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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 485 U.S. 977

## Text

py

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

I.

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

V.

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

15

( 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.

2

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.

3

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,

4

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

5
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.”

6

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,

7

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.

8

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

9
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

10

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

11

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

12

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

13

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,

14

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

15

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!

17

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.

18

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.

19

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

20

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.

21
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

A2

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.

A3

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.

A4

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.

A5

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

A6

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). -

A7

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

A8

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

A9

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,
v.

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

4

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.

a

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.

(c) Labor organization. It shall be an unlawful
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.

(C) For any labor organization to:

(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.

(C) An objection that has not been urged before the
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1318%3A1. Public record. Not legal advice.