Crystal Rigsby v. Voiers Enterprises d/b/a Rest Haven Nursing Home

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
CRYSTAL RIGSBY
Complainant 	Complaint #8991
(COL) 71092499 (27412) 031500
and 	22A – A0 – 3403
VOIERS ENTERPRISES, INC. D/B/A
REST HAVEN NURSING HOME
Respondent
HEARING EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATIONS
BETTY D. MONTGOMERY
ATTORNEY GENERAL
Patrick M. Dull, Esq. 	Geoffrey E. Webster, Esq.
Assistant Attorney General 	17 South High Street, Suite 600
Civil Rights Section 	Columbus, OH 	43215
State Office Tower, 15th Floor 	(614) 461-1156
30 East Broad Street
Columbus, OH 	43215-3428 	Counsel for Respondent
(614) 466-7900
Counsel for the Commission
J. Rick Brown, Esq. 	Crystal Rigsby
625 Seventh Street 	646 – A Carpenter Road
Portsmouth, OH 	45662 	McDermott, OH 	45652
(740) 355-9000
Complainant
Counsel for Complainant
HEARING EXAMINER'S REPORT BY:
Franklin A. Martens, Esq.
Chief Hearing Examiner
Ohio Civil Rights Commission
1111 East Broad Street, Suite 301
Columbus, OH 	43205-1379
(614) 466-6684

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INTRODUCTION AND PROCEDURAL HISTORY
Crystal Rigsby (Complainant) filed a sworn charge affidavit with the Ohio
Civil Rights Commission (Commission) on March 15, 2000.
The Commission investigated and found probable cause that Voiers
Enterprises, Inc. d/b/a Rest Haven Nursing Home (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 February 22, 2001. The Complaint alleged that Respondent discharged
Complainant because of her sex (pregnancy).
Respondent filed a timely Answer to the complaint, admitting certain
procedural 	allegations, 	but 	denying 	that 	it 	engaged 	in 	any 	unlawful
discriminatory practices. 	Respondent denied that the Commission engaged
in any conciliation. 	Respondent also pled affirmative defenses.

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A public hearing was held on September 25, 2001 at the Scioto County
Human Services building in Portsmouth, Ohio.
The record consists of the previously described pleadings; the transcript
consisting of 113 pages of testimony; exhibits admitted into evidence at the
hearing; and the post-hearing briefs filed by the Commission on November 14,
2001 and by Respondent on December 6, 2001.
JURISDICTIONAL ISSUE
In its Answer Respondent denied that the Commission attempted
conciliation as required by R.C. 4112.05(B). 	R.C. 4112.05(B)(4) provides
that after a determination that it is probable that Respondent engaged in an
unlawful discriminatory practice, the Commission shall try to eliminate the
practice by informal methods of conference, conciliation, and persuasion.
The 	parties 	presented 	evidence 	at 	the 	hearing 	regarding 	the
conciliation 	issue. 	The 	evidence 	showed 	that 	the 	Commission sent 	a
letter to Respondent’s attorney inviting Respondent to conciliate and set

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up 	a 	meeting 	with 	a 	conciliator 	at 	the 	Columbus 	Regional 	Office.
(Comm.Ex. 1) 	Respondent’s representative and its attorney attended the
meeting and made a settlement offer. 	Respondent’s attorney also objected
to the conciliation procedure. 	He expected Complainant to attend the
conciliation meeting. 	(Comm.Ex. 2)
The meeting was concluded without any resolution. The settlement
offer was communicated to Complainant’s attorney on January 25, 2001.
(Comm.Ex. 3) 	On January 29, 2001, the Commission received a letter from
Respondent’s attorney withdrawing the offer. 	(Comm.Ex. 2)
Based on the foregoing Findings of Fact and Conclusions of Law, the
Commission attempted conciliation and it was unsuccessful. 	The belief of
Respondent’s counsel that Complainant should be present at the conciliation
meeting is not a legal requirement since the Commission is mandated to
attempt conciliation. 	There is no statutory mandate that Complainant
attempt conciliation or attend the conciliation meeting.

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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
March 15, 2000.

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2. 	The Commission determined on January 4, 2001 that it was
probable that Respondent engaged in unlawful discrimination in violation of
R.C. 4112.02(A).
3. 	Respondent is a corporation doing business in Ohio and an
employer. 	Respondent operates a 23-bed, skilled and intermediate care
nursing home in McDermott, Ohio. 	Deborah Voiers Akers (Akers) is the
nursing home’s assistant administrator.
4. 	Complainant began working for Respondent on March 23, 1999.
She was employed as an activity aide two days per week and as a
housekeeper two days per week. 	As an activity aide, Complainant was
responsible for planning, coordinating, and directing the residents’ activity
program under the supervision of the activity director. 	(Comm.Ex. 5) 	As a
housekeeper, she was responsible for performing basic cleaning duties, such
as sweeping, dusting, and mopping. 	(Tr. 23-24) 	Up until her last day of

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employment, 	September 	15, 	1999, 	neither 	of 	these 	positions 	required
Complainant to do any heavy lifting.1
5. 	On September 14, 1999, Complainant went to the doctor who
confirmed that she was pregnant. 	She returned to work on September 15
with 	a 	doctor’s 	note. 	At 	this 	time 	she 	told 	Akers 	that 	she 	was
pregnant. Akers told her that she could not continue working until she brought
in a doctor’s note releasing her to work without any restrictions. 	She was
told she had 30 days to bring in the note. 	(Tr. 31, Resp.Ex. A)
1 The activity aide job description stated that an activity aide “must have no weight
lifting limitations.” 	However, I relied on Complainant’s testimony that performance of the
duties of an activity aide did not require her to engage in any heavy lifting. 	The activity
aide job description was revised in November 2000. 	The lifting requirement was omitted,
but the other job duties remained the same. 	Thus, Respondent’s testimony that the aide
would have to do lifting was not credible. Respondent was merely speculating there might
be some occasions when an aide might be on a field trip, and they would have to assist a
resident to the extent that some lifting would be involved. 	In fact, heavy lifting was never
done by one person. 	In any event, it is clear that the essential job duties of the activity
aide position could be performed without heavy lifting.
Likewise, the housekeeper position could be performed without heavy lifting. If
any heavy lifting was necessary, Complainant was able to secure the assistance of the
maintenance person to do the lifting for her.

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6. 	On September 20, 1999, Complainant went to the CAO Health Clinic
where 	she 	was 	examined 	by 	Laura 	Taylor, 	a 	nurse 	practitioner 	who
specializes in OB/GYN. 	Linda Nichols, another nurse who works at the clinic,
wrote Complainant another return-to-work note which stated that Complainant
was pregnant, due to deliver on May 11, 2000, and was restricted from lifting
over 25 pounds. 	Nichols signed the doctor’s note and put a slash with her
initials after the doctor’s name, indicating that it was not his signature.
(Comm.Ex. 9, Tr. 13-14)
7. 	Subsequently on September 23, 1999, Complainant met with Akers
and Julie Emmons, a secretary. 	Emmons took notes during the meeting.
(Comm.Ex. 17) 	Akers told Complainant that she could not continue working
because she had a 25-pound lifting restriction. 	Akers also told Complainant
that she was concerned that Complainant would injure herself or the baby if
she tried to catch a falling resident. 	Complainant was told there was no job
available for her with a 25-pound lifting restriction, and that Respondent was
not willing to take the risk or let Complainant take the risk that she might get
hurt while she was pregnant.2
2 Respondent’s policy manual also provides that employees are not entitled to any
leaves of absence. 	(Comm.Ex. 11)

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8. 	After her employment was terminated, Complainant applied for
unemployment benefits. 	Respondent did not oppose her application. 	She
was awarded unemployment benefits. 	She continued to look for work by
applying for positions in nursing homes in the area. 	(Tr. 27) 	When she was
unable to obtain employment at nursing homes, she began applying for clerk
positions at discount departments stores and carry outs. 	(Tr. 37)
9. 	Complainant’s baby was born on May 10, 2000. 	She was rehired
by Respondent as an activity aide on August 10, 2000. 	She worked two days
a week. 	She quit on December 26, 2000.
10. 	Complainant was hired by her father on July 9, 2001 to work in his
store. 	She works 30 hours per week and earns $6.00 an hour. 	When she
worked for Respondent two days per week, she earned $5.75 an hour.

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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
issued presented. 	To the extent that the testimony of various witnesses is
not in accord with the findings herein, it is not credited.3
1. 	The 	Commission 	alleged 	in 	its 	Complaint 	that 	Respondent
discharged Complainant because of her sex (pregnancy).
2. 	This allegation, if proven, would constitute a violation of R.C.
4112.02, which provides, in pertinent part, that:
3 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 term “because of sex” for the purposes of R.C. 4112.02(A)
includes, but it is not limited to, discrimination based upon pregnancy,
pregnancy-related illnesses, childbirth, or related medical conditions. 	R.C.
4112.01(B). 	This division further provides that:
Women affected by pregnancy, childbirth, or related medical
conditions shall be treated the same for all employment-related
purposes, 	including 	receipt 	of 	benefits 	under 	fringe 	benefit
programs, as other persons not so affected but similar in their
ability or inability to work . . . .
4. 	The Commission has adopted regulations on written and unwritten
employment 	policies 	relating 	to 	pregnancy 	and 	childbirth. 	Ohio
Administrative Code (Adm.Code) 4112-5-05(G). 	One of the central purposes
of these regulations is to ensure that female employees are not “penalized in
their employment because they require time from work on account of
childbearing.” 	Ohio 	Adm.Code 	4112-5-05(G)(5). 	Such 	protection 	is

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necessary because only females bear the unique burden of childbearing,
which inevitably involves some period of disability.
5. 	The 	Commission’s 	pregnancy 	regulations 	in 	Ohio 	Adm. Code
4112-5-05(G) provide, in pertinent part, that:
(1) 	A written or unwritten employment policy or practice which
excludes from employment applicants or employees because
of their pregnancy is a prima facie violation of the prohibitions
against sex discrimination contained in Chapter 4112 of the
Revised Code;
(2) 	Where termination of employment of an employee who is
temporarily disabled due to pregnancy or a related medical
condition is caused by an employment policy under which
insufficient 	or 	no 	maternity 	leave 	is 	available, 	such
termination shall constitute unlawful sex discrimination;
(3) 	Written 	and 	unwritten 	employment 	policies 	involving
commencement and duration of maternity leave shall be so
construed as to provide for individual capacities and the
medical status of the woman involved; and
(6) 	. . . if the employer has no leave policy, childbearing must
be considered by the employer to be a justification for leave
of absence for a female employee for a reasonable period
of time. Following childbirth, and upon signifying her intent
to return to work within a reasonable time, such female
employee shall be reinstated to her original position or to a
position of like status and pay, without loss of service
credits.

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6. 	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).
7. 	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. 	Federal case law is especially relevant in this case because R.C.
4112.01(B) reads “almost verbatim to the Pregnancy Discrimination Act” of
1978 (PDA). 	Priest v. TFH-EB, Inc. dba Electra Bore, Inc., 1998 Ohio App.
LEXIS 1384; See 42 U.S.C. § 2000e(k). 	Thus, 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),
as amended by the PDA.
8. 	The Commission can sustain its burden of proof by direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial
evidence. 	In this case, the Commission proved its case by both direct and
circumstantial evidence. 	There was direct evidence that Respondent had a

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“no work restrictions” policy. 	Such a policy arbitrarily prevents pregnant
females from working, even if they are capable and willing to work. 	Before a
pregnant female is required to take maternity leave, she must be evaluated
individually based on her actual ability to perform her job in light of her
medical status, including any work restrictions.4 See Ohio Adm.Code 4112-5-
05(G)(3), supra.
9. 	Respondent’s concern that Complainant would place herself or her
unborn child at risk is also not a legally valid concern. 	A pregnant employee
has the right to assume known risks to herself that may exist in the work
place. U.A.W. v. Johnson Controls, Inc., 	499 U.S. 187, 55 FEP Cases 365
(1991). This right is exclusively hers, as long as she is capable of performing
her job duties. 	In this case, Complainant was capable of performing the job
duties of housekeeper and activity aide. 	Heavy lifting was not part of her
routine job duties.
4 Respondent offered evidence that they have allowed pregnant employees to
continue working as long as they were able to do so and provided them with employment
when they indicated they desired to return to work. 	(Resp.Ex. F, H, I) 	However, no
evidence was offered regarding their job duties. In any event, this evidence does not rebut
the Commission’s evidence regarding how Respondent treated Complainant.

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10. 	Respondent argues that Complainant was not discharged, but that
she quit. 	There is substantial evidence to the contrary. 	The secretary’s
notes from the September 23 meeting do not indicate that Complainant quit.
Likewise, Complainant testified she did not quit. 	(Tr. 35) 	I find her
testimony credible. 	Furthermore, Akers stated that Complainant was
discharged when she replied to the Ohio Bureau of Employment Services’
(OBES) request for separation information. 	(Comm.Ex. 14)
11. 	Respondent also claimed that Complainant would have been
allowed to work had she returned with a doctor’s note that was actually signed
by the doctor instead of the doctor’s nurse. 	Respondent’s testimony on this
point is refuted by the secretary’s notes. 	The notes clearly show that
Respondent had a “no restrictions” policy. 	If Respondent was going to hold
Complainant’s job for her, Complainant would have had to secure a doctor’s
note that had no restrictions. 	This could not be done because Complainant’s
doctor routinely places a 25-pound lifting restriction on all pregnant patients.
Respondent’s reliance on the doctor’s note was an after-the-fact justification,
which Akers documented for the first time on October 21, 1999 while
completing the OBES form.

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12. 	Since the Commission proved that Respondent discriminated
against Complainant because she was pregnant, Complainant is entitled to
relief.
RELIEF
13. When the Commission makes a finding of unlawful discrimination,
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.
14. 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).
15. 	In providing a “make whole” remedy, victims are “presumptively

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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
denied only for reasons which, if applied generally, would not
frustrate the central statutory purposes 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.
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).
16. 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. 	In other words, the calculation of back pay does not require “unrealistic
exactitude”, only a reasonable calculation is required. 	Salinas v. Roadway
Express, Inc., 	35 	FEP 	Cases 	533, 	536 	(5th Cir. 	1984). 	The
Commission

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should resolve any ambiguity in the amount of back pay against the retaliating
employer. 	Rasimas, supra at 698; Ingram, supra at 94.
17. 	To be eligible for back pay, victims must attempt to mitigate their
damages by seeking substantially equivalent employment. 	A substantially
equivalent 	position 	affords 	the 	victim 	“virtually 	identical 	promotional
opportunities, compensation, job responsibilities, working conditions, and
status.” 	Rasimas, supra 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).
18. 	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.

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19. 	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. 	Ford, supra at 	1664. 	The
reasonableness 	of 	the 	victim’s 	efforts 	to 	find 	substantially 	equivalent
employment 	should 	be 	evaluated 	in 	light 	of 	the 	victim’s 	individual
characteristics (such as educational background and work experience) and
the job market. 	Rasimus, supra at 695.
20. 	Besides proving lack of mitigation, the retaliating 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).
21. 	In this case, the Commission presented evidence of Complainant’s
efforts to mitigate her damages. 	Complainant testified that she looked for
work at several nursing homes and that she did not receive an offer. 	She
testified that the nursing homes needed certified nurses’ aides, and she was
not certified. 	(Tr. 38) 	Complainant applied for jobs at carry-outs and clerk

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jobs at places such as Wal-Mart and K Mart. 	(Tr. 37) 	Complainant’s
testimony regarding her job search was credible and was not disputed by
Respondent.
22. 	Respondent did not offer any credible evidence that substantially
equivalent positions to Complainant’s position as an activity aide/housekeeper
were available in the geographical area. 	Respondent’s representative
testified generally that there were advertisements in the Sunday newspaper
for positions at nursing homes, but was not specific as to whether these
positions 	were 	for 	someone 	with 	Complainant’s 	qualifications. 	As
Complainant testified, these may have been positions for registered nurses,
licensed practical nurses, or other positions that required certification which
Complainant did not possess. Absent more specific evidence, such as
newspaper advertisements, Respondent cannot meet its burden of proving
that Complainant failed to mitigate her damages. 	Therefore, Complainant is
entitled to back pay.
23. 	Complainant was unemployed from September 16, 1999 until she
delivered her baby on May 10, 2000. 	Since Complainant could have worked

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up until her delivery date, she is entitled to approximately eight months of
back pay at $6.75 per hour for 35 hours per week. 	Although Complainant
received unemployment compensation, unemployment compensation is not
deductible from a back pay award. 	Ingram, supra.
24. 	After 	Complainant’s 	baby 	was 	born, 	Complainant 	remained
unemployed until she was rehired by Respondent on August 10, 2000. 	Given
the normal six-week recuperative period, Complainant would be eligible for
additional back pay from June 21, 2000 to August 10, 2000, approximately
seven weeks.
25. 	When Complainant returned to work on August 10, 2000, she
worked two days per week, (half of what she previously worked), at $1.00 less
per hour than what she was previously paid. 	She worked for Respondent
until December 26, 2000, when she quit. 	This was approximately 18 weeks.
Therefore, Complainant would be eligible for back pay for 17.5 hours per
week at $6.75 per hour. 	She would also be eligible for an additional $1.00 an
hour for the two days a week she worked where she only made $5.75 an
hour.

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26. 	After Complainant quit, she remained unemployed until July 9,
2001, when her father bought a store and she began working 30 hours per
week earning $6.00 an hour. 	This is equivalent to what she was earning
when she worked for Respondent.
27. 	The Commission argues that Complainant is entitled to back pay
from December 26, 2000 to July 9, 2001. 	I disagree. 	Complainant had a
duty to 	make 	a 	reasonable 	and 	good 	faith 	effort 	to 	maintain 	her 	job
with Respondent after she was rehired. 	Ford Motor Company, supra.
Complainant was not forced to quit.5 Therefore, Complainant is not entitled to
back pay from December 26, 2000 to July 9, 2001.
5 Complainant was put on 30 days’ probation for excessive absenteeism. There is
no evidence Respondent intended to terminate her employment in the near future.

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RECOMMENDATIONS
For all the foregoing reasons, it is recommended in Complaint #8991
that:
1. 	The Commission order Respondent to cease and desist from all
discriminatory practices in violation of Chapter 4112 of the Revised Code;
2. The Commission order Respondent to make an offer of employment
to Complainant within ten days of the Commission's Final Order for a 32-hour
per week position as an activity aide/housekeeper (or an equivalent position).
If Complainant accepts Respondent's offer of employment, Complainant shall
be paid at the same wage she would have been paid had she been employed
as an activity aide/housekeeper on September 16, 1999 and continued to be
so employed up to the date of Respondent's offer of employment; and
3. 	Whether Complainant accepts Respondent’s offer of employment,
Respondent shall submit to the Commission within ten days of receipt of the
Commission's Final Order a certified check payable to Complainant for the

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amount 	Complainant 	would 	have 	earned 	had 	she 	been 	employed 	by
Respondent as an activity aide/housekeeper from September 16, 1999 and
continued to be employed up to December 26, 2000, including any raises
Complainant would have received, less Complainant's interim earnings during
that period, plus interest at the maximum rate allowed by law.
FRANKLIN A. MARTENS
CHIEF HEARING EXAMINER
January 10, 2002