Haqikah Gomez v. The Mendoza Company

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
HAQIKAH GOMEZ
Complainant 	Complaint #8425
(CLE-COL) 71120297 (25198) 121197
and 	22A-98-3247
THE MENDOZA COMPANY
Respondent
HEARING EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
BETTY D. MONTGOMERY
ATTORNEY GENERAL
Judith B. Goldstein, Esq. 	David A. Kadela, Esq.
Assistant Attorney General 	Denise L. Hanson, Esq.
Civil Rights Section 	Schottenstein, Zox & Dunn
State Office Tower, 15th Floor 	Huntington Center, 26th Floor
30 East Broad Street 	41 South High Street
Columbus, OH 	43215-3428 	Columbus, OH 43215-6106
(614) 466-7900 	(614) 221-3211
Counsel for the Commission 	Counsel for Respondent
HEARING EXAMINER'S REPORT BY:
Franklin A. Martens, Esq.
Haqikah Gomez 	Chief Hearing Examiner
837 Fairwood Avenue 	Ohio Civil Rights Commission
Columbus, OH 	43205 	1111 East Broad Street, Suite 301
Columbus, OH 	43205-1379
Complainant 	(614) 466-6684

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INTRODUCTION AND PROCEDURAL HISTORY
Haqikah Gomez (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on December 11, 1997.
The Commission investigated and found probable cause to believe that
unlawful discriminatory practices had been engaged in by The Mendoza
Company (Respondent) 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 October 29, 1998.
The Complaint alleges that Respondent refused to hire Complainant
because of her sex (pregnancy).
Respondent filed an Answer and an Amended Answer to the Complaint.
Respondent 	admitted 	certain 	procedural 	allegations 	but 	denied 	that 	it
engaged in any unlawful discriminatory practices.

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A public hearing was held on May 24, 1999 at the Commission’s Central
Office in Columbus, Ohio.
The record consists of the previously described pleadings; the transcript
consisting of 238 pages of testimony; exhibits admitted into evidence at the
hearing; and the post-hearing briefs filed by the Commission on August 6,
1999 and by Respondent on August 27, 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
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

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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
December 11, 1997.
2. The Commission determined on October 1, 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.
4. 	Respondent is a corporation doing business in Ohio and an
employer. Respondent operates a McDonald’s Restaurant at 1020 Alum
Creek Drive in Columbus, Ohio. 	There are approximately eleven other fast
food restaurants within a one half mile radius of Respondent’s place of

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business. 	Since Respondent’s turnover rate (and the turnover rate in this
industry) is between 200% to 300%, Respondent and the other “fast food”
restaurants are constantly seeking employees.
5. 	In December 1997, Respondent’s manager, Fredda Thompson, was
seeking “crew members”. 	Crew members wait on customers and perform
other routine tasks at the restaurant. 	Thompson had 25 years of experience
as a manager in the fast food industry.
6. 	Complainant, who was 17 years old and six months pregnant,
applied for a full-time crew member position in early December 1997. 	After
she filled out her application, she was told to return for an interview. 	When
she returned a few days later, Thompson asked her to fill out another
application because the first one was lost. 	After she filled out her second
application, she was interviewed by Thompson. 	Thompson asked her about
her 	employment 	history 	and 	her 	references. 	They 	also 	discussed
Complainant’s work schedule. Complainant gave Thompson a document
indicating that she was pregnant, but able to work. (Tr. 91) Thompson could

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see that Complainant was pregnant. 	(Tr. 44) 	Thompson has hired pregnant
females for crew member positions. 	(Tr. 29, 45)
7. 	After the interview Thompson scheduled Complainant for orientation
several days later, instructing her to bring two pieces of identification with her
for purposes of completing an I-9 form.1 Thompson normally scheduled
orientation sessions between 9:00 a.m. and 10:00 a.m. or after 2:00 p.m.
She never scheduled orientation sessions between 11:00 a.m. and 2:00 p.m.
(Tr. 35, 39) 	After the orientation, applicants watch a training video and work
the hours they are scheduled to work that day. 	(Tr. 33)
8. 	Complainant returned to the restaurant on the day Thompson told
her to return. 	When she entered the restaurant, one of the cashiers said,
“We [sic] was waiting on you.” 	(Tr. 93, 97) 	Complainant proceeded to
Thompson’s office area where orientations were conducted. Thompson did
not hire Complainant.
1 The Immigration Reform and Control Act of 1986 requires Respondent to hire only
American citizens or aliens who are authorized to work in the United States. All employees
hired after 1986 must verify their employment eligibility by completing a form, I-9. Proof of
age is also required when hiring a minor.

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9. 	Complainant’s son, Jordan, was born on March 25, 1998.
Complain-ant had childcare concerns and other family problems in 1998 and
1999 which prevented her from accepting employment. 	(Tr. 205-06) 	She
started work as a cashier at a Long John Silver’s Restaurant on March 11,
1999.
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.2
2 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 alleges in its Complaint that Complainant was not
hired because of her sex (pregnancy).
2. 	This allegation, if proven, would constitute a violation of Revised
Code § 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 term "because of sex" includes of or on the basis of pregnancy:
. . . the terms "because of sex" or "on the basis of sex" include,
but are not limited to, because of or on the basis of pregnancy,
any illness arising out of and occurring during the course of a
pregnancy, childbirth, or related medical conditions.
R.C. § 4112.01(B).
4. 	The Commission has the burden of proof in cases brought under
Chapter 4112 of the Revised Code. 	The Commission must prove a violation
of R.C. § Section 4112.02(A) by a preponderance of reliable, probative and
substantial evidence. 	R.C. § 4112.05(G) and § 4112.06(E).

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5. 	A preponderance of evidence means:
. . . evidence which as a whole shows that the fact sought to be
proved is more probable than not . 	. . . [E]vidence which is more
credible and convincing to the mind. 	That which best accords
with reason and probability.
Black’s Law Dictionary, Sixth Ed. (1990).
6. 	Title VII standards are to be used in evaluating alleged violations of
Chapter 4112 of the Revised Code. 	Therefore, reliable, probative and
substantial evidence means evidence sufficient to support a finding of
discrimination under Title VII of the Civil Rights Act of 1964, U.S.C. Sec.
2000e et. seq., Little Forest Med. Ctr. of Akron v. Ohio Civ. Rights Comm.
(1991), 61 Ohio St.3d 607.
7. The Commission is not required to prove that Complainant's sex was
the sole reason for the employer's decision. 	The Commission must prove by
a 	preponderance 	of 	reliable, 	probative, 	and 	substantial 	evidence 	that
Complainant's sex was at least a "motivating factor" in the employment
decision. 	Price Waterhouse v. Hopkins, 49 FEP Cases 954, 959 (1989).

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8. The Commission can prove that Complainant’s sex was a motivating
factor by direct evidence or by circumstantial evidence. 	Terbovitz v. Fiscal
Court of Adair County, 44 FEP Cases 841, 844 (6th Cir. 1987).
9. 	In 	this 	case, 	the 	Commission 	argues 	that 	there 	is 	sufficient
circumstantial and direct evidence to sustain its burden of proof. 	Direct
evidence is “evidence which, if believed, proves the fact without inference or
presumption.” 	Brown v. East Mississippi Electric Power Assn., 61 FEP Cases
1104 (5th Cir. 1993), citing Price Waterhouse v. Hopkins, 490 U.S. 228, 49
FEP Cases 954 (1989).
10. 	The Commission’s argument about direct evidence is based on
Complainant’s testimony. 	She testified that she arrived on time for orientation
with the appropriate documents. 	She testified that after she sat down for the
orientation and took off her coat, Thompson told her she could not be hired
because she was pregnant and might hurt herself and sue them. 	(Tr. 95)
11. 	Thompson testified that she has never refused to hire anyone
because they were pregnant. 	(Tr. 28) 	She testified that she has hired

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females who were pregnant. 	(Tr. 29, 45) 	She testified that there was no
reason why a pregnant woman could not work at the restaurant. 	(Tr. 31)
Thompson testified that she could not specifically remember Complainant, but
she did recall an applicant around the first week of December who was
pregnant. She recalled this applicant was late for orientation and did not bring
the proper identification. 	(Tr. 43)
12. 	Since 	Complainant’s 	testimony 	conflicted 	with 	Thompson’s
testimony, 	the 	conflict 	in 	testimony 	must 	be 	resolved 	by 	the 	Hearing
Examiner.
13. 	The Commission argues the conflict in testimony should be
resolved in favor of Complainant because her version was corroborated by the
assistant store manager. 	The Commission argues that his testimony that he
overheard someone say something to the effect that “You’re not hiring me
because I’m pregnant” during the first week of December corroborates
Complainant’s 	testimony. 	I 	disagree. 	This 	was 	not 	independent
corroboration; it was merely

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his recollection of what he heard Complainant say when she was leaving the
restaurant. 	It was not corroboration of what Thompson said to Complainant.
Complainant may have thought Thompson was motivated not to hire her
because she was pregnant. 	She may not have had a reason to think so.
14. 	Respondent argues that overall Complainant’s testimony was not
credible 	because 	it 	was 	not 	consistent 	with 	her 	deposition 	testimony.
Complainant’s testimony was inconsistent in many respects. 	However, some
of 	these 	inconsistencies 	involved 	matters 	that 	were 	trivial and not
material. A factual recitation will be somewhat different each time it is
repeated over time. The inconsistencies in Complainant’s testimony would
reflect on her ability to accurately recall facts, not necessarily her veracity.
15. Complainant’s testimony regarding her conversation with Thompson
where she alleged Thompson told her she was not being hired because she
was pregnant was consistent. 	Although it was consistent, it was not
convincing. 	Nor was it logical or more probable than the reason Thompson
gave for refusing to hire Complainant.

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16. At the hearing, Complainant testified she was told to come in for
orientation at 9:00 a.m. 	(Tr. 90) 	She testified she arrived at 8:55 a.m. (Tr.
93) 	She testified that when she arrived, the cashier stated, “We was [sic]
waiting on you.” 	(Tr. 93) 	The cashier’s comment supports Thompson’s
testimony that Complainant was late for the orientation. 	If Complainant
arrived at 8:55 a.m., there would be no reason for the cashier to make that
comment.
17. 	I also agree with Respondent’s argument that if Thompson was
concerned about employing Complainant because she was in the late stages
of pregnancy, Thompson could have rejected her for employment during the
first interview. 	Her condition was obvious. 	If Thompson was going to commit
an act of overt discrimination, there was no reason to wait until orientation to
do so.
18. The Commission also attempted to prove that Complainant was not
hired because of her sex through circumstantial evidence using the McDonnell
Douglas formula. 	Under the McDonnell Douglas formula, the Commission

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must prove a prima facie case of discrimination by a preponderance of the
evidence.
19. Once the Commission establishes a prima facie case, the burden of
production shifts to Respondent to “articulate some legitimate, nondiscri-
minatory reason” for its actions.3 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.
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 its actions. Hicks, supra at 511, 62 FEP Cases
at 100.
3 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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20. 	However, in this case, it is not necessary to determine whether the
Commission 	proved 	a 	prima 	facie 	case. 	Respondent’s 	articulation 	of
legitimate, 	nondiscriminatory 	reasons 	for 	refusing 	to 	hire 	Complainant
removes any need to determine whether the Commission proved a 	prima
facie 	case, and the

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“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 Texas Dept. of Community Affairs v. Burdine, 25 FEP Cases 113,
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 611 (emphasis added).
21. 	Respondent met its burden of production. 	Failure to appear for an
orientation on time with the appropriate documentation is a legitimate
business reason to refuse to hire someone.
22. Respondent having met its burden of production, the Commission
must show by a preponderance of the evidence that Respondent’s articulated
reasons for refusing to hire Complainant were not its true reasons but were a
pretext for discrimination. 	St. Mary’s Honor Center v. Hicks, 62 FEP Cases
96, 100 (1993).
[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.

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Hicks, supra at 102.
23. 	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 . . . [sex] is correct. That
remains to the factfinder to answer . . .
Id., 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 102.
24. 	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.4
4 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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Id., at 100.
Ultimately, the factfinder must be convinced that Complainant was “the victim
of intentional discrimination.” 	62 FEP Cases at 99, quoting Burdine, supra at
25 FEP Cases 116.
25. 	Based on the foregoing discussion, the Commission was unable to
prove that Respondent’s reasons were a pretext for sex discrimination. The
factual scenario offered by Thompson is more likely to have occurred than the
factual scenario offered by the Commission. 	There is insufficient evidence to
tip the scales in the other direction. 	Therefore, the Complaint must be
dismissed.

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RECOMMENDATION
For all the foregoing reasons, it is recommended that the Commission
issue a Dismissal Order in Complaint #8425.5
FRANKLIN A. MARTENS
CHIEF HEARING EXAMINER
December 13, 1999
5 Although the issue of mitigation may be moot, it appears that Complainant did not
actively seek employment after March 25, 1998 until early March 1999. 	Respondent
proved Complainant could have secured a minimum wage job had she pursued one.