Karen Pall v. Wayne-Dalton Corporation

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
KAREN S. PALL
Complainant
Complaint No. 9718
v. 	(AKR) 73102903 (28420) 122303
22A – A4 – 00897
WAYNE-DALTON CORPORATION
Respondent
ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
JIM PETRO
ATTORNEY GENERAL
David A. Oppenheimer, Esq. 	Christopher J. Freeman, Esq.
Associate Attorney General 	Zollinger, D’Atri, Gruber & Thomas
Civil Rights Section 	6370 Mt. Pleasant Street N.W.
State Office Building, 11th Floor 	P. O. Box 2985
615 West Superior Avenue 	North Canton, OH 	44720-0985
Cleveland, OH 	44113-1899 	330 – 722 – 7278
216 – 787 – 3030
Counsel for Respondent
Counsel for the Commission
ALJ'S REPORT BY:
Karen S. Pall 	Denise M. Johnson
232 South Main Street 	Chief Administrative Law Judge
P. O. Box 545 	Ohio Civil Rights Commission
Tuscarawas, OH 	44682 	1111 East Broad Street, Suite 301
Columbus, OH 	43205-1379
Complainant 	614 – 466 – 6684

INTRODUCTION AND PROCEDURAL HISTORY
Karen S. Pall (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on December 23, 2003.
The Commission investigated the charge and found probable cause
that 	Wayne-Dalton 	Corporation 	(Respondent) 	engaged 	in 	unlawful
employment 	practices 	in 	violation 	of 	Revised 	Code 	Section 	(R.C.)
4112.02(A).
The Commission attempted, but failed to resolve this matter by
informal methods of conciliation. 	The Commission subsequently issued
a Complaint on July 22, 2004.
The Complaint alleged that Respondent discharged Complainant
for reasons not applied equally to all persons without regard to their sex.
Respondent filed an Answer to the Complaint on August 11, 2004.
Respondent admitted certain procedural allegations, but denied that it
engaged in any unlawful discriminatory practices. 	Respondent also pled
affirmative defenses.
1

A public hearing was held on May 3, 2005.
The record consists of:
 	the previously described pleadings;
 	a transcript of the hearing (111 pages);
 	exhibits admitted into evidence during the hearing; and
 	the post-hearing briefs and the reply brief filed:
o 	by the Commission on November 28, 2005;
o 	by Respondent on December 13, 2005; and
o 	by the Commission on December 19, 2005.
2

FINDINGS OF FACT
The 	following 	Findings 	of 	Fact 	are 	based, 	in 	part, 	upon 	the
Administrative Law Judge’s (ALJ) assessment of the credibility of the
witnesses who testified before her in this matter. 	The ALJ has applied
the 	tests 	of 	worthiness 	of 	belief 	used 	in 	current 	Ohio 	practice. 	For
example, she considered each witness’s appearance and demeanor while
testifying. 	She considered whether a witness was evasive and whether
his or her testimony appeared to consist of subjective opinion rather
than factual recitation. 	She further considered the opportunity each
witness had to observe and know the things discussed, each witness’s
strength 	of 	memory, 	frankness 	or 	lack 	of 	frankness, 	and 	the 	bias,
prejudice, and interest of each witness. 	Finally, the ALJ considered the
extent to which each witness’s testimony was supported or contradicted
by reliable documentary evidence.
1. 	Complainant 	filed 	a 	sworn 	charge 	affidavit 	with 	the
Commission on December 23, 2003.
2. 	The 	Commission 	determined 	on 	June 	3, 	2004 	that it 	was
probable 	that 	Respondent 	engaged 	in 	unlawful 	discrimination 	in
violation of R.C. 4112.02(A).
3

3. 	The Commission attempted to resolve this matter by informal
methods 	of 	conciliation. 	The 	Commission 	issued 	the 	Complaint 	after
conciliation failed.
4. 	Respondent manufactures garage doors.
5. 	Complainant started working for Respondent in 1998 as a
temporary employee.
6. 	After 	a 	few 	months 	of 	temporary 	work 	with 	Respondent,
Complainant applied for and was hired as a full-time employee.
7. 	Complainant worked on the Steel Door Line as a Fabricator B.
8. 	On 	October 	23, 	2003 	Complainant 	and 	a 	co-worker, 	Ken
LaRocca (LaRocca), were engaged in a verbal altercation.
9. 	Respondent has a Zero Tolerance Workplace Violence Policy
(ZTWVP). 	The 	policy 	states 	that 	“any 	employee 	determined 	to 	have
committed such acts will be subject to disciplinary action, up to and
including termination.” 	(Comm. Ex. 4)
4

10. 	The employee’s supervisor whether or not termination is the
appropriate action. 	The supervisor then approaches his manager and
explains the situation.
11. 	The matter regarding the appropriate action for the situation
is raised at the daily management meeting that occurs at 8:00 a.m.
(Tr. 83-84)
12. 	The 	manager 	then 	decides 	whether 	or 	not 	to 	contact 	the
H.R. Manager to discuss the situation. 	Respondent terminated both
Complainant 	and 	LaRocca 	on 	October 	29, 	2003 	for 	violation 	of 	the
ZTWVP.
5

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 for reasons not applied equally to all persons
without regard to their sex.
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.
6

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 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 discrimination
under Title VII of the Civil Rights Act of 1964 (Title VII).
5. 	Under Title VII case law, the Commission is normally required
to 	first 	establish 	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
7

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,
nondiscriminatory 	reason” 	for 	the 	employment 	action. 2 	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.
2 Although the burden of production shifts to Respondent at this point, the
Commission retains the burden of persuasion throughout the proceeding. 	Burdine,
supra at 254, 25 FEP Cases at 116.
The defendant’s burden is merely to articulate through some proof a
facially nondiscriminatory reason for the termination; the defendant does
not at this stage of the proceedings need to litigate the merits of the
reasoning, nor does it need to prove that the reason relied upon was
bona fide, nor does it need to prove that the reasoning was applied in a
nondiscriminatory fashion.
EEOC v. Flasher Co., 60 FEP Cases 814, 817 (10 th Cir. 1992) (citations
and footnote omitted).
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 the employment action. 	Hicks, supra at
511, 62 FEP Cases at 100.
7. 	In this case, it is not necessary to determine whether the
Commission proved a prima facie case. 	Respondent’s articulation of a
legitimate, 	nondiscriminatory 	reason 	for 	Complainant’s 	discharge
removes 	any 	need 	to 	determine 	whether 	the 	Commission 	proved 	a
prima facie case, and the “factual inquiry proceeds to a new level of
specificity.” 	U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711,
713, 31 FEP Cases 609, 611 (1983), quoting Burdine, supra at 255, 25
FEP Cases at 116.
Where 	the 	defendant 	has 	done 	everything 	that 	would 	be
required of him if the plaintiff has properly made out a prima
facie case, whether the plaintiff really did so is no longer
relevant.
Aikens, supra at 713, 31 FEP Cases at 611.
8. 	Respondent 	met 	its 	burden 	of 	production 	with 	the
introduction of evidence that it had a zero tolerance workplace violence
policy (ZTWVP) in effect; and both Complainant and the male co-worker
were terminated for violation of the policy.
9

9. 	Respondent 	having 	met 	its 	burden 	of 	production, 	the
Commission 	must 	prove 	that 	Respondent 	unlawfully 	discriminated
against Complainant because of her sex. 	Hicks, supra at 511, 62 FEP
Cases at 100. 	The Commission must show by a preponderance of the
evidence 	that 	Respondent’s 	articulated 	reason 	for 	Complainant’s
discharge was not the true reason, but was “a pretext for discrimination.”
Id., at 515, 62 FEP Cases at 102, quoting Burdine, supra at 253, 25 FEP
Cases at 115.
[A] 	reason 	cannot 	be 	proved 	to 	be 	a 	“pretext 	for 	discrim-
ination” 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 	reason 	is 	false 	or 	incomplete, 	the 	Commission 	does 	not
automatically succeed in meeting its burden of persuasion:
That the employer’s proffered reason is unpersuasive, or even
obviously contrived, does not necessarily establish that the …
[Commission’s] proffered reason of … [sex] is correct. 	That
remains a question for the factfinder to answer ….
Id., at 524, 62 FEP Cases at 106.
Ultimately, 	the 	Commission 	must 	provide 	sufficient 	evidence 	for 	the
fact-finder 	to 	infer 	that 	Complainant 	was, 	more 	likely 	than 	not, 	the
victim of sex discrimination.

11. 	In order to show pretext, the Commission may directly or
indirectly challenge the credibility of Respondent’s articulated reason for
discharging Complainant. 	The Commission may directly challenge the
credibility of Respondent’s articulated reason by showing that the reason
had no basis in fact or it was insufficient to motivate the employment
decision. 	Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078,
1084 (6th 	Cir. 1994). 	Such direct attacks, if successful, permit the
fact-finder to infer intentional discrimination from the rejection of the
reason without additional evidence of unlawful discrimination.
The factfinder’s disbelief of the reasons put forward by the
defendant 	(particularly 	if 	disbelief 	is 	accompanied 	by 	a
suspicion of mendacity) may together with the elements of the
prima facie case, suffice to show intentional discrimination
…[n]o additional proof is required. 3
Hicks, supra at 2749, 62 FEP Cases at 100 (emphasis added).
12. 	The Commission may indirectly challenge the credibility of
Respondent’s 	reason 	by 	showing 	that 	the 	sheer 	weight 	of 	the
circumstantial evidence makes it “more likely than not” that the reason
are a pretext for unlawful discrimination. 	Manzer, supra at 1084. 	This
type of showing, which tends to prove that the reason did not actually
3 	Even though rejection of a respondent’s articulated reason is “enough at law
to sustain finding of discrimination, there must be a finding of discrimination.” 	Hicks,
supra 2749, 62 FEP Cases at 100, n.4.

motivate 	the 	employment 	decision, 	requires 	the 	Commission 	produce
additional evidence of unlawful discrimination besides evidence that is
part of the prima facie case. 	Id.
13. 	The Commission attempted to show pretext in this case by
alleging disparate treatment. 	Specifically, the Commission alleged Ken
LaRocca, the male employee terminated along with Complainant, and Art
Hanni (Hanni) were progressively disciplined prior to their termination.
The Commission asserts that because Complainant did not initiate the
argument 	and 	her 	conduct 	was 	less 	egregious 	than 	LaRocca’s 	and
Hanni’s conduct, she should not have been terminated.
14. 	Proof 	of 	disparate 	treatment 	requires 	similarly 	situated
comparatives. 	The Commission must show that the comparatives were
“similarly situated in all respects”:
Thus to be deemed “similarly situated”, the individuals with
whom … [Complainant] seeks to compare … her treatment
must have dealt with the same supervisor, and have been
subject to the same standards, and have engaged in the same
conduct without such differentiating and mitigating circum-
stances 	that 	would 	distinguish 	their 	conduct 	or 	the
employer’s treatment of them for it.
Mitchell 	v. 	Toledo Hospital, 	59 	FEP 	Cases 	76, 	81 	(6th 	Cir.
1992) (citations omitted).

15. 	To 	be deemed similarly situated, “a precise equivalence in
culpability” is not required; misconduct of “comparable seriousness” may
suffice. 	Harrison v. Metro. Gov’t. of Nashville and Davidson Cty., 73 FEP
Cases 109, 115 (6th Cir. 1996) (quotations omitted). 	Likewise, similarly
situated employees:
… need not hold the exact same jobs; however, the duties,
responsibilities and applicable standards of conduct must be
sufficiently 	similar 	in 	all 	relevant 	aspects 	so 	as 	to 	render
them comparable.
Hollins v. Atlantic Co., Inc., 76 FEP Cases 553, 557 (N.D. Ohio
1997), quoting Jurrus v. Frank, 932 F.Supp. 988, 995 (N.D.
Ohio 1993).
16. 	Respondent argues that the Commission failed to prove that
Complainant 	was 	treated 	differently 	than 	similarly 	situated 	male
employees. 	This argument is well taken. 	The disciplinary action used
as 	comparative 	evidence 	by 	the 	Commission 	took 	place 	before 	the
enforcement 	of 	the 	ZTWVP. 	Additionally, 	one 	of 	the 	comparatives,
Hanni, worked for a different supervisor than Complainant and LaRocca.
17. 	The 	Commission 	cannot 	prove 	pretext 	through 	disparate
treatment without evidence that a similarly situated comparative was
treated more favorably than Complainant.

18. 	In 	disparate 	treatment 	cases, 	R.C. 	Chapter 	4112 	only
prohibits discharges motivated by unlawful discrimination. 	Thus, the
statute 	does 	not 	cover 	employees 	whose 	terminations 	are 	unfair 	or
unjust but nondiscriminatory.
The law does not require employers to make perfect decisions,
nor 	forbid 	them 	from 	making 	decisions 	that 	others 	may
disagree 	with. 	Rather, 	employers 	may 	not 	hire, 	fire, 	or
promote for impermissible, discriminatory reasons.
Hartsel v. Keys, 72 FEP Cases 951, 955 (6th Cir. 1996).
19. 	In 	general, 	neither 	the 	ALJ 	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).
[A] plaintiff may not establish that an employer’s proffered
reason is pretextual merely by questioning the wisdom of the
employer’s reason, at least not where, as here, the reason is
one that might motivate a reasonable employer.
Combs v. Meadowcraft, Inc., 73 FEP Cases 232, 249 (11th Cir.
1997).

RECOMMENDATION
For 	all 	of 	the 	foregoing 	reasons, 	it 	is 	recommended 	that 	the
Commission issue a Dismissal Order in Complaint No. 9718.
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
December 29, 2006