9280•Wanda Brazile v. Gennys Home Health Care
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OHIO CIVIL RIGHTS COMMISSION IN THE MATTER OF: WANDA MAE BRAZILE Complainant Complaint No. 9280 (AKR) 73043001 (25727) 050201 and 22A –A1 –5422 GENNY’ SHOMEHEALTH CARE Respondent CHIEF ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION JIM PETRO ATTORNEY GENERAL Wayne D. Williams, Esq. Genevieve Semuga Associate Attorney General Genny’ sHomeHeal t hCar e Civil Rights Section 215 East Waterloo Road, Suite 12 State Office Building, 11th Floor Akron, OH 44319 615 West Superior Avenue 330 –724 –7755 Cleveland, OH 44113-1899 216 –787 –3030 Respondent's Representative Counsel for the Commission ALJ'S REPORT BY: Denise M. Johnson Wanda Mae Brazile Chief Administrative Law Judge 602 Elenora Drive Ohio Civil Rights Commission Cuyahoga Falls, OH 44223 1111 East Broad Street, Suite 301 Columbus, OH 43205-1379 Complainant 614 –466 –6684
1 INTRODUCTION AND PROCEDURAL HISTORY Wanda Mae Brazile (Complainant) filed a sworn charge affidavit with the Ohio Civil Rights Commission (Commission) on May 2, 2001. The Commission investigated the charge and found probable cause t hatGenny ’ s Home Health Care (Respondent) engaged in unlawful employment practices in violation of Revised Code Section (R.C.) 4112.02(A). The Commission attempted, but failed to resolve this matter by informal methods of conciliation. The Commission subsequently issued a Complaint on March 14, 2002. The Complaint alleged that Respondent subjected Complainant to disparate terms and conditions of employment including, but not limited to, a racially offensive and hostile work environment, and a refusal to assign her full-time health care positions, because of her race and the race of her husband [race by association].
2 Respondent is not represented by counsel. Respondent filed an Answer to the Complaint by leave of the Administrative Law Judge (ALJ) on October 30, 2002. Respondent denied that it engaged in any unlawful discriminatory practices. A public hearing was held on November 13, 2002 at the Akron Government Building in Akron, Ohio. The record consists of the previously-described pleadings, a transcript of the hearing (122 pages); exhibits admitted into evidence at the hearing, and a post-hearing brief filed by the Commission on January 9, 2003. Respondent did not file a brief. FINDINGS OF FACT The following findings of fact are based, in part, upon the assessment of the credibility of the witnesses who testified before the ALJ who presided at the hearing in this matter. The ALJ has applied the tests of worthiness of belief used in current Ohio practice. She considered whether a witness was evasive and whether his or her testimony appeared to consist of
3 subjective opinion rather than factual recitation. She further considered the opportunity each witness had to observe and know the things di s cus sed,each wi t ness’ s st r engt h ofmemor y ,f r ankness or l ack of frankness, and the bias, prejudice, and interest of each witness. Finally, t he ALJ consi der ed t he ex t entt o whi ch each wi t ness’ s t es t i mony was supported or contradicted by reliable documentary evidence. 1. Complainant filed a sworn charge affidavit with the Commission on May 2, 2001. 2. The Commission determined on January 10, 2002 that it was probable that Respondent engaged in unlawful discriminatory practices in violation of R.C. 4112.02(A). 3. The Commission attempted to resolve this matter by informal methods of conciliation. The Commission issued a Complaint after conciliation failed. 4. Respondent is a personnel placement agency doing business in Ohio and an employer.
4 5. Respondent takes applications from individuals who have home health care or nursing experience and is a placement service for clients who contract with Respondent. The placements can be permanent/ temporary or permanent. (Tr. 9) Respondent receives a placement fee for its services. 6. Complainant is a Caucasian who is married to an African- American. 7. Complainant has been certified as a nursing assistant since 1979.1 8. Complainant began her association with Respondent in 1992. 9. In 1996 Complainant was placed with Mr. Ingram and provided him with home health care services until his death in December of 2000, one week before Christmas. 1 Complainant worked for the Red Riding Hood Agency from 1979 until it was bought by Respondent in 1992. (Tr. 16)
5 10. Complainant contacted Respondent and requested a new assignment. Complainant was placed with Mrs. Zofchak on December 26, 2000. 11. Complainant was not comfortable working for Mrs. Zofchak becauseMr s .Zof c hakwas“ v er yr aci alandshekeptmak i ngr aci al( si c)and r el i gi ousst at ement sal loft het i me” . ( Tr .18) 12. Complainant asked for a replacement and a new full-time position. 13. After two weeks Complainant was replaced. 14. Complainant worked for Ms. Jennings for four or five weeks from March to mid-April 2001. 15. The position started out as an eight-hour position, then went to six hours, four hours, until it finally dropped to two hours.
6 16. Respondent ’ shus band cal l ed Compl ai nantathome and t old her he would find someone in Wadsworth to do the job and that it was not wor t hCompl ai nant ’ st i met ogot oWadswor t hf orj us tt wohour s .2 17. Af t er t he J enni ngs’ j ob, Compl ai nant r ecei v ed anot her assignment from June 1-26, 2001. 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 2 Compl ai nantl i ves i n Cuyahoga Fal l s whi ch i s hal fan hour ’ s dr i ve t o Wadsworth.
7 various witnesses is not in accord with the findings therein, it is not credited.3 1. The Commission alleged in the Complaint that Respondent has subjected Complainant to disparate terms and conditions of employment including, but not limited to, a racially offensive and hostile work environment, and a refusal to assign her full-time health care positions. 2. This allegation, if proven, would constitute a violation of R.C. 4112.02 (A), which provides, in pertinent part, that: It shall be an unlawful discriminatory practice: (A) For any employer, because of the race, . . . of any person, 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). 3 Any Finding of Fact may be deemed a Conclusion of Law, and any Conclusion of Law may be deemed a Finding of Fact.
8 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 discrimination under Title VII of the Civil Rights Act of 1964 (Title VII). 5. Title VII has been construed broadly by federal courts to protect individuals who are victims of discriminatory animus toward third persons with whom the individuals associate. Tetro v. Elliot Popham Pontiac, 173 F. 3d 988, 1999 U.S. App. LEXIS 6098 ( 6th Cir.), citing, Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 890 (11th Cir. 1986) (ruling that both Title VII and section 1981 prohibit hiring discrimination based on an i ndi v i dual ’ s as soci at i on wi t h Af r i can-Americans, or based on interracial marriage); Chacon v. Ochs, 780 F. Supp. 680, 680-81 (C.D. Cal. 1991) (holding that it is unlawful under Title VII to discriminate against a white woman married to a Hispanic man); Whitney v. Greater N.Y. Corp. of Seventh-Day Adventists, 401 F. Supp. 1363, 1366 (S.D. N.Y. 1975) (ruling that Title VII provides a cause of action for a white plaintiff who is di s cr i mi nat ed agai nstbecause oft he pl ai nt i f f ’ sr el at i onshi p wi t h Af r i can- Americans).
9 6. Under Title VII case law, the Commission is normally required to first establish 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 burden of establishing a prima facie case is not onerous. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 25 FEP Cases 113, 115 (1981). It is simply part of an ev i dent i ar yf r amewor k“ i nt endedpr ogr ess i v el yt oshar pent hei nqui r yi nt o t he el usi v e f ac t ualques t i on ofi nt ent i onaldi s cr i mi nat i on. ”Id., at 254, 25 FEP Cases at 116, n.8. 7. The proof required to establish a prima facie case is also flexible and, therefore, may vary on a case-by-case basis. McDonnell Douglas, supra at 802, 5 FEP Cases at 969, n.13. In this case, the Commission may establish a prima facie case of race discrimination by proving that: (1) Complainant is a member of a protected class; (2) Complainant was qualified for the position; (3) Respondent subjected Complainant to different terms and conditions of employment than employees not within the protected class; and
10 (4) Respondent failed to give Complainant permanent work assignments under circumstances which give rise to an inference of discrimination. Burdine, supra at 253, 25 FEP Cases at 115, Atlantic Co., Inc., 76 FEP Cases 553, 557 (N.D. Ohio 1997), quoting Jurrus v. Frank, 932 F.Supp. 988, 995 (N.D. Ohio 1993). 8. If the Commission succeeds in establishing a prima facie case of race discrimination, the burden of production shifts to Respondent to “ ar t i cul at esomel egi t i mat e,nondi s cr i mi nat or yr eason”f ort heempl oy ment action.4 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 ough t he i nt r oduc t i on ofadmi s si bl e ev i dence, ”r easonsf ori t sac t i onswhi c h,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. 4 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 ’ s bur den i s mer el y t o ar t i cul at e t hr ough some pr oofa facially nondiscriminatory reason for the failure to give Complainant a permanent assignment. 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).
11 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 its employment action. Hicks, supra at 511, 62 FEP Cases at 100. 9. Respondent met its burden of production by asserting that it does not guarantee its home health care providers that they will receive permanent/temporary or permanent assignments. Respondent also denied she made any racially derogatory statements to Complainant. 10. Respondent having met its burden of production, the Commission must prove that Respondent unlawfully discriminated against Complainant because of her association with an African-American. Hicks, supra at 511, 62 FEP Cases at 100. The Commission must show by a pr eponder anceoft heev i dencet hatRespondent ’ sar t i cul ated reason was nott het r uer eason,butwas“ apr et ex tf ordi s cr i mi nat i on. ”Id., at 515, 62 FEP Cases at 102, quoting Burdine, supra at 253, 25 FEP Cases at 115. [ A]r easoncannotbepr ov edt obea“ pr et ex tf ordi s cr i mi nat i on” 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.
12 11. Thus, ev en i f t he Commi s si on pr ov es t hat Respondent ’ s articulated reason is false or incomplete, the Commission does not automatically succeed in meeting its burden of persuasion: Thatt heempl oy er ’ spr of f er edr easoni sunper suasi v e,orev en obviously contrived, does not necessarily establish that the . . . [ Commi ss i on’ s ] pr of f er ed r eason of r ac e i s cor r ec t . 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 factfinder to infer that Complainant was, more likely than not, the victim of race discrimination. 12. In order to show pretext, the Commission may directly or i ndi r ec t l ychal l enget he cr edi bi l i t yofRespondent ’ sar t i c ul at ed r eason f or not giving her a permanent/temporary or permanent placement. The Commi ssi on may di r ect l y chal l enge t he cr edi bi l i t y of Respondent ’ s articulated reason by showing that the reason had no basis in fact or it was insufficient to motivate the employment decision. Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994). Such direct attacks, if successful, permit the factfinder to infer intentional discrimination from the rejection of the reason without additional evidence of unlawful discrimination.
13 The f ac t f i nder ’ s di sbel i efoft he r eas ons putf or war d by t he 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.5 13. TheCommi ssi onf ai l edt opr ov et hatRespondent ’ sar t i cul at ed reason for not giving Complainant a permanent placement was a pretext for unlawful discrimination. 14. There was no credible evidence introduced by the Commission that other home health care providers not in the protected class were given preferential treatment in terms of being placed in permanent work assignments. 15. When asked whether Complainant knew of anyone who received permanent placement in a new home health care job by Respondent ,Compl ai nantanswer ed,“ Notspeci f i cknowl edge,no. ”( Tr .46) 5 Event houghr ej ect i onofar espondent ’ sar t i cul at edr easoni s“ enoughatl awt o sustain finding of discrimination, there must be a finding of discrimination.”Hicks, supra at 511, 62 FEP Cases at 100, n.4.
14 16. Respondent introduced credible evidence that other employees –an African-American married to a Caucasian, a Caucasian married to a Hispanic, and a Caucasian married to an African-American (like Complainant) - had no problems getting assignments. 17. Additionally, the Commission failed to prove that Respondent subjected Complainant to a hostile and offensive work environment. To establish a racially hostile work environment, Complainant must show conduct: . . . severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and the victim must subjectively regard that environment as abusive. Jackson v. Quanex Corp., 191 F.3d 6, 658 (6th Cir. 1999). It is well established in the Sixth Circuit that isolated and ambiguous comments are too abstract, in addition to being irrelevant and prejudicial, to support a finding of . . . discrimination. Grant v. Harcourt Brace, 77 FEP Cases 1068, 1076 (D.C. S. Ohio 1998) (citations and quotations omitted).
15 18. Compl ai nant ’ st est i monyr egarding alleged statements made by Respondent about coming to a Halloween party and bringing her husband were, at best, abstract and, therefore, insufficient to establish a hostile work environment. 19. Additionally, when Complainant complained to Respondent about Mrs. Zofchak making racial and religious derogatory comments, Complainant was reassigned within two weeks to another placement. 20. In conclusion, the Commission has failed to meet its evidentiary burden to show that Complainant was subjected to different terms and conditions of employment and a hostile work environment because of her association with an African-American. RECOMMENDATION For all of the foregoing reasons, it is recommended that the Commission issue a Dismissal Order in Complaint No. 9280. ____ DENISE M. JOHNSON CHIEF ADMINISTRATIVE LAW JUDGE June 4, 2004
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