Sheronda Boyd v. Village of Newcomerstown and Mitch Wise

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
SHERONDA BOYD
Complainant
Complaint No. 9523
v. (TOL) 72031502 (26795) 071202
22A – A2 – 03483
TOLEDO PUBLIC SCHOOLS,
BOARD OF EDUCATION
Respondent
ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
MARC E. DANN
ATTORNEY GENERAL
Stefan J. Schmidt, Esq. Cheryl F. Wolff, Esq.
Assistant Attorney General Spengler Nathanson
Civil Rights Section 608 Madison Avenue, Suite 1000
State Office Tower, 15th Floor Toledo, OH 43604-1169
30 East Broad Street 419 – 241 – 2201
Columbus, OH 43215-3428
614 – 466 – 7900 Counsel for Respondent
Counsel for the Commission
ALJ'S REPORT BY:
Denise M. Johnson
Sheronda Boyd Chief Administrative Law Judge
5814 Staghorn Ohio Civil Rights Commission
Toledo, OH 43614 1111 East Broad Street, Suite 301
Columbus, OH 43205-1379
Complainant 614 – 466 – 6684

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INTRODUCTION AND PROCEDURAL HISTORY
Sheronda Boyd (Complainant) filed a sworn charge affidavit with
the Ohio Civil Rights Commission (Commission) on July 12, 2002.
The Commission investigated the charge and found probable cause
that Toledo Public Schools, Board of Education (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 10, 2003.
The Complaint alleged that Respondent terminated Complainant’s
position as Volleyball Coach in retaliation for her having filed a previous
charge of discrimination with the Commission against Respondent.
Respondent filed an Answer to the Complaint on July 24, 2003.
Respondent admitted certain procedural allegations, but denied that it
engaged in any unlawful discriminatory practices. Respondent also pled
affirmative defenses.

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A public hearing was held on January 27, 2005 at the DiSalle
Government Center in Toledo, Ohio.
The record consists of the previously described pleadings, a
transcript of the hearing (295 pages), exhibits admitted into evidence
during the hearing, and the post-hearing briefs filed by the Commission
on March 1, 2006, by Respondent on April 14, 2006, and the
Commission’s reply brief filed on May 1, 2006.

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FINDINGS OF FACT
The following findings of fact are based, in part, upon the ALJ’s
assessment of the credibility of the witnesses who testified before her in
this matter. The ALJ has applied the tests of worthiness of belief used
in current Ohio practice. For example, she considered each witness’s
appearance and demeanor while testifying. She considered whether a
witness was evasive and whether his or her testimony appeared to
consist of subjective opinion rather than factual recitation. She further
considered the opportunity each witness had to observe and know the
things discussed, each witness’s strength of memory, frankness or lack
of frankness, and the bias, prejudice, and interest of each witness.
Finally, the ALJ 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 July 12, 2002.
2. The Commission determined on June 12, 2003 that it was
probable that Respondent engaged in unlawful discrimination in
violation of R.C. 4112.02(I).

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3. The Commission attempted to resolve this matter by informal
methods of conciliation. The Commission issued the Complaint after
conciliation failed.
4. Complainant has been employed by Respondent as a special
education teacher at Libbey High School (LHS) since 1995.
5. In addition to her teaching responsibilities Complainant was
the head girls basketball and volleyball coach at LHS for the 1997-98
through 2001-02 school years.
6. The volleyball season runs from August through October, and
the basketball season runs from November through February.
7. The employment of Respondent’s athletic coaches is governed
by the Collective Bargaining Agreement (CBA) between Respondent and
the Toledo Federation of Teachers.
8. Pursuant to the CBA, athletic coaching contracts are for one
(1) year.

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9. The CBA also requires each school’s Athletic Committee to
review the performance of each person with an athletic coaching contract
between February 15 and March 15 for fall and winter sports and
between May 15 and June 15 for spring sports.
10. Contracts can be terminated for “just cause” during the term
of the contract and can be non-renewed for “reasonable cause”.
11. During the 2001 volleyball season, while at Bowsher High
School (BHS), Complainant had a vocal disagreement with a parent of a
student-athlete that was observed by David Erdman (Erdman), BHS
Athletic Director.
12. Erdman interceded multiple times in the heated discussion
between Complainant and the parent before the game.
13. Erdman contacted, Ron Zak (Zak), LHS Athletic Director, to
report Complainant’s behavior.
14. Zak discussed the Bowsher incident and others with
Complainant on September 12, 2001. He told Complainant that he

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could not support her being out of control, and that she would be subject
to removal from her position if she got out of control again.
15. Zak also gave Complainant a note on September 13, 2001,
directing her to allow the student whose parent was involved in the
confrontation at BHS to ride the team bus.
16. During the 2001 volleyball season Complainant continued to
have difficulty working with peers, parents, and the school’s custodial
and secretarial staff. (Tr. 115-116, 118-119)
17. School Improvement Leader Marcia Helman (Helman) and
Deputy Superintendent Shelia Austin (Austin) both told Harold Brown
(Brown), Principal of LHS, they thought Complainant’s volley ball
contract should have been terminated after the BHS incident.
18. Brown and Zak did not want to make a mid-season
termination recommendation to the Athletic Committee; therefore, they
did not consider or act on Helman’s and Austin’s suggestion.

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19. During the basketball season Complainant was concerned
about the security of the student athletes at a basketball game scheduled
to take place on November 28, 2001 between LHS and a rival school,
Scott High School (SHS).
20. Prior to the date of the game Complainant communicated her
concerns to Ed Scrutchins, Director of Athletics and Extra-Curricular
Activities for the Toledo Public Schools.
21. Scrutchins made arrangements for additional security at the
game.
22. The arrangements included the hiring of four to six police
officers (usually there are two), supplemented with additional school
board security personnel, the attendance of four school administrators
from each school, and Scrutchins.
23. Zak apprised Complainant of Scrutchins’ steps to provide
additional security.
24. Brown and Zak gave all coaches a written directive on
November 27, 2001 indicating that if any coach intentionally forfeited an

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athletic contest, the coach was subject to immediate suspension and
possible termination.
25. On November 28, 2001, Complainant refused to attend and
prevented the varsity, junior varsity, and freshmen girls basketball
teams from attending the scheduled basketball games without giving
advanced notice to Zak or Brown.
26. As a result of Complainant’s actions, she was immediately
suspended from her basketball coaching position on November 29, 2001
and was notified that the Libbey Athletic Committee would meet on
December 7, 2001 to consider her basketball coaching contract.
27. The Committee voted on December 7, 2001 to terminate
Complainant’s basketball coaching contract immediately.
28. Two of Complainant’s assistants, Pou (Pou) and Dodge
(Dodge), did not appear at the game. Pou and Dodge disclosed that they
were acting on their own when they did not attend the game.

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29. The Athletic Committee voted unanimously on December 12,
2001 to recommend that Pou’s contract be terminated immediately.
Dodge resigned before the Committee could act upon his termination.
30. On December 10, 2001, Complainant filed a charge of
discrimination with the Commission alleging sex discrimination.
31. On March 8, 2002, Brown and Zak notified Complainant that
the Athletic Committee would meet on March 15, 2002 to determine
whether her volleyball coaching contract would be renewed.
32. Brown and Zak related to Complainant the following
concerns:
1. Your consistent inability to keep yourself under control;
2. Your inability to respect and get along with fellow
teachers and staff members; and
3. Your lack of control prohibits you from growing
professionally and as a coach.
(Tr. 76, Comm. Ex. 11)
33. The Athletic Committee met with Complainant and her union
representative on March 15, 2002, then voted 7-1 to recommend to

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Scrutchins that Complainant’s volleyball coaching contract not be
renewed.
34. Scrutchins met with Complainant and her union
representative on April 16, 2002 and, thereafter, upheld the decision of
the Athletic Committee.
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.1
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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1. The Commission alleged in the Complaint that Respondent
terminated Complainant’s position as Volleyball Coach in retaliation for
her having filed a pervious charge of discrimination with the Commission
against Respondent.
2. This allegation, if proven, would constitute a violation of R.C.
4112.02, which provides, in pertinent part, that:
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

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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
framework normally requires the Commission to prove a prima facie case
of unlawful retaliation by a preponderance of the evidence. The proof
required to establish a prima facie case may vary on a case-by-case
basis. McDonnell Douglas, supra at 802, 5 FEP Cases 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 employment action.2 McDonnell
2 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 defendant’s burden is merely to articulate through some proof
a facially nondiscriminatory reason for the contract non-renewal;
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

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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 employment action. Hicks, supra at
511, 62 FEP Cases at 100.
7. In this case, it is not necessary to determine whether the
Commission proved a prima facie case. Respondent’s articulation of
legitimate, nondiscriminatory reasons for the non-renewal of
Complainant’s volleyball coaching contract removes any need to
determine whether the Commission proved a prima facie case, and the
“factual inquiry proceeds to a new level of specificity.” U.S. Postal Service
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).

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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.
8. Respondent met its burden of production with the
introduction of evidence which showed Complainant’s conduct during
the previous volleyball and basketball season was deemed unprofessional
and inappropriate and reflected poorly on Respondent’s athletic program.
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. The Commission must show by a preponderance of the
evidence that Respondent’s articulated reasons for not renewing
Complainant’s contract were not the true reasons, but were “a pretext for
… [unlawful retaliation].” Id., at 515, 62 FEP Cases at 102, quoting
Burdine, supra at 253, 25 FEP Cases at 115.

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[A] reason cannot be proved to be a “pretext for [unlawful
retaliation]” unless it is shown both that the reason is false,
and that … [unlawful retaliation] 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 … [unlawful retaliation] is
correct. That remains a question for the factfinder to
answer ….
Id., at 524, 62 FEP Cases at 106.
Ultimately, the Commission must provide sufficient evidence for the fact-
finder to infer that Complainant was, more likely than not, the victim of
unlawful retaliation.
11. In order to show pretext, the Commission may directly or
indirectly challenge the credibility of Respondent’s articulated reasons for
the non-renewal of Complainant’s volleyball coaching contract. The
Commission may directly challenge the credibility of Respondent’s
articulated reasons by showing that the reasons had no basis in fact or
they were insufficient to motivate the employment decision. Manzer v.

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Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994).
Such direct attacks, if successful, permit the fact-finder to infer
intentional discrimination from the rejection of the reasons without
additional evidence of unlawful discrimination.
The 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 the
prima facie case, suffice to show intentional discrimination
…[n]o additional proof is required. 3
Hicks, supra at 511, 62 FEP Cases at 100 (emphasis added).
12. The Commission may indirectly challenge the credibility of
Respondent’s reasons by showing that the sheer weight of the
circumstantial evidence makes it “more likely than not” that the
reasons are a pretext for unlawful discrimination. Manzer, supra at
1084. This type of showing, which tends to prove that the reasons did
not actually motivate the employment decision, requires the Commission
produce additional evidence of unlawful discrimination besides evidence
that is part of the prima facie case. Id.
3 Even though rejection of a respondent’s articulated reason is “enough
at law to sustain 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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13. The Commission attempted to show that Respondent’s
reasons for the non-renewal of Complainant’s volleyball contract were
not worthy of credence. I was not persuaded by the Commission’s
evidence.
14. The employment of Respondent’s athletic coaches is governed
by the CBA between Respondent and the Toledo Federation of Teachers.
15. The CBA requires each school’s Athletic Committee to review
the performance of each person with an athletic coaching contract
between February 15 and March 15 for fall and winter sports and
between May 15 and June 15 for spring sports.
16. Complainant’s filing of a charge of discrimination in
December 2001 was not the motivation for the review of her performance
in March 2002.
17. The evidence introduced by Respondent persuaded me that
Complainant’s unprofessional conduct during both the 2001 volleyball
and basketball seasons was the basis for Respondent’s non-renewal
determination in March 2002.

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RECOMMENDATION
For all of the foregoing reasons, it is recommended that the
Commission issue a Dismissal Order in Complaint No. 9523.
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
April 23, 2007