Tamara Morris v. CMACAO

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
TAMARA MORRIS
Complainant
Complaint No. 9605
and 	(COL) B1012203 (30138) 022103
22A – A3 – 01661
COLUMBUS METROPOLITAN
AREA COMMUNITY ACTION
ORGANIZATION (CMACAO)
Respondent
ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATIONS
JIM PETRO
ATTORNEY GENERAL
Patrick M. Dull, Esq. 	Dwight A. Washington, Esq.
Associate Attorney General 	Washington & Hollingsworth
Civil Rights Section 	4 South Main Street
State Office Tower, 15th Floor 	Wright Stop Plaza, Suite 1200
30 East Broad Street 	Dayton, OH 	45402-2009
Columbus, OH 	43215-3428 	937 – 496 – 1450
614 – 466 – 7900
Counsel for Respondent
Counsel for the Commission
Diane Einstein, Esq. 	Tamara Morris
Mowery & Youell 	1025 Bulen Avenue
425 Metro Place North, Suite 420 	Columbus, OH 	43206
Dublin, OH 	43017
614 – 764 – 1444 	Complainant
Counsel for Complainant
ALJ'S REPORT BY:
Denise M. Johnson
CMACAO 	Chief Administrative Law Judge
700 Bryden Road 	Ohio Civil Rights Commission
Columbus, OH 	43215-4839 	1111 East Broad Street, Suite 301
Columbus, OH 	43205-1379
Complainant 	614 – 466 – 6684

INTRODUCTION AND PROCEDURAL HISTORY
Tamara Morris (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on February 21, 2003.
The Commission investigated the charge and found probable cause
that 	Columbus 	Metropolitan 	Area 	Community 	Action 	Organization
(CMACAO) (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 8, 2004.
The Complaint alleged that Respondent terminated Complainant, and
otherwise failed and refused to reasonably accommodate her, because of
her participation in a drug program.
1

Respondent filed an Answer to the Complaint on February 9, 2004.
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 at the Ohio Civil Rights Commission,
Central Office, 1111 East Broad Street, Columbus, Ohio on August 19,
2004.
The 	record 	consists 	of 	the 	previously 	described 	pleadings, 	a
transcript of the hearing (116 pages), exhibits admitted into evidence during
the 	hearing, 	and 	the 	post-hearing 	briefs 	filed 	by 	the 	Commission on
March 16, 2005, by Respondent on April 8, 2005, and the Commission’s
reply brief filed on April 14, 2005.
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 February 21, 2003.
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2. 	The Commission determined on December 11, 2003 that it was
probable that Respondent 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 became affiliated with Respondent as a parent.
Her 	son 	was 	in 	the 	Head 	Start 	Program. 	Complainant 	became 	an
Assistant Teacher in August 1990.
5. 	Complainant held a number of other positions with Respondent.
Her last position was Operations Manager, which she started on July 2,
2002.1
6. 	Complainant’s 	duties 	as 	Operations 	Manager 	were: 	(1) 	to
directly supervise the Family and Service Advocates or social workers, (2)
be able to take charge of a district during the District Director’s absence, (3)
1 Teacher (1995), Center Manager (1998).
4

oversee maintenance and supplies for the centers, and (4) ensure that the
centers were filled with eligible children pursuant to federal guidelines.2
7. 	Complainant has been addicted to crack cocaine since the
early 1990s.3
8. 	She describes herself as being able to abstain from drug use
for two years, then relapsing one or two days after which she is able to
abstain until the next relapse.
9. 	During her employment with Respondent Complainant relapsed
and sought treatment for her addiction on three separate occasions.4
10. 	Complainant has never been disciplined for any performance-
related reasons during her tenure of employment with Respondent.
2 Federal 	guidelines 	required 	that 	Head 	Start 	must 	have 	85% 	or 	above
attendance from children in order to stay federally funded. 	(Tr. 18)
3 Complainant was unable to give an exact date but was able to approximate
that it would have been when she was an Assistant Teacher for Respondent, sometime
between 1990-1992. 	(Tr. 24)
4 Maryhaven (once) and OSU East (twice). 	Both offer medically-supervised
treatment programs. 	(Tr. 24)
5

11. 	Sometime during the weekend prior to Monday, January 6,
2003, Complainant was under the influence. 	She relapsed by smoking
crack cocaine. 	She did not come to work on that Monday or call to say
she would not be in that day; she also did not come to work or call on
January 7 or January 8.
12. 	On January 9, 2003, Complainant voluntarily went to OSU East
Hospital, Talbot Hall, a detoxification intensive patient program supervised
by medical staff.
13. 	That same day Complainant called her supervisor, Maria Kee
(Kee),5 and left a message on her voicemail telling her that she was
entering OSU East Hospital.6 Complainant did not give an explanation as
to why she had entered the hospital.
14. 	Kee attempted to call Complainant at OSU East. 	When she
called she was told that Complainant was not a patient.
5 Complainant 	reported 	to 	Maria 	Kee, 	one 	of 	three 	District 	Directors 	for
Respondent.
6 Kee had attempted to contact Complainant prior to January 9, 2003.
6

15. 	When Complainant finally talked to Kee on January 9, 2003,
she told Kee that she had relapsed and the reason that she could not be
reached was the program does not divulge the name of patients unless the
patient signs a waiver.
16. 	Kee instructed Complainant to fill out FMLA paperwork. 	One
of Complainant’s friends picked up the papers and delivered them to the
hospital.
17. 	Complainant was released on Tuesday, January 14, 2003 and
returned to work on, Wednesday, January 15, 2003.
18. 	On, Tuesday, January 21, 2003, Kee told Complainant that
Sharon Harrison, H.R. professional, said that Complainant had violated
Respondent’s substance abuse policy.
19. 	On Wednesday, January 22, 2003, Complainant was given
notice of Respondent’s recommendation to terminate her. 	Although she
was 	asked 	to 	clean 	out 	her 	personal 	belongings 	from 	her 	work area
and 	leave 	the 	work 	premises, 	she 	was 	not 	formally 	discharged 	until
7

February 18, 2003, when Respondent’s Policy Council voted to approve
the termination recommendation.
20. 	In the letter from Kee to Complainant, she emphasized that
“employees who first violate this Substance-Free Workplace Program and
then seek voluntary assistance will not avoid corrective action, up to and
including termination.” 	(Comm.Ex. 5)
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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.7
1. 	The Commission alleged in the Complaint that Respondent
terminated Complainant, and otherwise failed and refused to reasonably
accommodate her, because of her participation in a drug program.
7 Any Finding of Fact may be deemed a Conclusion of Law, and any Conclusion
of Law may be deemed a Finding of Fact.
9

2. 	These allegations, if proven, would constitute violations of R.C.
Chapter 	4112 	and 	the 	Commission’s 	rules 	embodied 	in 	the 	Ohio
Administrative Code (O.A.C.). 	R.C. 4112.02 provides, in pertinent part,
that:
It shall be an unlawful discriminatory practice:
(A) 	For any employer, because of the . . . disability, . . . 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’s rules require an employer to reasonably
accommodate an employee’s disability unless the employer demonstrates
that 	such 	accommodation 	would 	impose 	an 	undue 	hardship 	on 	the
employer’s business. 	O.A.C. 4112-5-08(E)(1).
4. 	Under 	Ohio 	law, 	drug 	addiction 	is 	a 	recognized 	disability.
R.C. 4112.01(A)(16)(iii). 	However, employees who are current users are
not protected. 	R.C. 4112.02 (Q)(1)(a).
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5. 	Although 	current 	users 	are 	not 	protected, 	employees 	with
addictions to drugs and alcohol who are past users are protected from
adverse employment decisions under what is referred to as the “safe
harbor” provision:
(i) 	The 	employee, 	. 	. 	. 	has 	successfully 	completed 	a
supervised drug rehabilitation program and no longer is
engaging in the illegal use of a controlled substance, . . .
(ii) 	The employee, . . . is participating in a supervised drug
rehabilitation program and no longer is engaging in the
illegal use of a controlled substance.
(iii) 	The employee, . . . is erroneously regarded as engaging
in the illegal use of a controlled substance, . . . .
R.C. 4112.02(Q)(b).
6. 	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).
7. 	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 the
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Americans with Disabilities Act of 1990 (ADA) or the Rehabilitation Act of
1973.
8. 	The order of proof in a disability discrimination case requires
the Commission to first establish a prima facie case. 	The Commission has
the burden of proving:
(1) 	Complainant was disabled under R.C. 4112.01(A)(13);
(2) 	Complainant, 	though 	disabled, 	could 	safely 	and
substantially perform the essential functions of the job in
question, with or without reasonable accommodation; and
(3) 	Respondent 	took 	the 	alleged 	unlawful 	discriminatory
action, 	at 	least 	in 	part, 	because 	of 	Complainant’s
disability.
McGlone, supra at 571 (citation omitted).
9. 	The Commission, however, asserts that Complainant was not a
current drug user at the time of her termination and, therefore, entitled to
protection under the safe harbor provision within R.C. 4112.
10. 	The evidence supports the conclusion that Complainant had
successfully completed a supervised drug rehabilitation program and was
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no longer engaging in the illegal use of a controlled substance at the time
of her termination.
11. 	Respondent is seeking to create a new category of users who
are “technically still using”. 	However, this effort is an unsuccessful attempt
to 	navigate 	around 	the 	prohibition 	against 	regarding 	an 	employee 	as
engaging in the illegal use of a controlled substance. 	R.C. 4112.02
(Q)(b)(iii).
12. 	Respondent, 	therefore, 	engaged 	in 	discriminatory 	conduct
when Complainant was terminated from her position.
RECOMMENDATIONS
For all of the foregoing reasons, it is recommended in Complaint 	No.
9605 that:
1. 	The Commission order Respondent to cease and desist from all
discriminatory practices in violation of R.C. Chapter 4112;
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2. 	The Commission order Respondent to pay Complainant at the
same wage she would have been paid had she been employed as an
Operations 	Manager 	on 	February 	18, 	2003 	and 	continued 	to 	be 	so
employed up to the date of closure due to bankruptcy; and
3. 	Respondent shall submit to the Commission within 10 days of the
date 	of 	the 	Commission’s 	Final 	Order 	a 	certified 	check 	payable 	to
Complainant for the amount that she would have earned had she been
employed as an Operations Manager on February 18, 2003 and continued
to be so employed up to the date that Respondent ceased doing business,
including any raises and benefits she would have received, less her interim
earnings, plus interest at the maximum rate allowed by law.8
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
September 28, 2005
8 Any ambiguity in the amount that Complainant would have earned during this
period 	or 	benefits 	that 	she 	would 	have 	received 	should 	be 	resolved 	against
Respondent. Likewise, any ambiguity in calculating Complainant’s interim earnings
should be resolved against Respondent.
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