Wanda Brazile v. Gennys Home Health Care

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
WANDA MAE BRAZILE
Complainant Complaint No. 9280
(AKR) 73043001 (25727) 050201
and 22A –A1 –5422
GENNY’	SHOMEHEALTH CARE
Respondent
CHIEF ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
JIM PETRO
ATTORNEY GENERAL
Wayne D. Williams, Esq. Genevieve Semuga
Associate Attorney General Genny’	sHomeHeal	t	hCar	e
Civil Rights Section 215 East Waterloo Road, Suite 12
State Office Building, 11th Floor Akron, OH 44319
615 West Superior Avenue 330 –724 –7755
Cleveland, OH 44113-1899
216 –787 –3030 Respondent's Representative
Counsel for the Commission
ALJ'S REPORT BY:
Denise M. Johnson
Wanda Mae Brazile Chief Administrative Law Judge
602 Elenora Drive Ohio Civil Rights Commission
Cuyahoga Falls, OH 44223 1111 East Broad Street, Suite 301
Columbus, OH 43205-1379
Complainant 614 –466 –6684

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INTRODUCTION AND PROCEDURAL HISTORY
Wanda Mae Brazile (Complainant) filed a sworn charge affidavit with
the Ohio Civil Rights Commission (Commission) on May 2, 2001.
The Commission investigated the charge and found probable cause
t	hatGenny	’	s Home Health Care (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 March 14, 2002.
The Complaint alleged that Respondent subjected Complainant to
disparate terms and conditions of employment including, but not limited to,
a racially offensive and hostile work environment, and a refusal to assign
her full-time health care positions, because of her race and the race of her
husband [race by association].

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Respondent is not represented by counsel. Respondent filed an
Answer to the Complaint by leave of the Administrative Law Judge (ALJ) on
October 30, 2002. Respondent denied that it engaged in any unlawful
discriminatory practices.
A public hearing was held on November 13, 2002 at the Akron
Government Building in Akron, Ohio.
The record consists of the previously-described pleadings, a
transcript of the hearing (122 pages); exhibits admitted into evidence at the
hearing, and a post-hearing brief filed by the Commission on January 9,
2003. Respondent did not file a brief.
FINDINGS OF FACT
The following findings of fact are based, in part, upon the assessment
of the credibility of the witnesses who testified before the ALJ who presided
at the hearing in this matter. The ALJ has applied the tests of worthiness
of belief used in current Ohio practice. She considered whether a witness
was evasive and whether his or her testimony appeared to consist of

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subjective opinion rather than factual recitation. She further considered
the opportunity each witness had to observe and know the things
di	s	cus	sed,each wi	t	ness’	s st	r	engt	h ofmemor	y	,f	r	ankness or l	ack of
frankness, and the bias, prejudice, and interest of each witness. Finally,
t	he ALJ consi	der	ed t	he ex	t	entt	o whi	ch each wi	t	ness’	s t	es	t	i	mony was
supported or contradicted by reliable documentary evidence.
1. Complainant filed a sworn charge affidavit with the Commission
on May 2, 2001.
2. The Commission determined on January 10, 2002 that it was
probable that Respondent engaged in unlawful discriminatory practices in
violation of R.C. 4112.02(A).
3. The Commission attempted to resolve this matter by informal
methods of conciliation. The Commission issued a Complaint after
conciliation failed.
4. Respondent is a personnel placement agency doing business in
Ohio and an employer.

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5. Respondent takes applications from individuals who have home
health care or nursing experience and is a placement service for clients
who contract with Respondent. The placements can be permanent/
temporary or permanent. (Tr. 9) Respondent receives a placement fee for
its services.
6. Complainant is a Caucasian who is married to an African-
American.
7. Complainant has been certified as a nursing assistant since
1979.1
8. Complainant began her association with Respondent in 1992.
9. In 1996 Complainant was placed with Mr. Ingram and provided
him with home health care services until his death in December of 2000,
one week before Christmas.
1 Complainant worked for the Red Riding Hood Agency from 1979 until it was
bought by Respondent in 1992. (Tr. 16)

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10. Complainant contacted Respondent and requested a new
assignment. Complainant was placed with Mrs. Zofchak on December 26,
2000.
11. Complainant was not comfortable working for Mrs. Zofchak
becauseMr	s	.Zof	c	hakwas“	v	er	yr	aci	alandshekeptmak	i	ngr	aci	al(	si	c)and
r	el	i	gi	ousst	at	ement	sal	loft	het	i	me”	. (	Tr	.18)
12. Complainant asked for a replacement and a new full-time
position.
13. After two weeks Complainant was replaced.
14. Complainant worked for Ms. Jennings for four or five weeks
from March to mid-April 2001.
15. The position started out as an eight-hour position, then went to
six hours, four hours, until it finally dropped to two hours.

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16. Respondent	’	shus	band cal	l	ed Compl	ai	nantathome and t	old
her he would find someone in Wadsworth to do the job and that it was not
wor	t	hCompl	ai	nant	’	st	i	met	ogot	oWadswor	t	hf	orj	us	tt	wohour	s	.2
17. Af	t	er t	he J	enni	ngs’ j	ob, Compl	ai	nant r	ecei	v	ed anot	her
assignment from June 1-26, 2001.
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
2 Compl	ai	nantl	i	ves i	n Cuyahoga Fal	l	s whi	ch i	s hal	fan hour	’	s dr	i	ve t	o
Wadsworth.

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various witnesses is not in accord with the findings therein, it is not
credited.3
1. The Commission alleged in the Complaint that Respondent has
subjected Complainant to disparate terms and conditions of employment
including, but not limited to, a racially offensive and hostile work
environment, and a refusal to assign her full-time health care positions.
2. This allegation, if proven, would constitute a violation of R.C.
4112.02 (A), 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 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 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).
3 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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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 discrimination under
Title VII of the Civil Rights Act of 1964 (Title VII).
5. Title VII has been construed broadly by federal courts to protect
individuals who are victims of discriminatory animus toward third persons
with whom the individuals associate. Tetro v. Elliot Popham Pontiac, 173
F. 3d 988, 1999 U.S. App. LEXIS 6098 ( 6th Cir.), citing, Parr v. Woodmen
of the World Life Ins. Co., 791 F.2d 888, 890 (11th Cir. 1986) (ruling that
both Title VII and section 1981 prohibit hiring discrimination based on an
i	ndi	v	i	dual	’	s as	soci	at	i	on wi	t	h Af	r	i	can-Americans, or based on interracial
marriage); Chacon v. Ochs, 780 F. Supp. 680, 680-81 (C.D. Cal. 1991)
(holding that it is unlawful under Title VII to discriminate against a white
woman married to a Hispanic man); Whitney v. Greater N.Y. Corp. of
Seventh-Day Adventists, 401 F. Supp. 1363, 1366 (S.D. N.Y. 1975) (ruling
that Title VII provides a cause of action for a white plaintiff who is
di	s	cr	i	mi	nat	ed agai	nstbecause oft	he pl	ai	nt	i	f	f	’	sr	el	at	i	onshi	p wi	t	h Af	r	i	can-
Americans).

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6. 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 burden of establishing a prima
facie case is not onerous. Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 253, 25 FEP Cases 113, 115 (1981). It is simply part of an
ev	i	dent	i	ar	yf	r	amewor	k“	i	nt	endedpr	ogr	ess	i	v	el	yt	oshar	pent	hei	nqui	r	yi	nt	o
t	he el	usi	v	e f	ac	t	ualques	t	i	on ofi	nt	ent	i	onaldi	s	cr	i	mi	nat	i	on.	”Id., at 254, 25
FEP Cases at 116, n.8.
7. The proof required to establish a prima facie case is also flexible
and, therefore, may vary on a case-by-case basis. McDonnell Douglas,
supra at 802, 5 FEP Cases at 969, n.13. In this case, the Commission may
establish a prima facie case of race discrimination by proving that:
(1) Complainant is a member of a protected class;
(2) Complainant was qualified for the position;
(3) Respondent subjected Complainant to different terms and
conditions of employment than employees not within the
protected class; and

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(4) Respondent failed to give Complainant permanent work
assignments under circumstances which give rise to an
inference of discrimination.
Burdine, supra at 253, 25 FEP Cases at 115, 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).
8. If the Commission succeeds in establishing a prima facie case of
race discrimination, the burden of production shifts to Respondent to
“	ar	t	i	cul	at	esomel	egi	t	i	mat	e,nondi	s	cr	i	mi	nat	or	yr	eason”f	ort	heempl	oy	ment
action.4 McDonnell Douglas, supra at 802, 5 FEP Cases at 969. To meet
this burden of production, Respondent must:
...“	cl	ear	l	ysetf	or	t	h,t	hr	ough t	he i	nt	r	oduc	t	i	on ofadmi	s	si	bl	e
ev	i	dence,	”r	easonsf	ori	t	sac	t	i	onswhi	c	h,if believed by the trier
of fact, would support a finding that unlawful discrimination was
not the cause of the employment action.
St	.Mar	y’	sHonorCent	erv.Hi	ck	s	, 509 U.S. 502, 507, 62 FEP
Cases 96, 103 (1993), quoting Burdine, supra at 254-55, 25
FEP Cases at 116, n.8.
4 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 def	endant	’	s bur	den i	s mer	el	y t	o ar	t	i	cul	at	e t	hr	ough some pr	oofa
facially nondiscriminatory reason for the failure to give Complainant a
permanent assignment. 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
“	dr	ops outoft	he pi	ct	ur	e”when t	he empl	oy	erar	t	i	cul	at	es a l	egi	t	i	mat	e,
nondiscriminatory reason for its employment action. Hicks, supra at 511,
62 FEP Cases at 100.
9. Respondent met its burden of production by asserting that it does
not guarantee its home health care providers that they will receive
permanent/temporary or permanent assignments. Respondent also denied
she made any racially derogatory statements to Complainant.
10. Respondent having met its burden of production, the
Commission must prove that Respondent unlawfully discriminated against
Complainant because of her association with an African-American. Hicks,
supra at 511, 62 FEP Cases at 100. The Commission must show by a
pr	eponder	anceoft	heev	i	dencet	hatRespondent	’	sar	t	i	cul	ated reason was
nott	het	r	uer	eason,butwas“	apr	et	ex	tf	ordi	s	cr	i	mi	nat	i	on.	”Id., at 515, 62
FEP Cases at 102, quoting Burdine, supra at 253, 25 FEP Cases at 115.
[	A]r	easoncannotbepr	ov	edt	obea“	pr	et	ex	tf	ordi	s	cr	i	mi	nat	i	on”
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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11. Thus, ev	en i	f t	he Commi	s	si	on pr	ov	es t	hat Respondent	’	s
articulated reason is false or incomplete, the Commission does not
automatically succeed in meeting its burden of persuasion:
Thatt	heempl	oy	er	’	spr	of	f	er	edr	easoni	sunper	suasi	v	e,orev	en
obviously contrived, does not necessarily establish that the . . .
[	Commi	ss	i	on’	s	] pr	of	f	er	ed r	eason of r	ac	e i	s cor	r	ec	t	. 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.
12. In order to show pretext, the Commission may directly or
i	ndi	r	ec	t	l	ychal	l	enget	he cr	edi	bi	l	i	t	yofRespondent	’	sar	t	i	c	ul	at	ed r	eason f	or
not giving her a permanent/temporary or permanent placement. The
Commi	ssi	on may di	r	ect	l	y chal	l	enge t	he cr	edi	bi	l	i	t	y 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.

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The f	ac	t	f	i	nder	’	s di	sbel	i	efoft	he r	eas	ons putf	or	war	d by t	he
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.5
13. TheCommi	ssi	onf	ai	l	edt	opr	ov	et	hatRespondent	’	sar	t	i	cul	at	ed
reason for not giving Complainant a permanent placement was a pretext for
unlawful discrimination.
14. There was no credible evidence introduced by the Commission
that other home health care providers not in the protected class were given
preferential treatment in terms of being placed in permanent work
assignments.
15. When asked whether Complainant knew of anyone who
received permanent placement in a new home health care job by
Respondent	,Compl	ai	nantanswer	ed,“	Notspeci	f	i	cknowl	edge,no.	”(	Tr	.46)
5 Event	houghr	ej	ect	i	onofar	espondent	’	sar	t	i	cul	at	edr	easoni	s“	enoughatl	awt	o
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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16. Respondent introduced credible evidence that other employees
–an African-American married to a Caucasian, a Caucasian married to a
Hispanic, and a Caucasian married to an African-American (like
Complainant) - had no problems getting assignments.
17. Additionally, the Commission failed to prove that Respondent
subjected Complainant to a hostile and offensive work environment. To
establish a racially hostile work environment, Complainant must show
conduct:
. . . severe or pervasive enough to create an environment that a
reasonable person would find hostile or abusive, and the victim
must subjectively regard that environment as abusive.
Jackson v. Quanex Corp., 191 F.3d 6, 658 (6th Cir. 1999).
It is well established in the Sixth Circuit that isolated and
ambiguous comments are too abstract, in addition to being
irrelevant and prejudicial, to support a finding of . . .
discrimination.
Grant v. Harcourt Brace, 77 FEP Cases 1068, 1076 (D.C.
S. Ohio 1998) (citations and quotations omitted).

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18. Compl	ai	nant	’	st	est	i	monyr	egarding alleged statements made by
Respondent about coming to a Halloween party and bringing her husband
were, at best, abstract and, therefore, insufficient to establish a hostile work
environment.
19. Additionally, when Complainant complained to Respondent
about Mrs. Zofchak making racial and religious derogatory comments,
Complainant was reassigned within two weeks to another placement.
20. In conclusion, the Commission has failed to meet its evidentiary
burden to show that Complainant was subjected to different terms and
conditions of employment and a hostile work environment because of her
association with an African-American.
RECOMMENDATION
For all of the foregoing reasons, it is recommended that the
Commission issue a Dismissal Order in Complaint No. 9280.
____
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
June 4, 2004