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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC.                                                                              SUPERIOR COURT
(FILED:  March 10, 2011)
J.J. GREGORY & SON INC.                                                                      :
                                                                                             :
v.                                                                                           :                                                                      C.A. No. PC-2007-5514
                                                                                             :
THE RHODE ISLAND COMMISSION                                                                  :
FOR HUMAN RIGHTS and                                                                         :
BRENDA A. ZEIGLER                                                                            :
DECISION
SAVAGE, J.  In this administrative appeal, Appellant J.J. Gregory & Son Inc. seeks
reversal of a decision of the Rhode Island Commission for Human Rights that found that
the company had discriminated against Brenda A. Zeigler on the basis of her gender.  For
the reasons set forth in this Decision, this Court rejects that appeal and affirms the
Decision of the Commission.
I
Factual Background
On  February                                                                                 18,                                                                    2004,  Zeigler  filed  a  charge  of  discrimination  with  the
Commission claiming to have been “subjected to discriminatory terms and conditions of
employment by my former employer . . .                                                       .”                                                                     (Resp. Ex. A.)   Further, Zeigler asserted that
John J. Gregory, Jr., President of J.J. Gregory & Son Inc. (“J.J. Gregory”), “took no
action to correct the discriminatory and hostile environment in which  [Zeigler] was
forced to work.”                                                                             (Id.)    Additionally, she claimed that she had been  “discriminated
against on the basis of [her] sex (female) in that [her] employer allowed [her] manager to
subject [her] to disparate treatment based solely on [her] sex.”                             (Id.)  Zeigler also asserted
that she was terminated in retaliation for opposing unlawful employment practices.   (Id.)




On  November  8,  2005,  the  Commission  mailed  a  Complaint  and  Notice  of
Hearing to the parties.   The Preliminary Investigating Commissioner determined that
probable cause existed to believe that J.J. Gregory had violated R.I. Gen. Laws 1956 §
28-5-7.    The Complaint alleged that Zeigler’s supervisor, Mark Darling, treated her
differently than similarly situated male employees and that Zeigler was terminated in
retaliation for opposing the disparate treatment.   The Commission held hearings on May
30, 2006, June 16, 2006, July 17, 2006, and August 17, 2006 regarding this matter.   The
following is a summary of the material aspects of the witnesses’ testimony at those
hearings and the Commission’s findings.
A
Brenda Zeigler’s Testimony
At the first hearing, Zeigler testified that she worked in the parts department of
equipment stores for the past twenty-five years.                                                (Tr. at 5, May 30, 2006.)   According to
her testimony, she had “built up a reputation.   I have customers that actually follow me,
you know, to  [different] businesses just because of  .  .  . how I serve them, and my
customers always has [sic] been my number one priority.   Without my customer [sic], I
wouldn’t have a job so I kind of take pride in what I do.” (Id. at 9.)   At J.J. Gregory, she
was a “parts counterperson.”                                                                    (Id. at 8.)   She answered telephone calls and waited on in-
store customers.                                                                                (Id.)   Zeigler left her previous job because J.J. Gregory was “going to
start me with thirteen dollars an hour, plus medical which I didn’t have.”   (Id.)
Zeigler recalled that she began working at J.J. Gregory in  2001.  (Id. at                      6.)
Regarding the hiring process, Zeigler testified that she had a meeting with Mark Darling
one Saturday morning.   That morning, she also spoke to Rick Brogan and J. Gregory
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(“Gregory”) in Brogan’s office.                                                               (Id. at 8, 54.)     Zeigler testified that Darling was the
parts manager, Brogan was the store manager, and Gregory was one of the owners.               (Id.
at 8-9.)   When she began working in the parts department, she joined Bob Stevenson,
Fred Weigand, and Darling.   (Id. at 10.)   About a year after Zeigler began working there,
Stevenson retired and was replaced by Rob Botham.                                             (Id. at 14.)   Doris Sears was the
secretary for the parts department.   (Id. at 13.)
Ms. Zeigler testified that she did not encounter any problems working for J.J.
Gregory  until  approximately  six  months  after  she  started  there.                       (Id.  at                                                     16.)    She
explained:
I just wasn’t treated equally.   I was spoken to very harshly.
I was always singled out from the gentlemen.   You know,
any time there was a problem, I was the first one to be
confronted.   No matter what I did wasn’t right.   The way I
was spoken to was without respect.   Just the way I was
treated there overall by Mark Darling basically.
(Id.)   She testified that Darling made her job difficult.                                    (Id. at 18.)   When she confronted
Darling about this treatment, he said that he did not have a problem with her.                (Id.)   One
month or two before Zeigler left J.J. Gregory, after nearly two and one-half years of
employment there, she wore sneakers to work.   Zeigler testified that Darling confronted
her and spoke with her harshly.  She described their exchange as follows:
[He said,] “What are you doing with sneakers on?”   I said,
“My feet hurt.”   He said, “You’re not supposed to wear
sneakers.”  I said, “I wasn’t aware of that.”  I said, “My feet
hurt today and the sneakers made them feel better.”   He
said, “Well, you’re not supposed to wear sneakers.   You go
get  corrective  shoes  if  you  have  to.”    And  I  was  just
stunned because there was a gentleman working at the
counter  that  was  there  for                                                                36  years  that  actually  had
sneakers on his feet that day.   The other gentleman there,
Rob Botham.   Every day he worked there, he had sneakers
on and they were white.   Mark Darling has worn sneakers
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there.   Everyone wore sneakers there.   The one day I did, I
was confronted.
(Id. at 16-17.)  When Zeigler informed Darling that others were wearing sneakers, he told
her that “he wasn’t aware that anyone else had sneakers on.”   (Id. at 60.)  Zeigler testified
that Darling had a meeting about employees wearing sneakers the following day.                   (Id. at
60-61.)
Zeigler  testified  about  other  treatment  that  she  considered  unfair.    On  one
occasion, Darling waited until the end of the work day to give Zeigler a $100 bonus that
he had dispensed to Weigand and Botham in the morning.                                           (Id. at 19-20.)   Zeigler also
described disagreements she had with Darling regarding her lunch hour.   When Zeigler
would delay her lunch hour to assist a customer, Darling reminded her that her lunch hour
started at noon.                                                                                 (Id. at 22.)   Though Weigand and Botham had the same practice of
delaying lunch to assist the clientele, Zeigler never saw Darling confront them about it.
(Id at 22-23.)
On another occasion, Zeigler asked Darling for a pair of gloves that would protect
her hands from hydraulic oil and grease on the hydraulic hoses that she repaired because
the cloth gloves that she had been using did not protect her hands.   (Id. at 23-25.)  Zeigler
testified that Darling directed her to the Service Department, but the rubber gloves
provided by the Service Department only irritated her hands more.                                (Id. at 25.)   Zeigler
said that Darling then told her that she could purchase gloves if that was what she needed.
(Id.)   Zeigler testified that if Weigand and Botham “wanted gloves, they would just go
and get a pair and mark it down on . . . a chart.”                                               (Id.)   Zeigler also testified that Darling
frequently chastised her in front of customers and that she felt that he was making a
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“fool” out of her.   (Id. at 26.)  Never did she see Darling confront Weigand, Stevenson, or
Botham in front of customers.   (Id. at 27-28.)
Zeigler described Darling’s treatment of her as emotionally draining and said,
after work, she would be a “mess the rest of the day.”                                         (Id. at 28.)   When her grandson
would visit, she would be unable to enjoy him.   (Id.)
On August 6, 2003, Zeigler approached Gregory to tell him that she did not like
the way she was being treated.                                                                 (Id. at 35.)   She testified, that she told him that she
wanted “to be treated like the guys with respect.”                                             (Id.)   Gregory said that he would look
into it.                                                                                       (Id.)   Prior to August 6, 2003, Zeigler did not approach Gregory or Brogan
because it was her understanding, from talking with other employees, that the company
policy was to talk to one’s immediate supervisor if there was a problem.   (Id. at 36-37.)
On August 7, 2003, Zeigler visited her physician, Dr. Carolyn Troise, who told
Zeigler to take thirty days out of work, gave her medication, and advised her to see a
therapist.                                                                                     (Id. at                                                                       34.)1    Zeigler presented a doctor’s note, signed by Dr. Troise, to
Gregory, as well as Darling and Brogan, recommending that Zeigler stay out of work
from August 7, 2003 to September 7, 2003.   (Id. at 39; Complainant’s Ex. 1.)  Zeigler did
not work at J.J. Gregory, therefore, after August 6, 2003.                                     (Tr. at 30, May 30, 2006.)
Zeigler testified that, after she left work, she began seeing psychological counselor Pat
1 Dr. Troise’s affidavit, submitted to the Commission by Zeigler, provides:
That  it  is  my  opinion,  to  a  reasonable  degree  of  certainty  in  my
profession as a duly licensed physician, that Brenda Ziegler [sic] was
totally disabled  from her  normal and  customary employment from
August, 2003 at least through March 15, 2004 as the proximate result
of job induced stress in the course of her employment with J.J. Gregory
& Sons which exacerbated her pain in her legs and feet resulting from
diabetic neuropathy . . .
(Complainant’s Ex. 5.)
5




Morena.                                                                                       (Id.  at                                                                  42.)    She  visited  Morena  for  two  or  three  months,  beginning  in
September 2003.   (Id. at 43.)
J.J. Gregory sent Zeigler a termination letter dated August  28,  2003 that was
signed by Brogan.                                                                             (Id. at 46; Complainant’s Ex. 2.)   The letter provides, in part, “As a
result of diminished demand, and certain economic conditions in the Parts Department, it
became  necessary  to  implement  a  complete  restructuring  and  reorganization  of  the
Department.   Hence, staffing needs had to be downsized.   Therefore, at this time your
employment is hereby terminated effective this date.”                                         (Complainant’s Ex. 2.)   Further, it
provides, “Thank you for your valued service.”                                                (Id.)     On August 10, 2003, three days
after Dr. Troise told Zeigler to take thirty days off and weeks before the company
terminated Zeigler, her husband came across an advertisement placed by J.J. Gregory in
The  Providence  Journal seeking  to  hire a  parts  clerk.                                   (Tr. at                                                                   48,  May  30,  2006;
Complainant’s Ex. 3.)
During  her  employment  with  J.J.  Gregory,  Zeigler  had  never  received  any
reprimands.   (Tr. at 33, May 30, 2006.)  Darling had never told her that she was doing her
job improperly.                                                                               (Id.)   No customers had filed any complaints about her.                  (Id. at 33-34.)
From all appearances, Zeigler had been a valuable employee.
B
Kenneth Zeigler’s Testimony
Brenda Zeigler’s husband, Kenneth Zeigler, testified that he had been married to
her for six years.                                                                            (Id. at 82.)   He stated that his wife constantly came home from work
upset.   He said, “One time she was so upset at home, she was sitting in her car crying.”
(Id. at 84).   Kenneth Zeigler testified that she was very distressed, and she could not
6




believe that Darling was treating her so poorly.                                                 (Id. at 85.)                                                                           “She would just come home
crying, very upset.   Some days, she’d come home and she didn’t even want to cook
dinner.   She just wanted to go to bed because she was depressed, and she would say
things that Mark would single her out.”                                                          (Id. at 86.)   She would sit in a chair at night and
cry.                                                                                             (Id. at 87.)   According to her husband, Zeigler’s emotional condition improved over
time after she left J.J. Gregory.                                                                (Id. at 87-88.)
C
Frederick Weigand’s Testimony
Weigand testified that he was a parts clerk for a little over thirty-six years.                  (Id. at
91.)  At the time Zeigler left J.J. Gregory in August of 2003, there were three parts clerks:
Weigand, Botham, and Zeigler.   (Id. at 93.)  When Zeigler left, the department functioned
with two parts clerks for a couple of months before the company hired another parts
clerk. (Id. at 94.)   Before Weigand retired on December 31, 2003, he was unaware of any
downsizing in the department.   (Id. at 95.)
Weigand believed that the relationship between Darling and Zeigler deteriorated
over time.                                                                                       (Id. at 96.)   He testified, “If she would bring up a subject like this department
is planning to do this or that, he would just tell her to mind her own business and be
quiet.  And that is not the way his relationship with her started out.”   (Id.)  Weigand could
not understand why Darling would raise his voice with Zeigler.                                   (Id. at 97.)   Darling
maintained good relationships with the other parts clerks.                                       (Id.)    After J.J. Gregory
terminated Zeigler, Darling told Weigand that he would never hire another woman.                 (Id.
at 98.)
7




D
John J. Gregory III’s Testimony
Gregory testified that he is the operating partner and a shareholder of J.J. Gregory.
(Id. at 101.)   He also testified that he is Vice President of J.J. Gregory.                    (Tr. at 5, July 17,
2006.)   He stated that as a company policy, if an employee had any complaints, he or she
should notify his or her immediate supervisor and then, if necessary, go up the chain of
command to the general manager.   (Tr. at 101, May 30, 2006.)   If a manager was having
a problem with an employee, the manager could file a complaint against the employee
that would be placed in the employee’s file.                                                    (Id. at 102.)   Complaints typically would
document problems with customers or fellow employees.   (Id.)
From his personal observations, Gregory testified that Zeigler did her job.                     (Id. at
103.)   He was not aware of any documentation in her personnel file indicating poor job
performance.   (Id. at 103-04.)  He could not remember any complaints made to him about
her job performance.                                                                            (Id. at                                                     104.)    When asked if Zeigler was a valued employee,
Gregory responded, “I had no issues with Brenda’s job performance.”   (Id. at 110.)
J.J.  Gregory  filed  a  response  to  Zeigler’s  claim  of  discrimination  with  the
Commission that asserted that “[Zeigler] was terminated because the Parts Department
was  downsized  from  three  to  two  persons  and  complainant  had  the  poorest  work
performance.”   (Complainant’s Ex. 4.)   It further provided that “[a]ny criticism leveled at
[Zeigler] was justified, based upon her poor work record.”   (Id.)
Of his August 6, 2003 meeting with Zeigler, Gregory testified that Zeigler was
very dissatisfied with Darling.                                                                 (Tr. at 105, May 30, 2006; Tr. at 8, July 17, 2006.)   He
could not remember the specifics of their conversation.                                         (Tr. at 105, May 30, 2006.)   It
8




was the only complaint that Zeigler made to him about her working conditions during her
employment there.                                                                                  (Tr. at                                                                               7, July 17, 2006.)   The next day, Gregory told Darling about
Zeigler’s complaint, and Darling said that he “was not overly satisfied with her and that
he had some issues with her.”                                                                      (Tr. at 107, May 30, 2006.)   He also could not recall the
specifics of that conversation. (Id.)  He testified, “[I]t was nothing of note.  If it had been,
I would have written it up and made a formal record of it for myself and for my memory,
but no, other than there was some dissatisfaction as well with Brenda [Ziegler].”                  (Tr. at
8-9, July  17,  2006).    Darling did not make any formal complaints about Zeigler to
Gregory.   (Id. at 7.)
Gregory testified that the advertisement for a parts clerk appearing in the August
10, 2003 edition of The Providence Journal was probably for Weigand’s position.   (Tr. at
111, May 30, 2006.)   He stated, “[I]t’s not always easy to find help.   You don’t know if
you’re gonna [sic] get an immediate response or if it will take some time and you also
have to train some people.”                                                                        (Id. at 112.)   According to Gregory, he terminated Zeigler
because he wanted to downsize the business in the parts department.                                (Tr. at 9, July 17,
2006.)   She was chosen because she had not been getting along with Darling.   (Id.)  As of
January 1, 2004, the parts department had two counter people.   (Id. at 10.)
E
Doris Sears’s Testimony
Sears testified that she was working as a part-time clerk from 2002 to August of
2004.                                                                                              (Tr. at 9, June 16, 2006.)   As a clerk, Sears would create the purchase orders for
parts.                                                                                             (Id. at 10.)   She stated that Zeigler was excellent with customers.                  (Id. at 12.)
Specifically, Sears “found her very pleasant.   Good sense of humor.   She was in demand
9




by our customers.  Many of the calls were directed just for her.”   (Id.)  Sears also testified
that Zeigler got along very well with her fellow employees, except for Darling.                   (Id. at
13.)   Sears said that Darling was very prejudiced against Zeigler, and she often found
Zeigler in tears after dealing with him.                                                          (Id. at 14.)   Sears believed that Darling was
threatened by Zeigler and disliked her because she was very knowledgeable as a parts
department employee.                                                                              (Id.)   Sears described it as a personality conflict between Darling
and Zeigler.   (Id. at 27.)
After J.J. Gregory terminated Zeigler, the company hired Andy Sunderland to
replace her.   (Id. at 21.)  One time, Darling made a comment to Sears to make sure that he
did not hire any more women.   (Id.)
F
Kaylee Amaral’s Testimony
Amaral testified that she began working in the parts department on July 12, 2004.
(Id. at 31.)   Darling interviewed her and hired her.                                             (Id.)   He did not do so until several
months after Zeigler filed her charge of discrimination with the Commission.                      (Id.; Resp.
Ex. A.)   Amaral said of Darling, “He knew how he wanted to run the department, and he
knew how he wanted everyone to work side by side and to maker sure everything went
properly.”   (Tr. at 32, June 16, 2006).
G
Richard Brogan’s Testimony
Brogan testified that he is the corporate secretary and general manager of J.J.
Gregory (Id. at 33.)   He was Darling’s direct supervisor in the parts department.                (Id.)
10




Brogan never received any written or verbal complaints from Zeigler about Darling.                 (Id.
at 34.)
Regarding the advertisement in The Providence Journal, Brogan explained:
There were a number of issues that developed that week.
Brenda gave her medical leave notice on Thursday.   Rob
Barthom [sic] came in  - he was another member of the
parts department.   He came in and announced that he was
giving his two-week notice.   Mark was going on vacation
for a week, and Fred Weygand [sic] had already months
before  announced  that  as                                                                        [of]  December                                                                    31st  he  was
retiring.   So in a meeting with Jay [Gregory] after - mostly
after Rob’s announcement that he was leaving we were
saying we’re very - you know, we’re short-handed.   We
need to get somebody to fill that department.   Fred can’t
handle it himself for the next five months.  So we put the ad
in the paper that weekend.
(Id. at 36-37.)  Further, he testified that J.J. Gregory did not place the advertisement to fill
Zeigler’s  position,  but  rather  to  fill  Weigand’s  position  earlier  than  it  originally
anticipated.                                                                                       (Id. at                                                                           37.)    After speaking with Darling, Brogan decided to terminate
Zeigler.                                                                                           (Id. at 38.)   As of January 1, 2004, following Weigand’s retirement, the parts
department operated with two parts clerks rather than three due to economic conditions
and the business climate.                                                                          (Id.)   Specifically, Brogan explained, “When we decided to
downsize, we didn’t quite know which direction we were going to go.   But we said if we
were going to put two people on the counter, Mark [Darling] indicated that he wasn’t
happy with Brenda’s job performance.”                                                              (Id. at 39.)                                                                      “The decision was between Jay
[Gregory] and Mark [Darling] and myself, and we had decided on the downsizing.   (Id. at
46.)   Darling left J.J. Gregory in November of 2004, less than a year after Zeigler filed
her charge of discrimination against the company based largely on his actions.   (Id. at 40;
Resp. Ex. A.)
11




Brogan explained that if an employee committed an egregious offense, “[i]t would
be written up by the manager, signed by both parties and filed in their personnel records.”
(Tr. at 42, June 16, 2006.)   There were no written reprimands in Zeigler’s personnel file
to suggest that her job performance was subpar.                                               (Id.)   When asked why the August 28,
2003 termination letter thanks Zeigler for her valued service, Brogan responded, “That
was written as a professional courtesy, just a business courtesy . . .                        .”                                                       (Id. at 44.)
H
Mark Darling’s Testimony
Darling  testified  that  he  worked  at  J.J.  Gregory  for  seventeen  years  until
November  of  2004.                                                                           (Tr.  at                                                 4,  Aug.       17,   2006.)    For  the  final  three  years  of  his
employment he served as parts manager.                                                        (Id.)   He explained his role in the hiring of
Zeigler: “I’m the one that made the call to her previous employer to see if she’d be
willing to come to J.J. Gregory for employment and then I consequently hired her.”            (Id.
at 5.)   He did not recall criticizing her any more than the other employees and denied
criticizing her in front of customers.                                                        (Id. at 6.)   Darling testified that he would not have
criticized Zeigler for going to lunch late because she was assisting a customer because
“the customer comes first.”   (Id. at 7.)
When asked if he would question Zeigler first when a mistake occurred, Darling
responded:
[W]hen we hired her she was going to be the assistant
manager  out  there  and  kind  of  run  that  area  of  the
department while I was in doing my business.  So naturally,
I would go to her first and then go to the other two if she
couldn’t resolve the problem.
12




(Id.)   Regarding the time he commented on Zeigler’s sneakers, Darling acknowledged
that the two other parts clerks were not wearing steel-toed shoes.   (Id. at 9.)  He told them
that they also would have to wear steel-toed shoes the next day at work.                         (Id.)   When
questioned about Zeigler’s complaints about gloves, Darling testified:
If I remember correctly, it was about a week before the
sneaker incident that she started wanting to wear gloves to
do hydraulic hoses.  Now, we had always supplied a pair of
brown cotton gloves to do hydraulic hoses, that’s what I
always used, and granted, the oil would get through those,
but in the back there also we had rubber gloves with a felt
lining that were also available for use and we also had
rubber gloves like doctors wear with both powder and non-
powder that the mechanics used in the shops to keep oil off
of their hands and she said she couldn’t wear any of those
because of various reasons.
She had requested some special pair of gloves that she says
the other guys got, and the only other pair of gloves that
those guys ever got was a pair of yellow gloves that was
supplied by our other store and any time those are supplied
to mechanics or whoever wanted those physically paid for
those.
(Id. at 10-11.)   Darling admitted that there were some things about Zeigler that bothered
him.    He testified,                                                                            “She was vulgar around  ― not around customers so it wasn’t
something that would affect the company that way as far as the customer relations, but
she was vulgar around the mechanics and the other parts personnel.”                              (Id. at 14.)   Her
vulgarity was not consistent with the behavior of the other parts department employees.
(Id. at 35.)   Darling said that he never complained to anyone at the Appellant about
Zeigler’s vulgarity.                                                                             (Id. at 37.)   Regarding Weigand’s testimony that Darling said he
would never hire another woman, Darling stated:
13




I may have said that in the heat of the moment, yes, to Fred
Weigand, but I have no problem with women at all.   You
know, and it would have been in the heat of the moment.
I’ve worked with many women; I’ve never had trouble
working with women.
(Id. at 18.)  Darling mentioned that he “hired Doris [Sears] previous to that and [he] hired
Kaylee [Amaral] to do basically what Doris was doing after that.”                              (Id. at 19.)   The parts
department operated with two counter people after Weigand left in December of 2003.
(Id. at 22.)   He explained, “I think late summer we did bring one of the employees that
was already employed there to help out in the parts department . . .                           .”                         (Id.)   Darling
testified, however, that when Zeigler left the parts department, no plans existed to
downsize the department.   (Id. at 23, 31.)  He claimed that the company advertised in The
Providence Journal to try to fill the position left vacant when Weigand left.   (Id. at 23.)
Regarding J.J. Gregory’s complaint policy, Darling said that if he had a problem
with an employee, he would speak to that employee first, and if the problem was
egregious enough, he would place a written complaint in the employee’s file.                   (Id. at 25.)
He testified that Zeigler’s performance as a parts person was fine.                            (Id. at 25-26.)   She
was good with customers, and she was not a problem with the other employees.                   (Id. at
29.)   Darling did not believe that her job performance warranted termination.                 (Id. at 31,
34.)  Darling hired Zeigler, but he had nothing to do with her termination.   (Id. at 35.)
II
Administrative Decision and Appeal
On September 28, 2007, after multiple hearings and a review of the testimony of
all of these witnesses, the Commission found that J.J. Gregory had “discriminated against
[Zeigler] because of her sex with respect to terms and conditions of employment and
14




termination”                                                                                              (“Decision  I”).2    Specifically,  the  Commission  determined  that   “[t]he
complainant was treated more harshly than her male co-workers.”                                           (Decision I at 7.)   As
evidence of this disparate treatment, the Commission cited Darling’s harsh criticism and
confrontations, including criticism for delaying her lunch and for wearing sneakers, and
delay  in  dispensing  her  bonus  check.                                                                 (Id.  at                                                                6.)                                                                        Regarding  her  termination,  the
Commission found that Darling’s “prejudice against [Zeigler], which was based on her
sex, led him to provide false information to [Gregory] which led to her termination.”   (Id.
at 11.)   The Commission ordered, inter alia, that J.J. Gregory cease and desist from all
unlawful employment practices, offer Zeigler the next available position of parts clerk,
pay Zeigler $588.25 per week minus unemployment benefits and interim earnings for the
period from September 7, 2003 until she received a parts clerk position or refused an
offer of such a position, pay Zeigler  $6,000 as compensatory damages for pain and
suffering within forty-five days of the order, and pay her interest on those amounts.                     (Id.
at                                                                                                        17.)                                                                    It also addressed the procedure to determine any offset for unemployment
benefits, interim earnings and interim employment benefits received by Zeigler between
September 7, 2003 and the date of the Commission’s order.   (Id. at 17-18.)
On October 16, 2007, J.J. Gregory filed a complaint in the Rhode Island Superior
Court, pursuant to R.I. Gen. Laws                                                                         §§ 42-35-1 et seq., asserting that it was aggrieved by
the Commission’s decision  (Decision I).    Specifically, it challenges that decision as
clearly erroneous, arbitrary and capricious, and characterized by abuse of discretion or
clearly unwarranted exercise of discretion.  The company also avers that the decision was
2 The Commission also found that Zeigler “did not prove by a preponderance of the evidence that [J.J.
Gregory] discriminated against her because she opposed unlawful employment practices, as alleged in the
complaint.”   (Decision I at 6.)  This conclusion is not at issue in the appeal before this Court.
15




in  excess  of  the  statutory  authority  of  the  agency  and  against  legal  precedent.
Accordingly, it claims that its substantial rights have been prejudiced.
On December 31, 2007, the Commission ordered that J.J. Gregory pay Ziegler
$39,877.59 in back pay and interest, $8,186.32 in attorney’s fees, and $442.21 in costs.
(“Decision II”).   J.J. Gregory filed an amended complaint in the Rhode Island Superior
Court on January 30, 2008 asserting that it was further aggrieved by this decision.
III
Standard of Review
This  Court  sits  as  an  appellate  court  with  a  limited  scope  of  review  when
reviewing the decisions of the Commission.   See Mine Safety Appliances Co. v. Berry,
620 A.2d 1255, 1259 (R.I. 1993).   This Court’s standard of review for a decision of the
Commission is set forth by statute, as follows:
(g)   The court shall not substitute its judgment for that of
the agency as to the weight of the evidence on questions of
fact.   The court may affirm the decision of the agency or
remand the case for further proceedings, or it may reverse
or modify the decision if substantial rights of the appellant
have been prejudiced because the administrative findings,
inferences, conclusions, or decisions are:
(1)                                                                                           In violation of constitutional or statutory provisions;
(2)                                                                                           In excess of the statutory authority of the agency;
(3)                                                                                           Made upon unlawful procedure;
(4)                                                                                           Affected by other error or [sic] law;
(5)                                                                                           Clearly erroneous in view of the reliable, probative,
and substantial evidence on the whole record; or
(6)                                                                                           Arbitrary or capricious or characterized by abuse of
discretion  or  clearly  unwarranted  exercise  of
discretion
R.I. Gen. Laws § 42-35-15(g).
This  Court’s  review  authority  granted  by                                                 §  42-35-15  is  “circumscribed  and
limited to ‘an examination of the certified record to determine if there is any legally
16




competent evidence therein to support the agency's decision.’” Nickerson v. Reitsma,
853 A.2d 1202, 1205 (R.I. 2004) (quoting Barrington Sch. Comm. v. R.I. State Labor
Relations Bd., 608 A.2d 1126, 1138 (R.I. 1992)).   This Court must affirm the agency’s
decision if any legally competent evidence to support it exists in the record.   R.I. Pub.
Telecomm. Auth. v. R.I. State Labor Relations Bd.,  650 A.2d  479,  485  (R.I.  1994).
“Legally competent evidence is indicated by the presence of ‘some’ or ‘any’ evidence
supporting the agency’s findings.”   Envir’l Scientific Corp. v. Durfee, 621 A.2d 200, 208
(R.I. 1993) (citing Sartor v. C.R.M.C., 542 A.2d 1077, 1082-83 (R.I. 1988)); see also
Arnold v. R.I. Dept. of Labor and Training Bd. of Rev., 822 A.2d 164, 167 (R.I. 2003)
(defining legally competent evidence as “relevant evidence that a reasonable mind might
accept as adequate to support a conclusion, and means an amount more than a scintilla
but less than a preponderance[]”)  (quoting R.I. Temps, Inc. v. Dep’t of Labor and
Training, Bd. of Rev., 749 A.2d 1121, 1125 (R.I. 2000)).3
This Court may not substitute its judgment for the decision of the agency with
respect to “credibility of the witnesses or the weight of the evidence concerning questions
of fact.”   Costa v. Registrar of Motor Vehicles,                                                        543 A.2d 1307, 1309 (R.I. 1988) (citing
Newport Shipyard, Inc. v. R.I. Comm’n for Human Rights, 484 A.2d 893 (R.I. 1984));
see also Lee v. R.I. Council 94, 796 A.2d 1080, 1083 n.1 (R.I. 2002) (stating that “it is
well settled that judicial review of agency decisions is limited to questions of law and the
reviewing  court  may  not  make  factual  findings”)                                                    (citation  omitted).                                                                           However,
“‘[q]uestions of law determined by the administrative agency are not binding upon [this
3
Substantial evidence has been defined synonymously with legally competent evidence as “‘such relevant
evidence that a reasonable mind might accept as adequate to support a conclusion, and means an amount
more than a scintilla but less than a preponderance.’” Newport Shipyard, Inc. v. R.I. Comm'n for Human
Rights,                                                                                                  484 A.2d 893, 897 (R.I. 1984) (quoting Caswell v. George Sherman Sand & Gravel Co., 424 A.2d
646, 647 (R.I. 1981)).
17




Court] and may be freely reviewed to determine the relevant law and its applicability to
the facts presented in the record.’”   Iselin v. Retirement Bd. of Employees’ Retirement
Syst. of R.I.,                                                                                 943 A.2d 1045, 1048-49 (R.I. 2008) (quoting State Dep’t of Envir’l. Mgmt.
v. State Labor Relations Bd., 799 A.2d 274, 277 (R.I. 2002)) (further citation omitted).
“[A]n administrative decision can be vacated if it is clearly erroneous in view of
the reliable, probative, and substantial evidence contained in the whole record.”   Costa v.
Registrar of Motor Vehicles,   543 A.2d 1307, 1309 (R.I. 1988) (citing Newport Shipyard,
484 A.2d 893.)   In addition, the arbitrary and capricious standard of review “means that
reviewing courts will uphold administrative decisions . . . as long as the administrative
interpreters have acted within their authority to make such decisions and their decisions
were rational, logical, and supported by substantial evidence.”    Goncalves v. NMU
Pension Trust, 818 A.2d 678, 682-83 (R.I. 2003) (citing Doyle v. Paul Revere Life Ins.
Co., 144 F.3d 181, 184 (1st Cir. 1998)).   Furthermore, this Court “may reverse, modify,
or remand the agency's decision if the decision is violative of constitutional or statutory
provisions.”   Nickerson, 853 A.2d at 1205 (quoting Barrington Sch. Comm., 608 A.2d at
1138).   Our Supreme Court has explained that the “statutory reference to errors of law or
violation of constitutional provisions [extends] only [to] determinations by the agency
that might in themselves violate statutory or constitutional principles.”   Easton’s Point
Ass’n v. C.R.M.C.,   522 A.2d 199, 202 (R.I. 1987).
IV
Law and Analysis
In enacting the State Fair Employment Practices Act, R.I. Gen. Laws §§ 28-5-1 et
seq., our General Assembly stated that it is “the public policy of this state to foster the
18




employment of all individuals in this state in accordance with their fullest capacities,
regardless of their . . . sex . . . and to safeguard their right to obtain and hold employment
without such discrimination.”                                                                     § 28-5-3.   Our Supreme Court has explained, “The State
Fair Employment Practices Act . . . prohibits an employer from either discharging an
employee or discriminating against an employee with respect to ‘terms, conditions or
privileges of employment’ based on that employee’s sex . . .                                      .”   DeCamp v. Dollar Tree
Stores, Inc., 875 A.2d 13, 20 (R.I. 2005) (citing § 28-5-7(1)(i)-(ii)).4   In interpreting the
State Fair Employment Practices Act, Rhode Island courts “remain faithful to federal
precedents  interpreting  federal  antidiscrimination  statutes,  such  as  Title  VII.”    Id.
(citation omitted).
Our Supreme Court has distinguished the gender-based disparate treatment theory
of employment discrimination from the hostile work environment theory.                            “A gender-
based disparate treatment claim follows the three-step burden-shifting legal framework
first announced in [McDonnell Douglas Corp. v. Green 411 U.S. 792 (1973)].”   Id. at 21.
(citations  omitted).                                                                             Federal  courts  developed  this  burden-shifting  framework  to
4 Section 28-5-7(1)(i)-(ii) provides:
It shall be an unlawful employment practice:
(1) For any employer:
(i) To refuse to hire any applicant for employment because of
his  or  her  race  or  color,  religion,  sex,  sexual  orientation,
gender identity or expression, disability, age, or country of
ancestral origin;
(ii) Because of those reasons, to discharge an employee or
discriminate against him or her with respect to hire, tenure,
compensation, terms, conditions or privileges of employment,
or  any  other  matter  directly  or  indirectly  related  to
employment. . .
(Emphasis added.)
19




“‘progressively . . . sharpen the inquiry into the elusive factual question of intentional
discrimination.’”  Neri v. Ross Simons, Inc., 897 A.2d 42, 48 (R.I. 2006) (quoting Center
for Behavioral Health, R.I., Inc. v. Barros,  710 A.2d  680,  685  (R.I.  1998))  (further
citation omitted); see also Newport Shipyard,                                                   484  A.2d at  897-98  (stating that  “in
considering claims brought pursuant to our chapter 5 of title 28, [courts] should [look] for
guidance in this sensitive area to decisions of the federal courts in construing Title VII of
the Civil Rights Act of 1964[]”).   Our Supreme Court has noted, however, that “[d]espite
this  burden  shifting,  the  employee  has  the  ultimate  burden  of  persuasion  in  these
matters.”  Barros, 710 A.2d at 685 (citation omitted).
To establish a prima facie case of gender-based disparate treatment ― which is
the first step in the burden-shifting framework ― a plaintiff must show that:
“(1) she is a member of a protected class;  (2) she was
performing her job at a level that rules out the possibility
that she was fired for inadequate job performance; (3) she
suffered an adverse job action by her employer; and (4) her
employer  sought  a  replacement  for  her  with  roughly
equivalent qualifications.”
DeCamp, 875 A.2d at 21 (quoting Smith v. Stratus Computer, Inc., 40 F.3d 11, 15 (1st
Cir. 1994)); see also Resare v. Raytheon Co., 981 F.2d 32, 42 (1st Cir. 1992) (providing
that the fourth element of the prima facie case requires that “the employer did not treat
sex neutrally or that opposite sex employees doing the same or similar work were
retained[])” (citation omitted).   Establishing a prima facie case is not onerous.   DeCamp,
875 A.2d at 21.   In fact, with respect to the first element, “‘every person is in a class
protected against gender discrimination.’”  Neri, 897 A.2d at 49 (citation omitted).  At the
first step,                                                                                     “a court should keep its analytical eye focused on the central inquiry in a
disparate treatment sex discrimination case[,]” namely whether an employee was treated
20




less favorably because of his or her gender.    Resare,  981 F.2d at  42 n.21  (citation
omitted).   When a plaintiff establishes a prima facie case, a rebuttable presumption arises
that the defendant unlawfully discriminated against the plaintiff.   Neri, 897 A.2d at 49
(citation omitted).
“The second step requires the employer to offer a legitimate, nondiscriminatory
reason for the adverse employment action.”    DeCamp,  875 A.2d at  21-22  (citation
omitted).   The employer’s offer of a legitimate, nondiscriminatory reason is simply a
burden of production rather than a burden of persuasion.   Neri, 897 A.2d at 49 (citation
omitted).    When  a  legitimate,  nondiscriminatory  reason  is  produced,  the  rebuttable
presumption created by the prima facie case is eliminated.  Id. at 49-50 (citation omitted).
“[T]he  third  step  requires  the  employee to convince the fact-finder that the
legitimate,  nondiscriminatory  reason  was                                                    [a]  pretext  for  unlawful  discriminatory
animus.”   DeCamp, 875 A.2d at 21-22 (citation omitted).   The burden of proof for this
third step rests with the employee.  Neri, 897 A.2d at 50 (citation omitted).  An employee
does not have to offer “smoking gun” evidence of discrimination but must prove that the
employer’s proffered reason for termination taking the adverse employment action was a
pretext for discriminatory animus.   Neri, 897 A.2d at 50 (citation omitted); see Barros,
710 A.2d at 685 (establishing that an employee must do more than simply cast doubt on
the employer’s explanation)  (citation omitted); Resare,                                       981  F.2d at  42  (stating that
circumstantial  evidence  can  be  used  to  prove  a  discriminatory  animus,                 “including
comments   by   decision-makers   which   denigrate   women[]”                                 (citation   omitted)).
Specifically, “[a]n employee can establish pretext ‘either directly by persuading the court
that a discriminatory reason more likely motivated the employer or indirectly by showing
21




that the employer’s proffered explanation is unworthy of credence.’”  Barros, 710 A.2d at
685 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
Our Supreme Court has explained that “‘a plaintiff's prima facie case, combined
with sufficient evidence to find that the employer's asserted justification is false, may
permit the trier of fact to conclude that the employer unlawfully discriminated.’”   Neri,
897 A.2d at 50 (quoting Casey v. Town of Portsmouth, 861 A.2d 1032, 1038 (R.I. 2004))
(further citation omitted).   Additionally, the inference of discrimination is stronger when
the employer’s proffered reason for termination is  “‘accompanied by a suspicion of
mendacity.’”    Id.                                                                            (citation  omitted);  see  Barros,                                                     710  A.2d  at  685  (stating  that  “in
situations in which the elements of a sufficient prima facie case combine with the
factfinder’s belief that the basis for dismissing the employee was pretextual, particularly
if                                                                                             ‘accompanied by a suspicion of mendacity,’ the factfinder is permitted to ‘infer the
ultimate fact of intentional discrimination[]’”) (citation omitted).
“A gender-based hostile work environment claim, in contrast, allows an employee
to  recover  against  his  or  her  employer                                                   ‘[w]hen  the  workplace  is  permeated  with
“discriminatory  intimidation,  ridicule,  and  insult,”’  that  is                            ‘“sufficiently  severe  or
pervasive to alter the conditions of the victim's employment and create an abusive
working environment.”’   DeCamp, 875 A.2d at 21 (quoting Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993)) (further citation omitted).   The hostile work environment
theory is frequently the basis for sexual harassment claims regarding the terms and
conditions of employment.   Id. at 22 n.8.   In determining whether a gender-based hostile
work environment exists, consideration must be given to the record as a whole in light of
the totality of the circumstances.  Id. at 22 (citation omitted).
22




Our Supreme Court has established the following test for determining whether a
gender-based hostile work environment exists, requiring a plaintiff to prove:
(1) the employee is a member of a protected class; (2)
the employee was subjected to unwanted harassment; (3)
that harassment was based upon his or her sex; (4) “that the
harassment was sufficiently severe and pervasive so as to
alter the conditions of plaintiff’s employment and create an
abusive work environment;” (5) that harassment “was both
objectively  and  subjectively  offensive,  such  that  a
reasonable person would find it hostile or abusive and the
victim in fact did perceive it to be so;” and (6) “that some
basis for employer liability has been established.”
Id. at 22-23 (quoting O’Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001)).
To determine whether the harassment was objectively and subjectively offensive, courts
must look at all of the circumstances, “including the ‘frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.’”   Id. at 24 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787-88
(1998)) (further citation omitted); see also Mann v. Lima, 290 F. Supp. 2d 190, 195
(D.R.I. 2003) (including “the effect of the conduct on the employee’s psychological well-
being”  among  the  factors  that  deserve  consideration  in  assessing  the  severity  or
pervasiveness of allegedly harassing conduct) (citation omitted).
A
Terms and Conditions of Employment
On appeal, J.J. Gregory has accused the Commission of improperly blending the
disparate treatment and hostile work environment theories of discrimination, thereby
producing an irretrievably flawed decision.   It bases its argument on footnote six in
DeCamp, in which our Supreme Court characterized blending these theories as clear
23




error.   DeCamp, 875 A.2d 13, 21 n.6.   Our Supreme Court stated, that “a gender-based
disparate treatment claim does not depend upon a prima facie showing of a hostile work
environment and a hostile work environment claim does not utilize the burden-shifting
framework.”   Id. (citation omitted).   J.J. Gregory also argues that even if the facts of the
company’s treatment of Zeigler are viewed in a light most favorable to her, those facts
are insufficient as a matter of law to establish that she was subject to a hostile work
environment.
The Commission argues that it did not blend the disparate treatment and hostile
work environment standards.   It contends that it analyzed the terms and conditions of
Zeigler’s  employment  under  the  hostile  work  environment  theory  and  Zeigler’s
termination under the disparate treatment framework.    Additionally, the Commission
asserts that the evidence of Darling treating Zeigler differently than her male co-workers
through continuous verbal abuse and criticism was sufficient to support a finding of a
hostile work environment.
Although the Commission did not explicitly address the elements of a gender-
based hostile work environment established by our Supreme Court in DeCamp, its
recitation of case law reflects that it based its finding of discrimination with respect to the
terms and conditions of Zeigler’s employment on the hostile work environment theory.
(Decision I at 7 (citing Gorski v. N.H. Dept. of Corrections, 290 F.3d 466, 471 (1st Cir.
2002));  O’Rourke  v.  City  of  Providence,                                                      235  F.3d   713   (1st  Cir.   2001).   The
Commission’s lack of clarity in its decision does not constitute legal error.   Regardless,
“‘[q]uestions of law determined by the administrative agency are not binding upon [this
Court] and may be freely reviewed to determine the relevant law and its applicability to
24




the facts presented in the record.’”   Iselin,                                                 943 A.2d 1045, 1048-1049.   Considering that
the hostile work environment theory is frequently the basis for sexual harassment claims
regarding  the  terms  and  conditions  of  employment,  and  noting  the  Commission’s
decision to apply this line of case law, this Court also will examine the terms and
conditions of Zeigler’s employment in light of the law applicable to a hostile work
environment claim.
As a female, and thereby a member of a protected class, Zeigler satisfies the first
element of a hostile work environment claim.   See DeCamp, 875 A.2d at 22; Neri, 897
A.2d at  49  (establishing that                                                                “‘every person is in a class protected against gender
discrimination’” (citation omitted)).   Regarding the second element, “[a]s is often the
case,  there  is  little  doubt  that [Zeigler]                                                ‘. . . considered                                       [J.J.  Gregory’s]  conduct
unwelcome.’”    See DeCamp,  875 A.2d at  23  (quoting O’Rourke,  235 F.3d at  728).
Zeigler confronted both Darling and Gregory about the treatment she received.                  (Tr. at
18, 35, May 30, 2006.)   The treatment induced her to seek medical and psychological
assistance, (id. at 34, 42), and frequently drove her to tears.                                (Id. at 84-87.)
The next element for consideration is whether the harassment was based upon her
gender.    To  satisfy  this  element,  however,  our  Supreme  Court  has  noted  that  the
“harassing conduct . . . need not be sexual in nature.”   DeCamp, 875 A.2d at 22 n.8.   The
Commission found, and substantial evidence in the record supports, that Zeigler was
treated differently than her male colleagues because of her gender.    That different
treatment included Darling speaking to Zeigler harshly in front of customers, criticizing
her delay in taking her lunch and wearing sneakers, refusing to provide her better gloves,
and delaying a bonus payment.                                                                  (Decision I at 2-3, 6.)   The Commission also found
25




credible Weigand’s testimony that despite Darling’s good relationship with the male parts
clerks, Darling was harsh to Zeigler and that Darling said he would never hire another
woman.                                                                                          (Decision I at 7, 10; Tr. at 96-98, May 30, 2006.)   The Commission similarly
found  Sears’s  testimony  credible  that  Darling  was  prejudiced  against  and  verbally
abusive to Zeigler and that Darling told Sears to make sure that he did not hire any more
women.   (Decision I at 7, 10; Tr. at 14, 21, 29, June 16, 2006.)   This different treatment
and  overt  expressions  of  discrimination  constitute  substantial  evidence  that  Darling
harassed Zeigler based upon her sex.  See Newport Shipyard, Inc., 484 A.2d at 897.
This Court next must consider, relative to Zeigler’s hostile work environment
claim, whether the harassment of her was sufficiently severe and pervasive so as to alter
the conditions of her employment and create an abusive work environment.   As noted
above, the Commission found credible the testimony of Zeigler, Weigand, and Sears, all
of  whom  described,  in  addition  to  specific  incidents,  a  work  place  permeated  by
Darling’s ongoing abusive and humiliating treatment of Zeigler.                                 (Tr. at 16-18, 96-98,
May 30, 2006; Tr. at 14, 29, June 16, 2006); see Carrero v. N.Y. City Housing Auth., 890
F.2d 569, 577 (2d Cir. 1989) (stating that the “incidents must be more than episodic; they
must  be  sufficiently  continuous  and  concerted  in  order  to  be  deemed  pervasive[]”
(citation  omitted)).                                                                           Such  treatment  damaged  Zeigler’s  psychological  well-being,
prompting her to require mental health assistance.   See Mann v. Lima, 290 F. Supp. 2d
190,                                                                                            195                                                                             (D.R.I.   2003)   (including   “the  effect  of  the  conduct  on  the  employee’s
psychological well-being” among the factors that deserve consideration in assessing the
severity or pervasiveness of allegedly harassing conduct) (citation omitted).   A review of
the totality of the circumstances reveals that substantial evidence exists to support the
26




conclusion that severe and pervasive harassment of Zeigler altered her conditions of
employment and created an abusive work environment.  See Newport Shipyard, Inc., 484
A.2d at 897.
In considering whether the harassment was objectively and subjectively offensive,
courts must evaluate the ‘frequency of the discriminatory conduct; its severity; whether it
[was] physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interfere[d] with an employee’s work performance.’”   DeCamp, 875 A.2d
at 24 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)) (further
citation omitted).   As mentioned above, substantial evidence exists in the record to show
that Darling subjected Zeigler to continuing, abusive treatment in the presence of her co-
workers and customers.   A reasonable person would consider such sustained, abusive
treatment, from which one’s colleagues were shielded because of their sex, offensive and
humiliating.   Though the record is devoid of evidence that Darling physically threatened
Zeigler, Darling unreasonably interfered with her job performance as evidenced by
Zeigler’s total disablement “from her normal and customary employment from August,
2003 at least through March 15, 2004 as the proximate result of job induced stress.”
(Complainant’s Ex. 5.)   Further, Zeigler, as evidenced by her tears and need for medical
and psychological assistance, found the conduct hostile and offensive.  See DeCamp, 875
A.2d at 24.   Thus, substantial evidence exists in the record to support the finding that
Darling’s harassment of Zeigler was objectively and subjectively offensive.  See Newport
Shipyard, Inc., 484 A.2d at 897.
Lastly, this Court must consider whether some basis for employer liability has
been established.   In addressing this factor, our Supreme Court has adopted the holding
27




of the United States Supreme Court in Suders that “‘an employer is strictly liable for
supervisor  harassment  that  culminates  in  a  tangible  employment  action,  such  as
discharge, demotion, or undesirable reassignment.”’    DeCamp,  875 A.2d at  24 n.11
(quoting Pennsylvania State Police v. Suders, 542 U.S. 129 (2004)).   Because Darling’s
harassment of Zeigler culminated in her termination, J.J. Gregory is strictly liable for
Darling’s harassment. As such, a basis for the employer’s liability has been established.
Accordingly, this Court finds that substantial evidence exists in the record to
support each of the requisite elements of a gender-based hostile work environment claim
with respect to the terms and conditions of Zeigler’s employment with J.J. Gregory.
Thus, the Commission’s conclusion that the company discriminated against Zeigler with
respect to the terms of conditions of her employment is not clearly erroneous, arbitrary
and capricious, characterized by abuse of discretion, in excess of statutory authority, or
against legal precedent.   Because the substantial rights of J.J. Gregory have not been
prejudiced  by  the  decision  of  the  Agency,  this  Court  affirms  the  Commission’s
conclusion that the company discriminated against Zeigler with respect to the terms and
conditions of her employment in violation of  R.I. Gen. Laws § 28-5-7.
B
Termination
In addition to finding that J.J. Gregory discriminated against Zeigler with respect
to the terms and conditions of her employment, the Commission concluded that the
company terminated her because of her gender.    The Commission used the burden
shifting, disparate treatment analysis, previously described by this Court, to reach that
determination.                                                                               (Decision I at 7-11); see, e.g., DeCamp, 875 A.2d at 21-22.   J.J. Gregory
28




asserts that the Commission ignored the same actor inference, which provides that when
the same group of individuals that hires a person terminates that person, an inference that
discrimination  did  not  motivate  that  termination  arises.    It  also  contends  that  the
Commission had no legal basis to conclude that the proffered downsizing was a pretext.
Further, the company claims that no evidence exists that Zeigler’s termination was due to
her gender.
Zeigler counters that clear and convincing evidence established a prima facie case
of the company’s repeated violations of § 28-5-7.   The Commission separately claims
that it considered the same actor inference but found it unpersuasive in the face of
evidence  of  discrimination.    The  Commission  also  argues  that  the  finding  of  a
discriminatory termination was supported by sufficient evidence.   Specifically, it states
that the Commission based this finding on the credible testimony of Zeigler and her
witnesses and the lack of credibility of J.J. Gregory’s witnesses.
This Court initially must consider whether substantial evidence exists in the
record for Zeigler to satisfy the elements of a prima facie case as part of the burden
shifting framework.   First, as a woman, Zeigler is a member of a protected class.   See
DeCamp, 875 A.2d at 22.  Next, she was performing her job at a level that eliminates any
possibility that she was terminated for inadequate performance.   She had never received
any reprimands from the company or complaints from customers.   (Decision I at 4; Tr. at
33-34,  May                                                                                       30,                        2006.)   Darling  testified  that  he  had  no  problems  with  her  job
performance and that she performed as well as her co-workers.                                     (Decision I at 4; Tr. at
25-26, 31, 34, Aug. 17, 2006.)   Similarly, Gregory testified that he was not aware of any
complaints in Zeigler’s personnel file or made to him personally, and he had no issues
29




with her job performance.                                                                     (Decision I at 5; Tr. at 103-104, 110, May 30, 2006.)   Zeigler
suffered an adverse job action when J.J. Gregory terminated her in August of  2003.
(Decision I at 4; Complainant’s Ex. 2.)   Lastly, the company retained Zeigler’s male co-
workers, Weigand and Botham, who performed the same work.                                     (Tr. at 93-93, May 30,
2006); see Resare, 981 F.2d at 42 (establishing that the fourth element of the prima facie
case requires that opposite sex employees doing the same or similar work were retained).
Additionally,  J.J.  Gregory  sought  to  replace  Zeigler  with  an  employee  of  roughly
equivalent qualifications.  See DeCamp, 875 A.2d at 21.  On August 10, 2003, three days
after Dr. Troise told Zeigler to take thirty days off from work, the company ran an
advertisement in The Providence Journal for a new parts clerk.   (Tr. at 48, May 30, 2006;
Complainant’s Ex. 3.)   A couple of months after it terminated Zeigler, J.J. Gregory hired
a male parts clerk.                                                                           (Decision I at 6; Tr. at 94, May 30, 2006; Tr. at 21, June 16, 20

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