Cheryl Ruckel v. State of Ohio, Dept. of Transportation

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
CHERYL RUCKEL
Complainant 	Complaint #8365
(COL) 71061397 (24857) 090597
and 	22A-97-4049
STATE OF OHIO,
DEPARTMENT OF TRANSPORTATION
Respondent
HEARING EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
BETTY D. MONTGOMERY 	BETTY D. MONTGOMERY
ATTORNEY GENERAL 	ATTORNEY GENERAL
David A. Oppenheimer, Esq. 	Marla K. Bressler, Esq.
Assistant Attorney General 	Winston M. Ford, Esq.
Civil Rights Section 	Assistant Attorneys General
State Office Tower, 15th Floor 	Employment Law Section
30 East Broad Street 	140 East Town Street, 14th Floor
Columbus, OH 	43215-3428 	Columbus, OH 	43215-6001
(614) 466-7900 	(614) 644-7257
Counsel for the Commission 	Counsel for Respondent
Ronald H. Snyder, Esq. 	Cheryl Ruckel
Cloppert, Portman, Sauter, 	1166 Blindbrook Drive
Latanick & Foley 	Columbus, OH 	43235
225 East Broad Street, 3rd Floor
Columbus, OH 	43215-3709 	Complainant
(614) 461-4455
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
Cheryl Ruckel (Complainant) filed a sworn charge affidavit with the Ohio
Civil Rights Commission (Commission) on September 5, 1997.
The Commission investigated and found probable cause to believe that
unlawful discriminatory practices had been engaged in by the State of Ohio,
Department of Transportation (Respondent) (ODOT) in violation of Revised
Code (R.C.) § 4112.02(A).
The 	Commission's 	efforts 	to 	eliminate 	the 	alleged 	unlawful
discriminatory practices by conciliation were unsuccessful. 	A complaint was
issued on August 14, 1998.
The Complaint alleged that Complainant was demoted because of her
sex.

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Respondent filed a timely Answer to the complaint, admitting certain
procedural 	allegations 	but 	denying 	that 	it 	engaged 	in 	any 	unlawful
discriminatory practices.
A public hearing was held on April 22-23, 1999 at the Commission’s
central office in Columbus, Ohio.
The record consists of the previously described pleadings; the transcript
consisting of 681 pages of testimony; exhibits admitted into evidence at the
hearing; and the post-hearing briefs filed by the Commission on July 6, 1999
and by Respondent on July 26, 1999. 	The Commission filed a reply brief on
August 6, 1999.
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

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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
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
September 5, 1997.
2. 	The Commission determined on June 26, 1998 that it was probable
that unlawful discriminatory practices had been engaged in by Respondent in
violation of R.C. § 4112.02(A).
3. 	The 	Commission 	attempted 	to 	eliminate 	the 	alleged 	unlawful
discriminatory practices by conciliation. The Commission issued its complaint
after conciliation failed.

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4. 	Respondent is a state agency and an employer.
5. 	Complainant is a female.
6. 	Complainant has been employed by Respondent since 1992. 	Up
until 	1995, 	Complainant 	was 	Bureau 	Chief 	of 	Systems 	Maintenance
Programming 	(SMP). 	SMP 	was 	part 	of 	the 	Division 	of 	Information
Technology 	(DoIT). 	Complainant’s 	immediate 	supervisor 	was 	David
Fuhrman, Deputy Director of DoIT.
7. 	DoIT was reorganized in 1995. 	The bureaus were renamed offices
and bureau chiefs were renamed office administrators. 	Four offices were
reduced to three offices. 	The three offices were the Office of Computer
Facilities Services, the Office of Application Services, and the Office of
Customer Services. 	Complainant became the administrator of the Office of
Computer Facilities Services. 	William Puckett became the administrator of
the Office of Application Services. 	Richard Rector became the administrator
of the Office of Customer Services. 	They all continued to report to Fuhrman.

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8. 	In 	July 	1995, 	William 	Davis, 	Assistant 	Director 	of 	Business
Management, became Fuhrman’s immediate supervisor. 	Complainant and
Davis did not get along. 	She perceived him as being sexist. 	She also did
not like it when he used vulgar language in her presence.
9. 	Davis learned that Complainant was upset with him when she
accidentally sent a memo to him that was intended for her immediate
supervisor, Fuhrman. 	Davis thought the “Bill” in the memo was William
Puckett. 	This conclusion was based on his knowledge that Puckett and
Complainant 	were 	feuding 	over 	which 	computer 	program 	should 	be
purchased for ODOT. Complainant wanted to install a program called D.C.E.,
while Puckett wanted to install a program called F.O.R.T.E. 	After Davis
learned that Complainant was referring to him, he viewed it as a positive step
by Complainant to try to resolve issues and problems.
10. The feuding between Complainant and Puckett continued. In the
latter part of April 1997, Davis and Fuhrman decided to stop moving forward
with D.C.E. 	Their decision was based on the continuing controversy

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between Complainant and Puckett and complaints they were receiving from
the district offices.
11. 	In May 1997, a conference was held at Deer Creek State Park to
assess ODOT’s progress in meeting “Vision 2000”, a plan to prepare ODOT
for the twenty-first century. 	During the conference, it was obvious the district
offices 	were 	not 	satisfied 	with 	DoIT. 	Jerry 	Wray, 	ODOT’s 	Director,
approached Davis and told him “something has to be done. 	If DoIT can’t do
it, we’ll just have to get it done outside.” 	(Tr. 440)
12. 	Based on the conversation with Wray, Davis decided to reorganize
DoIT. 	He did not want Complainant to remain in her position. 	Furhman was
put in charge of the reorganization.
13. 	Fuhrman held a meeting off-site with the two managers who
worked under Complainant, Nani Morrison and Mike Carroll. Neither of them
supported the decision to remove Complainant from a top management
position. Both were very loyal to Complainant. Subsequently, Complainant’s

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position was offered to Nani Morrison who flatly rejected it and ultimately
resigned to protest the reorganization.
14. 	Ultimately, Davis decided to merge the Office of Customer Services
with the Office of Computer Facilities Services and the Office of Application
Services, reducing the number of offices from three to two. 	Richard Rector.
administrator in the Office of Customer Services, was reassigned as the
administrator of the Office of Computer Facility Services.
15. 	Complainant was reassigned to the position that was previously
occupied by Nani Morrison, Manager of Systems Services. 	Her pay range
and classification remained the same, but she supervised fewer employees.
16. 	Davis 	appointed 	John 	Lavkulich 	as 	Administrator 	of 	the
reorganized Office of Application Services. 	Lavkulich was the Data Systems
manager for ODOT’s district office in New Philadelphia.

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17. Puckett was reassigned to the position of Manager of Data Services
in the reorganized Office of Application Services. 	His pay range and
classification did not change.
CONCLUSIONS OF LAW AND DISCUSSION
All proposed findings, conclusions, and supporting arguments of the
parties have been considered. 	To the extent that the proposed findings and
conclusions submitted by the parties and the arguments made by them are in
accordance with the findings, conclusions, and views stated herein, they have
been accepted; to the extent they are inconsistent therewith, they have been
rejected. 	Certain proposed findings and conclusions have been omitted as
not relevant or as not necessary to a proper determination of the material
issues presented. 	To the extent that the testimony of various witnesses is not
in accord with the findings herein, it is not credited.1
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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1. 	The Commission alleged in the Complaint that Complainant was
demoted because of her sex.
2. 	This allegation, if proven, would constitute a violation of R.C. §
4112.02, which provides in pertinent part that:
It shall be an unlawful discriminatory practice:
(A) 	For any employer, because of the . . . sex, . . . of any
person, to discharge without just cause, to refuse to hire, or
otherwise to discriminate against that person with respect to
hire, tenure, terms, conditions, or privileges of employment,
or any matter directly or indirectly related to employment.
3. 	The Commission has the burden of proof in cases brought under
R.C. 	Chapter 	4112. 	The 	Commission 	must 	prove 	a 	violation 	of 	R.C.
4112.02(A) 	by 	a 	preponderance 	of 	reliable, 	probative, 	and 	substantial
evidence. 	R.C. 4112.05(G) and 4112.06(E).
4. 	Federal case law applies to alleged violations of R.C. Chapter 4112.
Little Forest Med. Ctr. of Akron v. Ohio Civil Rights Comm. (1991), 61 Ohio
St.3d 607. 	Therefore, 	reliable, 	probative, 	and 	substantial 	evidence
means

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evidence sufficient to support a finding of unlawful discrimination under Title
VII of the Civil Rights Act of 1964 (Title VII).
5. 	Under Title VII case law, the Commission normally must prove a
prima facie 	case of unlawful discrimination by a preponderance of the
evidence. 	McDonnell Douglas Co. v. Greene, 411 U.S. 792, 5 FEP Cases
965 (1973). The proof required to establish a prima facie case may vary on a
case-by-case basis. Id., at 802, 5 FEP Cases at 969, n.13. The establishment
of 	a 	prima 	facie 	case 	creates 	a 	rebuttable 	presumption 	of 	unlawful
discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 25
FEP Cases 113 (1981).
6. 	Once the Commission establishes a prima facie case, the burden of
production shifts to Respondent to “articulate some legitimate, nondiscrim-
inatory reason” for its actions.2 McDonnell Douglas, supra at 802, 5 FEP
Cases at 969. 	To meet this burden of production, Respondent must:
2 Although the burden of production shifts to Respondent once a prima facie case is
established, the Commission retains the burden of persuasion throughout the proceeding.
Burdine, supra at 254, 25 FEP Cases at 116.

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. . . “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 created by the establishment of a prima facie case “drops
out of the picture” when the employer articulates a legitimate, nondiscrim-
inatory reason for its actions. 	Hicks, supra at 511, 62 FEP Cases at 100.
7. 	However, 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 demotion removes any
need to determine whether the Commission proved a prima facie case, and
the “factual inquiry proceeds into 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 out a prima facie case,
whether the plaintiff really did so is no longer relevant.
Aikens, supra at 713, 31 FEP Cases at 611 (emphasis added).

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8. 	Respondent met its burden of production. 	The decision-maker,
the Assistant Director for Business Management, testified that Complainant
and her male counterpart, William Puckett, were not viewed as being able to
work together as a team. 	There was a lack of trust, teamwork and
cooperation between the Office of Computer Facilities Services and the Office
of Application Services and the district offices. 	(Tr. 501-03) 	That was the
basis for Davis’ decision that they could not remain in leadership positions.
9. 	Respondent having met its burden of production, the Commission
must show by a preponderance of the evidence that Respondent’s articulated
reason for demoting Complainant was not the true reason but was a pretext
for discrimination. 	Hicks, supra at 511, 62 FEP Cases at 100.
[A] reason cannot be proved to be a “pretext for discrimination”
unless 	it 	is 	shown 	both 	that 	the 	reason 	is 	false, 	and 	that
discrimination is the real reason.
Hicks, supra at 515, 62 FEP Cases at 102.
10. 	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:

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That the employer’s proffered reason is unpersuasive, or even
obviously contrived, does not necessarily establish that the . . .
[Commission’s] proffered reason of . . . [sex] is correct. That
remains for the factfinder to answer . . .
Id., at 524, 62 FEP Cases at 106.
In other words,
nothing in law permit[s] . . . substitut[ion] for the required finding
that 	the 	employer’s 	action 	was 	the 	product 	of 	unlawful
discrimination, the much different (and much lesser) finding that
the employer’s explanation of its action was not believable.
Id., at 514-515, 62 FEP Cases at 102.
11. Although it is not enough to simply disbelieve Respondent’s
articulated reasons to infer intentional discrimination,
[t]he 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 a prima facie
case, suffice to show intentional discrimination.3
Id., at 511, 62 FEP Cases at 100.
Ultimately, the factfinder must be convinced that Complainant was “the victim
of intentional discrimination.” Id., at 508, 62 FEP Cases at 99, quoting
Burdine, supra at 256, 25 FEP Cases at 116.
3 Even 	though 	rejection 	of 	Respondent’s 	articulated 	reasons 	under 	these
circumstances is “enough at law to sustain a finding of discrimination, there must be a
finding of discrimination.” 	Hicks, supra at 511, 62 FEP Cases at 100, n.4.

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12. 	The Commission could also prove that Complainant was demoted
because of her sex using direct evidence. Direct evidence of discrimination is
“evidence which, if believed, proves the fact without inference.” 	Brown v.
East Miss. Elec. Power Assn., 61 FEP Cases 1104 (5th Cir. 1993).
13. 	If there is no direct evidence, evidence of sexist remarks that the
decision-maker made might be probative of bias toward females in general.
Under some circumstances, such remarks could be evidence of pretext.
However,
their probativeness is circumscribed if they were made in a
situation temporally remote from the date of the employment
decision 	or 	if 	they 	were 	not 	related 	to 	the 	employment
decision . . . Stray remarks by . . . decisionmakers unrelated to the
decision process are rarely given great weight . . . .
McMillan v. Mass. SPCA, 77 FEP Cases 589, 596 (1st Cir. 1998)
(citations and quotations within a quotation omitted).
14. 	Remarks that are vague do not have any probative value.
It 	is 	well 	established 	in 	the 	Sixth 	Circuit 	that 	isolated 	and
ambiguous comments are too abstract, in addition to being
irrelevant 	and 	prejudicial, 	to 	support 	a 	finding 	of 	. 	. 	.
discrimination.
Grant v. Harcourt Brace, 77 FEP Cases 1068, 1076 (DC SOhio
1998) (citations and quotations within a quotation omitted).

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See also, Price Waterhouse v. Hopkins, 490 U.S. 228, 49 FEP Cases 954,
974 	(1989) 	(stray 	remarks, 	statements 	by 	nondecisionmakers, 	and
statements 	by decisionmakers unrelated to the decisional process are
insufficient to conclude that employer relied on impermissible factor in
reaching decision) (O’Connor, J., concurring).
15. 	Based on the foregoing discussion, the Commission was unable to
prove that Complainant’s demotion was a pretext for sex discrimination.
There 	was 	a 	conflict 	between 	Complainant 	and 	Puckett 	regarding
Respondent’s choice of computer systems. 	Although the conflict was
supposedly resolved by Davis’ decision not to proceed with the project, the
damage was already done. 	The evidence showed that the district offices
were 	complaining 	about 	the 	controversy 	and 	it 	affected 	the 	way 	they
perceived DoIT.
16. The problem became a concern of the Director Wray, who observed
the tension and negative interaction at the Deer Creek meeting. 	He
approached Davis and told him that something had to be done. 	This is what
prompted Davis to do what many state agencies do when they have

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personnel problems, they engineer a reorganization and remove individuals
who are perceived as causing the problems from their current management
positions. In this case, Davis had control over Complainant and Puckett. 	He
did not have any control over the district offices.
17. 	The Commission’s attempts to characterize the decision as one
that had sexist connotations is not supported by the evidence. 	Davis may
have made crude and vulgar comments which were in poor taste on a few
occasions. 	However, the comments he made do not support the inference
that sex was a motivating factor in the decision to demote Complainant.
18. 	The 	Commission 	also 	argues 	that 	the 	decision 	to 	demote
Complainant was not a valid business decision.4 In essence, the Commission
argues Complainant did not deserve to be demoted. 	Of course, that is a
matter of opinion. 	Some of Complainant’s subordinates obviously thought
highly of her. However, Complainant’s performance as a manager and her
relationship with her subordinates was not the issue. There was no dispute
4 In general, neither the Hearing Examiner nor the Commission is in a position to
second-guess an employer’s business judgment, “except to the extent that those
judgments involve intentional discrimination.” 	Krumwiede v. Mercer Co. Ambulance
Service, 74 FEP Cases 188, 191 (8th Cir. 1997) (citations omitted).

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that Complainant was a good supervisor and that her technical knowledge
was sound.
19. 	The problem was her interaction with the district offices and the
dispute with Puckett. 	There were also problems interacting with other units at
ODOT. Thus, Complainant’s subordinates’ opinions about how Complainant
did her job are not relevant.
With 	respect 	to 	the 	opinion 	testimony, 	we 	have 	repeatedly
explained that “ ‘[i]t is the perception of the decision maker which
is relevant,’ not the self assessment of . . . [Complainant].”
Accordingly, . . . [Complainant’s] “perception of [her]self . . . is not
relevant.” 	Similarly, that . . . [Complainant’s] co-workers “may
have thought that [she] did a good job, or that [she] did not
‘deserve’ [to be discharged] is close to irrelevant.”
Dejarnette v. Corning, Inc., 75 FEP Cases 1088, 1092 (4th Cir.
1998) (footnote and citations omitted).
It is well settled, however, that . . . [Complainant’s] own opinions
about her work performance or qualifications do not sufficiently
cast doubt on the legitimacy 	of 	her 	employer’s 	proffered
reasons for its employment actions.
Ost v. West Suburban Travelers Limousine, 71 FEP Cases 304,
309 (7th Cir. 1996) (citations omitted).

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20. 	In conclusion, after listening to the witnesses who testified in this
matter for Respondent and the Commission and reviewing the exhibits that
were admitted into evidence, I am convinced that it was more likely than not
that Complainant’s sex was not a motivating factor in the decision to demote
her. 	Instead, 	it 	is 	more 	likely 	that 	she 	was 	demoted 	because 	of 	her
communication problems and her inability to resolve a controversy with a
co-manager, who also lost his position.5
RECOMMENDATION
For all the foregoing reasons, it is recommended that the Commission
issue a Dismissal Order in Complaint #8365.
FRANKLIN A. MARTENS
CHIEF HEARING EXAMINER
January 13, 2000
5 Complainant’s problems with communication, i.e. lack of tact and diplomacy, were
documented in the two evaluations that preceded her demotion and one that was
completed after she was demoted. 	(R.Exs. K, L, M)