Barbara Franer v. Lofino�??s Food Support Center

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
BARBARA E. FRANER
Complainant 	Complaint #8929
(DAY) 76111999 (14233) 010400
and 	22A – A0 – 8912
LOFINO’S FOOD CENTER
Respondent
HEARING EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATIONS
BETTY D. MONTGOMERY
ATTORNEY GENERAL
Judith B. Goldstein, Esq. 	Todd D. Penney, Esq.
Assistant Attorney General 	Theodore C. Copetas, Esq.
Civil Rights Section 	Thompson Hine
State Office Tower, 15th Floor 	2000 Courthouse Plaza, N.E.
30 East Broad Street 	10 West 2nd Street
Columbus, OH 	43215-3428 	Dayton, OH 	45402-1758
(614) 466-7900 	(937) 443-6600
Counsel for the Commission 	Counsel for Respondent
HEARING EXAMINER'S REPORT BY:
Franklin A. Martens, Esq.
Barbara E. Franer 	Chief Hearing Examiner
37 Grantwood Drive 	Ohio Civil Rights Commission
West Carrollton, OH 	45449 	1111 East Broad Street, Suite 301
Columbus, OH 	43205-1379
Complainant 	(614) 466-6684

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INTRODUCTION AND PROCEDURAL HISTORY
Barbara E. Franer (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on January 4, 2000.
The Commission investigated and found probable cause that Lofino’s
Food Center (Respondent) engaged in unlawful discriminatory practices in
violation of Revised Code (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 December 7, 2000. 	The Complaint alleged that Respondent harassed
and constructively discharged Complainant because of her sex.
Respondent filed a timely Answer to the complaint, admitting certain
procedural 	allegations 	but 	denying 	that 	it 	engaged 	in 	any 	unlawful
discriminatory practices. 	Respondent also pled affirmative defenses.

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A public hearing was held on June 25-26, 2001 at the Commission’s
Regional Office in Dayton, Ohio.
The record consists of the previously described pleadings; the transcript
consisting of 386 pages of testimony; exhibits admitted into evidence at the
hearing; and the post-hearing briefs filed by the Commission on October 31,
2001, and by Respondent on December 14, 2001. 	The Commission filed a
reply brief on January 8, 2002.
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

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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
January 4, 2000.
2. 	The Commission determined on October 26, 2000 that it was
probable that Respondent engaged in unlawful discrimination in violation of
R.C. 4112.02(A).
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. 	Respondent owns and operates four retail grocery stores in the
Dayton area.

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5. 	Complainant is a female. 	She was employed at Respondent’s
corporate office in April 1996 as a general office worker. 	Shortly thereafter
Respondent created a new position for her called Accounts Receivable
Coordinator. 	Complainant’s duties required her to interact with buyers,
vendors, secretaries, the Accounting Manager, and the Accounts Payable
Department.
6. 	Jim Winning, male, was one of those buyers. 	He had been
employed by Respondent since January 1995. 	Winning had a rude and
uncivil personality. 	When he was upset about something, he would raise his
voice and use profanity. 	His propensity for temper tantrums was well known
by his coworkers and supervisors.
7. 	In November 1997 Respondent moved their corporate office to
Beavercreek, Ohio. 	Winning’s 	relationship 	with 	Complainant 	began 	to
deteriorate shortly after the move to the Beavercreek location. 	He began to
make sarcastic remarks to her and ask her annoying questions about the size
and location of her cubicle. 	These comments were made frequently.
Complainant tried to ignore them. 	She also reported them to her immediate

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supervisor and to the Director of Human Resources. 	They responded, “Jim’s
being Jim,” or “That’s the way Jim is,” or “Jim’s overworked,” or offered other
excuses for his behavior. 	(Tr. 73)
8. 	On other occasions Winning would come into Complainant’s cubicle
looking for something in her files while she would be working. 	Instead of
asking her to find it, he would open the files, start slamming file drawers,
saying, “Now, I’m having to do the fucking accounting, I have to do everything
around here, nobody does anything!” 	(Tr. 74)
9. 	Whenever Complainant had to interact with Winning, he would be
rude to her. He never greeted her. 	He always addressed her rudely, saying
something like, “What do you want?” or “What are you doing here?” 	(Tr. 80)
10. 	In the summer of 1998, Complainant did extra work for one of
Respondent’s vendors. 	As a token of his appreciation, he gave her tickets to
the Dayton Air Show. 	He had received the tickets from Respondent. 	The
tickets were normally reserved for vendors and allowed them access to the
air-conditioned pavilion and included catered meals and drinks. 	(Employees

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received general admission tickets.) 	Complainant had a conflict and could
not use the tickets. 	She asked the buyer who was in charge of the event if
she could exchange them for another day. 	He was not sure he could
exchange them. 	She gave him the tickets and told him that if she could not
exchange the tickets, she would give them back to the vendor. 	(Tr. 74-75)
11. 	Fifteen or twenty minutes later Winning stuck his head over the
partition of her cubicle and began screaming and cursing at her about the
tickets. 	He insisted that she tell him who gave them to her. 	Complainant
refused to tell him the person’s name. 	Winning replied, “You’re going to tell
me or I’m going to find out!” 	Winning continued to demand that she disclose
the vendor’s name. 	When Complainant did not respond, he went back to his
office and started calling vendors to find out who gave her the tickets.
Complainant asked her supervisor to intervene. 	He did not respond.
Winning told Complainant that she could not use the tickets. 	The incident
upset Complainant, and it took her a while before she could get back
to work. (Tr. 76-79)

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12. 	About three months later Complainant approached Winning about
a past-due account from one of his vendors. 	Complainant wanted to know if
Winning had been successful in contacting the vendor to get payment or
whether she should deduct what was owed from the bill that the vendor sent
Respondent. 	Winning went into a tirade, yelled at her, and repeatedly stated,
“Deduct it! 	No, don’t deduct it! 	Deduct it!! 	Don’t deduct it!” louder and
louder each time. 	Finally, he said, “If you deduct it, I’m shoving my foot up
your ass! 	No! 	I’m shoving both of my goddamn feet up your fucking ass!” –
at which time Complainant walked back to her cubicle and reported the
incident to her supervisor. 	(Tr. 80-81)
13. 	Complainant was visibly upset. 	Her face was red, her eyes were
glassy, and she was shaking. 	The supervisor told her to take the day off.
When Complainant told her husband what had happened, he made an
appointment 	to 	meet 	with 	Complainant’s 	supervisor. 	He 	met 	with
Complainant’s supervisor and Winning’s supervisor the next day. 	(Tr. 81-82)
14. 	When Complainant returned to work the following Monday, Winning
apologized to her. 	Winning’s supervisor told Complainant that if she was not

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comfortable working with Winning, then Winning would be terminated.
Complainant told him she did not want Winning to lose his job. 	(Tr. 218)
Winning was given a written reprimand over the incident.
15. Complainant followed up the incident by sending a letter to her
supervisor where she proposed that she might get more respect from the
buyers if her position was changed to a salaried/management position.
16. 	The next incident occurred in October 1999. 	Complainant was in
the reception area having a conversation with the assistant buyer who worked
for Winning. 	She was filling in for the receptionist. 	While they were talking,
Winning came up to the reception area, waving his arms, screaming, and
cursing. 	Complainant was afraid Winning was going to hit her. 	(Tr. 95) 	She
moved behind the counter. 	The Human Resources Director came into the
area and told Winning his behavior was not appropriate and that he should go
back to his office. 	Winning cursed at him a couple of times and left the area
escorted by the Human Resources Director. 	While he was walking back to
his office, he kicked a box. 	(Tr. 95-96)

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17. Complainant went to her supervisor and told him that he had to do
something about the situation. 	He told her to take the rest of the day
off. 	(Tr. 97) 	When Complainant returned to work, Winning glared at her
every time he passed her office. 	(Tr. 98-99)
18. 	Another incident occurred on October 29, 1999. 	Complainant and
Winning had a long-running controversy about answering the telephones.
From the onset of her employment, Complainant had an agreement with her
supervisor that she would not have to fill-in for the receptionist, which was
customarily done by other persons in support positions, all of whom were
females.
19. 	Complainant was scheduled to leave work early that day. 	Before
she left, she found a back-up schedule for the receptionist’s position in her
tray with Winning’s handwriting on it, “F.Y.I.” 	Circles had been drawn around
her name where Complainant had been scheduled to fill-in for the receptionist
five hours a week. 	Complainant complained about this to her supervisor and
to the Director of Human Resources. 	When the matter was not resolved,
Complainant 	became 	physically 	ill 	and 	went 	to 	her 	doctor’s 	office.

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Subsequently, she was transferred to the hospital and had to take two weeks
off from work.1 (Tr. 100-104)
20. 	When Complainant returned to work on November 17, 1999, she
gave her supervisor a letter where she repeated her request that her position
be changed to a salaried/management position. 	The Director of Human
Resources responded on November 18 advising her that Respondent could
not grant her request. 	(Comm.Ex. 11, 12, Tr. 111-112)
21. 	Complainant resigned on November 19, 1999, because she could
not continue to work in a hostile working environment. 	(Comm.Ex. 13, Tr.
115)
1 Throughout her employment Complainant had to go home six or seven times
because she was so upset about Winning’s outbursts.

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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 	that 	Respondent 	harassed 	and
constructively discharged Complainant because of her sex.
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 . . . sex, . . . 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. 	Federal and state anti-discrimination law prohibits sex discrimination
in the terms and conditions of employment or any matter related directly or
indirectly to employment, including the creation of hostile or abusive work

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environment. 	Even if the alleged harassment is non-sexual in nature, it
violates the statute if it is gender-based.
[A]ctions that are simply abusive, with no sexual element, can
support a claim for sexual harassment if they are directed at an
employee because of his or her sex. 	Simply put, “[h]arassment
alleged to be because of sex need not be explicitly sexual in
nature.”
Hampel v. Food Ingredients Specialties, Inc., (2000) 89 Ohio
St.3d 169, 179 (quoting Carter v. Chrysler Corp., (8th Cir. 1999),
173 F.3d 693, 701.
See also Bowman v. Shawnee State University (6th Cir. 2000), 220 F.3d 456,
463 (“Non-sexual conduct may be illegally sex-based and properly considered
in a hostile environment analysis where it can be shown that but for the
employee’s sex, he would not have been the object of harassment.”); Williams
v. General Motors Corp., (6th Cir. 1999), 187 F.3d 553 at 565 (“Contrary to the
dissent’s vehement assertion, the law recognizes that non-sexual conduct
may be illegally sex-based where it evinces ‘anti-female animus, and therefore
could be found to have contributed significantly to the hostile environment.’”).
6. 	Furthermore, the employer is liable even if the offending employee
was abusive to both men and women when the offending employee’s

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treatment of women is worse than his treatment of men. 	Kopp v. Samaritan
Health System, Inc., 13 F.3d 264, (8th Cir. 1993).
7. 	Based on the foregoing discussion, the primary issue is whether
Winning’s profane ranting and raving was directed at Complainant and other
women because of their gender, or, as Respondent argues, because he
perceived they (males and females alike) were not performing their jobs in a
satisfactory manner.3 This is a close question and is complicated by
evidence that there were occasions where Winning yelled at male coworkers,
vendors, and even Complainant’s supervisor.
8. 	However, when Complainant’s testimony and the testimony from
other females who observed Winning’s behavior (and/or were subjected to
Winning’s tantrums) is added into the equation, the balance tips in favor
of the conclusion that Wining treated the women worse than he treated the
men. This evidence supports the inference that Winning’s abuse of women
was more severe because they were women.
3 Respondent’s post-hearing brief was devoted almost exclusively to this issue.
Therefore, I will discuss it first.

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9. 	My conclusion is based on:
• 	Complainant’s testimony regarding Winning’s behavior toward
her;
• 	the testimony of Beverly Johnson, a former employee, about
his behavior toward her;
• 	the testimony of Marilyn Anderson, a former Manager of
Accounting/Human Resources (still employed in another
capacity by Respondent), about Winning’s behavior and the
general office atmosphere, including Winning’s treatment of
females more harshly than males (Tr. 170); and
• 	Rosetta Friedman’s testimony.
10. 	Rosetta Friedman’s testimony was particularly compelling. 	She
worked directly for Winning for five and a half months in 1995-96. 	She
testified about how Winning treated her. Ultimately, she resigned because of
the stress and Respondent’s refusal to do anything about Winning’s conduct.
He berated her almost daily. 	He saw her as a “lowly woman” and nothing she
could do satisfied 	him. 	(Tr. 	284-285) 	He 	also 	yelled 	at 	Deborah
Collingsworth.4 (Tr. 118, 287)
4 Collingsworth testified Winning never yelled at her. 	I found Friedman’s and
Complainant’s testimony on this point to be more credible. 	Collingsworth was still
employed by Respondent and, thus, had an interest in minimizing Winning’s proclivity to
berate females.

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11. 	Friedman also compared Winning’s treatment of females with his
treatment of males. 	She testified he was friendly with them and never yelled
at them. 	(Tr. 289-290) 	I found her testimony credible.
12. 	Friedman’s testimony about her working relationship with her
previous supervisor was also revealing. 	It rebutted Respondent’s evidence
that Winning only subjected persons to his tirades if they were not performing
satisfactorily. 	She testified that when she worked for a different buyer doing
the same work, her work was never criticized.5 (Tr. 286-287) 	Her testimony
was not disputed.
13. 	The Commission having proven that the harassment was based
on sex, must also prove: (1) that the harassment was unwelcome; (2) that the
harassing conduct was sufficiently severe or pervasive to affect the terms,
conditions or privileges of employment; and (3) that the employer through its
5 Respondent objected to this testimony because it concerned events that occurred
before Complainant was employed by Respondent. 	Respondent’s objection was
overruled. 	See Scandinavian Health Spa v. Ohio Civ. Rights Comm., 64 Ohio App. 3d
480, 492 (Cuyahoga Cty. 1992) (“events taking place more than six months prior to the
filing of a charge may be admitted to shed light on the true nature of matters occurring
within the six-month period”).

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agents 	or 	supervisory 	personnel 	knew 	or 	should 	have 	known 	of 	the
harassment and failed to take immediate and appropriate corrective action.
Hampel, supra at 176-177.
14. 	There is no question that the conduct was unwelcome. 	Nor
can there be any question that Respondent’s supervisory personnel knew that
Complainant was being harassed. 	Some of them witnessed the incidents.
Complainant reported each of the major incidents to her supervisor.
15. 	Respondent never took any corrective action, other than the
reprimand, 	which 	did 	not 	change 	the 	situation. 	Although 	Winning’s
supervisor told Complainant he would fire Winning if she was not comfortable
working with him, this was not appropriate corrective action. 	It is not
appropriate for Respondent to put the burden on the employee to decide the
appropriate discipline for the harasser. 	Likewise, the employer does not
have to select the remedy that the employee demands. 	Saxton v. AT&T
Company, 10 F.3d 526 (7th Cir. 1993). 	However, an employer has to take
“steps reasonably likely to stop the harassment.” 	Id. at 536 (citations

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omitted). 	In this case, Respondent rejected Complainant’s proposed solution
and did nothing to change Winning’s pattern of abusive behavior.
16. 	This leaves the last element of proof, the requirement that the
harassing conduct be sufficiently severe or pervasive to affect the terms,
conditions or privileges of employment. 	This element has an objective and a
subjective component. 	The victim must perceive the work environment to be
hostile or abusive, and the work environment must be one that a reasonable
person would find hostile or abusive. 	Harris v. Forklift Systems, Inc., 510
U.S. 17, 21-22 (1993).
17. 	In examining the work environment from both subjective and
objective viewpoints, the factfinder must examine “all the circumstances”
including the employee’s psychological harm and other relevant factors such
as:
. . . the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with
an employee's work performance.
Id., at 23.

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18. 	When 	all 	of 	the 	facts 	and 	surrounding 	circumstances 	are
considered, the Commission met its burden of proof on this element. 	The
evidence showed that Complainant was subjected to different levels of
hostility from Winning almost daily. 	Thus, the harassment was frequent. His
behavior permeated the work place and affected other employees as well as
Complainant. 	His behavior was humiliating. 	Winning’s conduct definitely
made it more difficult for Complainant to do her job. 	In fact, she missed work
for weeks because of his conduct.
CONSTRUCTIVE DISCHARGE
19. 	Normally, employees who are subjected to unlawful discrimination
must remain on the job while they seek legal redress. 	Brooms v. Regal
Tube Co., 50 FEP Cases 1499 (7th Cir. 1989). 	However, an employee may
be compelled to resign when confronted with an “aggravated situation beyond
ordinary discrimination.” 	Id., at 1506 (citation omitted); See also Yates v.
AVCO 	Corp., 	43 	FEP 	Cases 	1595, 	1600 	(6th Cir. 	1987) 	(“proof 	of
discrimination alone 	is 	not 	a 	sufficient 	predicate 	for 	a 	finding 	of
constructive discharge; there must be other aggravating factors”) (citation

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omitted).
20. 	This is known as a constructive discharge. 	When there is an
allegation 	of 	constructive 	discharge, 	the 	factfinder 	must 	examine 	“the
objective feelings of [the] employee and the intent of the employer.” 	Wheeler
v. Southland Corp., 50 FEP Cases 86, 88 (6th Cir. 1989), quoting Yates, supra
at 1600. To meet the objective standard, the Commission must show that the
“working conditions . . . [were] so difficult or unpleasant that a reasonable
person in the employee's shoes would have felt compelled to resign.” Yates,
supra at 1600, quoting Held v. Gulf Oil Co., 29 FEP Cases 837, 841 (6th Cir.
1982). 	To meet the intent requirement, the Commission must show that a
“reasonable employer would have foreseen that a reasonable employee (or
this employee, if facts peculiar to her are known) would feel constructively
discharged.” 	Wheeler, supra at 89. 	In other words, an employer “must
necessarily be held to intend the reasonably foreseeable consequences of its
actions.” 	Hukkanen v. International Union of Operating Engineers, 62 FEP
Cases 1125 (8th Cir. 1993).
21. 	Based on the foregoing discussion, the evidence was over-
whelming that Complainant considered herself to be in an untenable position.

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Winning’s behavior had caused her to be absent from work on numerous
occasions. 	The last occasion caused her to become physically ill and miss
work for two weeks. 	Respondent gave no indication that the situation would
change.
22. 	Respondent argues that Complainant was merely using the
situation to attempt to get herself a change in title and a raise in pay.
However, Complainant’s letter of resignation, as well as her testimony, which I
found credible, makes it clear that it was the hostile working environment
that led her resignation, not the reassignment of receptionist’s duties or
Respondent’s refusal to make her a salaried employee. 	It was the cumulative
effect of all of the prior incidents and other negative interaction with Winning
that led her to the decision to resign. 	Thus, Complainant felt compelled to
resign. 	See Mauzy v. Kelly Services, Inc., 75 Ohio St.3d 578 (1996) (courts
look to cumulative effect of employer’s actions to determine if reasonable
person would feel compelled to resign).
23. 	The Commission must also submit evidence that meets the
objective standard. 	In this case there was evidence that if Complainant

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returned to work, she would be subjected to the same environment she left.
Winning would still be out of control, and Complainant would never know
when she would be subjected to the next outburst. 	The anxiety that she was
suffering would only get worse. 	Winning’s behavior caused Complainant to
suffer a tangible, psychological injury, which is more than the law requires for
a constructive discharge.6 Under similar circumstances, a reasonable person
would feel compelled to resign.
24. 	Respondent’s rejection of Complainant’s proposal without any
alternative suggestion is evidence that Respondent knew or should have
known that this would lead someone in Complainant’s position to resign.
RELIEF
25. 	When 	the 	Commission 	makes 	a 	finding 	of 	unlawful 	discrim-
ination, the victims of such behavior are entitled to relief. R.C. 4112.05(G)(1).
Title VII standards apply in determining the appropriate relief under the
statute. Ohio Civ. Rights Comm. v. David Richard Ingram, D.C., Inc. (1994),
69 Ohio St.3d 89.

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26. Like Title VII, one of the purposes of R.C. Chapter 4112 is to make
“persons whole for injuries suffered through past discrimination.” Albemarle
Paper Co. v. Moody, 422 U.S. 405, 421, 10 FEP Cases 1181, 1187 (1975).
The attainment of this objective requires that:
. . . persons aggrieved by the consequences and effects of the
unlawful employment practice be, so far as possible, restored to a
position where they would have been were it not for the unlawful
discrimination.
Franks v. Bowman Transportation Co., 424 U.S. 747, 763, 12 FEP
Cases 549, 555 (1976) (footnotes omitted).
27. 	In providing a “make whole” remedy, victims are “presumptively
entitled to reinstatement.” 	Ford v. Nicks, 48 FEP Cases 1657, 1664 (6th Cir.
1989). There is also a strong presumption in favor of awarding back pay:
[G]iven a finding of unlawful discrimination, backpay should be
only for reasons, which applied generally, would not frustrate the
central statutory purposes of eradicating discrimination throughout
the economy and making persons whole for injuries suffered for
past discrimination.
Albemarle Paper Co., supra at 421, 10 FEP Cases at 1189.
6 Complainant’s physician diagnosed her as suffering from depression. (Comm.Ex.
10)

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This presumption “can seldom be overcome.” 	Los Angeles Dept. of Water
and Power v. Manhart, 435 U.S. 702, 719, 17 FEP Cases 395, 403 (1978).
There must be “exceptional circumstances” to deny an award of back pay.
Rasimas v. Michigan Dept. of Mental Health, 32 FEP Cases 688, 696 (6th Cir.
1983).
28. The difficulty in calculating back pay does not constitute an
exceptional circumstance. 	The Commission should award back pay “even
where the precise amount of the award cannot be determined.” 	Id., at 698.
The calculation of back pay does not require “unrealistic exactitude”; a
reasonable calculation will suffice. 	Salinas v. Roadway Express, Inc., 35 FEP
Cases 533, 536 (5th Cir. 1984). 	The 	Commission 	should 	resolve 	any
ambiguity in the amount of back pay against Respondent. 	Rasimas, supra
at 698; Ingram, supra at 94.
29. To be eligible for back pay, victims must attempt to mitigate
their damages by seeking substantially equivalent employment. 	Rasimus,
supra 	at 	694. 	A 	substantially 	equivalent 	position 	affords 	the 	victim
“virtually 	identical 	promotional 	opportunities, 	compensation, 	job

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responsibilities, working conditions, and status.” 	Id., at 695. 	Victims forfeit
their right to back pay if they refuse to accept a substantially equivalent
position or fail to make reasonable and good faith efforts to maintain such a
job once accepted. 	Ford Motor Co. v. EEOC, 458 U.S. 219, 29 FEP Cases
121 (1982); Brady v. Thurston Motor Lines, 36 FEP Cases 1805 (4th Cir.
1985).
30. 	The discriminating employer has the burden of proving that the
victim failed to mitigate damages. 	To meet this burden, the discriminating
employer must establish that: (1) there were substantially equivalent positions
available, and (2) the victim failed to use reasonable diligence in seeking such
positions. 	Rasimus, supra at 695.
31. 	The victim’s duty to use reasonable diligence is not burdensome.
Victims are not required to be successful or go to “heroic lengths” to mitigate
damages, only reasonable steps are required. 	Nicks, supra at 1664. 	The
reasonableness 	of 	the 	victim’s 	effort 	to 	find 	substantially 	equivalent
employment 	should 	be 	evaluated 	in 	light 	of 	the 	victim’s 	individual
characteristics, such as educational background and work experience, and

26
the job market. 	Rasimus, supra at 695.
32. 	Besides proving lack of mitigation, the discriminating employer also
has the burden of proving that the victim had interim earnings. The victim’s
interim earnings are deducted from the back pay award. R.C. 4112.05(G)(1).
33. 	The record in this case only showed that Complainant attempted to
find work. 	Respondent did not cross-examine Complainant on her attempts.
Respondent did not offer any evidence regarding the job market for persons
with Complainant’s experience. 	Nor did Respondent offer any evidence
regarding Complainant’s interim earnings, if any.
34. 	Therefore, based on the record before me, I will recommend that
Complainant be awarded back pay. 	Back pay will be computed based upon
what 	Complainant 	would 	have 	earned 	if 	she 	continued 	to 	work 	for
Respondent, including any raises Complainant would have received, up until
the issuance of the Commission’s Final Order. 	Since a deduction of interim
earnings is required by statute, I will also recommend that Complainant

27
provide an affidavit regarding her interim earnings, if any, so they can be
deducted from the back pay award.
35. 	In addition to back pay, Complainant is also “presumptively entitled
to reinstatement.” 	Ford, 48 FEP Cases at 1666. However, reinstatement is
inappropriate here because Winning is still working for Respondent. 	See
Shore v. Federal Express Corp., 39 FEP Cases 809, 812 (6th Cir. 1985)
(reinstatement was inappropriate because of the employer's hostility toward
employee). Since reinstatement is inappropriate and an award of back pay
does not fully redress Complainant’s economic loss, the Hearing Examiner
recommends that Respondent pay Complainant front pay.
36. 	Front pay is compensation for the “post-judgment effects of past
discrimination.” 	Shore, 39 FEP Cases at 811. 	Front pay is designed to
make victims of discrimination whole for a reasonable future period required
for them to re-establish their rightful place in the job market. 	See Reeder-
Baker v. Lincoln Natl. Corp., 42 FEP Cases 1567 (N.D. Ind. 1986) (court
ordered front pay for two years, taking into account money plaintiff would earn
at her new but lower-paying job). 	An award of front pay should be limited to

28
the amount required to place Complainant in the position she would have
occupied absent unlawful discrimination. 	Shore, 39 FEP Cases at 812.
37. 	The Hearing Examiner will recommend two years of front pay. 	Of
course, if Complainant has found substantially equivalent employment, she is
not entitled to front pay. 	If Complainant has found employment that pays less
than what she was earning while she was employed by Respondent, she is
entitled to the difference for two years from the date of the Commission’s Final
Order.

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RECOMMENDATIONS
For all the foregoing reasons, it is recommended in Complaint #8929
that:
1. 	The Commission order Respondent to cease and desist from all
discriminatory practices in violation of Chapter 4112 of the Revised Code; and
2. 	Within ten days of receipt of the Commission’s Final Order,
Respondent shall submit to the Commission a certified check payable to
Complainant for the amount Complainant would have earned had she been
employed as an Accounts Receivable Coordinator on November 19, 1999 and
been so employed up until two years from the date of the Commission’s Final
Order, 	including 	any 	raises 	Complainant 	would 	have 	received, 	less
Complainant's interim earnings as set out in her affidavit, plus interest at the
maximum rate allowed by law.
FRANKLIN A. MARTENS
CHIEF HEARING EXAMINER
January 31, 2002