9260•Angela Street-Underwood v. State of Ohio, Dept. of Health
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OHIO CIVIL RIGHTS COMMISSION IN THE MATTER OF: Angela Street-Underwood Complainant Complaint No. 9260 v. (COL) 71100100 (28318) 031401 22A – A1 – 3333 State of Ohio, Department of Health Respondent ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION JIM PETRO JIM PETRO ATTORNEY GENERAL ATTORNEY GENERAL Stefan J. Schmidt, Esq. Nicole S. Moss, Esq. Assistant Attorney General Assistant Attorney General Civil Rights Section Employment Law Section State Office Tower, 15th Floor 150 East Gay Street, 22nd Floor 30 East Broad Street Columbus, OH 43215-3167 Columbus, OH 43215-3428 614 – 644 – 7257 614 – 466 – 7900 Counsel for Respondent Counsel for the Commission Samuel N. Lillard, Esq. Mowery & Youell 425 Metro Place North, Suite 420 Dublin, OH 43017 614 – 764 – 1444 Counsel for Complainant ALJ'S REPORT BY: Denise M. Johnson Angela Street-Underwood Chief Administrative Law Judge 5865 Cummington Court Ohio Civil Rights Commission Columbus, OH 43213 1111 East Broad Street, Suite 301 Columbus, OH 43205-1379 Complainant 614 – 466 – 6684
1 INTRODUCTION AND PROCEDURAL HISTORY Angela Street-Underwood (Complainant) filed a sworn charge affidavit with the Ohio Civil Rights Commission (Commission) on March 14, 2001. The Commission investigated the charge and found probable cause that the State of Ohio, Department of Health (Respondent) engaged in unlawful employment practices in violation of Revised Code Section (R.C.) 4112.02(A). The Commission attempted, but failed to resolve this matter by informal methods of conciliation. The Commission subsequently issued a Complaint on January 31, 2002.1 The Complaint alleged that Respondent subjected Complainant to disparate terms and conditions of employment, and a racially offensive and hostile work environment, for reasons not applied equally to all persons without regard to their race. 1 During 2003 Counsel for the Commission requested three (3) continuances for settlement negotiations, additional time for discovery, and an attempt to mediate.
2 Respondent filed an Answer to the Complaint on March 7, 2002. Respondent admitted certain procedural allegations, but denied that it engaged in any unlawful discriminatory practices. Respondent also pled affirmative defenses. A public hearing was held on May 18-19, 2004 at the Ohio Civil Rights Commission’s Central Office, 1111 East Broad Street, Columbus, Ohio. The record consists of: the previously described pleadings; a transcript of the hearing [611 pages]; exhibits admitted into evidence during the hearing; and the post-hearing briefs and the Commission’s reply: o filed by the Commission on March 30, 2005; o filed by Respondent on May 20, 2005; and o filed by the Commission on June 13, 2005.
3 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 March 14, 2001. 2. The Commission determined on January 20, 2002 that it was probable that Respondent engaged in unlawful discrimination in violation of R.C. 4112.02(A).
4 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 corporation [a political subdivision of the State of Ohio] doing business in Ohio and an employer. 5. Complainant is African-American. 6. In 1987, Complainant began her employment with Respondent in the Division of Prevention in the Bureau of Infectious Disease Control. 7. In 1997, Complainant became the supervisor for the HIV Unit of the HIV/STD Prevention Program (HIV/STD) within the organization. 8. In March of 2001, the immediate supervisor over the HIV/STD was Juliet Dorris-Williams (Dorris-Williams), African-American. 9. Dorris-Williams’ immediate supervisor was the Bureau Chief for the Bureau of Infectious Diseases, Barbara Bradley (Bradley), Caucasian.
5 10. In March 2000, Bradley was hired by and reported directly to Deputy Director Deborah Arms (Arms), Caucasian. 11. When Arms hired Bradley, Arms communicated to her that Bradley’s primary goal was to reorganize the HIV/STD so that the local health district offices provide direct services and the role of the state office was to facilitate that effort. 12. As a result of the evaluation process of the HIV/STD, Bradley concluded that Complainant was performing duties that were outside the scope of her job that Dorris-Williams should have been performing. 13. As the HIV/STD Manager, Complainant was performing the following duties: supervising the staff, including oversight of time and attendance; program development; implementation of strategic planning; grant management; developing and writing portions of the grants for the State of Ohio; and fiscal responsibilities, including moving funds, notice of awards, budget revisions, and allocations.
6 14. In carrying out her directive from Arms, Bradley expected to have full cooperation from her direct reports in evaluating the current state of the HIV/STD. 15. Bradley believed that Complainant was not communicative in regard to how Complainant was performing her job. 16. From 1995 through 1999 Complainant received very good performance evaluations. 17. Bradley gave Complainant a 2002 performance evaluation of two “poors” and one “meets”. Complainant appealed Bradley’s evaluation and eventually received two “meets” and one “poor”. 18. Bradley required Complainant to meet with her on a daily basis where she asked Complainant to explain what she was doing, why she was doing it, and how long it was taking.2 2 As a result of her evaluation and oversight of Complainant’s job performance and Complainant’s lack of communication with Bradley about how she was managing her area of responsibility, Bradley requested that Complainant and Dorris-Williams meet with her on a daily basis, starting on or around January 31, 2001.
7 19. Bradley also took away many of the job duties Complainant had been performing for years. 20. Bradley changed the flex-time policy for the HIV/STD so employees could no longer work four ten-hour days. 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.3 1. The Commission alleged in the Complaint that Respondent subjected Complainant to disparate terms and conditions of employment,
8 and a racially offensive hostile work environment, for reasons not applied equally to all persons without regard to their race. 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). 3 Any Finding of Fact may be deemed a Conclusion of Law, and any Conclusion of Law may be deemed a Finding of Fact.
9 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 burden of establishing a prima facie case is not onerous. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 25 FEP Cases 113, 115 (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 254, 25 FEP Cases at 116, 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 at 969, n.13. In this case, the Commission may establish a prima facie case of race discrimination by proving that: (1) Complainant is a member of a protected class; and (2) Respondent treated Complainant differently from similarly situated non-minority employees for the same or similar conduct. Hollins v. Atlantic Co., Inc., 80 FEP Cases 835 (6th Cir. 1999). 7. The Commission having established a prima facie case of race discrimination, the burden of production shifted to Respondent
10 to “articulate some legitimate, nondiscriminatory reason(s)” for the employment action.4 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 created by the establishment of a prima facie case “drops out of the picture” when the employer articulates a legitimate, nondiscriminatory reasons for the employment action. Hicks, supra at 511, 62 FEP Cases at 100. 4 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 treatment of the complainant; 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 non- discriminatory fashion. EEOC v. Flasher Co., 60 FEP Cases 814, 817 (10th Cir. 1992) (citations and footnote omitted).
11 8. Respondent met its burden of production with the introduction of evidence that two months after Bradley took on her new duties she began to notice problems with Complainant’s performance and felt that Complainant was performing duties which were outside of her position description. 9. Specifically, in regard to performance issues, Respondent introduced evidence regarding Complainant’s handling of a purchase order for 200 bags on wheels, a gift for volunteers that Bradley deemed extravagant ($10,000, plus the cost of shipping). 10. After negotiation, the amount was reduced. Complainant ordered additional logo bags with the remaining balance of the $10,000 purchase order. The bags were ordered on Complainant’s verbal authorization without first getting Bradley’s signature on the purchase order. 11. Complainant also had problems with tardiness. (Tr. 55) 12. Respondent having met its burden of production, the Commission must prove that Respondent unlawfully discriminated against Complainant because of race. Hicks, supra at 511, 62 FEP
12 Cases at 100. The Commission must show by a preponderance of the evidence that Respondent’s articulated reasons for Complainant’s difference in treatment were not the true reasons, but were “a pretext for discrimination.” Id., at 515, 62 FEP Cases at 102, quoting Burdine, supra at 253, 25 FEP Cases at 115. [A] reason cannot be proved to be a “pretext for 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. 13. 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 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. 14. In order to show pretext, the Commission may directly or indirectly challenge the credibility of Respondent’s articulated reasons for
13 reducing Complainant’s job responsibilities. 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 (6th 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. 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). 15. The Commission may indirectly challenge the credibility of Respondent’s reasons by showing that the sheer weight of the circumstantial evidence makes it “more likely than not” that the reasons are a pretext for unlawful discrimination. Manzer, supra at 1084. This type of showing, which tends to prove that the reasons did not actually motivate the employment decision, requires the Commission produce 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 at 511, 62 FEP Cases at 100, n.4.
14 additional evidence of unlawful discrimination besides evidence that is part of the prima facie case. Id. 16. The Commission attempted to show pretext in this case by alleging disparate treatment. 17. 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). 18. 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
15 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). 19. Respondent argues that the Commission failed to prove that Complainant was treated differently than similarly situated Caucasian employees. This argument is well taken. The record is void of credible evidence that there were Caucasian employees who were under the supervision of Bradley that were similar to Complainant in regard to the reasons articulated by Respondent. 20. The Commission cannot prove pretext through disparate treatment without evidence that a similarly situated comparative was treated more favorably than Complainant. 21. Although a manager change is not a complete defense to a disparate treatment claim, it can suggest legitimate, nondiscriminatory
16 reasons for the difference in treatment. Cooper v. City of North Olmstead, 795 F.2d 1265, 1271 (6th Cir. 1986). 22. Once Bradley took her position in management, she followed the directive of Arms to evaluate the existing programs and make changes where necessary. Bradley needed to have the cooperation and support of her management team. 23. A reasonable inference can be drawn from the testimony that Complainant was not comfortable with Bradley’s management style. Under Dorris-Williams she had a great deal of latitude to perform her job without much oversight. Bradley had a different management style; she expected communication and cooperation from Complainant. I do not believe that Bradley’s actions toward Complainant were based on discriminatory animus. 24. The Commission attempted to introduce evidence that Bradley made a remark which can be construed as racist, and therefore created a hostile work environment. 25. In order to demonstrate that Complainant was subjected to a hostile work environment the Commission must show: (1) Complainant is a member of a protected class;
17 (2) She was harassed; (3) The harassment was based on race; (4) The harassment unreasonably interfered with her work performance or created a hostile work environment that was severe and pervasive. Williams v. General Motors Corp., 187 F. 3d 553, 560 (6th Cir. 1999). To determine if a work environment is objectively hostile, we look at the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. Valentine v. Roche, 386 F. 3d 800, 814 (6th Cir. 2004) quoting Burnett v. Tyco Corp., 203 F. 3d 980, 982 (6th Cir. 2000). 26. The comment, “You people are always lying to me” was made by Bradley on two occasions: once to Complainant and Dorris-Williams in the context of investigating the bag incident, and several months later to Complainant, Dorris-Williams and a Caucasian female. 27. The comment made by Bradley could fall into the category of an offensive utterance that could be perceived as negative stereotyping.
18 28. However, the comment fails to meet the severe and pervasive standard that would have unreasonably interfered with Complainant’s work performance. RECOMMENDATION For all of the foregoing reasons, it is recommended that the Commission issue a Dismissal Order in Complaint No. 9260. DENISE M. JOHNSON CHIEF ADMINISTRATIVE LAW JUDGE December 19, 2006
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