9148•Tammy A. Greer v. Lazlo Temesi dba Villiage Square Jewelers
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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
1 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.
2 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.
3 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:
4 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
5 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.
6 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).
7 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
8 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.
9 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
10 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
11 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.
12 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
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