Albert Stevens v. Micheline North America

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
ALBERT STEVENS
Complainant Complaint No. 8953
(AKR) 73030400 (24608) 030900
and 22A –A0 –5390
MICHELIN NORTH AMERICA, INC.
Respondent
CHIEF ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
JIM PETRO
ATTORNEY GENERAL
Duffy Jamieson, Esq. Sally D. Henning
Deputy Attorney General Henning & Yost
Civil Rights Section, 15th Floor 5022 Yukon N.W. –Suite D
30 East Broad Street Canton, OH 44708
Columbus, OH 43215-3428 330 –479 –9825
614 - 466 - 7900
Counsel for Respondent
Counsel for the Commission
ALJ'S REPORT BY:
Denise M. Johnson
Albert Stevens 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

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INTRODUCTION AND PROCEDURAL HISTORY
Albert Stevens (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on March 9, 2000.
The Commission investigated the charge and found probable cause
that Michelin North America, Inc. (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 January 4, 2001.
The Complaint alleged that Respondent denied Complainant hire
because of his race.
Respondent filed an Amended Answer to the Complaint on April 26,
2001. 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 November 5-6, 2002 at the Akron
Government Building in Akron, Ohio.
The record consists of the previously-described pleadings, a
transcript of the hearing (254 pages), exhibits admitted into evidence
during the hearing, and post-hearing briefs filed by the Commission on
January 14, 2003, and by Respondent on February 18, 2003, and a reply
brief filed by the Commission on February 24, 2003.1
1 On January 31, 2003, Respondent filed a Motion for Extension of Time to file
t	hei	rr	epl	ybr	i	ef	.Duet	ot	heel	i	mi	nat	i	onofJudgeToddEvans’posi	t	i	on,t	hemot	i	onwas
notdi	scover	ed unt	i	lwel	laf	t	erRespondent	’	sr	epl	ybr	i	efwasf	i	l	ed. On Febr	uar	y24,
2003, Counsel for the Commission filed a Motion to Strike Brief and Motion to Strike
Exhibits and Reply Brief. On March 4, 2003, Counsel for Respondent filed a Response
and Cross Motion to Strike.
TheCommi	ssi	on’	sMot	i	ont	oSt	r	i	keRespondent	’	spost	-hearing brief is denied;
Respondent	’	sCr	ossMot	i	on t	o St	r	i	ke i	sdenied. The Commi	ssi	on’	sMot	i	on t	o St	r	i	ke
Exhibit B is granted.

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FINDINGS OF FACT
The following findings of fact are based, in part, upon the assessment
of the Administrative Law Judge (ALJ) of the credibility of the witnesses
who testified before the ALJ in this matter. 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
di	s	cus	sed,each wi	t	ness’	s st	r	ength of memory, frankness or lack 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 March 9, 2000.
2. The Commission determined on November 16, 2000 that it
was probable that Respondent engaged in unlawful discrimination in
violation of R.C. 4112.02(A).

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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. Respondent is a corporation doing business in Ohio and an
employer.
5. Complainant is an African-American.
6. During the latter part of 1999 to early 2000 Respondent initiated
a hiring campaign anticipating hiring between six (6) to eight (8) people.
7. Respondent faxed information to the Ohio Bureau of
Employment Services (OBES) regarding its campaign to recruit production
operators.
8. OBES sent Respondent all completed applications, which
i	ncl	udedCompl	ai	nant	’	sappl	i	cat	i	on.

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9. The applications were reviewed separately by Terry Pelton,
plant manager; Bob Mooney, supervisor for shipping and receiving and
testing; David Gray, acting plant manageratRespondent	’	s Magador	e
Facility, and Wayne Conmony, an industrial engineer.
10. The applications were then reviewed by Mooney, Conmony,
and Gray as a group to check work history and attendance, in addition to
other things. The applications were then separated into testing and non-
testing piles.
11. The test was conducted at OBES and someone from
Respondent	’	sPer	s	onnelDepar	t	mentgr	adedt	het	es	t	.
12. Only those candidates whose applications had been reviewed
by the group and achieved a certain score were selected for interviews.
13. Compl	ai	nant	’	s appl	i	cat	i	on was pl	aced i	n t	he gr	oup of
applications where candidates were given interviews.
14. Conmony, Mooney, Gray, and Herb Harris, a representative
f	r	om Respondent	’	sPer	sonnelDepar	t	ment	,i	nt	er	v	i	ewedt	he candidates.

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15. Each candidate interviewed with each interviewer separately.
16. After each interview session, the interviewers met as a group to
discuss the candidates.
17. Thegr	oupofi	nt	er	v	i	ewer	shadaconc	er	naboutCompl	ai	nant	’	s
reasons for his separation from his last place of employment.
18. For this hiring campaign between forty (40) to sixty (60)
people were interviewed.
19. As a result of the hiring campaign, Respondent hired nine (9)
candidates between the dates of March 27 –April 3, 2000. Of the new
hires, eight (8) are Caucasian and one (1) is African-American.
20. Complainant was not offered a 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.2
1. The Commission alleged in the Complaint that Respondent
denied Complainant hire because of his race.
2. This allegation, if proven, would constitute a violation of R.C.
4112.02, which provides, in pertinent part, that:
2 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(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 discrimination under
Title VII of the Civil Rights Act of 1964 (Title VII).
5. 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 proof required to establish a

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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
bur	den ofpr	oduc	t	i	onshi	f	t	st	oRespondentt	o “	ar	t	i	cul	at	esomel	egi	t	i	mat	e,
nondi	s	cr	i	mi	nat	or	yr	eason”f	ori	t	sempl	oy	mentact	i	on.3 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. Mary’	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.
3 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 . . . [denial of hire]; 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).

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The presumption created by the establishment of a prima facie case“	dr	ops
out of t	he pi	c	t	ur	e” when t	he empl	oy	er ar	t	i	cul	at	es 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	’	sar	t	i	cul	at	i	on ofa
legitimate, nondiscriminatory reason for refusing to hire Complainant
removes any need to determine whether the Commission proved a prima
facie case,andt	he“	f	ac	t	uali	nqui	r	ypr	oceedst	oanew l	ev	elofspeci	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.

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8. Respondent met its burden of production by articulating that the
reason Complainant was not hired was due to his involuntary termination
from his previous place of employment during his probationary period.
Compl	ai	nant	’	st	er	mi	nat	i	onwasbasedonhi	sat	t	endance.
9. Respondent having met its burden of production, the
Commission must prove that Respondent unlawfully discriminated against
Complainant. Hicks, supra at 511, 62 FEP Cases at 100. The Commission
must show by a pr	eponder	ance oft	he ev	i	dence t	hatRespondent	’	s
articulated reason for refusing to hire Complainant was not the true reason,
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.
10. Thus, ev	en i	f t	he Commi	ssi	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:

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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.
11. 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 for
refusing to hire Complainant.
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.4
Hicks, supra at 511, 62 FEP Cases at 100 (emphasis added).
4 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
511, 62 FEP Cases at 100, n.4.

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12. The Commission may indirectly challenge the credibility of
Respondent	’	s r	eason by showi	ng t	hat t	he s	heer wei	ght of t	he
circums	t	ant	i	alev	i	dencemakesi	t“	mor	el	i	k	el	yt	hannot	”t	hatt	her	easoni	sa
pretext for unlawful discrimination. Manzer, supra at 1084. This type of
showing, which tends to prove that the reason 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.
13. The Commission attempted to show pretext in this case by
alleging disparate treatment. Specifically, the Commission attempted to
at	t	ac	k t	he c	r	edi	bi	l	i	t	y ofRespondent	’	s ar	t	i	cul	at	ed r	eas	on i	n addi	t	i	on t	o
showing that a non-minority comparable was treated differently.
14. Proof of disparate treatment requires similarly-situated
comparatives. The Commission must show that the comparatives were
“	si	mi	l	ar	l	ysi	t	uat	edi	nal	l	r	es	pec	t	s”	:

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Thus t	o be deemed “	si	mi	l	ar	l	y si	t	uat	ed”	,t	he i	ndi	v	i	dual	s wi	t	h
whom . . . [Complainant] seeks to compare . . . treatment must
have dealt with the same supervisor, and have been subject to
the same standards, and have engaged in the same conduct
without such differentiating and mitigating circumstances that
woul	ddi	st	i	ngui	sht	hei	rconductort	heempl	oy	er	’	st	r	eat	mentof
them for it.
Mitchell v. Toledo Hospital, 59 FEP Cases 76, 81 (6th Cir. 1992)
(citations omitted).
15. To be deemed si	mi	l	ar	l	y si	t	uat	ed,“	a pr	eci	se equi	v	al	ence i	n
cul	pabi	l	i	t	y	”i	snotr	equi	r	ed;mi	s	conductof“	compar	abl	e ser	i	ousness	”may
suffice. Har	r	i	sonv.Met	r	o.Gov’	t	.ofNashvi	l	l	eand Davidson Cty., 73 FEP
Cases 109, 115 (6th Cir. 1996) (quotations omitted).
16. Respondent argues that the Commission failed to prove that
Complainant was treated differently than similarly-situated white
employees. This argument is well taken. The record is void of any
evidence that white candidates who were hired had comparable work
r	ecor	dst	oCompl	ai	nant	’	swor	kr	ec	or	d(	t	er	mi	nat	edf	orat	t	endance)	.
17. While the ALJ agrees that there was conflicting testimony about
t	he f	ac	t	s sur	r	oundi	ng Respondent	’	s r	ef	er	ence chec	k r	egar	di	ng
Compl	ai	nant	’	s termination from his previous employment, this case lacks

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t	he“	suspi	ci	onofmendaci	t	y	”t	hati	sment	i	onedi	nt	heHicks case. Hicks,
supra at 511, 62 FEP Cases at 100. In other words, the ALJ does not
bel	i	ev	e t	hatRes	pondent	’	s ar	t	i	cul	at	ed r	eason was a cover-up for race
discrimination.
18. Complainant invited Respondent to check with his previous
employer regarding the reasons for his termination. Even though
Respondent	’	s empl	oy	ees chose t	o c	ont	acti	ndi	v	i	dual	s who t	hey had a
personal relationship with atCompl	ai	nant	’	spr	ev	i	ouspl	ac	eofempl	oy	ment	,
there was nothing in the record to suggest that it was done because of
Compl	ai	nant	’	sr	ace.
19. One of Respondent	’	s obj	ec	t	i	v	e cr	i	t	er	i	a f	or succes	sf	ul
candidates was that they have a good attendance record.
[	A]pl	ai	nt	i	f	fmay notest	abl	i	s	h t	hatan empl	oy	er	’	s pr	of	f	er	ed
reason is pretextual merely by questioning the wisdom of the
empl	oy	er	’	sr	eason,atl	eas	tnotwher	e,asher	e,t	her	eas	oni	s
one that might motivate a reasonable employer.
Combs v. Meadowcraft, Inc., 73 FEP Cases 232, 249 (11th Cir.
1997).

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RECOMMENDATION
For all of the foregoing reasons, it is recommended that the
Commission issue a Dismissal Order in Complaint No. 8953.
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
June 30, 2004