Vaughn George v. State of Ohio, Dept. of Rehab & Correction, Orient Correctional

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
VAUGHN D. GEORGE
Complainant 	Complaint #8633
(COL) 71091298 (26096) 100198
and 	22A-99-3003
STATE OF OHIO,
DEPARTMENT OF REHAB & CORRECTION,
ORIENT CORRECTIONAL INSTITUTION
Respondent
HEARING EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
BETTY D. MONTGOMERY 	BETTY D. MONTGOMERY
ATTORNEY GENERAL 	ATTORNEY GENERAL
Patrick M. Dull, Esq. 	Winston M. Ford, Esq.
Assistant Attorney General 	Assistant Attorney General
Civil Rights Section 	Employment Law Section
State Office Tower, 15th Floor 	140 East Town Street, 14th Floor
30 East Broad Street 	Columbus, OH 	43215-6001
Columbus, OH 	43215-3428 	(614) 644-7257
(614) 466-7900
Counsel for Respondent
Counsel for the Commission
HEARING EXAMINER'S REPORT BY:
Franklin A. Martens, Esq.
Vaughn D. George 	Chief Hearing Examiner
813 Stewart Avenue 	Ohio Civil Rights Commission
Columbus, OH 	43206 	1111 East Broad Street, Suite 301
Columbus, OH 	43205-1379
Complainant 	(614) 466-6684

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INTRODUCTION AND PROCEDURAL HISTORY
Vaughn D. George (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on October 1, 1998.
The Commission investigated the charge and found probable cause that
State 	of 	Ohio, 	Department 	of 	Rehabilitation 	and 	Correction, 	Orient
Correctional Institution (Respondent) engaged in unlawful discrimination in
violation of Revised Code § (R.C.) 4112.02(A) and (I).
The Commission attempted, but failed to resolve this matter by informal
methods of conciliation. The Commission subsequently issued a Complaint
on September 16, 1999. 	The Complaint alleged that Complainant was
disciplined more harshly than coworkers because of his race and in retaliation
for filing a previous charge of discrimination against Respondent.
Respondent filed a timely Answer to the complaint, admitting certain
procedural 	allegations 	but 	denying 	that 	it 	engaged 	in 	any 	unlawful
discriminatory practices.

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A public hearing was held on March 30, 2000 at the Orient Correctional
Institution.
The record consists of the previously described pleadings; the transcript
consisting of 203 pages of testimony; exhibits admitted into evidence at the
hearing; the deposition transcript of Harry Kevin Williamson, consisting of 32
pages; and the post-hearing briefs filed by the Commission on May 19, 2000
and by Respondent on May 22, 2000.
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
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

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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 1, 1998.
2. The Commission determined on August 19, 1999 that it was probable
that Respondent engaged in unlawful discrimination in violation of R.C.
4112.02(A) and (I).
3. 	The Commission attempted to resolve this matter by informal
methods 	of 	conciliation. 	The 	Commission 	issued 	the 	Complaint 	after
conciliation failed.
4. 	Respondent is an agency of the State of Ohio and an employer.

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5. 	Complainant is a black person. 	Complainant is employed by
Respondent as a corrections officer. 	On February 12, 1998, Complainant
filed a charge of discrimination against Respondent.
6. 	On August 30, 1998, Complainant noticed that one of the cars
parked in the Respondent’s parking lot had a license plate holder which
depicted a Confederate flag. 	Complainant was upset about this and reported
it to Captain Danny Morris, Caucasian. 	The next day Complainant was
involved in an incident with a coworker, Shane Sprague, who had driven the
vehicle with the Confederate flag to work. 	They exchanged words. 	Later
that day Sprague called Complainant and asked him if this was something
they were going to have to pursue after work. (Tr. 146) Complainant reported
the conversation to Captain Morris who convened an informal meeting to
resolve the incident.1 The meeting was attended by Complainant, Sprague,
Captain Lopez, Captain Frye, 	and 	Correctional Officer Williamson, who
represented the Union. Captain Lopez, Captain Frye, and Williamson were
present as observers. (Dep. 17)
1 The purpose of an informal meeting is to resolve matters without paperwork.

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7. 	During the meeting, both Complainant’s comments to Sprague and
Sprague’s comments to Complainant was discussed. Captain Morris asked
both of them if there were going to be any further problems between them.
Both said there would not be any problems. 	(Dep.Ex. 5)
8. On September 11, 1998, Complainant was assigned to provide
security in a construction area in the Four-E dormitory. 	Complainant was
responsible for maintaining security and ensuring that unauthorized inmates
did not enter the area. 	At approximately 9:20 a.m., Complainant was
observed by James Riffle, maintenance supervisor, playing cards with an
inmate who was not authorized to be in the area. 	(Tr. 155, Resp.Ex. U) He
reported the incident to his supervisor and, subsequently, prepared an
incident report.
9. 	Riffle’s observations were reported to Captain Lopez. 	Lopez and
Officer Mallow immediately went to the area. 	Captain Lopez observed
Complainant facing the inmate and dealing cards on the table between them.
(Tr. 	170-71, 	Resp.Ex. 	W) 	Officer 	Mallow, 	who 	was 	directly 	behind
Complainant, did not see him holding cards. 	She saw the inmate holding

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cards. 	Subsequently, she reported that it “appeared” Complainant was
playing cards. 	(Resp.Ex. X) 	Captain Lopez relieved Complainant from duty
in the construction area.
10. 	Shortly thereafter, Complainant returned to the construction area
and confronted Riffle. 	He walked toward him and said, “How ya doin’?”
Riffle backed away from him. 	Complainant 	began 	looking 	over 	his
shoulder and repeated the phrase “How ya doin’?” several times in a raised
voice. Complainant asked Riffle why he was backing up and Riffle asked
Complainant why he was getting in his face. 	Riffle asked Complainant what
he wanted and Complainant replied, “I want to talk.” 	Riffle told Complainant
he had to go outside to talk to another correctional officer. 	Complainant
replied, “Yeah, and that’s where I’ll get you, too.” 	Riffle immediately went to
Captain Lopez’s office and wrote another incident report. 	(Tr. 157, Resp.Ex.
Y) 	In the report he stated Complainant had threatened him with physical
harm.2
2 Complainant had a different version of the conversation. He testified that he said,
“Well, I’ll get you outside then.” 	(Tr. 93) 	He also testified that he said, “I’ll tell you what –
I’ll get you later on then.” 	(Tr. 36)

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11. 	Complainant was charged with violating three of Respondent’s
Rules of Conduct:
#8 	Failure to carry out a work assignment or the exercise of
poor judgment in carrying out an assignment;
#11 	Inattention to duty; and
#18 	Threatening, intimidating or coercing another employee or a
member of the general public
(Resp.Ex. FF)
12. 	Pursuant to the Collective Bargaining Agreement, Complainant was
given the opportunity to participate in a pre-disciplinary hearing. 	The pre-
disciplinary hearing was held on November 9, 1998. 	Complainant was
present and represented by his union representative. 	The Hearing Officer
found that Complainant violated the three disciplinary rules in that he was
playing cards with an inmate, the inmate was not authorized to be in the area,
and 	Complainant 	intimidated 	another 	employee 	by 	making 	threatening
statements. (Resp.Ex. HH) 	Complainant was suspended for ten days.

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Subsequently, as part of the grievance process, the suspension was reduced
to eight days.3
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.4
3 The suspension was reduced to eight days because it was determined that
Complainant did not violate Rule #8. 	(Tr. 41)
4 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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1. 	The Commission alleged in the Complaint that Complainant was
suspended because of his race and in retaliation for filing a previous charge of
discrimination.
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, . . . 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;
and
(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).

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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).
RACE DISCRIMINATION ALLEGATION
5. 	Normally, the Commission is required to first 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 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 an rebuttable presumption of unlawful discrimination.
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 25 FEP Cases
113 (1981).
6. If the Commission establishes a 	prima facie 	case, the burden
of production 	shifts 	to 	Respondent 	to 	“articulate 	some 	legitimate,

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nondiscriminatory 	reason” 	for 	the 	employment 	action.5 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 reason for the employment action. 	Hicks, supra at 511, 62
FEP Cases at 100.
5 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 . . . [suspending 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
nondiscriminatory fashion.
EEOC v. Flasher Co., 60 FEP Cases 814, 817 (10th Cir. 1992) (citations and
footnote omitted).

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7. 	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 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.
8. 	Respondent met its burden of production through testimony and
documentary evidence. Complainant was suspended for eight days because
he was observed playing cards with an inmate and because he threatened a
coworker.
9. 	Respondent having met its burden of production, the Commission
must prove that Respondent unlawfully discriminated against Complainant
because of his race. 	Hicks, supra at 511, 62 FEP Cases at 100. 	The

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Commission 	must 	show 	by 	a 	preponderance 	of 	the 	evidence 	that
Respondent’s articulated reasons for suspending Complainant 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.
10. Thus, even if the Commission proves that Respondent’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 factfinder
to infer that Complainant was, more likely than not, the victim of race
discrimination.

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11. 	In order to show pretext, the Commission may directly or indirectly
challenge the credibility of Respondent’s articulated reason for suspending
Complainant. 	The Commission may directly challenge the credibility of
Respondent’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 (6th Cir. 1994). 	Such
direct 	attacks, 	if 	successful, 	permit 	the 	factfinder 	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.6
Hicks, supra at 511, 62 FEP Cases at 100.
12. 	In its brief the Commission challenged the credibility of the
determination 	that 	Complainant 	was 	playing 	cards 	with 	an 	inmate.
Complainant testified he was not playing cards with the inmate. 	The inmate
6 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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(who did not testify at the hearing) claimed he and Complainant were not
playing cards. Captain Lopez, who witnessed the 	incident, 	stated 	that
Complainant 	was 	playing 	cards 	with 	the 	inmate. Officer Mallow, who
accompanied Captain Lopez, stated she was not able to see whether
Complainant 	was 	holding 	any 	cards. 	However, 	James 	Riffle, 	the
maintenance supervisor, testified credibly that he observed Complainant and
the inmate playing cards. 	(Tr. 155) 	The Commission did not challenge
Riffle’s credibility. 	He was a disinterested witness and had no reason to
fabricate his testimony. 	This evidence supports Respondent’s version of the
card playing incident.
13. The appointing authority also chose to believe Riffle’s and Lopez’s
version of the events instead of Complainant’s version. 	Even if Lopez and
Riffle were mistaken about what they saw, their mistaken belief does not
equate 	to 	intentional 	race 	discrimination. 	See 	Fleur 	v. 	Westbridge
Consultants, 71 FEP Cases 485, 489 (D.C. E.Texas 1994) (“discriminatory
intent is not shown by the fact that the employer terminated the employee
because of a mistaken belief about the employee”); Finch v. Hercules, Inc., 74

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FEP Cases 1571 (D.C. Del. 1994) (the “mistake” must not have been so
unreasonable as to be pretextual).
The law is clear that, even if a Title VII claimant did not in fact
commit the violation with which he is charged, an employer
successfully rebuts any prima facie case of disparate treatment by
showing that it honestly believed the employee committed the
violation.
Jones v. Gerwins, 50 FEP Cases 163, 169 (11th Cir. 1989).
14. 	Based on foregoing discussion, the facts surrounding the card
playing incident lack the “suspicion of mendacity” that is mentioned in the
Hicks case. 	Hicks, supra at 511, 62 FEP Cases at 100.
15. The Commission also challenged Respondent’s decision to formally
discipline Complainant for threatening James Riffle instead of handling the
matter informally, as was done with the incident involving the Confederate
flag. 	The Commission attempts to compare the two incidents to show pretext.
The incidents are not comparable. 	Complainant and Sprague were not
similarly situated:

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. . . [T]o 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. The incidents are not comparable because each incident was dealt
with by a different supervisor. 	Captain Morris made all of the decisions
surrounding the Confederate flag incident. 	Captain Lopez made all of the
decisions about how the card playing and threat incidents were to be handled.
See Jones, supra at 168 (“Courts have held that disciplinary measures
undertaken by different supervisors may not be comparable for Title VII
analysis”).
17. 	Furthermore, the difference in the way the two incidents were
handled was probably based on the circumstances surrounding each incident.
Under the circumstances, Morris’ approach was reasonable. Likewise, Lopez
was not in a position to deal with Complainant’s multiple rule infractions in an
informal manner. 	They were too serious to be dealt with informally.

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18. 	Since the Commission could not prove that Complainant’s race
was 	a 	motivating 	factor 	in 	the 	decision 	to 	discipline 	him, 	the 	race
discrimination allegation in the Complaint cannot be sustained.
RETALIATION CLAIM
19. 	The Complaint also alleged that Complainant was disciplined in
retaliation for filing a charge of discrimination. 	In order to sustain its burden
of proof, the Commission must prove a prima facie case. 	A prima facie case
may be established 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
(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),
affirming in part and reversing in part, 76 FEP Cases 533 (N.D.
Ohio 1997) (quotation marks omitted).

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20. 	The Commission proved the first element and the third element, but
there was no proof to support the second element or the fourth element. 	The
alleged retaliator in this case is Captain Lopez. 	The Commission’s argument
that Warden Lazaroff knew about Complainant’s 1998 charge does not prove
that Captain Lopez knew about it.
21. 	The Commission was also unable to establish a causal connection
between the protected activity and the adverse employment action. 	In its
brief, the Commission offered no arguments that related to the fourth element
of the prima facie case. (Comm.Br. 14) 	An examination of the record reveals
that there was no evidence that could be offered.
22. 	Since the Commission was unable to prove that Respondent
suspended Complainant for eight days because Complainant filed a previous
charge of discrimination, the retaliation allegation in the Complaint cannot be
sustained.

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RECOMMENDATION
For all the foregoing reasons, it is recommended that the Commission
issue a Dismissal Order in Complaint #8633.
FRANKLIN A. MARTENS
CHIEF HEARING EXAMINER
September 12, 2000