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IN THE COURT OF COMMON PLEAS
FOR SUMMIT COUNTY, OHIO
GENERAL DIVISION
SUMMIT COUNTY CHILDREN
SERVICES
264 South Arlington Street
Akron, OH 44306
JUDGE:
Respondent-Appellant,
CASE NO:
OHIO CIVIL RIGHTS COMMISSION
30 East Broad Street, 5th Floor
Columbus, OH 43215
-and-
DEBORAH WEBB
750 Mull Avenue, Apt. 3F
Akron, OH 44313
Complainants-Appellees.
PETITION FOR JUDICIAL REVIEW
(R.C. 4112.06)
Respondent-Appellant, Summit County Children Services (“SCCS”), by and through
undersigned counsel and pursuant to R.C. 4112.06, hereby petitions this Honorable Court for
judicial review of the Final Order of the Ohio Civil Rights Commission mailed on September 27,
2023 and served on SCCS on October 3, 2023. That Final Order, attached hereto as Exhibit A, is
not supported by reliable, probative, and substantial evidence and is not in accordance with
applicable law. The previous Report and Recommendation of the Administrative Law Judge
(dated July 26, 2023) is attached hereto as Exhibit B.
Sandra Kurt, Summit County Clerk of Courts
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Please take the necessary steps to commence this Petition, including, but not limited to,
assignment of a case number and docketing of this action.
Dated: October 4, 2023 Respectfully submitted,
/s/ Daniel J. Rudary
John N. Childs (0023489)
Daniel J. Rudary (0090482)
Bryan E. Meek (0093554)
BRENNAN, MANNA & DIAMOND, LLC
75 E. Market Street
Akron, OH 44308
Phone: (330) 253-5060
Fax: (330) 253-1977
E-mail: jnchilds@bmdllc.com
djrudary@bmdllc.com
bmeek@bmdllc.com
Counsel for Respondent-Appellant Summit County
Children Services Board
Sandra Kurt, Summit County Clerk of Courts
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CERTIFICATE OF SERVICE
Thereby certify that on the 4th day of October, 2023, a copy of the foregoing was sent via
regular U.S. Mail to:
Desmon Martin
Director of Enforcement and Compliance
Ohio Civil Rights Commission
State Office Tower, 5" Floor
30 East Broad St.
Columbus, OH 43215-3414
And by electronic mail to the following parties and counsel of record
The Hon. Denise Johnson
Chief Administrative Law Judge
Ohio Civil Rights Commission
Denise.Johnson@civ.ohio.gov
OCRC.Hearings@civ.ohio.gov
Kim Kipp, Paralegal
Kimberly.Kipp@civ.ohio.gov
Chief Administrative Law Judge
David A. Oppenheimer, Esq.
Principal Assistant Attorney General
615 W. Superior Ave., 11" Floor
Cleveland, OH 44113
David.o) enheimer@OhioAGO.gov
Counsel for the Ohio Civil Rights Commission
Edward Gilbert, Esq.
EDWARD L. GILBERT CO., LPA
One Cascade Plaza, Suite 825
Akron, OH 44308
gilbert@edwardlgilbert.com
Counsel for Complainant Deborah Webb
/s/ Daniel J. Rudary
Counsel for Respondent-Appellant SCCS
4863-9451-6100, v. 1
Sandra Kurt, Summit County Clerk of Courts
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F:
Mike DeWine, Gov emor
IN THE MATTER OF: COMPLAINT NO. 21-EMP-AKR-40811
[DEBORAH WEBB]
DEBORAH K. WEBB
DENISE M. JOHNSON
AND ADMINISTRATIVE LAW JUDGE
COUNTY OF SUMMIT,
CHILDREN SERVICES
Respondent
CEASE AND DESIST ORDER
This matter came before the Commission upon Complaint, Notice of Hearing
No. 21-EMP-
AKR-40811, July 29, 2020, and issued a notice of hearing April 7, 2021.
The official record of the
public hearing held on November 3-4, 2021, before Denise M. Johnson, the
duly appointed Chief
Administrative Law Judge; all exhibits therein; the post-hearing briefs submitted by the
Commission on February 23, 2022, Complainant’s Supplemental post-hearing
brief filed on March
11, 2022, Respondent’s post-hearing brief filed on March 15, 2022, and the
Commission’s Reply
Brief on March 22, 2022; Judge Johnson’s Findings of Fact, Conclusions of Law and
Recommendations dated July 26, 2023.
The Complaint alleged that Respondent, County of Summit, Children Services, failed to
engage in the interactive process to determine whether a reasonable accommo
dation could be
afforded for Complainant, a qualified person with a disability and, (2) Respond
ent’s refusal to
1
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accommodate Complainant resulted in Complainant being constructively discharged after
Complainant exhausted her leave time because she was unable to return
to work without restrictions
and being denied a reasonable accommodation due to her disability
in violation of R.C. 41 12.02(A).
After the public hearing, the Chief Administrative Law Judge
recommended that the
Commission find that Respondent engaged in unlawful conduct as alleged and ordered the
following relief:
@) Make an offer of reinstatement to Complainant as a Social Worker
Assistant.
2) Pay Complainant $79,565.60 in back pay from July 2, 2020,
up until
February 23, 2022, and $958.80 per week until an offer of the
reinstatement
is made, and
GB) Receive training on the anti-discrimination laws in Ohio within
six (6)
months of the date of the Commission’s Final Order.
(4) As proof of participation in anti-discrimination training, Respondent shall
submit certification from the trainer or provider of services that Respon
dent
has successfully completed the training. The letter of certification
shall be
submitted to the Commission’s Compliance Department within seven
(7)
months of the date of the Commission’s Final Order.
With all matters now before it and carefully considered, the Commission
hereby adopts and
incorporates, as if fully rewritten herein, the findings of fact, conclusions of law, and
recommendations contained in the Chief Administrative Law Judge’s Report and
Recommendation dated July 26, 2023. Therefore, Respondent is ordered to:
Cease and Desist from all discriminatory practices in violation of | Chapter
4112 of the Ohio
Revised Code. The Commission orders Respondent within 10 days of
the Commission’s
2
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Final Order to:
() Make an offer of reinstatement to Complainant as a Social Worker Assistant.
(2) Pay Complainant $79,565.60 in back pay from July 2, 2020, up until February 23,
2022, and $958.80 per week until an offer of reinstatement ismade.
(G) Receive training on the anti-discrimination laws in Ohio within six (6) months of
the date of the Commission’s Final Order.
(4) As proof of participation in anti-discrimination training, Respondent shall submit
certification from the trainer or provider of services that Respondent has successfully
completed the training.
(5) The letter of certification shall be submitted to the Commission’s Compliance
Department within seven (7) months of the date of the Commission’s Final Order.
(6) Within six (6) months of the date of the Commission’s Final Order, receive training
regarding the anti-discrimination employment laws of the State of Ohio, and to provide
verification therefore:
(5) Within six (6) months of the Commission’s Final Order, submit their Letters
of
Certification of Training to the Commission’s Compliance Department.
This ORDER issued by the Ohio Civil Rights Commission on this bay of
September 2023.
Wc
Valerie A. Lemmie, Chair
Ka,
Commissioner, Ohio Civil Rights Commission
Sandra Kurt, Summit County Clerk of Courts
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NOTICE OF RIGHT TO JUDICIAL REVIEW
Notice is hereby given to all parties herein that Revised Code Section 4112.06 sets forth
the right to obtain judicial review of this Order and the mode and procedure thereof.
CERTIFICATE
I, Desmon Martin, Director of Enforcement and Compliance of the Ohio Civil Rights
Commission, do hereby certify that the foregoing is a true and accurate copy of the Order issued
in the above-captioned matter and filed with the Commission at its Central Office in Columbus,
Ohio.
TD TK
DESMON MARTIN
Director of Enforcement and Compliance
Ohio Civil Rights Commission
Sandra Kurt, Summit County Clerk of Courts
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Soup»
OHIO CIVIL RIGHTS COMMISSION
ald eS
Governor Mike DeWine
Commissioners: Valerie A. Lemmie, Chair | Lori Barreras | William Patmon, II] | Madhu Singh | Charlie Winburm
Executive Director Angela Phelps-White
July 26, 2023
Deborah K. Webb John N. Childs, Esq.
750 Mull Avenue, Apt. 3F Daniel J. Rudary, Esq.
Akron, OH 44313 Brian Meek, Esq.
Compiainant Brennan, Manna, and Diamond, LLC
75 East Market Street
David Oppenheimer, Esq. Akron, OH 44308
Principal Assistant Attorney General Counsel for Respondent
Civil Rights Section
615 West Superior Avenue, 11t Floor
Cleveland, OH 44113
Counsel for Commission
Edward L. Gilbert, Esq.
Edward L. Gilbert Co. LPA
One Cascade Plaza, Suite 825
Akron, OH 44308
Re: Deborah K. Webb v. County of Summit, Children Services
Complaint No. 21-EMP-AKR-40811
Enclosed is a copy of the Administrative Law Judge’s Findings of Fact, Conclusions of
Law, and Recommendation(s) (ALJ’s Report). You may submit a Statement of
Objections to the ALJ’s Report within twenty-three (23) days from the mailing date of
this report. A request to appear before the Commission must also be submitted by
this date.
Pursuant to Ohio Admin. Code § 4112-1-02, your Statement of Objections must be
teceived by the Commission no later than August 18, 2023. No extension of time
will be granted.
Any objections received after this date will be untimely filed and cannot be considered
by the Ohio Civil Rights Commission.
EXHIBIT
B
CENTRAL OFFICE | Rhodes State Office Tower 30 E. Broad St., 5‘ Floor Columbus, OH 43215 - 3414
PHONE: 614-466-2785 | TOLL FREE: 1-888-278-7101 | TTY: 614-752-2391 | FAX: 614-644-8776
www.civ.ohio.gor
Sandra Kurt, Summit County Clerk of Courts
CV-2023-10-3782 BAKER ROSS, SUSAN 10/04/2023 16:18:28 PM cmMco, Page 10 of 51
in,
$
OHIO CIVIL RIGHTS COMMISSION
GS daa
Governor Mike DeWine
Commissioners: Valerie A. Lemmie, Chair | Lori Barreras | William Patmon, III | Madhu Singh | Charlie Winburn
Executive Director Angela Phelps-White
Please send the original Statement of Objections to: Desmon Martin, Director of
Enforcement and Compliance, Ohio Civil Rights Commission, State Office
Tower, 5th Floor, 30 East Broad Street, Columbus, Ohio 43215-3414. All parties
and the Administrative Law Judge should receive copies of your Statement of
Objections.
FOR THE COMMISSION:
Desmon Martin /kk
Desmon Martin
Director of Enforcement and Compliance
Enclosure
cc: Angela Phelps-White, Executive Director/Joseph McDonald, General Counsel
CENTRAL OFFICE | Rhodes State Office Tower 30 E. Broad St., St Floor Columbus, OH 43215 - 3414
PHONE: 614-466-2785 | TOLL FREE: 1-888-278-7101 | TTY: 614-752-2391 | FAX: 614-644-8776
www.civ.ohio.gov
Sandra Kurt, Summit County Clerk of Courts
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eGuan
SA
QD
ara
IN THE MATTER OF:
Deborah K. Webb
Complainant,
Complaint No. 21-EMP-AKR-40811
Vv.
County of Summit, Children Services
Respondent.
ADMINISTRATIVE LAW JUDGE'S
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS
DAVE YOST
ATTORNEY GENERAL
David Oppenheimer, Esq. Summit County Children Services
Principal Assistant Attorney Ge 264 South Arlington Street
Civil Rights Section Akon, OH 44306
615 West Superior Avenue, 11% Respondent
Floor
Cleveland, OH 44113 John N. Childs, Esq.
Counsel for Commission Daniel J. Rudary, Esq.
Brian Meek, Esq.
Edward 1. Gilbert, Esq. Brennan, Manna, and Diamond, LLC
Edward L. Gilbert Co. LPA 75 East Market Street
One Cascade Plaza, Suite 825 Akron, OH 44308
Akron, OH 44308 Counsel for Respondent
Counsel for Complainant
Deborah K. Webb
750 Mull Avenue, Apt. 3F
Akron, OH 44313 ALJ’S REPORT
Complainant Denise M. Johnson
Ohio Civil Rights Commission
Division of Hearings
30 East Broad Street, 5 Floor
Columbus, OH 43215
(614) 466-6684
Chief Administrative Law Judge
Sandra Kurt, Summit County Clerk of Courts
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INTRODUCTION AND PROCEDURAL HISTORY
Deborah Webb (Complainant) filed a sworn charge affidavit
with the Ohio Civil Rights Commission (Commission) on July 29,
2020.
The Commission investigated and found probable cause to
believe that the Summit County Children’s Services (Respondent)
engaged in unlawful employment practices in violation of Revised
Code Sections (R.C.) 4112.02(A).
The Commission attempted, but failed, to resolve this matter
by informal methods of conciliation. The Commission subsequently
issued a Complaint and Notice of Hearing on April 7, 2021.
Respondent filed an answer on May 5, 2021. Respondent
admitted some procedural allegations but denied that they engaged
in any unlawful discriminatory practices.
The Commission alleged in the complaint that Respondent
violated R.C. 4112.02 (A) by engaging in the following conduct: (1)
Respondent failed to engage in the interactive process to determine
whether a reasonable accommodation could be afforded for
Complainant, a qualified person with a disability and, (2)
Respondent’s refusal to accommodate Complainant resulted in
Complainant being constructively discharged after Complainant
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exhausted her leave time because she was unable to return to work
without restrictions.
A public hearing was held on November 3-4, 2021. The record
contains the previously described pleadings, a hearing transcript
consisting of 539 pages, exhibits admitted at the hearing, a post-
hearing brief filed by the Commission on February 23, 2022,
Complainant’s supplemental post-hearing brief filed on March 11,
2022, Respondent’s post-hearing brief filed on March 15, 2022, and
a reply brief filed by the Commission on March 22, 2022.
Sandra Kurt, Summit County Clerk of Courts
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FINDINGS OF FACT
The following findings of fact are based, in part, upon the
ALJ’s assessment of the credibility of the witnesses who testified
before her in this matter. The ALJ has applied the tests of
worthiness of belief used in current Ohio practice. For example,
she considered each witness’s appearance and demeanor while
testifying. She considered whether a witness was evasive and
whether his or her testimony appeared to consist of subjective
opinion rather than factual recitation. She further considered the
opportunity each witness had to observe and know the things
discussed, each witness’s strength of memory, frankness or lack of
frankness, and the bias, prejudice, and interest of each witness.
Finally, the ALJ considered the extent to which each witness’s
testimony was supported or contradicted by reliable documentary
evidence.
1 Complainant filed a charge with the Commission on July 29,
2020.
2. The Commission determined on October 20, 2020, that it was
probable that Respondent engaged in unlawful discriminatory
practices in violation of R.C. 4112.02(A).
3 The Commission attempted to resolve this matter by informal
methods of conciliation.
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The Commission issued the Complaint after conciliation efforts
failed.
Respondent is an agency of Summit County charged with
protecting children from abuse and neglect. (Tr, 37-38, 152-
153, 418-420)
Complainant began her employment with Respondent on
August 8, 2000, working four (4) days a week as a Social
Worker Assistant (SWA). (Tr. 151-152)
Complainant also worked one (1) day a week as a substitute
teacher for Akron public schools. (Tr. 150-152)
The duties of the SWA varied depending upon which
department/unit they were assigned to. (Tr. 38-39, 48-50,
92-93, 416-417)
Some employees received and investigated reports of abuse
and neglect. (Id.)
10 Others worked with families in crisis, helping them obtain
resources, (Id.)
11 Some monitored and cared for children in custody in the Just
for Kids (JFK) room until Respondent found placement for
those children. (Id.)
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12 Others transported children to and from medical
appointments, and supervised visitations between children
and their biological parents. (Id.)
13 Some secured and completed paperwork for children for
school enrollments, drugs they may be taking, setting up child
support, and establishing paternity. (Id.)
14 From the beginning of her employment until October of 2019
Complainant worked at different times as a SWA in a variety of
departmental units where she performed the following duties:
supervised children, helped families secure resources, entered
school enrollments and transported children to doctor
appointments, and supervised visits. (Tr. 90, 94-95, 153-163,
337-339, 427-428, 489-490)
15 Starting in 2017, Complainant began to have issues with her
right foot. (Tr. 169-174) (Comm. Exh. 1)
16 Complainant went to the doctor because she was in so much
pain that she was limping and could not walk or wear hard
shoes. (Id.)
17 Complainant was diagnosed with Crossover Hammertoe
Deformity, right second toe. (Id.)
18 Complainant had a bunion growing out of the side of her foot
that caused one of her toes to curl up. (Id.)
e
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1 Complainant’s doctor stated that the only way to alleviate the
hammer toe was through surgery. (Tr. 169-174) (Comm. Exh.
1)
20 In August 2019, Complainant’s condition progressed to the
point where she reached out to her doctor to ask how long she
would be off from work post-surgery. (Id.)
21 Complainant’s doctor informed her that her return to work
date would depend on her recovery and whether she did office
work or non-office work. (Tr. 172-173) (Comm. Exh. 1)
22 In October 2019, Complainant moved to the Medical Unit
(“MU”). (Tr. 163)
a3: In the MU, Complainant worked with Tina Thiel (“Thiel”),
another SWA.
24 Complainant and Thiel were supervised by Lisa Bouplon
(“Bouplon”), Administrative Assistant Clerical Supervisor, (Tr.
59, 163-164, 338-340)
25 Complainant and Thiel performed the same duties. (Tr. 67-72)
26 Thiel’s primary responsibility was child support enforcement
while Complainant was responsible for school enrollments.
(Id.)
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27 Respondent used two computer programs in their office,
Traverse and the State Automated Child Welfare Information
System (“SACWIS”), the Ohio database for Children’s Services
in all Ohio counties. (Tr. 51, 53, 88, 424)
28 Traverse was the shared network drive or electronic document
management system used by Respondent to upload
documents into SACWIS. (Id.)
29 Complainant’s and Thiel’s duties consisted of: (1) entering the
psychotropic drugs into Traverse and SACWIS, (2) school
enrollments, and (3) entering the results of drug testing into
the system. (Tr. 36-37, 39-43, 59, 164-164, 339-341, 371-
372, 380-381, 490)
30 Complainant received an email from Bouplon or a caseworker
asking her to begin a school enrollment. (Id.)
31 Complainant received enrollment forms via fax, email, or
through a school’s website. (Tr. 44-47, 95-96, 156-158, 164-
166, 344-347, 351, 379-380)
32 Complainant submitted the majority of forms to the schools
the same way she received them, only going to a school in
person every few months. (Tr. 44-48, 71-72)
33 Complainant was also responsible for obtaining medical
reports regarding psychotropic drugs prescribed to children in
7
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SCCS’s custody. (Tr. 163-164, 166-168, 294-296, 344-345,
347-348)
34 Complainant entered these reports into Traverse. (Id.)
35 Additionally, Complainant and Thiel were also responsible for
covering breaks for the Just for Kid’s Room (“JFK). (Tr. 442)
36 The JFK room is where children are cared for after Respondent
is given custody until placement can be secured for the child.
(Tr. 90, 153)
ay Complainant informed Donna Testa (‘Testa’), Human
Resources Supervisor, and Bouplon that she needed to be off
work prior to her scheduled surgery date of February 12,
2020. (Tr. 96-97, 173-174)
38 Testa received requests for and processed all documents for
employees requesting accommodations and/or medical leave.
(Tr, 74-76, 78-83, 409, 411) (Comm. Exh. 2, 3)
39 Testa reported to Valerie Nash (“Nash”), Director of Human
Resources. (Tr. 396-409)
40 Nash oversaw the Human Resources Department and was
responsible for setting several policies, including requests for
accommodation. (Id.)
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#1, Testa informed Nash about Complainant’s need for leave and
sent Complainant FMLA paperwork. (Id.) (Comm. Exh. 5)
42 Bouplon instructed Complainant to call Respondent each day
she was off until her doctor’s documentation was received.
(Tr. 178) (Comm. Exh. 6)
43 Shortly after Complainant’s surgery, the nation suffered the
effects of the global pandemic.
44 On February 14, 2020, Complainant texted Bouplon that she
would not bein. (Id.)
45 On the same day, Complainant went to the doctor’s office for
her follow up appointment. (Tr, 98-99, 168, 177- 179) (Comm.
Exh. 1, 6, 7, 8)
46 The doctor’s office provided Respondent with a Return-to-Work
note stating that Complainant “was unable to work at this
time.” (Id.)
47 The note gave a return to work date of April 13, 2020. (Comm.
Exh. 8)
48 Complainant’s next follow-up appointment was February 17,
2020. (Comm. Exh. 1)
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49 Complainant could not apply weight to the affected foot and
used a rolling knee walker. (Comm. Exh. 1)
50 Complainant only left the house to go to medical
appointments. (Tr. 179-188, 195-199) (Comm. Exh. 1, 7, 9)
Sl Complainant returned to the doctor on March 2, 2020. She
complained of pain and swelling with activities. (Tr. 182-183)
(Comm. Exh. 1)
52 On March 19, 2020, Respondent began a work-from-home
status based on the governor’s stay at home order due to the
global pandemic. (Tr. 61-62, 103-104, 185, 364-365, 437-
440, 514-516)
53 Staff members who were assigned to work from home took
home scanners and computers so they could do their jobs.
(Id.)
54 With some exceptions, these staff members would go to the
office periodically to pick up mail and perform some job duties.
(Id.)
53 During March of 2020 Respondent hired Leah Howard
(“Howard”) and Geralyn Folz (“Folz”) as SWAs to manage the
JFK room. (Tr. 442-443)
56 Howard and Folz did not have equipment to work from home.
10
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57 On March 30, 2020, Complainant saw her doctor and
indicated she still had pain and swelling with activity. (Tr.
185-189, 197-200, 260-261) (Comm. Exh. 1)
58 The doctor gave Complainant a note with a new estimated
return to work date of June 15, 2020. (Id.) (Comm. Exh. 10)!
59 Complainant provided the note to Respondent. (Tr. 98-99,
101-102, 188-189) (Comm. Exh. 10)
60 Complainant text messaged Bouplon telling her that she
would be contacting HR regarding returning to work. (Comm,
Exh. 6)
61 Bouplon asked Complainant when she was returning to work
and informed Complainant that she was out of sick leave and
wanted to know what other available paid leave she wanted to
use. (Id.)
62 Bouplon then told Complainant that when she returned to the
agency, she needed to meet with Complainant so “we can get
everything together so you can work from home.” (Id.)
63 Complainant emailed Sarah Grubb (“Grubb”), an HR employee
in charge of timecards, to obtain the amount of leave she had
available. (Tr. 190-191) (Comm. Exh. 6, 11)
1 On the face of the note the medical provider was able to give either an
“estimated” or “actual” return to work date.
11
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64 On May 4, 2020, Complainant had an appointment with her
doctor and told him that her foot still swelled.
65 Complainant could not wear a shoe, was unable to drive, and
was still using the knee walker. (Tr. 102, 191-193, 496)
(Comm. Exh. 1, 12) (Resp. Exh. G)
66 Complainant could not walk without pain. She was un
Preview
CV-2023-10-3782 BAKER ROSS, SUSAN 10/04/2023 16:18:28 PM cmMco, Page 1 of 51 IN THE COURT OF COMMON PLEAS FOR SUMMIT COUNTY, OHIO GENERAL DIVISION SUMMIT COUNTY CHILDREN SERVICES 264 South Arlington Street Akron, OH 44306 JUDGE: Respondent-Appellant, CASE NO: OHIO CIVIL RIGHTS COMMISSION 30 East Broad Street, 5th Floor Columbus, OH 43215 -and- DEBORAH WEBB 750 Mull Avenue, Apt. 3F Akron, OH 44313 Complainants-Appellees. PETITION FOR JUDICIAL REVIEW (R.C. 4112.06) Respondent-Appellant, Summit County Children Services (“SCCS”), by and through undersigned counsel and pursuant to R.C. 4112.06, hereby petitions this Honorable Court for judicial review of the Final Order of the Ohio Civil Rights Commission mailed on September 27, 2023 and served on SCCS on October 3, 2023. That Final Order, attached hereto as Exhibit A, is not supported by reliable, probative, and substantial evidence and is not in accordance with applicable law. The previous Report and Recommendation of the Administrative Law Judge (dated July 26, 2023) is attached hereto as Exhibit B. Sandra Kurt, Summit County Clerk of Courts CV-2023-10-3782 BAKER ROSS, SUSAN 10/04/2023 16:18:28 PM cmMco, Page 2 of 51 Please take the necessary steps to commence this Petition, including, but not limited to, assignment of a case number and docketing of this action. Dated: October 4, 2023 Respectfully submitted, /s/ Daniel J. Rudary John N. Childs (0023489) Daniel J. Rudary (0090482) Bryan E. Meek (0093554) BRENNAN, MANNA & DIAMOND, LLC 75 E. Market Street Akron, OH 44308 Phone: (330) 253-5060 Fax: (330) 253-1977 E-mail: jnchilds@bmdllc.com djrudary@bmdllc.com bmeek@bmdllc.com Counsel for Respondent-Appellant Summit County Children Services Board Sandra Kurt, Summit County Clerk of Courts CV-2023-10-3782 BAKER ROSS, SUSAN 10/04/2023 16:18:28 PM cmMco, Page 3 of 51 CERTIFICATE OF SERVICE Thereby certify that on the 4th day of October, 2023, a copy of the foregoing was sent via regular U.S. Mail to: Desmon Martin Director of Enforcement and Compliance Ohio Civil Rights Commission State Office Tower, 5" Floor 30 East Broad St. Columbus, OH 43215-3414 And by electronic mail to the following parties and counsel of record The Hon. Denise Johnson Chief Administrative Law Judge Ohio Civil Rights Commission Denise.Johnson@civ.ohio.gov OCRC.Hearings@civ.ohio.gov Kim Kipp, Paralegal Kimberly.Kipp@civ.ohio.gov Chief Administrative Law Judge David A. Oppenheimer, Esq. Principal Assistant Attorney General 615 W. Superior Ave., 11" Floor Cleveland, OH 44113 David.o) enheimer@OhioAGO.gov Counsel for the Ohio Civil Rights Commission Edward Gilbert, Esq. EDWARD L. GILBERT CO., LPA One Cascade Plaza, Suite 825 Akron, OH 44308 gilbert@edwardlgilbert.com Counsel for Complainant Deborah Webb /s/ Daniel J. Rudary Counsel for Respondent-Appellant SCCS 4863-9451-6100, v. 1 Sandra Kurt, Summit County Clerk of Courts CV-2023-10-3782 BAKER ROSS, SUSAN 10/04/2023 16:18:28 PM cmMco, Page 4 of 51 F: Mike DeWine, Gov emor IN THE MATTER OF: COMPLAINT NO. 21-EMP-AKR-40811 [DEBORAH WEBB] DEBORAH K. WEBB DENISE M. JOHNSON AND ADMINISTRATIVE LAW JUDGE COUNTY OF SUMMIT, CHILDREN SERVICES Respondent CEASE AND DESIST ORDER This matter came before the Commission upon Complaint, Notice of Hearing No. 21-EMP- AKR-40811, July 29, 2020, and issued a notice of hearing April 7, 2021. The official record of the public hearing held on November 3-4, 2021, before Denise M. Johnson, the duly appointed Chief Administrative Law Judge; all exhibits therein; the post-hearing briefs submitted by the Commission on February 23, 2022, Complainant’s Supplemental post-hearing brief filed on March 11, 2022, Respondent’s post-hearing brief filed on March 15, 2022, and the Commission’s Reply Brief on March 22, 2022; Judge Johnson’s Findings of Fact, Conclusions of Law and Recommendations dated July 26, 2023. The Complaint alleged that Respondent, County of Summit, Children Services, failed to engage in the interactive process to determine whether a reasonable accommo dation could be afforded for Complainant, a qualified person with a disability and, (2) Respond ent’s refusal to 1 Sandra Kurt, Summit County Clerk of Courts CV-2023-10-3782 BAKER ROSS, SUSAN 10/04/2023 16:18:28 PM cmMco, Page 6 of 51 accommodate Complainant resulted in Complainant being constructively discharged after Complainant exhausted her leave time because she was unable to return to work without restrictions and being denied a reasonable accommodation due to her disability in violation of R.C. 41 12.02(A). After the public hearing, the Chief Administrative Law Judge recommended that the Commission find that Respondent engaged in unlawful conduct as alleged and ordered the following relief: @) Make an offer of reinstatement to Complainant as a Social Worker Assistant. 2) Pay Complainant $79,565.60 in back pay from July 2, 2020, up until February 23, 2022, and $958.80 per week until an offer of the reinstatement is made, and GB) Receive training on the anti-discrimination laws in Ohio within six (6) months of the date of the Commission’s Final Order. (4) As proof of participation in anti-discrimination training, Respondent shall submit certification from the trainer or provider of services that Respon dent has successfully completed the training. The letter of certification shall be submitted to the Commission’s Compliance Department within seven (7) months of the date of the Commission’s Final Order. With all matters now before it and carefully considered, the Commission hereby adopts and incorporates, as if fully rewritten herein, the findings of fact, conclusions of law, and recommendations contained in the Chief Administrative Law Judge’s Report and Recommendation dated July 26, 2023. Therefore, Respondent is ordered to: Cease and Desist from all discriminatory practices in violation of | Chapter 4112 of the Ohio Revised Code. The Commission orders Respondent within 10 days of the Commission’s 2 Sandra Kurt, Summit County Clerk of Courts CV-2023-10-3782 BAKER ROSS, SUSAN 10/04/2023 16:18:28 PM cmMco, Page 7 of 51 Final Order to: () Make an offer of reinstatement to Complainant as a Social Worker Assistant. (2) Pay Complainant $79,565.60 in back pay from July 2, 2020, up until February 23, 2022, and $958.80 per week until an offer of reinstatement ismade. (G) Receive training on the anti-discrimination laws in Ohio within six (6) months of the date of the Commission’s Final Order. (4) As proof of participation in anti-discrimination training, Respondent shall submit certification from the trainer or provider of services that Respondent has successfully completed the training. (5) The letter of certification shall be submitted to the Commission’s Compliance Department within seven (7) months of the date of the Commission’s Final Order. (6) Within six (6) months of the date of the Commission’s Final Order, receive training regarding the anti-discrimination employment laws of the State of Ohio, and to provide verification therefore: (5) Within six (6) months of the Commission’s Final Order, submit their Letters of Certification of Training to the Commission’s Compliance Department. This ORDER issued by the Ohio Civil Rights Commission on this bay of September 2023. Wc Valerie A. Lemmie, Chair Ka, Commissioner, Ohio Civil Rights Commission Sandra Kurt, Summit County Clerk of Courts CV-2023-10-3782 BAKER ROSS, SUSAN 10/04/2023 16:18:28 PM cmMco, Page 8 of 51 NOTICE OF RIGHT TO JUDICIAL REVIEW Notice is hereby given to all parties herein that Revised Code Section 4112.06 sets forth the right to obtain judicial review of this Order and the mode and procedure thereof. CERTIFICATE I, Desmon Martin, Director of Enforcement and Compliance of the Ohio Civil Rights Commission, do hereby certify that the foregoing is a true and accurate copy of the Order issued in the above-captioned matter and filed with the Commission at its Central Office in Columbus, Ohio. TD TK DESMON MARTIN Director of Enforcement and Compliance Ohio Civil Rights Commission Sandra Kurt, Summit County Clerk of Courts CV-2023-10-3782 BAKER ROSS, SUSAN 10/04/2023 16:18:28 PM cmMco Page 9 of 51 Soup» OHIO CIVIL RIGHTS COMMISSION ald eS Governor Mike DeWine Commissioners: Valerie A. Lemmie, Chair | Lori Barreras | William Patmon, II] | Madhu Singh | Charlie Winburm Executive Director Angela Phelps-White July 26, 2023 Deborah K. Webb John N. Childs, Esq. 750 Mull Avenue, Apt. 3F Daniel J. Rudary, Esq. Akron, OH 44313 Brian Meek, Esq. Compiainant Brennan, Manna, and Diamond, LLC 75 East Market Street David Oppenheimer, Esq. Akron, OH 44308 Principal Assistant Attorney General Counsel for Respondent Civil Rights Section 615 West Superior Avenue, 11t Floor Cleveland, OH 44113 Counsel for Commission Edward L. Gilbert, Esq. Edward L. Gilbert Co. LPA One Cascade Plaza, Suite 825 Akron, OH 44308 Re: Deborah K. Webb v. County of Summit, Children Services Complaint No. 21-EMP-AKR-40811 Enclosed is a copy of the Administrative Law Judge’s Findings of Fact, Conclusions of Law, and Recommendation(s) (ALJ’s Report). You may submit a Statement of Objections to the ALJ’s Report within twenty-three (23) days from the mailing date of this report. A request to appear before the Commission must also be submitted by this date. Pursuant to Ohio Admin. Code § 4112-1-02, your Statement of Objections must be teceived by the Commission no later than August 18, 2023. No extension of time will be granted. Any objections received after this date will be untimely filed and cannot be considered by the Ohio Civil Rights Commission. EXHIBIT B CENTRAL OFFICE | Rhodes State Office Tower 30 E. Broad St., 5‘ Floor Columbus, OH 43215 - 3414 PHONE: 614-466-2785 | TOLL FREE: 1-888-278-7101 | TTY: 614-752-2391 | FAX: 614-644-8776 www.civ.ohio.gor Sandra Kurt, Summit County Clerk of Courts CV-2023-10-3782 BAKER ROSS, SUSAN 10/04/2023 16:18:28 PM cmMco, Page 10 of 51 in, $ OHIO CIVIL RIGHTS COMMISSION GS daa Governor Mike DeWine Commissioners: Valerie A. Lemmie, Chair | Lori Barreras | William Patmon, III | Madhu Singh | Charlie Winburn Executive Director Angela Phelps-White Please send the original Statement of Objections to: Desmon Martin, Director of Enforcement and Compliance, Ohio Civil Rights Commission, State Office Tower, 5th Floor, 30 East Broad Street, Columbus, Ohio 43215-3414. All parties and the Administrative Law Judge should receive copies of your Statement of Objections. FOR THE COMMISSION: Desmon Martin /kk Desmon Martin Director of Enforcement and Compliance Enclosure cc: Angela Phelps-White, Executive Director/Joseph McDonald, General Counsel CENTRAL OFFICE | Rhodes State Office Tower 30 E. Broad St., St Floor Columbus, OH 43215 - 3414 PHONE: 614-466-2785 | TOLL FREE: 1-888-278-7101 | TTY: 614-752-2391 | FAX: 614-644-8776 www.civ.ohio.gov Sandra Kurt, Summit County Clerk of Courts CV-2023-10-3782 BAKER ROSS, SUSAN 10/04/2023 16:18:28 PM cmMco, Page 11 of 51 eGuan SA QD ara IN THE MATTER OF: Deborah K. Webb Complainant, Complaint No. 21-EMP-AKR-40811 Vv. County of Summit, Children Services Respondent. ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS DAVE YOST ATTORNEY GENERAL David Oppenheimer, Esq. Summit County Children Services Principal Assistant Attorney Ge 264 South Arlington Street Civil Rights Section Akon, OH 44306 615 West Superior Avenue, 11% Respondent Floor Cleveland, OH 44113 John N. Childs, Esq. Counsel for Commission Daniel J. Rudary, Esq. Brian Meek, Esq. Edward 1. Gilbert, Esq. Brennan, Manna, and Diamond, LLC Edward L. Gilbert Co. LPA 75 East Market Street One Cascade Plaza, Suite 825 Akron, OH 44308 Akron, OH 44308 Counsel for Respondent Counsel for Complainant Deborah K. Webb 750 Mull Avenue, Apt. 3F Akron, OH 44313 ALJ’S REPORT Complainant Denise M. Johnson Ohio Civil Rights Commission Division of Hearings 30 East Broad Street, 5 Floor Columbus, OH 43215 (614) 466-6684 Chief Administrative Law Judge Sandra Kurt, Summit County Clerk of Courts CV-2023-10-3782 BAKER ROSS, SUSAN 10/04/2023 16:18:28 PM cmMco, Page 12 of 51 INTRODUCTION AND PROCEDURAL HISTORY Deborah Webb (Complainant) filed a sworn charge affidavit with the Ohio Civil Rights Commission (Commission) on July 29, 2020. The Commission investigated and found probable cause to believe that the Summit County Children’s Services (Respondent) engaged in unlawful employment practices in violation of Revised Code Sections (R.C.) 4112.02(A). The Commission attempted, but failed, to resolve this matter by informal methods of conciliation. The Commission subsequently issued a Complaint and Notice of Hearing on April 7, 2021. Respondent filed an answer on May 5, 2021. Respondent admitted some procedural allegations but denied that they engaged in any unlawful discriminatory practices. The Commission alleged in the complaint that Respondent violated R.C. 4112.02 (A) by engaging in the following conduct: (1) Respondent failed to engage in the interactive process to determine whether a reasonable accommodation could be afforded for Complainant, a qualified person with a disability and, (2) Respondent’s refusal to accommodate Complainant resulted in Complainant being constructively discharged after Complainant Sandra Kurt, Summit County Clerk of Courts CV-2023-10-3782 BAKER ROSS, SUSAN 10/04/2023 16:18:28 PM cmMco, Page 13 of 51 exhausted her leave time because she was unable to return to work without restrictions. A public hearing was held on November 3-4, 2021. The record contains the previously described pleadings, a hearing transcript consisting of 539 pages, exhibits admitted at the hearing, a post- hearing brief filed by the Commission on February 23, 2022, Complainant’s supplemental post-hearing brief filed on March 11, 2022, Respondent’s post-hearing brief filed on March 15, 2022, and a reply brief filed by the Commission on March 22, 2022. Sandra Kurt, Summit County Clerk of Courts CV-2023-10-3782 BAKER ROSS, SUSAN 10/04/2023 16:18:28 PM cmMco, Page 14 of 51 FINDINGS OF FACT The following findings of fact are based, in part, upon the ALJ’s assessment of the credibility of the witnesses who testified before her in this matter. The ALJ has applied the tests of worthiness of belief used in current Ohio practice. For example, she considered each witness’s appearance and demeanor while testifying. She considered whether a witness was evasive and whether his or her testimony appeared to consist of subjective opinion rather than factual recitation. She further considered the opportunity each witness had to observe and know the things discussed, each witness’s strength of memory, frankness or lack of frankness, and the bias, prejudice, and interest of each witness. Finally, the ALJ considered the extent to which each witness’s testimony was supported or contradicted by reliable documentary evidence. 1 Complainant filed a charge with the Commission on July 29, 2020. 2. The Commission determined on October 20, 2020, that it was probable that Respondent engaged in unlawful discriminatory practices in violation of R.C. 4112.02(A). 3 The Commission attempted to resolve this matter by informal methods of conciliation. Sandra Kurt, Summit County Clerk of Courts CV-2023-10-3782 BAKER ROSS, SUSAN 10/04/2023 16:18:28 PM cmMco, Page 15 of 51 The Commission issued the Complaint after conciliation efforts failed. Respondent is an agency of Summit County charged with protecting children from abuse and neglect. (Tr, 37-38, 152- 153, 418-420) Complainant began her employment with Respondent on August 8, 2000, working four (4) days a week as a Social Worker Assistant (SWA). (Tr. 151-152) Complainant also worked one (1) day a week as a substitute teacher for Akron public schools. (Tr. 150-152) The duties of the SWA varied depending upon which department/unit they were assigned to. (Tr. 38-39, 48-50, 92-93, 416-417) Some employees received and investigated reports of abuse and neglect. (Id.) 10 Others worked with families in crisis, helping them obtain resources, (Id.) 11 Some monitored and cared for children in custody in the Just for Kids (JFK) room until Respondent found placement for those children. (Id.) Sandra Kurt, Summit County Clerk of Courts CV-2023-10-3782 BAKER ROSS, SUSAN 10/04/2023 16:18:28 PM cmMco, Page 16 of 51 12 Others transported children to and from medical appointments, and supervised visitations between children and their biological parents. (Id.) 13 Some secured and completed paperwork for children for school enrollments, drugs they may be taking, setting up child support, and establishing paternity. (Id.) 14 From the beginning of her employment until October of 2019 Complainant worked at different times as a SWA in a variety of departmental units where she performed the following duties: supervised children, helped families secure resources, entered school enrollments and transported children to doctor appointments, and supervised visits. (Tr. 90, 94-95, 153-163, 337-339, 427-428, 489-490) 15 Starting in 2017, Complainant began to have issues with her right foot. (Tr. 169-174) (Comm. Exh. 1) 16 Complainant went to the doctor because she was in so much pain that she was limping and could not walk or wear hard shoes. (Id.) 17 Complainant was diagnosed with Crossover Hammertoe Deformity, right second toe. (Id.) 18 Complainant had a bunion growing out of the side of her foot that caused one of her toes to curl up. (Id.) e Sandra Kurt, Summit County Clerk of Courts CV-2023-10-3782 BAKER ROSS, SUSAN 10/04/2023 16:18:28 PM cmMco, Page 17 of 51 1 Complainant’s doctor stated that the only way to alleviate the hammer toe was through surgery. (Tr. 169-174) (Comm. Exh. 1) 20 In August 2019, Complainant’s condition progressed to the point where she reached out to her doctor to ask how long she would be off from work post-surgery. (Id.) 21 Complainant’s doctor informed her that her return to work date would depend on her recovery and whether she did office work or non-office work. (Tr. 172-173) (Comm. Exh. 1) 22 In October 2019, Complainant moved to the Medical Unit (“MU”). (Tr. 163) a3: In the MU, Complainant worked with Tina Thiel (“Thiel”), another SWA. 24 Complainant and Thiel were supervised by Lisa Bouplon (“Bouplon”), Administrative Assistant Clerical Supervisor, (Tr. 59, 163-164, 338-340) 25 Complainant and Thiel performed the same duties. (Tr. 67-72) 26 Thiel’s primary responsibility was child support enforcement while Complainant was responsible for school enrollments. (Id.) Sandra Kurt, Summit County Clerk of Courts CV-2023-10-3782 BAKER ROSS, SUSAN 10/04/2023 16:18:28 PM cmMco, Page 18 of 51 27 Respondent used two computer programs in their office, Traverse and the State Automated Child Welfare Information System (“SACWIS”), the Ohio database for Children’s Services in all Ohio counties. (Tr. 51, 53, 88, 424) 28 Traverse was the shared network drive or electronic document management system used by Respondent to upload documents into SACWIS. (Id.) 29 Complainant’s and Thiel’s duties consisted of: (1) entering the psychotropic drugs into Traverse and SACWIS, (2) school enrollments, and (3) entering the results of drug testing into the system. (Tr. 36-37, 39-43, 59, 164-164, 339-341, 371- 372, 380-381, 490) 30 Complainant received an email from Bouplon or a caseworker asking her to begin a school enrollment. (Id.) 31 Complainant received enrollment forms via fax, email, or through a school’s website. (Tr. 44-47, 95-96, 156-158, 164- 166, 344-347, 351, 379-380) 32 Complainant submitted the majority of forms to the schools the same way she received them, only going to a school in person every few months. (Tr. 44-48, 71-72) 33 Complainant was also responsible for obtaining medical reports regarding psychotropic drugs prescribed to children in 7 Sandra Kurt, Summit County Clerk of Courts CV-2023-10-3782 BAKER ROSS, SUSAN 10/04/2023 16:18:28 PM cmMco, Page 19 of 51 SCCS’s custody. (Tr. 163-164, 166-168, 294-296, 344-345, 347-348) 34 Complainant entered these reports into Traverse. (Id.) 35 Additionally, Complainant and Thiel were also responsible for covering breaks for the Just for Kid’s Room (“JFK). (Tr. 442) 36 The JFK room is where children are cared for after Respondent is given custody until placement can be secured for the child. (Tr. 90, 153) ay Complainant informed Donna Testa (‘Testa’), Human Resources Supervisor, and Bouplon that she needed to be off work prior to her scheduled surgery date of February 12, 2020. (Tr. 96-97, 173-174) 38 Testa received requests for and processed all documents for employees requesting accommodations and/or medical leave. (Tr, 74-76, 78-83, 409, 411) (Comm. Exh. 2, 3) 39 Testa reported to Valerie Nash (“Nash”), Director of Human Resources. (Tr. 396-409) 40 Nash oversaw the Human Resources Department and was responsible for setting several policies, including requests for accommodation. (Id.) Sandra Kurt, Summit County Clerk of Courts CV-2023-10-3782 BAKER ROSS, SUSAN 10/04/2023 16:18:28 PM cmMco, Page 20 of 51 #1, Testa informed Nash about Complainant’s need for leave and sent Complainant FMLA paperwork. (Id.) (Comm. Exh. 5) 42 Bouplon instructed Complainant to call Respondent each day she was off until her doctor’s documentation was received. (Tr. 178) (Comm. Exh. 6) 43 Shortly after Complainant’s surgery, the nation suffered the effects of the global pandemic. 44 On February 14, 2020, Complainant texted Bouplon that she would not bein. (Id.) 45 On the same day, Complainant went to the doctor’s office for her follow up appointment. (Tr, 98-99, 168, 177- 179) (Comm. Exh. 1, 6, 7, 8) 46 The doctor’s office provided Respondent with a Return-to-Work note stating that Complainant “was unable to work at this time.” (Id.) 47 The note gave a return to work date of April 13, 2020. (Comm. Exh. 8) 48 Complainant’s next follow-up appointment was February 17, 2020. (Comm. Exh. 1) Sandra Kurt, Summit County Clerk of Courts CV-2023-10-3782 BAKER ROSS, SUSAN 10/04/2023 16:18:28 PM cmMco, Page 21 of 51 49 Complainant could not apply weight to the affected foot and used a rolling knee walker. (Comm. Exh. 1) 50 Complainant only left the house to go to medical appointments. (Tr. 179-188, 195-199) (Comm. Exh. 1, 7, 9) Sl Complainant returned to the doctor on March 2, 2020. She complained of pain and swelling with activities. (Tr. 182-183) (Comm. Exh. 1) 52 On March 19, 2020, Respondent began a work-from-home status based on the governor’s stay at home order due to the global pandemic. (Tr. 61-62, 103-104, 185, 364-365, 437- 440, 514-516) 53 Staff members who were assigned to work from home took home scanners and computers so they could do their jobs. (Id.) 54 With some exceptions, these staff members would go to the office periodically to pick up mail and perform some job duties. (Id.) 53 During March of 2020 Respondent hired Leah Howard (“Howard”) and Geralyn Folz (“Folz”) as SWAs to manage the JFK room. (Tr. 442-443) 56 Howard and Folz did not have equipment to work from home. 10 Sandra Kurt, Summit County Clerk of Courts CV-2023-10-3782 BAKER ROSS, SUSAN 10/04/2023 16:18:28 PM cmMco, Page 22 of 51 57 On March 30, 2020, Complainant saw her doctor and indicated she still had pain and swelling with activity. (Tr. 185-189, 197-200, 260-261) (Comm. Exh. 1) 58 The doctor gave Complainant a note with a new estimated return to work date of June 15, 2020. (Id.) (Comm. Exh. 10)! 59 Complainant provided the note to Respondent. (Tr. 98-99, 101-102, 188-189) (Comm. Exh. 10) 60 Complainant text messaged Bouplon telling her that she would be contacting HR regarding returning to work. (Comm, Exh. 6) 61 Bouplon asked Complainant when she was returning to work and informed Complainant that she was out of sick leave and wanted to know what other available paid leave she wanted to use. (Id.) 62 Bouplon then told Complainant that when she returned to the agency, she needed to meet with Complainant so “we can get everything together so you can work from home.” (Id.) 63 Complainant emailed Sarah Grubb (“Grubb”), an HR employee in charge of timecards, to obtain the amount of leave she had available. (Tr. 190-191) (Comm. Exh. 6, 11) 1 On the face of the note the medical provider was able to give either an “estimated” or “actual” return to work date. 11 Sandra Kurt, Summit County Clerk of Courts CV-2023-10-3782 BAKER ROSS, SUSAN 10/04/2023 16:18:28 PM cmMco, Page 23 of 51 64 On May 4, 2020, Complainant had an appointment with her doctor and told him that her foot still swelled. 65 Complainant could not wear a shoe, was unable to drive, and was still using the knee walker. (Tr. 102, 191-193, 496) (Comm. Exh. 1, 12) (Resp. Exh. G) 66 Complainant could not walk without pain. She was un