Otis Davenport v. State of Ohio, Bureau of Workers Compensation

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
OTIS DAVENPORT
Complainant 	Complaint #7192
(DAY-COL) 71070193 (20781) 092893
and 	22A-93-5144
STATE OF OHIO,
BUREAU OF WORKERS’ COMPENSATION
Respondent
HEARING EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
BETTY D. MONTGOMERY 	BETTY D. MONTGOMERY
ATTORNEY GENERAL 	ATTORNEY GENERAL
David A. Oppenheimer, Esq. 	Jack W. Decker, Esq.
Assistant Attorney General 	Assistant Attorney General
Civil Rights Section 	Employment Law Section
State Office Tower, 15th Floor 	140 East Town Street, 14th Floor
30 East Broad Street 	Columbus, OH 	43215-6001
Columbus, OH 	43215-3428 	(614) 644-7257
(614) 466-7900
Counsel for Respondent
Counsel for the Commission
HEARING EXAMINER'S REPORT BY:
Franklin A. Martens, Esq.
Otis Davenport 	Chief Hearing Examiner
1346 Hamlet Street 	Ohio Civil Rights Commission
Columbus, OH 	43201 	1111 East Broad Street, Suite 301
Columbus, OH 	43205-1379
Complainant 	(614) 466-6684

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INTRODUCTION AND PROCEDURAL HISTORY
Otis Davenport (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on September 28, 1993.
The Commission investigated and found probable cause to believe that
unlawful discriminatory practices had been engaged in by the State of Ohio,
Bureau of Workers’ Compensation (Respondent) (BWC) 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 September 19, 1994.
The Complaint alleged that Complainant was suspended and denied
two promotions because of his race and sex.1
1 Subsequent to the hearing, the Commission and Respondent stipulated that the
issues regarding the allegation that Complainant was suspended because of his race and
sex were moot. 	Therefore, those issues will not be discussed in this Report.

2
Respondent 	filed 	an 	Answer 	to 	the 	complaint, 	admitting 	certain
procedural 	allegations 	but 	denying 	that 	it 	engaged 	in 	any 	unlawful
discriminatory practices.
Complainant filed an action in federal court against Respondent in which
he raised the same facts and issues as those raised before the Commission.
This matter was stayed pending the outcome of the federal action. 	The
federal action did not resolve the issues on their merits. Therefore, a Motion
to Remove the Stay and Set a Hearing was filed on August 17, 1998.
A public hearing was held on January 12-13, 1999 at the Commission’s
Central Office in Columbus, Ohio.
The record consists of the previously described pleadings; the transcript
consisting of 388 pages of testimony; exhibits admitted into evidence at the
hearing; and the post-hearing briefs filed by the Commission on March 2,
1999 and by Respondent on March 22, 1999. 	Complainant filed a brief
on March 25, 1999.

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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
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
September 28, 1993.

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2. The Commission determined on September 8, 1994 that it was
probable that unlawful discriminatory practices had been engaged in by
Respondent in violation of R.C. 4112.02(A).
3. 	The 	Commission 	attempted 	to 	eliminate 	the 	alleged 	unlawful
discriminatory practices by conciliation. The Commission issued its complaint
after conciliation failed.
4. 	Respondent is a state agency and an employer.
5. 	Complainant is a male and a black person.
6. 	Complainant has been employed by Respondent since May 1990.
In 1993, he was employed in the Department of Provider Affairs as a data
entry operator (DEO).
7. 	In 1993, Respondent was in the process of filling between 800 and
1,000 Claims Representative (CR) positions. These positions came about as
part of a BWC reorganization, which drastically changed the job duties of a
CR. CRs under the new job description had responsibility for processing a

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claim from its inception until the claimant either returned to work or the claim
was closed for other reasons. 	The position required more skills than the
previous claims examiner position and Complainant’s DEO position and was
accordingly classified at pay range 28.
8. The new CR positions were subject to the Ohio Civil Service
Employees Association (OCSEA) Collective Bargaining Agreement (CBA).
The CBA provided that promotions be awarded to the senior most qualified
proficient applicant.
9. In order to determine which applicant was the most proficient,
Respondent created minimum qualifications for the position. 	If an applicant
possessed the minimum qualifications, they proceeded to the next stage of
the selection process, a proficiency test.
10. 	The test had three parts. 	The first part was a simple math test; the
second part was a writing sample; and the third part was an oral interview.
Applicants who passed the proficiency test became part of a pool of
applicants who were grouped by classification series. 	Complainant and all
other employees 	of 	BWC 	who 	applied 	for 	CR 	positions were Group 2

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applicants. The most senior applicant in the group was awarded the position.
11. 	Generally, applicants were only considered for the position they
applied for. 	Each position had a different Position Control Number (PCN).
Thus, applicants had to reapply for each PCN that was posted. 	They also
had to retake the proficiency test for each PCN if they had not taken the
proficiency test within two weeks. 	It was possible to have a different score
each time one took the proficiency test because the interview portion could be
conducted by a different interviewer who would have a different perception of
the interviewee’s interviewing skills. 	There were also four different versions
of the written test.
12. The selection process was controversial and criticized by the
bargaining 	unit 	employees. 	Ultimately, 	over 	150 	grievances 	were 	filed
complaining about the manner in which CR positions were filled. 	All of these
grievances were settled in a global agreement with the OCSEA which
provided that a new test would be developed, all previously unsuccessful
applicants would be given an opportunity to take it, and those who passed

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would be awarded an CR position with back pay from the date of their
grievance.
13. 	Complainant was eligible to participate in the settlement agreement
but did not participate. 	Nor did Complainant apply for any additional CR
vacancies that were posted after the positions he applied for in 1993 and prior
thereto.
14. 	Complainant applied for between 50 and 60 CR positions. 	He
applied for 37 of them within one month.2 He also applied for PCN 13708.0.
He met the minimum qualifications; he took and passed a proficiency test.
Initially, he was identified by Regional Administrative Manager Amy Blateri as
the most senior, qualified, proficient applicant. 	Complainant came to believe
that he had been awarded the position.
15. 	This was incorrect. 	Prior to being awarded any position, the
position was subject to review by Labor Relations. 	The packet containing
Complainant’s selection and the materials regarding all the other applicants
was reviewed by Kathleen Raparelli, Labor Relations Officer. 	The packet
Raparelli reviewed contained the applicant log.

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16. The applicant log listed Brenda Boley, (Caucasian, female), as an
applicant. 	However, there was no information in the packet regarding the
disposition of Boley’s application. 	Raparelli checked Boley’s seniority date
and learned that she was more senior than Complainant, but had never been
tested. 	Raparelli reviewed Boley’s application and found that it was unsigned
and undated. 	She decided it had to have been timely filed because Boley’s
name was on the applicant log, which only contains the names of applicants
whose applications are timely filed. 	Raparelli passed this information along to
Human Resources. Boley was allowed to take a proficiency test. 	She took
the test and passed it on June 9, 1993. 	Pursuant to the CBA, Raparelli
decided she had no choice but to offer the position to Boley.
17. 	In May 1993, Complainant also applied for PCN 13704.0. 	Blateri
received the packet for this position more than two weeks after Complainant
had 	passed 	the 	proficiency 	examination. 	Therefore, 	pursuant 	to
Respondent’s usual practice, she contacted Complainant and told him that he
would have to
2 Apparently, Complainant did not pass the proficiency test for any of the 37
positions. The positions discussed in this Report were additional positions he applied for.

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take another proficiency examination to be considered for the position. 	He
told her he would not take any more proficiency tests.
18. Pursuant to Respondent’s usual practice, Blateri asked him to
document his refusal with a letter. 	Complainant never sent her one. 	Julia
Dent, 	Blateri’s 	executive 	secretary, 	also 	contacted 	Complainant 	and
scheduled 	him 	for 	the 	proficiency 	examination 	for 	PCN 	13704.0.
Complainant told her he had already been selected for another position (the
position ultimately awarded to Boley) and declined to take the examination.
Dent also asked Complainant for a letter. Dent documented Complainant’s
refusal on the interview summary. She noted he “refused to participate –
interview process, declined without letter.” 	(Jt. Ex. 66)
19. 	Complainant was not recommended for PCN 13704.0 because he
refused to retake the proficiency examination. 	The position was awarded to
Mary Grubb, a Caucasian female who was less senior than Complainant.3
3 Complainant received a form rejection letter stating that a more senior applicant
had been chosen for one of the positions he applied for. 	Although he believed the letter
was referring to PCN 13704.0, it could have been referring to one of the other positions.

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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 herein, it is not credited.4
1. The Commission alleged in the Complaint that Respondent failed to
promote Complainant because of his race and sex.
2. 	This allegation, if proven, would constitute a violation of R.C. §
4112.02, which provides in pertinent part that:
4 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, . . . sex, . . . of any
person, . . . 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
Chapter 4112 of the Revised Code. 	The Commission must prove a violation
of R.C. § Section 4112.02(A) by a preponderance of reliable, probative and
substantial evidence. 	R.C. § 4112.05(G) and § 4112.06(E).
4. 	Title VII standards are to be used in evaluating alleged violations of
Chapter 4112 of the Revised Code. 	Therefore, reliable, probative and
substantial evidence means evidence sufficient to support a finding of
discrimination under Title VII of the Civil Rights Act of 1964, U.S.C. Sec.
2000e et. seq., Little Forest Med. Ctr. of Akron v. Ohio Civil Rights Comm.
(1991), 61 Ohio St.3d 607.
5. 	Normally, 	the 	order 	of 	proof 	in 	a 	Title 	VII 	case 	requires 	the
Commission to prove a prima facie case of discrimination.
The plaintiff in a Title VII case possesses the ultimate burden of
persuasion 	and 	the 	intermediate 	burden 	of 	proving 	by 	a

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preponderance 	of 	the 	evidence 	a 	prima 	facie 	case 	of
discrimination.
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101
S. Ct. 1089, 1093, 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.5 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.
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 actions. Hicks, supra at 511, 62 FEP Cases
at 100.
5 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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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 its decision 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 reason for not awarding Complainant the first position was
that he was not the most senior qualified applicant. 	Respondent’s legitimate,
nondiscriminatory reason for not awarding Complainant the second position
was that he refused to participate in the selection process when he declined to
take another proficiency test.

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9. 	Respondent having met its burden of production, the Commission
must show by a preponderance of the evidence that Respondent’s articulated
reasons were not its true reasons but were 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 a
question for 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
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

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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.6
Id., at 511, 62 FEP Cases at 100.
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. 	There is no dispute that the Commission has the burden of proof
throughout the proceedings. 	The Commission cannot shift the burden of
proof to Respondent. 	The Commission cannot satisfy its burden of proof by
merely arguing that the manner in which Boley’s application was resurrected
was “suspicious”. 	(Comm.Br. 23)
6 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
finding of discrimination.” 	Hicks, supra at 511, 62 FEP Cases at 100, n.4.

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The defendant’s burden is merely to articulate through some proof
a 	facially 	nondiscriminatory 	reason 	for 	the 	termination; 	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).
13. 	In effect, the Commission is challenging the procedures used by
Respondent to process Boley’s application. If Respondent deviated from its
usual procedures, an argument could be made that they were doing so to
avoid awarding the position to Complainant. 	Whether they were doing so
because of his race would still be an open question. 	However, it is hard to
believe and difficult to prove that there was a conspiracy to keep Complainant
from getting the position because he was a black male, given 800 to 1,000
new CR positions.
14. There was conflicting testimony regarding the processing of Boley’s
application; however, I resolved the conflict in favor of the version offered by
Raparelli. 	Based on her version, there was no deviation from normal
procedures. 	Normal procedures were followed once it was discovered that
Boley’s application had not be processed. 	Even if her version of what

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happened was incorrect, I find that it was not intentional. 	She may have been
mistaken. 	An honest, mistaken belief is not evidence of discrimination.
It is not enough for the plaintiff to show that the employer’s
decision was wrong or mistaken, because the factual dispute at
issue is whether the employer was motivated by a discriminatory
animus, not whether it was wise, shrewd, prudent, or competent.
Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 69 FEP
Cases 753, (3d Cir. 1995).
A reason honestly described but poorly founded is not a pretext,
as that term is used in the law of discrimination. . . . Bad or
mistaken reasons for a decision may yet be non-discriminatory.
Holder v. City of Raleigh, 49 FEP Cases 47 (4th Cir. 1989).
. . . a mistaken belief or motive can be a legitimate reason for an
employment decision and is not necessarily pretextual.
Nix v. WLCY Radio/Rahall Communications, 35 FEP Cases 1104
(11th Cir. 1984), cited in EEOC v. Flasher Co., supra at fn. 12.
15. 	A somewhat different analysis must be applied to the promotion
that was ultimately awarded to Mary Grubb, PCN 13704.0. The Commission
argued that Respondent did not follow their own procedures when filling this
position. 	The Commission argued Complainant did not have to take another
proficiency test because the posting deadline for the position he applied for

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was less than fourteen days after he took his last proficiency test. 	This is
incorrect.
16. 	Respondent 	counted 	the 	fourteen 	days 	from 	the 	date 	the
application packet was received by Blateri. Blateri received the packet more
than two weeks after Complainant had taken and passed the proficiency
examination. Therefore, under Respondent’s policy, he was required to take
another proficiency test.
17. 	The Commission questions the wisdom of such a policy. 	That is
not the issue. 	The issue is whether the policy was applied equally to all
persons regardless of their race. There is no evidence that it was not applied
equally. 	The Commission’s criticism of the policy may be well-founded.
Respondent admits that the policy was inefficient and unpopular. 	Ultimately,
it was changed in response to 150 grievances over its implementation.
However, that does not prove that the policy was used to deny Complainant a
promotion because of his race.
18. The Commission cannot make a finding of intentional discrimination
merely because it disagrees with Respondent’s business judgment.

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[A] . . . discrimination action is not a device which permits the jury
to examine an employer’s reasons . . . and determine that an
employer’s business judgment or policies do not appeal to its
sensibilities.
Brocklehurst v. PPG Industries, 74 FEP Cases 984, 990 (6th Cir.
1997) (citation and quote within a quote omitted).
“. . . [W]e will not review ‘the wisdom or fairness of the business
judgment made by employers, except to the extent that those
judgments involve intentional discrimination’.”
Krumwiede v. Mercer Co. Ambulance Service, 74 FEP Cases
188, 191 (8th Cir. 1997) (Citation omitted).
[A] plaintiff may not establish that an employer’s proffered reason
is pretextual merely by questioning the wisdom of the employer’s
reason, at least not where, as here, the reason is one that might
motivate a reasonable employer.
Combs v. Meadowcraft, Inc., 73 FEP Cases 232, 249 (11th Cir.
1997).
The law does not require employers to make perfect decisions,
nor forbid them from making decisions that others may disagree
with.
Hartsel v. Keys, 72 FEP Cases 951, 955 (6th Cir. 1996).

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19. 	Since the Commission was unable to prove Respondent’s
legitimate, 	nondiscriminatory 	reasons 	for 	denying 	Complainant 	two
promotions were a pretext for race and sex discrimination, the Complaint must
be dismissed.
RECOMMENDATION
For all the foregoing reasons, it is recommended that the Commission
issue a Dismissal Order in Complaint #7192.
FRANKLIN A. MARTENS
CHIEF HEARING EXAMINER
November 2, 1999