Jennifer Wahoff v. Aero Fulfillment Services

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
JENNIFER WAHOFF
Complainant
Complaint No. 9292
and 	(CIN) 75071701 (29146) 072001
22A – A1 – 01936
AERO FULFILLMENT
SERVICES CORPORATION
Respondent
ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
JIM PETRO
ATTORNEY GENERAL
Duffy Jamieson, Esq. 	Robert W. Maxwell II, Esq.
Deputy 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
Jennifer Wahoff 	Chief Administrative Law Judge
2215 Morris Court 	Ohio Civil Rights Commission
Covington, KY 	41017 	1111 East Broad Street, Suite 301
Columbus, OH 	43205-1379
Complainant 	614 – 466 – 6684

INTRODUCTION AND PROCEDURAL HISTORY
Jennifer Wahoff (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on July 20, 2001.
The Commission investigated the charge and found probable cause
that 	Aero 	Fulfillment 	Services 	Corporation 	(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 April 11, 2002.
The 	Complaint 	alleged 	that 	Respondent 	failed 	and 	refused 	to
reinstate Complainant to her previous position of Account Executive, and
demoted her, for reasons not applied equally to all persons without regard
to their sex (condition of pregnancy).
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Respondent 	filed 	an 	Answer 	to 	the 	Complaint 	on 	May 	1, 	2002.
Respondent 	admitted 	certain 	procedural 	allegations, 	but 	denied 	that 	it
engaged in any unlawful discriminatory practices. 	Respondent also pled
affirmative defenses.
The 	Commission 	and 	Respondent 	submitted 	Joint 	Stipulation 	of
Facts and waived a hearing.
The record consists of the previously described pleadings, the Joint
Stipulation of Facts, and the post-hearing briefs filed by the Commission on
May 16, 2003 and by Respondent on June 16, 2003.
FINDINGS OF FACT
1. 	Complainant filed a sworn charge affidavit with the Commission
on July 20, 2001.
2. 	The Commission determined on December 20, 2001 that it was
probable that Respondent engaged in unlawful discrimination in violation of
R.C. 4112.02(A).
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3. 	The Commission attempted to resolve this matter by informal
methods 	of 	conciliation. 	The 	Commission 	issued 	the 	Complaint 	after
conciliation failed.
4. 	Respondent 	is 	engaged 	in 	the 	business 	of 	preparing,
assembling, 	and 	distributing 	marketing 	and 	promotional 	materials 	for
approximately 300 clients.
5. 	Respondent is headquartered in Mason, Ohio, where it also
operates a production facility. 	Respondent also has other facilities in
Lebanon, Ohio and Baltimore, Maryland.
6. 	Complainant was hired by Respondent as a Consumer Affairs
Agent and began working for Respondent on September 28, 1998.
7. 	Complainant 	was 	promoted 	to 	Account 	Executive, 	effective
June 14, 1999, and primarily worked as one of three Account Executives
on Respondent’s team performing services for Great American Insurance
(GAI).
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8. 	As an Account Executive, Complainant worked at Respondent’s
Mason headquarters. 	She was one of eight Account Executives working
there. 	Complainant was responsible for maintaining inventory of materials,
processing orders, and overseeing the assembly and distribution of kits for
clients like GAI. 	(Joint Ex. 1)
9. 	In January 2001, Complainant’s annual salary was $30,000, the
lowest of the eight Account Executives employed by Respondent in Mason.
10. 	On 	November 	1, 	2000, 	Respondent 	revised 	its 	leave 	of
absence policy in its Associate Handbook. 	Copies were distributed to all
employees in November 2000. 	(Joint Ex. 2)
11. 	In 	mid-January, 	2001, 	Complainant 	began 	missing 	her
scheduled workdays. 	After initially calling in on a daily basis, Complainant
twice notified Respondent that she would be unable to work for an entire
week. 	She then submitted a medical statement with a disability claim
form, dated January 21, 2001, and certified by her doctor on February 12,
2001. 	(Joint Ex. 3)
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12. 	Respondent granted Complainant‘s leave of absence, retro-
active to January 17, 2001.
13. 	Complainant gave birth to a healthy baby on April 24, 2001.
She subsequently had two operations for gallstones. 	Her gall bladder was
removed in surgery on June 1, 2001.
14. 	On July 18, 2001, Complainant’s husband faxed to Respondent
a doctor’s statement, which stated:
Jennifer has been under my care since June 5, 2001 due to
anemia, pneumonia and gall bladder disease.
(Joint Ex. 6)
15. 	On July 24, 2001, Complainant faxed to Respondent a doctor’s
statement, dated July 23, 2001, which stated that Complainant “may return
to work 7/25/01.” (Joint Ex. 7)
16. 	No 	Account 	Executive 	positions 	were 	available 	when
Complainant wanted to return to work on July 25, 2001.
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17. 	Respondent did not have a reduction in force during 2001, nor
did it abolish any Account Executive positions.
18. 	Respondent’s 	Human 	Resources 	Manager 	gathered
information on open positions at its Mason and Lebanon facilities before
meeting with Complainant to review a list of the hours and the pay rate for
each open position.
19. 	After Complainant went on leave, Respondent’s GAI team went
from three Account Executives to two Account Executives in early 2001.
No 	Account 	Executives 	were 	hired, 	promoted, 	or 	transferred 	to 	fill
Complainant’s position on Respondent’s GAI team during her FMLA and
medical leaves of absence in 2001.
20. 	As Respondent administers its leave of absence policy, if an
employee who has exhausted or was not eligible for FMLA leave seeks to
return to active employment at the end of a medical leave, the employee
will be returned to the position that she or he held before the leave began if
that position is open; otherwise, the employee returning from the medical
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leave will be given an opportunity to select from open positions that the
employee is able to perform.
21. 	Respondent offered Complainant an opportunity to select from
among numerous positions that were open and that she appeared to be
qualified to perform. 	(Joint Ex. 8)
22. 	Complainant 	was 	returned 	to 	active 	employment 	with
Respondent on July 25, 2001, when she started working for Respondent as
a Fulfillment Associate in the Hand Assembly Department in Mason at a
pay range of $9.00 per hour. 	(Joint Ex. 9)
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CONCLUSIONS OF LAW AND DISCUSSION 1
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.
1. 	The Commission alleged in the Complaint that Respondent
failed and refused to reinstate Complainant to her previous position of
Account Executive, and demoted her, for reasons not applied equally to all
persons without regard to their sex (condition of pregnancy).
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:
(A) 	For any employer, because of the . . . sex, . . . 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 term “because of sex” for the purposes of R.C. 4112.02(A)
includes, but it is not limited to, discrimination based upon pregnancy,
pregnancy-related 	illnesses, 	childbirth, 	or 	related 	medical 	conditions.
R.C. 4112.01(B). 	This division further provides that:
Women affected by pregnancy, childbirth, or related medical
conditions shall be treated the same for all employment-related
purposes, 	including 	receipt 	of 	benefits 	under 	fringe 	benefit
programs, as other persons not so affected but similar in their
ability or inability to work . . . .
4. 	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).
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5. 	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. 	Federal case law is especially relevant in this case because
R.C. 4112.01(B) reads “almost verbatim to the Pregnancy Discrimination
Act” of 1978 (PDA). 	Priest v. TFH-EB, Inc. d/b/a Electra Bore, Inc., 1998
Ohio 	App. 	LEXIS 	1384; 	See 	42 	U.S.C. 	§ 	2000e(k). 	Thus, 	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), as amended by the PDA.
COMMISSION’S PREGNANCY REGULATIONS
6. 	As further guidance, the Commission has adopted regulations
on written and unwritten employment policies relating to pregnancy and
childbirth. 	Ohio Administrative Code (O.A.C.) 4112-5-05(G). 	One of the
central purposes of these regulations is to ensure that female employees
are not “penalized in their employment because they require time from
work 	on 	account 	of 	childbearing.” 	O.A.C. 	4112-5-05(G)(5). 	Such
protection is necessary because only females bear the unique burden of
childbearing which inevitably involves some period of disability.
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7. 	The 	Commission’s 	pregnancy 	regulations 	in 	O.A.C 	4112-5-
05(G) provide, in pertinent part, that:
(1) 	Women 	shall 	not 	be 	penalized 	in 	their 	conditions 	of
employment because they require time away from work
on account of childbearing. 	When, under the employer’s
leave policy the female employee would qualify for leave,
then childbearing must be considered by the employer to
be 	a 	justification 	for 	leave 	of 	absence 	for 	female
employees for a reasonable period of time. 	For example,
if the female meets the equally applied minimum length of
service requirements for leave time, she must be granted
a 	reasonable 	leave 	on 	account 	of 	childbearing.
Conditions applicable to her leave (other than its length)
and to her return to employment shall be in accordance
with the employer’s leave of absence policy.
(Emphasis added.)
Like the PDA, R.C. 4112.01(B) requires that female employees, affected by
childbirth in their ability or inability to work, be treated the same as workers
not so affected.
8. 	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 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
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rebuttable 	presumption 	of 	unlawful 	discrimination. 	Texas 	Dept. 	of
Community Affairs v. Burdine, 450 U.S. 248, 25 FEP Cases 113 (1981).
9. 	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:
. . . “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.
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 failure to return the Complainant
to the same job she had before going out on leave; 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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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.
10. 	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 	its 	failure 	to return Complainant
to 	her 	previous 	position 	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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11. 	Respondent met its burden of production by stating that after
Complainant 	went 	on 	leave, 	Respondent’s 	GAI 	team 	went 	from 	three
Account Executives to two Account Executives in early 2001. 	No Account
Executives 	were 	hired, 	promoted, 	or 	transferred 	to 	fill 	Complainant’s
position on Respondent’s GAI team during her FMLA and medical leaves of
absence in 2001.
12. 	Respondent 	having 	met 	its 	burden 	of 	production, 	the
Commission must prove that Respondent unlawfully discriminated against
Complainant because of her sex (condition of pregnancy). 	Hicks, supra at
511, 	62 	FEP 	Cases 	at 	100. 	The 	Commission 	must 	show 	by 	a
preponderance of the evidence that Respondent’s articulated reason for
not returning Complainant to her previous position 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.
[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.
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13. 	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 . . . [sex] 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
sex discrimination.
14. 	In 	order 	to 	show 	pretext, 	the 	Commission 	may 	directly 	or
indirectly challenge the credibility of Respondent’s articulated reason for
failing to return Complainant to the position of Account Executive. 	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.
15

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.
15. 	The 	Commission 	has 	failed 	to 	show 	that 	Respondent’s
articulated reason is a pretext for unlawful discrimination.
16. 	The 	Commission 	cannot 	prove 	pretext 	through 	disparate
treatment 	without 	evidence 	that 	a 	similarly-situated 	comparative 	was
treated more favorably than Complainant.
17. 	Joint Exhibit 10 (ten) is a list of all employees at Respondent’s
Mason facility that have taken a leave of absence, the position that the
employee held prior to going on leave, the duration of the leave, the
position to which that person returned, and the circumstances surrounding
the leave. 	This list supports the determination that there were female
employees who went out on maternity and were returned to previously held
positions, as well as to different positions.
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
at 511, 62 FEP Cases at 100, n.4.
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18. 	There 	is 	no 	evidence 	that 	Respondent 	treated 	similarly-
situated, non-pregnant employees who returned from leave differently than
Complainant.
19. 	The inquiry here is necessarily limited to whether Respondent
treated Complainant differently because of her condition of pregnancy.
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).
20. 	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).
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RECOMMENDATION
For 	all 	of 	the 	foregoing 	reasons, 	it 	is 	recommended 	that 	the
Commission issue a Dismissal Order in Complaint No. 9292.
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
September 20, 2004
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