Bernardo P. Smith v. Trumbull Metropolitan Housing Authority

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
BERNARDO P. SMITH
Complainant Complaint No. 9407
(AKR) 73090701 (26392) 112301
and 22A –A2 –00467
TRUMBULL METROPOLITAN
HOUSING AUTHORITY
Respondent
CHIEF ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATIONS
JIM PETRO
ATTORNEY GENERAL
Duffy Jamieson, Esq. Daniel P. Thomas, Sr., Esq.
Deputy Attorney General DelBene, LaPolla & Thomas
Civil Rights Section, 15th Floor 155 Pine Avenue N.E.
30 East Broad Street P. O. Box 353
Columbus, OH 43215-3428 Warren, OH 44482-0353
614 - 466 - 7900 330 –392 –4176
Counsel for the Commission Counsel for Respondent
ALJ'S REPORT BY:
Denise M. Johnson
Bernardo P. Smith Chief Administrative Law Judge
3170 Randolph Street Ohio Civil Rights Commission
Warren, OH 44485 1111 East Broad Street, Suite 301
Columbus, OH 43205-1379
Complainant 614 –466 –6684

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INTRODUCTION AND PROCEDURAL HISTORY
Bernardo P. Smith (Complainant) filed a sworn charge affidavit with
the Ohio Civil Rights Commission (Commission) November 23, 2002.
The Commission investigated the charge and found probable cause
that Trumbull Metropolitan Housing Authority (Respondent, TMHA)
engaged in unlawful employment practices in violation of Revised Code
Section (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 October 31, 2002.
The Complaint alleged that Respondent discharged Complainant in
retaliation for having engaged in activity protected by Revised Code
4112.02(I).

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Respondent filed an Answer to the Complaint on November 25, 2002.
Respondent admitted certain procedural allegations, but denied that it
engaged in any unlawful retaliatory practices. Respondent also pled
affirmative defenses.
A public hearing was held on April 23, 2003 at the Trumbull County
Court House, Common Pleas Court, 160 North High Street, Warren, Ohio.
The record consists of the previously described pleadings; a
transcript of the hearing (119 pages); exhibits admitted into evidence during
the hearing; and the post-hearing briefs filed by the Commission on July
28, 2003; filed by Respondent on August 18, 2003, and filed by the
Commission on August 20, 2003 (a reply brief).

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FINDINGS OF FACT
The following findings of fact are based, in part, upon the assessment
of the Administrative Law Judge (ALJ) 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
consi	der	edeachwi	t	nes	s’	sappear	anceanddemeanorwhi	l	et	es	t	i	fying. 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 wi	t	ness	’	s st	r	engt	h 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 wi	t	ness’	s t	est	i	mony was suppor	t	ed or cont	r	adi	ct	ed by r	el	i	abl	e
documentary evidence.
1. Complainant filed a sworn charge affidavit with the Commission
on November 23, 2002.

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2. The Commission determined on September 12, 2002 that it
was probable that Respondent engaged in unlawful retaliation 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. Complainant worked for Respondent for 22 years as a
Maintenance Mechanic.
5. Complainant was placed on a Last Chance Agreement (LCA)
f	orc	ausi	ng damage t	o one ofRes	pondent	’	s v	ehi	cl	es whi	l	e usi	ng i	tt	o
deliver a gift (a refrigerator) to his mother.
6. The LCA, dated January 23, 2001, was to remain in effect until
Apr	i	l15,2003andpr	ov	i	dedt	hat“	anyv	i	ol	at	i	onofthe work rules of TMHA
pol	i	cywi	l	lr	esul	ti	ndi	s	char	gef	r	om empl	oy	ment	.	” (	Tr	.91)

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7. Complainant received a memo from Donald W. Emerson, Jr.,
Respondent	’	sEx	ecut	i	v	eDi	r	ect	or	,dat	edJune7,2001.Thesubj	ectoft	he
memoi	s“	Remi	nderofy	ourLastChanceAgr	eement	”	. (	Comm.Ex	.2)
8. The abov	e r	ef	er	enced memo poi	nt	ed t	o “	r	ecentact	i	ons”by
Complainant:
. . . i.e. engaging a subordinate employee in manipulative
activity, questioning my authority and attempting to threaten me
with litigation, frankly are tiresome and border on
insubordination.
9. Mr. Emerson ended the memo by stating that:
I shall not tolerate any further acts of disrespect toward me or
slander toward this organization. Be duly warned that I shall
not provide you with another warning on this matter.
10. Complainant received a memo dated September 4, 2001 from
Mr	.Emer	son. Thesubj	ectoft	hememoi	s“	Pr	e-disciplinary hearing and
out	l	i	neofchar	ges”	. (	Comm.Ex	.5)

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11. The outline of charges reads as follows:
On Friday August 24, you participated in a public forum held at
the Trumbull Community Action Program offices;
That this forum included members of the general public and
representatives of the print and television media;
That at said forum, you are alleged to have stated during an
open speaking time that TMHA was a racist organization;
Youar	ef	ur	t	heral	l	egedt	ohav	esat	edt	hatTMHA’	spol	i	ci	esar	e
racist; You are further alleged to have stated that the Executive
Director is a token;
You are further alleged to have engaged in conversation with
Warren City Councilman-Elect Gary Fonce about a confidential
personnel matter involving yourself and TMHA.
12. Compl	ai	nant	’	s at	t	endance att	he f	or	um was notdur	i	ng hi	s
work hours.
13. An investigation of the charges was conducted by Rodger L.
Di	x	on,Esq.	,Respondent	’	sDi	r	ec	t	orofHumanResour	ces.
14. After discussions during a pre-disciplinary conference,
Complainant was terminated from employment on September 7, 2001.

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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.1
1. The Commission alleged in the Complaint that Respondent
discharged Complainant in retaliation for having engaged in activity
protected by Revised Code 4112.02(I).
2. This allegation, if proven, would constitute a violation of R.C.
4112.02, which provides, in pertinent part, that:
1 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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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
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

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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
i	s si	mpl	y par	tofan ev	i	dent	i	ar	y f	r	amewor	k “	i	nt	ended pr	ogr	es	si	v	el	y t	o
sharpen the inquiry into the elusive factual question of intentional
di	s	cr	i	mi	nat	i	on.	” 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:
(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),
af	f	’	di	npar	tandr	ev’	di	npar	t	, 76 FEP Cases 533 (N.D. Ohio
1997) (quotation marks omitted).

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7. The retaliation provision under R.C. 4112.02(I) contains an
opposition clause and a participation clause. Since courts have analyzed
these clauses differently, it is important to focus on the nature of the
alleged protected activity.
The distinction between employee activities protected by the
participation clause and those protected by the opposition
clause is important because federal courts have generally
granted less protection for opposition than participation.
Aldridge v. Tougaloo College, 64 FEP Cases 708, 711 (S.D.
Miss. 1994), citing Brown v. Williamson Tobacco Co., 50 FEP
Cases 365 (6th Cir. 1989).
8. Employees engage in protected activity under the opposition
clause when they oppose, in good faith, what they reasonably believed at
the time was unlawful discrimination on the part of their employer.
I	ti	scr	i	t	i	calt	o emphasi	ze t	hata pl	ai	nt	i	f	f	’	sbur	den undert	hi	s
standard has both a subjective and an objective component.
A plaintiff must not only show that he subjectively (that is,
in good faith) believed that his employer was engaged in
unlawful discriminatory practices, but also that his belief was
objectively reasonable in light of the facts and record
presented.
Little v. United Technologies, Carrier Transicold Div., 72 FEP
Cases 1560, 1563 (11th Cir. 1997).

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9. As a threshold matter, the Commission must prove that
Complainant engaged in activity protected by R.C. 4112.02(I). A wide
array of conduct, including verbal complaints to management, may
constitute opposition to unlawful discrimination. See Reed v. A.W.
Lawrence & Co., Inc., 72 FEP Cases 1345 (2d Cir. 1996) (employee
engaged in protected activity by complaining about a co-wor	ker	’	sal	l	egedl	y
unlawful conduct to an officer of company and maintaining same complaint
throughout internal investigation); EEOC v. Hacienda Hotel, 50 FEP Cases
877 (9th Cir. 1989) (employee engaged in protected activity when she
compl	ai	nedt	omanagementabouthersuper	v	i	sor	’	sr	ef	us	al	t	oac	commodat	e
her religious beliefs). Similarly, sending letters protesting unspecified
“	r	aci	sm”and “	di	s	c	r	i	mi	nat	i	on”by an empl	oy	eral	so const	i	t	ut	e pr	ot	ec	t	ed
activity. EEOC v. Crown Zellerbach Corp., 720 F .2d 1008, 1012-13 (9th
Cir. 1983).
10. In determining whether a causal connection exists, the
proximity between the protected activity and the adverse employment
act	i	oni	sof	t	en“	t	el	l	i	ng.	” Holland v. Jefferson Natl. Life Ins. Co., 50 FEP
Cases 1215, 1221 (7th Cir. 1989), quoting Reeder-Bakerv	.Li	ncol	nNat	’	l
Corp., 42 FEP Cases 1567 (N.D. Ind. 1986). The closer the proximity

12
between the protected activity and the adverse employment action, the
stronger the inference of a causal connection becomes. See Johnson v.
Sullivan, 57 FEP Cases 124 (7th Cir. 1991) (court held that plaintiff showed
causal connection and established prima facie case of retaliation where
plaintiff was discharged within days of filing a handicap and race
discrimination lawsuit);
A causal connection may be established with evidence that the
adverse employment action closely followed the protected
activity.
Holland v. Jefferson National Life Ins. Co., 50 FEP Cases 1215
(7th Cir. 1989).
Tempor	alr	el	at	i	ons	hi	p bet	ween a pl	ai	nt	i	f	f	’	s par	t	i	ci	pat	i	on i	n
pr	ot	ect	ed act	i	v	i	t	i	es and a def	endant	’	s al	l	eged retaliatory
conduct is an important factor in establishing a causal
connection.
Gonzales v. State of Ohio, Dept. of Taxation, 78 FEP Cases
1561, 1564 (S.D. Ohio 1998).
11. In the instant case, the Commission has established that
Complainant engaged in protected activity, and there is a causal
connection between the protected activity and the termination. The
t	er	mi	nat	i	onl	et	t	ers	t	at	est	hatCompl	ai	nant	’	sst	at	ement	satt	hepubl	i	cr	al	l	y	,

13
where he called Respondent a racist organization with racist policies, were
reasons for his termination.
12. The Commission also established that Complainant had a good
faith belief that he was advocating against discriminatory practices :
Q: Now, would you agree that Bernardo Smith advocates or
supports the rights of African/Americans?
A: Idon’	tknowt	hatIwoul	dagr	eewi	t	ht	hat	. Iagr	eet	hathe
believes he supports the rights in—in those items as it
refers to African/Americans, Yes.
Q: All right, -
A: He –He is considered an activist. He considers himself
an activist, certainly.
Q: Okay. But you would agree that he believes that he
supports the rights of African/Americans?
A: Yes. I will agree with that statement.
Q: Would you agree that he is passionate about his beliefs
against racism?
A: Yes.
Cross Examination of Donald W. Emerson, Jr.
(Tr. 32, lines 7 –20)

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13. The Commission having established a prima facie case, the
bur	denofpr	oduc	t	i	onshi	f	t	edt	oRespondentt	o“	ar	t	i	cul	at	esomel	egi	t	i	mat	e,
nondi	s	cr	i	mi	nat	or	y r	eason[	s	]	” f	or t	he empl	oy	ment act	i	on. McDonnell
Douglas, supra at 802, 5 FEP Cases at 969. To meet this burden of
production, Respondent must:
...“	cl	ear	l	ysetf	or	t	h,t	hr	ough t	he i	nt	r	oduct	i	on ofadmi	ssi	bl	e
ev	i	dence,	”r	easonsf	ori	t	sact	i	onswhi	ch,if believed by the trier
of fact, would support a finding that unlawful discrimination was
not the cause of the employment action.
St	.Mar	y’	sHonorCent	erv.Hi	ck	s	, 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
prima facie cas	e“	dr	opsoutoft	hepi	ct	ur	e”whent	heempl	oy	erar	t	i	cul	at	es
legitimate, nondiscriminatory reasons for the employment action. Hicks,
supra at 511, 62 FEP Cases at 100.
14. Respondent met its burden of production by stating that
Complainant violated his Last Chance Agreement by violating the following
policies: (1) failure to conduct himself in a manner to preserve public
confidence and respect for authority, and (2) unauthorized speaking to the
public regarding TMHA business and policies.

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15. Respondent having met its burden of production, the
Commission must prove that Respondent retaliated against Complainant
because he engaged in protected activity. Hicks, supra at 511, 62
FEP Cases at 100. The Commission must show by a preponderance
oft	heev	i	dencet	hatRespondent	’	sar	t	i	c	ul	at	edr	easonsf	orCompl	ai	nant	’	s
di	s	char	gewer	enoti	t	st	r	uer	easons	,butwer	ea“	pr	et	ex	tf	or...[	unl	awf	ul
r	et	al	i	at	i	on]	.	” Id., at 515, 62 FEP Cases at 102, quoting Burdine, 450 U.S.
at 253, 25 FEP Cases at 115.
[	A]r	easoncannotbepr	ov	edt	obea“	pr	et	ex	tf	or...[	unl	awf	ul
r	et	al	i	at	i	on]	”unl	es	si	ti	sshownboth that the reason was false,
and that . . . [unlawful retaliation] was the real reason.
Hicks, supra at 515, 62 FEP Cases at 102.
16. Thus, ev	en i	f t	he Commi	ssi	on pr	ov	es t	hat Respondent	’	s
articulated reasons are false or incomplete, the Commission does not
automatically succeed in meeting its burden of persuasion:
Thatt	heempl	oy	er	’	spr	of	f	ered reason is unpersuasive, or even
obviously contrived, does not necessarily establish that the . . .
[	Commi	ss	i	on’	s	]pr	of	f	er	edr	easonof...[	unl	awf	ulr	et	al	i	at	i	on]i	s
correct. That remains for the factfinder to answer . . . .
Id., at 524, 62 FEP Cases at 106.

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Ultimately, the Commission must provide sufficient evidence for the
factfinder to infer that Complainant was, more likely than not, the victim of
unlawful retaliation.
17. In order to show pretext, the Commission may directly or
indirectly chal	l	enget	hecr	edi	bi	l	i	t	yofRespondent	’	sar	t	i	c	ul	at	edr	easonsf	or
t	er	mi	nat	i	ng Compl	ai	nant	’	s empl	oy	ment	. The Commi	s	si	on may di	r	ect	l	y
chal	l	enget	hecr	edi	bi	l	i	t	yofRespondent	’	sar	t	i	c	ul	at	edr	easonsbyshowi	ng
that the reasons had no basis in fact or were insufficient to motivate the
employment decision. Manzer v. Diamond Shamrock Chemicals Co., 29
F.3d 1078, 1084 (6th Cir. 1994). Such direct attacks, if successful, permit
the factfinder to infer intentional discrimination from the rejection of the
reasons without additional evidence of unlawful discrimination.
The f	ac	t	f	i	nder	’	s di	sbel	i	efoft	he r	eas	ons putf	or	war	d by t	he
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 . . .
[n]o additional proof is required.2
Hicks, supra at 511, 62 FEP Cases at 100 (emphasis added).
2 Event	houghr	ej	ect	i	onofar	espondent	’	sar	t	i	cul	at	edr	easoni	s“	enoughatl	awt	o
sustain finding of discrimination, there must be a finding of discrimination.”Hicks, supra
2749, 62 FEP Cases at 100, n.4.

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18. A reasonable inference can be drawn that Respondent
concl	udedt	hatCompl	ai	nant	’	ss	t	at	ement	sar	et	ant	amountt	o the failure to
preserve public confidence and respect for authority.
19. As the court in EEOC v. Crown Zellerbach Corporation, supra
at 1019, reasoned:
Al	mostev	er	yf	or	m of“	opposi	t	i	on t	o an unl	awf	ulempl	oy	ment
pr	ac	t	i	ce”i	si	nsomesens	e“	di	sl	oy	al	”t	ot	heemployer, since it
ent	ai	l	s a di	sagr	eement wi	t	h t	he empl	oy	er	’	s v	i	ews and a
chal	l	enge t	o t	he empl	oy	er	’	spol	i	ci	es	. Ot	her	wi	se t	he conduc	t
woul	d notbe “	opposi	t	i	on.	” I	fdi	s	char	ge orot	herdi	s	ci	pl	i	nar	y
sanct	i	onsmaybei	mposedbasedsi	mpl	yon“	di	sl	oy	al	”conduc	t,
it is difficult to see what opposition would remain protected
under section 704(a).
20. Si	mi	l	ar	l	y	,i	nt	hei	ns	t	antcase,Compl	ai	nant	’	sopposi	t	i	ont	owhat
he believes to be unlawful discriminatory practices at a public forum will
most certainly have the ef	f	ectofi	nv	i	t	i	ngpubl	i	cs	cr	ut	i	nyof Respondent	’	s
employment practices.
21. Addi	t	i	onal	l	y	,t	heot	herbas	i	ss	t	at	edi	nRespondent	’	st	er	mi	nat	i	on
letter to Complainant is not credible. The statements made by Complainant
at the public forum to a public official were about his own personnel record.

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No other employee with TMHA has ever been terminated for disclosing
information about their own personnel record.
22. After a careful review of the entire record, ALJ disbelieves the
underlyi	ng r	easons t	hat Respondent ar	t	i	cul	at	ed f	or Compl	ai	nant	’	s
discharge and concludes that, more likely than not, they were a pretext or a
cover-up for unlawful retaliation. Such action constitutes unlawful
retaliation and entitles Complainant to relief as a matter of law.

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RECOMMENDATIONS
For all of the foregoing reasons, it is recommended in Complaint No.
9407 that:
1. The Commission order Respondent to cease and desist from all
discriminatory practices in violation of R.C. Chapter 4112;
2. The Commission order Respondent to make an offer of
empl	oy	mentt	o Compl	ai	nantwi	t	hi	n 10 day	s oft	he Commi	ssi	on’	s Fi	nal
Order for the position of Maintenance Mechanic. If Complainant accepts
Respondent	’	sof	f	erofempl	oy	ment	,Compl	ai	nantshal	lbepai	dt	hesame
wage he would have been paid had he been employed as a Maintenance
Mechanic on September 7, 2001 and continued to be so employed up to
t	hedat	eofRespondent	’	sof	f	erofempl	oy	ment	;and
3. Whet	her Compl	ai	nant ac	cept	s Respondent	’	s of	f	er of
employment, Respondent shall submit to the Commission within 10 days of
t	heCommi	s	si	on’	sFi	nalOr	deracer	t	i	f	i	edchec	kpay	abl	et	oCompl	ai	nantf	or
the amount that he would have earned had he been employed as a

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Maintenance Mechanic on September 7, 2001 and continued to be so
employ	edupt	ot	hedat	eofRespondent	’	sof	f	erofempl	oy	ment	,i	ncl	udi	ng
any raises and benefits he would have received, less his interim earnings,
plus interest at the maximum rate allowed by law.3
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
June 30, 2004
3 Any ambiguity in the amount that Complainant would have earned during this
period or benefits that he would have received should be resolved against Respondent.
Likewise, any ambi	gui	t	y i	n cal	cul	at	i	ng Compl	ai	nant	’	s i	nt	er	i	m ear	ni	ngs shoul	d be
resolved against Respondent.