Josiah Johnson v. The Cincinnati Hotel

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
JOSIAH JOHNSON
Complainant
Complaint No. 9180
and 	(CIN) 75092900 (28680) 102700
22A – A1 – 1537
THE CINCINNATIAN HOTEL
Respondent
ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
JIM PETRO
ATTORNEY GENERAL
Stefan J. Schmidt, Esq. 	David K. Montgomery, Esq.
Assistant Attorney General 	Keating, Muething & Klekamp
Civil Right Section 	1400 Provident Tower
State Office Tower, 15th Floor 	One East 4th Street
30 East Broad Street 	Cincinnati, OH 	45202
Columbus, OH 	43215-3428 	513 – 579 – 6400
614 – 466 – 7900
Counsel for Respondent
Counsel for the Commission
ALJ'S REPORT BY:
Denise M. Johnson
Josiah Johnson 	Chief Administrative Law Judge
2535 Moorman Street 	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
Josiah Johnson (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on October 27, 2000.
The Commission investigated the charge and found probable cause
that The Cincinnatian Hotel (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 October 18, 2001.
The Complaint alleged that Respondent subjected Complainant to
close scrutiny and discharged him in retaliation for filing a previous charge
against Respondent.
Respondent filed an Answer to the Complaint on November 14, 2001.
Respondent 	admitted 	certain 	procedural 	allegations, 	but 	denied 	that 	it
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engaged 	in 	any 	unlawful 	retaliatory 	practices. 	Respondent 	also 	pled
affirmative defenses.
A public hearing was held on August 14, 2003 at the Ohio Civil Rights
Commission’s Cincinnati Regional Office.
The 	record 	consists 	of 	the 	previously 	described 	pleadings, 	a
transcript of the hearing consisting of 273 pages, exhibits admitted into
evidence 	during 	the 	hearing, 	and 	the 	post-hearing 	briefs 	filed 	by 	the
Commission on November 7, 2003, by Respondent on November 28, 2003,
and a reply brief filed by the Commission on December 8, 2003.
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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 October 27, 2000.
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2. 	The Commission determined on September 27, 2001 that it
was probable that Respondent engaged in unlawful retaliation in violation
of R.C. 4112.02(I).
3. 	The Commission attempted to resolve this matter by informal
methods 	of 	conciliation. 	The 	Commission 	issued 	the 	Complaint 	after
conciliation failed.
4. 	Complainant 	was 	first 	employed 	by 	Respondent 	as 	a
houseman in the housekeeping department on July 26, 1999. 	Shortly
thereafter he was promoted to the position of bellman in the “front of the
house.”
5. 	As a bellman, Complainant’s job duties involved direct guest
contact by assisting them in regard to their rooms after they checked in and
being available to guests for anything they might need during their stay at
the hotel.
6. 	Complainant was upset because he had not been put on the
work schedule after he had taken time off due to his father’s death.
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7. 	Complainant attempted to talk to Teresa Mumford, his direct
supervisor, regarding why he was not placed on the work schedule. 	He
submitted a letter of resignation but later stated that he wanted to retract
the letter because all he wanted to do was talk to management regarding
his complaint about his hours.
8. 	Respondent refused to let Complainant rescind his resignation.
9. 	On 	April 	5, 	2000, 	Complainant 	was 	terminated 	from 	his
employment.
10. 	On 	April 	13, 	2000, 	Complainant 	filed 	a 	race 	discrimination
charge with the Commission against Respondent.
11. 	Respondent rehired Complainant on May 6, 2000 because he
was a good employee who was excellent with the guests.
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12. 	As 	a 	bellman, 	Complainant 	was 	one 	of 	several 	tipped
employees on the front drive. 	Respondent had a policy, or a “gentlemen’s
agreement”, 	regarding 	how 	tips 	were 	to 	be 	split 	amongst 	front-drive
employees.
13. 	Drew 	Hyder 	and 	Phillip 	Bottom, 	both 	tipped 	employees,
complained to management that Complainant was not properly splitting his
tips.
14. 	Respondent terminated Complainant on September 29, 2000,
after an investigation revealed that he did not split his tips properly on two
separate occasions.
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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
subjected Complainant to close scrutiny and discharged him in retaliation
for filing a previous charge against Respondent.
2. 	This allegation, if proven, would constitute a violation of R.C.
4112.02, which provides, in pertinent part, that:
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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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).
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
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framework normally requires the Commission to prove a prima facie case
of unlawful retaliation by a preponderance of the evidence. 	The proof
required to establish a prima facie case may vary on a case-by-case basis.
McDonnell 	Douglas, 	supra 	at 	802, 	5 	FEP 	Cases 	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 to “articulate some legitimate,
nondiscriminatory 	reason” 	for 	the 	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. 	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.
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8. 	Respondent met its burden of production with the introduction
of 	evidence 	to 	support 	that 	Complainant 	was 	terminated 	because 	he
violated the tipping policy which was a breach of trust and dishonesty.
9. 	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.
10. 	The 	Commission 	must 	show 	by 	a 	preponderance 	of 	the
evidence that Respondent’s articulated reason for Complainant’s discharge
was not the true reason, but was “a pretext for . . . [unlawful retaliation].”
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 [unlawful
retaliation]” unless it is shown both that the reason is false, and
that . . . [unlawful retaliation] is the real reason.
Hicks, supra at 515, 62 FEP Cases at 102.
11. 	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:
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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 	a 	question 	for 	the 	factfinder 	to
answer . . . .
Id., at 524, 62 FEP Cases at 106.
12. 	Ultimately, the Commission must provide sufficient evidence for
the fact-finder to infer that Complainant was, more likely than not, the victim
of unlawful retaliation.
Close timing between an employee’s protected activity and an
adverse action against him may provide the “causal connection”
required 	to 	make 	out 	a 	prima 	facie 	case 	of 	retaliation.
However, once the employer offers a legitimate, nondiscrim-
inatory reason that explains both the adverse action and the
timing, the plaintiff must offer some evidence from which the
jury may infer that retaliation was the real motive.
Swanson v. GSA, 75 FEP Cases 483, 490 (5th Cir. 1997)
(citations and quotation within a quotation omitted).
13. 	The Commission attempted to show pretext in this case by
alleging disparate treatment. 	Specifically, the Commission alleged that
Duane Bryson, a doorman and front-drive employee who had not engaged
in protected activity, did not properly split tips and was neither terminated
nor disciplined.
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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 . . . 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).
15. 	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).
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16. 	Respondent 	stated 	that 	Duane 	Bryson 	was 	not 	terminated
because he was honest regarding his withholding of tips. 	He believed that
the tip sharing agreement was a violation of the wage and hour laws and
communicated that to management when confronted. 	Additionally, he
offered to pay back tips that he withheld. 	Complainant, on the other hand,
denied that he had withheld tips.
17. 	Denise Vandersall, Respondent’s general manager, stated that
the reason that Complainant was terminated was that honesty and trust is
paramount when there is a gentlemen’s agreement to share tips with
coworkers.
18. 	The 	ALJ 	credited 	this 	testimony 	by 	Respondent 	and 	the
Commission failed to prove that the articulated reason was a pretext for
unlawful retaliation.
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RECOMMENDATION
For 	all 	of 	the 	foregoing 	reasons, 	it 	is 	recommended 	that 	the
Commission issue a Dismissal Order in Complaint No. 9180.
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
March 31, 2005
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