Angela Street-Underwood v. State of Ohio, Dept. of Health

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
Angela Street-Underwood
Complainant
Complaint No. 9260
v. (COL) 71100100 (28318) 031401
22A – A1 – 3333
State of Ohio, Department of Health
Respondent
ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
JIM PETRO JIM PETRO
ATTORNEY GENERAL ATTORNEY GENERAL
Stefan J. Schmidt, Esq. Nicole S. Moss, Esq.
Assistant Attorney General Assistant Attorney General
Civil Rights Section Employment Law Section
State Office Tower, 15th Floor 150 East Gay Street, 22nd Floor
30 East Broad Street Columbus, OH 43215-3167
Columbus, OH 43215-3428 614 – 644 – 7257
614 – 466 – 7900
Counsel for Respondent
Counsel for the Commission
Samuel N. Lillard, Esq.
Mowery & Youell
425 Metro Place North, Suite 420
Dublin, OH 43017
614 – 764 – 1444
Counsel for Complainant ALJ'S REPORT BY:
Denise M. Johnson
Angela Street-Underwood Chief Administrative Law Judge
5865 Cummington Court Ohio Civil Rights Commission
Columbus, OH 43213 1111 East Broad Street, Suite
301
Columbus, OH 43205-1379
Complainant 614 – 466 – 6684

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INTRODUCTION AND PROCEDURAL HISTORY
Angela Street-Underwood (Complainant) filed a sworn charge
affidavit with the Ohio Civil Rights Commission (Commission) on
March 14, 2001.
The Commission investigated the charge and found probable cause
that the State of Ohio, Department of Health (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 31, 2002.1
The Complaint alleged that Respondent subjected Complainant to
disparate terms and conditions of employment, and a racially offensive
and hostile work environment, for reasons not applied equally to all
persons without regard to their race.
1 During 2003 Counsel for the Commission requested three (3)
continuances for settlement negotiations, additional time for discovery, and
an attempt to mediate.

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Respondent filed an Answer to the Complaint on March 7, 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 May 18-19, 2004 at the Ohio Civil
Rights Commission’s Central Office, 1111 East Broad Street, Columbus,
Ohio.
The record consists of:
 the previously described pleadings;
 a transcript of the hearing [611 pages];
 exhibits admitted into evidence during the hearing; and
 the post-hearing briefs and the Commission’s reply:
o filed by the Commission on March 30, 2005;
o filed by Respondent on May 20, 2005; and
o filed by the Commission on June 13, 2005.

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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 March 14, 2001.
2. The Commission determined on January 20, 2002 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 a corporation [a political subdivision of the
State of Ohio] doing business in Ohio and an employer.
5. Complainant is African-American.
6. In 1987, Complainant began her employment with
Respondent in the Division of Prevention in the Bureau of Infectious
Disease Control.
7. In 1997, Complainant became the supervisor for the HIV Unit
of the HIV/STD Prevention Program (HIV/STD) within the organization.
8. In March of 2001, the immediate supervisor over the
HIV/STD was Juliet Dorris-Williams (Dorris-Williams), African-American.
9. Dorris-Williams’ immediate supervisor was the Bureau Chief
for the Bureau of Infectious Diseases, Barbara Bradley (Bradley),
Caucasian.

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10. In March 2000, Bradley was hired by and reported directly to
Deputy Director Deborah Arms (Arms), Caucasian.
11. When Arms hired Bradley, Arms communicated to her that
Bradley’s primary goal was to reorganize the HIV/STD so that the local
health district offices provide direct services and the role of the state
office was to facilitate that effort.
12. As a result of the evaluation process of the HIV/STD, Bradley
concluded that Complainant was performing duties that were outside
the scope of her job that Dorris-Williams should have been performing.
13. As the HIV/STD Manager, Complainant was performing the
following duties:
 supervising the staff, including oversight of time and
attendance;
 program development;
 implementation of strategic planning;
 grant management;
 developing and writing portions of the grants for the
State of Ohio; and
 fiscal responsibilities, including moving funds, notice of
awards, budget revisions, and allocations.

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14. In carrying out her directive from Arms, Bradley expected to
have full cooperation from her direct reports in evaluating the current
state of the HIV/STD.
15. Bradley believed that Complainant was not communicative
in regard to how Complainant was performing her job.
16. From 1995 through 1999 Complainant received very good
performance evaluations.
17. Bradley gave Complainant a 2002 performance evaluation of
two “poors” and one “meets”. Complainant appealed Bradley’s evaluation
and eventually received two “meets” and one “poor”.
18. Bradley required Complainant to meet with her on a daily
basis where she asked Complainant to explain what she was doing, why
she was doing it, and how long it was taking.2
2 As a result of her evaluation and oversight of Complainant’s job
performance and Complainant’s lack of communication with Bradley about
how she was managing her area of responsibility, Bradley requested that
Complainant and Dorris-Williams meet with her on a daily basis, starting on or
around January 31, 2001.

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19. Bradley also took away many of the job duties Complainant
had been performing for years.
20. Bradley changed the flex-time policy for the HIV/STD so
employees could no longer work four ten-hour days.
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.3
1. The Commission alleged in the Complaint that Respondent
subjected Complainant to disparate terms and conditions of employment,

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and a racially offensive hostile work environment, for reasons not applied
equally to all persons without regard to their race.
2. This allegation, if proven, would constitute a violation of R.C.
4112.02, 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 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 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).
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).
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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5. 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 evidentiary framework “intended progressively to sharpen the inquiry
into the elusive factual question of intentional discrimination.” Id., at
254, 25 FEP Cases at 116, n.8.
6. 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; and
(2) Respondent treated Complainant differently from
similarly situated non-minority employees for the same
or similar conduct.
Hollins v. Atlantic Co., Inc., 80 FEP Cases 835 (6th Cir. 1999).
7. The Commission having established a prima facie case of
race discrimination, the burden of production shifted to Respondent

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to “articulate some legitimate, nondiscriminatory reason(s)” for the
employment action.4 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.
The presumption created by the establishment of a prima facie case
“drops out of the picture” when the employer articulates a legitimate,
nondiscriminatory reasons for the employment action. Hicks, supra at
511, 62 FEP Cases at 100.
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 defendant’s burden is merely to articulate through some proof
a facially nondiscriminatory reason for the treatment of the
complainant; 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 non-
discriminatory fashion.
EEOC v. Flasher Co., 60 FEP Cases 814, 817 (10th Cir. 1992)
(citations and footnote omitted).

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8. Respondent met its burden of production with the
introduction of evidence that two months after Bradley took on her new
duties she began to notice problems with Complainant’s performance
and felt that Complainant was performing duties which were outside of
her position description.
9. Specifically, in regard to performance issues, Respondent
introduced evidence regarding Complainant’s handling of a purchase
order for 200 bags on wheels, a gift for volunteers that Bradley deemed
extravagant ($10,000, plus the cost of shipping).
10. After negotiation, the amount was reduced. Complainant
ordered additional logo bags with the remaining balance of the $10,000
purchase order. The bags were ordered on Complainant’s verbal
authorization without first getting Bradley’s signature on the purchase
order.
11. Complainant also had problems with tardiness. (Tr. 55)
12. Respondent having met its burden of production, the
Commission must prove that Respondent unlawfully discriminated
against Complainant because of race. Hicks, supra at 511, 62 FEP

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Cases at 100. The Commission must show by a preponderance of the
evidence that Respondent’s articulated reasons for Complainant’s
difference in treatment were not the true reasons, but were “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.
13. Thus, even if the Commission proves that Respondent’s
articulated reasons are 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 race 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 fact-
finder to infer that Complainant was, more likely than not, the victim of
race discrimination.
14. In order to show pretext, the Commission may directly or
indirectly challenge the credibility of Respondent’s articulated reasons for

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reducing Complainant’s job responsibilities. The Commission may
directly challenge the credibility of Respondent’s articulated reasons by
showing that the reasons had no basis in fact or they were 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 fact-finder to infer intentional discrimination from
the rejection of the reasons without additional evidence of unlawful
discrimination.
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.5
Hicks, supra at 511, 62 FEP Cases at 100 (emphasis added).
15. The Commission may indirectly challenge the credibility of
Respondent’s reasons by showing that the sheer weight of the
circumstantial evidence makes it “more likely than not” that the reasons
are a pretext for unlawful discrimination. Manzer, supra at 1084. This
type of showing, which tends to prove that the reasons did not actually
motivate the employment decision, requires the Commission produce
5 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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additional evidence of unlawful discrimination besides evidence that is
part of the prima facie case. Id.
16. The Commission attempted to show pretext in this case by
alleging disparate treatment.
17. 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 … her 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 circum-
stances 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).
18. 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

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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).
19. Respondent argues that the Commission failed to prove that
Complainant was treated differently than similarly situated Caucasian
employees. This argument is well taken. The record is void of credible
evidence that there were Caucasian employees who were under the
supervision of Bradley that were similar to Complainant in regard to the
reasons articulated by Respondent.
20. The Commission cannot prove pretext through disparate
treatment without evidence that a similarly situated comparative was
treated more favorably than Complainant.
21. Although a manager change is not a complete defense to a
disparate treatment claim, it can suggest legitimate, nondiscriminatory

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reasons for the difference in treatment. Cooper v. City of North Olmstead,
795 F.2d 1265, 1271 (6th Cir. 1986).
22. Once Bradley took her position in management, she followed
the directive of Arms to evaluate the existing programs and make
changes where necessary. Bradley needed to have the cooperation and
support of her management team.
23. A reasonable inference can be drawn from the testimony that
Complainant was not comfortable with Bradley’s management style.
Under Dorris-Williams she had a great deal of latitude to perform her job
without much oversight. Bradley had a different management style; she
expected communication and cooperation from Complainant. I do not
believe that Bradley’s actions toward Complainant were based on
discriminatory animus.
24. The Commission attempted to introduce evidence that
Bradley made a remark which can be construed as racist, and therefore
created a hostile work environment.
25. In order to demonstrate that Complainant was subjected to a
hostile work environment the Commission must show:
(1) Complainant is a member of a protected class;

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(2) She was harassed;
(3) The harassment was based on race;
(4) The harassment unreasonably interfered with her work
performance or created a hostile work environment that
was severe and pervasive.
Williams v. General Motors Corp., 187 F. 3d 553, 560 (6th Cir.
1999).
To determine if a work environment is objectively hostile, we
look at the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating,
or mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.
Valentine v. Roche, 386 F. 3d 800, 814 (6th Cir. 2004) quoting
Burnett v. Tyco Corp., 203 F. 3d 980, 982 (6th Cir. 2000).
26. The comment, “You people are always lying to me” was made
by Bradley on two occasions: once to Complainant and Dorris-Williams
in the context of investigating the bag incident, and several months later
to Complainant, Dorris-Williams and a Caucasian female.
27. The comment made by Bradley could fall into the category of
an offensive utterance that could be perceived as negative stereotyping.

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28. However, the comment fails to meet the severe and pervasive
standard that would have unreasonably interfered with Complainant’s
work performance.
RECOMMENDATION
For all of the foregoing reasons, it is recommended that the
Commission issue a Dismissal Order in Complaint No. 9260.
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
December 19, 2006