Byron Patrick v. State of Ohio, DRC

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
BYRON PATRICK
Complainant Complaint No. 9147
(CLE) 7405192000 (32464) 10262000
v. 22A – 2001 – 00037 – C
STATE OF OHIO, DEPARTMENT OF
REHABILITATION & CORRECTION,
MANSFIELD CORRECTIONAL INSTITUTION
Respondent
CHIEF ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
RICHARD CORDRAY RICHARD CORDRAY
ATTORNEY GENERAL ATTORNEY GENERAL
Stefan J. Schmidt, Esq. Joseph N. Rosenthal, Esq.
Assistant Attorney General Nicole S. Moss, Esq.
Civil Rights Section Timothy M. Miller, Esq.
State Office Tower, 15th Floor Assistant Attorneys General
30 East Broad Street Employment Law Section
Columbus, OH 43215-3428 30 East Broad Street, 23rd
Floor
614 – 466 – 7900 Columbus, OH 43215-3414
614 – 644 – 7257
Counsel for the Commission
Counsel for Respondent
ALJ'S REPORT BY:
Denise M. Johnson
Chief Administrative Law Judge
Byron Patrick Ohio Civil Rights Commission
606 Lida Street State Office Tower, 5th Floor
Mansfield, OH 44903 30 East Broad Street
Columbus, OH 43215-3414
Complainant 614 – 466 – 6684

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INTRODUCTION AND PROCEDURAL HISTORY
Byron Patrick (Complainant) filed a sworn charge affidavit with
the Ohio Civil Rights Commission (Commission) on October 26,
2000.
The Commission investigated the charge and found probable
cause that the State of Ohio, Department of Rehabilitation and
Correction, Mansfield Correctional Institution (Respondent, MANCI)
engaged in unlawful employment practices in violation of Revised
Code Section (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 August 30, 2001.
The Complaint alleged that Complainant was discharged in
consideration of his race.

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Respondent filed an Answer to the Complaint on October 1,
2001. Respondent admitted certain procedural allegations, but
denied that it engaged in any unlawful discriminatory practices.
Respondent also pled affirmative defenses.1
A public hearing was held June 28-29, 2006.
The record consists of the previously described pleadings; a
transcript of the hearing consisting of 345 pages; exhibits admitted
into evidence during the hearing; and the post-hearing briefs filed
by the Commission on July 9, 2007; by Respondent on August 17,
2007; and a reply brief filed by the Commission on August 27,
2007.
1 On May 20, 2002, Counsel for the Commission filed a Motion to Stay
the administrative hearing in this matter pending the outcome/resolution of an
action filed by Complainant in the Court of Claims against Respondent. The
parties engaged in an attempt to settle the claims raised by Complainant over
the course between 2002 and 2005, but the settlement attempts failed. The
Commission moved to reinstate the hearing date in 2005.

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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. Complainant filed a sworn charge affidavit with the
Commission on October 26, 2000.

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2. The Commission determined on July 19, 2001 that it was
probable that Respondent engaged in unlawful discrimination in
violation of R.C. 4112.02(A).
3. The Commission attempted to resolve this matter by
informal methods of conciliation. The Commission issued the
Complaint after conciliation failed.
4. Respondent is an agency of a political subdivision doing
business in Ohio and an employer.
5. Complainant is African-American.
6. The Mansfield Correctional Institution (MANCI) is a
closed security facility (which is one step below maximum security)
that, at full capacity, incarcerates 2,615 inmates and employs over
400 Corrections Officers (CO).
7. MANCI is one of the largest prisons in Ohio.

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8. Complainant began his employment with Respondent as
a CO on December 17, 1990.
9. Respondent has a policy that requires employees to
disclose any relationship(s) they have with any individual(s) they
know are (currently) or have been (formerly) under Respondent’s
supervision. (Resp. Ex. 14)
10. The policy is Rule 46(b) of Respondent’s Rules Governing
Union and Exempt Employee Standards of Conduct. (Comm. Ex. 1)
11. Respondent’s internal investigator, Joseph Masi (Masi),
was given information by Trooper M.D. Vincent (Trooper Vincent) of
the Ohio State Highway Patrol as a result of a criminal investigation
he was conducting on former MANCI inmate, Larry Cobb (Cobb),
involving the theft of a credit card from a person on the grounds of
a state educational institution.
12. Trooper Vinson sent Masi an inter-office communication
dated March 16, 2000, informing him that during his investigation

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of Cobb he stated he uncovered information that “might be of
interest to you”. (Resp. Ex. 2)
13. Trooper Vincent gave Masi copies of cell phone call
records which showed seven (7) calls were made from the cell phone
to Complainant’s unlisted home number, all after 10:30 p.m. The
cell phone was purchased with the stolen credit card in Dublin,
Ohio.
14. Masi conducted interviews with Cobb, Complainant and
Marvin Tanner (Tanner), African-American, who was also employed
at MANCI as a CO.
15. Throughout his life, Complainant worked out and played
basketball at the Friendly House, a community recreation center.
16. Tanner also worked out at the Friendly House.

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17. Complainant was employed at MANCI during the time
that Cobb was an inmate. Complainant was aware of who Cobb
was and knew that he was an inmate. (Vol. I, p. 23)
18. When Cobb was released on parole he began to work out
at Friendly House.
19. Masi interviewed Tanner after his interview with Cobb,
wherein Tanner indicated that he saw Complainant and Cobb
working out when he was at Friendly House.
20. As part of Masi’s investigation, he requested sign-in
sheets from Friendly House.
21. He obtained four (4) sign-in sheets that contained records
of individuals who signed in and out between January 5, 2000 and
January 26, 2000. (Vol. II, p. 129, Resp. Ex. 5)
22. The four (4) sign-in sheets recorded Cobb was present at
the Friendly House at the same times as Complainant and Tanner.

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23. Tanner did not work at MANCI during the time period
Cobb was incarcerated (an inmate).
24. Masi completed a “Just Cause” worksheet and submitted
it to the labor relations officer with a recommendation of
disciplinary action against Complainant.
25. After Complainant attended a pre-disciplinary hearing,
Respondent determined, based upon the evidence from Masi’s
investigation and Complainant’s failure to fill out a nexus form,
that he had violated Rule 46(b) and should be disciplined.
(Resp. Ex. 9)
26. Margaret Bagley (Bagley) became the warden of MANCI
on March 28, 2000.
27. After receiving the Hearing Officer’s Report from the pre-
disciplinary hearing Bagley recommended the termination of
Complainant’s employment.
28. Complainant was discharged on May 19, 2000.

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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 the proposed
findings and conclusions submitted by the parties and the
arguments made by them are in accordance with the findings,
conclusions, and views stated herein, they have been accepted; to
the extent they are inconsistent therewith, they have been rejected.
Certain proposed findings and conclusions have been omitted as
not relevant or as not necessary to a proper determination of the
material issues presented. To the extent that the testimony of
various witnesses is not in accord with the findings therein, it is not
credited.2
1. The Commission alleged in the Complaint that
Complainant was discharged in consideration of his race.
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:

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(A) For any employer, because of the race, … 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), 4112.06(E).
4. Federal case law generally applies to alleged violations of
R.C. Chapter 4112. Columbus Civ. Serv. Comm. v. McGlone (1998),
82 Ohio St.3d 569. Therefore, reliable, probative, and substantial
evidence means evidence sufficient to support a finding of unlawful
discrimination under Title VII of the Civil Rights Act of 1964 (Title
VII).
5. Under Title VII case law, the Commission is normally
required to first establish a prima facie case of unlawful
discrimination by a preponderance of the evidence. McDonnell
2 Any Finding of Fact may be deemed a Conclusion of Law, and any
Conclusion of Law may be deemed a Finding of Fact.

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Douglas Co. v. Greene, 411 U.S. 792, 5 FEP Cases 965 (1973). The
burden of establishing a prima facie case is not onerous. Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 25 FEP
Cases 113, 115 (1981). It is simply part of an evidentiary frame-
work “intended progressively to sharpen the inquiry into the elusive
factual question of intentional discrimination.” Id., at 254, 25 FEP
Cases at 116, n.8.
6. 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, 5 FEP Cases at 969, n.13.
7. In this case, it is not necessary to determine whether the
Commission proved a prima facie case. Respondent’s articulation of
a legitimate, nondiscriminatory reason for Complainant’s discharge
removes any need to determine whether the Commission proved a
prima facie case, and the “factual inquiry proceeds to a new level of
specificity.” U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S.
711, 713, 31 FEP Cases 609, 611 (1983), quoting Burdine, supra at
255, 25 FEP Cases at 116.

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Where the defendant has done everything that would be
required of him if the plaintiff has properly made out a
prima facie case, whether the plaintiff really did so is no
longer relevant.
Aikens, supra at 713, 31 FEP Cases at 611.
8. Respondent met its burden of production with
introduction of evidence that Complainant violated Respondent’s
policy regarding having contact or relationships with ex-offenders.
9. Respondent having met its burden of production, the
Commission must prove that Respondent unlawfully discriminated
against Complainant because of his race. Hicks, supra at 511, 62
FEP Cases at 100. The Commission must show by a preponderance
of the evidence that Respondent’s articulated reason for
Complainant’s discharge was not the true reason, but was “a
pretext for discrimination.” Id., at 515, 62 FEP Cases at 102,
quoting Burdine, supra at 253, 25 FEP Cases at 115.
[A] reason cannot be proved to be a “pretext for
discrimination” unless it is shown both that the reason is
false, and that discrimination is the real reason.
Hicks, supra at 515, 62 FEP Cases at 102.

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10. Thus, even if the Commission proves that Respondent’s
articulated reason is false or incomplete, the Commission does not
automatically succeed in meeting its burden of persuasion:
That the employer’s proffered reason is unpersuasive, or
even obviously contrived, does not necessarily establish
that the … [Commission’s] proffered reason of race is
correct. That remains a question for the factfinder to
answer ….
Id., at 524, 62 FEP Cases at 106.
Ultimately, the Commission must provide sufficient evidence for the
factfinder to infer that Complainant was, more likely than not, the
victim of race discrimination.
11. In order to show pretext, the Commission may directly or
indirectly challenge the credibility of Respondent’s articulated
reason for discharging Complainant. The Commission may directly
challenge the credibility of Respondent’s articulated reason by
showing that the reason had no basis in fact or it was insufficient to
motivate the employment decision. Manzer v. Diamond Shamrock
Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994). Such direct
attacks, if successful, permit the fact finder to infer intentional

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discrimination from the rejection of the reason without additional
evidence of unlawful discrimination.
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 … [n]o additional proof is required.3
Hicks, supra at 511, 62 FEP Cases at 100 (emphasis
added).
12. The Commission may indirectly challenge the credibility
of Respondent’s reason by showing that the sheer weight of the
circumstantial evidence makes it “more likely than not” that the
reason is a pretext for unlawful discrimination. Manzer, supra at
1084. This type of showing, which tends to prove that the reason
did not actually motivate the employment decision, requires the
Commission produce additional evidence of unlawful discrimination
besides evidence that is part of the prima facie case. Id.
3 Even though rejection of a respondent’s articulated reason is “enough
at law to sustain finding of discrimination, there must be a finding of
discrimination.” Hicks, supra at 511, 62 FEP Cases at 100, n.4.

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13. The Commission attempted to show pretext in this case
by alleging disparate treatment. Specifically, the Commission
alleged that Caucasian employees who engaged in the same or
similar conduct were treated more leniently than Complainant.
The individuals alleged to be comparables by the Commission are
LeMaster, Porter, Scherer, Amero, and Smith.
14. Proof of disparate treatment requires similarly situated
comparatives. The Commission must show that the comparatives
were “similarly situated in all respects”:
Thus to be deemed “similarly situated”, the individuals
with whom … [Complainant] seeks to compare … [his]
treatment must have dealt with the same supervisor, and
have been subject to the same standards, and have
engaged in the same conduct without such differentiating
and mitigating circum-stances that would distinguish
their conduct or the employer’s treatment of them for it.
Mitchell v. Toledo Hospital, 59 FEP Cases 76, 81 (6th Cir.
1992) (citations omitted).

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15. To be deemed similarly situated, “a precise equivalence in
culpability” is not required; misconduct of “comparable
seriousness” may suffice. Harrison v. Metro. Gov’t. of Nashville and
Davidson Cty., 73 FEP Cases 109, 115 (6th Cir. 1996) (quotations
omitted). Likewise, similarly situated employees “need not hold the
exact same jobs; however, the duties, responsibilities and applicable
standards of conduct must be sufficiently similar in all relevant
aspects so as to render them comparable.” Hollins v. Atlantic Co.,
Inc., 76 FEP Cases 553, 557 (N.D. Ohio 1997), quoting Jurrus v.
Frank, 932 F.Supp. 988, 995 (N.D. Ohio 1993).
16. The decision at the MANCI level to terminate
Complainant was made by Warden Bagley.
17. The decision to discipline LeMaster was made by Warden
Betty Mitchell. (Tr. Vol. I, pp. 17, 70, 72-73; Tr. Vol. II, p. 87;
Comm. Ex. 14)
18. The decision to discipline Porter was made by Warden
Ralph Coyle. (Tr. Vol. I, p. 76; Tr. Vol. II, p. 93)

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19. Smith was an employee who worked in food services at
the Richland Correctional Institution at the time she was
disciplined. Smith was disciplined for receiving a package from a
former inmate who is currently under the supervision of the
Department and for failing to immediately report receiving the
package. Smith reported receiving the package sometime between
February 11, 2000 and February 17, 2000.
20. Amero was a CO at Northeast Pre-release Center under
Warden Norman Rose when he was disciplined. (Tr. Vol. I, pp. 80-
81)
21. LeMaster, Porter, Scherer, Amero, and Smith are not
comparables because the decision to discipline them was not made
by Warden Bagley. Mitchell, 964 F.2d at 583.
22. Mansfield CO Ted Sherer (Sherer) and Mansfield Food
Service Coordinator Erika Faulkner (Faulkner) were disciplined by
Warden Bagley.

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23. Sherer was disciplined for making unauthorized
telephone calls for two inmates and also giving donuts to a few
inmates on another occasion. (Tr. Vol. I, pp. 81-82; Tr. Vol. II,
pp. 40-41)
24. Faulkner on one occasion allowed an inmate to braid her
hair.
25. Sherer and Faulkner are not comparables because the
infractions they committed were not the same type (level of severity)
as committed by Complainant.
[An] employer is not guilty of racial discrimination,
unless plaintiff proves that he was treated differently on
account of his race from other employees with the same
work history, committing the same type infraction.
Plumbers & Steamfitters Joint Apprenticeship Comm. v.
Ohio Civ. Rights Comm. (1981), 66 Ohio St.2d 192, 199
(citation and quotations omitted) (emphasis added).
26. The ALJ did not believe the Commission carried its
burden of proof to show Respondent’s reasons for terminating
Complainant were a cover-up to mask an illegal discriminatory
motive based on Complainant’s race.

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RECOMMENDATION
For all of the foregoing reasons, it is recommended the
Commission issue a Dismissal Order in Complaint No. 9147.
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
July 8, 2009