Teresa Faye Smith v. Dr. John Jordan

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
TERESA FAYE SMITH
Complainant
Complaint No. 9281
and 	(CIN/DAY) E6040201 (14879) 040601
DR. JOHN JORDAN, D.D.S.
Respondent
ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATIONS
JIM PETRO
ATTORNEY GENERAL
Stephanie Bostos Demers, Esq. 	Mark S. Coco, Esq.
Senior Deputy Attorney General 	Harris, McClellan, Binau & Cox
Terra L. Colvin, Esq. 	Huntington Plaza, Suite 950
Assistant Attorney General 	37 West Broad Street
Civil Right Section 	Columbus, OH 	43215-4159
State Office Tower, 15th Floor 	614 – 464 - 2572
30 East Broad Street
Columbus, OH 	43215-3428 	Counsel for Respondent
614 – 466 – 7900
Counsel for the Commission
ALJ'S REPORT BY:
Denise M. Johnson
Teresa Faye Smith 	Chief Administrative Law Judge
8525 Jonathan Lane, Apt. A 	Ohio Civil Rights Commission
Mainesville, OH 	45039-9398 	1111 East Broad Street, Suite 301
Columbus, OH 	43205-1379
Complainant 	614 – 466 – 6684

INTRODUCTION AND PROCEDURAL HISTORY
Teresa Faye Smith (Complainant) filed a sworn charge affidavit with
the Ohio Civil Rights Commission (Commission) on April 2, 2001.
The Commission investigated the charge and found probable cause
that 	Dr. 	John 	Jordan, 	D.D.S. 	(Respondent) 	engaged 	in 	unlawful
employment practices in violation of Revised Code Section (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 March 21, 2002.
The Complaint alleged that Respondent subjected Complainant to a
sexually 	offensive, 	intimidating 	and 	hostile 	work 	environment, 	and
constructively discharged her, for reasons not applied equally to all persons
without regard to their sex, and in retaliation for having complained of the
alleged acts of sexual harassment.
1

Respondent 	filed 	an 	Answer 	to 	the 	Complaint 	on 	April 	6, 	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 March 191 and 21, 2003 and on
September 10 and 11, 2003 in Washington Court House, Ohio.
The 	record 	consists 	of 	the 	previously 	described 	pleadings, 	a
transcript of the hearing consisting of 895 pages, exhibits admitted into
evidence 	during 	the 	hearing, 	and 	the 	post-hearing 	briefs 	filed 	by 	the
Commission on March 29, 2004, by Respondent on April 28, 2004, and a
reply brief filed by the Commission on May 7, 2004.2
1 An onsite inspection of Respondent’s office was conducted to give the
Administrative Law Judge (ALJ) the opportunity to view the premises.
2 Respondent filed a Motion to Strike the Reply Brief of the Ohio Civil Rights
Commission on May 12, 2004. The Commission did not file a response. Respondent’s
motion objects to the Commission referencing proffered evidence regarding Elizabeth
Vinion in the Commission’s Post Hearing Brief. 	At the hearing, Respondent objected to
admitting 	testimony 	by 	Elizabeth 	Vinion, 	and 	the 	ALJ 	sustained 	Respondent’s
objection. Any references to the proffered testimony in the Commission’s brief were not
considered by the ALJ in the recommendation to the Commission. 	Respondent’s
Motion to Strike is denied.
2

FINDINGS OF FACT
The following findings of fact are based, in part, upon the ALJ’s
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 April 2, 2001.
2. 	The Commission determined on January 31, 2002 that it was
probable that Respondent engaged in unlawful discrimination in violation of
R.C. 4112.02 (A) and (I).
3

3. 	The Commission attempted to resolve this matter by informal
methods 	of 	conciliation. 	The 	Commission 	issued 	the 	Complaint 	after
conciliation failed.
4. 	Respondent 	has 	operated 	a 	dental 	practice 	in 	Washington
Court House, Ohio for forty-two (42) years.
5. 	Joan Rizzo, Respondent’s daughter, knew that her father was
looking for a new chair side dental assistant (CSDA) and encouraged
Complainant to contact Respondent about the open position.3
6. 	Ms. Rizzo told her sister, Linda Douds, about Complainant.
Ms. Douds, who works part-time at her father’s office, told Respondent
about Complainant.
7. 	Complainant 	met 	with 	Respondent 	about 	the 	position.
Complainant did not provide Respondent with a résumé or fill out an
employment application.
3 Complainant is a licensed nail technician and performed that service for Ms.
Rizzo at her home.
4

8. 	Complainant’s work experience as a CSDA included working
for a dental practice in Columbus, Ohio. One of the dentists she worked for
was Dr. Rick Singel.
9. 	At the time that Complainant met with Respondent she was
working part-time for Dr. Singel who had left the Columbus practice and
opened a solo dental practice in Cincinnati, Ohio.4
10. 	The Ohio State Dental Board requires CSDAs to have hepatitis
shots. 	Complainant told Respondent that she had started the series of
three shots but needed one more.
11. 	Her job with Dr. Singel did not provide healthcare benefits.
Complainant asked for a wage of $13.00 an hour, in addition to healthcare
benefits. 	Respondent agreed to Complainant’s terms and hired her.
12. 	Complainant started working for Respondent as his CSDA on
Monday, February 19, 2001.
4 Complainant and Dr. Singel began a personal relationship during the time that
they worked in Columbus. They stopped the personal relationship prior to Complainant
taking the job with Respondent.
5

13. 	At 	the 	time 	that 	Complainant 	began 	her 	employment 	the
following individuals worked for Respondent:
• 	Nancy Stuhldreher – office worker, part-time (8:30-noon):
confirmed 	appointments, 	pulled 	ledgers, 	pulled 	charts,
helped out basically in the front;
• 	Melissa (Missy) Brown – dental hygienist, 8:00-5:00;
• 	Tara Bateson – office manager, 8:00-5:00: readied the
patients 	and 	their 	folders, 	confirmed 	appointments,
prepared day sheets and deposits (peg board ledger);
and
• 	Linda Douds (Respondent’s daughter) – came in around
4:00 to help out at the front desk.
14. 	Complainant worked Monday, Tuesday, Thursday, and Friday,
from 8:00-5:00. 	The office closed for lunch between the hours of 12:00-
1:00.5
15. 	From March 16 through March 23, 2001 Respondent went on
vacation. 	When Respondent takes his spring vacation, Missy Brown still
performs dental hygienist services for patients.
5 The office is closed on Wednesdays.
6

16. 	Normally, the CSDA would not work during that week and
would not receive pay.
17. 	Respondent asked Complainant if she wanted to work at the
front desk during that week, in addition to performing cleaning chores in the
office. 	Complainant agreed and worked during that week.
18. 	Respondent returned to the office on Monday, March 26, 2001.
19. 	Shortly 	after 	Complainant 	came 	to 	work, 	Respondent
confronted her about long distance telephone calls to a Cincinnati, Ohio
number.
20. 	Complainant left work around noon and did not return. 	She
taped a handwritten note on Respondent’s office door which read, “You’ll
never crap on me again. 	Loser.”
7

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.6
1. 	The Commission alleged in the Complaint that Respondent
subjected Complainant to a sexually offensive, intimidating and hostile
work 	environment, 	and 	constructively 	discharged 	her, 	for 	reasons 	not
applied equally to all persons without regard to their sex, and in retaliation
for having complained of the alleged acts of sexual harassment.
6 Any Finding of Fact may be deemed a Conclusion of Law, and any Conclusion
of Law may be deemed a Finding of Fact.
8

2. 	These 	allegations, if proven, would constitute a violation of R.C.
4112.02 (A) and (I), which provides, in pertinent part, that:
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.
(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(A) 	and 	(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
9

evidence sufficient to support a finding of unlawful discrimination under
Title VII of the Civil Rights Act of 1964 (Title VII).
SEXUAL HARASSMENT
5. 	Sexual harassment is sex discrimination and prohibited by R.C.
Chapter 4112. 	Ohio Adm. Code (O.A.C.) 4112-5-05(J)(1); 	Cf. Meritor
Savings Bank v. Vinson, 477 U.S. 57 (1986) (sexual harassment is sex
discrimination under Title VII). 	There are two forms of sexual harassment:
quid pro quo and hostile work environment. 	Id., at 65. 	The latter form of
sexual harassment, which the Commission alleges in this case, recognizes
that 	employees 	have 	the 	“right 	to 	work 	in 	an 	environment 	free 	of
discriminatory intimidation, ridicule, and insult.” 	Id.
6. 	O.A.C. 4112-5-05 defines sexual harassment based on a hostile
work environment, in pertinent part:
(J) Sexual harassment.
(1) 	Unwelcome sexual advances, requests for sexual favors,
and other verbal or physical conduct of a sexual nature
constitute sexual harassment when:
10

(c) 	Such conduct has the purpose or effect of unreasonably
interfering 	with 	an 	individual's 	work 	performance 	or
creating 	an 	intimidating, 	hostile 	or 	offensive 	working
environment.
7. 	To establish a claim brought under O.R.C. 4112 against an
employer for hostile work environment sexual harassment, the Commission
must establish that:
(1.) 	Complainant was a member of a protected class;
(2.) 	Complainant was subjected to unwelcome harassment;
(3.) 	the harassment complained of was based upon sex;
(4.) 	the harassment had the purpose or effect of unreason-
ably interfering with the employee's work performance or
creating 	an 	intimidating, 	hostile, 	or 	offensive 	work
environment; and
(5.) 	the existence of respondeat superior liability.
Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998).
8. 	There is no dispute that the Commission established the first
element of a prima facie case of sexual harassment/sex discrimination:
Complainant is a female.
11

9. 	The second and third elements are not so obvious because the
conduct complained of was not observed by a third party.
10. 	When 	credibility 	is 	an 	issue 	in 	a 	sexual 	harassment 	case,
corroboration or the lack of corroboration of the alleged victim’s testimony,
is often crucial.
We note that in a case of alleged sexual harassment[,] which
involves close questions of credibility and subjective interpre-
tation, 	the 	existence 	of 	corroborative 	evidence 	or 	the 	lack
thereof is likely to be crucial.
Henson 	v. 	City 	of 	Dundee, 	29 	FEP 	Cases 	787, 	800, 	n.25
(11th Cir. 1982) (citations omitted).
11. 	However, there is no explicit corroboration requirement in either
R.C. Chapter 4112 or Title VII.
The credibility determinations are for the finder of fact. 	The
finder of fact may credit either side’s version of disputed facts
whether or not there is corroboration if they find one witness’s
version more credible than the other witness’s version.
Durham Life Insurance Co. v. Evans, 78 FEP Cases 1434,
1440, n.2 (3d Cir. 1999).
12

12. 	Complainant’s testimony regarding incidents of inappropriate
comments and conduct of a sexual nature can be summarized as follows:
1. 	Over 	a 	period 	of 	six 	work 	days, 	from 	Monday,
February 	19, 	her 	first 	day 	on 	the 	job, 	until 	Tuesday,
February 	27, 	Complainant 	testified 	that 	Respondent
engaged in the following types of sexual behavior:
i. 	sexual 	comments, 	both 	innuendo 	and
explicit: 	sixteen (16) single incidents,
and four (4) incidents where the same
comments or acts 	were made on more
than one occasion,
ii. 	physical contact of a sexual nature, one
(1) incident, where Respondent tried to
hug Complainant from behind.
(Comm. Ex. 8)
13. 	Complainant on two separate occasions told her coworkers,
Tara Bateson and Missy Brown, that Respondent made comments to her
that she was uncomfortable with and had asked her to go to dinner with
him at the Dock.
14. 	As a CSDA, Complainant worked directly with Respondent in
an 	operatory 	where 	Respondent 	performed 	dental 	procedures 	on 	his
13

patients. 	If Complainant was not in the operatory she was in the room
where the auto-clave was located.7
15. 	A part of Respondent’s defense to the allegations of sexual
harassment rests upon the assertion that Respondent’s dental office is not a
large area; and if Respondent were making inappropriate comments to
Complainant, a coworker would have overheard or observed such conduct.
I disagree.
16. 	Respondent 	has 	a 	very 	busy 	dental 	practice. 	Separate
operatories within the office were partitioned off from one another. 	Dental
instruments 	and 	the 	autoclave 	were 	in 	use 	during 	business 	hours.
Background music was played during the office’s business hours. 	In such
a scenario it is not difficult to see how coworkers would be unable to hear
or see what was happening between Respondent and Complainant whose
jobs required them to work in very close proximity to one another.
7 The auto-clave is a machine that sterilizes instruments.
14

17. 	Complainant’s position as a CSDA to Respondent made her
one of the only employees in the office who spent the majority of her
working hours in close proximity to Respondent.
18. 	I find that Respondent made statements to Complainant that
are of a sexual nature, in addition to the one occurrence where Respondent
physically touched Complainant. 	However, this determination is only the
first part of the inquiry as to whether or not Respondent’s conduct rose to
the level of actionable sexual harassment.
19. 	In order to create a hostile work environment, the conduct must
be “sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment.” 	Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993), quoting Meritor, supra at 67. 	The
conduct must be unwelcome. 	Meritor, 	supra 	at 68. 	The victim must
perceive the work environment to be hostile or abusive, and the work
environment must be one that a reasonable person would find hostile or
abusive. 	Harris at 21-22. 	If the victim does not subjectively perceive the
environment 	to 	be 	abusive, 	the 	conduct 	has 	not 	actually 	altered 	the
15

conditions of the victim’s employment, and there is no Title VII violation.
Id.
20. In examining the work environment from both subjective and
objective viewpoints, the fact-finder must examine “all the circumstances”,
including the employee’s psychological harm and other relevant factors,
such as:
. . . the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with
an employee's work performance.
Id., at 23.
Rabidue v. Osceola Refining Div., 42 FEP Cases 631 (6th Cir. 1986)
(plaintiffs must show that a hostile work environment resulted not from a
single 	or 	isolated 	offensive 	incident, 	comment, 	or 	conduct, 	but 	from
incidents, comments, or conduct that occurred with some frequency).
A hostile work environment is usually “characterized by multiple
and 	varied 	combinations 	and 	frequencies 	of 	offensive
exposures.”
Rose v. Figgie International, 56 FEP Cases 41, 44 (8th Cir.
1990).
16

Simple 	teasing, 	offhand 	comments, 	and 	isolated 	incidents
(unless extremely serious) will not amount to discriminatory
changes in the terms and conditions of employment. 	These
standards are sufficiently demanding to ensure that Title VII
does not become a general civility code. 	Properly applied, they
will filter out complaints attached to the ordinary tribulations of
the workplace, such as the sporadic use of abusive language,
gender-related jokes, and occasional teasing. 	We have made
it clear that conduct must be extreme to amount to a change in
the terms and conditions of employment, and the Court of
Appeals has heeded this view.
Faragher, supra at 2283-84.
21. 	As previously stated, the inappropriate comments and gestures
of a sexual nature occurred over six (6) work days. 	Complainant testified
that Respondent showed her his tongue at least twenty-five (25) times over
a three-day period. 	She also testified that Respondent inappropriately
touched her on one occasion when he attempted to hug her from behind.
22. 	Respondent’s practice was busy and Complainant testified that
Respondent’s demeanor toward her affected her work:
(. . .) 	I mean, he—followed me around the office. 	He—he—the
first week there I—mean, I couldn’t—I couldn’t hardly clean
because he wouldn’t leave me alone.
17

And he for—the second day he came up to me, and grabbed
me from behind and pulled against me—pulled me against him.
And—and he would—he would just make comments about his
friends. 	He—He had a couple friends that would buy me a
leather coat and—if I—I can’t remember his exact words, but if
I—if I did oral sex he would give me a leather coat.
Q: Okay.
A: 	—And he would drop money on me. 	He had another friend
who’d drop money on me.
(Tr. 180)
23. 	She told two other coworkers that she was uncomfortable with
the 	inappropriate 	comments 	that 	Respondent 	was 	making 	to 	her, 	in
addition to telling them about Respondent asking her to go to dinner with
him.
Q: 	Did Missy ever talk to you about anything Terri might have
talked to her about?
A: 	Yes.
Q: 	Can you tell me what that conversation was regarding?
A: 	Well, apparently that Dr. Jordan had asked Terri out, and
Terri was kind of upset about it and she didn’t know
exactly what she wanted to do or—and she told Missy
about it and Missy told me.
Q: 	Okay.
18

A: 	And 	then 	later 	on—I 	don’t 	know—maybe 	within 	that
afternoon or a couple of days later—Terri did—I mean,
she was open with both me and Missy about it.
Q: 	And do you remember what she said ?
A: 	Just that she was just—she didn’t know what she was
going to do. I mean she was very upset about him asking
her out.
(Tr. 455 - Tara Bateson)
24. 	I find that the conduct complained of by Complainant involved
“multiple and varied combinations and frequencies of offensive exposures”
and, 	therefore, 	altered 	the 	conditions 	of 	Complainant’s 	workplace
environment.
19

SUPERVISOR HARASSMENT
25. 	An employer is vicariously liable for a hostile work environment
created 	by 	a 	supervisor 	with 	immediate 	or 	higher 	authority 	over 	the
employee. 	Faragher, supra at 2275 (1998). 	If no tangible employment
action is taken against 	the 	employee, then the employer may raise an
affirmative 	defense 	to 	liability 	or 	damages.8 Ellerth, 	supra 	at 	2270;
Faragher, at 2293.
26. 	To be successful, the employer must establish the following two
elements by a preponderance of the evidence:
(1) 	The employer exercised reasonable care to prevent and
correct promptly any sexually harassing behavior, and
(2) 	The employee unreasonably failed to take advantage of
any preventive or corrective opportunities provided by the
employer or to avoid harm otherwise.
Id.
8 In Ellerth, the Supreme Court described a tangible employment action as:
. . . a significant change in employment status, such as hiring, firing, failing
to promote, reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.
Id., at 2268.
20

27. 	This affirmative defense is unavailable when the supervisor’s
harassment 	“culminates 	in 	a 	tangible 	employment 	action, 	such 	as
discharge, demotion, or undesirable reassignment.” 	Id. 	(On the same
pages, 	Ellerth 	and 	Faragher 	stated the following about the affirmative
defense:)
While 	proof 	that 	an 	employer 	has 	promulgated 	an
antiharassment 	policy 	with 	complaint 	procedure 	is 	not
necessary in every instance as a matter of law, the need for a
stated policy suitable to the employment circumstances may
appropriately be addressed in any case when litigating the first
element of the defense.
And 	while 	proof 	that 	an 	employee 	failed 	to 	fulfill 	the
corresponding 	obligation 	of 	reasonable 	care 	to 	avoid 	harm
is 	not 	limited 	to 	showing 	an 	unreasonable 	failure 	to 	use
any 	complaint 	procedure 	provided 	by 	the 	employer, 	a
demonstration of such failure will normally suffice to satisfy the
employer’s burden under the second element of the defense.
(See also O.A.C. 4112-5-05(J)(3))
28. 	Although Respondent attempted to show that he had a sexual
harassment policy, it was all form with no substance, merely illusory.
29. 	Even though Nancy Stuhldreher was the office manager she
did not have any authority from Respondent to address employment issues
raised by Complainant or other employees.
21

30. 	Respondent did not disseminate the sexual harassment policy
to the employees. 	Nor was there any assurance that Respondent, the
offending harasser, could be bypassed in registering a complaint.
31. 	In the case sub judice, the Faragher defense would not be
available to Respondent because Respondent had sole authority over the
terms and conditions of Complainant’s employment. 	She had no one else
to complain to other than Respondent.
32. 	However, Complainant did tell Respondent that she did not
appreciate the comments that he was making to her. 	She took the step,
even though there was no complaint procedure in place, to avoid the
occurrence 	of 	a 	tangible 	employment 	action 	from 	the 	hostile 	work
environment that had been created by Respondent. 	She testified that she
wanted to keep her job because she needed the benefits.
33. 	At the urging of Dr. Singel, she confronted Respondent on
February 27, 2001, and he stopped making inappropriate comments of a
sexual nature to her. 	It is at this point that the Commission alleges that
Respondent began to retaliate against Complainant.
22

34. 	Complainant 	testified 	that 	from 	that 	point 	on, 	until 	she
terminated her employment, Respondent’s conduct toward her created a
hostile work environment; and, as a result of the hostile work environment,
she was constructively discharged.
RETALIATION
35. 	In order to establish a prima facie case of retaliation under R.C.
4112.02(I), the Commission must prove the following elements:
a. 	Complainant engaged in a protected activity;
b. 	Respondent knew of Complainant’s participation in the
protected activity;
c. 	Respondent engaged in retaliatory conduct; and
d. 	a causal link exists between the protected activity and the
adverse action.
Hollins v. Atlantic Co., Inc., 80 FEP Cases 835 (6th Cir. 1999),
aff’d in part and rev’d in part, 76 FEP Cases 533 (N.D. Ohio
1997) (quotation marks omitted).
36. 	The Commission has proven the first and second elements of a
prima facie case of retaliation.
23

37. 	To establish the third and fourth elements, the Commission
must prove that Respondent’s actions after Complainant asked him to stop
created a hostile work environment.
38. 	Further, the Commission must prove that Respondent’s actions
forced Complainant to resign.
39. 	The 	test 	for 	determining 	whether 	an 	employee 	was
constructively discharged is whether the employer's actions made working
conditions so intolerable that a reasonable person under the circumstances
would have felt compelled to resign. 	Mauzy v. Kelly Services, Inc., (1996),
75 Ohio St. 3d 578, 1996 Ohio 265, 664 N.E. 2d 1272. 	Hampel v. Food
Ingredients Specialties, Inc., (2000), 89 Ohio St. 3d 169, 176, 2000 Ohio
128, 729 N.E. 2d 726.
40. 	Whether 	the 	discriminatory 	conduct 	unreasonably 	interfered
with Complainant’s work performance is one factor to be considered. 	The
Commission, however, is not required to show that Complainant’s “tangible
productivity . . . declined as a result of the harassment.” 	Harris, 63 FEP
Cases at 229. (Justice Ginsburg’s concurrence) quoting Davis v. Monsanto
24

Chemical Co., 47 FEP Cases 1825, 1828 (6th Cir. 1988). 	Instead, the
Commission must demonstrate that a reasonable person subjected to the
discriminatory conduct would find that the harassment so altered working
conditions as to “ma[k]e it more difficult to do the job.” 	Id.
41. 	To support a retaliation claim, the Commission must show that
the change in Complainant’s employment conditions was more disruptive
than a mere inconvenience or an alteration of job responsibilities. 	Bowers
v. Hamilton City Sch. Dist. Bd. of Educ., 12th Dist. No. CA2001-07-160,
2002 Ohio 1343, citing Kocsis, 97 F. 3d at 886.
42. 	Complainant testified that she was worried about returning to
work on Thursday, the next work day after she told Respondent that she
did not appreciate his comments.
Q: 	Why were you worried?
A: 	Because he—he already that you—you don’t cross him.
He had already told me that about Liz. 	And I—I was
just—I was just concerned that—that my job there was—
and I needed it so much. 	And I—I was worried that I
wouldn’t be able to stay.
(Tr. 273)
25

43. 	Complainant 	testified 	that 	Respondent 	showed 	her 	his 	gun
when 	he 	was 	talking 	about 	an 	ex-female 	employee9 who 	had 	filed 	a
sexual 	harassment 	law 	suit 	against 	Respondent. 	He 	stated 	to
Complainant, “You don’t want to mess with me.” 	This implied threat was
made prior to Complainant telling Respondent that she did not appreciate
him making statements of a sexual nature to her.
44. 	Complainant’s coworkers testified that the relationship between
Respondent and Complainant changed. 	In their presence they noticed
that Respondent ignored Complainant and did not engage in and avoided
having conversations with her.
45. 	Tara Bateson’s testimony:
Q: 	Okay. 	Did you happen to notice change in Dr. Jordan’s
treatment of Terri throughout her employment?
A: 	Yes.
Q: 	Can you explain that?
A: 	Well, they were very friendly in the beginning. 	And, I
mean, she was even really friendly with his daughter and
so forth. 	And then it just—he got to the point where he
wasn’t really communicating with her very well anymore
and just kind of just ignoring her toward the end.
9 See footnote 2, supra.
26

Q: 	What do you mean?
A: 	I 	mean, 	just 	strictly 	business, 	you 	know, 	no 	talking,
friendliness or nothing like that anymore. It just kind of
ended.
(Tr. 460-461)
(His treatment of the other employees continued in a friendly manner.)
46. 	Before 	Complainant 	asked 	Respondent 	to 	stop 	making
inappropriate comments of a sexual nature to her, he often made positive
comments to her about her job performance.
47. 	After 	Complainant 	asked 	Respondent 	to 	stop 	making
inappropriate comments of a sexual nature to her, his opinion regarding her
job performance was negative.
48. 	Complainant 	testified 	she 	noticed 	an 	immediate 	change 	in
Respondent’s behavior toward her. 	He ignored her, would not greet her in
the morning as he greeted her coworkers, continuously changed the way
he wanted her to assist him in terms of procedure, yelled at her in front of
patients, slammed instruments into her hands, and caused a patient’s
blood to be spattered on her. 	(Comm. Ex. 9)
27

49. 	Respondent asserted that he based his negative opinion of her
job performance on his belief that she misled him about her previous
experience working in a busy dental practice.
50. 	When Respondent went on vacation the week of March 19,
2001, he arranged for Complainant to work in the office at the front desk
and to do some cleaning of the office. Complainant had never been trained
to work at the front desk and experienced difficulty in handling the peg
board. 	She also accidentally caused the alarm system to go off.
51. 	When 	Complainant 	came 	to 	work 	on 	Monday, 	March 	26,
Respondent confronted her about making long distance calls to Cincinnati.
52. 	Tara Bateson testified that Respondent was yelling, screaming,
and cussing at Complainant regarding the calls that Complainant had made
to Cincinnati.
Q: 	Okay, okay. 	Do you remember what happened on the
day that Teresa left Dr. Jordan’s employment?
A: 	Well, that morning Dr. Jordan was very upset about the
phone bill and he had Nancy call these numbers that
were on there that he didn’t know about.
Q: 	Okay.
28

A: 	And when she came in that morning, he just absolutely
bombarded her as soon as she walked in and—
Q: 	And what was his demeanor like?
A: 	He was very mad, very upset.
Q: 	Was he yelling?
A: 	He was Irate. 	Yes.
Q: 	Was he yelling?
A: 	Yes, He was yelling.
Q: 	Screaming?
A: 	Cussing.
Q: 	Cussing?
A: 	Yes.
(Tr. 459)
Q: 	Had you ever seen Dr. Jordan respond like that to any
other employee before?
A: 	We—we had our fair share of arguments, but nothing like
that.
Q: 	What do you mean, nothing like that?
A: 	I mean, he was mad. 	I mean, he was really upset.
Q: 	So before this instance with Ms. Smith you had never
seen him react that—in that manner before?
29

A: 	No.
(Tr. 460-461)
53. 	Respondent 	asserts 	that 	the 	reason 	that 	he 	questioned
Complainant 	about 	the 	long 	distance 	telephone 	calls 	to 	Cincinnati 	is
because she called on a line that is for incoming calls for patients, and that
according to office policy, employees are prohibited from using that line.
54. 	I find Respondent’s assertion lacks credibility. Other employees
made 	long 	distance 	calls 	from 	the 	phones 	in 	the 	office; 	however,
Respondent did not confront them about their long distance calls.
55. 	Complainant’s 	original 	license 	was 	hanging 	in 	Dr. 	Singel’s
office. 	Complainant stated that after she asked Respondent to stop
making inappropriate sexual comments to her, he began putting pressure
on her to get the original license.
30

56. 	When 	Complainant 	started 	working 	for 	Respondent 	she
provided him with a copy and told him that the original was in Dr. Singel’s
office. 	Therefore, Respondent was already aware that Complainant was
making calls to Cincinnati, in part, to get her original license.
57. 	In cases involving coworker sexual harassment or supervisor
sexual 	harassment, 	the 	employer 	can 	investigate 	and 	take 	steps 	to
ameliorate an uncomfortable and intolerable situation. 	In this case the
same actor who made threats and engaged in inappropriate conduct of a
sexual nature prior to Complainant asking him to stop was the only person
to whom she could complain. 	Respondent was also in control of the work
environment after Complainant asked him to stop, and he unfortunately
sought to make her work environment unbearable because she opposed
his unwelcome and inappropriate behavior.
58. 	The 	evidence 	in 	the 	record 	supports 	the 	finding 	that
Respondent singled Complainant out for treatment that became unbearable
and intolerable and unreasonably altered the terms and conditions of her
employment which forced Complainant to resign.
31

59. 	After a careful review of the entire record, the ALJ disbelieves
the underlying reasons articulated by Respondent for his treatment of
Complainant and concludes that, more likely than not, it was a pretext or a
cover-up for illegal retaliation.
60. 	Therefore, Complainant is entitled to relief.
DAMAGES
61. 	The Commission has the authority to order Respondent to pay
equitable damages, which includes but is not limited to, back pay and
reinstatement when there is a finding of discrimination pursuant to R.C.
4112.05(G)(1). 	However “in instances in which it has been decided that an
effective employment relationship could not be reestablished, the courts
have excluded reinstatement from the forms of relief granted.” 	EEOC v.
Pacific Press Publishing Association, 482 F. Supp. 1291 at 1320 (1979).
62. 	It has also been recognized by the courts that it would be unjust
to deny reinstatement without offering some quantum of monetary relief or
“front pay” as a substitute.
32

63. 	This alternative relief has been deemed necessary not only to
grant discharged employees a reasonable opportunity to find comparable
employment, but also to deter future improper employer action. 	EEOC v.
Kallir, Phillips, Ross, Inc., 420 F. Supp 919 at 927 (1976), 	Burton v.
Cascade School District No. 5, 512 F. 2d 850 at 854 (1975).
64. 	The 	testimony 	and 	demeanor 	of 	both 	Complainant 	and
Respondent 	justifies 	the 	ALJ 	in 	making 	the 	determination 	that
reinstatement would be an inappropriate remedy.10
RECOMMENDATIONS
For all of the foregoing reasons, it is recommended in Complaint No.
9281 that:
1. 	The Commission order Respondent to cease and desist from all
discriminatory practices in violation of R.C. Chapter 4112;
10 Dr. 	Singel 	and 	Complainant 	filed 	additional 	retaliation 	charges 	against
Respondent.
33

2. 	The 	Commission 	order 	Respondent 	to 	pay 	front 	pay 	to
Complainant 	within 	10 	days 	of 	the 	Commission’s 	Final 	Order.
Complainant shall be paid the same wage she would have been paid as a
chair side dental assistant with benefits and raises that she would have
been 	entitled 	to 	for 	a 	total 	of 	four 	(4) 	months, 	less 	interim 	earnings,
calculated from the date of the Commission’s Final Order;
3. 	Commission order Respondent to pay within 10 days of the
Commission’s Final 	Order a certified check payable to Complainant for the
amount that Complainant would have earned had she been employed as a
chair 	side 	dental 	assistant 	on 	April 	2, 	2001 	and 	continued 	to 	be 	so
employed up to the date of the Commission’s Final Order, including any
raises and benefits she would have received, less interim earnings, plus
interest at the maximum rate allowed by law;11 and
11 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.
34

4. 	The 	Commission 	order 	Respondent 	to 	receive 	sexual
harassment training and submit to the Commission of copy of its sexual
harassment policy within six (6) months of the date of the Commission’s
Final 	Order. 	As 	proof 	of 	participation 	in 	sexual 	harassment 	training,
Respondent shall submit certification from the sexual harassment trainer or
provider of services that Respondent has successfully completed sexual
harassment training. 	The letter of certification shall be submitted to the
Commission’s Office of Special Investigations within seven (7) months of
the date of the Commission’s Final Order.
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
April 19, 2005
35