Toni Muhammad v. Board of County Commissioners, et al.

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Memo

To:
From:
Date:
Re:

Ohio Civil

Rights Commission

/
Desmon Martin, Chief of Enforcement and Compliance /

Denise M. Johnson, Chief Administrative Law Judge ))/\\\(l /\ (
June 23, 2008 (Ve Os
Toni A. Muhammad v. Board of Cuyahoga Coubrty
Commissioners, Cuyahoga Support Enforcement Agency

[AKR] 73020102 [27068] 071202 22A-—2002-03616-C
Complaint No. 9491

DMJ:tg

CONSIDERATION OF
ADMINISTRATIVE LAW JUDGE’S REPORT

ALJ RECOMMENDS DISMISSAL ORDER

Report issued: June 20, 2008
Report mailed: June 23, 2008

** Objections due: July 16, 2008 **

RIGHTS CON
OHIO CI
MISSION
STATE OF OHIO
Governor Ted Strickland
Ohio Civil Rights Commission
Board of Commissioners 1 zonar1 ]. Hubert Lagracia Ramos Pastor Aaron Wheeler, So Radiant N. Yabnik
June 23, 2008
Toni A. Muhammad 1397 East 109th Street Cleveland, OH 44106
Saundra Curtis-Patrick, Esq. Assistant Prosecuting Attorney Justice Center - Courts Tower 1200 Ontario Street, 8th Floor Cleveland, OH 44113
Re: Toni A. Muhammad v. Board of Cuyahoga County Commissioners, Cuyahoga Support Enforcement Agency [AKR] 73020102 [27068] 071202 22A - 2002 - 03616 - C Complaint No. 9491
Enclosed is a copy of the Administrative Law Judge's Findings of Fact, Conclusions of Law, and Recommendation (ALJ's Report). You may submit a Statement of Objections to the ALJ's Report within twenty (20) days from the mailing date of this report.
Pursuant to Ohio Admin. Code § 4112-1-02, your Statement of Objections must be received by the Commission no later than Wednesday, July 16, 2008. No extensions of time will be granted.
Any objections received after this date will be untimely filed and cannot be considered by the Ohio Civil Rights Commission.
Please send the original Statement of Objections to: Desmon Martin, Chief of Enforcement and Compliance, Ohio Civil Rights Commission, State Office Tower, 5th Floor, 30 East Broad Street, Columbus, OH 43215-3414. All parties and the Administrative Law Judge should receive copies of your Statement of Objections.
FOR THE COMMISSION
Desmon Martin/ tg
Desmon Martin Chief of Enforcement and Compliance
DM:tg
CC: Susan A. Choe, Esq., Chief - Civil Rights and Election Law - Stefan J. Schmidt, Esq. Denise M. Johnson, Chief Administrative Law Judge
Enclosure
CENTRAL OFFICE . State Office Tower, 5th Floor, 30 Hast Broad Street, Columbus, OH 43215-3414 · Central Office: 614-466-2785 . TOLL FREE: 1-888-278-7101 . TTY: 614-466-9353 . FAX: 614-644-8776
REGIONAL OFFICES AKRON . CINCINNATI . CLEVELAND . COLUMBUS . DAYTON . TOLEDO www.crc.ohio.gov

OHIO CIVIL RIGHTS COMMISSION

IN THE MATTER OF:
TONI A. MUHAMMAD
Complainant
v.

BOARD OF CUYAHOGA

COUNTY COMMISSIONERS,

CUYAHOGA SUPPORT
ENFORCEMENT AGENCY

Respondent

Complaint No. 9491

(AKR) 73020102 (27068) 071202

22A — 2002 - 03616-C

ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION

NANCY H. ROGERS
ATTORNEY GENERAL

Stefan J. Schmidt, Esq.
Assistant Attorney General
Civil Rights Section

State Office Tower, 15t» Floor
30 East Broad Street
Columbus, OH 43215-3428
614 — 466 - 7900

Counsel for the Commission

Toni A. Muhammad
1397 East 109% Street
Cleveland, OH 44106

Complainant

WILLIAM D. MASON

CUYAHOGA COUNTY PROSECUTOR

Saundra Curtis-Patrick, Esq.
Assistant Prosecuting Attorney
Justice Center — Courts Tower
1200 Ontario Street, 8 Floor
Cleveland, OH 44113

216 —- 443 - 7800

Counsel for Respondent

ALJ'S REPORT BY:

Denise M. Johnson

Chief Administrative Law Judge
Ohio Civil Rights Commission
State Office Tower, 5t Floor

30 East Broad Street
Columbus, OH 43215-3414
614 - 466 - 6684

INTRODUCTION AND PROCEDURAL HISTORY

Toni A. Muhammad (Complainant) filed a sworn charge
affidavit with the Ohio Civil Rights Commission (the Commission)

on July 12, 2002.

The Commission investigated the charge and found probable
cause that Cuyahoga County Board of Commissioners, Cuyahoga
Support Enforcement Agency (Respondent CSEA) 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 May 1, 2003.

The Complaint alleged that Respondent CSEA discharged
Complainant for reasons not applied equally to all persons without

regard to their race and religion.

Respondent CSEA filed an Answer to the Complaint on June 18, 2003. Respondent CSEA admitted certain procedural allegations, but denied that it engaged in any unlawful discriminatory practices. Respondent CSEA also pled affirmative defenses.
A public hearing was held on June 22, 2005 at the Lausche State Office Building in Cleveland, Ohio.
The record consists of the previously described pleadings; a transcript of the hearing consisting of 318 pages;1 exhibits admitted into evidence during the hearing; and the post-hearing briefs filed by the Commission on September 22, 2006;2 by Respondent CSEA on December 15, 2006;3 and a reply brief filed by the Commission on January 2, 2007.
1 Transcript was completed by the transcriber and sent to the Division of Hearings on May 11, 2006.
2 The Commission requested a two-week extension to file its post-hearing brief.
3 Respondent CSEA requested extensions to file its post-hearing brief on October 20 and November 24, 2006.
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 July 12, 2002.

2. The Commission determined on March 20, 2003 that it

was probable that Respondent CSEA engaged in unlawful

discrimination in violation of R.C. 4112.02(A).

3. The Commission attempted to resolve this matter by
informal methods of conciliation. The Commission issued the

Complaint after conciliation failed.

4. Complainant was hired by Respondent CSEA on
September 10, 2001 and entered an eight-week training program

for a position as a Support Officer 1.

S. Upon successful completion of her training, Complainant

was assigned to Enforcement Unit 2 on November 5, 2001.

6. Her duties as a Support Officer 1 required her to perform
investigations using enforcement techniques learned during

training and to make calculations for child support orders.

7. Complainant is African-American and a member of the

Islamic religion.

8. As a practicing member of the Islamic religion
Complainant wore the traditional headscarf to work, did not drink

alcohol or eat pork or celebrate Christmas.

9. Upon assuming her responsibilities as a Support Officer
1 Complainant was assigned to work with Nadia Ahmetovic

(Ahmetovic), Caucasian, a Support Officer 2 (Team Leader).

10. Ahmetovic monitored Complainant’s work using training

sheets during a 60-day probationary period.

11. After monitoring Complainant’s work Ahmetovic was
expected to report on Complainant’s performance and turn in the
training sheets to James Brown, Caucasian, Enforcement Unit 2

Supervisor.

12. During the probationary period Ahmetovic reported to
Brown that Complainant was having problems applying the

enforcement techniques and that her work reflected an unaccept-

ably high error rate.

13. After six weeks Complainant’s progress was evaluated by
Brown, who made the decision to extend Complainant’s

probationary period for an additional 45 days.

14. Brown communicated his decision to Complainant on
December 12, 2001, to continue her probation, effective January 8,

2002.

15. Brown communicated to Complainant that her error rate
on the training sheets was too high and that she needed to make

improvements by the end of January 2002.

16. On February 1, 2002, Complainant was advised that she
had failed to successfully complete the extended probationary

period and her employment was terminated.

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. The Commission alleged in the Complaint that Respondent
CSEA discharged Complainant for reasons not applied equally to all

persons without regard to their race and religion.

4 Any Finding of Fact may be deemed a Conclusion of Law, and any
Conclusion of Law may be deemed a Finding of Fact.

7

2. These allegations, 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 ... race,
religion, ... 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 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 CSEA 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 CSEA must:

“clearly set forth, through the introduction of
admissible evidence,” reasons: for its actions which, if
believed by the tner 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.

7. Although the burden of production shifts to Respondent
CSEA at this point, the Commission retains the burden of persuasion
throughout the proceeding. Burdine, supra at 254, 25 FEP Cases at
116. (Emphasis added.)

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% Cir.
1992) (citations and footnote omitted).

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.

8. In this case, it is not necessary to determine whether the
Commission proved a prima facie case. Respondent CSEA’s
articulation of a legitimate, mondiscriminatory reason for
Complainant’s discharge removes any need to determine whether

the Commission proved a prima facie case, and the “factual inquiry

10

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.
9. Respondent CSEA met its burden of production by introducing evidence that Complainant's termination was based upon her failure to improve her error rate during her extended probationary period.
10. Respondent CSEA having met its burden of production, the Commission must prove that Respondent CSEA unlawfully discriminated against Complainant because of her race and religion. Hicks, supra at 511, 62 FEP Cases at 100. The Commission must show by a preponderance of the evidence that Respondent CSEA's articulated reason for Complainant's discharge was not the true reason, but was "a pretext for discrimination."
11

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 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.
11. Thus, even if the Commission proves that Respondent CSEA'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 ... race [and religion] 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 that the fact-finder could reasonably either (1) disbelieve the employer's articulated legitimate reason; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action. Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3rd Cir. 1997).
12

12. The Commission may directly challenge the credibility of
Respondent CSEA’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 (6t Cir. 1994). This type of challenge is
based on the assertion that the reason forwarded is a pretext for
illegal discrimination. 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.°®

Hicks, supra at 511, 62 FEP Cases at 100 (emphasis added).

° Even though rejection of a respondent’s articulated reason 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.

13

13. The Commission may indirectly challenge the credibility
of Respondent CSEA’s reasons by showing that the sheer weight of
the circumstantial evidence makes it “more likely than not” that the
reason is a pretext for unlawful discrimination. Manzer, supra at
1084. This type of showing, which tends to prove that the reason
did not actually motivate the employment decision, requires the

Commission produce additional evidence of unlawful discrimination

besides evidence that is part of the prima facie case. Id.

14. Specifically, the Commission alleged that Complainant’s
error rate was comparable to James Sweeney (Sweeney), who is
Caucasian and non-Muslim, who was in the same training class

with Complainant, but was not discharged.
15. Proof of disparate treatment requires similarly situated

comparatives. The Commission must show that the comparatives

were “similarly situated in all respects”:

14

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 circumstances 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).
16. 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).
17. Respondent CSEA argues that the Commission failed to prove that Complainant was treated differently than similarly
15

situated employees who were not in the protected classes. This argument is well taken.
18. Complainant and Sweeney attended the same training academy class and started working in Enforcement Unit 2 on the same day. Complainant and Sweeney were assigned to different Team Leaders, Nadia Ahmetovic and Karen Beeble (Beeble), respectively. Ahmetovic and Beeble reported to James Brown, Enforcement Unit 2 Supervisor.
19. The Commission offered the testimony of Sweeney to assert that Complainant's performance was very similar to his own performance during the probationary period. Respondent CSEA provided credible documentary evidence to show that Complainant's error rate was higher than Sweeney's. Sweeney's performance (error rate) was, therefore, not comparable to Complainant's.
20. The Commission cannot prove pretext through disparate treatment without evidence that a similarly situated comparative was treated more favorably than Complainant.
16

21. Additionally, Complainant never heard a comment
directed toward her that was anti-Muslim or racist. (Tr. 110-1 11)
Nor was there credible evidence introduced by the Commission that
directly linked the decision-makers to anti-Muslim or racist

comments.

22. Therefore, there is no credible evidence in the record to
believe that an invidious discriminatory reason was more likely
than not the motivating or determinative cause behind Respondent

CSEA’s termination of Complainant’s employment.
RECOMMENDATION

For all of the foregoing reasons, it is recommended that the

Commission issue a Dismissal Order in Complaint No. 9491.

oni. hb

DENISE M. bk NSON
CHIEF ADMINISTRATIVE LAW JUDGE

June 20, 2008

Le

RIGHTS
S COM
ORIO CIVA
MISSION
STATE OF OHIO
Gorernor Ted Strickland
Ohio Civil Rights Commission
Board of Commissioners Fuldic Harrell, Jr. 1 zonand j. Hubert Altagracia Ramos Raslui N. Yajnik.
61. Michael Payton. Fixsentire Director
January 28, 2009 Toni A. Muhammad 1397 East 109th Street Cleveland, OH 44106
Saundra Curtis-Patrick, Esq. Assistant Prosecuting Attorney Justice Center - Courts Tower 1200 Ontario Street, 8th Floor Cleveland, OH 44113
Re: Toni A. Muhammad v. Board of Cuyahoga County Commissioners AKR 73 020102 (27068) 07102 22A -2002 - 03616 - C Complaint No. 9491
The enclosed Order dismissing Complaint No. 9491 in the above captioned matter was issued by the Ohio Civil Rights Commission at its meeting of October 23, 2008.
This case is closed.
FOR THE COMMISSION
Desmon Martin/ tg
Desmon Martin Director of Enforcement and Compliance
Enclosure
Susan A. Choe, Chief - Civil Rights and Election Law
Denise M. Johnson, ALJ - Division of Hearings
Compliance [EEOC/HUD]
DM:tg
CENTRAL OFFICE . State Office Tower, 5th Floor, 30 East Broad Street, Columbus, OH 43215-3414 · Central Office: 614-466-2785 . TOLL FREE: 1-888-278-7101 . TTY: 614-466-9353 . FAX: 614-644-8776
REGIONAL OFFICES AKRON . CINCINNATI . CLEVELAND . COLUMBUS . DAYTON . TOLEDO www.crc.ohio.gov

TED STRICKLAND

GOVERNOR

IN THE MATTER OF: )
)

TONI MUHAMMAD, ) COMPLAINT NO. 9491
)

Complainant, ,) DISMISSAL ORDER

)
VS. )
)
BOARD OF CUYAHOGA COUNTY )
‘COMMISSIONERS )
)
Respondent. )

This matter came before the Commission upon the Administrative Law Judge’s
Report and Recommendation. After carefully considering the entire record, the report
was adopted at the public meeting on August 21, 2008.

The Commission hereby incorporates the findings of fact and conclusions of law
contained in the Administrative Law Judge’s report as if fully rewritten herein.
Ue it is ORDERED that Complaint No. 9491 be DISMISSED this 23 say

tele 2008.

of

(Commissioner 7

NOTICE OF RIGHT TO JUDICIAL REVIEW
Notice is hereby given to all parties herein that Revised Code Section 4112.06
sets forth the right to obtain judicial review of this Order and the mode and procedure

thereof.

CERTIFICATE
I, Desmon Martin, Chief of Compliance, of the Ohio Civil Rights Commission, do
hereby certify that the foregoing is a true and accurate copy of the Final Order issued in

the above-captioned matter and filed with the Commission at its Central Office in

oS y—
“WV

DESMON MARTIN

DIRECTOR OF ENFORCEMENT AND
COMPLIANCE

OHIO CIVIL RIGHTS COMMISSION

DATE: Gas a3, LOOX

Columbus, Ohio.

f:Acivilrts\StefanSchmidt\MuhammadDismissalOrder9-30-08 doc