Kim Ifft Lee v. Hillbrook Management Company

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
KIM R. IFFT LEE
Complainant 	Complaint #8842
(CLE) 4070999 (31415) 081399
and 	22A – 99 – 0504
HILLBROOK MANAGEMENT COMPANY
Respondent
HEARING EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
BETTY D. MONTGOMERY
ATTORNEY GENERAL
Duffy Jamieson, Esq. 	Howard A. Levy, Esq.
Assistant Attorney General 	Anna K. Raske, Esq.
Civil Rights Section 	Benesch, Friedlander,
State Office Tower, 15th Floor 	Coplan & Aronoff
30 East Broad Street 	2300 BP Tower
Columbus, OH 	43215-3428 	200 Public Square
(614) 466-7900 	Cleveland, OH 44114-2378
(216) 363-4500
Counsel for the Commission
Counsel for Respondent
Avery S. Friedman, Esq. 	Kim R. Ifft (Lee)
701 Citizens Building 	2209 North River Road
850 Euclid Avenue 	Warren, OH 	44483
Cleveland, OH 	44114-3304
(216) 621-9282 	Complainant
Counsel for 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
Kim R. Ifft Lee (Complainant) filed a sworn charge affidavit with the Ohio
Civil Rights Commission (Commission) on August 13, 1999.
The Commission investigated and found probable cause that Hillbrook
Management Company (Respondent) engaged in unlawful discriminatory
practices in violation of Revised Code (R.C.) 4112.02(I).
The Commission attempted, but failed to resolve this matter by informal
methods of conciliation. 	The Commission subsequently issued a Complaint
on July 13, 2000. 	The Complaint alleged that Respondent discharged
Complainant in retaliation for engaging in protected activity.
Respondent filed a timely Answer to the complaint, admitting certain
procedural 	allegations 	but 	denying 	that 	it 	engaged 	in 	any 	unlawful
discriminatory practices. 	Respondent also pled affirmative defenses.1
1 The Complaint was subsequently amended on February 8, 2001 to correct a
typographical error. 	Respondent filed an Answer to the Amended Complaint on
April 5, 2001. Respondent also filed numerous motions which the Commission responded
to and the Hearing Examiner addressed. 	The flurry of motions ceased when Respondent
obtained new counsel on May 30, 2001.

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A public hearing was held on August 28-29, 2001 at the Lausche State
Office Building in Cleveland, Ohio.
The record consists of the previously described pleadings; the transcript
consisting of 416 pages of testimony; exhibits admitted into evidence at the
hearing; and the post-hearing briefs filed by the Commission on November 19,
2001 and by Respondent on December 17, 2001. 	The Commission filed a
reply brief on December 27, 2001.
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
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

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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
August 13, 1999.
2. The Commission determined on May 18, 2000 that it was probable
that Respondent engaged in unlawful discrimination in violation of R.C.
4112.02(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 real estate management company doing business
in Ohio and an employer.

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5. 	Complainant, who is Caucasian, was a resident at Hillbrook
Apartments, one of the properties managed by Respondent. 	She applied and
was hired for a position as a leasing agent. 	Shortly thereafter, there was an
opening for a leasing manager at Deer Creek Apartments (Deer Creek).
6. 	Respondent’s multi-site property manager, Patricia Silverman,
decided to offer Complainant the position at Deer Creek. Complainant
accepted the position; her compensation included a rent-free apartment at
Deer Creek.
7. 	While she was living at Deer Creek, Complainant became engaged
to 	Carmen 	Lee, 	a 	black 	person. 	Lee 	also 	resided 	at 	Deer 	Creek.
Complainant and Lee planned to be married in July 1999.
8. 	In February 1999, Complainant approached Silverman and spoke to
her about Lee vacating his apartment and moving into her apartment.
Silverman spoke to Stuart Graines, her supervisor in the corporate office,
about Complainant’s proposal. 	Graines is also Respondent’s in-house
counsel.

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9. 	Graines and Silverman created a new rental policy. 	The policy
required non-spouses living with employees to pay one half the customary
monthly rent.
10. 	When 	Silverman 	communicated 	this 	policy 	to 	Complainant,
Complainant 	was 	upset 	because 	she 	believed 	the 	policy 	was 	being
implemented 	because 	Lee 	was 	a 	black 	person. 	On 	May 	21, 	1999,
Complainant filed a lawsuit against Respondent in federal court alleging
discrimination on the basis of racial association. 	Graines and Silverman
were both named as defendants, along with Hillbrook Management Company.
11. 	When she was first employed at Deer Creek, Complainant was
able to lease numerous vacant apartments. 	She was an excellent sales-
person. 	Other 	aspects 	of 	Complainant’s 	performance 	were 	less 	than
satisfactory. 	She was reprimanded by Silverman on November 4, 1998 for
tardiness 	and 	carelessness. 	Complainant 	had 	a 	problem 	accurately
completing her paperwork. 	She was also habitually tardy every morning.
Complainant and Silverman discussed the reprimand.

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12. Complainant received another warning on December 30, 1998 for
tardiness and carelessness regarding paperwork. 	Silverman discussed this
reprimand with Complainant. 	During the discussion, Complainant told
Silverman 	she 	was 	upset 	about 	the 	Christmas 	party 	at 	Deer 	Creek.
Silverman and Graines decided to invite residents of two other properties to
attend the party. 	Complainant was upset with that decision. 	In the
reprimand Silverman noted that she was “seeing a change in Kim’s attitude in
her teamwork with coworkers.” 	(Comm.Ex.4)
13. Complainant received another written reprimand from Silverman on
March 22, 1999. 	Complainant had called in sick and told her coworkers to
call her at home if needed. 	When they attempted to call her, no one was
there to answer the calls. 	(Comm.Ex. 5)
14. 	After the lawsuit was filed, Graines had a meeting with Silverman.
He told her to be sure to document Complainant’s performance. 	Shortly
thereafter Silverman’s stepson, (who was also employed by Respondent and
worked at Deer Creek), began documenting Complainant’s activities at work

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on the days that he was there. 	He took notes of his observations and
passed them onto Silverman. 	His notes documented Complainant’s habitual
tardiness, her association with family members and Lee during business
hours, numerous personal telephone calls, (many of which concerned her
upcoming wedding), her use of company property to make 50 copies of a map
for her wedding, and a general lack of effort in performing her duties.
(Comm.Ex. 7)
15. On June 11, 1999, Silverman received a memo from the corporate
office complaining about Complainant’s paperwork errors and not receiving
coupons or guest cards with applications. 	(Comm.Ex. 6)
16. 	On 	June 	14, 	1999, 	Silverman 	met 	with 	Complainant 	after
Complainant told six employees at Deer Creek that she had filed a federal
lawsuit. 	The employees were very upset. 	Silverman told Complainant that
the lawsuit did not make any difference in the way she dealt with her.
Silverman also told Complainant that she was concerned about Complainant
discussing the lawsuit with other employees and making an issue about it.
(Comm.Ex. 9)

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17. 	On 	June 	8, 	1999, 	a 	shopping 	report 	was 	performed 	on
Complainant. 	The 	report 	was 	ordered 	by 	Silverman. 	Silverman 	had
periodically ordered shopping reports on other leasing agents.2
18. 	A shopping report is performed by an outside organization. They
send a consultant to the apartment complex, posing as a prospective renter,
to ascertain the quality of services that is being performed by the leasing
agent. 	The report that was generated as a result of the appointment with
Complainant resulted in a score of 58%, which is unsatisfactory. 	Normally, a
satisfactory score must be at least 75%.
19. 	On June 25, 1999, Silverman wrote a memo to the attorney who
was representing Respondent in the federal lawsuit advising him about
Complainant’s inadequate job performance. 	She summed up the situation in
the last paragraph of her memo:
2 Silverman referred to Complainant as a leasing agent in some documents and a
leasing manager in others.

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If this were any other employee and the number of times I have
talked with her over the last couple weeks about her attitude and
about the way I have been told she is talking with staff members I
would have definitely terminated her or at least put her on report
for 30 days. 	Her sales ability is a zero. 	Her enthusiasm is
probably a minus and her management skills are not even
gradeable. She leaves the office to supposedly go do a move-out
and she is gone for an hour where a move-out should take no
more than 15-20 minutes. 	I personally have caught her in
apartments of friends that I know live on the property when she
was supposedly doing work. I have had to hunt her down in
buildings where she said she was going and was not there and
found her in her apartment. 	She has used excuses that she had
to go pick up something or she forgot something at home and
went to get it. 	This has now become a battle of who is going to
be in charge. 	She has given the idea to her staff around her that
she is not going to be fired and there is nothing we are going to do
so therefore she can pretty much come and go as she pleases.
(Comm.Ex. 12)
20. 	On June 28, 1999, a resident of Deer Creek obtained a restraining
order against her husband because of domestic violence. 	She brought the
restraining order to Complainant. 	Complainant failed to advise the other staff
about it. 	This violated Respondent’s written procedures that had been in
effect since January 1999. 	Silverman counseled Complainant about this
violation, as well as other problems regarding “market readies” that were not
completed. 	The 	memo 	outlined 	other 	problems 	with 	Complainant’s
performance relating to her coworkers and residents. 	(Comm.Ex. 13)

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21. 	On 	July 	12, 	1999, 	Silverman 	terminated 	Complainant’s
employment. She filled out a separation form where she listed the reasons
Complainant was being fired.3
22. 	After Complainant was terminated, she refused to move out of her
apartment. 	The federal court refused to issue a restraining order allowing
Complainant to remain in possession.
23. 	Shortly thereafter, Graines discharged Silverman. 	She was
discharged because she paid an employee for two weeks’ work when she
knew he was in jail.
3 The stated reasons were:
1. 	Stays in her office all day;
2. 	Numerous personal phone calls;
3. 	late every morning;
4. 	58% on leasing shopping report (very low);
5. 	Not leasing suites;
6. 	Not checking the market readies;
7. 	Could not audit petty cash on last 3-4 months. Never had complete
money or receipts;
8. 	Did not turn in petty cash of $300 (no receipts or money);
9. 	Took service requests from residents and never wrote work orders;
10. 	Did not do paperwork correctly;
11. 	Was asked numerous times over the last few months to limit personal
calls and limit friends and relatives [coming] to office during working
hours – never corrected;

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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 therein, it is not credited.4
12. 	Was rude to many residents.
4 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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1. 	The Commission alleged in the Complaint that Complainant was
discharged in retaliation for having participated in protected activity.
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:
(I) 	For any person to discriminate in any manner against
any other 	person 	because 	that 	person 	has 	opposed
any unlawful discriminatory 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.
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(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. 	Columbus Civ. Serv. Comm. v. McGlone (1998), 82 Ohio
St.3d 569. 	Therefore, reliable, probative, and substantial evidence means

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evidence sufficient to support a finding of unlawful retaliation under Title VII of
the Civil Rights Act of 1964 (Title VII).
5. Under Title VII 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 burden of establishing a
prima facie case is not onerous. Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 254, 25 FEP Cases 113, 116, (1981). 	It is simply part of an
evidentiary framework “intended progressively to sharpen the inquiry into the
elusive factual question of intentional discrimination.” 	Id., at n.8.
6. 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:

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(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 (6th Cir. 1999),
aff’d. in part and rev’d. in part, 76 FEP Cases 533 (N.D. Ohio
1997) (quotation marks omitted).
7. 	The Commission proved the first prong of the prima facie case. 	The
Commission proved that Complainant opposed what she believed was an
unlawful discriminatory practice when she filed a lawsuit against Respondent
in federal court. 	Filing a lawsuit is protected activity. 	Cf. Clark Co. School
Dist. v. Breeden, 532 U.S. 268 (2001) (court referred to plaintiff’s Title VII
lawsuit when discussing protected activity).5
5 Respondent cites Crawford v. Medina General Hospital, an unpublished opinion,
for the proposition that filing a lawsuit is not protected activity under the opposition clause.
However, in the Crawford case, the Court never discussed the opposition clause. Instead,
the Court addressed the plaintiff’s arguments that filing a lawsuit was protected activity
under the participation clause and ruled that the participation clause was not applicable.

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8. 	As the Commission points out in its brief, if the opposition clause
protects writing a letter complaining about a discriminatory practice, then filing
a lawsuit should also be protected.
9. 	The Commission also proved the second prong of the prima facie
case. 	Complainant’s discharge was an adverse employment action. 	It was
not disputed that Stuart Graines, the alleged retaliator, knew about the lawsuit
prior to the decision to terminate Complainant’s employment.
10. 	The fourth prong of the prima facie case is the one that is most
difficult to prove. 	The Commission must prove the decision to discharge
Complainant was motivated by the protected activity. 	The Commission
claims that Graines told Silverman to terminate Complainant’s employment
shortly after he was served with the lawsuit. 	The Commission characterizes
this as direct evidence of retaliation. 	The Commission also argues that
Complainant’s 	job 	performance 	was 	subjected 	to 	heightened 	scrutiny
immediately after she filed the lawsuit and the temporal proximity between
filing the lawsuit and the heightened scrutiny is enough to establish the causal
connection for purposes of proving a prima facie case.

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11. The Commission’s legal arguments are correct. 	The fourth prong
of the prima facie case can be proved by direct or circumstantial evidence.
Circumstantial evidence could include the proximity between the protected
activity and some change in the terms and conditions of Complainant’s
employment. 	In 	this 	case, 	a 	decision 	was 	made 	to 	closely 	monitor
Complainant’s performance almost immediately after she filed a lawsuit
against Respondent. 	This supports the inference that there was a causal
connection 	between 	her 	filing 	a 	lawsuit 	and 	her 	ultimate 	discharge.
Therefore, the Commission proved a prima facie case.
12. If the Commission proves a prima facie case, Respondent must
“articulate 	some 	legitimate, 	nondiscriminatory 	reason” 	for 	the 	adverse
employment action. 	McDonnell Douglas, supra at 802, 5 FEP Cases at 969.
Since this is a burden of production and not a burden of proof, Respondent
only needs to:
. . . “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.
The presumption of unlawful retaliation created by the establishment of a

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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.
13. 	Respondent did more than meet its burden of production in this
case. 	Patricia Silverman testified that all of the performance problems and
deficient work habits that she extensively documented were true and accurate
representations of Complainant’s conduct. 	They were based on reports from
her stepson, other coworkers, and her own observations. 	Silverman was a
Commission witness.
14. 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 reasons for discharging Complainant were not its
true reasons, but were a “pretext for . . . [unlawful retaliation].” 	Id., at 515, 62
FEP Cases at 102, quoting Burdine, 450 U.S. 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 was false, and

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that . . . [unlawful retaliation] was the real reason.
Hicks, supra at 515, 62 FEP Cases at 102.
15. 	Thus, even if the Commission proves that Respondent’s articulated
reasons are 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 for the factfinder to answer . . . .
Id., at 524, 62 FEP Cases at 106.
Ultimately, the Commission must provide sufficient evidence for the factfinder
to infer that Complainant was, more likely than not, the victim of unlawful
retaliation.
16. The Commission argues that Complainant’s performance problems
were “minor” and that Silverman did not really believe that they merited
discharge. 	However, when one reads through the documentation that
Silverman collected, the overall impression is that Complainant was not
performing 	satisfactorily 	in 	any 	aspect 	of 	her 	job 	duties. 	Instead
Complainant was focusing all of her attention on personal matters, such as

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preparing for her wedding. 	No employer would tolerate this behavior.
Silverman terminated other employees for much less. 	(Resp.Exs. A, C)
17. 	This brings us to the Commission’s “direct evidence” argument.
Direct evidence is evidence that “directly proves a fact, without an inference or
presumption, which in itself, if true, conclusively establishes that fact.” 	Mauzy
v. Kelly Services, 75 Ohio St.3d 578. 	In its brief, the Commission points to
what it argues is the most compelling direct evidence that Graines intended to
discharge Complainant because she filed a federal lawsuit against him.
18. 	However, when one examines this evidence, it is not direct
evidence at all because it does not establish Graines’s intent. 	It only
establishes that he wanted to fire Complainant and that he was concerned
that she would claim it was because of the lawsuit. 	Silverman testified
Graines told her to “build a case” to support the decision to fire Complainant.
Given Complainant’s performance problems, such an instruction is not
necessarily evidence of retaliatory motive.
. . . if an employer is shown to have engaged in the kind of
unusual surveillance of, or attention to, an employee’s work such
that retaliation may seem the likely motive, a successful rebuttal

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can 	be 	premised 	on 	the 	showing 	that 	this 	attention 	was
necessary.
Larson, Employ. Disc., Sec. 35.03.
19. 	It is appropriate and logical that Graines, as the in-house counsel
for Respondent, would be concerned that any discipline that was given to an
employee who had engaged in protected activity be documented. 	Failure to
document would arguably be evidence of pretext.
20. 	Assuming for purposes of argument Graines’s alleged statements
to 	Silverman 	constitute 	direct 	evidence 	of 	retaliatory 	motive, 	then 	her
credibility becomes a crucial issue. 	I did not find her testimony credible.
21. 	One 	of 	the 	reasons 	it 	was 	not 	credible 	was 	her 	failure 	to
memorialize any of the conversations she had with Graines. 	In all of the
memos that she wrote to Respondent’s attorney, where she copied Graines,
she never said anything that would lead one to believe that she was being
directed by Graines to document Complainant’s performance because she
had filed a lawsuit or to exaggerate Complainant’s deficiencies because
Complainant had filed a lawsuit. 	If Silverman was compiling adverse

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information about Complainant solely because she filed a lawsuit and
because she was directed to do so by Graines, one would expect that
somewhere in all of these memos she wrote, she would refer to his directive.
There were no such references.
22. 	Silverman’s testimony about her decision-making authority was not
credible. 	She was not being micro-managed by Graines. 	Silverman’s
testimony was contradicted by her own documentary evidence. 	Silverman
stated she did not have authority to order shopping reports when the memo
she wrote regarding the shopping reports stated she had ordered them many
times in the past. 	She also testified she did not have the authority to fire
employees without Graines’s permission. 	However, Respondent offered
documentary evidence which showed she had fired other employees and
there was no evidence, other than her own testimony, that Graines had made
the decision, although he may have been consulted.
23. In one memo she specifically states that if Complainant had been
any other employee she would have “definitely terminated her . . . .”
(Comm.Ex. 12) 	She did not qualify this statement by saying she would have

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“recommended” Complainant’s termination. 	This corroborates Respondent’s
testimony that she had the authority to terminate employees on her own and
that she alone made the decision to terminate Complainant.
24. 	In addition, Silverman admitted that she falsified records and was
dishonest in her business relationship with Graines when she agreed to pay
one of Respondent’s employees, who was also a good friend of hers, when he
was in jail. 	This incident reflects adversely on her credibility.
25. 	The Commission has the burden of proof in these proceedings.
The Commission’s burden was not satisfied by Silverman’s testimony because
her testimony is not credible.6
26. 	If the Commission were to find Silverman’s testimony both
believable and legally sufficient to prove retaliatory animus, this case would be
6 The Commission attacks Graines’s credibility, arguing he was not forthright in his
testimony regarding his connection with the business. 	While it is true he attempted to
distance himself as far as possible from the decisions that were made in this case, his
testimony about his role in the various entities that were involved, such as Hillbrook
Management and GMS Management, were answers that were technically and legally
correct. As an attorney, he was merely responding to the Commission’s questions and not
volunteering any information. 	Counsel for the Commission, and to a certain extent, the
Hearing Examiner, found this somewhat frustrating. 	However, it was not intentional
deception. For instance, it was true he did not own any of the properties. 	The properties
were owned by a family trust. 	He may have been one of the trustees, but that does not

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a “mixed motive” case. 	A mixed motive case is one where there is evidence
of discriminatory animus and evidence that Complainant was discharged for a
legitimate, nondiscriminatory reason. 	When this occurs, Respondent has the
burden to prove that Complainant would have been discharged in spite of the
discriminatory animus. 	If Respondent meets its burden of proof, Complainant
is not entitled to any back pay. 	The only remedy would be a Cease and
Desist Order and other affirmative action, such as training.7
27. 	Applying the mixed motive analysis to this case, Respondent
proved Complainant would have been fired absent any retaliatory motive.
Other employees were fired for less. 	Silverman fired Complainant because of
her work performance, not because Complainant filed a lawsuit against
Respondent.
make him the owner. 	In any event, even if his testimony was not believable, the
Commission cannot prevail because Silverman’s testimony was also not believable.
7 The McDonnell Douglas evidentiary framework does not apply when there is
direct evidence of unlawful discrimination. 	Price Waterhouse v. Hopkins, 490 U.S. 228
(1989) (plurality opinion). 	In such cases, the burden of persuasion shifts to the employer
to show by a preponderance of the evidence that it would have taken the same action
despite its unlawful discriminatory practices. 	Id., at 258.

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Title VII does not provide protection to an employee regardless of
the adequacy of his job performance and does not insulate an
employee from the risk of termination of his employment by filing
charges against the employer or opposing unfair practices. 	It is
clear that Title VII does not guarantee continued employment.
Hochstadt v. Worcester Foundation, 11 FEP Cases 1426 (D.
Mass. 1976), aff’d. 545 F.2d 222, 13 FEP Cases 804 (1st Cir.
1976).
RECOMMENDATION
For all the foregoing reasons, it is recommended that the Commission
issue a Dismissal Order in Complaint #8842.
FRANKLIN A. MARTENS
CHIEF HEARING EXAMINER
January 31, 2002