Kaizaad Kotwal v. Columbus State Community College

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
KAIZAAD N. KOTWAL
Complainant 	Complaint #8226
(COL) 71092196 (24378) 032197
and 	22A-97-3555
COLUMBUS STATE
COMMUNITY COLLEGE
Respondent
HEARING EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
BETTY D. MONTGOMERY
ATTORNEY GENERAL
Patrick M. Dull, Esq. 	Wanda L. Carter, Esq.
Assistant Attorney General 	Moots, Cope & Stanton
Civil Rights Section 	3600 Olentangy River Road
State Office Tower, 15th Floor 	Columbus, OH 43214-3913
30 East Broad Street 	(614) 459-4140
Columbus, OH 	43215-3428
(614) 466-7900 	Counsel for Respondent
Counsel for the Commission
Michael A. Moses, Esq. 	Kaizaad N. Kotwal
330 South High Street 	251 West 1st Avenue, Apt. B
Columbus, OH 	43215 	Columbus, OH 	43201
(614) 224-7291
Complainant
Counsel for Complainant
HEARING EXAMINER'S REPORT BY:
Franklin A. Martens, Esq.
Chief Hearing Examiner
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
Kaizaad N. Kotwal (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on March 21, 1997.
The Commission investigated and found probable cause to believe that
unlawful discriminatory practices had been engaged in by Columbus State
Community College (Respondent) in violation of Revised Code (R.C.) §
4112.02(A).
The 	Commission's 	efforts 	to 	eliminate 	the 	alleged 	unlawful
discriminatory practices by conciliation were unsuccessful. 	A complaint was
issued on March 12, 1998.
The Complaint alleges that Complainant was denied hire because of his
national origin.
Respondent filed a timely Answer to the complaint, admitting certain
procedural 	allegations 	but 	denying 	that 	it 	engaged 	in 	any 	unlawful
discriminatory practices.

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A public hearing was held on November 6, 1998 at the Commission’s
Central Office in Columbus, Ohio.
The record consists of the previously described pleadings, the transcript
consisting of 265 pages of testimony, exhibits admitted into evidence at the
hearing, and written stipulations. 	The Commission filed a post-hearing brief
on February 23, 1999. 	Respondent filed a post-hearing brief on March 17,
1999.
FINDINGS OF FACT
The following findings are based, in part, upon the Hearing Examiner's
assessment of the credibility of the witnesses who testified before him in this
matter. 	The Hearing Examiner has applied the tests of worthiness of belief
used in current Ohio practice. 	For example, he considered each witness's
appearance and demeanor while testifying. 	He considered whether a witness
was evasive and whether his or her testimony appeared to consist of
subjective opinion rather than factual recitation. 	He further considered the
opportunity each witness had to observe and know the things discussed; each
witness's strength of memory; frankness or the lack of frankness; and the

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bias, prejudice, and interest of each witness. Finally, the Hearing Examiner
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 21, 1997.
2. 	The Commission determined on February 19, 1998 that it was
probable that unlawful discriminatory practices had been engaged in by
Respondent in violation of R.C. § 4112.02(A).
3. 	The 	Commission 	attempted 	to 	eliminate 	the 	alleged 	unlawful
discriminatory practices by conciliation. The Commission issued its complaint
after conciliation failed.
4. 	Respondent is a community college doing business in Ohio and an
employer.
5. 	Complainant was born in India. 	He came to the United States
(U.S.) from India as a student. 	He is permitted to remain in the U.S. under an

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“F-1” visa as long as he remains a student. 	Currently he is pursuing a
doctoral degree at the Ohio State University (OSU). 	He can be employed
while he is pursuing his studies, but only by OSU.
6. 	In order to be employed BY Respondent, Complainant would have
to obtain a different visa, a professional “H-1B” work visa for specialty
occupations. 	The hiring employer applies for the H-1B visa on behalf of the
employee.
7. 	In order to meet the criteria of eligibility for an H-1B visa, the
prospective employer must obtain a prevailing wage determination from the
Ohio Bureau of Employment Services (OBES) and file an appropriately
prepared Labor Condition Application (LCA) approved by the Department of
Labor. 	After obtaining the approved LCA, the employer must file a petition
with the Immigration and Naturalization Service and change of status to an H-
1B category with the appropriate documentation. 	The employer may be liable
for the reasonable cost of return transportation if the employed alien is
terminated from employment before the authorized period. 	The maximum
period of time that a person can hold an H-1B visa is six years. 	After that,
they must obtain permanent residency status (a green card) in order to remain

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in the U.S. 	The criteria for obtaining a green card is different than the criteria
for obtaining an H-1B visa.
8. 	It is possible for a person holding an F-1 visa to accept a position
outside of the university where they are studying for a one-year period as
“optional practical training”. 	Once the year is used up, it can never be
renewed.
9. 	In the summer of 1996, Respondent was hiring two full-time faculty
members for the Communications Skills Department. The hiring process was
coordinated by and controlled by the Human Resources Department (HRD).
HRD had designated one of the two positions as a position that had to be
filled by a minority candidate. 	Complainant learned about the open positions
and met with Christine Holter, Employment Coordinator, on August 14, 1996.
Previously, he had filled out an application and provided the HRD with his
curriculum vitae and a letter. During the interview, Complainant’s immigration
status was discussed. Complainant told Holter that he had a student visa. He
told 	her 	If 	he 	was 	hired, 	it 	could be changed to a professional H-1B
visa. Holter told him she was not familiar with H-1B status or the requirements
and she would have to look into the matter.

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10. 	In the meantime, Complainant was interviewed by the Search
Committee. 	The Search Committee determined that he was their first choice
for the position. 	Dr. Ardinger, the Department Chair, advised HDR that the
remaining interviews with the Dean and Provost could be arranged.
11. 	Dr. Ardinger, who did not have the authority to hire Complainant,
led Complainant to believe that he would receive the position and that the
remaining interviews were merely formalities. He and Complainant proceeded
to work out a teaching schedule for Complainant.
12. 	After her interview with Complainant, Holter consulted with the
College’s Director of Human Resources, Dr. Zitlow, about Complainant’s
immigration status. 	Dr. Zitlow was not familiar with the process for converting
an F-1 visa to an H-1B visa and had to look up the requirements in a manual.
After doing so, he decided not to forward Complainant’s application to the
Dean or the Provost because he did not want to go through the process of
applying for the H-1B visa. 	He was concerned about having to pay the
prevailing wage determined by OBES, having to post the prevailing wage, and

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having the potential responsibility of returning the employee to his country of
origin if his employment was terminated.
13. 	This decision concerning Complainant was communicated to Dr.
Ardinger who informed Complainant around September 21, 1996. 	Dr.
Ardinger told Complainant that Dean Hockenberry, Human Resources, and
the President of the University, Valerina Moeller, had made the decision.
Subsequently, Dr. Ardinger offered Complainant a part-time adjunct position
which he accepted.
14. 	After he accepted the position, Complainant continued to attempt to
persuade Respondent to pursue the H-1B visa. 	Ultimately, Complainant
attempted to schedule a meeting with President Moeller to discuss the
problem. 	She did not meet with him. 	Instead, Dr. Ardinger met with her. Dr.
Ardinger told Complainant that President Moeller said she would not consider
any candidate who did not possess a green card.
15. Complainant continued his part-time employment with Respondent.
He used his one year of optional practical training.

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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 herein, it is not credited.1
1. The Commission alleged in the Complaint that Complainant was
denied hire because of his national origin.
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 . . . national origin, . . . 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 applies to alleged violations of R.C. Chapter 4112.
Little Forest Med. Ctr. of Akron v. Ohio Civ. Rights Comm. (1991), 61 Ohio
St.3d 607. 	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. 	Under Title VII case law, the Commission normally must prove 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

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case-by-case basis. Id., at 802, 5 FEP Cases at 969, n.13. The establishment
of 	a 	prima 	facie 	case 	creates 	a 	rebuttable 	presumption 	of 	unlawful
discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 25
FEP Cases 113 (1981).
6. 	Once the Commission establishes a prima facie case, the burden of
production shifts to Respondent to “articulate some legitimate, nondiscri-
minatory reason” for its actions.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.
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 its actions. Hicks, supra at 511, 62 FEP Cases
at 100.
7. In order to satisfy the first prong of the prima facie case, Complainant

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must be a member of a protected class. 	While it is true that Complainant was
born in India, the Commission’s Complaint actually alleges discrimination on
the basis of citizenship and/or alienage. 	The Commission is not alleging, and
the facts do not support an allegation, that Complainant was discriminated
against because of his national origin, i.e. that he was not hired because he
was of Indian descent.
8. 	The seminal case on this issue was decided by the United States
Supreme Court in 1973 and has remained the law ever since. 	As the Court
explained:
Certainly it would be unlawful for an employer to discriminate
against aliens because of race, color, religion, sex, or national
origin – for example, by hiring aliens of Anglo-Saxon background
but refusing to hire those of Mexican or Spanish ancestry. 	Aliens
are protected from illegal discrimination under the Act [Title VII],
but nothing in the Act makes it illegal to discriminate on the basis
of citizenship or alienage.
Espinoza v. Farah Manufacturing Co., 6 FEP Cases 933, 936-37
(1973).
9. 	Other 	federal 	courts 	that 	have 	considered 	the 	matter 	have
concluded likewise.
2 Although the burden of production shifts to Respondent once a prima facie case is
established, the Commission retains the burden of persuasion throughout the proceeding.

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. 	. 	. 	[N]ational 	origin 	must 	not 	be 	confused 	with 	ethnic 	or
sociocultural traits or an unrelated status, such as citizenship or
alienage . . . .
Chacko v. Texas A & M Univ., 77 FEP Cases 1795, 1800
(S.D. Texas) (1997) (citations and quotations omitted).
10. 	It is not disputed in this case that Complainant was not hired by
Respondent because Respondent did not want to go through the bureaucratic
morass (my characterization) that was created by the federal government in
order for an applicant to change their visa status from a student visa to
an H-1B visa. 	Since Complainant could not work for Respondent with an F-1
student visa, he could not be employed. 	Although the Commission argues
this is national origin discrimination, it is actually discrimination based on
citizenship and/or alienage, which is not unlawful under Title VII.
11. 	The same result follows even if we accept the arguments from the
Commission that somehow the decision not to hire Complainant was based on
fears that American-born applicants might complain if the position was given
to someone who was a “foreigner”.
Burdine, supra at 254, 25 FEP Cases at 116.

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12. 	The Chacko case provides strong precedent for this conclusion.
Chacko, a citizen of Canada, did not have an H-1B visa and was offered a
position at the University. 	During the process of obtaining the H-1B visa, an
anonymous complaint surfaced complaining about the selection process and
complaining that there was never an opportunity for the position to be offered
to an American citizen. 	Based on the complaint, Respondent rescinded their
offer to Chacko, reopened the selection process, and ultimately offered the
position to a U.S. citizen. 	During the second selection process, there were
alleged statements by members of the staff that Chacko should not be hired
and that it was un-American to hire a foreigner. The Fifth Circuit dismissed
Chacko’s Title VII claim, finding that in reality she was complaining about
citizenship discrimination which is not covered by Title VII.
13. Assuming for purposes of argument that the Commission was able
to prove a prima facie case, Respondent met its burden of production of
articulating a legitimate, nondiscriminatory reasons for the decision not to hire
Complainant for a full-time, tenure track position. 	Those reasons were
articulated 	by 	the 	person 	who 	made 	the 	decision, 	Dr. 	Zitlow, 	Human
Resources Director. 	The reasons were simply that Dr. Zitlow did not want to
apply for an H-1B visa because of all the responsibilities and requirements

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that were involved in that process. 	Therefore, Complainant could not be
offered the position because he did not have the appropriate visa.
14. 	Respondent having met its burden of production, the Commission
must show by a preponderance of the evidence that Respondent’s articulated
reasons for discharging Complainant were not its true reasons but were a
pretext for discrimination. 	Hicks, supra at 511, 62 FEP Cases at 100.
[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.
15. 	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
to the factfinder to answer . . .
Id., at 524, 62 FEP Cases at 106.

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In other words,
nothing in law permit[s] . . . substitut[ion] for the required finding
that 	the 	employer’s 	action 	was 	the 	product 	of 	unlawful
discrimination, the much different (and much lesser) finding that
the employer’s explanation of its action was not believable.
Id., at 514-515, 62 FEP Cases at 102.
16. 	Although it is not enough to simply disbelieve Respondent’s
articulated reasons to infer intentional discrimination,
[t]he 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 a prima facie
case, suffice to show intentional discrimination.3
Id., at 511, 62 FEP Cases at 100 (emphasis added).
Ultimately, the factfinder must be convinced that Complainant was “the victim
of intentional discrimination.” Id., at 508, 62 FEP Cases at 99, quoting
Burdine, supra at 256, 25 FEP Cases at 116.
3 Even 	though 	rejection 	of 	Respondent’s 	articulated 	reasons 	under 	these
circumstances is “enough at law to sustain a 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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17. In addition to examining the truthfulness of Respondent’s legitimate,
nondiscriminatory reasons, evidence regarding statements or remarks that
were 	made 	that 	could 	be 	evidence 	of 	discriminatory 	animus 	toward
Complainant because of his Indian national origin are also admissible.
Although 	they 	may 	be 	evidence 	of 	discriminatory 	intent 	under 	some
circumstances, remarks that are vague and ambiguous do not have any
probative value.
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 (DC SOhio
1998) (citations and quotations within a quotation omitted).
See also, Price Waterhouse v. Hopkins, 490 U.S. 228, 49 FEP Cases 954,
974 	(1989) 	(stray 	remarks, 	statements 	by 	nondecisionmakers, 	and
statements by decisionmakers unrelated to the decisional process are
insufficient to conclude that employer relied on impermissible factor in
reaching decision) (O’Connor, J., concurring).
18. 	The Commission does not challenge the truthfulness of the
legitimate, nondiscriminatory reasons offered by Respondent. 	Instead, the
Commission argues that Complainant was not hired because someone was

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concerned that there would be a protest if Complainant was hired because he
was a “foreigner”. However, the evidence showed that even if this was true,
Dr. Zitlow, the decision-maker, was not concerned.
19. 	This concern was never specifically attributed to Dr. Zitlow. 	The
issue arose during a conversation Complainant had with Dr. Ardinger where
Complainant allegedly asked Dr. Ardinger, “Somebody up there is concerned
that an American would protest a foreigner getting a full-time, tenure track
position?” 	Dr. Ardinger responded, “Yes.” 	(Tr. 65-66)
20. 	However, even if this statement was made, it is too vague and
ambiguous to be considered direct evidence of discrimination. 	Direct
evidence
is “[e]vidence which, if believed, proves the fact in issue without inference or
presumption.” 	Black’s Law Dictionary, Sixth Ed. p. 460.
Strictly speaking, the only “direct evidence” that a decision was
made 	“because 	of” 	an 	impermissible 	factor 	would 	be 	an
admission by the decisionmaker such as “I fired him because he
was too old.” Even a highly probative statement like “you’re fired,
old man” still requires the factfinder to draw the inference that the
plaintiff’s age had a causal relationship to the decision.
Tyler v. Bethlehem Steel Corp., 59 FEP Cases 875, 882 (2d Cir.
1992).

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21. 	In order for circumstantial evidence to suffice, the evidence must
be “tied directly to the alleged discriminatory animus.” 	Ostrowski v. Atlantic
Mutual Ins. Co., FEP Cases 1139 (2d Cir. 1992). 	In other words, recent
conduct or statements by persons involved in the decisional process that
directly reflect the alleged discriminatory animus and have some relationship
to that process may permit the factfinder to conclude that such animus was,
more likely than not, a motivating factor in the decision.
22. 	The statement by Dr. Ardinger, even if it was made as it was
characterized by Complainant, was not direct evidence of discriminatory
animus because it was not attributed to a decision-maker. 	In fact, further in
the conversation, Dr. Ardinger indicated that the “somebody up there” was not
the Dean or the President. 	(Comm.Ex. 4, pp. 7-8) 	Dr. Ardinger indicated the
concern might have come from HRD, but the evidence showed Dr. Zitlow was
only concerned about the red tape that was involved in the H-1B process, not
the potential that someone might complain about the position being awarded
to a noncitizen. 	Even if that was one of his concerns, it would not be
evidence of national origin discrimination. 	See Chacko, supra.

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23. Therefore, even if it was true that “someone up there” was
concerned that there might be a protest if the position was awarded to a
noncitizen, there concern does not constitute direct evidence of national origin
discrimination.
24. 	The Commission also argued that Holter, who was a member of
the HRD, told Complainant that although one of the positions had been
targeted for a minority, it was not a position for a minority like him or a “foreign
minority”. However, these statements, if they were made, must be put in
context. 	Holter was explaining to Complainant that even if his visa problem
could be resolved, he did not qualify as a minority as it was defined by the
Equal Employment Opportunity Commission (EEOC) and Respondent’s
affirmative action plan. For affirmative action purposes, minorities must be
U.S. citizens. 	Therefore, even if she used the term “not a minority like you”,
she was not referring to Complainant’s national origin. 	She was referring to
his status as an alien or noncitizen. 	In any event, Holter was not the
decision-maker.
25. 	The Commission also argued that a remark that was allegedly
made by President Moeller that Complainant was not hired because he

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did not have a green card was evidence of discriminatory animus. 	However,
President Moeller did not make the decision not to hire Complainant.
Complainant’s appeal to her was made after-the-fact. 	President Moeller is of
Indian ancestry. Therefore, it is highly unlikely that she would have some
animus 	against 	Complainant 	because 	of 	his 	Indian 	national 	origin.
Furthermore, this statement, if it was made, indicates a preference for aliens
who have permanent residence in the U.S., i.e. aliens who possess green
cards. It is not evidence of discriminatory animus based on national origin.
DISPARATE IMPACT
26. 	The Commission also argues that Respondent’s decision to not
pursue an H-1B visa for Complainant had a disparate impact on a class of
persons who are aliens, but do not have permanent resident status in the U.S.
Again, this appears to be an allegation that such a policy would have a
disparate impact because of the person’s status as a noncitizen or their status
as an alien, not because of their national origin. 	It does not necessarily follow
that the policy has a disparate impact on persons because of their national
origin. There are many persons who were not born in the U.S. who have U.S.
citizenship. 	There are also many persons who were not born in the U.S. who

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are not U.S. citizens, but who have green cards, or some other visa which
entitles them to live and work in the U.S.
27. The United States Supreme Court specifically considered and
rejected the same conclusionary argument the Commission is making in this
case. 	In Espinoza, supra, the EEOC promulgated a regulation which stated
that discrimination on the basis of citizenship has the effect of discrimination
on the basis of national origin. 	The Court disagreed, stating that under the
circumstances of the case it was considering, the EEOC’s premise was not
borne out. 	Espinoza, supra at 936.
28. 	Likewise, that premise was not borne out in this case. The
Commission offered no statistics to support the conclusion that a policy that
restricted employment to persons who were permanent, registered aliens of
the U.S. would have a disparate impact on persons because of their national
origin. In fact, Respondent offered the only statistical evidence in this case.
Respondent offered evidence that 8% of the faculty members at Columbus
State were foreign born. 	Thus, if anything, the evidence is contrary to the
Commission’s assertion. 	Therefore, even if Columbus State had a policy of
only employing faculty members who were not U.S. citizens if they had green

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cards, the policy would not inhibit the employment of persons who were born
outside of the U.S.
29. 	Since the Commission was unable to prove that Complainant was
discriminated against by Respondent because of his national origin or that
Respondent’s hiring practices had a disparate impact on applicants who were
not born in the U.S., the Complaint must be dismissed.
RECOMMENDATION
For all the foregoing reasons, it is recommended that the Commission
issue a Dismissal Order in Complaint #8226.
FRANKLIN A. MARTENS
CHIEF HEARING EXAMINER
October 14, 1999