[Cite as Austin v. Ohio Dept. of Adm. Servs., 2008-Ohio-7051.]
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
OHIO DEPARTMENT OF ADMINISTRATIVE SERVICES
Case No. 2007-05202
Judge J. Craig Wright
Magistrate Lee Hogan
Plaintiff brought this action alleging disparate treatment on the basis of race. The
issues of liability and damages were bifurcated and the case proceeded to trial on the
issue of liability.
Plaintiff, an African-American, was employed by defendant from May 1991 until
March 2006. During his employment, plaintiff and a Caucasian co-worker, Adrian Fitch,
had a stressful relationship that was well-known to other employees. Plaintiff asserted
among other things that Fitch raised his voice to him, inappropriately gave him orders
that should have come from management, used profanity and, on one occasion, called
plaintiff a “black nigger.” Plaintiff maintains that he frequently sought management’s
help in dealing with his relationship with Fitch but that management failed to address his
concerns, and that Fitch was never disciplined. For example, on February 19, 2002,
plaintiff reported that Fitch had used foul language in commanding him to do a certain
job and that Fitch had belittled him in front of other employees on various occasions.
Case No. 2007-05202
Although the manager discussed the reported conduct with Fitch, he was not
disciplined. (Plaintiff’s Exhibit 5.)
By contrast, on June 24, 2005, plaintiff was issued a written reprimand as a result
of an incident in which Fitch entered a room and overheard plaintiff, in a conversation
with the union steward, refer to Fitch as an “asshole.” (Plaintiff’s Exhibit 8, Page 1.)
On July 6, 2005, plaintiff filed a grievance concerning the reprimand wherein he
asserted that the discipline was not commensurate with the conduct and that
management had failed to investigate plaintiff’s concerns that Fitch might become
violent toward him. The grievance was denied at all three steps of the hearing process.
(Plaintiff’s Exhibit 8, Pages 2-6.)
Plaintiff alleges that in January 2006, he and several others were watching
television during their lunch break when a report was aired concerning a shooting
incident between two co-workers. Plaintiff maintains that he commented to the effect
that he could understand how such a thing could happen because the person who did
the shooting was probably getting treated as poorly as he was. Subsequently, coworkers to whom plaintiff made other comments referencing both Fitch and shooting,
reported plaintiff’s comments to management. Plaintiff was placed on administrative
leave, an investigation was conducted, and plaintiff’s employment was ultimately
terminated. Plaintiff contends that his comments were made in jest, that no one took
them seriously, and that his termination was unduly harsh in comparison to treatment
Fitch received for his conduct toward plaintiff.
Former R.C. 4112.02(A) states: “It shall be an unlawful discriminatory practice:
(A) For any employer, because of the race, color, religion, sex, national origin, disability,
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
Case No. 2007-05202
Disparate treatment discrimination has been described as “the most easily
understood type of discrimination.
The employer simply treats some people less
favorably than others because of their race, color, religion, sex, or national origin.”
Teamsters v. United States (1977), 431 U.S. 324, 335-336, fn. 15.
In a disparate
treatment case, liability depends upon whether the protected trait actually motivated the
employer’s decision. Hazen Paper Co. v. Biggins (1993), 507 U.S. 604, 610. For
example, the “employer may have relied upon a formal, facially discriminatory policy
that required adverse treatment” of protected employees, or the “employer may have
been motivated by the protected trait on an ad hoc, informal basis.” Id. “Whatever the
employer’s decisionmaking process, a disparate treatment claim cannot succeed unless
the employee’s protected trait actually played a role in that process and had a
determinative influence on the outcome.” Id.
In order to establish discrimination in a
disparate treatment case, the plaintiff initially has the burden of proving a prima facie
case of discrimination. Texas Dept. of Community Affairs v. Burdine (1981), 450 U.S.
248, 252-253. Inasmuch as there was no direct evidence of racial discrimination in this
case, plaintiff was required to show: 1) that he was a member of a protected class; 2)
that he suffered an adverse employment action; 3) that he was qualified for the position
he lost; and 4) that a comparable non-protected person was treated more favorably for
the same or similar conduct. See, e.g., McDonnell Douglas Corp. v. Green (1973), 411
At the close of plaintiff’s case, defendant moved the court for dismissal pursuant
to Civ.R. 41(B)(2) on the ground that plaintiff had failed to establish a prima facie case.
The court overruled that motion based upon the finding that plaintiff had satisfied the
first three requirements and that, despite defendant’s arguments to the contrary, there
was some evidence that Fitch, a comparable, non-protected employee, was treated
more favorably than plaintiff for similar conduct.
Thus, the burden of production shifted to defendant to articulate some legitimate,
nondiscriminatory reason for its action. Burdine, supra, at 253.
Case No. 2007-05202
Defendant produced evidence to demonstrate that there was no racial bias
involved in the decision to terminate plaintiff’s employment, to document that he had
been progressively disciplined, and to substantiate its contentions that plaintiff made
serious, threatening remarks in violation of defendant’s established Workplace Violence
Although the court initially doubted whether plaintiff made the
statements that were attributed to him or, if made, that they were perceived as
threatening by anyone who heard them, the overwhelming weight of defendant’s
evidence establishes that plaintiff made comments that were much more deliberate and
disturbing than were described in his case in chief. Specifically, the court is convinced
that plaintiff made comments on separate occasions to co-workers Larry Davenport,
Clara Taylor, and Kenny Keirns, to the effect that he should get a gun and “blow
[Fitch’s] fucking brains out.”
Moreover, defendant’s witnesses established that in the six to twelve months
prior to the termination, plaintiff’s work performance had deteriorated and that plaintiff
had intimated that he was experiencing personal problems. There was also testimony
that some co-workers observed signs that plaintiff was abusing alcohol. In addition to
the previously discussed June 24, 2005 written reprimand, plaintiff had been verbally
reprimanded on March 4, 2005, regarding an unauthorized absence, and on August 9,
2005, he was issued a five-day suspension for neglect of duty, failure of good behavior,
(Defendant’s Exhibit B.)
All of these factors, in light of the
longstanding animosity between plaintiff and Fitch, and plaintiff’s frustration over losing
his grievance at every step of the process, created a classic scenario for potential
violence that no employer could ignore.
In short, defendant clearly established a
legitimate, nondiscriminatory basis for termination of plaintiff’s employment.
Having so found, the court must next determine whether plaintiff demonstrated
by a preponderance of the evidence that the reasons offered by defendant were not its
true reasons, but were a pretext for discrimination. McDonnell Douglas, supra, at 804.
Case No. 2007-05202
The court must find either: “‘(1) that the proffered reason had no basis in fact, (2) that
the proffered reason did not actually motivate the discharge, or (3) that the proffered
reason was insufficient to motivate the discharge.’” Owens v. Boulevard Motel Corp.
(Nov. 5, 1998), Franklin App. No. 97APE12-1728, quoting Frantz v. Beechmont Pet
Hosp. (1996), 117 Ohio App.3d 351.
Upon review, the court finds that the totality of the evidence demonstrates that
defendant’s proffered reasons were based in fact, that they were not a pretext, and that
they were sufficient to justify plaintiff’s termination. Plaintiff simply did not establish that
he was treated differently than Fitch or any other comparable co-worker who was not
Other than plaintiff’s own testimony, there was no evidence to
corroborate that Fitch made derogatory racial comments to him. With regard to the
incident in which Fitch allegedly used profanity in reference to plaintiff, defendant’s
witnesses testified credibly that, unlike the incident for which plaintiff received a written
reprimand, no one overheard the comment attributed to Fitch, rather, it was “one
person’s word against the other.” Both parties were interviewed separately about the
incident and, after Fitch acknowledged that profanity could not be tolerated in the
workplace, it was determined that the matter need not progress any further. In addition,
plaintiff’s testimony that he had repeatedly asked for management’s help was not
corroborated by other evidence. To the contrary, defendant’s witnesses testified that
Fitch complained to management frequently but that plaintiff did not and that, if plaintiff
was asked if there was anything that management could help him with, he would
typically reply that he could handle the situation, whether it was conflict with Fitch or
with his personal problems and declining work performance.
In the final analysis,
plaintiff failed to prove by a preponderance of the evidence that he was discriminated
against on the basis of his race, that he was treated less favorably as a result of his
race, or that the decision to terminate his employment was racially motivated.
Therefore, it is recommended that judgment be granted in favor of defendant.
Case No. 2007-05202
A party may file written objections to the magistrate’s decision within 14 days of
the filing of the decision, whether or not the court has adopted the decision during that
14-day period as permitted by Civ.R. 53(D)(4)(e)(I). If any party timely files objections,
any other party may also file objections not later than ten days after the first objections
are filed. A party shall not assign as error on appeal the court’s adoption of any factual
finding or legal conclusion, whether or not specifically designated as a finding of fact or
conclusion of law
under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that
factual finding or legal conclusion within 14 days of the filing of the decision, as required
by Civ.R. 53(D)(3)(b).
Emily M. Simmons
Stephanie D. Pestello-Sharf
Assistant Attorneys General
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130
Filed December 3, 2008
To S.C. reporter January 20, 2009
Kendall D. Isaac
5340 East Main Street, Suite 202
Columbus, Ohio 43213