Kathryn Ogletree v Ohio Wesleyan University

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OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
KATHRYN OGLETREE
Complainant
and
Complaint #8074
(COL) 71030696 (23749) 082696
22A-96-3886
OHIO WESLEYAN UNIVERSITY
Respondent
HEARING EXAMINER'S FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION
BETTY D. MONTGOMERY ATTORNEY GENERAL
Duffy Jamieson, Esq. Assistant Attorney General Civil Rights Section State Office Tower, 15th Floor 30 East Broad Street Columbus, OH 43215-3428 (614) 466-7900
Counsel for the Commission
Douglas W. Warnock, Esq. 20 East Central Avenue Delaware, OH 43015-1903 (740) 363-3100
Counsel for Respondent
Kathryn Ogletree 272 Freedom Lane Delaware, OH 43015
Complainant
Phillip R. Moots, Esq. Moots, Cope & Stanton 3600 Olentangy River Road Columbus, OH 43214-3913 (614) 459-4140
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
Kathryn Ogletree (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on August 26, 1996.
The Commission investigated and found probable cause to believe that
unlawful discriminatory practices had been engaged in by Ohio Wesleyan
University (Respondent) (University) 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.1 A complaint was
issued on August 21, 1997.
The Complaint alleged that Complainant was denied a promotion
because of her race.
1 Respondent contested the allegation that the Commission attempted conciliation in
this case. 	My recommendation makes it unnecessary to consider their arguments,
although I believe the documentation supports the conclusion that the Commission
attempted to eliminate the alleged unlawful discriminatory practices by conciliation and that
attempt was unsuccessful.

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Respondent filed a timely Answer to the complaint, admitting certain
procedural 	allegations 	but 	denying 	that 	it 	engaged 	in 	any 	unlawful
discriminatory practices.
A public hearing was held on March 8-9, 1999 at the Commission’s
Central Office in Columbus, Ohio.
The record consists of the previously described pleadings; the transcript
consisting of 450 pages of testimony; exhibits admitted into evidence at the
hearing; and the post-hearing briefs filed by the Commission on May 10, 1999
and by Respondent on May 28, 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

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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
August 26, 1996.
2. 	The Commission determined on April 3, 1997 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.

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4. 	Respondent is an undergraduate liberal arts college located in
Delaware, 	Ohio. 	Respondent 	is 	an 	employer. 	Respondent’s 	student
population is approximately 1,850; 5% are African-American.
5. 	Complainant is African-American.
6. 	Complainant has been employed by Respondent since 1988 as the
Director of Minority Student Affairs. 	Her primary job duty is to provide
services and support to minority students. 	(Comm.Ex. 10) 	She has a B.S.
degree in psychology (1971), a M.S. degree in guidance and counseling
(1972), and a Ph.D in counseling psychology (1976). 	She has experience as
a psychologist. 	She has also taught at the university level.
7. 	In July 1994, Thomas Courtice, (Caucasian), became the President
of Ohio Wesleyan. 	When he took over, the University had a $4,500,000
deficit in its annual operating budget. 	It was his task to eliminate that deficit.
In order to do so, a decision was made to reduce personnel costs by
$2,000,000. This necessitated eliminating various positions within the faculty
and the administration.

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8. 	Two of the positions that were eliminated were the positions of Dean
and Associate Dean of the Division of Student Services (DSS). 	Both these
positions were held by white males. 	They were terminated, effective July 1,
1996.
9. DSS was reorganized into two divisions, Student Life and Counseling
Services. 	Two new positions were created to oversee these new divisions,
Chair of Student Life and Chair of Counseling Services. 	President Courtice
made the decision about who would fill the vacant positions. 	The positions
were not posted; there was no formal selection process.
10. 	President Courtice believed that he had the authority to make the
appointments in this manner, although it was contrary to the University’s
Affirmative Action Plan (AAP) which required all permanent positions to be
filled through a formal selection process.
11. 	President Courtice believed that he had an understanding with the
Affirmative Action Council (Council). 	The Council monitored the AAP.
President Courtice believed he could make these appointments without going

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through the formal selection process pursuant to this understanding. 	Prior to
these appointments, President Courtice had appointed administrators to other
positions where they would assume additional duties.
12. 	President Courtice decided to appoint Dr. David S. Cozzens,
(Caucasian), as Chair of the Division of Student Life (DSL). 	Dr. Cozzens was
the Director of University Counseling Services (UCS), a subdivision of the
DSS. 	He decided to appoint Dr. Janet M. Rogers, (Caucasian), as Chair of
the Division of Counseling Services (DCS). 	Dr. Rogers was a counselor in
UCS. 	The appointments were effective July 1, 1996.
13. Prior to making the announcement, President Courtice met with Dr.
Rogers and Dr. Cozzens to advise them that he was going to appoint them to
the new positions and to discuss the new organizational structure.
14. 	Dr. Cozzens had a B.S. degree in psychology (1973), a Masters
degree in counseling (1978), and a Ph.D in counseling psychology (1990). He
had been employed by Ohio Wesleyan since 1992 as the Director of

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University Counseling Services. 	He had previous experience teaching at the
university level and practicing psychology.
15. 	When Complainant learned about the appointments, she was
shocked. 	Complainant’s position was equal to Dr. Cozzens’ position. 	The
Office of Minority Affairs was a also subdivision of DSS. 	Complainant and Dr.
Cozzens both reported to the Dean and Associate Dean of Student Services.
Complainant wanted to be considered for the position that was awarded to Dr.
Cozzens. 	She 	complained 	to 	the 	affirmative 	action 	officer. 	When
Complainant 	did not get a response, she contacted President Courtice
directly by filing a grievance, stating that she felt personally discriminated
against. 	She complained that the Affirmative Action Plan was not followed.
She asked President Courtice to rescind the appointments.
16. 	President Courtice was surprised when he received Complainant’s
grievance. 	He believed that he was in compliance with the Affirmative Action
Plan and that he had an understanding with the Council regarding how the
positions were to be filled during the reorganization process. This was the first
time anyone had ever complained about the process.

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17. 	President Courtice met with Complainant on two occasions to try to
explain to her the basis for his decision to award the position to Dr. Cozzens
and his reasoning for making the appointments without using the formal
selection process. 	Complainant continued to insist that the appointments
should be rescinded.
18. 	On May 4, 1996, the Council passed a resolution recommending
that the AAP be followed in filling the two new positions. 	President Courtice
agreed to rescind the appointments and fill the positions using a formal
internal selection process. 	Job descriptions were written for the two
positions, a search plan was developed, a search committee was appointed,
the positions were posted, 	and applications were submitted and received.
Two 	persons 	applied 	for 	the 	position 	of 	Chair 	of 	Student 	Services,
Complainant and Dr. Cozzens. 	Dr. Rogers was the only applicant for the
other position.
19. A Search Committee was selected by the Affirmative Action Officer
and the Provost. It was chaired by Provost William C. Louthan (Caucasian).
The members were Lynda K. Hall, (Caucasian), Associate Professor of

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Psychology, Stewart W. Peckham, (Caucasian), Director of Career Services,
(a subdivision of the new Division of Counseling Services, formerly a
subdivision of the Division of Student Life), and Beverly J. Rose, (African-
American), 	the 	Affirmative 	Action 	Office’s 	representative. 	Rose 	was
appointed by the Affirmative Action Officer. 	The Provost made the other
appointments.
20. 	The 	Search 	Committee 	interviewed 	each 	of 	the 	applicants.
President Courtice also interviewed each applicant for approximately one
hour.2 Both applicants also met with a number of University groups. 	Written
comments from the faculty and students about the candidates were solicited
and forwarded to the Search Committee.
21. 	After the interviews were completed, the Search Committee met
and discussed the strengths and weaknesses of each candidate. 	They
reviewed 	all 	of 	the 	documentation 	that 	was 	available. 	They 	made 	a
unanimous recommendation that Dr. Cozzens be appointed to the position of
2 He wrote a memo to the Search Committee summarizing the interviews. 	He
recommended Dr. Cozzens for the position. 	His letter was considered by the Search
Committee, but was not a motivating factor in their decision. 	(Tr. 411, 440)

Chair of Counseling Services. They documented their recommendation

with ten

10

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reasons supporting their decision. 	They concluded that both candidates had
similar educational backgrounds. 	They believed that Dr. Cozzens was “a
substantially stronger candidate” because:
(1) 	He has a far greater familiarity with the following areas of
responsibility in student life: residential life, judicial affairs,
public safety, student activities, new student orientation, and
retention related work;
(2) 	He has substantially greater capacity to articulate and
communicate student life issues to various constituencies;
students, parents, the public, and the press;
(3) 	He has far superior and demonstrated skills with manage-
ment, 	organization, 	leadership, 	and 	staff 	management
(indeed, there is concern, based on input from staff, that
Kathy Ogletree has a tendency to schedule meetings
without all members being made aware, to cancel meetings
without notifications, or to be late to meetings, and to be late
in responding to phone mail and memos);
(4) 	He has a better track record of collaborative work with
faculty;
(5) 	He has a better appreciation for the complexities/demands
of the position;
(6) 	He has a far more detailed, accurate, realistic working
knowledge 	of 	the 	current 	state 	of 	student 	affairs 	on
campus,, is better with the “nuts and bolts” of the job, has
more talent for handling all aspects of the job, a more acute
awareness of the broad array of responsibilities of the job;

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(7) 	He 	gave 	far 	superior 	answers 	to 	questions 	regarding
retention and for dealing with the challenges presented to
the system by an extraordinarily large incoming freshman
class;
(8) 	He is perceived to have a far greater capacity to serve the
needs of all students;
(9) 	He has demonstrated more involvement in professional
associations and activities, and would be better able to
facilitate the professional development of members of the
staff; [and]
(10) 	He articulated a more holistic approach to student develop-
ment 	and 	also 	demonstrated 	experience 	in 	a 	greater
breadth of student programs.
(Comm.Ex. 19)
22. 	President Courtice accepted their recommendation and appointed
Dr. Cozzens to the position.

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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 therein, it is not credited. 3
1. The Commission alleged in the Complaint that Complainant was
denied a promotion because of her race.
2. 	This allegation, if proven, would constitute a violation of R.C. §
4112.02, which provides, in pertinent part, that:
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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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(E) and (G).
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). 	Id.
5. 	Under Title VII case law and under Ohio law, discrimination can be
proven by direct and circumstantial evidence. 	Direct evidence is “[e]vidence
which, if believed, proves the fact in issue without inference or presumption.”

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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).
6. 	In this case there was no direct evidence as it is defined above.
There was no evidence of remarks that were made about Complainant from
which one could conclude without inference that anyone involved in the
selection process had a discriminatory animus toward Complainant or African-
Americans in general.
7. 	Normally, when there is no direct evidence of discrimination, the
Commission 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 case-by-case basis. Id., at 802, 5 FEP Cases at 969,
n.13. 	The 	establishment 	of 	a 	prima 	facie 	case 	creates 	a 	rebuttable

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presumption of unlawful discrimination. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 25 FEP Cases 113 (1981).
8. 	An employee may establish a 	prima facie case of intentional
discrimination using the “McDonnell Douglas” formula. 	Under McDonnell
Douglas, the Commission bears the initial burden to prove a prima facie case
of discrimination by proving that:
(1) 	The employee was a member of a protected class;
(2) 	She was qualified for the position; and
(3) 	She 	was 	treated 	differently 	than 	“similarly 	situated”
employees that were not members of that class.
Mitchell v. Toledo Hospital, 59 FEP Cases 76, 80 (6th Cir. 1992).
9. 	The Ohio Supreme Court has held that a prima facie case can also
be proven by what the Court characterized as “direct evidence”, which is
circumstantial in nature. 	As the Court explained it:
It means that a plaintiff may establish a prima facie case of . . .
[race] discrimination by directly presenting evidence, of any
nature, to show that the employer more likely than not was
motivated by discriminatory intent.
Mauzy v. Kelly Services, Inc., 664 N.E. 2d 1272, 1279 (Ohio
1996).

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10. 	Thus, the Commission can prove a prima facie case of discrim-
ination if there is sufficient circumstantial evidence to support an inference of
discrimination. However, the ultimate burden still rests with the Commission to
show that Complainant was not selected for the position of Chair of Student
Life because of her race. 	Mauzy, supra at 1280, Syllabus 5.
11. The Commission argues that there is sufficient circumstantial
evidence to infer discrimination in this case without resorting to the McDonnell
Douglas formula. 	I disagree. 	The Commission is merely criticizing the
process that was followed. 	These criticisms, even if they were valid, do not
support an inference that the process was, as the Commission puts it,
“bogus”.
12. 	This would have taken a conspiracy of immense proportions. 	I am
not prepared to make such a giant, inferential leap. 	There is no evidence to
show that the President, the Search Committee, the Affirmative Action Officer,
the student body president, and others conspired to rig the selection process
so that it would automatically result in the selection of Dr. Cozzens.

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13. 	Nor was there any circumstantial evidence from which one could
infer that the decision-makers, the Search Committee, were biased against
Complainant. 	For instance, there was no evidence that Complainant was
more qualified than Dr. Cozzens. 	A strong argument could be made that
Complainant was less qualified. 	She had much narrower job duties than
Dr. Cozzens. At best, they were equally qualified. Of course, Respondent is
free to choose one applicant over another when they are equally qualified.4
14. 	The Search Committee found Dr. Cozzens to be the most qualified
applicant. 	The two members of the Selection Committee who testified at the
hearing were very credible. 	They addressed the Commission’s criticisms of
the process. 	They explained how the search was conducted. 	They
explained those aspects of the search that were not covered by the search
plan. 	For example, they explained the basis for their decision not to check
references (which was not required by the search plan). They explained why
comments were solicited from students. 	It was deemed appropriate to get as
much input as possible from students about the candidates and to give
4 In its brief, the Commission did not make any arguments regarding the candidates’
comparative qualifications, thus conceding this point.

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students the opportunity to interact with the candidates because the DSL was
set up to serve students.
15. 	This was also credible testimony that the Search Committee did not
consider any of Dr. Cozzens’ accomplishments after his initial appointment
was rescinded. (There was also no evidence that he did anything during
that period of time that would give him an advantage in the selection process,
although he was paid a stipend to be a “safety valve” for students if that was
necessary.)
16. The Commission also criticized President Courtice’s initial decision
not to engage in a formal selection process as required by the AAP.
Apparently the Commission believes this is evidence supports an inference
that President Courtice decided not to engage in a formal selection process
because he did not want to consider Complainant for the position due to her
race. 	The failure to comply with an AAP could indicate an intent to
discriminate against the person who was denied the plan’s benefits. However,
a violation of an AAP is not, per se, a violation of Title VII. The Commission
has no jurisdiction to prosecute an employer for violating its AAP. Cf. Smith v.

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Board of Public Utilities, 38 F.Supp 2d 1272, 1286-87 (D. Kan. 1999) (citations
omitted) (“Absent a showing of discrimination, Title VII recognizes no cause of
action for failing to implement or utilize an affirmative action program”). 	In
any event, ultimately, the AAP was not violated.
17. The evidence showed that President Courtice’s initial decision not
to follow the AAP was motivated by the circumstances, an economic crisis
which necessitated a rapid reorganization which would result in a substantial
savings in personnel costs. 	He believed that his methodology was approved
by the Affirmative Action Council. 	The evidence indicates the Council had
given him some flexibility in how he approached the reorganization, although
apparently not as much flexibility as he thought they had given him. 	Thus,
while there may have been a misunderstanding about President Courtice’s
authority, his actions were not motivated by any discriminatory animus.
18. 	Since there was insufficient “direct evidence” to prove a prima facie
case of discrimination, the McDonnel Douglas paradigm is appropriate.

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The caliber of evidence as “direct” does, indeed eschew reliance
on the McDonnell Douglas paradigm, not because it is the sole
alternative method by which to create an inference of discrim-
ination, but because it rises to the level of actually proving
discrimination.
Mauzy, supra at 1279.
19. 	Under the McDonnell Douglas paradigm, it is appropriate to take an
analytical 	shortcut 	and 	go 	directly 	to 	an 	examination 	of 	Respondent’s
legitimate, nondiscriminatory reasons for appointing Dr. Cozzens Chair of
Student Services.5
20. The Search Committee gave ten reasons for selecting Dr. Cozzens
over Complainant. 	The Commission must show by a preponderance of the
evidence that these ten reasons were not the Search Committee’s true
5 Respondent’s articulation of legitimate, nondiscriminatory reasons for failing to
promote Complainant 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 Svc. Bd. of Governors v. Aikens, 460 U.S. 711, 31 FEP Cases 609 (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.

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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.
21. 	The Commission was unable to meet its burden of proof. 	The ten
reasons given by the Search Committee for preferring Dr. Cozzens over
Complainant were not challenged by the Commission. 	The ten reasons
appear to be accurate, logical business reasons.
22. 	Since the Commission was unable to prove that Respondent’s
legitimate, 	nondiscriminatory 	reasons 	were 	a 	cover-up 	for 	pretext 	or
discrimination, and there was insufficient direct evidence to infer that race was
a motivating factor in the decision, the Complaint must be dismissed.

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RECOMMENDATION
For all the foregoing reasons, it is recommended that the Commission
issue a Dismissal Order in Complaint #8074.
FRANKLIN A. MARTENS
CHIEF HEARING EXAMINER
November 24, 1999