Ohio Civil Rights Commission v. E Publis Inc., Alex R. Linder and Ray Bremer

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
OHIO CIVIL RIGHTS COMMISSION
Complainant
Complaint No. 9741
v. 	(OSI) S7091803 (00517) 091803
E-PUBLIUS, INC., ALEX R. LINDER
AND RAY BREMER
Respondents
ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATIONS
MARC E. DANN
ATTORNEY GENERAL
Duffy Jamieson, Esq. 	Alex R. Linder
Deputy Attorney General 	1706 East Hamilton Street
Civil Right Section 	Kirksville, MO 	63501
State Office Tower, 15th Floor
30 East Broad Street 	Alex R. Linder
Columbus, OH 	43215-3428 	% E-publius, Inc.
614 – 466 – 7900 	P. O. Box 101
Kirksville, MO 	63501
Counsel for the Commission
Respondents
ALJ'S REPORT BY:
Denise M. Johnson
Chief Administrative Law Judge
Ohio Civil Rights Commission
1111 East Broad Street, Suite 301
Columbus, OH 	43205-1379
614 – 466 – 6684

INTRODUCTION AND PROCEDURAL HISTORY
The Ohio Civil Rights Commission (Complainant) self-initiated a
charge 	in 	accordance 	with 	R.C. 	4112.05(B)(2) 	and 	4112.04(B)(2) 	on
September 18, 2003.
The Commission investigated the charge and found probable cause
that Frank Bremer, E–publius, Inc. and Alex R. Linder (Respondents)
engaged in unlawful discriminatory practices in violation of Revised Code
Sections (R.C.) 4112.02(F) and (J). 	E-publius has a registered internet
domain named Vanguard News Network (VNN).
The Commission attempted, but failed to resolve this matter by
informal methods of conciliation. 	The Commission subsequently issued
a Complaint on August 12, 2004.
The Complaint alleged that Respondent Bremer, a person seeking
employment in the state of Ohio, published or caused to be published an
advertisement on E-publius’ website, VNN, that specified his race, color
and sex, and that expressed a preference as to the race, color and sex of
a prospective employer in violation of R.C. 4112.02(F).
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The Complaint also alleged that Respondent E-publius, Inc. and
Respondent Linder aided and abetted Respondent Bremer in the doing of
an act declared unlawful under R.C. 4112.02(J).
Respondent Linder filed an untimely Answer to the Complaint on
February 15, 2005.
A public hearing was held on March 2, 2005 at the Ohio Civil
Rights 	Commission’s 	Central 	Office 	at 	1111 	East 	Broad 	Street 	in
Columbus, Ohio.
The 	record 	consists 	of 	the 	previously 	described 	pleadings, 	a
transcript of the hearing consisting of 6 pages, exhibits admitted into
evidence 	during 	the 	hearing, 	and 	a 	post-hearing 	brief 	filed 	by 	the
Commission 	on 	December 	7, 	2005. 	Respondents 	did 	not 	file 	post-
hearing briefs.
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FINDINGS OF FACT
The 	following 	findings 	of 	fact 	are 	based, 	in 	part, 	upon 	the
Administrative Law Judge’s (ALJ) assessment of the credibility of the
witnesses who testified before her in this matter. 	The ALJ has applied
the 	tests 	of 	worthiness 	of 	belief 	used 	in 	current 	Ohio 	practice. 	For
example, she considered each witness’s appearance and demeanor while
testifying. 	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 discussed, each witness’s
strength 	of 	memory, 	frankness 	or 	lack 	of 	frankness, 	and 	the 	bias,
prejudice, and interest of each witness. 	Finally, the ALJ considered the
extent to which each witness’s testimony was supported or contradicted
by reliable documentary evidence.
1. 	The Commission self-initiated a charge of discrimination on
September 18, 2003.
2. 	The 	Commission 	determined 	on 	October 	9, 	2003 	it 	was
probable 	that 	Respondent 	E-publius, 	Inc., 	Respondent 	Linder, 	and
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Respondent 	Bremer 	engaged 	in 	discriminatory 	conduct 	prohibited 	by
R.C. 4112.02(F) and (J).
3. 	The Commission attempted to resolve this matter by informal
methods of conciliation. 	The Commission issued the Complaint after
conciliation failed.
4. 	Respondent Linder is the editor-in-chief of the VNN website.
(Tr. 2)
5. 	He 	directs 	all 	website 	activities, 	including 	receipt 	and
placement of classified advertisements. 	(Tr. 2, Ex. 11)
6. 	On 	April 	9, 	2003, 	Respondent 	Bremer 	placed 	a 	classified
advertisement on the VNN website, which read as follows:
Sales/Management/HR Position Sought
Racially Conscious, Master-Degreed White male with Human
Resource 	Director 	experience 	seeks 	position 	where 	he 	can
think 	non-P.C. 	thoughts. 	Also 	hold 	ordination 	papers.
Cleveland, 	Ohio 	area, 	but 	will 	highly 	consider 	relocation.
Contact Frank here. 	(Comm. Exs. 3-4)
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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. 1
1. 	The Commission alleged in the Complaint that Respondent
Bremer placed a classified advertisement for employment specifying his
race and sex with the VNN and that Respondent E-publius, Inc. and
Respondent Linder published the advertisement on the VNN.
1 	Any Finding of Fact may be deemed a Conclusion of Law, and any
Conclusion of Law may be deemed a Finding of Fact.
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2. 	This allegation, if proven, would constitute a violation of R.C.
4112.02, which provides, in pertinent part, that:
It shall be an unlawful discriminatory practice:
(F) 	For any person seeking employment to publish or cause
to be published any advertisement that specifies or in
any manner indicates that person’s race, color, religion,
sex, 	national 	origin, 	disability, 	age 	or 	ancestry, 	or
expresses a limitation or preference as to race, color,
religion, sex, national origin, disability, age or ancestry
of any prospective employer. 	[Emphasis added.]
(J) 	For any person to aid, abet, incite, compel, or coerce the
doing 	of 	any 	act 	declared 	by 	this 	section 	to 	be 	an
unlawful discriminatory practice, to obstruct or prevent
any person from complying with this chapter any order
issued under it, or to attempt directly or indirectly to
commit 	any 	act 	declared 	by 	this 	section 	to 	be 	an
unlawful discriminatory practice. 	[Emphasis added.]
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(F) and (J) by a preponderance of reliable, probative, and
substantial evidence. 	R.C. 4112.05(G) and 4112.06(E).
4. 	R.C. 	4112.02(F) 	prohibits 	persons 	seeking 	employment 	to
publish or cause to be published an advertisement that specifies race
and sex. 	A person engaged in such conduct has committed an overt
act of discrimination.
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5. 	Respondent Bremer’s placement of the ad with Respondent
E-publius’ 	website, 	VNN, 	on 	April 	9, 	2003 	is 	an 	overt 	act 	of
discrimination in violation of Ohio law.
6. 	Respondent Linder, in his capacity as editor of the VNN, has
discretion 	and 	control 	on 	what 	gets 	published 	on 	the 	website.
(Comm. Exs. 7, 9-11).
7. 	There 	is 	no 	requirement 	under 	R.C. 	4112.02(J) 	that 	the
Commission prove that there was an intent to discriminate by the aider
or abettor.
Publisher found liable for aiding and abetting in violation of
city 	antidiscrimination 	ordinance 	by 	placing 	wants 	ads 	for
employment in sex-designated columns.
Pittsburgh 	Press 	Co. 	v. 	Pittsburgh 	Commission 	on 	Human
Relations, 413 U.S. 376. 	(Emphasis added.)
Publisher found liable for aiding and abetting in violation of
state 	antidiscrimination 	statute 	by 	placing 	wants 	ads 	for
employment designating sex preference.
Evening Sentinel v. National Org. for Women, (N.J.) (1975), 357
A. 2d 498. 	(Emphasis added.)
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8. 	By publishing the tag-line “white-male”, Respondents Linder
and E-publius, Inc. were aiding and abetting Respondent Bremer in the
doing of an act prohibited by R.C. 4112.02(F).
RECOMMENDATIONS
For all of the foregoing reasons, it is recommended in Complaint
No. 9741 that:
1. 	The 	Commission 	order 	Respondent 	Bremer, 	Respondent
E-publius, Inc. and Respondent Alex R. Linder to cease and desist from
all discriminatory practices in violation of R.C. Chapter 4112;
2. 	The 	Commission 	order 	Respondent 	E-publius, 	Inc. 	and
Respondent Alex R. Linder to post on the VNN website a statement that it
is a discriminatory employment practice under Ohio law to publish job
advertisements/help wanted advertisements that state a preference for
individuals based on race, sex, national origin, or age; and
3. 	The Commission order Respondent Alex R. Linder to receive
training regarding a person’s rights and responsibilities under Ohio law
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to post and publish advertisements for employment under R.C. 4112,
et 	seq. 	As 	proof 	of 	participation 	in 	such 	training, 	Respondent
Alex R. Linder shall submit certification or an affidavit from the trainer or
provider of services that he has successfully completed training. 	The
letter of certification/affidavit shall be submitted to the Commission’s
Office of Special Investigations within seven (7) months from the date of
the Commission’s Final Order.
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
March 12, 2007
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