Paul Smith v. EGC Construction Company

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
PAUL H. SMITH
Complainant 	Complaint #9093
(CIN) 75041200 (28448) 062700
and 	22A – A0 – 1912
EGC CONSTRUCTION COMPANY
Respondent
HEARING EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
ON RESPONDENT’S MOTION TO DISMISS
BETTY D. MONTGOMERY
ATTORNEY GENERAL
Barbara J. Morsa, Esq. 	Gary L. Herfel, Esq.
Assistant Attorney General 	J. David Bender, Esq.
Civil Rights Section 	Herfel & Bender
1600 Carew Tower 	100 E. Rivercenter Blvd., Suite 250
441 Vine Street 	Covington, KY 	41011
Cincinnati, OH 	45202-2809 	(859) 291-0202
(513) 852-3497
Counsel for Respondent
Counsel for the Commission
HEARING EXAMINER'S REPORT BY:
Franklin A. Martens, Esq.
Paul H. Smith 	Chief Hearing Examiner
7709 Greenland Avenue, Apt. 1 	Ohio Civil Rights Commission
Cincinnati, OH 	45237 	1111 East Broad Street, Suite 301
Columbus, OH 	43205-1379
Complainant 	(614) 466-6684

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INTRODUCTION AND PROCEDURAL HISTORY
Paul H. Smith (Complainant) filed a sworn charge affidavit with the Ohio
Civil Rights Commission (Commission) on June 27, 2000.
The Commission investigated and found probable cause that EGC
Construction 	Company 	(EGC) 	(Respondent) 	engaged 	in 	unlawful
discriminatory practices in violation of Revised Code (R.C.) 4112.02(A).
The Commission attempted, but failed to resolve this matter by informal
methods of conciliation. 	The Commission subsequently issued Complaint
#9093 on June 7, 2001. 	The Complaint alleged that Respondent discharged
Complainant because of his race.
Respondent filed a timely Answer to the complaint, admitting certain
procedural 	allegations 	but 	denying 	that 	it 	engaged 	in 	any 	unlawful
discriminatory practices. 	In its Answer Respondent admitted that it was an
employer but denied that it was Complainant’s employer.

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Respondent 	filed 	a 	Motion 	to 	Dismiss 	on 	November 	19, 	2001.
Respondent 	attached 	Stipulation 	of 	Facts, 	signed 	by 	Counsel 	for 	the
Commission and Counsel for Respondent (Exhibit A); the affidavit of Fred
McCoy (Exhibit B); and three attachments to the affidavit – a handwritten
statement 	from 	Complainant, 	a 	daily 	construction 	report, 	and 	a 	fax
transmission to Green International Employment Service. 	The Commission
did not file a response to the Motion to Dismiss.
FINDINGS OF FACT
1. 	Complainant filed a sworn charge affidavit with the Commission on
June 27, 2000.
2. The Commission determined on May 17, 2001 that it was probable
that Respondent engaged in unlawful discrimination in violation of R.C.
4112.02(A).
3. 	Complainant is a black person.

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4. 	Respondent is a corporation doing business in Ohio and an
employer. 	Respondent provides construction and related work and services
for its customers.
5. 	On May 11, 2000, Respondent was performing work for one of its
customers, the Procter & Gamble Company (P&G), at P&G’s Ivorydale facility
in Cincinnati, Ohio.
6. 	Respondent had a contract with Green International Employment
Service (Green), a minority contractor. 	Green provided workers to perform
work for EGC at P&G’s Ivorydale facility. 	Complainant was employed by
Green and was assigned by Green to perform work for EGC at P&G’s
Ivorydale facility.
7. 	On May 11, 2000, Complainant became involved in an altercation
with a Caucasian EGC employee.
8. 	P&G has a policy that requires that all persons who are involved in
altercations must immediately leave P&G’s premises. 	Pursuant to P&G’s

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policy, EGC requested both Complainant and the EGC employee to leave
P&G’s facility. 	Both Complainant and the Caucasian employee complied with
this request.
9. 	The Caucasian employee was reassigned by EGC to another EGC
customer. Green terminated Complainant’s employment.
10. 	Complainant has never been employed by EGC.
CONCLUSIONS OF LAW AND DISCUSSION
1. 	In its Complaint the Commission alleges that Complainant was
employed by Respondent and that Respondent discharged Complainant
because of his race. However, the Stipulations state that Complainant was
never employed by Respondent and Complainant was discharged from his
employment with Green International Employment Service.
2. 	Based on the foregoing discussion, it would be impossible for
Respondent to have discharged Complainant because Respondent was not
Complainant’s employer. 	It would also be impossible for Respondent to have

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influenced the decision Green made to discharge Complainant because
Respondent did not have any input into that decision. 	Likewise, Respondent
did not have any input into the decision P&G made that persons involved in
altercations 	on 	their 	premises 	were 	to 	leave 	the 	premises 	and 	not
return. Since Respondent was not Complainant’s employer and did not
discharge him, the Complaint must be dismissed.
RECOMMENDATION
For all the foregoing reasons, it is recommended that the Commission
issue a Dismissal Order in Complaint #9093.
FRANKLIN A. MARTENS
CHIEF HEARING EXAMINER
January 31, 2002