Larry Frazier v. City of Cincinnati and John Cranley

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
LARRY J. FRAZIER
Complainant
Complaint No. 9498
and 	(CIN) 75120101 (29688) 051302
22A – A2 – 02850
CITY OF CINCINNATI AND
JOHN CRANLEY
Respondent
ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
JIM PETRO
ATTORNEY GENERAL
Duffy Jamieson, Esq. 	Augustine Giglio, Esq.
Deputy Attorney General 	Assistant City Solicitor
Civil Right Section 	City Hall, Room 214
State Office Tower, 15th Floor 	801 Plum Street
30 East Broad Street 	Cincinnati, OH 	45202
Columbus, OH 	43215-3428 	513 – 352 – 3339
614 – 466 – 7900
Counsel for Respondent
Counsel for the Commission
ALJ'S REPORT BY:
Denise M. Johnson
Larry J. Frazier 	Chief Administrative Law Judge
3090 Gilbert Avenue 	Ohio Civil Rights Commission
Cincinnati, OH 	45206 	1111 East Broad Street, Suite 301
Columbus, OH 	43205-1379
Complainant 	614 – 466 – 6684

INTRODUCTION AND PROCEDURAL HISTORY
Larry J. Frazier (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on May 13, 2002.
The Commission investigated the charge and found probable cause
that the City of Cincinnati and John Cranley (Respondents) 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 9, 2003.
The Complaint alleged that Respondent City of Cincinnati discharged
Complainant at the request of Respondent Cranley for reasons not applied
equally to all persons without regard to their race.
1

Respondents filed an Answer to the Complaint on June 5, 2003.
Respondents admitted certain procedural allegations, but denied that it
engaged in any unlawful discriminatory practices. 	Respondents also pled
affirmative defenses.
A public hearing was held November 19, 2003 at the Commission’s
Cincinnati Regional Office.
The 	record 	consists 	of 	the 	previously 	described 	pleadings, 	a
transcript of the hearing consisting of 321 pages, exhibits admitted into
evidence 	during 	the 	hearing, 	and 	the 	post-hearing 	briefs 	filed 	by 	the
Commission on June 18, 2004, by Respondents on July 9, 2004, and the
reply brief filed by the Commission on July 15, 2004.
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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 May 13, 2002.
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2. 	The 	Commission 	determined 	on April 	10, 	2003 	that 	it 	was
probable that Respondents 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. 	Respondent City of Cincinnati is a corporation [or an agency of
a 	political 	subdivision] 	doing 	business 	in 	Ohio 	and 	an 	employer.
Respondent Cranley is an agent of Respondent City of Cincinnati and an
employer.
5. 	Complainant is a black person.
6. 	Respondents first hired Complainant in November 2000 after
Respondent Cranley was appointed to the Cincinnati City Council.
7. 	Complainant had previously been an aide to Todd Portune, a
City 	Council 	member 	who 	was 	elected 	to 	the 	County 	Commission.
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Respondent Cranley was appointed to fill Commissioner Portune’s seat on
the Council.
8. 	Although Respondent Cranley and Commissioner Portune are
members 	of 	the 	Democratic 	Party, 	Commissioner 	Portune 	disliked
Respondent Cranley. 	Commissioner Portune attempted to change the
appointment process in order to allow a Republican to fill the vacant seat.
9. 	When Respondent Cranley hired Complainant he stressed the
importance 	of 	loyalty 	and 	said 	that 	he 	would 	evaluate 	Complainant’s
employment after the next election.
10. 	Under the City Code, Council Members are only allowed to
appoint three full-time staff members and have a limited budget for staff.
11. 	After Respondent Cranley’s election to City Council in 2001, he
terminated Complainant’s employment.
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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 	therein, 	it 	is 	not
credited.1
1. 	The Commission alleged in the Complaint that Respondent City
of 	Cincinnati 	discharged 	Complainant 	at 	the 	request 	of 	Respondent
Cranley for reasons not applied equally to all persons without regard to
their race.
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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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:
(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 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
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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 Respondents to “articulate some legitimate,
nondiscriminatory 	reason” 	for 	their 	employment 	action.2 McDonnell
Douglas, supra at 802, 5 FEP Cases at 969. 	To meet this burden of
production, Respondent must:
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 (10th Cir. 1992) (citations
and footnote omitted).
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. . . “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 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. 	Respondents’ 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.
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8. 	Respondents met their burden of production by articulating that
Complainant was terminated because Respondent Cranley could only have
three full-time staff members. 	Elliot Ruther (Ruther) has been a very close
friend 	of 	Respondent 	Cranley’s 	since 	high 	school 	and 	also 	ran 	his
Congressional campaign. 	Ruther has a degree from St. Louis University
and a great deal of political experience. 	Respondent Cranley’s decision to
hire 	Ruther 	as 	Chief 	of 	Staff 	was 	not 	only 	based 	on 	their 	long-time
friendship, 	but 	the 	determination 	that 	Ruther 	possessed 	writing,
communication, and political skills that were better suited to Respondent
Cranley’s needs than those possessed by Complainant.
9. 	Respondents 	having 	met 	their 	burden 	of 	production, 	the
Commission must prove that Respondents unlawfully discriminated against
Complainant. 	Hicks, supra at 511, 62 FEP Cases at 100. The Commission
must 	show 	by 	a 	preponderance 	of 	the 	evidence 	that 	Respondents’
articulated reason for discharging Complainant 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.
10

[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
Cranley’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 	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 race
discrimination.
11. 	In 	order 	to 	show 	pretext, 	the 	Commission 	may 	directly 	or
indirectly 	challenge 	the 	credibility 	of 	Respondent 	Cranley’s 	articulated
reason 	for 	discharging 	Complainant. 	The 	Commission 	may 	directly
challenge the credibility of Respondent Cranley’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
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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 511, 62 FEP Cases at 100 (emphasis added).
12. 	The Commission may also indirectly challenge the credibility of
Respondent Cranley’s reason 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.
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
511, 62 FEP Cases at 100, n.4.
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13. 	The Commission attempted to show pretext in this case by
alleging disparate treatment. 	Specifically, the Commission alleged that
Respondent 	Cranley 	required 	Complainant 	to 	perform 	duties, 	such 	as
“pass cookies out a council meetings” and “get lunch” for Respondent
Cranley, that the other white employees were not asked to do.
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. 	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
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(N.D. Ohio 1997), quoting Jurrus v. Frank, 932 F.Supp. 988, 995 (N.D.
Ohio 1993).
16. 	Respondents argue that the Commission failed to prove that
Complainant 	was 	treated 	differently 	than 	similarly 	situated 	white
employees. 	This argument is well taken. 	The credible evidence in the
record is that Complainant was asked to perform duties that other white
employees were also asked to perform.
17. 	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.
18. 	The inquiry here is necessarily limited to whether Respondent
Cranley treated Complainant differently because of his race.
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).
14

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).
19. 	The Commission failed to show that Complainant’s discharge
was based on intentional discrimination.
RECOMMENDATION
For 	all 	of 	the 	foregoing 	reasons, 	it 	is 	recommended 	that 	the
Commission issue a Dismissal Order in Complaint No. 9498.
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
March 31, 2005
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