Robert Hill v. Buckeye Terminex

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
ROBERT HILL
Complainant 	Complaint #8202
(COL) 71011097 (24222) 020797
and 	22A-97-3398
BUCKEYE TERMINEX CO., INC.
Respondent
HEARING EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
BETTY D. MONTGOMERY
ATTORNEY GENERAL
Matthew D. Miko, Esq. 	Robert Hill
Assistant Attorney General 	880 Linwood Avenue
Civil Rights Section 	Columbus, OH 	43206
State Office Tower, 15th Floor
30 East Broad Street 	Complainant
Columbus, OH 	43215-3428
(614) 466-7900
Counsel for the Commission
John E. Breen, Esq. 	John C. Albert, Esq.
General Counsel * Vice President 	Crabbe, Brown, Jones, Potts & Schmidt
Buckeye Terminex Co., Inc. 	500 South Front Street, Suite 1200
2121 Riverside Drive 	P. O. Box 15039
Upper Arlington, OH 	43221 	Columbus, OH 	43215-0014
(614) 486-7716 	(614) 228-5511
Respondent’s In-house Counsel 	Counsel for Respondent
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
Robert Hill (Complainant) filed a sworn charge affidavit with the Ohio
Civil Rights Commission (Commission) on February 7, 1997.
The Commission investigated and found probable cause to believe that
unlawful discriminatory practices had been engaged in by Buckeye Terminex
Co., Inc. (Respondent) in violation of Revised Code (R.C.) § 4112.02(A) and
(I).
The 	Commission's 	efforts 	to 	eliminate 	the 	alleged 	unlawful
discriminatory practices by conciliation were unsuccessful. 	A complaint was
issued on January 29, 1998.
The 	Complaint 	alleged 	that 	Respondent 	discharged 	Complainant
because 	of 	his 	race 	and 	in 	retaliation 	for 	his 	complaints 	of 	racial
discrimination.1
1 Although the Complaint alleged that Complainant was discharged in retaliation for
engaging in protected activity, there was no evidence presented regarding this allegation at
the hearing and no arguments were made in the Commission’s post-hearing brief regarding
this allegation. 	Therefore, it is not necessary to consider this allegation.

2
Respondent filed a timely Answer to the complaint, denying that it
engaged in any unlawful discriminatory practices. 	Respondent also filed a
Motion to Dismiss on August 24, 1998.2
A public hearing was held on September 8-9, 1998 at the Commission’s
Central Office Conference Room in Columbus, Ohio. 	Respondent filed a
Motion to Submit Additional Evidence on October 16, 1998.
The record consists of the previously described pleadings; the transcript
consisting of 458 pages of testimony; written stipulations and exhibits
admitted into evidence at the hearing; and the post-hearing briefs filed by the
Commission on December 23, 1998 and by Respondent on January 14, 1999.
The Commission filed a reply brief on January 25, 1999.
2 Respondent’s 	Motion 	to 	Dismiss 	was 	denied 	by 	the 	Hearing 	Examiner.
Respondent’s Motion to Submit Additional Evidence is also denied.

3
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
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
February 7, 1997.

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2. 	The Commission determined on January 8, 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 corporation doing business in Ohio and an
employer.
5. 	Complainant is a black person.
6. 	Complainant was employed by Respondent on two occasions. 	One
the first occasion he was employed from May 1996 to July 1996. 	He was
employed in the Pest Department and supervised by Pete Kelly, Caucasian.
Kelly had been the manager of that department for six or seven years.
During his first stint of employment, a dispute arose regarding the amount of
compensation Complainant was entitled to. 	Complainant became very

5
agitated and argumentative. 	His behavior was characterized by Kelly as
violent. His behavior frightened some of the office workers at Respondent’s
facility. 	Kelly decided to discharge Complainant because of his behavior.
7. 	Kelly’s supervisor, John Breen, Caucasian, was not present at the
time and did not play a role in the decision to terminate Complainant’s
employment.
8. 	Complainant re-applied for employment in November 1996. 	He was
remorseful about his behavior during his previous employment. 	Breen left the
decision regarding rehire up to Kelly who decided to give Complainant another
chance. 	Complainant’s second stint of employment lasted approximately six
weeks. 	He was discharged on January 10, 1997.
9. 	During his second stint of employment, Complainant was assigned
to the “Metro route”. 	This assignment was supposed to be temporary
because it was the only open position that was available when he applied for
re-employment. 	Subsequently, 	Complainant 	was 	offered 	a 	full-time

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residential position by Kelly, similar to the position he previously held. 	He
refused it because it required more work.
10. 	The Metro route serviced the 3000 dwelling units owned by the
Columbus Metropolitan Housing Authority (Authority). 	Respondent had a
contract with the Authority to provide pest control services. 	The services
primarily consisted of periodically visiting each unit and applying various
chemicals to each of the rooms in the unit in order to control the primary pest,
roaches. 	Usually, two service technicians worked as a team to service the
housing projects. 	They were able to service between 150 and 200 units each
day. 	The time it took to service each unit depended upon the problems.
Vacant units took almost no time. 	The units that were not vacant could also
be serviced rapidly if there were no problems. 	The problem units might take
up to a half hour. 	Units that did not have problems could be serviced in five
to ten minutes or less.
11. 	The service technicians on the Metro route were paid a fixed
salary, $310 per week. 	They were supposed to work from 8:30 a.m. to 4:30
p.m. five days a week. 	They were not permitted to service the units on the

7
weekends. If they finished their daily assignments before 4:30 p.m., they were
supposed to report back to the office for additional assignments.
12. 	Metro service technicians were also eligible for assignments for
other types of services Respondent performed, such as clean outs, a service
provided 	residential 	or 	commercial 	customers. 	Kelly 	assigned 	Metro
technicians additional work if they wanted it during the summer and fall
seasons when the insects were more active and Respondent had more
business than they could handle. 	There were also additional assignments
available during the winter months. 	Complainant did not usually volunteer for
additional assignments because he did not want to work the additional hours.
13. 	Shortly after Complainant began working his second stint of
employment with Respondent, Respondent began receiving complaints about
his work. 	The complaints included complaints that Complainant was not
keeping appointments or was not properly servicing the units. 	In addition to
complaints about service provided by Complainant, other problems were
brought to Breen’s and/or Kelly’s attention regarding Complainant’s behavior.

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14. 	Bill Zupovich, a manager, had a conversation with Larry Scott who
worked with Complainant on the Metro route.3 Because Complainant
appeared to be using an excessive amount of chemicals, Zupovich asked
Scott if Complainant was selling chemicals on the side to Metro residents.
Scott told him about an occasion where he and Complainant were working
together and Complainant told Scott he was going to sell some chemicals to
someone in the “projects” as the Authority was referred to by the Metro
technicians. 	He told him that Complainant left and came back with the
chemicals so he concluded that the sale was never consummated. 	Ron
Mullins, another manager, told Breen that there was a possibility Complainant
was selling chemicals.
15. 	Complainant’s behavior during his second stint of employment led
Breen to conclude that Complainant might be using drugs. Breen observed
that Complainant’s behavior was erratic to the extent that he believed that
Complainant was abusing drugs. 	He concluded that the drug of abuse was
marijuana. 	When Complainant was confronted about the matter, he stated
that he smoked marijuana with Kelly. 	Complainant said he would be willing to
3 They worked together, but serviced different units.

9
take a drug test. When Respondent agreed, Complainant retracted his
statement and said that what he did on his own time was his own business.
Since 	Complainant 	had 	accused 	Kelly 	of 	smoking 	marijuana, 	Kelly
volunteered to take a drug test and passed the test.
16. 	Breen was also concerned about Complainant’s unauthorized use
of company trucks. 	On one occasion, Kelly followed Complainant and found
that Complainant was using the company truck to go to the bank to cash his
check. 	Although other employees had been allowed to use company trucks
on occasion for personal reasons, they were not allowed to use one unless
they had asked for and received permission. Complainant had not asked for
permission to use the truck on that occasion.
17. 	Breen also believed that Complainant had taken a truck home for
the weekend without permission on another occasion. 	The employee who
was supposed to be using the truck to perform services on a Saturday, called
and reported that the truck was not there. 	Respondent charged Complainant
$200 for the lost profits that resulted from being unable to use the truck
Saturday morning. 	Breen also believed Complainant used a company truck
the day before he was fired to go to the unemployment office.

10
18. 	Toward the end of his employment with Respondent, Kelly told
Breen 	he 	was 	unable 	to 	supervise 	Complainant. 	Instead 	of 	firing
Complainant, Breen decided to put Complainant directly under his supervision
to see if he could turn the situation around. 	He had contact with Complainant
on a daily basis. In January 1997, Breen gave Complainant three days off so
Complainant could decide if he wanted to continue working for Respondent.
19. 	The day Complainant returned to work, Breen received a complaint
from Worley Terrace that Complainant was supposed to be working there and
was not there. 	He subsequently learned that instead of working, Complainant
had taken the company truck and gone to the unemployment office. 	Breen
decided to terminate Complainant’s employment after this incident.
20. 	After Complainant’s employment was terminated, he was replaced
by Richard Holmes. 	Holmes was given the same beeper number that
Complainant had. 	He received calls from persons who thought that he was
Complainant and told him they wanted to buy chemicals. 	When he told them
he could not sell them chemicals, they told him they had gotten them before

11
from Complainant. 	Holmes also saw aerosol cans used by Respondent
inside some of the units he was servicing. When he asked the tenants where
they got the cans, they told him they got them from someone who worked for
the company.
21. 	After Complainant was terminated, Respondent learned that while
Complainant was working for them, his driver’s license had been under
suspension and that he had misrepresented that he had a driver’s license
when he was re-employed by Respondent.4
22. 	If Respondent had known that Complainant did not have a valid
driver’s 	license 	in 	January 	1997, 	Respondent 	could 	not 	have 	hired
Complainant for a residential or commercial route because residential and
commercial service technicians work alone and are required to drive a
company truck.
4 Complainant signed a vehicle responsibility agreement where he represented that
he had a valid driver’s license. 	He also made that same representation on Respondent’s
employment application.

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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.5
1. The Commission alleged in its Complaint that Respondent discharged
Complainant because of his race.
2. 	This allegation, if proven, would constitute a violation of R.C.
4112.02 provides, in pertinent part, that:
It shall be an unlawful discriminatory practice:
5 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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(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 applies to alleged violations of R.C. Chapter 4112.
Little Forest Med. Ctr. of Akron v. Ohio Civil 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

14
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,
nondiscriminatory reason” for its actions.6 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.
6 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.
Burdine, supra at 254, 25 FEP Cases at 116.

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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. 	However, in this case, it is not necessary to determine whether the
Commission proved a prima facie case. 	Respondent’s articulation of a
legitimate, nondiscriminatory reason for Complainant’s discharge removes
any
need to determine whether the Commission proved a prima facie case, and
the
“factual inquiry proceeds into a new level of specificity.” 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 (emphasis added).

16
8. 	Respondent met its burden of production. 	Respondent articulated
numerous legitimate, nondiscriminatory reasons for discharging Complainant.

17
9. 	Respondent having met its burden of production, the Commission
must show by a preponderance of the evidence that Respondent’s articulated
reason for discharging Complainant was not the true reason but was 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.
10. 	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.
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.

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11. 	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.7
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.
12. The Commission can also attack Respondent’s reasons by proving
that Complainant was treated differently than similarly situated Caucasian
employees. 	This 	is 	known 	as 	disparate 	treatment. 	The 	essence 	of
discrimination, of course, is disparate treatment. 	Thus, the ultimate decision
to be made in a discrimination case where the Complainant alleges disparate
treatment was explained as follows in Boyd v. U.S. Steel Corp., 20 FEP Cases
727 (W.D. Pa. 1979):
The ultimate decision to be made . . . is whether it is reasonable
to infer from all the evidence that the challenged action was based
7 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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in whole or in part on race. 	The focus must be on the similarity
between the situations of different employees -- whether the
situations are comparable for purposes of applying the doctrine of
McDonald 	and 	McDonald 	Douglas. 	The 	more 	distinct 	the
situations of the two employees of different races [protected
classes] who are treated differently, the less compelling is the
inference that race played a role in the disparate treatment.
Id., at 730.
13. 	The Commission must prove that the "comparables" are similarly
situated in all relevant respects:
A “similarly situated non-minority employee” is one who has “dealt
with 	the 	same 	supervisor, 	[has] 	been 	subject 	to 	the 	same
standards and [has] engaged in the same conduct without such
differentiating or mitigating circumstances [as] would distinguish
their conduct or the employer’s treatment of them for it.” 	[Mitchell
v. Toledo Hospital, 59 FEP Cases 76 (6th Cir. 1992)] 	A “precise
equivalence in culpability” . . . is not required; misconduct of
“comparable seriousness” is sufficient. 	[Harrison v. Metro Gov’t.
of Nashville and Davidson County, 73 FEP Cases 109 (6th Cir.
1996)] 	Similarly situated employees “need not hold the exact
same jobs; however, their duties, responsibilities and applicable
standards of conduct must be sufficiently similar in all relevant
aspects so as to render them comparable.” 	Jurrus v. Frank, 932
F.Supp. 988, 995 (N.D. Ohio 1993).
Hollins v. Atlantic Company, 76 FEP Cases 553, 557 (N.D. Ohio
1997).

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14. 	The 	Commission 	could 	also 	prove 	that 	Complainant 	was
discharged because of his race using direct evidence. 	Direct evidence of
discrimination 	is 	“evidence 	which, 	if 	believed, 	proves 	the 	fact 	without
inference.” 	Brown v. East Miss. Elec. Power Assn., 61 FEP Cases 1104 (5th
Cir. 1993).
15. 	If there is no direct evidence, evidence of racial remarks can be
offered 	into 	evidence 	and 	be 	considered 	as 	proof 	that 	Respondent’s
legitimate, nondiscriminatory reasons were a pretext for discrimination.
. . . [P]roof of incidents of racial epithets . . . may also help . . .
support an allegation that a specific employment action, such as a
discharge, . . . was taken with discriminatory intent, or that the
employer’s proffered nondiscriminatory reason for the action was
pretext.
Cassells v. University Hospital, 62 FEP Cases 963, 966 (D.C. Cir.
1992) (citations omitted).
However, the impact and relevance of alleged racial remarks must be
examined in light of the facts and circumstances of each case. 	Id.

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16. 	Although such remarks are admissible into evidence,
their probativeness is circumscribed if they were made in a
situation temporally remote from the date of the employment
decision 	or 	if 	they 	were 	not 	related 	to 	the 	employment
decision . . . Stray remarks by . . . decisionmakers unrelated to the
decision process are rarely given great weight . . . .
McMillan v. Mass. SPCA, 77 FEP Cases 589, 596 (1st Cir. 1998)
(citations and quotations within a quotation omitted).
17. 	Based on the foregoing discussion, the Commission was unable to
sustain its burden of proof that Complainant’s race was a motivating factor in
the decision to discharge him on January 10, 1997. 	The evidence showed
that Respondent had a good faith belief to support the underlying basis for
Complainant’s 	discharge. 	Breen, 	the 	decision-maker, 	had 	sufficient
information from Complainant’s immediate supervisor and information he
received from other employees to support his decision that Complainant’s
employment should be terminated. 	He also testified about complaints he had
personally received about Complainant’s work.
18. 	Complainant was discharged for a variety of reasons. 	There was
some evidence to support each of the reasons. 	For instance, there was
evidence regarding Complainant’s misuse of a company vehicle. 	(See

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Findings of Fact 16, 17) 	There was evidence that could lead a reasonable
person to believe that Complainant was attempting to sell pesticide on the
side. (See Finding of Fact 14) 	There was evidence that there were occasions
when Complainant was supposed to be working at the Columbus Metropolitan
Housing Authority projects and he was not there. 	(See Findings of Fact 13,
19) 	There were complaints about Complainant’s work performance when he
was working at Columbus Metropolitan Housing Authority. 	(See Finding of
Fact 13) 	There was also evidence that Complainant did not have car and
that he could not get to work unless another employee picked him up and
brought him to work.
19. 	The Commission’s arguments regarding Respondent’s legitimate,
nondiscriminatory reasons appear to be that there was insufficient evidence
that Complainant was engaging in some of the activities that Respondent
ultimately relied on to justify his discharge. 	However, Respondent is not
required to adhere to any evidentiary standard when reaching its decision.
Respondent is not a government agency. 	There was no collective bargaining
agreement. 	In 	essence, 	the 	Commission 	is 	challenging 	Respondent’s
business judgment by arguing Respondent did not have enough reliable

23
information to conclude that Complainant was engaging in the activities that
formed the basis of his discharge. 	However, this is insufficient to sustain the
Commission’s burden of proof that the reasons were false.
[A] plaintiff may not establish that an employer’s proffered reason
is pretextual merely by questioning the wisdom of the employer’s
reason, at least not where, as here, the reason is one that might
motivate a reasonable employer.
Combs v. Meadowcraft, Inc., 73 FEP Cases 232, 249 (11th Cir.
1997).
The law does not require employers to make perfect decisions,
nor forbid them from making decisions that others may disagree
with.
Hartsel v. Keys, 72 FEP Cases 951, 955 (6th Cir. 1996).
20. 	However,
. . [a]lthough it is true that a factfinder should refrain from probing
an employer’s business judgment, a decision . . . based upon
unlawful considerations does not become legitimate because it
can be characterized as a business judgment.
EEOC v. Yenkin Majestic Paint Corp., 73 FEP Cases 1317, 1320
(6th Cir. 1997) (citation omitted.)

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The distinction lies between a poor business decision and a
reason manufactured to avoid liability. Thus, facts may exist from
which a reasonable jury could conclude that the employer’s
“business decision” was so lacking in merit as to call into question
its genuineness.
Hartsel, supra at 955.
In this case, Respondent’s reasons were not so lacking in merit as to call into
question their genuineness.
21. 	The 	Commission 	also 	argued 	that 	there 	were 	Caucasian
technicians who did some of the same things Complainant was accused of
doing and they were not discharged. 	For instance, the Commission argued
that there was a technician who used a company vehicle for personal
reasons. 	However, the only testimony regarding this allegation came from
Complainant. 	Respondent testified that an employee could take a truck
home if they were going to go directly to a job the next day. 	If they had
permission, they could use a truck to go back and forth from their home to
work. 	They could never use a truck for personal reasons without permission.
There 	was 	no 	evidence 	that 	the 	Caucasian 	employee 	did 	not 	have
permission to use the truck or that he was using the truck to conduct personal
business.

25
22. 	In its brief, the Commission also argued there was direct evidence
of discrimination because of alleged racial remarks that were made by
Complainant’s supervisor and another supervisor, both of whom provided
information to Breen that he considered when he decided to terminate
Complainant’s employment. 	However, these remarks cannot be classified as
direct evidence.
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).
23. 	Based on the foregoing discussion, the remarks attributed to Kelly
and another supervisor were not direct evidence. 	These remarks included
the allegation that Complainant’s supervisor used the term “nigger” when
referring to black persons on occasion and called black technicians who
serviced the Authority “home boys”. 	The evidence was insufficient to support
the allegation. Complainant testified that Kelly used the term “black man”

26
when speaking to him about black persons. 	(Tr. 364) 	Complainant’s
testimony about a racial remark made by another management employee was
contradicted by his deposition testimony. 	In his deposition, he testified that
the reference was made to a “black guy”. 	At the hearing he testified that this
black employee was referred to as a “tall nigger”.
24. 	In any event, there was no evidence that the key decision-maker,
John Breen, made any racial remarks or racial slurs. 	Also the remarks, if
they were made, were made by non-decision-makers and were not related to
the decisional process. 	They would be considered stray remarks. 	Such
remarks do not permit the fact finder to conclude that racial animus was more
likely than not a motivating factor in the discharge decision. 	See Price
Waterhouse v. Hopkins, 490 U.S. 228, 258, 49 FEP Cases 954, 974 (1989)
(plurality opinion) (stray remarks, statements by non-decision-makers, and
statements by decision-makers unrelated to the decisional process are
insufficient to conclude that employer relied on impermissible factor in
reaching decision) (O’Connor, J., concurring).

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25. 	In conclusion, this is not a wrongful discharge case where the
burden of proof is upon Respondent to justify the legitimate, nondiscriminatory
reasons they gave in their termination letter by a preponderance of the
evidence. 	The burden of proof is upon the Commission to prove by a
preponderance of evidence that Complainant’s race was a motivating factor in
the decision to discharge him. 	The Commission was unable to satisfy its
burden of proof. Therefore, the Complaint must be dismissed.
RECOMMENDATION
For all the foregoing reasons, it is recommended that the Commission
issue a Dismissal Order in Complaint #8202.
FRANKLIN A. MARTENS
CHIEF HEARING EXAMINER
September 14, 1999