Timothy Keels v. State of Ohio, Dept. of Public Safety

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
TIMOTHY E. KEELS
Complainant 	Complaint #8111
(CIN) 75040896 (25906) 100896
and 	22A-97-1513
STATE OF OHIO,
DEPARTMENT OF PUBLIC SAFETY
Respondent
HEARING EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
BETTY D. MONTGOMERY 	BETTY D. MONTGOMERY
ATTORNEY GENERAL 	ATTORNEY GENERAL
Barbara J. Morsa, Esq. 	John B. Kahle, Esq.
Assistant Attorney General 	Joseph N. Rosenthal, Esq.
Civil Rights Section 	Assistant Attorneys General
1600 Carew Tower 	Employment Law Section
441 Vine Street 	140 East Town Street, 14th Floor
Cincinnati, OH 	45202-2809 	Columbus, OH 	43215-6001
(513) 852-3497 	(614) 644-7257
Counsel for the Commission 	Counsel for Respondent
Stephanie R. Bostos Demers, Esq. 	Timothy E. Keels
Chief, Civil Rights Section 	7638 Walnut Creek Court
State Office Tower, 15th Floor 	West Chester, OH 	45069
30 East Broad Street
Columbus, OH 	43215-3428 	Complainant
(614) 466-7900
Counsel for the Commission
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
Timothy E. Keels (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on October 8, 1996.
The Commission investigated and found probable cause to believe that
unlawful discriminatory practices had been engaged in by the State of Ohio,
Department of Public Safety 	(Respondent) 	in violation of Revised Code
Section (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 September 18, 1997.
The 	Complaint 	alleges 	that 	Respondent 	discharged 	Complainant
because of his race.

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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 July 23, 1998 at the Commission’s
regional office in Cincinnati, Ohio.
The record consists of the previously described pleadings; the transcript
consisting of 309 pages of testimony; exhibits admitted into evidence at the
hearing; and the post-hearing briefs filed by the Commission on January 25,
1999 and by Respondent on April 15, 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

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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
October 8, 1996.
2. 	The Commission determined on September 18, 1997 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 doing business in Ohio and an
employer.
5. 	Complainant is a black person.
6. 	Complainant was employed by Respondent from 1988 until April 8,
1996 as an Ohio State Highway Patrol trooper. 	(The Division of Highway
Patrol is one of the five divisions that make up the Department of Public
Safety.)
7. 	Complainant was discharged, effective April 8, 1996, for violating
Ohio State Patrol (OSP) Regulation 4501:(2)-6-02(I)(1), which provides that
conduct unbecoming an officer includes “. . . conduct that may bring discredit
to the Division.” 	Conduct unbecoming an officer also includes “committing
any crime, offense or violation of the laws of the United States, the State of
Ohio or any municipality.” (I)(2).
8. 	Complainant violated this work rule on April 1, 1996. 	Complainant
was observed by the loss prevention manager of the Micro Center Computer

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Store in Cincinnati, Ohio removing five software packages valued at $374.79
from their respective shelves, opening the plastic wrappers and removing the
compact discs. 	He placed them inside his coat, walked to a cash register,
and paid for a book. 	He left the store where he was confronted by the loss
prevention manager.
9. 	Complainant was detained and the police were called. 	Pursuant to
Micro Center’s policy to prosecute all shoplifters, Complainant was charged
with theft, a violation of R.C. § 2913.02, a fourth degree felony.
10. 	Pursuant to R.C. § 124.388 and the Union Contract, Complainant
was placed on administrative leave with pay after Respondent became aware
of Complainant’s arrest.
11. 	Respondent conducted a thorough investigation of the matter
which 	included 	interviewing 	all 	persons 	who 	were 	involved, 	including
Complainant. The investigating officer prepared an investigative report. 	The
report was reviewed by officers in the chain of command. 	Ultimately, the
Director of Public Safety issued a report recommending that Complainant be

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removed from his position. 	Major John Demaree, Caucasian, made the
decision to remove Complainant for conduct unbecoming an officer, effective
April 8, 1996.
12. Subsequent to his removal, Complainant entered a diversion
program for first-time, non-violent felons. 	He fulfilled the requirements of the
program which included making restitution for any loss. 	Subsequently, the
charges were dismissed.
13. 	Pursuant to the Union Contract, Complainant filed a grievance
claiming that his discharge was not for just cause. 	The grievance proceeded
to arbitration. 	The arbitrator reinstated Complainant, modifying the discharge
to a sixty day suspension without pay. 	The arbitrator relied on the unrebutted
testimony of Complainant’s psychiatrist. 	He testified that Complainant’s
behavior on April 1, 1996 was triggered by job-related stress and separation
from his wife and children.

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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 herein, it is not credited.1
1. The Commission alleged in its Complaint that Respondent discharged
Complainant because of his race.
2. 	This allegation, if proven, would constitute a violation of R.C.
4112.02 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:
(A) 	For any employer, because of the race, . . . 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
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

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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:
. . . “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 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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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.
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 discharge 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. Respondent’s legitimate,
nondiscriminatory reason for discharging Complainant was his violation of
OSP 4501:(2)-6-02(I)(1), (conduct unbecoming an officer).
9. 	Respondent having met its burden of production, the Commission
must show by a preponderance of the evidence that Respondent’s articulated
reason for discharging 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:
That the employer’s proffered reason is unpersuasive, or even
obviously contrived, does not necessarily establish that the . . .
[Commission’s] proffered reason of race is correct. That remains
to the factfinder to answer . . .
Id., at 524, 62 FEP Cases at 106.
In other words,

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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 (emphasis added).
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.
12. The Commission can also attack Respondent’s reasons by proving
that Complainant was treated differently than similarly situated Caucasian
employees. 	This 	is 	known 	as 	disparate 	treatment. 	The 	essence 	of
discrimination, of course, is disparate treatment. 	Thus, the ultimate decision
to be made in a discrimination case where the Complainant alleges disparate

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treatment was explained as follows in Boyd v. U.S. Steel Corp., 20 FEP Cases
727 (W.D. Pa. 1979):
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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The ultimate decision to be made . . . is whether it is reasonable
to infer from all the evidence that the challenged action was based
in whole or in part on race. 	The focus must be on the similarity
between the situations of different employees -- whether the
situations are comparable for purposes of applying the doctrine of
McDonald 	and 	McDonald 	Douglas. 	The 	more 	distinct 	the
situations of the two employees of different races [protected
classes] who are treated differently, the less compelling is the
inference that race played a role in the disparate treatment.
Id., at 730.
13. 	The Commission must prove that the "comparables" are similarly
situated in all relevant respects:
A “similarly situated non-minority employee” is one who has “dealt
with 	the 	same 	supervisor, 	[has] 	been 	subject 	to 	the 	same
standards and [has] engaged in the same conduct without such
differentiating or mitigating circumstances [as] would distinguish
their conduct or the employer’s treatment of them for it.” 	[Mitchell
v. Toledo Hospital, 59 FEP Cases 76 (6th Cir. 1992)] 	A “precise
equivalence in culpability” . . . is not required; misconduct of
“comparable seriousness” is sufficient. 	[Harrison v. Metro Gov’t.
of Nashville and Davidson County, 73 FEP Cases 109 (6th Cir.
1996)] 	Similarly situated employees “need not hold the exact
same jobs; however, their duties, responsibilities and applicable
standards of conduct must be sufficiently similar in all relevant
aspects so as to render them comparable.” 	Jurrus v. Frank, 932
F.Supp. 988, 995 (N.D. Ohio 1993).
Hollins v. Atlantic Company, 76 FEP Cases 553, 557 (N.D. Ohio
1997).

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14. There was no dispute about the event that occurred on April 1, 1996
that led to Complainant’s discharge. 	Therefore, the Commission is not
arguing that Respondent’s legitimate, nondiscriminatory reason was untrue.
The Commission is arguing that Complainant was treated more harshly than a
similarly situated Caucasian trooper.
15. 	Specifically, the Commission argues that another trooper (Smith)
had an overall work record that was worse than Complainant’s work record.
Smith received various forms of discipline for conduct unbecoming an officer,
but was never discharged. 	Smith was never accused of shoplifting. 	His
disciplinary infractions could not be compared to Complainant for purposes of
disparate treatment.
16. 	Complainant was discharged because he stole merchandise
valued at $374.79 from Micro Center. Smith never engaged in any criminal
behavior that was as serious as Complainant’s. 	He was accused of domestic
violence by his wife, but she later withdrew the charges. 	Respondent
investigated the matter and concluded there was insufficient evidence to
support her allegations. 	Therefore, Respondent could not discipline Smith

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because they had no evidence to justify disciplining him. 	The evidence that
Complainant committed shoplifting was clear and unambiguous. Therefore,
Complainant and Smith were not similarly situated.
17. 	The appropriate comparison for purposes of disparate treatment
would be to compare Complainant with other officers who committed theft.
Respondent made this comparison. 	The evidence showed that Respondent
consistently discharged employees who committed theft. 	Five employees
were discharged for theft; four of them were Caucasian.
18. 	The Commission also argues that the individual who was the
commanding officer of Complainant’s district was racially biased. 	The
evidence to support this argument consisted of Complainant’s testimony about
statements he had heard regarding the opinions of other employees that the
commanding officer was a racist. 	Of course, the opinions of others about the
racial biases or the lack of bias of a supervisor are not probative evidence in a
race discrimination case. 	If they were, each party in a case could line up
witnesses who could give their opinions (pro or con). 	The Commission’s
decisions must be based on objective evidence, not subjective impressions.

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19. 	Furthermore, the commanding officer did not investigate the matter
and did not make a recommendation regarding the level of discipline.
20. 	The Commission also offered hearsay evidence about an incident
where a racially derogatory term was uttered by one of Complainant’s
coworkers. 	He used the term in a joke. Although the incident was reported
to the commanding officer, he did not discipline the coworker. Even if the
incident occurred, it does not support the conclusion that Complainant was
discharged because of his race.
21. 	There was no evidence that the commanding officer embellished
the investigator’s findings that Complainant committed theft to make them look
worse than they actually were. 	The evidence about what happened on
April 1, 1996 was not disputed by Complainant. There was no evidence that
the commanding officer ignored reports of misconduct that was committed by
Caucasians that there were brought to his attention and only pursued reports
that were brought to his attention that involved minorities.4
4 The Dayton Power & Light Company case (33 Ohio St. 3d 73 (1987)) cited by the
Commission in its brief is distinguishable. 	In that case there was evidence that the
supervisors routinely ignored horseplay when it was committed by white employees but

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22. 	The 	Commission 	also 	argued 	that 	there 	were 	mitigating
circumstances that Respondent should have taken into consideration in
determining the level of discipline. 	However, there was no evidence that
Respondent took similar mitigating circumstances into consideration when
they terminated Caucasian employees who engaged in theft. There was no
evidence that Caucasian employees committed theft and were not terminated
because of mitigating circumstances.
23. 	In conclusion, this is not a case of racial discrimination. 	It is a
case that was appropriately considered in the context of the Collective
Bargaining Agreement by an arbitrator. 	The arbitrator sympathized with
Complainant after hearing testimony from Complainant’s psychiatrist about
Complainant’s mental state on April 1, 1996. The psychiatrist’s testimony was
not challenged by Respondent. 	The arbitrator was also impressed with
Complainant’s efforts to deal with his personal problems after he was
terminated. 	This led the arbitrator to modify the discharge to a sixty day
suspension. 	The arbitrator’s decision to impose a lesser penalty was
appropriate under the circumstances. However, his decision does not convert
chose to report similar conduct that was committed by plaintiff, a black person, which
ultimately led to his discharge. His supervisors also admitted that they harbored racial bias.

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this case into one of racial discrimination. Therefore, the Complaint must be
dismissed.
RECOMMENDATION
For all the foregoing reasons, it is recommended that the Commission
issue a Dismissal Order in Complaint #8111.
FRANKLIN A. MARTENS
CHIEF HEARING EXAMINER
July 19, 1999