile work environment for reasons not
applied equally to all persons without regard to their sex, and (2)

that Respondent subjected Complainant to a disciplinary

suspension and subsequently terminated her, in retaliation for

having engaged in a protected activity. R.C. 4112.02(A) and (I).

Respondent filed an Answer to the Complaint on December 23,
2003. Respondent admitted certain procedural allegations, but
denied that it engaged in any unlawful discriminatory practices.

Respondent also pled affirmative defenses.!

A public hearing was held on September 26-27, 2006.7. A trial

deposition was held on November 15, 2006.

The record consists of the previously described pleadings, a
transcript of the hearing consisting of 365 pages, the transcript of
the evidentiary deposition of Brian Fearer consisting of 145 pages,

exhibits admitted into evidence during the hearing, and the post-

1 Case was stayed by Order dated June 28, 2004, pursuant to an -
unopposed motion by the Commission. Complainant filed a civil action in
Hamilton County on February 27, 2004. The Commission received notice from
Complainant on December 30, 2004 that she dismissed her civil action. The
Commission filed a Motion to Reschedule Hearing on November 18, 2005. .

2 Problems with the first transcriber. involving length of time of
transcription and quality led to two attempts over a thirteen-month period to
do transcription of the hearing. After securing the services of a new transcriber -
the transcript was delivered on February 19, 2008.

2

hearing briefs filed by the Commission on March 18, 2008; by
Respondent on May 8, 2008; and a reply brief filed by the

Commission on May 15, 2008.

FINDINGS OF FACT

The following Findings of Fact are based, in part, upon the

ALJ’s assessment of the credibility of the witnesses who testified

before her in this matter. The ALJ has applied the tests of
worthiness of belief used in current Ohio practice. For example,
she considered each witness’s appearance and demeanor while
testifying. She considered whether a witness was evasive and
whether his or her testimony appeared to consist of subjective
opinion rather than factual recitation. She further considered the
opportunity each witness had to observe and know the things
| discussed, each witness’s strength of memory, frankness or lack of
frankness, and the bias, prejudice, and interest. of each witness.
Finally, the ALJ 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 April 3, 2003.

2. The Commission determined on October 9, 2003 that it
was probable that Respondent engaged in unlawful discrimination

in violation of R.C. 41 12.02(A) andi (I).

3. The Commission attempted to resolve this matter by
informal methods of conciliation. The Commission issued the

Complaint after conciliation failed.

4. Respondent is a health care organization that specializes
in rehabilitation and offers comprehensive care for individuals with —
a wide range of conditions from those with complex illnesses and
injuries to individuals requiring minimal out-patient therapy.

(Tr. 225-226)

5. Complainant was. hired by Respondent on October 8,

2001 as an Environmental Services Technician.

6. Complainant’s job required her to perform cleaning tasks

which were assigned to her by her supervisor.

7. Complainant worked the second shift from approximately

3:00 p.m. to 11:30-p.m. (Tr. 13)

8. When Complainant first started working for Respondent
her immediate supervisor was Darren Wilson (Wilson). Wilson
resigned and Respondent hired Don Tolke (Tolke) as the second

shift supervisor in the Housekeeping Department.

9. Brian Fearer (Fearer) was the Manager of Environmental

Services. Tolke reported directly to Fearer.

10. On December 29, 2002, Complainant submitted a written |
complaint to Human Resources. Her complaint was about Tolke
making certain comments to her that she found offensive, beginning

the complaint by stating:

I am writing this letter because I feel like I’m being
treated like a sex object by Don Tolke. I don’t feel
comfortable around Don Tolke. (...)

Comm. Ex. 6

11. In Respondent’s Employee Handbook it states that “all
complaints will be investigated immediately, and appropriate action

will be taken.” (Resp. Ex. G)

12. Respondent’s Chief Human Resources Officer Ernie
Prater (Prater), Human Resource Specialist Sharon Hancock
(Hancock) and Fearer met with Complainant on January 7, 2003.

(Tr. 107, 241-250; Comm. Ex. 7) |

13. They also met with other members of the Environmental
Services Department as part of the investigation specifically
individuals that Complainant indicated were aware or had |
experienced. inappropriate behavior of a sexual nature by Tolke.

(Tr. 107, 241-255)

14. On January 9, 2003, they met with Tolke. (Comm. Ex.

18)

15. Prater determined that Tolke had not sexually harassed
Complainant, but that he may have made some inappropriate

comments. (Tr. 253)

16. Prater told the employees involved in the investigation
_the outcome of the investigation. Id. | After telling the employees
about the investigation Prater saw Complainant during the time
that she was cleaning in the H.R. area. He asked Complainant if
she was having any continuing problems with Tolke. Complainant
said that she was not. When asked if she was okay continuing to

work with Tolke, she said that she was. (Tr. 255)

17. During January of 2003 Respondent required every
employee to take and pass a computerized test on the federal

government’s new HIPPA requirements. (Tr. 77)

18. Respondent’s Human Resources Department monitored
all departments’ compliance with the testing deadline and which

employees had not yet taken the test. (Tr. 258-259)

19. Employees who did not pass the test by January 31,

2003 could not return to work. (Tr. 256)

20. Complainant was on vacation from January 12 to

January 26, 2003. (Tr. 78)

21. When Complainant returned to work on January 27,
the first shift supervisor, Idabelle Pennington (Pennington), told

Complainant she needed to take the test. (Tr. 78)

22. Complainant did not take the test on that date.

23. Complainant attempted to take the test on January 28
and 29 but was having difficulty logging onto the computer system.

(Tr. 37)

24. Complainant was scheduled for a day off on January 31,

2003. (Fearer Depo, p. 34)

25. Fearer set up a specific time for Complainant to take the

test on January 30 at 4:30 p.m.

26. Fearer told Complainant he wanted Tolke to be present
when Complainant took the test, both to assure that it was
completed and ‘to assist Complainant in the event that she had
trouble logging onto the computer. (Tr. 80; Fearer Depo, pp. 33,

98-99)

27. Complainant later told Tolke she was not going to take
the test that day. She also called Fearer and told him that she was
not going to take the test at 4:30 p.m. because she had other work

todo. (Tr. 24-25; Fearer Depo, pp. 101-102)

28. Fearer then explained the importance of Complainant

taking the test and that he would have someone cover her work.

(Fearer Depo, pp. 101-102)

29. Complainant attempted to take the test while Tolke was
standing behind her in the room where she was taking the test, but

she could not pass it. (Tr. 24)

30. Complainant came in on January 31 to take the test and

she passed.

31. Later that same day, Prater, Hancock, and Fearer
suspended Complainant for three (3) days for not taking the HIPAA

test on January 30, as directed by her manager. (Tr. 32, 148;

~ Comm./Resp. Ex. 2)

32. On February 25, 2003, Complainant was engaged ina
yerbal confrontation with a coworker, Angela Grayson (Grayson).

(Tr. 330)

33. Hancock and Fearer met separately with Complainant

and Grayson the next day. (Tr. 333)

10

34, Hancock specifically instructed Complainant not to
discuss any of the conversation, details or facts of the investigation

of the incident as it was an on-going investigation. (Tr. 334)

35. Thirty (30) minutes after Complainant left Hancock’s

office he received a call from Complainant’s coworker and friend,

Victoria Shipley (Shipley). (Tr. 335-336)

36. The purpose of Shipley’s call was to provide Hancock
with information about similar behavior that Grayson had engaged
in with other employees. Shipley admitted during the conversation

that she had talked to Complainant. (Tr. 336)

37. Complainant was terminated on February 27, 2003 for

breach of confidentiality and a second act of insubordination.

(Tr. 337-338)

11

CONCLUSIONS OF LAW AND DISCUSSION

All proposed findings, conclusions, and supporting arguments
of the parties have been considered. To the extent 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 conchisions have been omitted as
not relevant or as not necessary to a proper determination of the
material issues presented. To the extent the testimony of various

witnesses is not in accord with the findings therein, it is not

credited.

3 Any Finding of Fact may be deemed a Conclusion of Law, and any
Conclusion of Law may be deemed a Finding of Fact.

12

1.

(1) that Respondent subjected Complainant to unwanted and
unwelcomed acts of sexual harassment that had the purpose or _
effect of creating a sexually offensive, intimidating, or hostile work
environment for reasons not applied equally to all persons without
regard to their sex, and (2) that Respondent subjected Complainant

~ to a disciplinary suspension and subsequently terminated her,

The Commission alleged the following in the Complaint:

in retaliation for having engaged in a protected activity.

2.

These allegations, 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 ... sex, ... of any
person, ... to discriminate against that person with
respect to ..., terms, conditions, or privileges of

employment, and

For any person to discriminate in any manner
against another person because that person has
opposed any unlawful practice defined in this

section or because that person has made a charge,

testified, assisted, or participated in any manner in
any investigation, proceeding, or hearing under
sections 4112.01 to 4112.07 of the Revised Code.

13

3, The Commission has the burden of proof in cases
brought under R.C. Chapter 4112. The Commission must prove a
violation of R.C. 4112.02(A) and (I) by a preponderance of reliable,

probative, and substantial evidence. R.C. 4112.05(G) and

4112.06(E).

4. Federal case law generally applies to alleged violations of
R.C. Chapter 4112. Hample pv. Food Ingredients Specialist, inc
(2000), 89 Ohio St. 3d 169, 176 (citing, Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 66(1 986)). Therefore, reliable, probative, and
substantial evidence means evidence sufficient to support a finding

of unlawful discrimination or retaliation under Title VII of the Civil

Rights Act of 1964 (Title VII).

SEXUAL HARASSMENT

5. The Commission can prove a violation of R.C. 4112.02(A)
sex discrimination/hostile work environment claim with the

introduction of the following evidence:

14

(1) That the harassment was unwelcome;

(2) That the harassment was based on sex;

(3) That the harassing conduct was sufficiently severe
or pervasive to affect the “terms, conditions, or
privileges of employment; and

(4) That either (a) the harassment was committed by a
supervisor or (b) the employer through its agents or
supervisory personnel knew or should have known
of the harassment and failed to take immediate and

appropriate corrective action.

Hample, 89 Ohio St. 3d, at 176-77 (quoting, Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993). :

6. | Sexual harassment is sex discrimination and prohibited
by R.C. Chapter 4112. Ohio Adm. Code (O.A.C.) 4112-5-05(J)(1):,
Cf. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) (sexual
harassment is sex discrimination under Title vi). There are two
forms of sexual harassment: quid pro quo and hostile work
environment. Id., at 65. The latter form of sexual harassment, ©
which the Commission alleges in this case, recognizes that
employees have the “right to work in an environment free of

discriminatory intimidation, ridicule, and insult.” Id.
; mo

15

7. O.A.C. 4112-5-05 defines sexual harassment based on a

hostile work environment, in pertinent part:

(J) Sexual harassment.

(1) Unwelcome sexual advances, requests for sexual
favors, and other verbal or physical conduct of a
sexual nature constitute sexual harassment when:

(c) Such conduct has the purpose or effect of
unreasonably interfering with an individual's work
performance or creating an intimidating, hostile or

~ offensive working environment.
Whether the alleged conduct constitutes sexual harassment is

determined on a case-by-case basis by examining the record as a

whole and the totality of the circumstances. O.A.C. 4112-5-05(J)(2).

8. In order to create a hostile work environment, the
conduct must be “sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive
working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993), quoting Meritor, supra at 67. The conduct must be
unwelcome. Meritor, supra at 68. The victim must perceive the

work environment to be hostile or abusive, and the work

16

environment must be one that a reasonable person would find

hostile or abusive. Harris, supra at 21-22.

9. In examining the work environment from both subjective
and objective viewpoints, the fact-finder must examine “all the
circumstances”, including the employee’s psychological harm and

other relevant factors such as:

the frequency of the discriminatory conduct; its
severity; whether it is physically threatening of
humiliating, or a mere offensive utterance; and whether it —
unreasonably interferes. with an employee's work

performance.

Id., at 23.

This inquiry. also requires “careful consideration of the social
context” in which the particular behavior occurred since the “real
social impact of workplace behavior often depends on a
constellation of surrounding circumstances, expectations, and

relationships.” Oncale v. Sundowner Offshores Services, Inc., 118

S.Ct. 998 (1998).

17

10. Page eight (8) of Respondent’s employee handbook

contains a definition of “sexual harassment” and the following

Directive 8:

If you believe that you have been sexually harassed,
report the event immediately to the Human Resources
Department, the Corporate Compliance Officer or to your
supervisor. All complaints will be investigated immed-
iately, and appropriate action will be taken.

(Resp. Ex. G)

11. Complainant submitted ‘a handwritten complaint to
Human Resources on December 29, 2002 alleging Tolke had made
several comments to her which she. found offensive, dating back to
early November, 2002. Complainant reported the following

comments made by Tolke:

(1) November 18% - I’m 41 years old, I don’t need
Viagra. I said I don’t want to know that-he just
laughed-I walked away.

(2) November 25% - Don Tolke pulled his employee
badge at arms length and said who am I? what
does this say. I said I have been here for 1 % years.

I have been doing this kinda of work for 15 years I| |
know what I’m doing. He said if you know what you
are doing than what in the fuck am I doing here. |
just walked away. As I was walking away from him
he said I want to be your friend. Me and you could

18.

go out after work and get some beer and wings. |
said no.

12. Complainant | again submitted additional notes of |
complaint to Human Resources on December 31, 2002, this time
about comments allegedly made to her by Tolke on December 16

and December 18:

(1) December 16% - Don was sitting in his office-I was —
in the hallway. He said do you shop at Victoria
Secrets. I didn’t say nothing back. He said you
must shop there because you didn’t say anything. I
said why did you ask me that. He said I bet you. |
would look good in a French maid outfit. I said no.
and left the area and went to the first floor.

(2) December 18% - I called Don Tolke to tell him about
a coffee stain in medical services. I said do you
know who this is. He said well it doesn’t sound like
Santa Claus it must be my Easter Bunny Lisa.

(3) Sometime between December 16" and 18% —
After Christmas party (twice) in the dining room 1
would go clean it up a little bit. He said I could
have some cookies. He told me to eat only 2
because if I ate more it would ruin my figure would
go straight to my hips.

13. Chief Human Resources Office Ernie Prater, Hancock and

Fearer met with Complainant, Tolke and other members of the’

Environmental Services Department. (Tr. 107, 241-250)

19

14. The November 18 comment of a sexual nature was a

single, isolated comment.

15. The November 25 invitation to go out after work for beer

and wings was an isolated comment.

16. The next complaint letter complains of comments of a
sexual nature that occurred on December 16, 21 days after the

previous comments.

17. The next comment of a sexual nature complained of
occurred between December 16 and December 18 at the Christmas

party. The comment about the cookies was made twice ‘to

Complainant.

18. In the instant case, Complainant’s complaint of sexual
harassment involved no physical contact, one comment of a sexual
nature that occurred on November 18, one comment of a sexual
nature that occurred on November 25, one comment of a sexual

nature on December 16, two comments of a sexual nature that

20°

occurred sometime between December 16 and December 18. Based
on Complainant’s documentation her complaints are about five

comments that were made over a period of 24 days.

19. A hostile work environment is usually “characterized by
multiple and varied combinations and frequencies of offensive

exposures.” Rosé v. Figgie International, 56 FEP Cases 41, 44 (8°

Cir. 1990).

20. Five (5) comments arguably of a sexual nature within a
24-day period are not “sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive
working environment.” Harris vy. Forklift Systems, Inc., 510 U.S. 17,

21 (1993), quoting Meritor, supra at 67.

e.g. Price v. Roanoke City Bd. of Educ., 101 FEP 1769
(M.D. Ala. 2007). . |

The plaintiff claimed that on a daily basis, over the
course of several years, her coworker made unsolicited,
inappropriate remarks about her appearance, for
example telling her she was pretty, that she had nice legs
and eyes, and that she “looked good enough to eat.” She
also said her colleague frequently touched her face and
asked her out despite her constant rejections of him.
The plaintiff brought a hostile environment claim based

21

on this conduct. The court found that on a severity scale,
the coworker’s behavior ranked somewhere in the middle.
However, because the unwanted acts occurred so often,
the court ruled their frequency tipped the balance in
favor of the plaintiff. Summary judgment for the
defendant was thus denied and the plaintiffs claim
allowed to move forward.

Teresa Faye Smith v. Dr. John Jordan, D.D. S.
Complaint No. 9281 (Ohio Civil Rights Commission,
Administrative Law Judge’s Findings of Fact,
Conclusions of Law and Recommendations, Cease and
Desist Final Order Issued June 23, 2005.) .

Complainant was a dental assistant for Respondent. |
Over a period of six work days, from Monday,
February 19, her first day on the job, until Tuesday,
February 27, Complainant testified that Respondent
engaged in the following types of sexual behavior:
(i) sexual comments, both innuendo and explicit: sixteen
(16) single incidents where the same comments or acts ©
were made on more than one occasion, (ii) physical
contact of a sexual nature, one (1) incident where
Respondent tried to hug Complainant from behind.

21. Tolke and Complainant were not in constant contact with

one another in the work environment. Complainant did not make a

written complaint to Human Resources until almost a month after

the first alleged incident of conduct of a sexual nature.

22°

9292. Even though Complainant expressed in her written
complaint that she perceived the work environment to be hostile, a
reasonable person would also have to perceive that the environment
was “hostile or abusive”. Harris, supra at 21-22.

As Supreme Court emphasized in Meritor and Harris, that

(Title VII) does not reach genuine but innocuous

differences in the ways men and women routinely |

interact with members of the same sex and of the
opposite sex. The prohibition of harassment on the basis

of sex requires neither asexuality nor androgyny in the

workplace; it forbids only behavior so objectively offensive

as to alter the “conditions” of the victim’s employment.

Oncale, supra at 1002-1003.

93. I did not find the behavior complained of by Complainant

to be objectively offensive so as to alter the conditions of her —

employment.

24. Pursuant to Respondent’s written sexual harassment
policy, Human Resources conducted an investigation and deter-
mined that although some of the comments that Tolke made to
Complainant were inappropriate because they were of a sexual

nature, they did not rise to the level of illegal sexual harassment.

23

25. During the meeting where Complainant was told the
results of the investigation she was asked by Prater if she felt
uncomfortable being around Tolke. Complainant’s response to.

Prater was “No, I’m OK”. (Resp. Ex. O, Fearer Depo, p. 83)

26. Human Resources gave Tolke a warning that any future
conduct complained of. about him of an inappropriate nature he

would be terminated.
RETALIATION

27. Under Title VIL case law, the evidentiary framework
established in McDonnell Douglas Co. v. Greene, 411 U.S. 792,
5 FEP Cases 965 (1973) for disparate treatment cases applies to
retaliation cases. This framework normally requires the
Commission to prove a prima facie case of unlawful retaliation by a

preponderance of the evidence. The proof required to establish a

prima facie case may vary on a case-by-case basis. McDonnell

‘Douglas, supra at 802, 5 FEP Cases 969, n.13. The establishment

of a prima facie case creates a rebuttable presumption of unlawful

24

discrimination. Texas Dept. of Community Affairs v. Burdine, 450

U.S. 248, 25 FEP Cases 113 (1981).

28. Once the Commission establishes a prima facie case, the
burden of production shifts to Respondent to “articulate some
legitimate, nondiscriminatory reason” for the employment action.*
McDonnell Douglas, supra at 802, 5 FEP Cases at 969. To meet

this burden of production, Respondent must:

_- “clearly set forth, | through the introduction of
admissible evidence,” reasons for its actions which, if
believed by the trier of fact, would support a finding that
unlawful discrimination was not the cause of the
employment action.

St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507, 62
FEP Cases 96, 103 (1993), quoting Burdine, supra at 254-
55, 25 FEP Cases at 116, n.8. .

4 Although the burden of production shifts to Respondent at this point, the
Commission retains the burden of persuasion throughout the proceeding. Burdine,

supra at 254, 25 FEP Cases at 116.

The defendant’s burden is merely to articulate through some. proof a
facially nondiscriminatory reason for the termination; the defendant does
not at this stage of the proceedings need to litigate the merits of the
reasoning, nor does it need to prove that the reason relied upon was
bona fide, nor does it need to prove that the reasoning was applied in a
nondiscriminatory fashion. . .

EEOC v. Flasher Co., 60 FEP Cases 814, 817 (10% Cir. 1992) (citations
and footnote omitted).

25

The presumption created by the establishment of a prima facie case

“drops out of the picture” when the employer articulates a

legitimate, nondiscriminatory reason for the employment action.

Hicks, supra at 511, 62 FEP Cases at 100.

29. The proof required to establish a prima facie case is also
flexible and, therefore, may vary on a case-by-case basis.
McDonnell Douglas, supra at 802, 5 FEP Cases 969, n.13. In this

case, the Commission may establish a prima facie case of unlawful

retaliation by proving that:

(1) Complainant engaged in an activity protected by
R.C. Chapter 4112; .

(2) The alleged retaliator knew about the protected
activity;
(3) Thereafter, Respondent subjected Complainant to

an adverse employment action; and

(4) There was a causal connection between the
protected activity and the adverse employment
action.

Hollins v. Atlantic Co., Inc., 80 FEP Cases 835 (6% Cir. |
1999), aff'd in part and rev'd in part, 76 FEP Cases 533.
(N.D. Ohio 1997) (quotation marks omitted).

26

30. In this case, it is not necessary to determine whether the
Commission proved a prima facie case. Respondent’s articulation of
a legitimate, nondiscriminatory reason for Complainant’s discharge
removes any need to determine whether the Commission proved a
prima facie case, and the “factual inquiry proceeds to a new level of
specificity.” U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S.

711, 713, 31 FEP Cases 609, 611 (1983), quoting Burdine, supra at

255, 25 FEP Cases at 116.

Where the defendant has done everything that would be»
required of him if the plaintiff has properly made outa

prima facie case, whether the plaintiff really did so is no

longer relevant. . ; .

Aikens, supra at 713, 31 FEP Cases at 611.

31. Respondent met its burden of production with the
introduction of evidence that Complainant’s termination was based
on her violation of the confidentiality policy during an open —

investigation.

32. Respondent having met its burden of production, the -

Commission must prove that Respondent retaliated against |

Complainant because she engaged in protected activity. Hicks,
supra at 511, 62 FEP Cases at 100. The Commission must show
by a preponderance of the evidence that Respondent’s articulated
reason for Complainant’s discharge was not the true reason, but.
was “a pretext for ... unlawful retaliation].” Id, at 515, 62 FEP
Cases at 102, quoting Burdine, supra at 253, 25 FEP Cases at 115.
[A] reason cannot be proved to be a “pretext for [unlawful |
retaliation]” unless it is shown both that the reason is

false, and that ... [unlawful retaliation] is the real reason.

Hicks, supra at 515, 62 FEP Cases at 102.

33. Thus, even if the Commission proves that Respondent’s
articulated reason is false or incomplete, 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

[unlawful retaliation] is correct. That remains a question

for the factfinder to answer ....

Id., at 524, 62 FEP Cases at 1006.

28

Ultimately, the Commission must provide sufficient evidence for the
fact-finder to infer that Complainant was, more likely than not, the

victim of unlawful retaliation.

34. In order to show pretext, the Commission may directly or
indirectly challenge the credibility of Respondent’s articulated
reason for discharging Complainant. The Commission may directly
challenge the credibility of Respondent’s articulated reason by
showing that the reason had no basis in fact or it was insufficient to
motivate the employment decision. Manzer v. Diamond Shamrock
Chemicals Co., 29 F.3d 1078, 1084 (6 Cir. 1994). Such direct
attacks, if successful, permit the fact-finder to infer intentional
discrimination from the rejection of the reason without additional ©
evidence of unlawful discrimination.

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 ... [nJo additional proof is required.5

Hicks, supra at 511, 62 FEP Cases at 100 (emphasis added).

5 Even though rejection of a respondent’s articulated reason is “enough
at law to sustain finding of discrimination, there must be a finding of
discrimination.” Hicks, supra 2749, 62 FEP Cases at 100, n.4.

29

35. The Commission may indirectly challenge the credibility
of Respondent’s reason by showing that the sheer weight of the
circumstantial evidence makes it “more likely than not” that the
reason is a pretext for unlawful discrimination. Manzer, supra at
1084. This type of showing, which tends to prove that the reason

did not actually motivate the employment decision, requires. the

Commission produce additional evidence of unlawful discrimination. =~"

besides evidence that is part of the prima facie case. Id.

36. The Commission attempted to show pretext by alleging
that the basis for Complainant’s suspension for refusing to take a

test before the end of January 2003 lacked credibility.

37. Employees were required to take the HIPPA test to assure

they were aware of, and adhered to, the new federal requirements

~ related to the privacy of medical information. (Tr. 77)

38. Respondent required that all employees pass the HIPPA

test by January 31, 2003 to assure its compliance with this new

federal requirement. (Tr. 256-257, 312)

30 .

39. Prater was monitoring all departments’ compliance with
this testing deadline, and which employees had not yet taken the

test. (Tr. 258-259)

40. Complainant had taken some vacation time in January of
2003 and as of January 28 her name was still on the list of :

employees who still needed to pass the test. (Tr. 78)

41. Additionally, Complainant was scheduled for a day off on

January 31, 2003. (Tr. 80)

42. Complainant had attempted to take the test on January

28 and 29, but had trouble logging onto the computer. (Tr. 79)

43. Because of the problems that Complainant had logging
on and the impending deadline, Fearer asked Tolke to assist
Complainant with the process of logging on. (Fearer Depo, pp. 98-

99)

31

44, Fearer set up a specific time on January 30 for

Complainant to take the test.

45. Respondent disciplined Complainant because she refused

to take the test when instructed. to do.

46. Although the Commission attempted to create the
inference Complainant did not want to take the test because she
was uncomfortable around Tolke because of harassment, there is

no credible evidence in the record to support such a determination.

47. Asa result of Complainant’s refusal to take the test as

instructed by her supervisor, she was suspended for three (3) days.

48. On February 25, 2003, Complainant was engaged in a

verbal confrontation: with a coworker in Environmental Services,

Angela Grayson. (Tr. 330)

49. Both employees were separated by H.R. and asked to

submit written statements.

32

50. Hancock informed Complainant not to discuss the
investigation with anyone as it was an on-going investigation.

(Tr. 334)

51. Approximately thirty (30) minutes after Complainant left
Hancock’s office she received a phone call from Victoria Shipley, a

friend and coworker of Complainant. (Tr. 335-336)

52. Shipley informed Hancock she had called to discuss the

incident between Complainant and Grayson. (Tr. 335-336)

53. I found Respondent’s basis for Complainant’s termination

to be credible.

33

RECOMMENDATION

For all of the foregoing reasons, it is recommended that the

Commission issue a Dismissal Order in Complaint 9584.

but aa

oenisel JOHNSON
‘CHIEF ADMINISTRAT IVE LAW JUDGE

March 26, 2010

34

:
STATEMENT
.
.
OF
OBJECTIONS
. .
.
.
.
. .
.
...

.
Lisa F Crosby 11472 Geneva Rd Cincinnati Ohio 45240
-
RECEIVED
APR 1 5 2010
April 12, 2010
.
Mr. Desmon Martin Chief of Enforcement and Compliance Ohio Civil Rights Commission State Office Tower, 5th Floor 30 East Broad Street Columbus Ohio 43215-3414
.
.
Re: Lisa Crosby v. Drake Center, Inc. Complaint No. 9584 (CIN) 75022703 (30229) 04032003 22A-2003-01985C
Dear Mr. Martin
I am writing this letter in response to the recommendation by the Chief Administrative Law Judge Denise M Johnson, that the Commission issue a Dismissal Order for this case. With all due respect to you, the court and all parties involved, I would like file my objection to this ruling. I would also like to thank the court for allowing me the privilege to object to this ruling. So that you will have a full knowledge I am going to attempt to describe the true facts of this case that date back to 2003
According to The Drake Center letter dated February 27, 2003 I was terminated for violation of confidentiality and for blatant insubordination. I was wrongfully accused of breach of confidentiality and ruining Angela Grayson's reputation. These conclusions were made because they said that I discussed an ongoing investigation with a fellow employee Victoria Shipley.
I never discussed anything with Ms. Shipley about an investigation. I called Ms Shipley at home to tell her I had the money I had borrowed from her. I guess she picked up on my voice that something was wrong and asked me if I was alright? I replied and said that Angie and I had got into an argument. The argument was because she called me a whore and a bitch. I politely asked her to stop. Both Angie and gave our sides to the altercation. There were no witnesses and Sharon Hancock knew this. I testified at fact at the Public Hearing. Even if I did discuss an investigation with Ms. Shipley this would have been my first act of insubordination of any kind during my employment at Drake.
The Drake Center went against its own policy regarding employee discipline. In a memo I received after I was terminated, because I never received an employee handbook during my employment at Drake. It states that: The following guidelines are to be utilized when disciplinary action takes place: (1) Initial Counseling, (2) Written warning, (3) Three-day suspension, and (4) Termination. It also states that "Before anyone is terminated, the facts of the case will be investigated and the employee will be given the opportunity to state his or her side. They did not allow me this opportunity before I was terminated.
1
They also said I was instructed to take the HIPAA test and refused. According to Drake Idabel Pennington my first shift supervisor instructed me to take the test and I refused. In my testimony in
OHIO CIVIL RIGHTS COMMISSION COMPLIANCE DEPARTMENT
1
1
·

September 2006 at the public hearing | testified that | was never instructed to take the test on January
27-28-29 of 2003.

First of all Idabel Pennington did not instruct me to take the test on January 27, 2003 as stated in Brain
Fearer testimony. Ms Pennington or Mr. Fearer never instructed me to take the test they simply
informed me that the deadline was January 31, 2003.1 tried to take it on January 28, 2003 but | had
problems logging on the computer. On January 30, 2003 | did take the test from 4:30-5:00 P.M. and
failed 3 times.

| told Drake and also testified at the hearing that the reason | failed was because Don Toelke, whom |
felt intimidated by sat behind me the whole time flopping around in his chair screaming, yelling and kept
saying over and over again “why in the fuck was | coming against him for sexual harassment. “Drake
knew how uncomfortable Mr.Toelke made me feel because on December 29" 2002 I reported Mr.

Toelke for sexual harassment.

On January 7, 2003 | met with Sharon Hancock, Ernie Prater and Brian Fearer to discuss the Sexual
Harassment Complaint. At that meeting | reported what Don Toelke was doing to me and the Nursing
Department on 2 and 3 South. Since Mr. Toelke and | worked 2” shift that was the shift | talked about in
the meeting. Stacey Seele was a unit clerk on 2 South. She testified at the public hearing that no one
from the HR department ever called her to question her about Mr.Toelke. Stacey Seele and | both
testified at the public hearing that we had to hide from him to escape his harassment. Victoria Shipley
(from housekeeping) also complained about Mr. Toelke between Dec 29" 2002 and Jan 12" 2003. She
also told Human resource of Mr. Toelke’s behavior. Ernie Prater at the public hearing Sept 2006 that he
did not investigate widespread sexual harassment. All of 2 south and 3 south knew of Don’s conduct. If
Mr. Prater had investigated like he should have | would not had to endure Jan 30" and February with his

behavior.

There was no follow up meeting after the January 7* or the January 28" 2003 meeting. | went to Ernie
Prater’s office Jan 28" 2003 to clean and he said Don admitted to him that he had asked me out for beer
and wings. | replied and said | don’t like that or anything else he said to me. Ernie replied and said let me
know if he says anything else. | said OK.

| finally completed the test on January 31, 2003 without him being present and passed the test with a
score of 95 and | completed it in 15 minutes.

Please note that when | wrote my statement to Drake about the terrifying incident with Mr.Toelke on
January 30, 2003 | did not know what Brain Fearer wrote in his memo regarding the 3 day suspension.
My suspension letter was given to me on Saturday February 1, 2003 by first shift supervisor Idabel
Pennington at the start of my 3 p.m. work shift. | went to Drake on Jan 31,2003 at 9:45 a.m. which was
my scheduled day off to hand deliver my statement about the Jan 30 to Sharon Hancock and to take the
HIPAA test from 9:45 a.m. -10:15 a.m. As I stated before | passed the test by the deadline.

Even if | said | had work to perform when | was told about the test in no way was | insubordinate
anytime in January 2003.The reason for me writing about my work schedule is that no employee would
have been allowed to be on the work schedule until the HIPAA test was completed.

Drake also never mentioned the fact that no employee was able to log onto the system from Jan 27,
2003 until Jan 30, 2003 because they were having problems with the system. So therefore no one

Drake also never mentioned the fact that no employee was able to log onto the system from Jan 27,
2003 until Jan 30, 2003 because they were having problems with the system. So therefore no one
instructed me to take the test on Jan 27", 28th or the 29" of 2003. | was not insubordinate on Jan 30"
because | did what Brain Fearer instructed me to do when | arrived at work.

Furthermore, even if | did say | had work to perform when asked about the test, the real reason was
because |! DID NOT WANT T O BE ALONE WITH DON TOELKE for the reason mentioned above. | was not
being insubordinate. | took the test at 4:30 P.M. with Mr.Toelke as instructed by Brain Fearer.

At no time did | ever say | was comfortable being alone in the same room with Mr.Toelke.
| wrote in an appeal letter on February 6, 2003 that my biggest concern about this whole situation was

why | would refuse to take a test when it was required by Drake that it do so as a condition of my
employment. | just want to say that | really enjoyed working at Drake and would have never done

anything to jeopardize my job.

My objection to this ruling is in hope that you will take another hard look at this case. It has been seven
long years and not a day goes by that | don’t think about how wrongfully | was portrayed and finally

terminated.
With Hope and Sincerity

Lisa F Crosby

Row r. Credlary

Cc: Lori A. Anthony, Deborah S. Brenneman, Denise M. Johnson

Ori gin

Co Pep

STATE OF OHIO
CIVIL RIGHTS COMMISSION

IN THE MATTER OF: : . COMPLAINT NO. 9584
LISA CROSBY, ; ADMINISTRATIVE LAW JUDGE:
DENISE JOHNSON
Complainant,
RECEIVED
V.

THE DRAKE CENTER APR 19 2010

Respondent. OHIO CIVIL RIGHTS COMMISSION

COMPLIANCE DEPARTMENT

OHIO CIVIL RIGHTS COMMISSION’S OBJECTIONS
TO THE ADMINSITRATIVE LAW JUDGE’S
REPORT AND RECOMMENDATION
INTRODUCTION

The Ohio Civil Rights Commission respectfully requests that the Administrative
Law Judge’s Report and Recommendation be reversed on the issue of retaliation. In
support of its objection, the Commission submits that the evidence in the record
demonstrates that Respondent suspended Lisa Crosby in retaliation for her complaint of
sexual harassment. This act of retaliation ultimately led to her termination.

ARGUMENT

In Burlington Northern and Santa Fe Ry. Co. v. White, 584 U.S. 53, 126 S.Ct.
2405, 2414-15, 165 L. Ed. 2d 345 (2006) the United States Supreme Court held that “a
plaintiff must show that a reasonable employee would have found the challenged action
materially adverse, which in this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” (id) The Court further

explained that the anti-retaliation provision of Title VII prohibits “employer actions that

are likely to deter victims of discrimination from complaining to the EEOC, the courts,

and their employers” Jd. The Court also stated that a “reasonable employee test” is used
to determine whether the complaining party was harmed and the alleged harm must be
viewed in light of the particular circumstances. Jd. at 2416.

Here, after Lisa Crosby complained of sexual harassment, she was assigned to sit
with her harasser, then was suspended and ultimately terminated. The Commission
asserts that Mrs. Crosby was clearly harmed by being suspended and terminated.
Additionally, Respondent’s actions in assigning her to sit with her harasser would
dissuade a reasonable person from complaining about sexual harassment.

1. Respondent assigned Mrs. Crosby’s harasser to supervise her HIPAA test.

In spite of Mrs. Crosby’s December 2002 complaints of being harassed by Don
Toelke, her supervisor, Respondent failed to separate them. (Tr. p. 108, 140, Fearer Tr. p.
26) As a result, in January 2003, Mrs. Crosby took some time off from work to get away
from Don Toelke. (Tr. p. 108, 140, Fearer Tr. p. 26) Also in January, all of Respondent’s
employees were required to complete a computer test to receive HIPAA certification. -
The test had to be completed by January 31, 2003. Despite Mrs. Crosby’s complaints,
Respondent assigned Don Toelke to supervise her during the HIPAA test on January 30,
2003. With her harasser sitting behind her at the computer, Mrs. Crosby protested, but
took the test as she was instructed to do. (Tr. p. 24, 148, Fearer Tr. p. 129) She failed the
test three times. (Tr. p. 24-26, Fearer Tr. p. 39, 129)

2. Mrs. Crosby passed the HIPAA test, then Respondent suspended her for
failing to take the test on a different day.

Mrs. Crosby knew that passing the HIPAA test was a job requirement. Therefore,

she obtained permission from the Human Resources Manager to come in and take the test

on January 31, 2003 — her scheduled day off. She took the test in the morning, without
her harasser, and passed it. (Tr. p. 116)

Despite Mrs. Crosby’s efforts, despite the fact that she had permission — from one
of the same individuals who was involved in the investigation of her sexual harassment
complaint — to come in on her day off and take the test, and despite the fact that she

passed the test, Respondent suspended Mrs. Crosby for three days, for not taking the test

on January 30". (Tr. p. 116-118; Exhibit 2) To be clear, Mrs. Crosby did attempt the test -
p

on January 30" and failed it three times, with her harasser sitting directly behind her.
Respondent’s stated reason for suspending Mrs. Crosby lacks credibility. The fact that
this suspension occurred approximately one month after her sexual harassment complaint
suggests it was motivated by retaliation.

3. Mrs. Crosby should not have been terminated.

The suspension for allegedly failing to take the HIPAA test was instrumental in
Mrs. Crosby’s termination. Without a prior suspension, the February verbal altercation
with Angela Grayson would likely have resulted in Mrs. Crosby’s first suspension, rather
than her termination. In fact, Ernie Prater, the Director of Human Resources and the
individual in charge of investigating Mrs. Crosby’s sexual harassment complaints,
testified that Mrs. Crosby probably would not have been terminated had the suspension
not occurred. (Tr. p. 153)

CONCLUSION
After Mrs. Crosby complained about being sexually harassed by her direct

supervisor, Don Toelke, Respondent retaliated against her by 1) failing to immediately

separate her from her harasser; 2) assigning her harasser to sit with her at the computer

during a test, which she failed; 3) granting permission for Mrs. Crosby to come in on her
day off to re-take the test, which she passed without her harasser being present, but then
suspending her for not taking the test at an earlier time.

The Commission _ therefore respectfully requests that the Report and
Recommendation of the Administrative Law Judge be reversed to reflect Respondent’s

retaliation of Mrs. Crosby. The Commission further requests that Respondent be ordered

to cease and desist from further discrimination, receive training on Ohio’s laws against

employment discrimination, reinstate Mrs. Crosby to her position or a comparable
position at Respondent’s facility, and pay Mrs. Crosby back pay and all other damages

deemed appropriate.

Respectfully submitted,

RICHARD CORDRAY
Attorney General of Ohio

low A Artbsan

LORI A. ANTHONY
Assistant Attorney General
Civil Rights Section

30 East Broad Street, 15" Floor
Columbus, Ohio 43215

(614) 466-7900 (Telephone)
(614) 466-2437 (Facsimile)

CERTIFICATE OF SERVICE
This is to certify that the foregoing Ohio Civil Rights Commission’s Objections to
the Administrative Law Judge’s Report and Recommendation has been served upon
counsel for Respondent, Deborah S. Brenneman, Esq., Thompson Hine LLP, 312 Walnut
Street, Suite 1400, Cincinnati, Ohio 45202 and Complainant, Lisa Crosby, 11472 Geneva

Road, Cincinnati, Ohio 45240 by placing in the United States mail, postage prepaid, this

[Fis of April, 2010.

LORI A. ANTHONY
Assistant Attorney General