Tammy A. Greer v. Lazlo Temesi dba Villiage Square Jewelers

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
TAMMY A. GREER
Complainant
Complaint #9148
and (CLE) E4060100 (32481) 110600
LAZLO TEMESI D/B/A
VILLAGE SQUARE JEWELERS
Respondent
ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATIONS
JIM PETRO
ATTORNEY GENERAL
Susan J. Reynolds, Esq. William L. Summers, Esq.
Assistant Attorney General Summers & Vargas
Office of the Attorney General 23240 Chagrin Boulevard
One SeaGate, Suite 2150 Cleveland, OH 44112-5469
Toledo, OH 43604-1551 (216) 591-0727
(419) 245-2550
Counsel for Respondent
Counsel for the Commission
Mark D. Katz, Esq. Tammy A. Greer
Ulmer & Berne 2250 Par Lane, Suite 1114
1300 East 9th Street Willoughby, OH 44094
Cleveland, OH 44114-1583
(216) 621-8400 Complainant
Counsel for Complainant
ALJ'S REPORT BY:
Denise M. Johnson
Chief Administrative Law Judge
Ohio Civil Rights Commission
1111 East Broad Street, Suite 301
Columbus, OH 43205-1379
(614) 466-6684

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INTRODUCTION AND PROCEDURAL HISTORY
Tammy A. Greer (Complainant) filed a sworn charge affidavit with
the Ohio Civil Rights Commission (Commission) on November 6, 2000.
The Commission investigated the charge and found probable cause
that Lazlo Temesi d/b/a Village Square Jewelers (Respondent) engaged
in unlawful employment practices in violation of Revised Code Section
(R.C.) 4112.02(I).
The Commission attempted, but failed to resolve this matter by
informal methods of conciliation. The Commission subsequently issued a
Complaint on July 19, 2001.
The Complaint alleged that Respondent filed a suit against
Complainant in retaliation for having engaged in protected activity by filing
suit against Respondent for sexual harassment.
Respondent filed an Answer to the Complaint on February 14, 2002.

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No public hearing was held based upon the Admissions of
Respondent and by stipulations of the parties. Briefs were filed by the
Commission on August 9, 2002 and by Respondent on September 3,
2002. TheCommi	ssi	on’	sr	epl	ybr	i	efwasf	i	l	edonSept	ember16,2002.
FINDINGS OF FACT
1. Complainant filed a sworn charge affidavit with the Commission
on November 6, 2000.
2. The Commission determined on July 19, 2001 that it was
probable that Respondent engaged in unlawful retaliation in violation of
R.C. 4112.02(I).
3. The Commission attempted to resolve this matter by informal
methods of conciliation. The Commission issued the Complaint after
conciliation failed.

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CONCLUSIONS OF LAW AND DISCUSSION
The 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.
1. The Commission alleged in the Complaint, inter alia, that
Respondent filed suit against Complainant, seeking $70,000 in damages,
in retaliation for her having engaged in protected activity by filing suit
against Respondent for sexual harassment.
2. This allegation, if proven, would constitute a violation of R.C.
4112.02(I), which provides, in pertinent part, that:

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It shall be an unlawful discriminatory practice:
(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(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
evidence sufficient to support a finding of unlawful retaliation under Title
VII of the Civil Rights Act of 1964 (Title VII).
5. Under Title VII case law, the evidentiary framework established
in McDonnell Douglas Co. v. Greene, 411 U.S. 792, 5 FEP Cases 965
(1973) for disparate treatment cases applies to retaliation cases. This

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framework normally requires the Commission to prove a prima facie case
of unlawful retaliation by a preponderance of the evidence. The burden of
establishing a prima facie case is not onerous. Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 254, 25 FEP Cases 113, 116, (1981). It
i	s si	mpl	y par	tofan ev	i	dent	i	ar	y f	r	amewor	k “	i	nt	ended pr	ogr	ess	i	v	el	y t	o
sharpen the inquiry into the elusive factual question of intentional
di	s	cr	i	mi	nat	i	on.	”
6. In the present case, where the adverse action complained of
occurs after the employment relationship has ended, the Commission can
establish a prima facie case of retaliation by demonstrating the following:
1. That the Complainant engaged in a protected activity by
participating in a proceeding involving an alleged
violation of R.C. 4112.02;
2. That the Complainant subsequently suffered an adverse
action by the Respondent; and
3. That there is a causal connection between the protected
activity and the adverse action.
Hollins v. Atlantic Co., Inc., 188 F. 3d 652 (6th Cir. 1999); Jackson v. Pepsi
Cola, 40 FEP Cases 222.

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7. Once the Commission establishes a prima facie case, the burden
of pr	oduc	t	i	on shi	f	t	s t	o Respondent t	o “	ar	t	i	cul	at	e some l	egi	t	i	mat	e,
nondiscr	i	mi	nat	or	y r	eason” f	or t	he empl	oy	ment act	i	on.1 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	ought	hei	nt	r	oduc	t	i	onofadmi	s	s	i	bl	e
ev	i	dence,	”r	easonsf	ori	t	s act	i	onswhich, 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.
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 the employment action. Hicks, supra at 511,
62 FEP Cases at 100.
1 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	’	sbur	den i	smer	el	y t	o ar	t	i	cul	at	e t	hr	ough some pr	oofa
facially nondiscriminatory reason for the [retaliation]; 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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8. In this case, it is not necessary to determine whether the
Commission proved a prima facie case. Respondent	’	sar	t	i	cul	at	i	on ofa
legitimate, nondiscriminatory reason for filing a lawsuit against
Complainant removes any need to determine whether the Commission
proved a prima facie case,andt	he“	f	act	ual	i	nqui	r	ypr	oceedst	oanewl	ev	el
ofspec	i	f	i	ci	t	y	.	”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.
9. Respondent having met its burden of production, the
Commission must prove that Respondent retaliated against Complainant
because she engaged in protected activity. Hicks, supra at 511, 62 FEP
Cases at 100.
10. The retaliation provision under R.C. 4112.02(I) contains an
opposition clause and a participation clause. Since courts have analyzed

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these clauses differently, it is important to focus on the nature of the
alleged protected activity.
The distinction between employee activities protected by the
participation clause and those protected by the opposition
clause is important because federal courts have generally
granted less protection for opposition than participation.
Aldridge v. Tougaloo College, 64 FEP Cases 708, 711 (S.D.
Miss. 1994), citing Brown v. Williamson Tobacco Co., 50 FEP
Cases 365 (6th Cir. 1989).
Courts usually grant absolute protection for participation activities, such as
filing a discrimination charge, testifying in civil rights proceedings, or
otherwise participating in such proceedings. Proulx v. CitiBank, 44 FEP
Cases 371 (S.D.N.Y. 1987).
11.I	nt	hepr	es	entcas	eRespondentasser	t	st	hatt	heCommi	ssi	on’	s
case fails to state a claim for which relief can be granted under R.C.
4112.02(I) based on the following defenses:
1. Complainant was not an employee of Respondent at the
time that the alleged retaliatory conduct occurred; and
2. The filing of a lawsuit against a former employee who
opposed alleged discriminatory conduct by filing a
lawsuit against Respondent is not per se retaliatory
conduct.

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12. Respondent	’	sposi	t	i	on i	gnor	est	he pol	i	cyunder	l	y	i	ng Ti	t	l	e VI	I
and relevant case law.
13. Title VII was enacted to establish a federal right to equal
opportunity in employment. [See Equal Employment Opportunity Act of
1972, Pub. L. No. 92-261 , (stat	i	ng t	hat“	Ti	t	l	e VI	I	’	s goali	s t	o f	ur	t	her
pr	omot	e equalempl	oy	mentoppor	t	uni	t	i	es f	orAmer	i	c	an wor	ker	s”	)	]	,see
also Loc	al28oft	heSheetMet	alWor	ker	s’I	nt	’	l	.Ass’	n.v.EEOC, 478 U.S.
421, 423 (1986) (stating that Title VII guarantees equal employment
opportunity).
14. Title VII relies on individual initiative and determination to bring
t	o l	i	ghtan empl	oy	er	’	s unl	awf	ulbehav	i	or	. To al	l	ow empl	oy	er	s t	o f	i	l	e
lawsuits against employees who oppose what they believe to be
discriminatory conduct would have a chilling effect on employee initiative,
thereby undermining the goal of the statute. See EEOC v. Virginia
Carolina Veneer Corp., 495 F. Supp. 775 (W.D. Va. 1980).
15.Thegi	s	tofRespondent	’	sar	gumentl	i	esont	heass	er	t	i	ont	hat
the judgment against Complainant at trial supports a determination that

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herl	awsui	twas f	r	i	v	ol	ous. Respondent	’	s posi	t	i	on i	s hol	l	ow and l	acks
merit.
16. An action under Civil Rule 11 (Eleven) was at all times available
to the Respondent to address the filing of a frivolous lawsuit by
Compl	ai	nant	.O.R.	C.2323.	51def	i	nes“	f	r	i	v	ol	ous”conductasconductofa
par	t	yorhi	scounselt	hat“	obv	i	ousl	yser	v	est	ohar	assormal	i	ci	ousl	yi	nj	ur	e
anot	herpar	t	yt	oaci	v	i	lact	i	onorappeal	.	” “	Mal	i	ceandi	nt	entt	oi	nj	ur	eor
har	as	s”wer	eamongt	heal	l	egat	i	onsc	ont	ai	nedi	nRespondent	’	scompl	ai	nt	.
17. In EEOC v. Outback Steakhouse of Florida, Inc., 75 F.Supp.
2d 756 (N.D. Ohio 1999), the court found that a counterclaim filed by the
defendant in a sexual harassment suit constituted unlawful retaliation.
Other circuits have also reached similar results: Harmar v. United Airlines,
Inc., 1996 U.S. Dist. Lexis 5346 (N.D. Ill.); Shafer & Smith v. Dallas
County Hospital District, 1997 U.S. Dist. LEXIS 23451 (N.D. Texas); and
Berry v. Stevinson Chevrolet, 74 F. 3d. 980 (10th Cir. 1996).
18. Respondent	’	s ot	herdef	ense,t	hatt	he Commi	s	s	i	on cannot
establish a prima facie case of retaliation under 4112.02(I) because

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Compl	ai	nantwasnotanempl	oy	eeofRespondent	’	satt	het	i	met	hel	awsui	t
was filed, has no merit.
19. In Robinson v. Shell Oil, 519 U.S. 337 (1997), the Court
unanimously held that Title VII prohibits employers from retaliating against
former employees as well as current employees. The court rejected the
strict constructionist argument surrounding the statutory language that
“	empl	oy	ee”appl	i	est	ocur	r	entempl	oy	ees.
20. The action of Respondent in the instant case is retaliatory in
violation of R.C. 4112.02(I), and Complainant is entitled to remedy as a
matter of law.

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RECOMMENDATIONS
For all of the foregoing reasons, it is recommended in Complaint
#9148 that:
1. The Commission order Respondent to cease and desist from all
discriminatory practices in violation of R.C. Chapter 4112; and
2. The record remain open for a period of ninety (90) days to enable
the parties to introduce evidence into the record regarding damages.
Denise M. Johnson
Chief Administrative Law Judge
March 12, 2003

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
TAMMY A. GREER
Complainant
Complaint #9148
and (CLE) E4060100 (32481) 110600
LAZLO TEMESI D/B/A
VILLAGE SQUARE JEWELERS
Respondent
ADMINISTRATIVE LAW JUDGE'S RECOMMENDATION
RE: DAMAGES
JIM PETRO
ATTORNEY GENERAL
Susan J. Reynolds, Esq. William L. Summers, Esq.
Assistant Attorney General Summers & Vargas
Office of the Attorney General 23240 Chagrin Boulevard
One SeaGate, Suite 2150 Cleveland, OH 44112-5469
Toledo, OH 43604-1551 (216) 591-0727
(419) 245-2550
Counsel for Respondent
Counsel for the Commission
Mark D. Katz, Esq. Tammy A. Greer
Ulmer & Berne 2250 Par Lane, Suite 1114
1300 East 9th Street Willoughby, OH 44094
Cleveland, OH 44114-1583
(216) 621-8400 Complainant
Counsel for Complainant
ALJ'S REPORT BY:
Denise M. Johnson
Chief Administrative Law Judge
Ohio Civil Rights Commission
1111 East Broad Street, Suite 301
Columbus, OH 43205-1379
(614) 466-6684

DAMAGES
PROCEDURAL BACKGROUND
On July 19, 2001, the Commission issued Complaint No. 9148
in the case captioned Tammy Greer v. Laslo Temesi dba Village Square
Jewelers. Amongot	heral	l	egat	i	ons	,t	heCommi	s	si	on’	sCompl	ai	ntal	l	eged
that Respondent violated R.C. 4112.02(I) by filing a lawsuit against
Complainant in retaliation for her having filed a sexual harassment lawsuit
against Respondent. Briefs were filed by the Commission and Respondent
in lieu of a public hearing.
On March 12, 2003, the Administrative Law Judge issued a Report
and Recommendations in Complaint No. 9148 making the following
recommendations:
1. The Commission order Respondent to cease and desist
from all discriminatory practices in violation of R.C.
Chapter 4112; and
2. That the record remain open to enable the parties to
introduce evidence into the record regarding damages.

A public hearing was held in Cleveland, Ohio on February 24, 2004.
The transcript consisted of 34 pages. The Commission filed a brief on
July 7, 2004; Respondent filed its brief on August 13, 2004; and the
Commi	ssi	on’	sr	epl	ybr	i	efwasf	i	l	edAugust23,2004.
The ALJ makes the following recommendation as to damages
Respondent should pay as a result of his violation of R.C. 4112.02(I):
1. Respondent pay toCompl	ai	nant$16,	000.	00f	orat	t	or	ney	’	s
fees, the amount that Complainant spent in defense of the
lawsuit filed by Respondent.
Denise M. Johnson
Chief Administrative Law Judge
November 1, 2004