Heather Malone v. C.L.J. Inc. d/b/a Restaurante Giovanni�??s

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
HEATHER MALONE
Complaint #8911
Complainant 	(CLE) 24100499 (31759) 120699
22A – A0 – 0294
and
C.L.J., INC. D/B/A RISTORANTE
GIOVANNI’S
Respondent
ADMINISTRATIVE LAW JUDGE’S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATIONS
BETTY D. MONTGOMERY
ATTORNEY GENERAL
Marilyn Tobocman, Esq. 	Lou D’Amico, Esq.
Assistant Attorney General 	Argie, D’Amico & Vitantonio
Civil Rights Section 	6449 Wilson Mills Road
State Office Tower, 11th Floor 	Mayfield Village, OH 	44143
615 West Superior Avenue 	(440) 449-3333
Cleveland, OH 	44113-1899
(216) 787-3030 	Counsel for Respondent
Counsel for the Commission
ALJ’S REPORT BY:
Heather Malone 	Todd W. Evans
4549 Lilac Road 	Administrative Law Judge
South Euclid, OH 44121 	Ohio Civil Rights Commission
Akron Government Building, Suite 205
Complainant 	161 South High Street
Akron, OH 	44308
(330) 643-3100

INTRODUCTION AND PROCEDURAL HISTORY
Heather Malone (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on December 6, 1999.
The Commission investigated the charge and found probable cause
that the C.L.J., Inc. d/b/a Ristaurante Giovanni’s (Respondent) engaged in
unlawful discriminatory and retaliatory practices in violation of Revised
Code (R.C.) 4112.02(A) and (I).
The 	Commission 	attempted, 	but 	failed 	to 	resolve 	this 	matter 	by
informal methods of conciliation. The Commission then issued a Complaint
on November 16, 2000. The Complaint alleged that Complainant was
subjected to unwelcome sexual “comments and touching” because of her
sex. 	The Complaint also alleged that Respondent discharged Complainant
because of her sex and in retaliation for complaining of sexual harassment.
Respondent filed an Answer to the Complaint. 	Respondent admitted
certain procedural allegations, but denied that it engaged in any unlawful
discriminatory or retaliatory practices. 	Respondent also pled affirmative
defenses.
1

A public hearing was held on November 15-16, 2001 at the Lausche
State Office Building in Cleveland, Ohio.
The record consists of the previously described pleadings, a 606-
page transcript of the hearing, exhibits admitted into evidence during the
hearing, post-hearing briefs filed by the Commission on January 14, 2002
and by Respondent on March 4, 2002, and a reply brief filed by the
Commission on March 15, 2002.
FINDINGS OF FACT
The 	following 	findings 	of 	fact 	are 	based, 	in 	part, 	upon 	the
Administrative Law Judge’s assessment of the credibility of the witnesses
who testified before him in this matter. 	The Administrative Law Judge
(ALJ) 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
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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. Complainant filed a sworn charge affidavit with the Commission on
December 6, 1999.
2. The 	Commission 	determined 	on 	September 	21, 	2000 	that 	it
was probable that Respondent engaged in unlawful discriminatory and
retaliatory practices in violation of R.C. 4112.02(A) and (I).
3. 	The 	Commission 	attempted 	to 	resolve 	this 	case 	by 	informal
methods 	of 	conciliation. 	The 	Commission 	issued 	the 	Complaint 	after
conciliation failed.1
4. Complainant is a female.
1 Respondent 	stipulated 	at 	the 	hearing 	that 	the 	Commission 	attempted 	to
conciliate this matter without success. (Tr. 2)
3

5. Respondent is a corporation and an employer doing business in
Ohio. 	Respondent owns Ristorante Giovanni’s in Beachwood and other
restaurants in the Cleveland area. 	Carl Quagliata is the principal operator
of Giovanni’s.2 Quagliata has an office at Giovanni’s and works there six
days a week.
6. Respondent hired Complainant in August 1998 as a line chef.
Complainant worked on the broiler line, made pastries occasionally, and
otherwise 	assisted 	in 	food 	preparation 	for 	lunch. 	Complainant 	was 	a
salaried employee; she earned $19,500 per year. 	Her work hours were
8:00 a.m. to 4:00 p.m.
7. 	Gregg Korney was Giovanni’s Executive Chef when Respondent
hired 	Complainant.3 Korney 	had 	an 	“easy-going” 	attitude 	and 	was
“relaxed” about Complainant reporting to work on time. 	(Tr. 85, 342) 	For
example, Korney did not care if Complainant arrived after 8:00 a.m. as long
as she performed her duties before he arrived around lunchtime.
2 Carl Quagliata and his two brothers are partners in Giovanni’s and the other
restaurants.
3 The Executive Chef is responsible for running the kitchen. The sous-chefs work
directly under the Executive Chef. 	Complainant’s immediate supervisor was the sous-
chef who worked with her on the morning shift.
4

8. In June 1999, Korney and other employees in the kitchen left
Giovanni’s. 	Quagliata transferred a chef from one of his other restaurants
to 	Giovanni’s 	to 	replace 	Korney 	temporarily. 	Quagliata 	hired 	Chris
Feuerborn as Executive Chef in July 1999.
9. 	Feuerborn 	had 	a 	different 	management 	style 	than 	Korney;
Feuerborn was more “hyper” and yelled at the kitchen staff except Anna
Selvaggio, 	a 	long-time 	employee 	of 	the 	restaurant. 	(Tr. 	343, 	463)
Feuerborn frequently yelled at Complainant for her work performance. 	For
example, Feuerborn criticized Complainant for the way she prepared steak;
he also threw out her cheesecakes because she did not use “the proper
pan.” 	(Tr. 397) 	Feuerborn 	had 	several 	discussions 	with 	Complainant
about 	preparing food in a certain manner to meet the high expectations of
Giovanni’s customers.4 (Tr. 370-72) 	Feuerborn also talked to Quagliata
about giving Complainant a raise and vacation in August 1999.
4 Giovanni’s is a prestigious restaurant. It is one of the few “four diamond”
restaurants in Ohio. (Tr. 365)
5

10. 	On August 23, 1999, Feuerborn yelled at Complainant for giving
instructions on how to make spinach to a new sous-chef that he hired.
Feuerborn called Complainant a “fucking bitch.” 	(Tr. 25) 	Feuerborn told
Complainant to leave his “people” alone and asked Complainant if she
wanted his job. 	Id. 	Feuerborn then sent Complainant home an hour early.
11. 	Complainant 	called 	Quagliata 	once 	she 	arrived 	home 	and
informed 	him 	about 	the 	incident. 	Complainant 	told 	Quagliata 	that
Feuerborn 	was 	regularly 	yelling 	at 	her 	and 	becoming 	“unbearable 	to
work for.” 	(Tr. 26) 	Quagliata advised Complainant that she needed to “get
along” with Feuerborn because he was the Executive Chef. 	Id.
12. Feuerborn also engaged in unwelcome physical contact with
Complainant and made verbal sexual advances toward her. 	In August
1999, 	Feuerborn 	leaned 	on 	Complainant 	from 	behind 	while 	she 	was
bending down in the cooler. 	Feuerborn told Complainant, “Hey baby, you
and I should get together.” 	(Tr. 	139) 	Complainant did not respond to the
comment. (Tr. 36)
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13. On two other occasions, Feuerborn rubbed his body (“between
his knees and his chest”) against Complainant while she was talking on a
telephone, and he rubbed “his whole body” against her in a walkway in the
cooking line after she accidentally bumped into him earlier. 	(Tr. 141-43)
Complainant turned away from Feuerborn during the latter incident.
14. In September 1999, Complainant overheard kitchen employees
talking about the restaurant hiring a line chef. 	Complainant assumed that
Respondent was going to replace her. 	After lunchtime, Feuerborn asked
Complainant to go outside. 	It was raining. 	They stood against a wall to
avoid the rain. 	Feuerborn confirmed that there was an advertisement in
the newspaper for Complainant’s job. 	Feuerborn indicated that Quagliata
intended to replace her. 	Feuerborn told Complainant not to worry because
he “liked” her and was not going to let her go. 	(Tr. 28, 148) 	Feuerborn
then grabbed Complainant’s leg and squeezed it. 	Complainant remarked,
“Well, you have a funny way of showing it.” 	Id.
15. 	Feuerbon 	walked 	up 	behind 	Complainant 	shortly 	after 	they
returned from outside. 	He was holding glazed carrots that Complainant
had prepared. 	Feuerborn wrapped one of his arms around Complainant’s
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waist 	from 	behind 	and 	held 	the 	glazed 	carrots 	out 	in 	front 	of 	her.
Feuerborn asked Complainant, “Do you know what we could do with this,
baby?” (Tr. 149) Complainant did not respond to this remark.
16. 	On October 14, 1999, Complainant reported off work sick before
her shift. 	Respondent “docked” Complainant’s pay for her absence that
day. 	(Tr. 	36) 	Complainant 	approached 	Quagliata 	about 	the 	matter.
Quagliata told Complainant that she could not just call off work any time
she wanted. 	Quagliata also mentioned that Complainant “looked fine”
when she worked the following day. 	Id.
17. On Thursday, October 21, 1999, Feuerborn yelled at Complainant
about 	how 	she 	made 	the 	Caesar 	salad 	dressing 	that 	day. 	He 	called
Complainant a “fucking bitch” and accused her of trying to get him in
trouble 	with 	Quagliata. 	(Tr. 	31) 	Complainant 	denied 	the 	accusation.
Complainant then replied, “If you’re that unhappy with me, why don’t you
just fire me?” 	Id. 	Feuerborn indicated that he would never fire her because
he wanted to keep her there to abuse her.
8

18. 	Complainant started “breaking down” and crying within minutes
of the incident. 	(Tr. 32) 	Complainant walked to the ladies’ restroom where
she called her sponsor, Kris Rice.5 Complainant apprised Rice of the
situation. 	Rice advised Complainant to leave immediately. 	Complainant
left Giovanni’s around 3:00 p.m. without notifying anyone at the restaurant.
19. Complainant reported off work sick the following day between
7:00 to 7:30 a.m. She informed Gary Keil, the sous-chef on duty, about the
incident 	the 	previous 	day, the 	hives 	on 	her 	skin, 	and 	her 	intent 	to
visit a physician about the problem. 	Complainant also informed Keil that
she would provide a physician’s statement upon her return.
20. On Sunday, October 24, 1999, Complainant sent a facsimile to
her attorney of a letter that she wrote over the weekend. 	The letter, which
was directed to Quagliata, complained about Feuerborn being “sexually
abusive” toward her, grabbing her and making sexual comments to her,
threatening her, and sending her home. 	(Comm.Ex. 3P) 	The letter further
indicated that it was almost unbearable to work “under these conditions”,
and Feuerborn’s behavior had to stop. 	Id.
5 Complainant is a recovering alcoholic and former cocaine addict.
9

21. 	Complainant 	reported 	for 	work 	on 	the 	following 	Monday,
October 25, 1999. 	Complainant provided Keil a physician’s statement that
morning regarding her absence the previous Friday. 	(Tr. 582, Comm.Ex.
3H) 	Complainant also brought the letter she wrote over the weekend. She
intended to give it to Quagliata in person. 	Quagliata was not there so she
placed the letter in her locker.
22. 	After lunchtime, Feuerborn handed Complainant two “Employee
Warning 	Reports” 	that 	he 	prepared 	the 	previous 	Friday 	after 	talking
to 	general 	manager, 	John 	Robertson.6 The 	first 	report 	indicated 	that
Complainant 	had 	walked 	off 	the 	job 	before 	her 	shift 	ended 	without
informing 	management. 	(Comm.Ex. 	3K) 	Complainant 	wrote 	in 	the
employee statement section that “Chris the Chef went off on me and I
couldn’t stay in the kitchen any longer.” 	Id. 	The second report indicated
that 	Complainant 	“called 	in 	sick 	without 	proper 	notice 	(24 	hours)” 	on
October 22, 1999. 	(Comm.Ex 3L) 	It also indicated that the same incident
occurred 	on 	October 	14, 	1999. 	Complainant 	wrote 	in 	the 	employee
6 Feuerborn told Robertson, who apparently acted like a district manager for the
restaurants 	owned 	by 	Respondent, 	that 	he 	wanted 	to 	discharge 	Complainant.
Robertson advised Feuerborn that he had to give Complainant “something in writing”
that explained why she was being discharged. 	(Tr. 197) 	Robertson reported to Carl
Quagliata in matters involving Giovanni’s. 	Quagliata was unaware of Complainant’s
discharge until after the fact. (Tr. 541)
10

statement section that she had called in sick both days and obtained a
physician’s statement for her absence on October 22. 	Both reports listed
“termination of employment” as Respondent’s action against Complainant.
23. Complainant retrieved the letter from her locker after she received
copies of the reports. Complainant again attempted to locate Quagliata
without success. 	Complainant asked Pier Gregori, a Maitre D’ and staff
manager, to give Quagliata the letter for her. 	Quagliata received the letter
after Complainant’s discharge.7
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
7 Quagliata 	did 	not 	investigate 	Complainant’s 	allegations 	in 	the 	letter. 	He
assumed the allegations were “sour grapes.” (Tr. 556)
11

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. The Commission alleged in the Complaint that Complainant was
subjected 	to 	unwelcome 	“comments 	and 	touching” 	and 	discharged
because of her sex.
2. 	These allegations, if proven, would constitute a violation of R.C.
4112.02 provides, in pertinent part, that:
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).
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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. Sexual harassment is sex discrimination and prohibited by R.C.
Chapter 4112. Ohio Administrative Code (Adm. Code) 4112-5-05(J)(1); Cf.
Meritor Savings Bank v. Vinson (1986), 477 U.S. 57 (sexual harassment is
sex 	discrimination 	under 	Title 	VII). 	Ohio 	Adm.Code 	4112-5-05(J)(1)
defines conduct that constitutes sexual harassment:
Unwelcome sexual advances, requests for sexual favors, and
other verbal or physical conduct of a sexual nature constitute
sexual harassment when:
(a) 	Submission to such conduct is made either explicitly or
implicitly 	a 	term 	or 	condition 	of 	an 	individual’s
employment;
(b) 	Submission 	to 	or 	rejection 	of 	such 	conduct 	by 	an
individual is used as the basis for employment decisions
affecting such individual; or
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(c) 	Such conduct has the purpose or effect of unreasonably
interfering 	with 	an 	individual's 	work 	performance 	or
creating 	an 	intimidating, 	hostile 	or 	offensive 	working
environment.8
Whether the alleged conduct constitutes sexual harassment is determined
on a case-by-case basis by examining the record as a whole and the
totality of the circumstances. 	Ohio Adm.Code 4112-5-05(J)(2).
6. 	An employer is vicariously liable for a hostile work environment
created 	by 	a 	supervisor 	with 	immediate 	or 	higher 	authority 	over 	the
employee. 	Burlington Industries, 	Inc. v. Ellerth 	(1998), 524 U.S. 742;
Faragher v. City of Boca Rotan 	(1998), 524 U.S. 775. 	If no tangible
employment action is taken against the employee, then the employer may
raise an affirmative defense to liability or damages. 	Burlington, supra at
765; 	Faragher, 	supra 	at 	807. 	To 	be 	successful, 	the 	employer 	must
establish the following two elements by a preponderance of the evidence:
(1) 	The employer exercised reasonable care to prevent and
correct promptly any sexually harassing behavior, and
(2) 	The employee unreasonably failed to take advantage of
any preventive or corrective opportunities provided by the
employer or to avoid harm otherwise.
Id.
8 This definition is the same as the EEOC’s definition of sexual harassment. See
29 C.F.R. § 1604.11(a).
14

This affirmative defense is unavailable when the supervisor’s harassment
“culminates in a tangible employment action, such as discharge, demotion,
or undesirable reassignment.” 	Burlington, supra; Faragher, supra at 808.
MOTION TO AMEND COMPLAINT
7. 	In its brief, the Commission moves to amend the Complaint to
conform to the evidence presented at the hearing. 	See Ohio Adm.Code
4112-3-05(F) and Civil Rule 15(B). 	Specifically, the Commission moves to
amend 	the 	Complaint 	to 	include 	an 	allegation 	that 	Complainant 	was
subjected to a “hostile work environment” because of her sex.
8. The terms 	quid pro quo 	and hostile work environment do not
appear in either R.C. 4112 or Title VII. 	In Meritor, the Supreme Court first
discussed these terms in holding that “sufficiently severe or pervasive”
sexual harassment, which “alters the conditions of the victim’s employment
and creates an abusive working environment”, violates Title VII. 	Id., at 67,
(brackets and citation removed). 	These terms became extensively used in
pleadings in Meritor’s wake. 	Title VII plaintiffs were encouraged to plead
their cases as quid pro quo claims in an attempt to establish vicarious
liability against their employer. 	See Burlington, supra at 753 (criticizing use
15

of the quid pro quo/hostile work environment distinction as a proxy for
deciding when employers are subject to vicarious liability for employment
discrimination).
9. 	In Burlington, the Supreme Court indicated that the terms quid pro
quo and hostile work environment were not irrelevant to sexual harassment
cases, but these terms only serve to distinguish roughly “between cases in
which threats are carried out [quid pro quo] and those where they are not or
are absent altogether [hostile work environment].” 	Id., at 751. 	In practice,
the factual basis for each category may overlap, making it difficult to label a
case as one or the other. 	3 Larsen, Employment Discrimination, (2nd Ed.,
2002), 	Section 	46.05[1]. 	The 	central 	inquiry 	is 	“whether 	plaintiff’s 	sex
played a role in the actions at issue”, not whether the facts should be
framed as either a 	quid pro quo 	or a hostile work environment case.
Gregory v. Daly (C.A. 2, 2001), 243 F.3d 687, 700; See also Oncale v.
Sundowner Offshores Services, Inc. (1998), 523 U.S. 75, 80 (“The critcal
issue, Title VII’s text indicates, is whether members of one sex are exposed
to disadvantageous terms or conditions of employment to which members
of the other sex are not exposed”) (citation omitted). 	The Commission’s
complaint, 	as 	written, 	sufficiently 	pleads 	unlawful 	sex 	discrimination 	in
16

violation 	of 	R.C. 	4112.02(A). 	Therefore, 	the 	Commission’s 	Motion 	to
Amend Complaint is denied.
SEXUAL HARASSMENT ALLEGATIONS
10. Complainant testified that Feuerborn initiated physical contact
with her body, made verbal sexual advances toward her, and implied that
her 	continued 	employment 	depended 	upon 	her 	submission 	to 	such
conduct. 	Specifically, Complainant testified that the following incidents
occurred in August and September 1999:
• 	Feuerborn leaned on Complainant while she was bending
down in the cooler and stated, “Hey baby, you and I
should get together”;
• 	Feuerborn rubbed his body against her while she was
talking on the telephone;
• 	Feuerborn 	rubbed 	“his 	whole 	body” 	against 	her 	in 	a
walkway in the cooking line after she accidentally bumped
into him earlier;
• 	Feuerborn told her that Respondent was advertising for a
line 	cook, 	and 	Quagliata 	intended 	to 	replace 	her.
Feuerborn then assured Complainant that he “liked” her
and was not going to let her go while grabbing her leg and
squeezing it; and
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• 	Feuerborn wrapped one of his arms around Complainant
while holding glazed carrots out in front of her and asked,
“Do you know what we could do with this, baby?”
11. 	Feuerborn testified at the hearing.9 Feuerborn denied most of
Complainant’s specific allegations; however, he acknowledged generally
that 	persons 	might 	“brush 	up 	against” 	or 	bump 	into 	each 	other 	in
the cooler or on the cooking line in light of the “small quarters” of those
areas. 	(Tr. 376-77) 	Feuerborn also testified that clipboards for ordering
inventory were located near the telephone and acknowledged that a person
reaching for the clipboards might touch a person talking on the telephone.
12. 	Further, 	Feuerborn 	acknowledged 	that 	he 	took 	Complainant
outside the restaurant and possibly touched her leg while encouraging her
to improve her work performance. 	(Tr. 384) 	Feuerborn testified that he
showed Complainant the advertisement that day to stress that if she did not
improve her work performance, she would be replaced.
9 Feuerborn was no longer employed by Respondent at the time of his testimony;
his employment at Giovanni’s ended in September 2000.
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13. 	Respondent 	argues 	that 	the 	Commission 	failed 	to 	“present
even one eyewitness to corroborate” Complainant’s sexual harassment
allegations against Feurborn. 	(R.Br. 8) 	Although the existence of corrob-
orative evidence is often crucial in sexual harassment cases, there is no
explicit corroboration requirement in either R.C. Chapter 4112 or Title VII.
See Durham Life Ins. Co. v. Evans (C.A. 3, 1999), 166 F.3d 139, 147 (Title
VII 	does 	not 	have 	a 	corroboration 	requirement 	in 	sexual 	harassment
cases). Credibility determinations are the province of the factfinder. 	When
there are two competing versions of disputed facts, the factfinder may
credit either side’s version without corroboration from other witnesses.
14. 	Besides 	Complainant’s 	and 	Feuerborn’s 	testimony, 	the 	ALJ
considered 	the 	testimony 	of 	Complainant’s 	sponsor, 	Kris 	Rice. 	Rice
testified 	that 	she 	talked 	to 	Complainant 	“almost” 	daily 	from 	August
through October 1999. 	(Tr. 220) 	Rice testified that Complainant told her
that Feuerborn would “go out of his way” to brush up against her at work.
(Tr. 240-42) 	Rice also testified that Complainant told her that Feuerborn
touched her leg while they were outside the restaurant discussing her
future employment with Respondent. 	The ALJ credited Rice’s testimony
19

about these conversations with Complainant; this testimony was consistent
with Complainant’s version of events.
15. The ALJ also credited Complainant’s reasons for not reporting
Feuerborn’s 	behavior 	to 	Quagliata 	or 	other 	management 	personnel.
Complainant testified that she did not complain to Gary Keil, the morning
sous-chef, because he would “go out and drink” with Feuerborn. 	(Tr. 159)
Complainant further testified that she felt it was “useless” to complain to
Quagliata because he exhibited similar behavior in the workplace by pulling
her ponytail, flirting with her, and touching her hips from behind. (Tr. 37, 75-
77, 160) This testimony was consistent with Quagliata’s general admission
that he is “a touchy person” by nature, and his specific admissions that he
pulled Complainant’s ponytail and touched her like his other employees.
(Tr. 539, 540, 565)
16. 	Lastly, the ALJ considered that Complainant eventually placed
her 	concerns 	about 	Feuerborn 	in 	writing 	before 	she 	learned 	of 	her
discharge. 	(Comm.Ex. 3P) 	Among other things, the letter referenced
Feuerborn’s sexual advances and his sexually abusive behavior toward
her. 	After 	a 	careful 	review 	of 	the 	entire 	record, 	the 	ALJ 	found
20

Complainant’s 	testimony 	about 	the 	sexually 	harassing 	behavior 	more
credible than Feuerborn’s denial of such conduct.
HOSTILE WORK ENVIRONMENT
17. 	Having resolved the factual disputes in Complainant’s favor, the
inquiry 	becomes 	whether 	Feuerborn’s 	behavior 	toward 	her 	created 	a
hostile work environment as a matter of law. 	In order to establish sexual
harassment based on a hostile work environment, the Commission must
show by a preponderance of the evidence that:
(1) 	The harassment was unwelcome;
(2) 	The harassment was based on sex;
(3) 	The 	harassing 	conduct 	was 	sufficiently 	severe 	or
pervasive to affect the “terms, conditions, or privileges of
employment, or any matter directly or indirectly related to
employment”; and
(4) 	The harassment was committed by a supervisor or the
employer, through its agents or supervisory personnel,
knew or should have known of the harassment and failed
to take immediate and appropriate corrective action.
Hampel 	v. 	Food 	Ingredients 	Specialists, 	Inc. 	et 	al., 	(Ohio,
2000), 89 Ohio St. 3d 169, 176-77.
21

18. The Commission easily established the first, second, and fourth
elements of a hostile work environment claim. 	The evidence shows that
Feuerborn, a male supervisor, physically touched Complainant, a female
subordinate, and made verbal sexual advances toward her. 	There is no
evidence that Feuerborn engaged in the same or similar behavior toward
male employees in Respondent’s workplace; the lack of such evidence
suggests that Feuerborn’s actions toward Complainant were based on her
sex. 	Although Complainant did not specifically instruct Feuerborn to stop
this behavior, her consistent failure to respond to his sexual advances was
enough to communicate unwelcomeness. 	Lipsett v. University of Puerto
Rico (C.A. 1, 1988), 864 F.2d 881, 898.
19. 	As in most cases, the existence of a hostile work environment in
this 	case 	turns 	on 	whether 	the 	conduct 	was 	“sufficiently 	severe 	or
pervasive to alter the conditions of the victim's employment and create an
abusive working environment.” 	Harris v. Forklift Systems, Inc. (1993), 510
U.S. 17, 21, quoting Meritor, supra at 67. The victim must actually 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, supra at 21-22.
22

20. In examining the work environment from both subjective and
objective viewpoints, the factfinder must examine “all the circumstances”
including the victim’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.
21. This inquiry also requires “careful consideration of the social
context” in which the particular behavior occurred since the “real social
impact 	of 	workplace 	behavior 	often 	depends 	on 	a 	constellation 	of
surrounding circumstances, expectations, and relationships.” Oncale, supra
at 82. 	The totality-of-the-circumstances approach requires the factfinder to
consider “the cumulative effect of all episodes of sexual or other abusive
treatment.” 	Hampel, supra at 181.
[T]he issue is not whether each incident of harassment standing
alone is sufficient to sustain a cause of action in a hostile
environment case, but whether—taken together—the reported
incidents make out such a case.
Williams v. General Motors Corp. (C.A. 6, 1999), 187 F.3d 553,
562.
23

22. In Harris, the Supreme Court explained the rationale for requiring
proof of the subjective component of a hostile work environment claim.
This showing is necessary to establish that the harassing conduct, in fact,
discriminatorily altered the victim’s working conditions:
. . . if the victim does not subjectively perceive the environment
to 	be 	abusive, 	the 	conduct 	has 	not 	actually 	altered 	the
conditions of the victim’s employment, and there is no Title VII
violation.
Harris, supra at 21-22.
23. The evidence in this case shows that Complainant perceived
her work environment at Giovanni’s to be hostile, at least in part, because
of Feuerborn’s harassment based on her sex.10 This behavior occurred
during the same period that Feuerborn yelled at Complainant for work-
related reasons and criticized her work performance. 	During the hearing,
Complainant described the dichotomy of Feuerborn’s behavior toward her:
10 Complainant also testified that Feuerborn kissed her on the lips while greeting
her at the company picnic in the summer of 1999. 	Complainant described the kiss as
not “sexual” and indicated that she was not offended by it. 	(Tr. 106) 	Complainant
testified that the kiss was inappropriate because it was “all in show” and gave those in
attendance the false impression that they were “good friends” and “got along really
well.” Id. 	Complainant’s testimony demonstrates that this kiss did not contribute to her
perception that her work environment was hostile or abusive.
24

He was either really crazy and mean, . . . going off on me, or he
was being sexual, harassing me.
(Tr. 176)
24. Complainant testified that the combination of Feuerborn’s volatile
temperament and his sexual advances made him “dangerous” causing her
to feel like she was “walking on egg shells.”11 (Tr. 23, 30, 31) Complainant
also testified that she was shocked and confused by Feuerborn’s behavior,
and “never knew what to do.” 	(Tr. 29) 	Rice corroborated Complainant’s
testimony 	that 	she 	was 	confused 	and 	stressed 	over 	the 	instability 	of
Feuerborn’s behavior toward her. (Tr. 220) Rice testified that Complainant
reported these feelings to her contemporaneously.
25. The Commission presented other evidence that demonstrated
that Complainant perceived her work environment to be hostile. 	In the
letter to Quagliata, Complainant wrote about Feuerborn’s sexual advances
toward her. Complainant indicated it was unbearable for her to work “under
these conditions”, and this behavior had to stop. (Comm.Ex. 3P)
11 Complainant testified about an incident where Feuerborn “slammed” down and
“shattered” a jug of wine in a fit of anger. (Tr. 23) This incident apparently occurred
during the first week that he worked there.
25

26. 	Respondent 	argues 	that 	Complainant 	never 	complained 	to
management of sexual harassment (or a hostile work environment) until
after 	her 	discharge. 	Although 	the 	failure 	to 	report 	the 	objectionable
behavior may be considered as part of the totality of the circumstances, the
subjective component of a hostile work environment claim does not require
employees to complain about their workplace. 	Williams, supra at 566.
A plaintiff can be subjected to sexual harassment sufficiently
severe or pervasive as to constitute a hostile work environment
and 	yet, 	for 	a 	number 	of 	valid 	reasons, 	not 	report 	the
harassment.
Id.
27. In 	Williams, the court recognized that an employee might be
reluctant to come forward when one of the harassers was a supervisor.
See also Faragher, supra at 803 (noting that a victim of sexual harassment
“may well be reluctant to accept the risks of blowing the whistle on a
supervisor”). 	Complainant 	also 	provided 	plausible 	explanations 	for 	not
reporting Feuerborn’s behavior to either Quagliata or Keil. 	(Conclusions of
Law ¶17, supra) 	It is undisputed that Respondent did not have a sexual
harassment 	policy 	at 	the 	time. 	Thus, 	Respondent 	failed 	to 	provide
Complainant any internal reporting options to complain about the harassing
behavior.
26

28. 	The 	question 	of 	what 	act 	or 	combinations 	of 	actions 	may
“objectively” create a hostile work environment is “a rather gray area.” 	Fall
v. Indiana University Bd. of Trustees (N.D. Ind. 1998), 12 F.Supp. 2d 870,
877. 	A delicate balance must be struck between “the line that separates
the 	merely 	vulgar 	and 	mildly 	offensive 	from 	the 	deeply 	offensive 	and
sexually harassing.” Baskerville v. Culligan International Co. (C.A. 7, 1995),
50 F.3d 428, 431. As Judge Posner explained in Baskerville:
On the [sexual harassment] side lie[s] sexual assaults; other
physical contact, whether amorous or hostile, for which there is
no consent express or implied; uninvited sexual solicitations;
intimidating 	words 	or 	acts; 	obscene 	language 	or 	gestures;
pornographic pictures . . .
On the other side [of the line] lies the occasional vulgar banter,
tinged with sexual innuendo, of coarse or boorish workers.
Id., (citations omitted).
Wherever the line is drawn, it must be “sufficiently demanding” to heed the
Supreme 	Court’s 	admonition 	that 	civil 	rights 	statutes 	do 	not 	become
general 	civility 	codes 	and 	only 	prohibit 	“extreme” 	conduct 	that
discriminatorily alters the terms and conditions of employment in a hostile
manner. 	Faragher, supra at 788.
27

29. This case involves five incidents of unwelcome physical contact,
ranging from Feuerborn rubbing or leaning his body against Complainant,
grabbing her around the waist from behind, and squeezing her leg. 	None
of the incidents apparently involved the touching or groping of intimate
body parts. 	Two of the incidents were accompanied by verbal sexual
advances while the circumstances of another incident, i.e., squeezing her
leg, suggested a threat of a sexual quid pro quo. 	All of the incidents,
including the leg squeezing incident, should be considered in determining
whether 	Complainant 	was 	subjected 	to 	an 	objectively 	hostile 	work
environment because of her sex. 	See Gregory, supra 	(when allegations of
a sexual 	quid pro quo 	co-exist with allegations of other circumstances
suggesting that the challenged employment actions were taken because of
plaintiff’s 	sex, 	the 	court 	looks 	to 	the 	totality 	of 	the 	circumstances 	to
determine 	whether 	there 	is 	a 	sufficient 	basis 	to 	infer 	sex-based
discrimination). 	In other words, a supervisor’s implied suggestion that an
employee’s continued employment is contingent upon submission to his
sexual advances may contribute to a work environment that the reasonable
person would find hostile or abusive. 	Id., at 693.
28

30. Complainant testified that these incidents occurred in August and
September 1999. 	This testimony demonstrates that these incidents were
not isolated, but occurred with some frequency during the brief period that
Complainant and Feuerborn worked together. 	The unwelcome touching
and sexual solicitations appear to fall on the sexual harassment side of the
line drawn by Judge Posner in Baskerville. 	These incidents went beyond
the 	“genuine 	but 	innocuous 	differences 	in 	the 	ways 	men 	and 	women
routinely interact with members of the same sex and of the opposite sex” in
the workplace. 	Oncale, supra at 81. 	These incidents went beyond “the
ordinary tribulations of the workplace, such as sporadic use of abusive
language, 	gender-related 	jokes, 	and 	occasional 	teasing”, 	that 	do 	not
constitute sexual harassment as a matter of law. 	Faragher, supra at 788
(citation omitted).
31. In its brief, the Commission recognizes that Feuerborn’s constant
yelling at Complainant about her work performance also contributed to the
hostility in her work environment. 	The ALJ concludes that a reasonable
person, subjected to the same mixture of work-related verbal haranguing
and sexually harassing behavior, would perceive such a work environment
to be hostile or abusive. 	In addition, Complainant testified that Feuerborn
29

called her a “fucking bitch” during two of his outbursts. 	(Tr. 25, 31)
Although Feuerborn may have yelled at both males and female in the
kitchen, 	his 	use 	of 	a 	derogatory, 	gender-based 	phrase 	to 	describe
Complainant on these occasions may be considered as part of the totality
of the circumstances in determining the existence of an objectively hostile
work environment.
32. 	The ALJ also considered whether the unwelcome touching and
sexual 	solicitations 	unreasonably 	interfered 	with 	Complainant’s 	work
performance. 	The Commission is not required to prove that Complainant’s
“tangible productivity . . . declined as a result of the harassment.” 	Harris,
supra at 25 (Ginsburg, J. concurring), quoting Davis v. Monsanto Chemical
Co. (C.A. 6, 1988), 858 F.2d 345, 349. 	Instead, the Commission must
show that a reasonable person subjected to the discriminatory conduct
would 	find 	that 	the 	harassment 	so 	altered 	working 	conditions 	as 	to
“ma[k]e it more difficult to do the job.” 	Id. 	Complainant’s testimony that
Feuerborn’s 	unwelcome 	touching 	negatively 	affected 	her 	ability 	to
concentrate on her work was sufficient to meet this showing. (Tr. 180)
30

33. 	After 	reviewing 	the 	totality 	of 	the 	circumstances, 	the 	ALJ
concludes that Feuerborn’s conduct toward Complainant, i.e., five incidents
of unwelcome touching (including a sexual quid pro quo), two verbal sexual
advances or solicitations, and two derogatory references to her gender,
was sufficiently severe and pervasive to alter her work conditions and
created a hostile work environment as a matter of law. 	In reaching this
conclusion, the ALJ considered the collective severity of these incidents
along with the brief period in which they occurred. 	Williams, supra at 564
(Title VII violation may exist due to the cumulative effect of incidents even
when no single episode of sexual harassment would be sufficient alone to
create a hostile work environment); See also Hampel, supra at 181 (severe
or 	pervasive 	requirement 	does 	not 	present 	two 	mutually 	exclusive
evidentiary choices, but reflects unitary concept where strength in one
factor may overcome deficiency in other) (citations omitted). Respondent is
vicariously 	liable 	for 	Feuerborn’s 	creation 	of 	a 	sexually 	hostile 	work
environment for Complainant.12 Burlington, supra; Faragher, supra.
12 Respondent neither raised any defenses that it should not be liable for
Feuerborn’s sexually harassing behavior nor provided sufficient evidence showing that
Complainant failed to avoid or mitigate her damages caused by his conduct. 	The
evidence shows that Respondent did not adopt a sexual harassment policy until after
Complainant’s discharge.
31

TANGIBLE EMPLOYMENT ACTION
34. 	The 	issue 	of 	whether 	Respondent 	discharged 	Complainant
because of her sex is also properly analyzed under federal case law.
Under Title VII, the Commission is usually required to first establish a prima
facie case of unlawful discrimination by a preponderance of the evidence.
McDonnell Douglas Co. v. Greene (1973), 411 U.S. 792. 	The burden of
proving a prima facie case is not onerous. 	Texas Dept. of Community
Affairs v. Burdine (1981), 450 U.S. 248. 	It is simply part of an evidentiary
framework “intended progressively to sharpen the inquiry into the elusive
factual question of intentional discrimination.” 	Id., at 254, n.8.
35. 	The proof required to establish a prima facie case is also flexible
and, therefore, may vary on a case-by-case basis. McDonnell Douglas,
supra at 802, n.13. 	In this case, the Commission may establish a prima
facie case of sex discrimination by proving that:
(1) 	Complainant is a member of a protected class;
(2) 	Complainant was qualified for her position;
(3) 	Respondent 	took 	an 	adverse 	employment 	action
against Complainant; and
32

(4) 	Respondent 	took 	an 	adverse 	employment 	action
against Complainant “under circumstances giving rise
to an inference of discrimination.”
Gregory, supra at 595; See also Burdine, supra at 253.
36. The Commission proved the first three elements of a 	prima
facie case. 	R.C. 4112.02(A) protects both sexes “from all forms of sex
discrimination in the workplace.” 	Hampel, supra at 178. 	Respondent hired
Complainant as a line cook and gave her a raise after one year of service.
Such evidence suggests that Complainant possessed the basic skills to
perform her job. 	See Gregory, supra at 696 (second element of prima facie
case only requires minimum showing that employee possessed “the basic
skills for performance of the job”) (citations omitted). 	Respondent took an
adverse employment action against Complainant by discharging her.
37. 	The Commission also proved the fourth element of a prima facie
case with the same evidence that created a hostile work environment for
Complainant. 	See Gregory, supra 697 (same circumstances suggesting
sexually 	hostile 	work 	environment 	gave 	rise 	to 	inference 	that 	tangible
adverse employment actions were also based on sex). 	The evidence
shows that Feuerborn made the decision to discharge Complainant. 	This
33

decision occurred approximately a month after he engaged in conduct that
suggested that Complainant’s continued employment depended upon her
submission 	to 	his 	unwelcome 	touching 	and 	sexual 	solicitations. 	Such
evidence, 	along 	with 	the 	evidence 	of 	the 	other 	sexual 	advances 	and
derogatory references to Complainant’s gender, is sufficient to create an
inference that Complainant’s sex also played a role in her discharge at
least for purposes of proving a prima facie case.
38. Once the Commission established a prima facie case, the burden
of 	production 	shifted 	to 	Respondent 	to 	“articulate 	some 	legitimate,
nondiscriminatory reason” for the employment action. 	McDonnell Douglas,
supra at 802. 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.13
St. Mary’s Honor Center v. Hicks (1993), 509 U.S. 502, 507,
quoting Burdine, supra at 254-55, n.8.
13 Although the burden of production shifted to Respondent at this point, the
Commission retained the burden of persuasion throughout the proceeding. 	Burdine,
supra at 254.
34

39. 	Respondent 	met 	its 	burden 	of 	production 	with 	Feuerborn’s
testimony and documentary evidence regarding Complainant’s discharge.
Feuerborn 	testified 	that 	he 	discharged Complainant 	because 	she 	left
work an hour early without notifying management and reported off work the
next 	day. 	(Tr. 	385) 	Feuerborn 	also 	testified 	that 	Complainant’s 	work
performance was a factor in her discharge.14 (Tr. 394) The “Employee
Warning Reports” that Feuerborn gave Complainant on the day of her
discharge cited the first two reasons. (Comm.Exs. 3K, 3L)
40. Respondent having met its burden of production, the inquiry
moves 	to 	the 	ultimate 	issue 	of 	whether 	Respondent 	discharged
Complainant 	because 	of 	her 	sex. 	The 	Commission 	must 	show 	by a
preponderance of the evidence that Respondent’s articulated reasons for
Complainant’s discharge were not its true reasons, but were “a pretext for
discrimination.” 	Hicks, supra at 515, quoting Burdine, supra at 253.
[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.
14 Feuerborn also testified that Complainant had a problem arriving at work on
time, but he acknowledged that her tardiness was not a factor in his decision to
discharge her. 	(Tr. 374, 461)
35

41. 	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 . . . [sex] is correct. That
remains a question for the factfinder to answer . . . .
Id., at 524.
Ultimately, 	the 	Commission 	must 	provide 	sufficient 	evidence 	for 	the
factfinder to infer that Complainant was, more likely than not, the victim of
sex discrimination.
42. 	In 	order 	to 	show 	pretext, 	the 	Commission 	challenges 	the
credibility of Respondent’s articulated reasons for Complainant’s discharge.
The Commission argues that the evidence does not support the conclusion
that Complainant’s work performance was a factor in her discharge. 	This
argument is well taken. 	Neither of the Employee Warning Reports listed
work performance as a reason for Complainant’s discharge. 	(Comm.Exs.
3K, 	3L) 	Feuerborn 	also 	did 	not 	indicate 	that 	Complainant’s 	work
performance was a reason for her discharge when he provided information
36

to the Ohio Bureau of Employment Services (OBES) about this decision
only 17 days after her discharge. 	(Comm.Exs. 3I, 3J)
43. The ALJ also considered Feuerborn’s testimony that he would
have 	“likely” 	given 	Complainant 	“another 	chance” 	if 	she 	had 	reported
to work on October 22, 1999. 	(Tr. 468) 	This testimony suggests that even
if Feuerborn was not satisfied with Complainant’s work performance, he
was not ready to discharge her for that reason at that time.
44. Likewise, the evidence does not support Feuerborn’s testimony
that Complainant’s reporting off work on October 22, 1999 was a reason for
her discharge. 	Feuerborn indicated in his response to OBES that “the final
incident”, which led to Complainant’s discharge, occurred the previous
day on October 21. 	(Comm.Ex. 3J) 	Feuerborn further indicated in this
response that Complainant “would have been terminated” on October 	22,
but 	she 	called 	off 	work 	that 	day. 	Id. 	The Employee Warning Report
for October 21 listed “termination of employment” as Respondent’s action
against Complainant for “walking out of work without notice.” 	(Comm.Ex.
3K)
37

45. The Commission also argues that the remaining reason, i.e.,
leaving work an hour early without authorization, is a “questionable basis”
for Complainant’s discharge. 	(Comm.Br. 32) 	The evidence shows that
although 	Complainant’s 	work 	hours 	extended 	beyond 	lunchtime, 	her
primary responsibility was lunch preparation. 	This responsibility would
have ended by 3:00 p.m. when Complainant left the premises early on
October 21. 	Further, this was not the first time that Complainant left
work at that time. 	Feuerborn previously sent Complainant home an hour
early in a fit of anger telling her that there was “nothing else” for her to do.
(Tr. 25)
46. 	As the foregoing evidence demonstrates, Feuerborn’s testimony
about 	his 	reasons 	for 	Complainant’s 	discharge 	and 	the 	documentary
evidence, which was prepared less than a month later, are inconsistent.
Feuerborn was unable to explain the inconsistencies at the hearing. 	The
ALJ resolved the conflict in favor of the documentary evidence, which was
more contemporaneous. The ALJ concludes that but for Complainant’s
refusal to acquiesce to Feuerborn’s sexual advances, it is unlikely that
Complainant would have been discharged for leaving work an hour early
without proper notice:
38

The 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 the
prima 	facie 	case, 	suffice 	to 	show 	intentional 	discrimination.
Thus, rejection of the defendant’s proffered reasons will permit
the 	trier 	of 	fact 	to 	infer 	the 	ultimate 	fact 	of 	discrimination,
and . . . no additional proof of discrimination is required.
Hicks, supra at 511, (bracket removed); See also Reeves v.
Sanderson Plumbing Products, Inc. (2000), 530 U.S. 133, 147.
RETALIATION
47. The Commission also alleged in its Complaint that Respondent
discharged 	Complainant 	in 	retaliation 	for 	complaining 	of 	sexual
harassment. 	This allegation, if proven, would constitute a violation of R.C.
4112.02 provides that:
It shall be an unlawful discriminatory practice:
(I) 	For any person to discriminate in any manner against any
other 	person 	because 	that 	person 	has 	opposed 	any
unlawful discriminatory practice defined in this section or
because 	that 	person 	has 	made 	a 	charge, 	testified,
assisted, or participated in any manner in any investigation,
proceeding, or hearing under sections 4112.01 to 4112.07
of the Revised Code.
48. 	At this point, there is no need to undergo a prolonged analysis of
this allegation. 	The Commission failed to establish the threshold element
39

of all retaliation cases, i.e., showing that Complainant engaged in protected
activity 	under 	the 	statute. 	It 	is 	undisputed 	that 	Complainant 	did 	not
complain to management about Feuerborn sexually harassing her (or any
other sexually harassing behavior in her workplace for that matter) until
after her discharge. 	There is also no evidence that Complainant engaged
in another form of protected opposition before any adverse employment
action was taken against her. 	Nor is there any evidence that Complainant
filed a previous charge of discrimination with the Commission or otherwise
participated in proceedings initiated by such a charge. The retaliation claim
must 	be 	dismissed 	because 	the 	Commission 	failed 	to 	show 	that
Complainant engaged in a protected activity—the first element of a prima
facie case of unlawful retaliation under R.C. 4112.02(I). 	See Hollins v.
Atlantic Co., Inc. (C.A. 6, 1999), 188 F.3d 652 (setting forth prima facie
elements of Title VII retaliation claim).15
15 Title VII’s anti-retaliation provision is embodied in 42 U.S.C. §2000e-3. It also
contains an opposition and a participation clause. 	This provision is substantially the
same as R.C. 4112.02(I).
40

RELIEF
49. 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.
50. 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 (1975), 422 U.S. 405, 421. 	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. (1976), 424 U.S. 747,
763 (footnotes omitted).
51. In providing a “make whole” remedy, victims are “presumptively
entitled to reinstatement.” 	Ford v. Nicks (C.A. 6, 1989), 866 F.2d 865, 875.
There is also a strong presumption in favor of awarding back pay:
41

[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 	discrim-
ination throughout the economy and making persons whole for
injuries suffered for past discrimination.
Albemarle Paper Co., supra at 421.
This presumption “can seldom be overcome.” 	Los Angeles Dept. of Water
and 	Power 	v. 	Manhart 	(1978), 	435 	U.S. 	702, 	719. 	There 	must 	be
“exceptional circumstances” to deny an award of back pay. Rasimas v.
Michigan Dept. of Mental Health (C.A. 6, 1983), 714 F.2d 614, 626.
52. 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 628.
In other words, the calculation of back pay does not require “unrealistic
exactitude”; only a reasonable calculation is required. 	Salinas v. Roadway
Express, Inc. (C.A. 5, 1984), 735 f.2d 1574, 1578. The Commission should
resolve any ambiguity in the amount of back pay against the discriminating
employer. 	Rasimas, supra at 628; Ingram, supra at 94 .
42

53. 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 624. 	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 (1982), 458 U.S. 219; Brady v. Thurston Motor
Lines (C.A. 4, 1985), 753 F.2d 1269.
54. 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 	in 	the 	geographic 	area 	the 	victim 	had 	reasonable
access to, and (2) the victim failed to use reasonable diligence in seeking
such positions. 	Rasimus, supra at 624.
55. 	The victim’s duty to use reasonable diligence is not burdensome.
This duty does not require the victim to be successful or go to “heroic
43

lengths” 	to 	mitigate 	damages; 	only 	reasonable 	steps 	must 	be 	taken.
Ford, supra at 873. 	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 624.
56. 	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).
57. 	In 	this 	case, 	the 	Commission 	presented 	evidence 	of
Complainant’s efforts to mitigate her damages. 	Complainant testified that
she 	started 	her 	job 	search 	the 	same 	week 	of 	her 	discharge. 	The
Commission also provided an OBES booklet of employer contacts that
Complainant maintained while she received unemployment compensation
for six months. (Comm.Ex. 10) Complainant testified that she received two
job offers during that period, but she refused them because they paid less
than her job at Giovanni’s, and, in one case, the kitchen was “really dirty.”
(Tr. 170-71) 	Respondent failed to show that these jobs were substantially
44

equivalent to Complainant’s job at Giovanni’s; therefore, Complainant’s
refusal to accept these jobs does not prevent her from obtaining back pay
for this period. 	Cf. Seller v. Delgado Community College (C.A. 5, 1988),
839 F.2d 1132 (duty to mitigate damages does not require Title VII claimant
remain in non-comparable position during the pendency of this claim).
58. Further, Respondent failed to present any evidence during the
hearing on the mitigation issue. 	In other words, Respondent failed to show
that substantially equivalent positions to Complainant’s job with Giovanni’s
were available in the Cleveland area at any time after her discharge, and
she failed to use reasonable diligence in seeking such positions. 	Absent
such 	evidence, 	Respondent 	failed 	to 	meet 	its 	burden 	of 	proving 	that
Complainant failed to mitigate her damages. 	Complainant is entitled to
back pay, less her interim earnings.16
16 When there is a back pay award, victims are entitled to prejudgment interest.
Ingram, supra at 93. 	Prejudgment interest is calculated from the time of the unlawful
discriminatory practice. 	Id.
45

59. In regards to interim earnings, Complainant testified that she
cleaned 	houses 	in 	1999 	and 	made 	pies 	that 	she 	sold 	to 	her 	friends
and 	restaurants. 	(Tr. 	47, 	172) 	The 	evidence 	shows 	that 	Complainant
earned 	$6,374,92 	from 	her 	employment 	at 	Sushi 	Rock 	and 	$100
from Elan Catering in 2000. 	(Comm.Ex. 14, pp. 6-7) 	On October 1, 2000,
Complainant 	began 	working 	at 	the 	Lion & 	Lamb 	Restaurant 	as 	a
hostess and server. 	Complainant earned approximately $300 per month
for performing these functions and baking pies that the restaurant sold.
60. 	The evidence shows that Complainant continued to work at the
Lion & Lam until February 18, 2001. 	Id., at p. 8. 	Complainant earned $117
and $135 from March to May 2001 while working for another restaurant and
cleaning houses, respectively. 	Id., at pp. 9-10. Complainant apparently
returned 	to 	work 	at 	the 	Lion 	& 	Lamb 	in 	May 	2001. 	She 	earned
approximately $4,125 in salary and tips from May through mid-November
2001. 	Id., at p. 11. 	She also earned $4,460 cleaning houses during that
period. 	Id.
46

RECOMMENDATIONS
For 	all 	of 	the 	foregoing 	reasons, 	the 	Administrative 	Law 	Judge
recommends in Complaint #8911 that:
1. The Commission order Respondent to cease and desist from all
discriminatory practices in violation of R.C. Chapter 4112;
2. 	The Commission order Respondent to provide sexual harassment
training to all employees, including supervisors, within six months of the
Commission’s Final Order in this case.17 This training should be approved
by the Commission’s Office of Special Investigations (OSI) at 1111 East
Broad Street, Suite 301, in Columbus, Ohio, and Respondent should notify
that office upon completion of such training.
3. 	The 	Commission 	order 	Respondent 	to 	make 	an 	offer 	of
employment to Complainant within 10 days of the Commission’s Final
17 The 	Commission’s 	rules 	state 	in 	Ohio 	Adm.Code 	4112-5-05(J)(6) 	that
“[p]revention 	is 	the 	best 	tool 	for 	the 	elimination 	of 	sexual 	harassment.” 	Sexual
harassment training of all employees is one method of prevention. 	It is also in the best
interest of all employers to adopt a sexual harassment policy that gives employees
more than one internal reporting option. This policy should be disseminated to all
employees and posted conspicuously in the workplace.
47

Order for a line cook position. 	If Complainant accepts Respondent’s offer
of employment, Complainant shall be paid the same wage she would have
been paid had she been employed as a line cook on October 25, 1999 and
continued to be so employed up to the date of Respondent’s offer of
employment; and
4. 	Whether Complainant accepts Respondent’s offer of employment,
Respondent 	shall 	submit 	to 	the 	Commission 	within 	10 	days 	of 	the
Commission’s Final Order a certified check payable to Complainant for the
amount that Complainant would have earned had she been employed as a
line cook by Respondent from October 25, 1999 and continued to be so
employed up to the date of Respondent’s offer of employment, including
any raises that she would have received, less her interim earnings during
that period, plus interest at the maximum rate allowed by law.18
TODD W. EVANS
ADMINISTRATIVE LAW JUDGE
September 13, 2002
18 Any ambiguity in the amount that Complainant would have earned during this
period with Respondent, as well as her interim earnings elsewhere, should be resolved
against Respondent. Rasimas, supra at 628; Ingram, supra at 94.
48