Petition for Writ of Certiorari — Dayton Power & Light Co. v. Ohio Civil Rights Commission

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Text

87-1818.

No.

FEB 5 1988

% LQOSEPH F. SPANIOL, UR,

IN THE

Supreme Court of the United States

October Term, 1987

THE DAYTON POWER AND LIGHT COMPANY,

Petitioner,

vs.

THE OHIO CIVIL RIGHTS COMMISSION, et ai.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the Supreme Court of Ohio

NEIL F. FREUND, Counsel of Record

JANE M. LYNCH

FREUND, FREEZE & ARNOLD

1000 Talbott Tower

131 N. Ludlow Street

Dayton, Ohio 45402

(513) 222-2424

Attorneys for Petitioner

The Dayton Power and Light Company

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

QUESTIONS PRESENTED FOR REVIEW

1. Where there is no nexus’ between racial

comments of a supervisor to a black employee and the

decision to terminate that employee for destruction of

company property, can the comments form the basis for

finding intent to discriminate on the basis of race?

2. Where there is no substantial, reliable or

probative evidence of intent to discriminate, can the Ohio

Civil Rights Commission’s decision finding race

discrimination be upheld?

II.

PARTIES BELOW

Petitioner The Dayton Power and Light Compaiay is

an Ohio Corporation that was Respondent before the

Ohio Civil Rights Commission, Appellant before the Ohio

Court of Common Pleas and Ohio Court of Appeals, and

Appellee before the Ohio Supreme Court.

Respondents Ohio Civil Rights Commission and

Samuel Prather were Appellees in the Ohio Court of

Common Pleas and the Ohio Court of Appeals, and

Appellants before the Ohio Supreme Court.

28.1 STATEMENT

The Dayton Power and Light Company is an Ohio

Corporation, and is a subsidiary of DPL, Inc., also an

Ohio Corporation.

Ill.

TABLE OF CONTENTS

Questions Presented for Review............+-+++: I

Parties to the Proceeding Below................-. II

CE Sw c ccc ccc ccnscacesccsesenecee II

TE INOS gcc cc sc cc ccc caster cccccccees V

Citations to Opinions Below.................+++: 1

Jurisdictional Statement ...............eeeeeeees 2

Constitutional Provisions and Statutes Involved.... 2

I I, og ccs ccnccscccccovccess 3

SI OE POD og oc ccc ccc s ccc cccsccen 5

Reasons for Granting the Writ

I. Since discriminatory intent is required before

a finding of discrimination can be made, there

must be a nexus between racial comments made

by a supervisor and the later discharge of the

black employee for destruction of property .... 9

Il. Where a state adopted federal law as it relates

to employment discrimination, in the absence of

direct evidence of discrimination, the state must

establish by substantial, reliable and probative

evidence that disparate treatment actually

ee ia wks ba bees t oe sec o6 6ae ss 18

aS EE ar 21

IV.

Appendix:

Decision of Ohio Supreme Court (November 10,

SE a 4 wie Rake to drm Sih ak Rh ee Al

Opinion and Final Entry of the Court of Appeals... A5

Decision and Order of the Court of Common Pleas .. Al6

Findings of Fact, Conclusions of Law and Order of

the Ohio Civil Rights Commission—Jn the Matter

of Samuel Prather v. The Dayton Power and Light

Company, Complaint No. 4029 (March 12, 1985).. A24

Ohio Civil Rights Commission— Hearing Examiner's

Findings of Fact, Conclusions of Law, and

Recommendations Jn the Matter of Samuel

Prather v. The Dayton Power and Light Company,

Complaint No. 4029 (December 13, 1984)......... A32

Mandate of the Ohio Supreme Court (November 10,

WE FARA a eb es eK wk Ua eae woo ewok e ns A43

Judgment Entry of the Ohio Supreme Court

ee cso ee A44

Entry of the Ohio Supreme Court Denying Motion

for Rehearing (December 16, 1987) ............. A45

Title VII of the Civil Rights Act, 42 U.S.C.

are od ees Beis etude ss & waSede veel A46

TABLE OF AUTHORITIES

CASES:

Arna v. Northwestern University, 640 F. Supp. 923

ke SSP rye re eer ee ery 16

Blalock v. Metals Trades, Inc., 775 F.2d 703 (6th

OE Sec hc do nvicencdaasas dans heeeresraees 16

Bd. of Trustees v. Sweeney, 439 U.S. 24 (1978) ..... 9

Brooks v. Carnation Pet Food Co., 38 F.E.P. 1663

A reer ere re rere ree eee 12

The Dayton Power and Light Co. v. Ohio Civil

Rights Comm., 33 Ohio St. 3d 73 (1987) ......... 1

Dehorney v. Bank of America, 39 F.E.P. 723 (9th

COE. FIs 6 ont bc cee ds ced ndsadeaekseeanees 12,15,16

Erebia v. Chrysler Plastic Products Corp., 772 F.2d

1250 (6th Cir. 1985), cert. denied, 106 S. Ct. 1197

ti PPPePrrrererrrere er er ere 10,11

Furnco Construction Co. v. Waters, 438 U.S. 567

SP ere errr Tr rrr rr re. Pere 9

Goostree v. State of Tenn., 796 F.2d 854 (6th Cir.

SO in ccccckecbuebcabsnskduencaeekst i caee 10,15

Henson v. City of Dundee, 682 F.2d 897 (11th Cir.

en ere rr mr Ey ier pert eh ie 15

Howard v. National Cash Register Co., 388 F. Supp.

CE Ge. Se BFE os eg hc oath enscesesddvanes 11

International Brotherhood of Teamsters v. United

ne RS & Gy | ne rere 15

Jeppsen v. Winnicke, 629 F. Supp. 740 (D. Ala.

CE bs cee Res RAE AD Re ee 14

Levine v. Navapache Hosp., 25 F.E.P. 1420 (D.

PN PEs on kb oe ee oe eek eee 11

McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct.

gm 3 ef 8: RP er rr erre tS 9,10

VI.

Meiri v. Dacon, 759 F.2d 989 (2nd Cir. 1985) ....... 16

Meritor Savings Bank v. Vinson, ' —

BOS Ge Ga Ba 0k 6 barca kca che seasccecace 14

Mitchell v. Keith, 752 F.2d 385 (9th Cir. 1985) . . 13,14,16

Montgomery v. Campbell Soup Co., 647 F. Supp.

1372, 42 F.E.P. 721 (N.D. Ill. 1986) ............ 13,14

Mt. Healthy City School District Bd. of Ed. v.

EPOER, ABO Us Bee BT E so ccccccncccedsnesas 10,16

Plumbers and Steamfitters Joint Apprenticeship

Committee v. Ohio Civil Rights Commission,

66 Ohio St. 2d 192, 20 Ohio Op. 3d 200, 421

PRA Ge GUID: 600s 906406 0n0nsasaducenkss 3,9,18

Rogers v. E.E.0.C., 454 F.2d 234 (5th Cir. 1971).... 17

Schroeder v. Schock, 42 F.E.P. 1112 (D.C. Kan.

EE 60.06 6:00465406500600600605 044000 beads 15

Texas Dept. of Community Affairs v. Burdine, 450

deh BOD GUNES 6.6 0-6. 04.060560460%0aRKE eee 10,16,19

Torres v. County of Oakland, 758 F.2d 147 (6th Cir.

PS 6 0:664:6060.0000608%000500R6R aOR 16

Weatherspoon v. Andrews Co., 32 F.E.P. 1226 (D.C.

GI SON 6 6 oso escsecescscecnscencavnse 11,12,13,14

UNITED STATES CONSTITUTIONAL PROVISIONS:

28 U.S.C. §125713) occ ccc cece eee eee 2

42 U.S.C. $1981 occ cc cece cee eee 11

42 U.S.C. §2000e cece cece eee 2,3

a ee

enti, ise ee

VIL.

STATUTES:

Ohio Rev. Code §4112.02¢A).... 2... 6... cece eeeee 2,3,9

SECONDARY AUTHORITIES:

Note, Employment Discrimination-Defining an

Employer's Liability Under Title VII for

On-the-Job Sexual Harassment: Adoption

of a Bifurcated Standard, 62 N.C. L. Rev. 795

CE kc n'ee AesahaGnekeeuncceesececdutnaeees

The Standard of Causation in the Mixed-

Motive Title VII Action: A_ Social

Perspective, 82 Colum. L. Rev. 292

( errr yer rrrry rr; tert 15,16

No.

IN THE

Supreme Court of the United States

October Term, 1987

THE DAYTON POWER AND LIGHT COMPANY,

Petitioner,

vs.

THE OHIO CIVIL RIGHTS COMMISSION, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the Supreme Court of Ohio

CITATIONS TO OPINIONS BELOW

The citation to the decision of the Ohio Supreme

Court is The Dayton Power and Light Co. v. Ohio Civil

Rights Comm. (1987) 33 Ohio St. 3d 73, set forth in

Appendix at p. Al. The decisions of the Court of

Appeals, the Common Pleas Court and the Ohio Civil

Rights Commission are unreported and are set forth in

the Appendix, infra, at pages A5, Al6 and A24

respectively.

JURISDICTIONAL STATEMENT

Petitioner, The Dayton Power and Light Company,

prays that a Writ of Certiorari issue to review the

judgment of the Ohio Supreme Court entered on

November 10, 1987, which reversed the decision of the

Ohio Court of Appeals, Second Appellate District, and

reinstated the decisions of the Montgomery County

Court of Common Pleas and the Order of the Ohio Civil

Rights Commission. Petitioner's Motion for Rehearing

was denied by the Ohio Supreme Court on December 16,

1987.

Jurisdiction of this Court is invoked pursuant to 28

U.S.C. §1257(3).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§2000e. See Appendix at-p. A46.

Ohio Rev. Code Ann. §4112.02(A). See Appendix

at p. A5l.

STATEMENT OF THE CASE

This employment discrimination case was first heard

by the Ohio Civil Rights Commission on July 18, 1984.

The applicable standards of review for this action brought

pursuant to Ohio Rev. Code Ann. §4112, et seq., are the

standards arising from case law interpreting Title VII of

the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq.

Plumbers & Steamfitters Joint Apprenticeship

Committee v. Ohio Civil Rights Commission, 66 Ohio St.

2d 192 (1981). In Plumbers, the Ohio Supreme Court

expressly adopted federal law as the body of law

governing employment discrimination actions. Federal

question jurisdiction arises because of this express

adoption of federal law. From the beginning of this case,

the issue has been whether the Ohio Civil Rights

Commission and later the Ohio Supreme Court have

properly applied the standards enunciated by the United

States Supreme Court.

Respondent Samuel Prather filed a charge of

discrimination with the Ohio Civil Rights Commission

alleging that Petitioner has discriminated against him by

discharging him because he was black. After a hearing,

the hearing officer recommended a finding of race

discrimination. Appendix at p. A32. The _ hearing

examiner found, in part, ‘‘In this case there was direct

evidence of discriminatory intent by first line

supervisors. This evidence consisted of biased

statements made before and after complainant’s

discharge by Mason and a statement by Hackathorn

that he had racist tendencies.’ Jd. at p. A38. The Ohio

Civil Rights Commission adopted this recommendation

and issued a Final Order on March 12, 1985. Appendix

at p. A29.

Petitioner filed a timely appeal to the Montgomery

County Common Pleas Court and asserted that the

Commission’s decision was not supported by substantial,

reliable and probative evidence. However, the

Montgomery County Common Pleas Court affirmed the

Commission holding, in part, ‘Even if it is assumed that

the Commission did not establish a different standard of

treatment for blacks and similarly situated whites, the

evidence of the discriminatory intent of the supervisors

is enough to make out a case of disparate treatment.

(Citations omitted).’’ Appendix at p. A23. Petitioner filed

a timely appeal with the Montgomery County Court of

Appeals, Second Appellate District, asserting that the

comments could not form the basis of a finding of

discriminatory intent without a nexus to the discharge

decision, and asserting that the Commission's decision

was not supported by the requisite evidence. The Court

of Appeals agreed and held:

Inferences_ reflect judicial and common _ sense

evaluations of probabilities. For something to be

probable it must at a minimum be more likely than

not. There must also be a rational connection

between the proven predicate fact and the fact

inferred. It is simply not reasonable to infer

discriminatory motive on the part of DP&L from

proof of racist statements by relatively low level

management under the facts of this case.

Appendix at p. Al3. The Court also found that the

decision of the Commission was not supported by

substantial, reliable and probative evidence. The

Respondents filed a petition for certiorari with the Ohio

Supreme Court, which was granted. On November 10,

1987, the Ohio Supreme Court reversed and held that

evidence of racist comments and evidence of disparate

treatment supported the Commission's finding.

Appendix at p. A2. Petitioner filed a Motion for

Rehearing, which was denied on December 16, 1987.

" POT EN -

REMOTE TI

STATEMENT OF THE FACTS

Samuel Prather was a black employee who was

discharged for destroying company property by Robert

Ralston, the manager of the Stuart Power Plant. During

his twelve and one-half years with the company, Prather

was promoted many times by white supervisors,

including Mike Mason, who was accused of making

racially derogatory comments to Prather. Mason,

according to testimony received at the hearing, had made

comments like “lazy black bastard’’ and ‘nigger’;

comments which were denied by Mason. Another white

supervisor, Bob WHackathorn, told Prather he was

prejudiced but working on it.

Despite these alleged comments by Mason, Prather

was fairly evaluated and promoted during his

employment with the company until he deliberately cut a

hose causing nineteen other workers to stand idle on

double-time until the hose was repaired. The record

established that on June 2, 1982, Prather received both

good and satisfactory reviews by Mason, who also

reported that ‘‘Prather continues to do well as acting

crew foreman.”’

Prather was actually terminated by Robert Ralston,

the manager of the plant. Prather testified that he had

always had a good relationship with Ralston and would

often go to Ralston to discuss problems other black

employees had. Prather admitted that Ralston did not

have anything against him because he was black. He also

admitted that even though he had this open relationship

with Ralston, and even though he claimed that racists

comments were made to him by supervisors before the

hose-cutting incident, he never reported any of these

comments to Ralston because he ‘‘didn’t think that much

of them.”

On Sunday, September 12, 1982, Prather and

nineteen other employees were being paid double time to

work on a maintenance crew on Unit 3. On that day,

Prather was observed cutting a hose that was needed for

the job. When asked if he had cut the hose Prather, at

first, denied it. Prather continued to lie about the fact

that he cut the hose until the arbitration hearing.

Prather even lied to the Ohio Civil Rights Commission in

his sworn affidavit. However, Prather finally admitted

that the fact reported by his supervisor Mason and by

another witness, Bob Hackathorn, was, in fact, true. He

did cut the hose as observed and objectively reported by

supervisor Mason and Bob Hackathorn. The reports

submitted by Mason and Hackathorn were made

pursuant to their duty as supervisors.

After Mr. Mason and Mr. Hackathorn observed

Prather cutting the hose, Mr. Mason reported that true

fact to his supervisor, Dale Marshall. The report

submitted by Mason to Marshall read as follows:

On Sunday morning, September 12, 1982, while Bob

Hackathorn and myself were standing in the office

area of the West Pod, we witnessed Sam Prather

cutting a new hose in the Unit #3 Elec/Tech Shop.

Sam Prather was then approached and made aware

that he had been seen cutting the hose. He was

instructed that further action would be taken.

This report was dated September 14, 1982.

On September 12, 1982, Robert Hackathorn reported

the hose cutting incident to Dave Elkins. His report

stated:

On Sunday morning, while Dan Dudley was

making up water hoses to be used at the

precipitator for washing insulators, one of the hoses

was punched full of holes. While Danny was getting

the fittings for the new hose to replace the damaged

Ma eo WONERES,

one, I was in my office with Mike Mason. I observed

Sam Prather moving the other new hose onto the

bench in the shop. Upon closer observation, I saw

Sam Prather using an object to cut the hose. I then

asked Mike Mason to observe his action with me.

Sam Prather had an object in his right hand that

had the hose depressed as in cutting. Mike Mason

and I observed Sam’s right hand moving in a

cutting fashion. We immediately approached Sam

and told him we had observed his actions. We then

examined the hose and found that it had been cut.

Based upon these reports Elkins recommended to

Ralston that Prather be terminated. While there was

absolutely no evidence submitted by the Commission

that Elkins was a racist, there was some suggestion that

Elkins and Prather had a personality conflict in the past.

Whatever personality conflict that may have existed

between Elkins and Prather was not proven to be related

to race and did not effect Prather’s ability to receive

favorable reviews or promotions from Mason.

The handling of the Prather incident did not

constitute disparate treatment. There was no evidence of

disparate treatment presented by the Commission. There

was a white employee, Danny Doyle, who came forward

just before the Prather hearing before the Commission

started and reported that at one time, quite some time

before Prather’s incident, he had also cut a hose. As soon

as management was made aware of the perpetrator of

this destruction of property, Doyle, like Prather, was

placed on indefinite suspension and then fired. The

evidence established that at the time of the Doyle

incident there were no eyewitnesses that would come

forward, and that when management followed up on the

rumor that Doyle had cut the hose, Doyle denied it.

Without such witnesses or an admission to verify this

incident, management was unable to discipline.

Earlier in the day that Prather was observed cutting

the hose, another still unknown employee also cut a hose.

No evidence as to this employee’s identity was ever

given to the company. Mason reported to Elkins that he

was not aware of the first hose cutting incident before

the Prather incident. Hackathorn testified that he was

sprayed with water from the first hose incident but knew

no employee would admit cutting the hose unless

observed.

While miscellaneous incidents of horseplay, not

involving the destruction of property, were recounted by

some employees at the hearing, the facts established that

no employee, white or black, was disciplined for that sort

of activity. In fact, Prather, who had an ‘open door’”’

relationship with Ralston, never reported these incidents

to Ralston. None of the incidents brought up at the

hearing were reported to management. These incidents of

horseplay were not reported to management for obvious

reasons.

The evidence submitted to the Commission

established that white employees had been fired for

destruction of company property or injuring another

employee. One employee, a white supervisor, pulled a

chair out from under another employee and was fired.

Another white employee who kicked a door and broke a

glass was fired.

In Prather’s case, because of his intentional act,

nineteen employees on double time were left idle until the

hose could be repaired. The seriousness of damaging

company property was always stressed to the employees,

because of the fact the company is a public utility under

constant cost scrutiny. In fact, destruction of property

constitutes a violation of the Employees Code of

Conduct.

SOS, ore

REASONS FOR GRANTING THE WRIT

I. Since discriminatory intent is required before a

finding of discrimination can be made, there must be

a nexus between racial comments made by a

supervisor and the later discharge of the black

employee for destruction of property.

The Supreme Court of Ohio has held that case law

interpreting Title VII of the Civil Rights Act of 1964 is

fully applicable to cases involving alleged violations of

the Ohio Civil Rights Statute, $4112.01(A). Plumbers and

Steamfitters Joint Apprenticeship Committee v. Ohio

Civil Rights Commission, 66 Ohio St. 2d 192, 20 Ohio

Op. 3d 200, 202, 421 N.E.2d 128 (1981) (hereinafter cited

as Plumbers, 421 N.E.2d at ). In Plumbers, the

Ohio Supreme Court held that “the starting point for

judicial inquiry into complaints alleging disparate

treatment on the basis of race is McDonnell Douglas v.

Green (1973), 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d

688."" 421 N.E.2d at 131. Once a prima facie case has

been established pursuant to McDonnell Douglas, the

burden of going forward shifts to the employer to

articulate a legitimate, nondiscriminatory reason for its

action. Furnco Construction Co. v. Waters, 438 U.S. 567

(1978). Once such a reason is articulated, the employer

has no further burden. Jd. The burden of proof then

shifts back to the employee, or in this case, the

Commission, to establish that the reason given by the

employer is a pretext for discrimination. Bd. of Trustees

v. Sweeney, 439 U.S. 24 (1978).

The fatal flaw in the Commission’s case is the failure

of the Commission to prove that the legitimate

nondiscriminatory reason advanced by the company was

a pretext for discrimination. See Bd. of Trustees v.

Sweeney, 439 U.S. 24 (1978). At all times, the

Commission has the burden of proving that the employer

had specific intent to discriminate against Prather.

Texas Dept. of Community Affairs v. Burdine, 450 U.S.

248, 256 (1981); McDonnell-Douglas Corp. v. Green, 411

U.S. 792, 805, n.18 (1973) (Plaintiff must demonstrate

by competent evidence that whatever the proffered

reasons for his rejection, ‘‘the reason was in reality

racially premised”’). Furthermore, because of the specific

intent requirement, the unlawful element must be more

than a ‘“‘discernible factor; it must be the motivating

factor.’’ Burdine, supra at 450; Mt. Healthy City School

Dist. Bd. of Ed. v. Doyle, 429 U.S. 273, 285 (1977);

Goostree v. State of Tenn, 796 F.2d 854, 863 (6th Cir.

1986) (“‘The mere showing that ‘sex was a factor’ rather

than a ‘but for’ factor is insufficient to establish liability

under Title VII’’).

Essentially what has happened in this case is that

intent was presumed solely from the fact that

supervisors had made racist comments. The Ohio

Supreme Court ignored the facts that the reports

submitted by these supervisors were objective and true,

that white employees were discharged for destroying

company property, and that Prather had always been

fairly treated by these allegedly racist supervisors in the

past until he deliberately destroyed company property.

Although the law clearly requires a finding of

discriminatory intent, varying results have occurred

in cases where racial comments have occurred. In Erebia

v. Chrysler Plastic Products Corp., 772 F.2d 1250 (6th

Cir. 1985), cert. denied, 106 S. Ct. 1197 (1986), the Sixth

Circuit Court of Appeals emphasized that there must be

evidence that the management knew of the racial slurs

and failed to act before liability could attach. In this case

at bar, the evidence is undisputed that the management

Aa SCI ISE potnw

of Petitioner had no notice or knowledge of any racial

comments or hostile atmosphere and that Prather

himself never reported any of the comments that he

claims exhibited a discriminatory animus. Thus, unlike

the facts in Erebia that established that the Plaintiff had

complained about the comments to management and

management failed to act, no such facts exist in this

case.

In Howard v. National Cash Register Co., 388 F.

Supp. 603 (S.D. Ohio 1975) the Plaintiff filed a

discrimination suit pursuant to 42 U.S.C. §2000(e) et seq.

and 42 U.S.C. §1981. The facts of Howard include the

fact that Plaintiff made 12 complaints to management

about other employees who had made jokes about black

people, references to a black person, not Plaintiff, as a

‘nigger’ and other race related comments. The Court

held that the totality of these remarks indicated ‘“‘little

more than ‘locker room conversation and humor’.’’ Jd. at

605. There was no evidence that management failed to

investigate the complaints or proceed in a less than

diligent manner. Jd. The corporation can not be held for

the unauthorized acts of its workers and can not be

required to ‘‘discharg{e] all Archie Bunkers in its

employ.” Jd. at 606. See also, Levine v. Navapache

Hosp., 25 F.E.P. 1420 (D. Ariz., 1981) (“We have not yet

reached the point where we have taken from individuals

the right to be prejudice, so long as such prejudice does

not evidence itself in discrimination.”’).

Respondents relied heavily on the Colorado district

court case of Weatherspoon v. Andrews Co., 32 F.E.P.

1226 (D.C. Colo. 1983). In Weatherspoon, the report by

the racist supervisor lacked objectivity and truthfulness.

This is the distinguishing fact. The supervisor in

Weatherspoon recommended dismissal without valid

cause. /d. at 1227-28. Although the supervisor reported

that Weatherspoon’s work was marginally acceptable,

that report was ‘‘contradicted -by specific and credible

testimony from third party witnesses who [had] no

apparent motive to falsify.’’ Jd. Because of these facts,

the defendant in Weatherspoon was unable to articulate

a legitimate nondiscriminatory reason for the dismissal.

Id.

In the case at bar, Petitioner proved its

nondiscriminatory reason for Prather's dismissal. Prather

intentionally cut the hose and has admitted that fact.

The reports submitted by Mason and Hackathorn were

not similar to the type of reports in Weatherspoon.

Mason and Hackathorn’s reports contained only objective

facts. There were absolutely no references to Prather's

character and no recommendations for discipline or

discharge in the reports submitted by Mason and

Hackathorn. See also, Dehorney v. Bank of America, 39

F.E.P. 723, 732 (9th Cir. 1985) (Racial animus was not

found where supervisor's report was objective and lacked

any racial overtones, and where the supervisor had little

involvement in the decision to terminate).

The fact a report may contain a_ subjective

recommendation in addition to the objective fact is also

an insufficient fact from which to infer intent to

discriminate because there was no “substantial proof”

that the subjectivity was racially biased. Brooks v.

Carnation Pet Food Co., 38 F.E.P. 1663, 1665 (W. O.

1985). In Brooks, the Court held:

While basing employment decisions on such hard-to-

measure attributes as loyalty [ie. ‘being a team

player’], working through the proper channels, and

self aggrandizement necessarily injects subjective

factors into personality matters, the Court cannot

- ee

conclude that these reasons for adverse action in the

present case were pretext for discrimination. The

Court has carefully scrutinized the evidence for

signs of racial animus but finds instead that

personality conflicts [were the reasons for the

negative remarks]. .. . /d.

The Commission also relied upon the decision of

Mitchell v. Keith, 752 F.2d 385 (9th Cir. 1985) in an

attempt to support Weatherspoon. However, Mitchell,

like Weatherspoon, is inapplicable on its facts. In

Mitchell, the employer failed to articulate a legitimate

nondiscriminatory reason for Mitchell's discharge. In

fact, the racist supervisor tricked the plaintiff into

breaking the rules and then reported him. Jd. at 388. The

supervisor told the plaintiff that he could leave early and

to just mark his time*cards for the full shift. Jd. The

plaintiff did so, and the supervisor reported him for

falsifying records. /d.

Title VII cases are fact sensitive. The Commission's

reliance of these cases with clearly distinguishable facts

was misplaced. In Mitchell, just as in Weatherspoon, the

report submitted by the racist supervisor was simply

false. That is not the case here. The objective reports

submitted by Mason and Hackathorn were true.

The decision of Montgomery v. Campbell Soup Co.,

647 F. Supp. 1372, 42 F.E.P. 721 (N.D. Ill. 1986),

is likewise inapplicable for the proposition the

Commission advances. In Campbell, the court held that a

plaintiff, who attempted to prove that a supervisor's

racial comment was evidence of discriminatory motive,

failed to create a genuine issue of fact as to the reason

for its termination. Jd. at 1381, 727. In fact, the Courts

main reason for granting the employer summary

judgment was that the plaintiff never thought anything

of the alleged racial remarks. Jd. at 1380, 726. Therefore,

Montgomery essentially reaches a conclusion that is

directly opposite from the Commission’s argument: the

fact that a supervisor made a racist comment does not

automatically suggest that his report was racially

motivated, or that the final termination decision was

marred with discrimination intent; especially when the

employee thought little of the allegedly racist comments.

Id.

As illustrated by reliance upon Weatherspoon,

Mitchell, and Montgomery, the Commission pushed for

and the Ohio Courts essentially adopted a strict liability

argument. That is, if racial epithets are uttered by

reporting, non-recommending supervisory personnel, then

those remarks automatically imply that the employer,

who was not biased, terminated the employee with

discriminatory intent. If this is true, the Commission

would be relieved of establishing a nexus between the

alleged racial animus (the remarks by Mason and

Hackathorn) and the adverse employment act (the

dismissal); legitimacy of the nondiscriminatory reason

would be irrelevant. On the whole, all the facts except

the comments would be irrelevant.

The Commission also relied upon the concurring

opinion in Meritor Savings Bank v. Vinson, USS.

, 106 S. Ct. 2399 (1986). Confronted with a hostile

work environment/sexual harassment case, the majority

opinion in Meritor rejected the use of a strict liability

standard in hostile environment cases. Jd.' The

Commission's citation to the concurring opinion for the

opposite proposition obviously is an effort to ignore the

actual holding of the majority of the Court.

1. By holding that employers are not automatically liable for

sexual harassment, Meritor overrules Jeppsen v. Winnicke, 629

F. Supp. 740 (D. Ala. 1985) another case offered by the Commission

to support their strict liability argument.

ero

a ee ee

—— : > . .

ee Sey as

The Commission also relied upon Schroeder uv.

Schock, 42 F.E.P. 1112 (D.C. Kan. 1986), to support its

strict liability argument. However, although Schroeder

was a termination discrimination case, it is

distinguishable from the case at bar because it was

treated as a quid pro quo sexual harassment case. /d. at

114. (In a quid pro quo sexual harassment case, the

supervisor relies on his authority to gain sexual

consideration from the employee.) Note, Empleyment

Discrimination-Defining an Employer's Liability Under

Title VII for On-the-Job Sexual Harassment: Adoption of

a Bifurcated Standard, 62 N.C. L. Rev. 795 (1984). Such

holdings have not been applied to cases with facts

similar to the present case.

Under Title VII, the proper interpretation of the law

is that an employer ‘‘may be held liable for the

discriminatory actions of its supervisors which affect the

tangible job benefits of an employee on the basis of

race."’ Henson v. City of Dundee, 682 F.2d 897, 909 (11th

Cir. 1982). However, this operation of the doctrine of

respondeate superior should not dissuade the court from

requiring the Title VII plaintiff to prove his case,

particularly where the employer had nondiscriminatory

reasons for pursuing the course it did. Thus, Plaintiff

still has to show that the reasons advanced by the

defendant were pretext in light of the entire record. To

establish pretext, the Commission must show that the

evidence of racial bias—the racial epithets were the

motivating factors in the employment decision to

terminate the employee—Prather. See International

Brotherhood of Teamsters v. United States, 431 U.S. 324

(1977); Dehorney v. Bank of America, 39 F.E.P. 723

(1985); Goostree v. State of Tenn., 796 F.2d 854, 863 (6th

Cir. 1986). See also, The Standard of Causation in the

Mixed-Motive Title VII Action: A Social Perspective, 82

; 16

Colum. L. Rev. 292 (1982). The reason behind this

causation requirement is the fact that the plaintiff must

ultimately prove intent to discriminate in a Title VII

action. See Texas Dept. of Community Affairs v.

Burdine, 450 U.S. 248 (1981).

In the present case, since the Ohio Supreme

Court adopted federal law, it was incumbent upon the

Ohio Supreme Court to find a close nexus between the

racial epithets uttered by Mason and Hackathorn and

the decision to terminate Prather in order to

find that the Commission met its burden of proof.

See Dehorney, supra, at 724. In assessing

whether the comments provided the sufficient nexus or

were a determining factor, the courts have looked to

many factors: In Meiri v. Dacon, 759 F.2d 989, 997 (2nd

Cir. 1985), the Court recognized that ‘‘the reasonableness

of the employer’s reasons for discharge is, of course,

probative of the question whether they are pretexts.’’ Jd.

at 997, n.13. In Mitchell, supra, the Court focused on

whether the report made by the wrongdoer was truthful.

Moreover, “evidence of bias by one officer of an

employer is not evidence that the same bias motivated a

decision by a different, higher ranking officer.’’ Arna v.

Northwestern University, 640 F. Supp. 923 (N.D. IIL.

1986). The courts have also considered whether the same

decision would have been reached absent’ the

discriminatory conduct. See Mt. Healthy City School

Dist. v. Doyle, 429 U.S. 273 (1977); Blalock v. Metals

Trades, Inc., 775 F.2d 703 (6th Cir. 1985). The racist

supervisor's involvement in the termination decision has

also been considered. Dehorney, supra; Arna, supra. In

addition, it has been well settled that mere utterances of

a racial comment does not trigger a Title VII violation.

Torres v. County of Oakland, 758 F.2d 147 (6th Cir. 1985)

(“While continuing use of racial or ethnic slurs would

ay ee!

violate Title VII, occasional or sporadic instances of such

conduct would not). cf. Rogers v. E.E.0.C., 454 F.2d 234

(5th Cir. 1971) (Hostile environment case).

Petitioner submits that an application of all of these

factors to this case establishes that the Commission

failed to meet its burden of proving discriminatory

intent. The reasonableness of the reason given for

Prather’s discharge cannot be disputed and has never

been disputed by the Commission. Destruction of

company property is a common ground for discharge and

becomes a more egregious offense in the case of a utility

company which must constantly be cost conscious so it

can provide essential services at the lowest cost.

Mason and Hackathorn submitted a _ factually

accurate objective report with absolutely no subjective

comments, recommendations, or racial slurs. They did

not decide to terminate Prather; rather that decision was

made by Ralston, who had no discriminatory animus or

knowledge of Mason and Hackathorn’s comments. The

report by Elkins to Ralston recommending the discharge

was objectively based in fact. The subjective portions of

that report were not proven to be Teeny motivated in

any way by the Commission.

Although the law is clear that discriminatory intent

is required, in the situation where racist comments are

made by low level supervisors, the law should be clear

that those comments alone are not sufficient without

proof by the employee that there is a nexus or causal

relationship between the comments and the decision to

terminate.

II. Where a state adopted federal law as it relates to

employment discrimination, in the absence of direct

evidence of discrimination, the state must establish

by substantial, reliable and probative evidence that

disparate treatment actually occurred.

The standards enunciated previously required the

Ohio Courts to determine whether the Commission had

substantial, reliable and probative evidence to support

its findings of disparate treatment pursuant to federal

law. See Plumbers, supra.

There was no evidence of disparate treatment in this

case. The entire record reflects the fact that no employee,

white or black, was disciplined for horseplay. The facts in

the record do establish that two white employees were

discharged for destruction of property and injuring

another employee. Thus, the facts before the Commission

were that one white supervisor was discharged for

pulling a chair out from under another employee, one

white employee was discharged for kicking a door and

breaking a glass, and one black employee, Prather, was

discharged for cutting a hose. The cut hose caused the

plant to be shut down, with nineteen employees on

double time.

In these three cases, discipline was ordered as soon

as the event occurred and the wrongdoer was known.

The company can not discipline employees for

wrongdoing never reported. As the employees admitted

during the hearing, they never reported any of the

incidents they recounted at the hearing to the

management. The reason the incidents were never

reported is obvious. These employees, white or black

alike, did not want to be disciplined. There was no

evidence submitted that the employer avoided acquiring

knowledge of horseplay incidents.

The Commission argued that the Doyle incident is

evidence of disparate treatment. This argument was not

even included in the Commission’s findings of fact and

was correctly rejected by the Court of Appeals.

No employee, white or black, witnessed Doyle cut

the hose. No employee, white or black, reported Doyle.

Doyle himself denied the act. The company could not

discipline anyone without any proof as to who cut the

hose. Doyle only came forward in a last ditch effort to

help Prather. After he admitted he cut the hose, he was

fired. Arbitration required the reinstatement.

In order to prevail, the Commission was required to

prove that the employer intended to discriminate against

Prather. Texas Dept. of Community Affairs v. Burdine,

450 U.S. 248, 256 (1981). Without substantial, reliable

proof that the Company treated white employees

differently than black employees, the Commission failed

to establish that the Company intended to discriminate

against Prather.

The Court found that disparate treatment existed

even though the facts established that the employer did

not have knowledge of the alleged acts of wrongdoing.

The Commission asserted that even though the Company

did not know about the incidents, it was nonetheless

guilty of discrimination because it did not discipline. The

fallacy in that argument is clear. Without knowledge of

the wrongful act there can be no discipline. There was no

evidence that the employer avoided acquiring knowledge.

In fact, the facts established that the company

discharged two white employees and P-ather.

Moreover, the focus of the disparate treatment

theory is that evidence of disparate treatment raises an

inference of an employer's intent to discriminate. Jd. The

focus is upon what actions were knowingly taken by the

employer. Jd. Fundamental to this focus is a requirement

that the employer have knowledge of the wrongful acts

and then either fails to act or acts in a discriminatory

manner. Without knowledge of the wrongful acts, the

employer’s inaction or action can not be the basis for the

discriminatory inference. It is logical and fair to evaluate

the employer’s actions after determining if the employer

had knowledge of the wrongful acts. To do otherwise

would be equal to adopting a strict liability theory that

would render an employer liable for its inaction against

wrongful acts by its employees without regard for

whether the employer knew of these wrongful acts.

There were no evidentiary conflicts involved as to

this issue. There was simply no substantial credible

evidence that established disparate treatment. The

Commission did not follow the law. The facts established

that two white employees and Prather were discharged

for similar acts, that no employees, white or black, were

disciplined for horseplay, and that Doyle was disciplined

as soon as the company found out he also cut a hose.

There was no evidence that the legitimate

nondiscriminatory reason for Prather’s discharge, i.e.,

destruction of company property, was, in any way, a

pretext for race discrimination.

CONCLUSION

Strict liability can not be used in cases where low-

level supervisors make racist comments to an employee,

who is subsequently discharged. Such a holding would

discard the requirement of discriminatory intent. There

must be proof that the comments caused the decision to

terminate the employee.

The facts supporting a discrimination finding must

be facts that are supported by substantial, reliable, and

probative evidence and must be in accord with federal

law since that body of law was adopted by the state.

Evidence that horseplay occurred but was never reported

to the employer, without evidence that the employee

avoiding finding out the facts, cannot be used against

the employer. Obviously, the employer can _ not

dicipline for acts of which it has no knowledge.

Moreover, no disparate treatment can be found if no

employee, white or black, was discharged for horseplay.

This must be especially true when the evidence

established that two white employees and Prather were

discharged for destruction of property. Unreported,

undisciplined incidences of horseplay by white and black

employees can not be a basis for a finding of disparate

treatment.

Respectfully submitted,

NEIL F. FREUND, Counsel of Record

JANE M. LYNCH

’ FREUND, FREEZE & ARNOLD

1000 Talbott Tower

Dayton, Ohio 45402

(513) 222-24243

Attorneys for Petitioners

- Al

APPENDIX

DECISION OF OHIO SUPREME COURT

(Decided November 10, 1987)

No. 87-26

THE SUPREME COURT OF OHIO

COLUMBUS

DAYTON POWER & LIGHT COMPANY,

Appellee,

Vv.

- OHIO CIVIL RIGHTS COMMISSION, et al.,

Appellants.

[33 Ohio St. 3d 73]

Civil Rights Commission—Appeal in court—Order

upheld, when—Findings of commission supported by

reliable, probative, and substantial evidence on the

record—R.C. 4112.06(E).

APPEAL from the Court of Appeals

for Montgomery County.

Appellant, Samuel R. Prather (‘‘Prather’’), was

employed by the Dayton Power & Light Company

(‘appellee’). Prather commenced working for appellee on

March 19, 1970. During his course of service with

appellee, Prather was promoted until he reached the

highest position in his rank, First Class Technician. The

only discipline received by Prather during his over

twelve years of service with appellee was a one-day

suspension. Prather is black.

All of the persons with whom Prather worked,

including his immediate supervisor, his foreman, the unit

manager and the station manager are all white. A group

of these employees, including Prather, were, on Sunday,

September 12, 1982, engaged in ‘‘horseplay’’ which

resulted in the damaging of property of appellee. Prather

was directly involved in and responsible for some of the

damage that occurred. For causing damage, Prather was

discharged effective September 13, 1982.

On February 28, 1983, Prather filed a charge with

appellant Ohio Civil Rights Commission (‘‘commission’’)

alleging that appellee had committed an act of

discrimination. Prather contended he was discharged

because of his race. After an investigation and hearing,

the commission concluded that reliable, probative, and

substantial evidence supported the charge. Appellee was

found to have unlawfully discharged Prather because of

his race.

Appellee appealed the commission’s order to the

Court of Common Pleas of Montgomery County. The

trial court affirmed the commission's determination,

finding that it was supported by reliable, probative and

substantial evidence of record. Upon appeal, the court of

appeals reversed the order of the trial court on the basis

that there was no reliable, probative and substantial

evidence in the record to support a finding that appellee

had intentionally discriminated against Prather. Both

Prather and the commission appealed to this court.

The cause is now before this court upon the

allowance of a motion to certify the record.

Freund, Freeze & Arnold, Neil F. Freund and Jane M.

Lynch, for appellee.

Anthony J. Celebrezze, Jr. attorney general, and

Jeffrey B. Rubenstein, for appellant Ohio Civil Rights

Commission.

Kenneth W. Scott and Edward S. Monohan, for

appellant Prather.

Per Curiam, R.C. 4112.06(E) provides that “‘[t]he

findings of the commission as to the facts shall be

conclusive if supported by reliable, probative, and

substantial evidence on the record ***.”” See, also,

Plumbers & Steamfitters Commt. v. Ohio Civil Rights

Comm. (1981), 66 Ohio St. 2d 192, 20 0.0. 3d 200, 421

N.E. 2d 128, paragraph two of the syllabus. Where such

evidence exists, it is improper for a court to substitute

its judgment for that of the administrative agency.

This court has conducted a thorough review of the

record. We find that a number of like incidents of

horseplay as that involved in this case, including damage

of company property, had previously occurred. All of the

participants in those activities were white and none had

ever been discharged for participating in the events.

Some of the incidents were far more serious than that

with which Prather was charged.

Evidence was also presented that some of those

persons, all white, who were involved in the supervisory

and termination ‘‘chain of command” of Prather, had

previously admitted, in some cases, that they were

racists and, by uncontroverted testimony, were shown to

have exhibited racist behavior. It would serve no purpose

here to relate all the particulars of those incidents,

including behavior and language directed toward Prather

that are contained in this record.

Suffice it to say that it is the judgment of this court

that the record does, in fact, contain reliable, probative,

and substantial evidence supporting the findings and

orders of the commission and the trial court.

Accordingly, the judgment of the court of appeals is

reversed and the orders of the commission and the court

of common pleas are reinstated.

Judgment reversed.

Moyer, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS.

WRIGHT and H. Brown, JJ., concur.

LocHER, J., concurring. I concur completely with

today's decision. I write separately to add an observation

of my own.

As I have stated before, utility companies are quasi-

public corporations and possess the characteristics of

monopolies. The public interest increases with a

monopoly for, as such, its actions are not regulated by

the strictures of the marketplace. Central State

University v. Pub. Util. Comm. (1977), 50 Ohio St. 2d

175, 179-180, 4 0.0. 3d 373, 375, 364 N.E. 2d 6, 9

(Locher, J., dissenting). This is a point I have often

stressed in rate cases before this court. I also believe it is

a salient point to be made in considering cases such as

the one at bar.

As quasi-public corporations, utility companies

should be at the forefront in maintaining non-

discriminatory policies and fostering equal opportunity

in the workplace. The facts of this case revealing such

discrimination and needless childish actions are, in a

word, appalling.

OPINION AND FINAL ENTRY OF

THE COURT OF APPEALS OF

MONTGOMERY COUNTY, OHIO

(Dated November 6, 1986)

Case No. CA 9835

IN THE

COURT OF APPEALS OF

MONTGOMERY COUNTY, OHIO

THE DAYTON POWER AND

LIGHT COMPANY,

Plaintiff-Appellant,

vs.

THE OHIO CIVIL RIGHTS

COMMISSION, ET AL.,

Defendant-Appellee.

OPINION

Neu. F. Freunp, P. O. Box 670, Dayton, Ohio 45402

Attorney for Plaintiff-Appellant

A. MatrHew Rosen. Assistant Attorney General, Civil

Rights Section, 35 E. 7th Street, Suite 400, Cincinnati,

Ohio 45202

KENNETH W. Scotr. 7711 Tanners Lane, Florence,

Kentucky 41042

EpwWaArD S. Monouan, P. O. Box 66, Florence, Kentucky

41042

Attorneys for Defendant-Appellee

WILSON, J.

Samuel Prather was a black employee at DP&L’s

Stuart generating station for more than 12 years prior to

his termination effective September 13, 1982. He was

discharged for destroying company property by Robert

Ralston, the station manager.

On February 29, 1983, Mr. Prather filed a verified

complaint with the Ohio Civil Rights Commission

wherein he stated in part as follows:

“I believe that I was discriminated against because

of my race, Black, for the following reasons:

A. On Sept. 12, 1982, I was allegedly observed

and accused by Michael Mason (Caucasian), a

Technician Foreman and Robert MHackathorn

(Caucasian), a Electrician Foreman, of damaging

company property. Although I was engaged in

horseplay I did not damage company property.’

At the time of this incident Mason was the crew

foreman for Prather and seven other employees, and

Hackathorn had recently been appointed crew foreman

for another crew.

Ultimately the complaint was heard on July 18, 1984

before a hearing examiner who made conclusions of law

and the following findings of fact which were adopted by

the Ohio Civil Rights Commission on March 12, 1985.

1. Samuel Prather filed a sworn charged

affidavit with the Commission on February 28, 1983.

2. The Commission determined on October 21,

1983 that it was probable that unlawful

discriminatory practices had been engaged in by

Respondent in violation of Revised Code Section

4112.02(A). -

3. The Commission attempted to eliminate the

alleged unlawful discriminatory practices by

conciliation. The Commission issued its complaint

after conciliation failed.

4. Respondent is a corporation doing business

in Ohio and an employer. Complainant is a black

person.

5. Complainant was employed by Respondent

at its Stuart Generating Station in Adams County

from March 19, 1970 to September 13, 1982.

Complainant was classified as a Technician A.

Complainant worked with a crew of seven other

technicians, all of whom were white. Complainant's

job performance was satisfactory. His formal

disciplinary record up to September 12, 1982

consisted of a one day suspension.

6. Complainant's immediate supervisor was

Mike Mason, a Caucasian. Bob Hackathorn,

Caucasian, also had supervisory authority over

Complainant. They reported to David Elkins,

Caucasian, the manager of unit three, the unit to

which Complainant was assigned. Elkins reported to

the manager of Stuart Station, Bob Ralston,

Caucasian.

7. Complainant was working as a member of a

maintenance crew on Sunday, September 12, 1982.

One of the units was down for a periodic cleaning

and this was done on overtime pay, as was the

custom. Complainant entered the shop area in order

to pick up some materials to complete a job and

observed that the employees were standing around,

relaxed, idly talking and laughing.

8. Complainant learned that someone had

punched some small holes in a water hose and

plugged up one end. When foreman Hackathorn and

another bargaining unit employee tried to pressure

test the hose they were sprayed with water. A new

hose was being prepared as Complainant entered the

shop area. Someone passed Complainant a knife and

told him to cut some holes in the other hose.

Complainant cut some holes in the second hose.

Hackathorn, who was in the office, thought he saw

Complainant cutting the hose. He pointed this out

to Mason. Mason confronted Complainant who

denied he had cut the hose. Both Mason and

Hackathorn examined the hose and found that it

had been cut.

9. Pranks and horseplay involving water were

common in Stuart Station. Pranks that involved the

minor destruction of company property were also

common. For example, gluing or welding lockers

shut. Foreman Mason was aware of these pranks.

Prior to September 12, 1982, he had not written up

any employees for destruction of company property

or horseplay. Horseplay and destruction of company

property are violations of company policy.

10. Hackathorn and Mason _ reported _ the

Prather incident to the manager of unit three on

September 12, 1982. The manager of unit three

reported it to the manager of Stuart Station. The

station manager asked Elkins to investigate both

incidents. Elkins secured statements from foreman

Mason on September 14 about the Prather incident.

On September 15 he secured another written

statement from Mason where Mason stated he was

not aware of the first hose cutting incident prior to

the time he observed Complainant cutting the hose.

Elkins also reported that he talked to others who

were in the shop area at the time and all denied

seeing Complainant do anything.

11. Elkins recommended that Complainant be

discharged. He stated that Complainant's actions

were the result of a ‘‘basic flaw in character’. He

stated ‘Mr. Prather does not see the right or wrong

of damaging company property; be it in the act of

horseplay or otherwise’. Elkins reasoned that any

lesser discipline would not cure Complainant's basic

character flaw’’ and therefore he saw termination as

the only option.

12. Ralston reviewed the written documents

submitted by Elkins along with his recommendation.

Ralston accepted Elkins recommendation that

Complainant be discharged and Complainant was

discharged, effective September 13, 1982.

13. Foreman Mason made frequent racially

derogatory remarks about Complainant. These

included calling him a ‘black bastard’’ and a

‘‘nigger’’. On one occasion Mason told Complainant

that he would like to ‘‘march his fat black ass to the

gate’. After Complainant was discharged Mason

stated ‘‘we finally got rid of that lazy, fucking

nigger’.

14. Foreman Hackathorn was a self-admitted

racist. He had stated that he was prejudiced but

was working on it. When Complainant and

Hackathorn were working together Hackathorn had

told Complainant that he had had problems with

blacks.

15. Complainant was subjected to harsher

discipline because of his race.

The commission also concluded as a matter of law

that:

The Commission proved by reliable, probative and

substantial evidence that Respondents had

discriminated against Complainant, because of his

race in violation of Revised Code Section 4112.

The Commission then ordered DP&L to cease and

desist from violating Ohio’s laws against discrimination.

It also ordered DP&L to offer Samuel Prather his former

job with back pay. On March 30, 1985, DP&L appealed

the Commission's order to the Common Pleas Court of

Montgomery County, Ohio.

Al0

On September 18, 1985 DP&L moved the court

pursuant to R.C. 4112.06(D) to consider the proffered

deposition of Samuel Prather taken on August 23, 1985

as additional evidence. This section provides that ‘‘the

court may grant a request for the admission of additional

evidence when satisfied that such additional evidence is

newly discovered and could not with reasonable diligence

been ascertained prior to the hearing before the

Commission.”

On February 27, 1986, the trial court affirmed the

decision of the Commission and overruled appellant's

motion to consider additional evidence. DP&L has again

appealed. There are two assignments of error.

PLAINTIFF-APPELLANTS FIRST ASSIGN-

MENT OF ERROR: THE COMMISSION'S

FINDINGS WERE NOT SUPPORTED BY

RELIABLE, PROBATIVE AND SUBSTANTIAL

EVIDENCE GIVEN THAT THERE WAS NO

CREDIBLE EVIDENCE OF DISPARATE

TREATMENT.

PLAINTIFF-APPELLANT'’S SECOND

ASSIGNMENT OF ERROR: THE TRIAL

COURT'S DECISION NOT TO ALLOW

SUBMISSION OF THE DEPOSITION OF THE

DISCHARGED EMPLOYEE AS NEW

EVIDENCE WAS PREJUDICIAL ERROR.

In affirming the Civil Right's Commission the trial

court considered no evidence outside the record. The

issue before us in appellant's second assignment of error

is whether the trial court abused its discretion in failing

to consider Samuel Prather’s deposition.

The trial court has broad discretion in the admission

and exclusion of evidence. State v. Hymore (1967), 9 Ohio

St. 2d 122. “The term ‘abuse of discretion’ connotes

more than an error of law or judgment; it implies that

All

the court's attitude is unreasonable, arbitrary or

unconscionable.’ State v. Adams (1980), 62 Ohio St. 2d

151. We see no abuse of discretion here. The second

assignment of error is overruled.

The Commission is required to state its findings of

fact and conclusions of law “if upon all reliable,

probative, and substantial evidence the Commission

determines that the respondent has engaged in, *** any

discriminatory practices.”’ R. C. 4112.05(G).

The Commission sits initially as the trier of fact. It’s

findings ‘‘as to the facts shall be conclusive if supported

by reliable, probative and substantial evidence on the

record.”’ R.C. 4112.06(E).

The scope of review before the Common Pleas Court

is the same as in R.C. 119.12 Administrative Appeals,

because the evidentiary standards of ‘reliable, probative,

and substantial evidence’’ are the same. Plumbers &

Steamfitters Joint Apprenticeship Committee v. Ohio

Civil Rights Commission (1981), 66 Ohio St. 2d 192.

“When a Court of Common Pleas reviews an

administrative order it serves a hybrid function. The

court must determine as a matter of law whether the

administrative decision is supported by reliable,

probative, and substantial evidence. To make this

determination, however, the court must consider the

evidence.” The opinion in the Plumbers case then quotes

from Univ. of Cincinnati v. Conrad (1980), 63 Ohio St. 2d

108 ‘where it appears that the administrative

determination rests upon inferences improperly drawn

from the evidence adduced, the court may reverse the

administrative order.”

The Conrad case also held that the issue before the

Common Pleas Court “essentially is a question of the

absence or presence of the requisite quantum of evidence.

Although this in essence is a legal question, inevitably it

Al2

involves a consideration of the evidence, and to a limited

extent would permit a substitution of judgment by the

reviewing Common Pleas Court.”

The ultimate issue before us is whether the implicit

finding of a ‘‘discriminating practice’’ by the Common

Pleas Court was supported by reliable, probative and

substantial evidence as a matter of law.

The court in the Plumbers case held that reliable,

probative and substantial evidence in Chapter 4112

employment discrimination cases ‘‘means_ evidence

sufficient to support a finding of discrimination under

Title VII.”

A flexible formula to ferret out discrimination in

Title VII hiring and firing disparate treatment cases was

adopted in McDonnell Douglas v. Green (1973), 411 U.S.

i; Aes

The McDonnell formula places the initial burden on

the discriminatee to prove a prima facie case of employer

racial discrimination. A _ prima facie showing of

discrimination is merely proof of action taken by an

employer from which discriminating animus may be

inferred. Furnco Construction Corporation v. Waters

(1978), 438 U.S. 567.

The burden then shifts to the employer to rebut the

presumption by evidence of a _ legitimate

nondiscriminatory reason for the discharge.

The burden then shifts back to the employee to show

that the given reason was a pretext for discrimination.

This burden merges with the ultimate burden of

persuasion which the employee has to show that he has

been a victim of intentional discrimination. Texas Dept.

of Community Affairs v. Burdine (1981), 450 U.S. 248.

Al13

In ‘‘disparate treatment’’ cases the employer simply

treats some people less favorably than others for reasons

of race. ‘‘Proof of discriminatory motive is critical,

although it can in some situations be inferred from the

mere fact of differences in treatment’. Teamsters v. U.S.

(1977), 431 U.S. 324.

We agree with the Common Pleas Court that the

Commission established a prima facie case under

McDonnell’s flexible formula and that DP&L rebutted

the presumption by giving a legitimate reason for

Prather’s discharge.

There is no direct evidence in this case that either

DP&L engaged in any discriminatory practice or that

Robert Ralston, the senior supervisor who fired Mr.

Prather, was motivated by racial animus. In fact Prather

testified that Ralston was not prejudiced.

The two racist crew foreman who saw the hose cut

by Prather merely reported what Mr. Prather ultimately

admitted to be true. The Common Pleas Court found

that the ‘‘evidence of racial bias in more immediate

supervisors is sufficient to support a finding of racial

discrimination against the employer.” We disagree.

Inferences' reflect judicial and common _ sense

evaluations of probabilities. For something to be

probable it must at a minimum be more likely than not.

There must also be a rational connection between the

proven predicate fact and the fact inferred. It is simply

not reasonable to infer discriminatory motive on the part

of DP&L from proof of facist statements by relatively

low level management employees under the facts of this

case.

Al4

There was evidence of two other hose cutting

incidents presented to the hearing examiner. One

incident occurred on the same day and immediately prior

to the Prather incident. There was no evidence that

management was aware of the person who cut the hose

until just immediately prior to the hearing before the

examiner. At the time of the hearing the person accused

of this incident testified that he was placed on indefinite

suspension on the previous Friday.

There was conflicting evidence concerning

management’s knowledge of the person who was

involved in the first hose cutting incident in April 1982.

Mr. Prather testified by way of hearsay that the person

involved was white and was known to his foreman at the

time of the incident.

There was evidence that employees had not been

terminated or discharged for horseplay. There was also

evidence that a white management employee had been

terminated for pulling a chair out from another

employee. It was stipulated that another white employee

had been terminated for destruction of company property

of a value of less than $50.00 and then allowed to resign.

In our view the reliable, probative and substantial

evidence in this case fails to support an inference of

discriminatory motive or intentional discrimination on

the part of DP&L.

We reverse.

BROGAN, P.J., and KERNS, J., concur.

Al5

Case No. CA 9835

IN THE COURT OF APPEALS OF

MONTGOMERY COUNTY, OHIO

THE DAYTON POWER AND LIGHT COMPANY,

Plaintiff-Appellant,

VS.

THE OHIO CIVIL RIGHTS COMMISSION, ET AL.,

Defendant-Appellee.

FINAL ENTRY

Pursuant to the opinion rendered by this court on

the 6th day of November, 1986, the judgment of the trial

court is reversed.

/s/ JAMES A. BROGAN

Presiding Judge

/s/ JOSEPH D. KERNS

Judge

/s/ RICHARD K. WILSON

Judge

Al6

DECISION AND ORDER OF THE COMMON PLEAS

COURT OF MONTGOMERY COUNTY, OHIO

Case No. 85-829

IN THE COMMON PLEAS COURT OF

MONTGOMERY, COUNTY, OHIO

(Judge Richard S. Dodge)

THE DAYTON POWER AND LIGHT COMPANY,

Plaintiff-Petitioner,

Vs.

THE OHIO CIVIL RIGHTS COMMISSION, et al.,

Defendants-Respondents.

DECISION AND ORDER

This matter is before the Court on Plaintiff-

Petitioner Dayton Power and Light Company’s (DP&L)

Petition for Judicial Review of the Ohio Civil Rights

Commission’s (Commission) Order of March 12, 1985,

pursuant to Section 4112.06, Ohio Revised Code.

Plaintiff-Petitioner has filed a brief in support of its

argument for reversal of the Commission’s order.

Defendant-Respondent Commission has also filed a brief

in support of its decision and Plaintiff replied to the

Commission’s brief.

Al7

(1)

On February 28, 1983, Mr. Samual Prather filed a

charge affidavit with the Commission. On October 21,

1983, after an investigation, the Commission found

probable cause that unlawful discriminatory practices

were being engaged in by Plaintiff-Petitioner in violation

of Section 4112.01(A), Ohio Revised Code. The

Commission was unsuccessful in its conciliation efforts

and on March 13, 1984, the Commission issued a

complaint alleging that Plaintiff-Petitioner discharged

Mr. Prather for reasons not applied equally to all persons

without regard to race.

A hearing was held on July 18, 1984. On December

13, 1984, the Hearing Examiner issued his findings of

fact, conclusions of law and recommendations. The

Hearing Examiner found that while Mr. Prather

admittedly destroyed company property, i.e., cut a hole

in a rubber hose, he ‘‘was subjected to harsher discipline

because of his race.’’ He recommended that Plaintiff-

Petitioner offer Mr. Prather a job as Technician A (his

old position) and pay Mr. Prather the amount of wages

he would have earned from September 12, 1982 until the

offer of employment.

On March 12, 1985, the Commission issued its

decision adopting the Hearing Examiner's Report,

concluding that the Commission proved by reliable,

probative and _ substantial evidence that Plaintiff-

Petitioner discriminated against Mr. Prather because of

his race in violation of Section 4112, Ohio Revised Code.

(2)

In Plumbers & Steamfitters Joint Apprenticeship

Committee v. Ohio Civil Rights Commission, 66 Ohio

St.2d 192, 20 Ohio Op.3d 200 (1981), the Court

Al8

considered the scope of review available in the Court of

Common Pleas pursuant to a Section 4112.06 appeal 20

Ohio Op.3d at 205. The Court found that the same

standard should apply to Section 4112.06 appeals as

applies to Section 119.1 administrative appeals

because the evidentiary standards are the same. /d.

Thus, in a Section 4112.06 appeal, the Court must

consider the evidence and determine if the Commission's

decision is supported by reliable, probative and

substantial evidence. Jd. In addition, the Court must

defer to the Commission's “‘resolution of evidentiary

conflicts."" Jd. (quoting University of Cincinnati uv.

Conrad, 63 Ohio St.2d 108, 17 Ohio Op.3d 65, 67 (1980)).

The Ohio Supreme Court also stated that reliable,

probative and substantial evidence in Chapter 4112

employment discrimination cases ‘‘means_ evidence

sufficient to support a finding of discrimination under

Title VII."’ Plumbers, 20 Ohio Op.3d at 203.

This case presents the issue of disparate treatment

on the basis of race. In McDonnell Douglas v. Green, 411

U.S. 792, 36 L.Ed.2d 668 (1973), the Supreme Court

established a flexible standard for establishing a prima

facie case of discrimination. 36 L.Ed.2d at 677-78 n. 13.

In the case at bar, to make out a prima facie case of

racial discrimination, the Commission needed to show the

following: (1) Mr. Prather was a member of-a racial

minority; (2) he was qualified to continue in his job as

Technician A; (3) he was fulfilling the requirements of his

job; (4) he was discharged; and (5) non-minority DP& L

employees who participated in horseplay and similar acts

of destroying company property were treated differently.

See Hughes v. Chesapeake and Potomac Telephone

Company, 583 F. Supp. 66, 69 (D.D.C. 1983).

Al9

If the Commission established its prima facie case,

then DP&L had to show a legitimate nondiscriminatory

reason for its discharge of Mr. Prather to rebut the

prima facie case. Plumbers, 20 Ohio Op.3d at 203;

Hughes, 583 F. Supp. at 69. Finally, if DP&L rebutted

the prima facie case, the Commission would need to show

that DP&L’s reason for discharge was merely a pretext

for discrimination ‘‘either by direct evidence that racial

animus motivated the discharge or by discrediting the

employer's rebuttal evidence.’ Plumbers, 20 Ohio Op.3d

at 203; see, also, McDonnell, 36 L.Ed.2d at 679; Texas

Department of Community Affairs v. Burdin, 450 U.S.

248, 67 L.Ed.2d 207, 217 (1981).

DP&L contends that the Commission’s findings are

not supported by reliable, probative and substantial

evidence. DP&L argues that the Commission did not

even establish a prima facie case. However, DP&L’s

argument fails to take into account the flexible nature of

the McDonnell standard. 36 L.Ed.2d at 677-78 n. 13.

The standard DP&L advocates does not fit the

present situation. There is no reason the Commission

should have to prove that after Mr. Prather’s discharge,

DP&L assigned a white employee to his job. Evidence

tending to show that white employees were not

discharged or not disciplined for horseplay or minor

destruction of company property, such as cutting a

rubber hose, is much more relevant to the ultimate issue

of DP&L’s discriminatory intent. See Hughes 583 F.

Supp. at 69; Commission Brief, filed June 26, 1985, at 10.

Thus, the Court adopts the standard enunciated above.

A20

(3)

DP&L does not dispute that Mr. Prather was black,

was qualified for his job and was discharged. However,

DP&L maintains that Mr. Prather was not meeting the

normal requirements of his job and that no white

employee was assigned to his job. DP&L’s Brief, filed

June 6, 1985, at 12. As discussed above, the latter fact is

irrelevant to his case. DP&L reasons that Mr. Prather

was not fulfilling his job requirements because he cut the

rubber hose. However, as the Hughes court stated, this

prong of the prima facie case requires a showing of

satisfactory performance. 583 F. Supp. at 70. To focus

on the alleged misconduct would vitiate the last prong of

the standard. Mr. Prather’s satisfactory performance at

his ,ob is shown by a progress report prepared by his

immediate supervisor in early June, 1982, in which his

performance was rated satisfactory. Respondent Exhibit

A. Thus, the fourth prong of a prima facie case was

established by the Commission.

Regarding the fifth prong, the Commission offered

evidence of many incidents of horseplay involving

Caucasians where no one was disciplined. Tr. at 12, 17-

20, 67, 71-72, 79, 111, 140-41. Furthermore, there was

evidence of two earlier hose-cutting incidents in which no

one was disciplined. One of these incidents occurred just

prior to Mr. Prather’s hose-cutting. Tr. at 112. The other

incident occurred a few months before and involved a

white employee. Tr. at 21-22, 116. DP&L attempts to

distinguish all of these previous incidents on the basis

that there were no eyewitnesses but the Court concludes

that the Commission offered enough evidence for it to be

inferred that white employees were not disciplined or

discharged by DP&L for similar acts for which Mr.

A21

Prather was discharged. Thus, the Commission

established the fifth prong of the standard to make a

prima facie case of racial discrimination.

DP&L contended that Mr. Prather was discharged

because he destroyed company property. Mr. Prather

admitted cutting the rubber hose, Tr. at 12, and DP&L

offered evidence showing that this was the reason he was

discharged. Commission Exhibits 4, 5; Tr. at 134. This

was sufficient to rebut the Commission's prima facie

case.

The Commission maintained that DP&L’s asserted

reason for discharge was a pretext and the Court finds

that the record supports this determination.

DP&L attempted to distinguish the hose-cutting

incident involving Mr. Doyle, a white employee, on the

basis that Mr. Doyle's supervisor did not see him cut the

hose. DP&L’'s Reply Brief, filed July 24, 1985, at 3. It is

true that the supervisor testified that he did not see Mr.

Doyle cut the hose but he heard Doyle’s fellow

employees accuse Doyle of doing it and he did not

investigate further after Doyle denied cutting it. Tr. at

116-17, 118. Furthermore, the supervisor did not even

inform any of his superiors about the incident, Tr. at

118, even though production was stopped for twenty

minutes. Tr. at 119. Mr. Doyle was put on indefinite

suspension only after he wrote a statement about the

incident for a Commission investigator just prior to Mr.

Prather’s hearing. Tr. at 23-24, 88, 119-20. This hose-

cutting incident had occurred prior to Mr. Prather’s and

yet he was not suspended until two years later and then

only after a Commission investigator uncovered the

incident. There is no evidence on the record as to

A22

whether Mr. Doyle was actually discharged' but there is

enough evidence on the record for the Commission to

have concluded that Mr. Prather was treated differently

because of his race.

The case of Weatherspoon v. Andrews & Co., 32 FEP

Cases 122, 1228 (D. Colo. 1983), was relied upon by the

hearing examiner for the proposition that even if the

ultimate decision of discharge is made by a senior

supervisor, who is not motivated by racial animus,

evidence of racial bias in more immediate supervisors is

sufficient to support a finding of racial discrimination

against the employer. The Court finds this authority

persuasive and concludes that Mr. Ralston’s lack of

racial bias does not help DP&L’s case.

1. The Court emphasizes that no evidence outside the record has

been considered and the Commission's motion to strike filed on

August 2, 1985 and DP&L’s response filed August 13, 1985 are,

therefore, moot.

DP&L filed a Request for Consideration of Additional Evidence

September 18, 1985. Section 4112.06(D) allows the Court to grant

such a request ‘when satisfied that such additional evidence is newly

discovered and could not with reasonable diligence have been

ascertained prior to the hearing before the commission.”’

The Court is not satisfied that the recent deposition of Mr.

Prather is newly discovered evidence which could not have been

ascertained prior to the hearing. Mr. Prather testified at the hearing

and was cross-examined by DP&L. DP&L could have obtained the so-

called ‘‘admissions’’ from Mr. Prather on cross-examination at the

hearing. Furthermore, it appears that this evidence would only tend

to impeach Mr. Prather's prior testimony and probably would not

change the result of the Commission's decision. See Wagner v. Smith,

» 8 Ohio App.3d 90, 95 (Ct. App. Washington County 1982) (standard

for granting new trial on grounds of newly discovered evidence).

Thus, the deposition of Mr. Prather does not qualify for consideration

under 4112.06(D). Accordingly, DP&L's Req: est for Consideration of

Additional Evidence is DENIED.

A23

Even if it is assumed that the Commission did not

establish a different standard of treatment for blacks

and similarly situated whites, the evidence of the

discriminatory intent of the supervisors is enough to

make out a case of disparate treatment. See Williams uv.

TWA, 27 FEP Cases 487, 489-90 (8th Cir. 1981). Giving

“due deference to the [Commission’s] resolution of

evidentiary conflicts’’ under Plumbers, the Court finds

that the Commission's findings and orders. were

supported by reliable, probative and_ substantial

evidence.

For the foregoing reasons, the decision of the Ohio

Civil Rights Commission is AFFIRMED.

SO ORDERED:

RICHARD S. DODGE, Judge

Copies of the above Decision and Order were sent to

all parties listed below by ordinary mail this date of

filing.

Neil F. Freund/Jane M. Lynch, Attorneys for Plaintiff-

Petitioner, P. O. Box 670, Dayton, Ohio 45402

A. Matthew Rosen, Assistant Attorney General, Civil

Rights Section, Executive Building, 35 E. 7th

Street, Suite 400, Cincinnati, Ohio 45202

Kenneth W. Scott, 7711 Tanners Lane, Florence,

Kentucky 41042

Edward S. Monohan, Attorney for Defendants-

Respondents, P. O. Box 66, Florence, Kentucky

41042

Faith Johnson, Bailiff

A24

FINDINGS OF FACT, CONCLUSIONS OF LAW

AND ORDER OF THE OHIO CIVIL

RIGHTS COMMISSION

(Dated March 12, 1985)

Complaint No. 4029

STATE OF OHIO

CIVIL RIGHTS COMMISSION

IN THE MATTER OF: SAMUEL R. PRATHER,

THE DAYTON POWER AND LIGHT COMPANY.

FINDINGS OF FACT, CONCLUSIONS OF

LAW AND ORDER

I. PRELIMINARY STATEMENT

This matter comes before the Commission upon the

sworn Charge Affidavit of Samuel R. Prather, filed

February 28, 1983, Complaint and Notice of Hearing No.

4029 issued on March 13, 1984; the official record of the

public hearing held on July 18, 1984, before Franklin A.

Martens, Esq., a duly appointed hearing examiner and all

exhibits therein: the Commission's post hearing briefs

filed September 18, 1984, and October 15 1984;

Respondents’ Brief filed October 9, 1984, the Hearing

Examiner's Report filed December 13, 1984; and

Respondent's objections to the Hearing Examiner's

Report, filed January 3, 1985.

A25

II. COMMISSION REVIEW

The Charge Affidavit and Complaint alleged that

Respondent had terminated Complainant because of his

race, which is Black. After public hearing, the Hearing

Examiner recommended a finding that Respondent be

ordered: (a) to cease and desist from any and all

discriminatory practices; (b) to make an offer of

employment to Complainant for a position at Stuart

Station as a Technician A, within ten days of the receipt

of this final order. Complainant should be paid at the

same wage scale he would have attained had he been

continuously employed by Respondent from September

12, 1982 to the date Respondent makes the offer of

employment; and (c) to present to Complainant and the

Commission a certified check equal to the amount of

wages Complainant would have earned had he been

continuously employed by Respondent from September

12, 1982 to the date Respondent makes the offer of

reinstatement referenced in subparagraph (b) above. This

check is to be tendered within five days of the date that

Respondent makes said offer of reinstatement and shall

include interest allowable by law. Any interim earnings

of Complainant shall be deducted from this amount.

The Commission at its meeting on January 9, 1985

adopted the Hearing Examiner's recommendations. After

careful consideration of the entire record and all premises

therein, the Commission makes the following Findings of

Fact, Conclusions of Law, and Order.

A26

III. FINDINGS OF FACT

1. Samuel Prather filed a sworn charge affidavit

with the Commission on February 28, 1983.

2. The Commission determined on October 21, 1983

that it was probable that unlawful discriminatory

practices had been engaged in by Respondent in

violation of Revised Code Section 4112.02(A).

3. The Commission attempted to eliminate the

alleged unlawful discriminatory practices by conciliation.

The Commission issued its complaint after conciliation

failed.

4. Respondent is a corporation doing business in

Ohio and an employer. Complainant is a black person.

5. Complainant was employed by Respondent at its

Stuart Generating Station in Adams County from March

19, 1970 to September 13, 1982. Complainant was

classified as a Technician A. Complainant worked with a

crew of seven other technicians, all of whom were white.

Complainant’s job performance was satisfactory. His

formal disciplinary record up to September 12, 1982

consisted of a one day suspension.

6. Complainant’s immediate supervisor was Mike

Mason, a Caucasian. Bob Hackathorn, Caucasian, also

had supervisory authority over Complainant. They

reported to David Elkins, Caucasian, the manager of unit

three, the unit to which Complainant was assigned.

Elkins reported to the manager of Stuart Station, Bob

Ralston, Caucasian.

7. Complainant was working as a member of a

maintenance crew on Sunday, September 12, 1982. One

of the units was down for a periodic cleaning and this

was done on overtime day, as was the custom.

A27

Complainant entered the shop area in order to pick up

some materials to complete a job and observed that the

employees were standing around, relaxed, idly talking

and laughing.

8. Complainant learned that someone had punched

some small holes in a water hose and plugged up one

end. When foreman Hackathorn and another bargaining

unit employee tried to pressure test the hose they were

sprayed with water. A new hose was being prepared as

Complainant entered the shop area. Someone passed

Complainant a knife and told him to cut some holes in

the other hose. Complainant cut some holes in the

second hose. Hackathorn, who was in the office, thought

he saw Complainant cutting the hose. He pointed this

out to Mason. Mason confronted Complainant who

denied he had cut the hose. Both Mason and Hackathorn

examined the hose and found that it had been cut.

9. Pranks and horseplay involving water were

common in Stuart Station. Pranks that involved the

minor destruction of company property were also

common. For example, gluing or welding lockers shut.

Foreman Mason was aware of these pranks. Prior to

September 12, 1982, he had not written up any

employees for destruction of company property or

horseplay. Horseplay and destruction of company

property are violations of company policy.

10. Hackathorn and Mason reported the Prather

incident to the manager of unit three on September 12,

1982. The manager of unit three reported it to the

manager of Stuart Station. The station manager asked

Elkins to investigate both incidents. Elkins secured

statements from foreman Mason on September 14 about

the Prather incident. On September 15 he _ secured

another written statement from Mason where Mason

A28

stated he was not aware of the first hose cutting incident

prior to the time he observed Complainant cutting the

hose. Elkins also reported that he talked to others who

were in the shop area at the time and all denied seeing

Complainant do anything.

11. Elkins recommended that Complainant be

discharged. He stated that Complainant’s actions were

the result of a “basic flaw in character’’. He stated ‘‘Mr.

Prather does not see the right or wrong of damaging

company property; be it in the act of horseplay or

otherwise’. Elkins reasoned that any lesser discipline

would not cure Complainant’s basic character flaw’’ and

therefore he saw termination as the only option.

12. Ralston reviewed the written documents

submitted by Elkins along with his recommendation.

Ralston accepted Elkins recommendation that Complaint

be discharged and Complainant was discharged, effective

September 13, 1982.

13. Foreman Mason made frequent racially

derogatory remarks about Complainant. These included

calling him a “black bastard” and a “‘nigger’’. On one

occasion Mason told Complainant that he would like to

‘‘march his fat black ass to the gate’’. After Complainant

was discharged Mason stated ‘‘we finally got rid of that

lazy, fucking nigger’.

14. Foreman Hackathorn was a self-admitted racist.

He had stated that he was prejudiced but was working

on it. When Complainant and Hackathorn were working

together Hackathorn had told Complainant that he had

problems with blacks.

15. Complainant was subjected to harsher discipline

- because of his race.

ii.

A29

IV. CONCLUSIONS OF LAW

1. The Commission has jurisdiction over the subject

matter and parties of this Complaint.

2. The Commission proved by reliable, probative

and substantial evidence that Respondents had

discriminated against Complainant, because of his race in

violation of Revised Code Section 4112.

V. ORDER

Pursuant to Revised Code Section 4112.05(B) where

the Commission has obtained jurisdiction over the

parties and over the subject matter of its proceedings,

and has proven by reliable, probative and substantial

evidence on the record that Respondents have engaged

in unlawful discrimination, the Commission is authorized

and obligated to issue the Order which is set forth

hereinafter.

(1) It is ORDERED that Respondent CEASE AND

DESIST from violating Ohio’s laws against

discrimination;

(2) It is further ORDERED that within ten days of

receipt of the Commission’s final order Respondent offer

Complainant a position at Stuart Station as a Technician

A. Should Complainant accept Respondent’s offer,

Complainant should be paid at the same wage rate he

would have attained had he been continuously employed

by Respondent from September 12, 1982 to the date

Respondent makes the offer of employment;

(3) It is further ORDERED that regardless of

whether Complainant accepts the offer of employment,

that within five days of the date Respondent makes the

offer of reinstatement, Respondent present’ to

A30

Complainant and the Commission a certified check equal

to the amount of wages Complainant would have earned

had he been continuously employed by Respondent from

September 12, 1982 to the date Respondent makes the

offer of employment recommended in (2) above. This

amount shall include 10% per annum interest. Any

interim earnings of Complainant shall be deducted from

this amount.

This Order issued by the Ohio Civil Rights

Commission this 12th day of March, 1985.

/s/ PHALE. D. HALE

Chairman

/s/ CLINGAN JACKSON

Commissioner

/s/ RONALD C. MORGAN

Commissioner

/s/ CATHERINE ELLIS

Commissioner

/si Atyce D. Lucas

Commissioner

NOTICE OF RIGHT TO JUDICIAL REVIEW

Notice is hereby given to all herein that Revised

Code §4112.06 sets forth the right to obtain judicial

review of this ORDER and the mode and procedure

thereof.

nip nantes Mell

A31

CERTIFICATE OF SERVICE

I, Robert Brown, Executive Director of the Ohio

Civil Rights Commission, do hereby certify that the

foregoing is a true and accurate copy of the ORDER

issued in the matter of Samuel R. Prather v. The Dayton

Power and Light Company, Complaint No. 4029, and

filed with the Commission at its Central Office in

Columbus, Ohio.

/s/ RoBERT D. BROWN

Executive Director

DATE: March 12, 1985

A32

FINDINGS OF FACT, CONCLUSIONS OF LAW,

AND RECOMMENDATIONS OF THE HEARING

EXAMINER OF THE OHIO CIVIL RIGHTS

COMMISSION

(Dated December 13, 1984).

Complaint No. 4029

23091382 (10764) 0383

057830540

OHIO CIVIL RIGHTS COMMISSION

IN THE MATTER OF

SAMUAL R. PRATHER,

Complainant,

and

THE DAYTON POWER AND

LIGHT COMPANY,

Respondent.

HEARING EXAMINER'S FINDINGS OF

FACT, CONCLUSIONS OF LAW,

AND RECOMMENDATIONS

INTRODUCTION

Samual Prather (Complainant) filed a charge affidavit

with the Ohio Civil Rights Commission (Commission) on

February 28, 1983. The Commission investigated and

found probable cause that unlawful discriminatory

practices had been engaged in by Dayton Power and

A33

Light Company (Respondent) in violation of Revised

Code Section 4112.02(A) on October 21, 1983. The

Commission's efforts to eliminate the alleged unlawful

discriminatory practices by conciliation were

unsuccessful and a complaint was issued on March 13,

1984. The complaint alleged that Respondent discharged

Complainant for reasons not applied equally to all

persons without regard to their race.

Respondent filed a timely answer to the complaint

admitting certain procedural allegations but denying

that it engaged in any unlawful discriminatory practice

and pleading affirmative defenses.

A public hearing was held on July 18, 1984 at the

Adams County Courthouse, West Union, Ohio.

The record consists of the previously described

pleadings, the transcript consisting of 151 pages of

testimony, exhibits admitted into evidence at the hearing

and the post-hearing briefs filed by the Commission on

September 20, 1984 and October 17, 1984 and

Respondent on October 11, 1984.

FINDINGS OF FACT

1. Samual Prather filed a sworn charge affidavit

with the Commission on February 28, 1983.

2. The Commission determined on October 21, 1983

that it was probable that unlawful discriminatory

practices had been engaged in by Respondent in

violation of Revised Code Section 4112.02(A).

3. The Commission attempted to eliminate the

alleged unlawful discriminatory practices by conciliation.

The Commission issued its complaint after conciliation

failed.

A34

—_—

4. Respondent is a corporation doing business in

Ohio and an employer. Complainant is a black person.

5. Complainant was employed by Respondent at its

Stuart Generating Station in Adams County from March

19, 1970 to September 13, 1982. Complainant was

classified as a Technician A. Complainant worked with a

crew of seven other technicians, all of whom were white.

Complainant’s job performance was satisfactory. His

formal disciplinary record up to September 12, 1982

consisted of a one day suspension.

6. Complainant’s immediate supervisor was Mike

Mason, a Caucasian. Bob Hackathorn, Caucasian, also

had supervisory authority over Complainant. They

reported to David Elkins, Caucasian, the manager of unit

three, the unit to which Complainant was assigned.

Elkins reported to the manager of Stuart Station, Bob

Ralston, Caucasian.

7. Complainant was working as a member of a

maintenance crew on Sunday, September 12, 1982. One

of the units was down for a periodic cleaning and this

was being done on overtime day, as was the custom.

Complainant entered the shop area in order to pick up

some materials to complete a job and observed that the

employees were standing around, relaxed, idly talking

and laughing.

8. Complainant learned that someone had punched

some small holes in a water hose and plugged up one

end. When foreman Hackathorn and another bargaining

unit employee tried to pressure test the hose they were

sprayed with water. A new hose was being prepared as

Complainant entered the shop area. Someone passed

Complainant a knife and told him to cut some holes in

the other hose. Complainant cut some holes in the second

A35

hose. Hackathorn, who was in the office, thought he saw

Complainant cutting the hose. He pointed this out to

Mason. Mason confronted Complainant who denied he

had cut the hose. Both Mason and Hackathorn examined

the hose and found that it had been cut.

9. Pranks and horseplay involving water were

common in Stuart Station. Pranks that involved the

minor destruction of company property were also

common. For example, gluing or welding lockers shut.

Foreman Mason was aware of these pranks. Prior to

September 12, 1982, he had not written up any

employees for destruction of company property or

horseplay. Horseplay and destruction of company

property are violations of company policy.

10. Hackathorn and Mason reported the Prather

incident to the manager of unit three on September 12,

1982. The manager of unit three reported it to the

manager of Stuart Station. The station manager asked

Elkins to investigate both incidents. Elkins secured

statements from foreman Mason on September 14 about

the Prather incident. On September 15 he secured

another written statement from Mason where Mason

stated he was not aware of the first hose cutting incident

prior to the time he observed Complainant cutting the

hose. Elkins also reported that he talked to others who

were in the shop area at the time and all denied seeing

Complainant do anything.

11. Elkins recommended that Complainant be

discharged. He stated that Complainant’s actions were

the result of a “basic flaw in character’. He stated ‘Mr.

Prather does not see the right or wrong of damaging

company property; be it in the act of horseplay or

otherwise’. Elkins reasoned that any lesser discipline

would not cure Complainant’s ‘‘basic character flaw’’ and

therefore he saw termination as the only option.

A36

12. Ralston reviewed the written documents

submitted by Elkins along with his recommendation.

Ralston accepted Elkins recommendation’ that

Complainant be discharged and Complainant was

discharged, effective September 13, 1982.

13. Foreman Mason made frequent racially

derogatory remarks about Complainant. These included

calling him a ‘‘black bastard’”’ and a ‘“‘nigger’’. On one

occasion Mason told Complainant that he would like to

‘‘march his fat black ass to the gate’’. After Complainant

was discharged Mason stated ‘‘we finally got rid of that

lazy, fucking nigger’.

14. Foreman Hackathorn was a self-admitted racist.

He had stated that he was prejudiced but was working

on it. When Complainant and Hackathorn were working

together Hackathorn had told Complainant that he had

problems with blacks.

15. Complainant was subjected to harsher discipline

because of his race.

CONCLUSIONS OF LAW AND DISCUSSION

1. The Commission's Complaint alleges ‘‘(t)hat

Respondent discharged Samual R. Prather for reasons

not applied equally to all persons without regard to their

race.” This allegation, if proven, would constitute a

violation of §4112.02(A) of the Revised Code which

provides in part that:

It shall be an unlawful discriminatory practice: (A)

For any employer, because of the... race... of any

person to discharge without just cause, ... or

otherwise to discriminate against that person with

respect to ... terms, conditions or privileges of

employment or any matter directly or indirectly

related to employment.

A37

2. The Commission must prove a _ violation of

§4112.02(A) by reliable, probative and _ substantial

evidence. Revised Code Section 4112.02(E) and (G).

Therefore, the Commission has the burden of proof in

cases brought pursuant to Chapter 4112 of the Revised

Code. Sowers v. OCRC, 49 Ohio Op. 2d 203 (C.P.

Trumbull Cty.)

3. However, the Commission is not required to

prove that Complainant’s race was the sole reason for

the employer’s decision. The Commission must prove by

reliable, probative and substantial evidence that

Complainant's race was one factor in the employment

decision. Miller Properties v. Ohio Civil Rights

Commission, 34 Ohio App. 2d 113 (1972).

4. The Ohio Supreme Court has held that Title VII

standards are to be used in evaluating alleged violations

of Chapter 4112 of the Revised Code. Therefore, reliable,

probative and substantial evidence means _ evidence

sufficient to support a finding of discrimination under

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§$2000e et seq. Plumbers & Steamfitters Committee v.

Ohio Civil Rights Commission, 66 Ohio St. 2d 192 (1981).

5. The order of proof in Title VII case requires the

Commission to prove a prima facie case of

discrimination.

The plaintiff in a Title VII case possesses the

ultimate burden of persuasion and the intermediate

burden of proving by a preponderance of the

evidence a prima facie case of discrimination. Texas

Dept. of Community Affairs v. Burdine, 450 U.S.

248, 101 S. Ct. 1089, 1093, 25 FEP Cases 113 (1981).

A prima facie case of discrimination based upon a

theory of disparate treatment is succinctly set forth

in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

A38

802, 5 FEP Cases 965 (1973). In a disparate

treatment case the plaintiff's initjal burden is

basically to show actions ‘‘taken by the employer

from which one can infer, if such actions remain

unexplained, that it is more likely than not that

such actions were ‘based on a _ discriminatory

criterion illegal under the Act.’ Furnco Constr.

Corp. v. Waters, accord, International Bhd. of

Teamsters v. United States, 431 U.S. 324, 358, 14

FEP Cases 1514 (1977); McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 & n.13, 5 FEP Cases 965

(1973). Williams v. TWA, 27 FEP Cases 487, 490

(8th Cir. 1981).

6. The proof required to sustain a prima facie case

will vary depending upon the facts in each particular

case. McDonnell Douglas, supra at n. 13.

7. A prima facie case of racial discrimination may

be proven even where the Commission fails to show a

different standard of treatment for black employees and

similarly situated white employees. ‘‘If a black person is

discharged with discriminatory intent by reason of his

race, this establishes proof of disparate treatment.

(citations omitted)" Williams, supra at 490.

8. In this case there was direct evidence of

discriminatory intent by first line supervisors. This

evidence consisted of biased statements made before and

after Complainant's discharge by Mason and a statement

by Hackathorn that he had racist tendencies.

‘*.. Direct evidence of discriminatory intent or

the lack thereof generally pertains to the attitude and

overall record of the supervisor[s] in question, both

in the obvious context of adverse action against

members of the protected group and/or biased

statements, and also dn terms of the supervisor{[s]’

efforts to help the employee in question or other

A39

members of the same protected group.’’ Schlei and

Grossman, Employment Discrimination Law, 1983

Edition, p. 599.

9. I conclude that WHackathorn’s and Mason's

attitudes about Complainant as a black person influenced

their handling of the two hose cutting incidents. First, I

cannot credit Mason's testimony that he was not aware

of the first hose cutting incident. He saw Hackathorn,

who had just been sprayed with water, immediately after

the incident. I do not believe that Hackathorn did not

tell Mason what had happened and I think this is a

reasonable inference. Mason was also able to view the

work area and see the men standing around laughing.

Since incidents of this type were common I cannot credit

the memorandum that Mason wrote disclaiming his

knowledge about the first hose cutting incident. This

memorandum appears to me to be a cover-up; an attempt

to justify Mason’s lack of attention to the first hose

cutting incident. Hackathorn testified that the first

incident ended when he instructed another worker to

prepare a second hose. He went into the office. Thus,

there was no immediate efforts by him to investigate the

first hose cutting incident. :

10. Likewise, the result of any subsequent

investigation of the incident, allegedly ordered by

Ralston, was never even mentioned by Elkins when he

issued his written report about the Prather matter. No

other memorandum was introduced from Elkins to

Ralston about the first hose cutting incident. I conclude

that Hackathorn and Mason were not very concerned

about the first prank, which was committed by a white

person, but became very concerned when they saw

Complainant cutting a hose. The reporting of these two

incidents by the two white foreman in unit three was

tainted by their racial bias.

A40

11. Even absent this, there was racial bias

exhibited by the manager of unit three. This bias was

exhibited in the memorandum he wrote where he

recommended that Complainant be discharged. That

recommendation was primarily based on a “basic

character flaw’ that the manager identified in

Complainant’s personality. He characterized it as

Complainant’s inability to differentiate right from wrong.

Such alleged character flaws go hand in hand with

common prejudicial stereotypes that are often attributed

to minorities by prejudiced whites. In Weatherspoon uv.

Andrews & Co., 32 FEP Cases 1226 (D.C. Colo. 1983),

the supervisor that made the determinative

recommendation had called Complainant a ‘“‘goddamned

black nigger just like all the other goddamned black

niggers - not worth a damm...’. Weatherspoon, infra.

The Court found that these statements were evidence

that the immediate supervisor was a racist.

12. Direct evidence of racial bias by a supervisor

can be sufficient to sustain a finding of discrimination

when the immediate supervisor is a racist, even if the

ultimate decision was made by a senior employee, who

was not motivated by racial animus. In Weatherspoon

the defendant argued that the more senior employee who

actually made the termination decision had ‘clean

hands”’ and ‘‘a pure heart’ and therefore the company

itself was insulated from liability. The Court disagreed,

noting that the senior employee had no opportunity to

scrutinize the Complainant’s work, and that the senior

employee admitted that when she decided to fire the

employee she relied, at least in part, on the accusations

about the employee’s work. The Court concluded that

even assuming the senior supervisory employee bore no

racial animus the decision to fire the plaintiff

undoubtedly was influenced and tainted by the

immediate supervisor's attitudes.

A41

13. I think the same reasoning applies to the case

before us. It’s obvious to me that Mr. Ralston’s decision

to terminate, as opposed to giving some lesser discipline

to Complainant, was influenced by the memorandum

written by Elkins, which discussed Complainant’s basic

character flaw. See also, Perkins v. State Bhd. of

Education, 27 EPD, Paragraph 32, 303 (DCMD Tenn.

1980).

14. Thus, while Complainant was admittedly guilty

of cutting a hose, I conclude that he was subjected to

more stricter discipline than he would have been

subjected to had he been white. I reached this conclusion

because of the racist attitudes of the two white

supervisors who very expeditiously processed their

reports concerning Complainant’s conduct while basically

ignoring the similar conduct of a white employee, i.e.

they made no effort to investigate that incident. I

further find that such pranks were so common that the

absence of previous discipline to whites could only result

from selective vision and enforcement. Furthermore,

when the plant manager conducted his ‘‘investigation”’

about both incidents he did not mention any efforts to

uncover the first perpetrator. Instead he secured a

disclaimer from the foreman about the foreman’s

knowledge of that incident. I think a_ reasonable

inference could be drawn that that disclaimer was

solicited for the purpose of making it appear that the

first incident was investigated.

15. The racial bias of the plant manager is

demonstrated by the language he used in_ the

memorandum recommending termination where he talked

about Complainant's basic character flaw that could not

be remedied by training. This is negative evidence

concerning his efforts to help the minority employee

overcome his problem and provides additional evidence

of racial bias. Schlei, supra.

aii

A42

16. Thus I conclude that while the racial component

of this discharge decision was not _ necessarily

attributable to Mr. Ralston himself, it was evident

through the actions of the front line supervisors and the

plant manager.

RECOMMENDATION

For all of the foregoing reasons, I recommend that:

(1) Respondent be ordered to cease and desist from

violating Ohio’s laws against discrimination;

(2) that within ten days of receipt of the

Commission's final order Respondent offer Complainant

a position at Stuart Station as a Technician A. Should

Complainant accept Respondent’s offer Complainant

should be paid at the same wage rate he would have

attained had he been continuously employed by

Respondent from September 12, 1982 to the date

Respondent makes the offer of employment;

(3) I further recommend that regardless of whether

Complainant accepts the offer of employment, that

within five days of the date Respondent makes the offer

of reinstatement, Respondent present to Complainant

and the Commission a certified check equal to the

amount of wages Complainant would have earned had he

been continuously employed by Respondent from

September 12, 1982 to the date Respondent makes the

offer of employment recommended in (2) above. This

amount shall include interest allowable by law. Any

interim earnings of Complainant shall be deducted from

this amount.

/s/ FRANKLIN A. MARTENS

Hearing Examiner

DATED December 13, 1984

A43

MANDATE OF THE OHIO SUPREME COURT

(Dated November 10, 1987)

Case No. 87-26

THE SUPREME COURT OF OHIO

COLUMBUS

DAYTON POWER & LIGHT COMPANY,

Appellee,

Vv.

OHIO CIVIL RIGHTS COMMISSION, et al.,

Appellants.

MANDATE

To the Honorable Court of Common Pleas

Within and for the County of Montgomery, Ohio.

The Supreme Court of Ohio commands you to

proceed without delay to carry the following judgment in

this cause into execution:

Judgment of the Court of Appeals is reversed and

the orders of the Commission and the Court of Common

Pleas are reinstated consistent with the opinion rendered

herein.

COSTS:

Motion Fee, $20.00, paid by Helen Ninos.

/s/) THOMAS J. MOYER

Chief Justice

[a ae

A44

JUDGMENT ENTRY OF THE OHIO

SUPREME COURT

(Dated November 10, 1987)

Case No. 87-26

THE SUPREME COURT OF OHIO

COLUMBUS

DAYTON POWER & LIGHT COMPANY,

Appellee,

Vv.

OHIO CIVIL RIGHTS COMMISSION, et al.,

Appellants.

JUDGMENT ENTRY

APPEAL FROM THE COURT OF APPEALS

This cause, here on appeal from the Court of Appeals

for Montgomery County, was considered in the manner

prescribed by law. On _ consideration thereof, the

judgment of the Court of Appeals is reversed and the

orders of the Commission and the Court of Common

Pleas are reinstated consistent with the opinion rendered

herein.

It is further ordered that the appellants recover from

the appellee their costs herein expended; and that a

mandate be sent to the Court of Common Pleas for

Montgomery County to carry this judgment into

execution; and that a copy of this entry be certified to

the Clerk of the Court of Appeals for Montgomery

County for entry.

/s/ THOMAS J. MOYER

Chief Justice

A45

ENTRY OF THE OHIO SUPREME COURT

DENYING MOTION FOR REHEARING

(Dated December 16, 1987)

Case No. 87-26

THE SUPREME COURT OF OHIO

COLUMBUS

DAYTON POWER & LIGHT CO.,

Appellee,

Vv.

OHIO CIVIL RIGHTS COMMISSION, et al.,

Appellants.

REHEARING ENTRY

IT IS ORDERED by the Court that rehearing in this

case be, and the same is hereby, denied.

/s) THOMAS J. MOYER

Chief Justice

A46

TITLE VII OF THE CIVIL RIGHTS ACT,

42 U.S.C. §2000e

§2000e-2. Discrimination because of race, color, religion,

sex, or national origin

(a) Employers. It shall be an unlawful employment

practice for an employer—

(1) to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of

such individual’s race, color, religion, sex, or

national origin; or

(2) to limit, segregate, or classify his employees

or applicants for employment in any way which

would deprive or tend to deprive any individual of

employment opportunities or otherwise adversely

affect his status as an employee, because of such

individual's race, color, religion, sex, or national

origin.

(b) Employmert agency. It shall be an unlawful

employment practice for an employment agency to fail or

refuse to refer for employment, or otherwise to

discriminate against, any individual because of his race,

color, religion, sex, or national origin, or to classify or

refer for employment any individual on the basis of his

race, color, religion, sex, or national origin.

employment practice for a labor organization—

(1) to exclude or to expel from its membership,

or otherwise to discriminate against, any individual

because of his race, color, religion, sex, or national

origin;

A47

(2) to limit, segregate, or classify its

membership or applicants for membership, or to

classify or fail or refuse to refer for employment any

individual, in any way which would deprive or tend

to deprive any individual of employment

opportunities, or would limit such employment

opportunities or otherwise adversely affect his

status as an employee or as an applicant for

employment, because of such individual's race, color,

religion, sex, or national origin; or

(3) to cause or attempt to cause an employer to

discriminate against an individual in violation of

this section.

(d) Training programs. It shall be an unlawful

employment practice for any employer, labor

organization, or joint labor-management committee

controlling apprenticeship or other training or retraining,

including on-the-job training programs to discriminate

against any individual because of his race, color, religion,

sex, or national origin in admission to, or employment in,

any program established to provide apprenticeship or

other training.

(e) Religion, sex, or national origin as bona fide

occupational qualification; educational institutions with

employees of particular religions. Notwithstanding any

other provision of this title [42 USCS §§2000e et seq.], (1)

it shall not be an unlawful employment practice for an

employer to hire and employ employees, for an

employment agency to classify, or refer for employment

any individual, for a labor organization to classify its

membership or to classify or refer for employment any

individual, or for an employer, labor organization, or

joint labor-management committee controlling

apprenticeship or other training or retraining programs

A48

to admit or employ any individual in any such program,

on the basis of his religion, sex, or national origin in

those certain instances where religion, sex, or national

origin is a bona fide occupational qualification reasonably

necessary to the normal operation of that particular

business or enterprise, and (2) it shall not be an unlawful

employment practice for a school, college, university, or

other educational institution or institution of learning to

hire and employ employees of a particular religion if such

school, college, university, or other educational

institution or institution of learning is, in whole or in

substantial part, owned, supported, controlled, or

managed by a particular religion or by a particular

religious corporation, association, or society, or if the

curriculum of such school, college, university, or other

educational institution or institution of learning is

directed toward the propagation of a particular religion.

(f) Members of Communist Party or Communist-

action or Communist-front organization. As used in this

title [42 USCS §§2000e et seq.|, the phrase ‘unlawful

employment practice’ shall not be deemed to include any

action or measure taken by an employer, labor

organization, joint labor-management committee, or

employment agency with respect to an individual who is

a member of the Communist Party of the United States

or of any other organization required to register as a

Communist-action or Communist-front organization by

final order of the Subversive Activities Control Board

pursuant to the Subversive Activities Control Act of

1950.

(g) National security. Notwithstanding any other

provision of this title [42 USCS §§2000e et seq.], it shall

not be an unlawful employment practice for an employer

to fail or refuse to hire and employ any individual for

any position, for an employer to discharge any individual

A49

from any position, or for an employment agency to fail or

refuse to refer any individual for employment in any

position, or for a labor organization to fail or refuse to

refer any individual for employment in any position, if—

(1) the occupancy of such positicn, or access to

the premises in or upon which any part of the duties

of such position is performed or is to be performed,

is subject to any requirement imposed in the

interest of the national security of the United States

under any security program in effect pursuant to or

administered under any statute of the United States

or any Executive order of the President; and

(2) such individual has not fulfilled or has

ceased to fulfill that requirement.

(h) Seniority or merit system; ability tests.

Notwithstanding any other provision of this title [42

USCS §§2000e et seq.], it shall not be an unlawful

employment practice for an employer to apply different

standards of compensation, or different terms,

conditions, or privileges of employment pursuant to a

bona fide seniority or merit system, or a system which

measures earnings by quantity or quality of production

or to employees who work in different locations, provided

that such differences are not the result of an intention to

discriminate because of race, color, religion, sex, or

national origin, nor shall it be an unlawful employment

practice for an employer to give and to act upon the

results of any professionally developed ability test

provided that such test, its administration or action

upon the results is not designed, intended or used to

discriminate’ because of race, color, religion, sex or

national origin. It shall not be an unlawful employment

practice under this title [42 USCS §§2000e et seq.] for

any employer to differentiate upon the basis of sex in

determining the amount of the wages or compensation

A50

paid or to be paid to employees of such employer if such

differentiation is authorized by the provisions of section

6(d) of the Fair Labor Standards Act of 1938, as

amended (29 U. S. C. 206(d)) [29 USCS §206(d)].

(i) Preferential treatment to Indians living on or

near reservation. Nothing contained in this title [42

USCS §§2000e et seq.] shall apply to any business or

enterprise on or near an Indian reservation with respect

to any publicly announced employment practice of such

business or enterprise under which a_ preferential

treatment is given to any individual because he is an

Indian living on or near a reservation.

(j) Preferential treatment not required on account of

numerical or percentage imbalance. Nothing contained in

this title [42 USCS §$$2000e et seq.] shall be interpreted

to require any employer, employment agency, labor

organization, or joint labor-management committee

subject to this title [42 USCS §§2000e et seq.| to grant

preferential treatment to any individual or to any group

because of the race, color, religion, sex, or national origin

of such individual or group on account of an imbalance

which may exist with respect to the total number or

percentage of persons of any race, color, religion, sex, or

national origin employed by an employer, referred or

classified for employment by any employment agency or

labor organization, admitted to membership or classified

by any labor organization, or admitted to, or employed

in, any apprenticeship or other training program, in

comparison with the total number or percentage of

persons of such race, color, religion, sex, or national

origin in any community, State, section, or other area, or

in the available work force in any community, State,

section, or other area.

(July 2, 1964, P. L. 88-352, Title VII, $703, 78 Stat. 255:

Mar. 24, 1972, P. L. 92-261, §&la), (b), 86 Stat. 109.)

A5l

OHIO REV. CODE ANN. §4112.02(A)

§4112.02 Unlawful discriminator practices.

It shall be an unlawful discriminator practice:

(A) For any employer, because of the race, color,

religion, sex, national origin, handicap, age, or ancestry

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.

(B) For an employment agency, because of race,

color, religion, sex, national origin, handicap, age, or

ancestry to:

(1) Refuse or fail to accept, register, classify

properly, or refer for employment, or otherwise

discriminate against any person;

(2) Comply with a request from an employer for

referral of applicants for employment if the request

indicates directly or indirectly, that the employer fails to

comply with the provisions of sections 4112.01 to

4112.07 of the Revised Code.

(1) Limit or classify its membership on the basis of

race, color, religion, sex, national origin, handicap, age,

or ancestry;

(2) Discriminate against, limit the employment

opportunities of, or otherwise adversely affect the

employment status, wages, hours, or employment

conditions of any person as an employee because of race,

color, religion, sex, national origin, handicap, age, or

ancestry.

A52_

(D) For any employer, labor organization or joint

labor-management committee controlling apprentice

training programs to discriminate against any person

because of race, color, religion, sex, national origin,

handicap, or ancestry in admission to, or employment in,

any program established to provide apprentice training.

(E) Except where based on a bona fide occupational

qualification certified in advance by the commission, for

any employer; employment agency, or labor organization,

prior to employment or admission to membership, to:

(1) Elicit or attempt to elicit any information

concerning the race, color, religion, sex, national origin,

handicap, age, or ancestry, of an applicant for

employment or membership;

(2) Make or keep a record of the race, color, religion,

sex, national origin, handicap, age, or ancestry of any

applicant for employment or membership.

(B) Such proceedings shall be initiated by the filing

of a petition in court as provided in division (A) of this

section and the service of a copy of the said petition

upon the commission and upon all parties who appeared

before the commission. Thereupon the commission shall

file with the court a transcript of the record upon the

hearing before it. The transcript shall include all

proceedings in the case, including all evidence and

proffers of evidence. The court shall thereupon have

jurisdiction of the proceeding and of the questions

determined therein, and shall have power to grant such

temporary relief or restraining order as it deems just and

proper and to make and enter, upon the record and such

additional evidence as the court has admitted, an order

enforcing, modifying and enforcing as so modified, or

setting aside in whole or part, the order of the

A53

commission. The court shall require the posting of a

sufficient bond before granting temporary relief or a

restraining order in a case involving a violation of

division (H) of section 4112.02 of the Revised Code.

commission shall not be considered by the court, unless

the failure or neglect to urge such objection is excused

because of extraordinary circumstances.

(D) The court may grant a request for the

admission of additional evidence when satisfied that such

additional evidence is newly discovered and could not

with reasonable diligence have been ascertained prior to

the hearing before the commission.

(E) The findings of the commission as to the facts

shall be conclusive if supported by reliable, probative,

and substantial evidence on the record and_ such

additional evidence as the court has admitted considered

as a whole.

| (F) The jurisdiction of the court shall be exclusive

and its judgment and order shall be final subject to

appellate review. Violation of the court’s order shall be

punishable as contempt.

(G) The commission's copy of the testimony shall be

available at all reasonable times to all parties without

cost for examination and for the purposes of judicial

review of the order of the commission. The petition shall

be heard on the transcript of the record without

requirement of printing.

(H) If no proceeding to obtain judicial review is

instituted by a complainant, or respondent within thirty

days from the service of order of the commission

pursuant to this section, the commission may obtain a

till

A54

decree of the court for the enforcement of such order

upon showing that respondent is subject to the

commission's jurisdiction and resides or transacts

business within the county in which the petition for

enforcement is brought.

(I) All suits brought under this section shall be

heard and determined as expeditiously as possible.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.