Mark Glaser v. HLS Bonding dba SMD-HLS Bonding Company

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
MARK GLASER
Complainant
Complaint No. 9496
v. 	(COL) 71053102 (29621) 081202
22A – A2 – 03805
HLS BONDING D/B/A
SMD/HLS BONDING COMPANY
Respondent
ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATIONS
JIM PETRO
ATTORNEY GENERAL
Stefan J. Schmidt, Esq. 	David A. Whitcomb, Esq.
Assistant Attorney General 	William R. Post, Esq.
Civil Rights Section 	Baker & Hostetler
State Office Tower, 15th Floor 	2100 Capital Square
30 East Broad Street 	65 East State Street
Columbus, OH 	43215-3428 	Columbus, OH 	43215-4260
614 – 466 – 7900 	614 – 228 – 1541
Counsel for Respondent
Counsel for the Commission
ALJ'S REPORT BY:
Denise M. Johnson
Mark Glaser 	Chief Administrative Law Judge
5379 Ulry Road 	Ohio Civil Rights Commission
Westerville, OH 	43081 	1111 East Broad Street, Suite 301
Columbus, OH 	43205-1379
Complainant 	614 – 466 – 6684

INTRODUCTION AND PROCEDURAL HISTORY
Mark Glaser (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on August 12, 2002.
The Commission investigated the charge and found probable cause
that HLS Bonding LLC d/b/a SMD/HLS Bonding Company (Respondent)
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 April 10, 2003.
The 	Complaint 	alleged 	that 	Respondent 	changed 	Complainant’s
terms and conditions of employment, and terminated him, in retaliation for
having engaged in activity protected by Revised Code 4112.02(I).
Respondent filed an Answer to the Complaint on June 6, 2003.
Respondent admitted certain procedural allegations, but denied that it
1

engaged in any unlawful retaliatory practices. 	Respondent also pled
affirmative defenses. 1
A public hearing was held on September 2, 2004 at the Ohio Civil
Rights Commission’s Central Office in Columbus, Ohio.
The 	record 	consists 	of 	the 	previously 	described 	pleadings, 	a
transcript of the hearing (285 pages), exhibits admitted into evidence
during the hearing, and the post-hearing briefs filed by the Commission on
June 3, 2005, by Respondent on July 8, 2005, and a reply brief filed by the
Commission on July 20, 2005.
1 On September 5, 2003, Respondent filed a Motion for Summary Judgment,
the Commission filed a Memorandum in Opposition on September 23, 2003, and
Respondent filed a Reply on September 30, 2003. 	The Administrative Law Judge
(ALJ) denied Respondent’s Motion for Summary Judgment.
The Commission filed a Motion to Amend the Complaint on November 24,
2003, and Respondent filed a Memorandum in Opposition on December 9, 2003. 	The
Commission’s Motion to Amend was granted. 	Respondent filed an Amended Answer
on January 24, 2004.
2

FINDINGS OF FACT
The following findings of fact are based, in part, upon the ALJ’s
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 August 12, 2002.
2. 	The Commission determined on April 10, 2003 that it was
probable Respondent engaged in unlawful retaliation in violation of R.C.
4112.02(I).
3

3. 	The Commission attempted to resolve this matter by informal
methods 	of 	conciliation. 	The 	Commission 	issued 	the 	Complaint 	after
conciliation failed.
4. 	Respondent is a bail bonds business located at 571 South
High Street in Columbus, Ohio.
5. 	Respondent 	is 	owned 	and 	operated 	by 	Harvey 	Handler
(Handler) and Lowell Fox (Fox).
6. 	Complainant 	began 	his 	employment 	with 	Respondent 	on
May 	27, 	1991, 	working 	as 	a 	part-time 	data 	clerk 	while 	he 	was 	still
attending college.
7. 	After 	Complainant 	completed 	his 	undergraduate 	degree 	he
became 	a 	licensed 	bail 	bondsman 	and 	began 	working 	full-time 	for
Respondent.
8. 	Respondent 	also 	made 	Complainant 	the 	office 	manager.
Complainant received a substantial pay raise that compensated him for
the additional duties.
4

9. 	Complainant was responsible for keeping the books, which
involved writing checks, paying bills, [including bills for health insurance
premiums], making deposits, and doing most of the other internal office
paperwork.
10. 	During Complainant’s attendance at a Continuing Education
Class 	in 	late 	2001, 	he 	learned 	that 	if 	an 	employer 	provided 	health
insurance, then it should be provided to all of its employees, not just some
of the employees.
11. 	Complainant told Michael English (English), [the only African-
American employee and Complainant’s long-time friend and coworker],
that it was “just not right” that Respondent was not giving him insurance
benefits like they were for some of the other employees. 	Complainant
recalls first telling English sometime in late November or early December
2001. 	(Tr. 88-89)
12. 	During 	a 	discussion 	that 	Complainant 	had 	with 	Handler
regarding 	Complainant 	buying 	into 	the 	business, 	Complainant 	asked
Handler 	when 	he 	was 	going 	to 	provide 	health 	insurance 	benefits 	to
5

English. 	Handler told Complainant that he (and Lowell) “could handle
Mike English, don’t worry about it”. 	(Tr. 85-86)
13. 	English filed a charge of discrimination with the Commission on
April 22, 2002. 	Complainant’s name was listed on the charge as a
Caucasian employee whose health insurance benefits were being paid for
by Respondent.
14. 	On April 23, 2002, Handler was contacted by the Commission
and informed that English had filed a charge of discrimination. 	(Tr. 19,
56-57)
15. 	By letter dated April 25, 2002 Respondent was notified English
had filed a charge of discrimination.
16. 	A couple of days after English told Complainant that he had
filed a charge of discrimination, Handler and Fox called Complainant into
their office. 	They told Complainant that he was no longer going to be
doing office manager duties and that Complainant needed to concentrate
on his duties at the courthouse.
6

17. 	By 	memo 	dated 	May 	3, 	2002, 	regarding 	“New 	Employee
Business Practices”, the employees were apprised of new practices and
policies:
Finally, and perhaps most unfortunately, current circumstances
have caused us to determine that effective July 1, 2002, H.L.S.
Bonding Company will no longer provide healthcare benefits for
any employee, regardless of full-time or part-time status.
(Comm. Ex. 3)
18. 	By memo dated May 10, 2002, Complainant received a written
job description. 	Under “Hours of Employment” and “Compensation” the
memo set forth the following:
HOURS OF EMPLOYMENT
(…) 	The employee is expected to be at Arraignment Court
during 	all 	scheduled 	arraignment 	court 	hours. 	All 	other
employment hours are to be spent at the Employer’s office
doing necessary office work including writing bonds, answering
telephones, 	verifying 	information, 	research 	and 	other
reasonable 	and 	necessary 	office 	business 	required 	by 	the
Employer.
COMPENSATION
Seven hundred dollars ($700) a week payable weekly.
(Comm. Ex. 4)
7

19. 	On May 31, 2002, Complainant was terminated for cause.
The memo stated:
As a result of your recent conduct, including your unwillingness
to carry out the responsibilities of your position, your refusal to
comply with the terms of your Employment Contract and the
May 10, 2002 memorandum, and your insubordination, your
employment 	with 	H.L.S. 	Bonding 	Company 	is 	immediately
terminated for cause.
(Comm. Ex. 10)
8

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. 2
1. 	The Commission alleged in the Complaint that Respondent
changed 	Complainant’s 	terms 	and 	conditions 	of 	employment, 	and
terminated him, in retaliation for having engaged in activity protected by
R.C. 4112.02(I).
2 Any 	Finding 	of 	Fact 	may 	be 	deemed 	a 	Conclusion 	of 	Law, 	and 	any
Conclusion of Law may be deemed a Finding of Fact.
9

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:
(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).
10

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
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
is 	simply 	part 	of 	an 	evidentiary 	framework 	“intended 	progressively 	to
sharpen 	the 	inquiry 	into 	the 	elusive 	factual 	question 	of 	intentional
discrimination.” 	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
11

(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),
aff’d in part and rev’d in part, 76 FEP Cases 533 (N.D. Ohio
1997) (quotation marks omitted).
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).
Courts usually grant absolute protection for participation activities such as
filing 	a 	discrimination 	charge, 	testifying 	in 	civil 	rights 	proceedings, 	or
otherwise participating in such proceedings. 	Proulx v. CitiBank, 44 FEP
Cases 371 (S.D. N.Y. 1987).
12

8. 	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 coworker’s allegedly
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
complained 	to 	management 	about 	her 	supervisor’s 	refusal 	to
accommodate 	her 	religious 	beliefs). 	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.
It is critical to emphasize that a plaintiff’s burden under this
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) (Emphasis added.).
13

An 	employee 	is 	engaged 	in 	protected 	activity 	if 	he 	or 	she
opposes an employer’s conduct that he or she has a good faith
and reasonable belief is illegal.
EEOC v. Wilson Metal Casket Co., 58 FEP Cases 1523, 1528
(M.D. Tenn. 1992) (citations omitted).
9. 	In the instant case Respondent argues that it did not have
knowledge of Complainant opposing a discriminatory practice or engaging
in a protected activity prior to his termination.
10. 	The Commission, on the other hand, asserts that Respondent
was aware of Complainant’s opposition to discriminatory practices when
he questioned Handler about when health insurance benefits were going
to be provided to English. 	Additionally, the Commission asserts that
Respondent was aware of Complainant’s participation in the Commission‘s
proceedings because Complainant’s name was on the charge as one of
the 	Caucasian 	employees 	who 	was 	receiving 	health 	insurance 	from
Respondent.
11. 	Complainant testified that he attended a seminar in late 2001
where he learned that it was state law that if an employer was providing
14

insurance benefits to some of its employees then the benefits should be
provided to all employees.
12. 	Complainant 	approached 	Handler 	about 	health 	insurance
benefits and when they were going to be provided to English. 3
13. 	English was the only African-American employee working for
Respondent and Complainant was aware, through the payment of health
insurance premiums, that English was not receiving health insurance from
Respondent.
14. 	Because there was no express declaration to Handler or Fox
by Complainant that he believed what was happening to English was
because 	of 	his 	race, 	there 	is 	no 	legal 	support 	for 	the 	Commission’s
assertion.
3 Other than Handler and Fox, Complainant, as office manager, was the only
other individual privy to which employees received health insurance from Respondent.
Handler and Fox kept the employees’ insurance records in locked file cabinets, and
they kept the keys. 	(Tr. 108, 113)
15

15. 	Courts 	have 	consistently 	held 	that 	there 	is 	no 	“protected
activity” when there is no discussion of or allegation of discriminatory
conduct 	(see Smith v. Wayne County Dept of Human Serv., 2003 Ohio
App. LEXIS 386, Jackson v. Champaign Nat’l. Bank & Trust Co., 2000
Ohio App. LEXIS 4390, Gate v. Cincinnati Bell Telephone Co., 898 F. 2d
153 (6th Cir. 1990).
16. 	Complainant testified that the first time that he approached
Handler about the issue he did not know why English was not receiving
health insurance:
Q: 	Do 	you 	know 	why 	Mr. 	English 	wasn’t 	offered 	health
insurance benefits?
A: 	At that particular time, no, I really didn’t know why. 	But
after being in the – the room with Lowell and Mike English
approaching Lowell about the – the banana issue, then
my opinion changed.
(Tr. 86)
17. 	English testified that after he received the information from
Complainant he asked Handler and Fox for health insurance benefits.
Complainant testified that he was in the room with English and that he
knew that English was wearing a hidden recording device.
16

18. 	After English approached Handler and Fox, Handler started
writing the checks for the health insurance premiums.
19. 	Soon 	after 	Respondent 	received 	notice 	of 	the 	charge 	of
discrimination dated April 23, 2002, 4 wherein Complainant was listed as
one of the Caucasian employees receiving health insurance, actions were
taken 	to 	relieve 	Complainant 	of 	his 	duties 	as 	office 	manager, 	and
Respondent reduced his salary.
20. 	Handler testified that Complainant had asked to be relieved of
his duties sometime in early 2002 because he did not like to manage
people. 	Complainant denied he asked to be relieved of his management
duties.
21. 	I find Handler’s testimony lacking in credibility because he
admitted that he had asked Complainant to buy into the business in April
of 2002, approximately one month before Complainant was terminated.
4 Handler testified that he was contacted by the Commission on April 23, 2002
and 	informed 	that 	English 	had 	filed 	a 	charge 	of 	discrimination 	against 	them.
(Tr. 56-57)
17

(Tr. 70, 83) 	Both Handler and Fox testified under cross-examination that
they would not let a bad employee become one of their partners. 	(Tr. 31,
69, 70, 71)
22. 	A reasonable inference can be drawn that Handler and Fox
knew that Complainant participated in English’s charge of discrimination
from the following conduct:
 	Complainant’s questioning of Handler about English’s receipt
of health insurance benefits;
 	English’s request for health insurance benefits;
 	Complainant’s 	change 	in 	responsibilities 	regarding 	the
writing of checks for health care premiums; and
 	Complainant’s 	name 	on 	the 	April 	22, 	2002 	charge 	of
discrimination.
I find that Respondents Handler and Fox were aware of Complainant’s
participation in English’s charge of discrimination.
18

CAUSAL CONNECTION
23. 	In 	determining 	whether 	a 	causal 	connection 	exists, 	the
proximity between the protected activity and the adverse employment
action is often “telling.” 	Holland v. Jefferson Natl. Life Ins. Co., 50 FEP
Cases 1215, 1221 (7th Cir. 1989), quoting Reeder-Baker v. Lincoln Nat’l
Corp., 42 FEP Cases 1567 (N.D. Ind. 1986). 	The closer the proximity
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); Waddell v. Small Tube Prods., Inc., 41 FEP Cases
988 (3d Cir. 1986) (court properly inferred retaliatory motive from evidence
that defendant’s decision to rehire plaintiff was rescinded one day after the
defendant received notice that state FEP agency had dismissed plaintiff’s
charges of discrimination).
19

24. 	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).
… a court may look to the temporal proximity of the adverse
action to the protected activity to determine where there is a
causal connection.
EEOC v. Avery Dennison Corp., 72 FEP Cases 1602, 1609 (6th
Cir. 1997) (citation and quote within a quote omitted).
Temporal 	relationship 	between 	a 	plaintiff’s 	participation 	in
protected 	activities 	and 	a 	defendant’s 	alleged 	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).
25. 	By memo dated May 3, 2002 to employees entitled “New
Employee 	Benefits”, 	Respondent 	stated 	the 	following 	in 	the 	first
paragraph:
As a result of recent events, and in complying with the advice of
our corporate counsel, we wanted to advise you that we will
begin immediately implement(ing) [sic] certain new business
practices that will affect all employee, both full time and part-
time positions, regarding your employment at H.L.S. Bonding
Company. 	(…)
Comm. Ex. 3
20

26. 	Respondent changed Complainant’s job duties and reduced
his pay pursuant to a memo dated May 10, 2002. 	(Comm. Ex. 4)
27. 	Handler testified that when he and Fox responded to English’s
charge 	of 	discrimination 	they 	became 	aware 	that 	there 	was 	an 	Ohio
insurance 	law 	that 	requires 	small 	employers 	to 	offer 	insurance 	to 	all
employees if they offered it to any employee. 	(Tr. 24) 	This testimony
was offered as a reason for the May 3, 2002 memo wherein Respondent
notified employees that it would no longer be paying for employee health
insurance benefits. 	I find this testimony to lack credibility.
28. 	The 	testimony 	by 	Complainant 	was 	credible 	regarding 	his
attending a seminar in late 2001 and finding out about the law related to
health insurance benefits. 	Complainant’s testimony that he approached
Handler in late 2001 about when English was going to receive health care
benefits is also credible.
29. 	Complainant’s 	acquired 	knowledge 	(state 	law) 	became 	the
catalyst 	for 	raising 	the 	issue 	to 	Handler. 	Handler’s 	response 	to
Complainant [“We can handle Mike English, don’t worry about it.”] and his
21

failure to take corrective action led Complainant to disclose information to
English about who was and who was not receiving health insurance
coverage. 	(Tr. 43-44)
30. 	The Commission having established a prima facie case, the
burden of production shifted to Respondent to “articulate some legitimate,
nondiscriminatory reason” for the employment action. 	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 of unlawful retaliation 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.
22

31. 	Respondent met its burden of production with the introduction
of evidence that Complainant’s job performance had declined and that
Handler was threatened by Complainant’s conduct during a meeting.
32. 	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 of the
evidence 	that 	Respondent’s 	articulated 	reasons 	for 	Complainant’s
discharge were not its true reasons, but were a “pretext for … [unlawful
retaliation].” 	Id., at 515, 62 FEP Cases at 102, quoting Burdine, 450 U.S.
at 253, 25 FEP Cases at 115.
[A] reason cannot be proved to be a “pretext for … [unlawful
retaliation]” unless it is shown both that the reason was false,
and that … [unlawful retaliation] was the real reason.
Hicks, supra at 515, 62 FEP Cases at 102.
33. 	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:
23

That the employer’s proffered reason is unpersuasive, or even
obviously contrived, does not necessarily establish that the …
[Commission’s] proffered reason of … [unlawful retaliation] is
correct. 	That remains for the factfinder to answer …[.]
Id., at 524, 62 FEP Cases at 106.
Ultimately, 	the 	Commission 	must 	provide 	sufficient 	evidence 	for 	the
factfinder to infer that Complainant was, more likely than not, a victim of
unlawful retaliation.
34. 	In 	order 	to 	show 	pretext, 	the 	Commission 	may 	directly 	or
indirectly challenge the credibility of Respondent’s articulated reasons for
Complainant’s termination. 	The Commission may directly challenge the
credibility 	of 	Respondent’s 	articulated 	reasons 	by 	showing 	that 	the
reasons had no basis in fact or they were insufficient to motivate the
employment decision. 	Manzer v. Diamond Shamrock Chemicals Co., 29
F.3d 1078, 1084 (6 th Cir. 1994). 	Such direct attacks, if successful, permit
the fact-finder to infer intentional discrimination from the rejection of the
reasons without additional evidence of unlawful discrimination.
24

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. 5
Hicks, supra at 511, 62 FEP Cases at 100 (emphasis added).
35. 	I 	found 	Handler’s 	testimony 	regarding 	the 	reasons 	for
Complainant’s 	termination 	to 	lack 	credibility. 	On 	cross-examination
Handler 	could 	not 	be 	specific 	about 	having 	a 	conversation 	with
Complainant about his declining job performance. In April of 2002 Handler
asked Complainant about becoming a partner in the business, something
he admitted he would not ask of an employee with poor performance.
36. 	English 	testified 	that 	on 	the 	day 	and 	time 	when 	Handler
allegedly felt threatened by Complainant at the courthouse, Handler’s
outward demeanor did not indicate that he was feeling threatened or
upset. 6 (Tr. 45-46) 	I found English’s testimony to be credible.
5 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.
6 Complainant and English were on the fourth floor of the courthouse when
Handler told Complainant that he wanted to talk to him. 	Handler and Complainant
went to the ninth floor. 	After the discussion with Handler, Complainant went back to
the office per Handler’s instructions, and Handler returned to the fourth floor.
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37. 	After a careful review of the entire record, the ALJ disbelieves
the 	underlying 	reasons 	that 	Respondent 	articulated 	for 	Complainant’s
reduction in pay and discharge and concludes that, more likely than not,
they were a pretext for unlawful retaliation.
38. 	These actions by Respondent constitute unlawful retaliation
and entitle Complainant to relief as a matter of law.
RECOMMENDATIONS
For all of the foregoing reasons, it is recommended in Complaint
No. 9496 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
employment to Complainant within 10 days of the Commission’s Final
Order 	for 	the 	position 	of 	office 	manager. 	If 	Complainant 	accepts
Respondent’s offer of employment, Complainant shall be paid the same
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wage he would have been paid had he been employed as an office
manager 	at 	the 	salary 	of 	$800.00 	per 	week 	on 	May 	31, 	2002 	and
continued to be so employed up to the date of Respondent’s offer of
employment; and
3. 	Whether 	Complainant 	accepts 	Respondent’s 	offer 	of
employment, Respondent shall submit to the Commission within 10 days
of the offer of employment a certified check payable to Complainant for the
amount that he would have earned had he been employed as an office
manager 	at 	the 	salary 	of 	$800.00 	per 	week 	on 	May 	31, 	2002 	and
continued to be so employed up to the date of Respondent’s offer of
employment, including any raises and benefits he would have received,
less his interim earnings, plus interest at the maximum rate allowed by
law. 7
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
July 31, 2006
7 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 	ambiguity 	in 	calculating 	Complainant’s 	interim 	earnings 	should 	be
resolved against Respondent.
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