Marlonda Garrett v. Med First M.D., Inc.

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
MARLONDA GARRETT
Complainant 	Complaint #8303
(DAY) 76060297 (13072) 072897
and 	22A-97-9355
MED FIRST, M.D., INC.
Respondent
HEARING EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
BETTY D. MONTGOMERY
ATTORNEY GENERAL
Barbara J. Morsa, Esq. 	William T. Goslee, Esq.
Assistant Attorney General 	Goslee & Goslee
Civil Rights Section 	114 South Main Street
1600 Carew Tower 	P. O. Box 416
441 Vine Street 	Bellefontaine, OH 	43311
Cincinnati, OH 	45202-2809 	(937) 593-8075
(513) 852-3497
Counsel for the Respondent
Counsel for the Commission
HEARING EXAMINER'S REPORT BY:
Franklin A. Martens, Esq.
Marlonda Garrett 	Chief Hearing Examiner
6092 Mantz Avenue 	Ohio Civil Rights Commission
Trotwood, OH 	45427 	1111 East Broad Street, Suite 301
Columbus, OH 	43205-1379
Complainant 	(614) 466-6684

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INTRODUCTION AND PROCEDURAL HISTORY
Marlonda Garrett (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on July 28, 1997.
The Commission investigated and found probable cause to believe that
unlawful discriminatory practices had been engaged in by Med First M.D., Inc.
(Respondent) 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. 	A complaint
was issued on June 5, 1998.
The 	Complaint 	alleges 	that 	Respondent 	discharged 	Complainant
because of her race.
Respondent filed a timely answer to the Complaint, admitting certain
procedural allegations but denying other procedural allegations for lack of

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knowledge and denying that it engaged in any unlawful discriminatory
practices.
A public hearing was held on December 9, 1998, at the Safety Building
in Troy, Ohio.
The record consists of the previously described pleadings; the transcript
consisting of 98 pages of testimony and exhibits admitted into evidence at the
hearing. The Commission waived its right to submit a post-hearing brief on
January 19, 1999. 	Respondent did not file a brief.
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

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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
July 28, 1997.
2. 	The Commission determined on April 2, 1998 that it was probable
that unlawful discriminatory practices had been engaged in by Respondent in
violation of R.C. § 4112.02(A).
3. 	Respondent was a corporation doing business in Ohio and an
employer. 	Respondent ceased doing business at the end of June, 1998.
4. 	Complainant is a black person.

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5. Complainant was employed by Respondent from March 10, 1997 to
June 2, 1997, as a data entry clerk. 	Her primary duties consisted of imputing
data into the computer regarding Respondent’s clients. 	She was responsible
for securing information from insurance adjusters and attorneys to verify new
patient information. Complainant worked at the main office in Tipp City and
collected information from offices in Troy and Dayton. 	Complainant assisted
Edith Newell, who was employed as an auditor.
6. 	Complainant was hired by Vicky Knoderer, Caucasian. 	Knoderer
was the Office Manager in Tipp City. When Knoderer hired Complainant she
expected Complainant would be able to learn how to perform Newell’s job
duties when Newell was on vacation or absent for some other reason.
7. 	After Complainant had been employed by Respondent for two and a
half to three weeks, Oscar Mitchell, a black person, became employed as
Supervisor 	over 	the 	Billing 	Department. 	He 	became 	Complainant’s
immediate supervisor.

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8. 	After she had been working with Complainant for a while, Newell
concluded that Complainant’s work was not satisfactory. She was not able to
follow through to get the information she needed to get from the insurance
companies, adjusters and attorneys. 	Newell had to remind her daily to
perform this function on specific cases. 	Newell also concluded that
Complainant was not able to learn how to do all the jobs that Newell had to
do. 	She was not able to balance the fee slips with the charges on the trial
postings.
9. 	A meeting was held in April 1997 regarding Complainant’s job
performance and her attitude. Oscar Mitchell, Complainant, Edith Newell, and
Vicky Knoderer all attended the meeting. The purpose of the meeting was to
talk about Complainant’s job performance and attitude. Newell expressed her
concerns that Complainant was not following through on her assignments.
She perceived Complainant did not like the job, did not want to be there and
did not want to do the job. 	(Tr. 65)
10. 	Complainant 	was 	concerned 	about 	Newell’s 	attitude 	and
expressed her dissatisfaction at the meeting. 	The meeting ended with the

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understanding that their relationship would be strictly on a business level and
conversations would be limited to job-related issues. 	After the meeting,
Complainant stopped talking to Newell.
11. 	After the April meeting, Mitchell advised Knoderer that, in his
opinion, Complainant was not going to be able to do the job, that she was not
going to be able to fill in when Edith Newell was absent. 	He also told her that
he thought Complainant was guilty of excessive absenteeism and tardiness.
12. 	Based on Complainant’s performance and attendance after the
April 	meeting, 	Oscar 	Mitchell 	decided 	to 	terminate 	Complainant’s
employment, effective June 2, 1997. 	The termination letter stated she was
being terminated because of her “failure to meet the standards as outlined in
her data entry insurance processors job description and inability to be at your
appointed place of work, i.e. too many personal appointments and (sic)
absenteeism.”

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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 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.1
1. 	The 	Commission 	alleged 	in 	its 	Complaint 	that 	Respondent
discharged Complainant because of her race.
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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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:
(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).

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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
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, nondiscrim-
inatory reason” for its actions.2 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.
2 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, nondiscrim-
inatory 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).
8. 	Respondent met its burden of production. Respondent’s legitimate,
nondiscriminatory reasons for discharging Complainant was her failure to

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satisfactorily perform her job and attendance problems which included
tardiness and excessive absenteeism.
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

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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.
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.3
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
3 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

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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
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).
finding of discrimination.” 	Hicks, supra at 511, 62 FEP Cases at 100, n.4.

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Hollins v. Atlantic Company, 76 FEP Cases 553, 557 (N.D. Ohio
1997).
14. Based on the foregoing discussion, the Commission was unable to
prove the legitimate non-discriminatory reasons articulated by Respondent
were a pretext for unlawful discrimination. 	The Commission presented one
witness in this case, Complainant. 	She disputed the allegation that her
performance was unsatisfactory or that she had excessive absenteeism. She
also stated that she believed she was replaced by a white person and that
other persons working in similar jobs were also absent on occasion and were
not discharged.
15. 	The 	Respondent 	presented 	testimony 	from 	Complainant’s
coworker, Edith Newell, and Vicky Knoderer, the Office Manager at the Tipp
City Office. Respondent also offered into evidence of the affidavit of Oscar
Mitchell who was unable to be present at the hearing. 	The affidavit was
admitted without objection. 	Thus, it can be given the same weight as live
testimony.

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16. 	Probably the least interested witness in this case was Newell.
Although she was still working for Respondent, her employment was going to
terminate in the near future. 	She was helping wind up the affairs of the
corporation. 	I found her testimony to be more credible than Complainant’s
testimony. 	Newell’s testimony was also corroborated by Oscar Mitchell’s
affidavit and the testimony of Vicky Knoderer. 	Knoderer testified about
conversations she had with Mitchell where Mitchell raised the same concerns
about Complainant’s performance that were raised by Newell.
17. 	The Commission was also unable to prove that Complainant was
treated differently than similarly situated non-minorities. One of the persons
that Complainant mentioned in her testimony was employed by a temporary
agency and Complainant’s testimony about her attendance was vague.
Although Complainant believed there was another employee doing a job
similar to hers who was also absent on occasion, there was insufficient
evidence to conclude that this Caucasian employee was similarly situated to
Complainant. The attendance records of other employees were not offered
into evidence.

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18. 	On the other hand, Respondent offered Complainant’s attendance
records. These records were authored by Oscar Mitchell and they indicated
those days where Complainant was absent or tardy. The Commission did not
contest the accuracy or authenticity of these records. 	Complainant agreed
that if the records were accurate, which she disputed, she would not have a
good attendance record. 	Absent some evidence that the records were
fabricated, they are more credible than Complainant’s recollection.4
19. 	Since the Commission was unable to prove that the Respondent’s
reasons for discharging Complainant were a pretext for discrimination, the
Complaint must be dismissed.
4 Complainant did not dispute that she was late on many occasions. However, she
stated that she was not more than fifteen minutes late. Although Respondent had a fifteen
minute grace period for starting times, there was no evidence that Mitchell did not take that
into consideration when he noted that the Complainant was late.

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RECOMMENDATION
For all the foregoing reasons, it is recommended that the Commission
issue a Dismissal Order in Complaint #8303.
FRANKLIN A. MARTENS
CHIEF HEARING EXAMINER
August 23, 1999