IN THE SUPREME COURT OF OI3IO
Michael Dwoming, ) On Appeal From the Cuyahoga County ) Court of Appeals, Plaintiff-Appellee, ) Eighth Appellate District ) vs. - ) Appellate Court Case No. 87757 ) City of Euclid, et al., Supreme Court Case No. 2007-0307 Defendants-Appellants. )
PLAINTIFF-APPELLEE iVIICHAEL DWORNING'S MERTT BRIEF
Christopher P. Thorman (0056013)(Counsel of Record) Richard A. Millisor (0062883) Peter Hardin-Levine (0014288) William F. Blackie (0017699) Jon L. Lindberg (0076591) MILLISOR & NOBIL CO., L.P.A. THORMAN & HARDIN-LEVINE CO. L.P.A. 9150 South Hills Blvd., Suite 300 The Bradley Building Cleveland, Ohio 44147-3599 1220 West 6°i Street, Suite 207 (440) 838-8800 - Phone Cleveland, Ohio 44113 (440) 839-8805 - Fax (216) 621-9767 - Phone [email protected] (216) 621-3422-Fax [email protected] [email protected] [email protected] [email protected] Chris Frey (0038964) Counsel for Plaintiff Appellee Euclid City Hall Michael Dworning 585 East 222°d Street Euclid, Ohio 44123-2099 (216) 289-2746 - Phone (216) 289-2766 - Fax cfrev (9)ci.euclid.oh.u s
Counsel for Defendant-Appellant, City of Euclid, James Slivers & Thomas Cosgriff Barbara Kaye Besser (0017624) ELFVIN & BESSER L.P.A. 4070 Mayfield Road Cleveland, Ohio 44121-3031 CLER6( (216) 382-2500-- Phone OF C®URT (216) 381-0250 - Fax SUPREME COURT OF ®H!0 [email protected] Counsel fo-r Defendants-Appellants, JumesSlivrrs-and -TfwmasCosgriff------TABLE OF CONTENTS
Pa2e INTRODUCTION ...... 1
STATEMENTIOF FACTS ...... :...... 2
Dworning was a long-term successful employee with the city of Euclid ...... 2
Dworning sought treatment for alcoholism and was placed on a leave of absence ...... 2
Appellants gathered evidence of Dworning's disability to support an illegal and discriniinatory termination ...... :...... 3
Euclid terminated Dworning after he refused to resign ...... 5
Euclid ignored its Commission rules and treated Dworning as a non-classified employee ...... 7
Procedural 1-Iistory ...... 9
LA W AND ARGUMENT ...... :...... 10
I. R.C. 4112 creates an unfettered right for victims of disability discrimination to bring private causes of action ...... 10
A. The General Assembly amended R.C. 4112 to create an independent civil action for employment discrimination ...... 10
B. R.C. 4112.99 permits disability discrimination victinvs to bring lawsuits ...... 11
II. The Eighth District correctly refused to limit or condition the rights of discrimination victims to seek judicial redress ...... :...... 12
A. Courts must liberally construe R.C. 4112 to secure its remedial purposes ...... 13
B. The General Assembly did not condition the rights of disability discrimination victims upon theexhaustion of administrative remedies ...... 15
C. The Eighth Appellate District correctly refused to apply the court-made doctrine of judicial exhaustion to R.C. 4112 claims ...... :...... 18
D. The Eighth District correctly determined that the policies and purposes of R.C. 4112 would be undermined by applying the administrative exhaustion doctrine to R.C.. 4112 claims ...... 29
1. The policies and purposes of R.C. 4112 will be undermined by requirina employeeS to file discrimination claiins with civil service commissions ...... :. 29 2. R.C. 4112 preempts conflicting municipal ordinances ...... 32
3. While public employees enjoy broader constitutionally guaranteed rights than private employees,lLC. 4112 grants them the identical right to bring a discrimination lawsuit as those provided to private employees ...... 36
III. Dworning did not have any administrative remedies to eikhaust when it is not disputed that the Euclid Civil Service Commission was never notified of his termination and had no authority to consider or redress his R.C. 4112 discrimination claims, common law tort claims against Euclid, and separate claims against individuals ...... 37
B. The Euclid Civil Service Commission lacks the authority to consider Dworning's R.C. 4112.99 claims or to award damages for those claims ...... 40
C. The Euclid Civil Service Conunission lacks the authority to determine whether Appellants are liable for defamation, invasion of privacy, or civil conspiracy ...... 42
D. The Euclid Civil Service Commission lacks the authority to assess liability or damages against any of the individual defendants ...... 43
E. Appellants cannot assert that Dwoming failed to exhaust administrative remedies when. they failed to notify him of those rights ...... 44
W. The language of the Euclid City Charter is permissive and does not require exhaustion 45
V. The individual defendants are not proper parties to this appeal ...... 47
CONCLUSION ...... 47
CERTIFICATE OF SERVICE ...... :...... 49
APPENDIX ...... Apnendix Page
Notice of Appeal to the Ohio Supreme Court (February 14, 2005...... Appellee Appx. I
Journal Entry of the Cuyahoga County Court of Appeals (January 18, 2006) ...... Appellee Appx. 10
Journal Entry of the Ohio Supreme Court (May 2, 2007) ...... Appellee Appx. I 1
Joumal Entry of the Ohio Supreme Court (May 2, 2007) ...... Appellee Appx. 12
42 U.S.C. § 2000e ...... : ...... Appellee Appx. 13
Ohio Rev. Code § 4112.01 ...... Appellee Appx. 35 Ohio Constitution, Article XVIIl. § 7 ...... Appellee Appx. 38
Unreported Cases (in alphabetical order) ...... Appellee Appx. 39
Shepard's Summary for Sanders v. Sunimit County Veterans' Serv. Conun'n, 2002 Ohio 2653, 2002 Ohio App. LEXIS 2504...... Appellee Appx. 126
Benson A. Wolman, Separation Anxiety: Free Exercise Versus Equal Protection, 47 Ohio St. L.J. 453, 463 (1986 ...... Appellee Appx. 127
iii TABLE OF AUTHORITIES
State Cases Andres v. Perrysburg, 47 Ohio App. 3d 51, i56-57, 546 N.E.2d 1377, 1383-84 ...... 44 Basic Distribution Corp. v. Ohio Dept. of Taxation (2002); 94 Ohio St. 3d 287 ...... 19, 21, 23 Carrico v. Drake Const., 2006 Ohio 3138, 2006 Ohio App. LEXIS 3006 ...... 40 Christe v. GMS Mgt. Co. (2000), 88 Ohio St. 3d 376, 726 N.E.2d 497 ...... 13 Cincinnati v. Dixon (1s` Dist. 1992), 78 Ohio App. 3d 164, 169-70 ...... 40,41 Cleveland Leader Printing Co. v. Nethersole (1911), 84 Ohio St. 118 ...... 43 Cupps v. Toledo (1959), 170 Ohio St. 144, 163 N.E.2d 384 ...... 33 Department of Liquor Control v. Sons of Italy Lodge 0917 (1992), 65 Ohio St. 3d 532, 534-35, 605 N.E.2d 368, 370 ...... 46 Dolan v. Dolan, 2002 Ohio 2440, 2002 Ohio App. LEXIS 2523 ...... 40 Dorrian v. Scioto Conservancy Dist. (1971), 27 Ohio St. 2d 102, 271 N.E.2d 834 ...... 46 East Cleveland Firefighters, Local 500 v. Civil Serv. Comm'n, 2000 Ohio App. LEXIS 6023 (Appellee Appx. 56) ...... :...... 38 Elek v. Huntington National Bank, (1991), 60 Ohio St. 3d 135, 573 N.E.2d 1056... 12, 20, 23, 24, 26,29,31,34 Filips v. Case Western Reserve University, 8`h Dist. No. 79741, 2002-Ohio-4428, 2002 Ohio App. LEXIS 4576 (Appellee Appx. 85) ...... 20, 22 Frick v. University Hosp. of Cleveland (1999), 133 Ohio App. 3d 224, 727 N.E.2d 600...... 24 Friendship Village, 92 Ohio St. 3d at 505 ...... 15 G.S.T. v. Avon Lake (1976), 48 Ohio St. 2d 63, 65, 357 N.E.2d 38, 40 ...... 19 Genaro v. Central Transport, Inc ...... 14, 30, 34 Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St. 3d 131, 133-34, 543 N.E.2d 1212, 1215 ...... 15 Indep. Ins. Agents of Ohio, Inc. v. Fabe (1992), 63 Ohio St.3d 310, 314, 587 N.E:2d 814, 817. 17 Kenty v. Transamerica Premium Ins. Co. (1995), 72 Ohio St. 3d 415 ...... 44 Kettering v. State Emp. Relations Bd. (1986), 26 Ohio St.3d 50, 53, 496 N.E.2d 983, 986 ...... 33 Kilko v. Cleveland (81h Dist. 1951), 102 N.E.2d 476, 1951 Ohio App. LEXIS 939 ...... 44 Larkins v. G.D. Searle & Co. (10th Dist. 1991), 68 Ohio App. 3d 746 ...... 19,23 LeFort v. Century 21-Maitland Realty Co. (1987), 32 Ohio St. 3d 121 ...... 44 Luginbihl v. Milcor L.P., 2002 Ohio 2188, 2002 Ohio App. LEXIS 2181 (Appellee Appx. 101) ...... 20,21 Luginbihl, 2002 Ohio at 9[ 22 (Appellee Appx. 103) ...... 20 Luginbihl, 2002 Ohio at 9[ 28 (Appellee Appx. 104) ...... 21 Mark v. MellottMfg. Co., Inc. (1995), 106 Ohio App. 3d 571, 589, 666 N.E.2d 631 ...... 40 McKart v. United States (1969), 395 U.S. 185, 193-94, 89 S.Ct. 1657, 1662 ...... 19 Montgomery Cty. Bd of Commrs. v. Pub. Util. Comm. (1986), 28 Ohio St.3d 171, 28 OBR 262, 503 N.E.2d 167 ...... 17 Nemazee v. Mt. Sinai Medical Center (1990), 56 Ohio St. 3d 109, 564 N.E.2d 477 ...... 21 Ohio Civil Rights Comm. v. Lysyj (1974), 38 Ohio St. 2d 217, 220 ...... 14 Ohio Civil Rights Comm. v. Lysyj (1974), 38 Ohio St. 2d 217, 222, 313 N.E.2d 3 ...... 42 Portis v. Metro Parks Serving Summit County, 2005 Ohio 1820, 2005 Ohio App. LEXIS 173626, 27 Pozzobon v. Partsfor Plastic (N.D. Ohio 1991), 770 F.Supp. 376, 378 ...... 11 Proffitt v. Anacomp, Inc. (S.D. Ohio 1990), 747 F. Supp. 421, 424 ...... 11 Provident Bank v. Wood (1973), 36 Ohio St. 2d 101, 105, 304 N.E.2d 378. 381 ...... 13 Pullins v. Springfceld (Aug. 20, 1992), 2d Dist. No. 2906, 1992 Ohio App. LEXIS 4377 ...... 44 Rice v. CertainTeed Corp. (1999), 84 Ohio St.3d 417, 704 N.E.2d 1217 ...... :...... 14 Rocky River v. State Employment Relations Bd. (1989), 43 Ohio St. 3d 1, 12, 539 N.E.2d 103, 113 ...... 33 Salvation Army v. Blue Cross and Blue Shield of Northern Ohio (8`n Dist. 1993), 92 Ohio App. 3d 571, 579, 636 N.E.2d 399, 403-04 ...... 38,43 Sanders v. Summit County Veterans' Serv. Comm'n, 2002 Ohio 2653, 2002 Ohio App. LEXIS 2504 ...... 26 See Stores Realty Co. v. Cleveland (1975), 41 Ohio St. 2d 41, 43, 322 N.E.2d 629, 630...... 40 Smith v. Friendship Village of Dublin (2001), 92 Ohio St. 3d 503, 505, 751 N.E.2d 1010.. 14, 17, 18, 23, 26, 29, 30 Smith v. Friendship Village of Dublin (2001), 92 Ohio St. 3d 503, 751 N.E.2d 1010...... 16, 17 State ex rel. Evans v. Moore (1982), 69 Ohio St.2d 88, 91, 43 N.E.2d 311, 313 ...... 33 State ex rel. Ramey v. Davis (1929), 119 Ohio St. 596 ...... 36 (1994), State ex rel. Richard v. Bd. of Trustees of Police & Firemen's Disability & Pension Fund 69 Ohio St. 3d 409, 411-12, 632 N.E.2d .1292, 1295 ...... 14 State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn. (1996), 74 Ohio St. 3d 543, 545, 660 N.E.2d 463, 465 ...... 13, 30 State v. Droste (1998), 83 Ohio St.3d 36, 697 N.E.2d 620 ...... 17 State v. Jordan (2000), 89 Ohio St. 3d 488, 492, 733 N.E.2d 601 ...... 13 Sustin v. Fee (1982), 69 Ohio St. 2d 143 ...... 43 Taylor v. National Group of Cos. (N.D. Ohio 1990), 765 F. Supp. 411 ...... 10 Thomas v. Freeman (1997), 79 Ohio St.3d 221, 224-25, 680 N.E.2d 997, 1000 ...... 17 Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 218, 797 N.E.2d 1256, 1261 ...... 25 Whitehall ex rel. Wolfe v. Ohio Civil Rights Comm'n (May 3, 1994), 10th Dist. No. 93APD12- 1719, 1994 Ohio App. LEXIS 1882 ...... 36,41 Whitehall ex rel. Wolfe v. State Civil Rights Comm'n (1995), 74 Ohio St. 3d 120 ...... 40 Willoughby Hills v. C.C. Bar's Sahara, Inc. (1992), 64 Ohio St. 3d 24, 26, 591 N.E.2d 1203 ... 47 Wilson v. Glastic Corporation (8th Dist. 2002), 150 Ohio App. 3d 706 ...... 21 State Statutes Hall v. City of Cleveland Dep't of Public Utilities, 8`h Dist. 82034, 2003 Ohio 1964 ...... 28 R.C. 124.34 ...... 38, 41, 43, 45, 46 R.C. 41121, 2, 10, 11, 12, 13, 14, 15, 16, 18, 20, 22, 23, 24, 25, 26, 29, 30, 31, 32, 34, 35, 37, 41, 46, 47 R.C. 4112.01(A) ...... 15,36 R.C. 4112.02(A) ...... 11 R.C. 4112.14(C) ...... :...... 18 State ex rel. Celebreeze v. Natl. Lime & Stone Co. (1994), 68 Ohio St. 3d 377, 382 ...... 12 Other Authorities Benson A. Wolman, Separation Anxiety: Free Exercise Versus Equal Protection, 47 Ohio St. L.J. 453,463 (1986) ...... :...... 10 Federal Cases Cleveland Bd. of Education v. Loudermill, (1985), 470 U.S. 532, 105 S. Ct. 1487 ...... 36 Restatement of the Law 2d, Torts (1977) 378, Section 652B ...... 43 Federal Statutes ...... 10 Civil Rights Act of 1964 ("Title VII"). See 42 U.S.C. §§ 2000e, et seq ... Miscellaneous 128 Ohio Laws 12 ...... 14 Ohio Const. art. XVIII ...... 33
vi INTRODUCTION
"Whoever violates this chapter [R.C. Ch. 41121 is subject to a civil actionfor damages, injunctive relief, or any other appropriate relief. "3
In 1987, the General Assembly, through this unambiguous amendment to Ohio's anti- discrimination law, made clear that all discrimination victims -- including municipal employees -
- have direct and immediate access to Ohio courts under R.C. 4112.99. To further secure the
rights of discrimination victims, the General Assembly enacted R.C. 4112.08 to require all courts
to liberally construe Chapter 4112 and strike any law inconsistent with it'
The Ohio Supreme Court has repeatedly reiterated the obvious: "[U]nder R.C. 4112.99,
an individual may institute an independent civil action for discrimination on the basis of physical
handicap even though that individual has not yet invoked and exhausted his or her administrative
remedies."' As this Court recognized in Smith v. Friendship Village of Dublin,4 the plain
statutory language of R.C. 4112 provides disability discrimination victims direct access to Ohio
courts.5
As it has previously been asked to do, this Court is again called upon to determine
whether the judicial exhaustion doctrine limits the rights of disability discrimination victims.
This Court should affirm the Court of Appeals for the Eighth Appellate District and determine
that the plain language of R.C. 4112 grants discrimination victims an unrestricted right to initiate
lawsuits. The Eighth District correctly refused to apply the judicial exhaustion doctrine and
1 R.C. 4112.99 (emphasis added). 2 See'R.C. 4112.08 ("any law inconsistent with any provision of this chapter [R.C. Ch. 4112] shall not apply"). 3 Smith v. Friendship Village of Dublin (2001), 92 Ohio St. 3d 503, 506, 751 N.E.2d 1010, 1013 (discussing and following Elek v. Huntington National Bank (1991), 60 Ohio St. 3d 135. 573 N.E.2d 1056 (emphasis added). 4 (2001), 92 Ohio St. 3d 503, 751 N.E.2d 1010. 5 Friendship Village, 92 Ohio St. 3d 503. unremarkably determined that the General Assembly meant what it wrote when it "so very clearly provided for a right of private action with the intent that it has priority over other laws."6
That decision rests upon years of clear Supreme Court precedent and the plain language of R.C.
4112.' Accordingly, the Eighth District's decision should be affirmed.
STATEMENT OF FACTS
A. Dwornina was a long-term successful employee with the city of Euclid.
Appellee Michael Dworning is the former Fire Chief for the City of Euclid, Ohio. For
much of his approximately 30-year career in public service, Dworning enjoyed undeniable
success. Former city officials testified that Dworning was professional, knowledgeable,
interacted well with members of city council and was well liked.7 At the time of his termination,
Dworning had held the Fire Chief position for approximately nine years.8
B. Dwomino- sought treatment for alcoholism and was placed on a leave of absence.
Appellee Michael Dworning has privately struggled with alcoholism for most of his adult
life. 9 In 2003, he voluntarily sought continuing treatment for his disability.
Upon his return, Euclid placed Dworning on an involuntary leave of absence. At that
time, Dworning agreed to an additional referral through the Employee Assistance Program.10 In
October 2003, Euclid determined that Dworning's leave should be re-classified to a medical
leave. Defendants-Appellants Supplement to the Briefs ("Appellants Supp.") 77.
6 Dworning Opinion ("Opinion"), p. 26 (Appellants Appx. 33). ' Rule 30(B)(5) Witness Patrick Gallagher Deposition ("Rule 30(B)(5) Gallagher Dep.") at 55- 56, 73 (R. 57, Appellee's Supplement to the Briefs ("Appellee Supp") 46-47, 51). g See, e.g., Deposition of Thomas Cosgriff ("Cosgriff Dep."), Exhibit 2, p. 49 (R. 59, Appellee Supp. 60) (in which former mayor Oyaski notes "The Chief has been a valued and honorable member of the Euclid Fire Department for nearly thirty years."). 9 Alcoholism is a disability under R.C. 4112.02(A). See Hazlett v. Martin Chevrolet, Inc. (1986), 25 Ohio St. 3d 279, syllabus, 496 N.E.2d 478. 10 Deposition of William Cervenik ("Cervenik Dep."), Exhibit 29, pp. 15-16 (R. 60, Appellee Supp. 26-27).
1) On October 24, 2003, Dworning asked to be returned to his position as Fire Chief.
Euclid required and Dworning provided medical certification that he was fit to return to duty.
Former mayor Oyaski noted that while "Dworning was entitled to full respect and gratitude for the twenty-nine years of generally excellent service Dwotning's return was conditioned upon accepting a three-day suspension. Dworning accepted the suspension and was then permitted to return to work. Cervenik Dep., Exhibit 29, pp. 15-16 (R. 60, Appellee Supp. 71-72).
C. Appellants eathered evidence of Dwomins's disability to support an illeeal and discriminatory termination.
Unbeknownst to Dwoming, while he was on leave, his subordinate, Appellant-Defendant
Thomas Cosgriff, investigated his disability history to convince Euclid to fire Dworning.
Cosgriff had served as the Assistant Fire Chief for just over a year when he targeted Dworning.
Cosgriff Dep., p. 13 (R. 55, Appellee Supp. 7). During Dworning's medical leave, Cosgriff
spread rumors about Dworning, investigated his history of alcoholism and was openly and
unabashedly insubordinate. Cosgriff decided that he "did not like" Dworning and, with the full
knowledge of Euclid's mayor, began an illegal investigation into Dworning's past. Cosgriff
Dep., p. 38 (R. 55, Appellee Supp. 8).
Cosgriff searched for history concerning Dworning's alcoholism to convince Euclid not
to permit Dworning to return to work. Cosgriff Dep., p. 162 (R. 55, Appellee Supp. 15).
Cosgriff called Dwoming's co-workers to corroborate that Dwoming had taken a leave of
absence over 20 years earlier in relation to his disability. Cosgriff testified:
Q: So other than with respect to his job performance, what else did you believe his history or record of alcoholism was relevant to? Well, I knew that the mayor was going to make a - be making a decision, and I thought this may have some relevance to the decision. The - this, when you say "this," you mean the history of alcobolism. A: Yes.
Cosgriff Dep., p. 162 (R. 55, Appellee Supp. 15). Cosgriff spoke with Euclid employees about
Dwoming's alcoholism a "number of times" Cosgriff Dep., p. 68 (R. 55, Appellants Supp.
66)." 1
Cosgriff hoped to use Dwoming's disability history to convince Euclid to temiinate
Dworning and take his job. In an email to Oyaski, Cosgriff wrote: "I am begging you to use the information I gave you last Friday, and use it to rid the Fire Department and the city, of this man
Cosgriff Dep., Exhibit 14 (R. 59, Appellee Supp. 61).
When Dworning was certified fit to return to work, Cosgriff made no secret of his anger over the decision, his illegal motives and his open insubordination:
A: You were unhappy with Mayor Oyaski's decision to bring Michael Dworning back? Q: That is correct. A: And you shared that unhappiness with other people in the Euclid Fire Department, correct? Q: Yes.
Q: You shared your unhappiness with Mayor Oyaski's decision to bring Michael Dwoming back into the department even before Mr. Dwoming was separated from employment, correct? A: That's correct. Q: I mean, it was widely known in the departrnent, and in City Hall that you were very unhappy that Mayor Oyaski had brought Mr. Dwoming back to work, correct?
A: I would say that's probably true.
" See also Cosgriff Dep., pp. 165-66 (Appellee Supp. 18-19):
Q: And so you called Rudy Stray in part to corroborate that Mike Dworning had a prior history of-an alcohol-related leave of absence sometime in the late 80s? A: That's correct.
4 Cosgriff Dep., pp. 71-73 (R. 55, Appellee Supp. 10-12).
Although Dworning had been encouraged to work toward improving relations with
Cosgriff, CosVff had no intention of permitting Dworning to return and be successful. Cosgriff informed the mayor that Dwoming would "never be able to rebuild the trnst and confidence of. the fire department, because he cannot even be honest with himself." Cosgriff Dep., Exhibit 14
(R. 59, Appellee Supp. 61). In his report to the mayor about a meeting upon Dworning's return
in which Dworning "expressed a need to hit the ground running," Cosgriff was openly resentful
about Dwoming's leave of absence, his treatment for alcoholism and his refusal to discuss his
alcoholism with Cosgriff and the deparhnent. Cosgriff remarked that despite the fact that
Dwoming had sought treatment and had been cleared to return to work, that he is tricky, and "he
has fooled his doctor" into thinking he was recovering from alcoholism. Cosgriff Dep., Exhibit
14 (R. 59, Appellee Supp. 61)."
Shortly after Dworning returned to work, Cosgriff boldly admitted that he was "trying to
get rid of [Dworning], and [Dwoming] knows that I am leading the charge." Cosgriff Dep., pp.
226-27, Exhibit 16 (R. 59, Appellee Supp. 63) (R. 55, Appellee Supp. 22-23).
D. Euclid tem-iinated DworninQ after he refused to resign.
After the mayoral election, Cosgriff informed the new mayor, William Cervenik, that he
remained "unhappy" reporting to Dworning. Cosgriff Dep., p. 74 (R. 55, Appellee Supp. 13).
Cosgriff found a more receptive vessel for his discriminatory insubordination in the new mayor
than he had enjoyed in the prior administration.
12 Cosgriff admitted that his belief that Dwoming had "fooled" his doctor was pure speculation. Cosgriff Dep., p. 220 (R. 55, Appellee Supp. 21).
5 On February 20, 2004, Dwoming met with the mayor and the law director for Euclid.
Cervenik threatened Appellant with terniination if he did not resign 13 Cervenik admits that he never disciplined Dworning at any time during his six week tenure. Cervenik Dep., p. 85 (R. 56,
Appellee Supp. 37). Although he had never been digciplined for any misconduct by Cervenik, or otherwise notified that he was to be disciplined, Dworning was informed that if he did not resign,
Euclid "would have had to notify him in writing of ternunation." Cervenik Dep., pp. 51-52 (R.
56, Appellee Supp. 30-31). On February 24, 2004, Cervenik again demanded that Dwoming
"forward to me in writing a statement that you have in fact resigned your position..." Cervenik
Dep., Exhibit 26 (R. 60, Appellee Supp. 66).
Cervenik also informed Dworning that he needed a written statement to process payment for accumulated vacation, sick leave and personal days. Those amounts were due Dworning absent termination for cause. Cervenik Dep., p. 39 (R. 56, Appellee Supp. 28A). Obviously,
Euclid's payment of those eamed benefits to Dworning is a tacit admission that Dwoming was not terminated for cause.
Dworning refused to submit a letter of resignation. Cervenik testified that "I couldn't get the letter of retirement." Cervenik Dep., pp. 54-55 (R. 56, Appellee Supp. 32-33). On March 2,
2004, Cervenik terminated Dwoming's employment in a letter, stating:
I have not yet received your written indication of resignation or retirement from your position as Fire Chief of the City of Euclid.
For the reasons indicated in our February 20, 2004 meeting and in our previous meetings, you are hereby terminated from your position with the City of Euclid for poor work performance. Your effective date of termination is Februaty 20, 2004.
Cervenik Dep., Exhibit 27 (R. 60, Appellee Supp. 67).
'' Deposition of Colleen Tarsitano ("Tarsitano Dep °'), pp. 11-13 (R. 58, Appellee Supp. 54-56).
6 Mayor Cervenik's secretary, Colleen Tarsitano, confirmed Cervenik terminated
Dwoming's employment after he refused to resign:
Q * * * On February 24th, Mayor Cervenik wrote to Mike Dworning asking him to subniit a letter of resignation in writing, correct? A Correct. Q And then as of March 4th, 2004, Mayor Cervenik had not received any letter of retirement or voluntary resignation from Mike Dworning, correct? A Correct. Q And then your understanding was that Mayor Cervenik then tenninated Mike Dworning's employment, correct? A Correct."
Tarsitano Dep., pp. 45-46 (emphasis added) (R. 58, Appellee Supp. 57-58).
According to Euclid, however, Dwoming was never terminated: "If your question is did I terminate Mike Dwoming from employment, my answer is no" Cervenik Dep., p. 28 (R. 56,
Appellee Supp. 28). Nevertheless, on March 4, 2004, Cervenik wrote a letter to the Civil Service
Commission "to inform you that Fire Chief Michael Dwoming was temiinated from his position with the City of Euclid effective February 20, 2004." Cervenik Dep., Exhibit 22 (R. 60,
Appellee Supp. 65). Cervenik never indicated to the Civil Service Commission that Dworning was terminated for performance-related reasons. Cervenik Dep., p. 61-62 (R. 56, Appellee Supp.
35-36).
E. Euclid ignored its Commission rules and treated Dworning as a non-classified employee.
Appellants ignored their rules in terminating Dworning's employment. After terminating
Dwoming, Appellants had an obligation, pursuant to Euclid Civil Service Rule 8.2, to reduce the
reasons for Dworning's termination to writing." Dworning never received a written list of the
14 Euclid Civil Service Rule 8.2 provides: "No person in the classified service shall be discharged or reduced in rank or compensation without being notified in writing, by the Appointing Authority or officer of the reasons of such discharge or reduction." (Euclid Civil Service Rule 8.2, Appellants Appx. 58). See also 30(B)(5) Gallagher Dep., p. 37 (R. 57, Appellee Supp. 42)
7 reasons for his termination from Appellants. Cervenik Dep., p. 55 (R. 56, Appellee Supp. 33).
When asked whether he put the reasons for Dworning's termination in writing, Cervenik testified
"Did I reduce them to writing? No." Cervenik Dep., p. 54 (R. 56, Appellee Supp. 32).
Moreover, Cervenik never, at any time, delivered his March 4, 2004 letter to thb Civil
Service Commission, let alone within ten days of terminating Dworning's employment.
Cervenik Dep., p. 58 (R. 56, Appellee Supp. 34), Cervenik Dep., p. 55 (R. 56, Appellee Supp.
33). Appellants' 30(B)(5) witness most knowledgeable conceming Euclid's Civil Service Rules
and procedures and correspondence received by the Civil Service Commission from Euclid,
testified:
Q: Am I correct in understanding that at no point in time did Mayor Cervenik or anyone else at the City of Euclid ever indicate to you that Mr. Dworning had been fired or otherwise terminated from his employment? A: To the best of my knowledge and recollection, we were never informed of that as a - at the Civil Service Commission, that's correct.
30(B)(5) Gallagher Dep., p. 35 (R. 57, Appellee Supp. 41). Euclid never informed Dwoming
that he had only 10 days to file a complaint with the Civil Service Commission to challenge his
termination.
On March 9, 2004, after having been informed that his employment was terminated,
Dwoming submitted a letter to ensure that he received his retirement benefits, as requested by
Cervenik in his February 24, 2004 letter. Appellants Supp. 59. In short, Dworning never
released his rights to sue for discrimination; he only acknowledged that he was not terminated
for just cause and was otherwise entitled to all of the unused sick leave and accumulated earned
benefits he was awarded in his 30 years of prior service.
(confirming that employees are entitled to receive written notification of the reasons for their termination).
8 F. Procedural History.
On October 26, 2004, Dwoming filed his complaint against Euclid and the individual
Appellants for disability discrimination, aiding and abetting disability discrimination, invasion of privacy and defamation. Complaint with Jury Demand (R. 11, Appellants Supp. 1). Appellants answered Dworning's complaint and later filed a motion for summary judgment, alleging
Dwoming failed to exhaust his administrative remedies. Defendants City of Euclid and Thomas
Cosgriff Memorandum in Support of Defendants' Motion for Summary Judgment Due to
Plaintiff s Failure to Exhaust His Administrative Remedies (R. 38). On January 18, 2006, the
Cuyahoga County Court of Common Pleas, without explanation, granted Appellants' motion for
summary judgment.15 Dwoming filed a timely appeal. Notice of Appeal (R. 71, Appellee Appx.
1). On December 21, 2006, the Eighth District Court of Appeals reversed the trial court's
decision, and held that Dworning had no obligation to exhaust administrative remedies prior to
filing an independent civil action for disability discrimination. Opinion, p. 26 (Appellants Supp.
123).
On February 15, 2007, Appellants attempted to certify a conflict to this court, arguing the
Eighth District's holding conflicted with two opinions from the Ninth Appellate District. Notice
of Filing Order Certifying a Conflict on Behalf of Defendants-Appellants, filed February 15,
2007 in Ohio Supreme Court Cause No. 2007-0308. (Appellee Supp. 74). On May 2, 2007, this
15 Appendix of Appellee Michael Dworning ("Appellee Appx.") (R. 67, Appellee Appx. 10). As explained in more detail in Section VII below, neither Cosgriff nor Slivers are proper parties to either the motion for summary judgment filed by Defendants-Appellants nor any part of the Appellate process. Accordingly, this Court should dismiss these two parties from this appeal, as they have no personal stake in the outcome of these proceedings.
9 Court rejected that argument,16 but accepted Appellants' discretionary appeal on the following two propositions of law included in Appellants' notice of appeal:
Proposition of Law I: A public employee's failure to exhaust his employer's administrative remedies precludes a civil action seeking redress for adverse employment decisions, including blaims asserted under R.C. Chapter 4112.
Proposition of Law II: The judicial doctrine requiring a public employee to exhaust his employer's administrative remedies before filing a civil action is not contingent on the existence of an employment contract.17
LAW AND ARGUMENT
I. R.C. 4112 creates an unfettered right for victims of disability discrimination to bring private causes of action.
A. The General Assembly amended R.C. 4112 to create an independent civil action for employment discrimination
The General Assembly passed Ohio's anti-discrimination statutory framework, R.C.
4112, in 1959," five years before Congress passed its federal statutory counterpart, Title VII of
the Civil Rights Act of 1964 ("Title VIP'). See 42 U.S.C. §§ 2000e, et seq. R.C. 4112's pre-
1987 scheme provided for a system of Ohio Civil Rights Commission ("OCRC") inquiries,
hearings and findings. Under the pre-1987 scheme, a discrimination victim could only resort to
the court of common pleas for review of the OCRC's administrative findings.19 While R.C.
4112.99 provided for criminal sanctions at that time, it did not grant victims the right to file an
16 See May 2, 2007 Entry, holding "It is determined that no conflict exists. Accordingly, this cause is dismissed." (Appellee Appx. 11). 17 See May 2, 2007 Entry accepting Appellants' First and Second Propositions of Law (Appellee Appx. 12). "$ See R.C. 4112, discussed in Tavlor v. National Group of Cos. (N.D. Ohio 1990), 765 F. Supp. 411, 419. 19 See Benson A. Wolman, Separation Anxiety: Free Exercise Versus Equal Protection, 47 Ohio St. L.J. 453, 463 (1986) (contemporary discussion of R.C. 4112's pre-1987 statutory scheme) (Appellee Appx. 127).
10 independent civil action. Pozzobon v. Parts for Plastic (N.D. Ohio 1991), 770 F.Supp. 376, 378
(discussing former R.C. 4112.99); Proffitt v. Anacomp, Inc. (S.D. Ohio 1990), 747 F. Supp. 421,
424 (same).
Tfie General Assembly amended R.C. Ch. 4112 in 1987 to provide individuals with an
independent civil action for employment discrimination. R.C. 4112.99 as amended, states:
"Whoever violates this chapter [R.C. Ch. 4112] is subject to a civil action for damages,
injunctive relief, or any other appropriate relief."20 R.C. 4112.99 (as amended, Sept. 28, 1987)
(Appellants Appx. 123).
Concurrently, the General Assembly amended R.C. 4112.05 to employ permissive
language ("may") vis-a-vis the OCRC administrative process. In short, the General Assembly
amended R.C. 4112.05 to eliminate any suggestion that a discrimination victim is obligated to
exhaust an administrative remedy prior to initiating a lawsuit under R.C. 4112.99.
B. R.C. 4112.99 permits disability discrimination victims to bring lawsuits.
R.C. 4112 unambiguously grants discrimination victims an unfettered right to file a
lawsuit. R.C. 4112.02 makes it an unlawful discriminatory practice "for any employer, because
of...the disability...of any person," to discharge that person. R.C. 4112.02(A) (emphasis added)
(Appellants Appx. 105). It also makes it unlawful "[fJor any person to aid, abet, incite, compel,
or coerce the doing of any act declared by this section to be an unlawful discrinrinatory practice."
R.C. 4112.02(7) (Appellants Appx. 110).
The Ohio Supreme Court has long held that R.C. 4112 provides employees with a direct
civil cause of action. In Elek v. Huntington National Bank, (1991), 60 Ohio St. 3d 135, 573
20 Appellee brought against Appellants two separate claims under R.C. 4112.99 for violations of R.C. Ch. 4112: 1) a claim for disability discrimination in violation of R.C. 4112.02(A), and 2) a claim for aiding and abetting discrimination in violation of R.C. 4112.02(J) (R. 1, Appellants Supp. 1).
11 N.E.2d 1056, this Court held that the General Assembly amended R.C. 4112 to permit
discrimination victims to commence civil actions without first exhausting administrative
remedies. Specifically, this Court stated: "[a] plain reading of this section yields the
unmistakable conclusion that a civil action is available to remedy any form of discrimination
identified in R.C. Chapter 4112." Elek, 60 Ohio St. 3d at 136.
U. The Eighth District correctly refused to limit or condition the rights of discrimination victims to seek judicial redress.
In a unanimous opinion, the Court of Appeals for the Eighth Appellate District held that
the plain language of R.C. 4112.99 and R.C. 4112.08 provided Dwoming with an unlimited right
to decide whether to file a discrimination lawsuit. The Appellate Court fairly reviewed the
relevant statutory provisions and precedent and came to the inexorable conclusion that the
General Assembly meant what it wrote when it amended R.C. 4112.
The Eighth District's holding is entirely consistent with the statutory language of R.C.
4112 and the prior holdings of this Court. In reaching its decision, the Eighth District refused to
condition Dwoming's right to bring suit upon a` judge-made rule of convenience over a clearly
defined statutory right." Opinion, p. 26 (Appellants Appx. 33). The Dworning Court
emphasized:
[R.C. 4112] specifically states that 'this chapter shall be construed liberally for the accomplishment of its purposes and any law inconsistent with any provision of this chapter shall not apply.' The city's civil service rules have the force of law. State ex rel. Celebreeze v. Natl. Lime & Stone Co. (1994), 68 Ohio St. 3d 377, 382. Applying the exhaustion doctrine to those rules has the undeniable effect of limiting, and in some circumstances suspending, the private right of action under R.C. 4112.99. Hence application of the exhaustion doctrine would be inconsistent with the purposes of R. C. Chapter 4112.
Opinion, p. 26 (emphasis added) (Appellants Appx. 33).
While reaffirming the premise of the judicial exhaustion doctrine, the Court ruled that:
12 We cannot however, apply a doctrine of 'judicial convenience' when the General Assembly has so very clearly provided for a right of private action with the intent that it has priority over other laws. The remedial purposes of the discrimination laws are not served by requiring exhaustion of administrative remedies. We therefore hold that a separated civil service employee who has administrative remedies available to him by way of acivil service appeal is not required to exhaust those remedies as a predicate to filing a private disability discrimination action....
Opinion, p. 16 (Appellants Appx. 23).
This Court should affirm the ruling and again hold that the General Assembly granted Dwoming and other victims of disability discrimination the right to file independent civil actions without limit or impairment in this state's constitutionally established courts of common pleas.
A. Courts must liberally construe R.C. 4112 to secure its remedial purposes.
The Eighth Appellate District relied on the plain statutory language of R.C. 4112 in reaching its decision. That language, as reflected in R.C. 4112.99 and R.C. 4112.08, provides a right to bring a lawsuit and demands that Ohio courts liberally construe the statute to ensure that its purposes are not undermined or eroded.
Ohio courts have an obligation to give effect to the intention of the state's General
Assembly. Christe v. GMS Mgt. Co. (2000), 88 Ohio St. 3d 376, 726 N.E.2d 497. This Court need look no further than the plain language of R.C. 4112. "In order to determine legislative intent, it is a cardinal rule of statutory construction that a court must first look to the language of the statute itself." State v. Jordan (2000), 89 Ohio St. 3d 488, 492, 733 N.E.2d 601, 605 (citing
Provident Bank v. Wood (1973), 36 Ohio St. 2d 101, 105, 304 N.E.2d 378. 381). "If the meaning of the statute is unambiguous and definite, it must be applied as written and no further interpretation is necessary." State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn.
(1996), 74 Ohio St. 3d 543, 545, 660 N.E.2d 463, 465.
13 The Ohio Supreme Court, in Rice v. CertainTeed Corp. (1999), 84 Ohio St.3d 417, 704
N.E.2d 1217, articulated Ohio courts' primary duty when engaging in general statutory construction:
`In construing a statute, a court's paramount concem is the legislative intent in enacting the statute.' To this end, we-must first look to the statutory language and the `purpose to be accomplished.' In assessing the language employed by the General Assembly, the court must take words at their usual, normal, or customary meaning. Most important, it is the court's duty to 'give effect to the words used [and to refrain from] inserting words not used.'
Rice, 84 Ohio St. 3d at 419 (quoting State ex rel. Richard v. Bd. of Trustees of Police &
Firemen's Disability & Pension Fund (1994). 69 Ohio St. 3d 409, 411-12, 632 N.E.2d 1292,
1295 (internal citations omitted).
On its face, R.C. 4112 supersedes and preempts any inconsistent law. R.C. 4112.08
(Appellants Appx. 120). R.C. 4112.08 unequivocally mandates: "[R.C. Ch. 4112] shall be
construed liberally for the accomplishment of its purposes, and any law inconsistent with any
provision of this chapter shall not apply." R.C. 4112.08 (Appellants Appx. 120). The statutory
scheme's remedial purposes are the elimination of discrimination and the protection of
discrimination victims. Smith v. Friendship Village of Dublin (2001), 92 Ohio St. 3d 503, 505,
751 N.E.2d 1010; Ohio Civil Rights Comm. v. Lysyj (1974), 38 Ohio St. 2d 217, 220.
As stated by the General Assembly, the purpose of R.C. 4112 is:
To enact sections 4112.01 to 4112.08, inclusive, and section 4112.99 of the Revised Code top r event and ehminate the practice of discrimination in employment against persons.. .
128 Ohio Laws 12 (emphasis added) (Appellants Appx. 126).
This Court echoed that language in Genaro v. Central Transport, Inc., when it held that
combating employment discrimination is a matter of statewide concern. (1999), 84 Ohio St. 3d
14 293, 703 N.E.2d 782. The Genaro court outlined Ohio's strong public policy in preventing workplace discrimination, noting:
This court has noted in numerous cases the existence of a strong public policy against discrimination. A majority Qf this court have, time and time again, found that.there is no place ih this state for any sort of discrimination no matter its size, shape, or form or in what clothes it might masquerade. This, of course, includes discrimination in the workplace. For instance in [Helmick], we stated that `there appears to be little question that R.C. Chapter 4112 is comprehensive legislation designed to provide a wide variety of remedies for employment discrimination in its various forms.' * * * Ohio's statutory framework and case law reflect Ohio's strong public policy against workplace discrimination."
Genaro, 84 Ohio St. 3d at 296-97 (internal citations omitted).
Courts are required to assure that the rights R.C. 4112 grants, and the purposes it
advances, are not defeated by overly restrictive statutory interpretation. Lysyj, 38 Ohio St. 2d at
200. R.C. 4112 is remedial legislation, Helmick v. Cincinnati Word Processing, Inc. (1989), 45
Ohio St. 3d 131, 133-34, 543 N.E.2d 1212, 1215, designed to "provide a variety of remedies for
employment discrimination in its various forms." Friendship Village, 92 Ohio St. 3d at 505
(quoting Helmick, 45 Ohio St. 3d at 133). This Court observed in Helmick that, "[o]ur review of
R.C. Chapter 4112 reveals only one limitation and that provision bars any law which would be
inconsistent with the remedial purpose of the chapter." Helmick, 45 Ohio St. 3d at 133-34 (citing
R.C. 4112.08) (emphasis added).
B. The General Assembly did not condition the rights of disability discrimination victims upon the exhaustion of administrative remedies.
Municipal employees do not have to exhaust any administrative remedies prior to
initiating a civil action under R.C. 4112.99.21 On a number of occasions, the Ohio Supreme
" See R.C. 4112.01(A)(1)-(3) (including municipal employees in the definition of "employee" and "person") (Appellee Appx. 35); Friendship Village of Dublin (2001), 92 Ohio St. 3d at 506-
15 Court has been asked todeternzine whether R.C. 4112 requires victims of discrimination to exhaust administrative remedies prior to filing a lawsuit. On each of those occasions, this Court has determined that the rights conferred by R.C. 4112 do not require exhaustion. It should again determine that victims of disabllity discrimination do not have to exhaust administrative mechanisms prior to initiating a lawsuit.
As discussed above, in Elek v. Huntington National Bank (1991), 60 Ohio St. 3d 135, 573
N.E.2d 1056, the Ohio Supreme Court was asked to deterniine whether R.C. 4112 required
victims of discrimination to first exhaust administrative mechanisms prior to filing a lawsuit.
The Court held that the General Assembly amended R.C. 4112 to permit discrimination victims
to commence independent civil actions under R.C. 4112.99 without first exhausting
administrative remedies: "An aggrieved party may, pursuant to R.C. 4112.99, institute an
independent civil action to seek redress for discrimination on the basis of physical disability."
Elek, 60 Ohio St. 3d at paragraph one of the syllabus. Again, the Elek court explained that "[a]
plain reading of this section [R.C. 4112.99] yields the unmistakable conclusion that a civil action
is available to remedy any form of discrimination identified in R.C. Chapter 4112" Elek, 60
Ohio St. 3d at 136.
This Court re-affirmed Elek a decade later in Smith v. Friendship Village of Dublin
(2001), 92 Ohio St. 3d 503, 751 N.E.2d 1010. According to this Court, discrimination victims
do not need to exhaust any administrative remedies -- whether with the OCRC or otherwise --
prior to conunencing a civil action under R.C. 4112.99. The Friendship Village Court
deterniined that: "under R.C. 4112.99, an individual may institute an independent civil action for
07 (holding that R.C. 4112 does not require disability discrimination victims to exhaust of any form of administrative remedies).
16 discrinrination on the basis of physical handicap even though that individual has not invoked and exhausted his or her administrative remedies °' Friendship Village, 92 Ohio St. 3d at 506.
The Court in Friendship Village relied upon simple maxims of statatory construction. In a powerful passage, this Court noted:
[i]n regard to handicap discrimination claims, the General Assembly has not manifested a similar intent requiring a plaintiff to elect between an administrative or judicial remedy. Thus, had the General Assembly intended that individuals alleging handicap discrimination be forced to choose between an administrative or civil proceeding, it would have specifically stated so, as it did with respect to age discrimination. In this respect, we are guided by the Latin maxim expressio unius est exclusion alterius, which translated means that the expression of one item of a class implicitly excludes other items of the class that are not specifically mentioned. The General Assembly has specifically limited an individual's liability to bring both an administrative and civil proceeding in the context of age discrimination only. Its exclusion of other forms of discrimination from this limitation makes it clear that it intended that both remedies be available for other forms of discrimination.
Friendship Village, 92 Ohio St. 3d at 506-07.
Under the rule of statutory construction relied upon by the Friendship Village Court,
expressio unius et exclusio alterius, the expression of one or more items of a class implies that
those not identified are necessarily intended to be excluded. Thomas v. Freeman (1997), 79
Ohio St.3d 221, 224-25, 680 N.E.2d 997, 1000; Indep. Ins. Agents of Ohio, Inc. v. Fabe (1992),
63 Ohio St.3d 310, 314, 587 N.E.2d 814, 817; Montgomery Cty. Bd. of Commrs. v. Pub. Util.
Comm. (1986), 28 Ohio St.3d 171, 28 OBR 262, 503 N.E.2d 167.
The rule is routinely relied upon by courts in statutory construction. For example, in
State v. Droste (1998), 83 Ohio St.3d 36, 697 N.E.2d 620, this Court held that a liquor control
investigator was not entitled to stop a motorist for violating Ohio traffic laws unless that officer
was in the process of investigating the motorist for one of the specific offenses, pursuant to R.C.
5502, that the investigator had the right, via statute, to investigate. This Court held that R.C.
17 5502 did not "confer authority upon a liquor control investigator to stop a driver for violating traffic laws, if the investigator was not in the process of investigating one of the offenses listed
[in the statute]." Droste, 83 Ohio St.3d at 39.
This rule of statutory construction fueled this Court's decision in Friendship Village and
reinforces the conclusion that the General Assembly granted an unfettered right to discrimination
victinis to bring a lawsuit. The General Assembly provided that age discrimination victims must
utilize arbitration when available, or elect particular remedies. Friendship Village, 92 Ohio St.3d
at 506-07. The statute was silent with respect to causes of action brought by victims of disability
discrimination. According to the Ohio Supreme Court, R.C. 4112's plain language reflects that
the General Assembly chose only to require age discrimination victims to exhaust non-OCRC
adnunistrative remedies -'
The collective import of Elek and Friendship Village is clear: in amending R.C. 4112, the
General Assembly intended to permit municipal employees to proceed directly to court with
independent civil actions under R.C. 4112.99 without first exhausting any administrative
remedies.
C. The Eighth AT)pellate District correctly refused to apply the court-made doctrine of iudicial exhaustion to R.C. 4112 claims.
22 R.C. 4112.14(C) expressly requires age discrimination victims to exhaust non-OCRC remedies, i.e. to submit to arbitration when available. It states:
The cause of action [for age discrimination] described in division (B) of this section...shall not be available in the case of discharges where the employee has available to the employee the opportunity to arbitrate the discharge or where a discharge has been arbitrated and has been found to be for just cause.
R.C. 4112.14(C) (Appellants Appx. 121-22).
18 The administrative exhaustion doctrine is a judicially-made rule designed to promote judicial economy. G.S.T. v. Avon Lake (1976), 48 Ohio St. 2d 63, 65, 357 N.E.2d 38, 40. It is
subject to many exceptions.'3 According to the United States Supreme Court:
The doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions. Application of the doctrine to specific cases requires an understanding of its purposes and of the particular administrative scheme involved.
McKart v. United States (1969), 395 U.S. 185, 193-94, 89 S.Ct. 1657, 1662. The doctrine does
not apply to statutory remedies and it does not apply to claims brought pursuant to R.C. 4112.99.
In Basic Distribution Corp. v. Ohio Dept. of Taxation (2002), 94 Ohio St. 3d 287, the
Ohio Supreme Court cited case law construing R.C. 4112:99 to illustrate that the exhaustion
doctrine is inapplicable to this type of separate remedy. It stated, "where there is a judicial
remedy that is intended to be separate from the administrative remedy, the requirement of
exhaustion of administrative remedies does not apply. See, e.g., Larkins v. G.D. Searle & Co.
(1991), 68 Ohio App. 3d 746, 589 N.E.2d 488." Basic Distribution Corp., 94 Ohio St. 3d at 290.
As discussed in Elek, R.C. 4112.99 created an "independent civil action" for employment
discrimination. 60 Ohio St. 3d at paragraph one of the syllabus.
The Tenth Appellate District in Larkins considered whether an individual was required to
exhaust administrative remedies prior to filing suit under R.C. 4112.99. It held there was no
exhaustion requirement for R.C. 4112.99 claimants. The Larkins court emphasized the Tenth
's McKart v. United States (1969), 395 U.S. 185, 193-94, 89 S.Ct. 1657, 1662 (noting the most common application of the judicial exhaustion doctrine is when "the relevant statute" provides that the administrative remedy must first be exhausted); See also Kaufman v. Newburgh Heights (1971), 26 Ohio St. 2d 217, 271 N.E.2d 280, paragraph one of the syllabus (holding the exhaustion doctrine does not apply if the administrative agency cannot afford the aggrieved party relief); Burt Realty Corp. v. Columbus (1970), 21 Ohio St. 2d 265, 257 N.E.2d 355, paragraph one of the syllabus.; Opinion, p. 7 (Appellants Appx. 6-7). As discussed above, Appellants take the position throughout their brief that the exhaustion doctrine should apply across the board.
19 Appellate District's opinion in Elek: "R.C. 4112.99 does not explicitly require exhaustion of administrative remedies...In short, we find nothing in R. C. Chapter 4112 that would require reading an exhaustion of remedies requirement into R.C. 4112.99." Larkins, 69 Ohio App. 3d at
750 (quoting with approval Elek, 1989 Ohio App. LEXIS 3299, at *7-8, aff d^(1991), 60 Ohio St.
3d 135) (emphasis added by Larkins court).
The Eighth and Third Appellate Districts also previously held that plaintiffs do not need to exhaust administrative remedies prior to commencing independent statutory causes of action such as R.C. 4112.99. In Filips v. Case Western Reserve University, 8th Dist. No. 79741, 2002-
Ohio-4428, 2002 Ohio App. LEXIS 4576 (Appellee Appx. 85), this District considered whether the exhaustion of administrative remedies doctrine required a university employee to exhaust the
university's internal administrative remedies prior to filing R.C. Ch. 4112 claims. The Filips
court agreed that the employee's "[R.C. Ch. 4112 claims] are not preempted by her failure to
appeal her termination." It reversed the trial court's dismissal of those claims. Filips, 2002 Ohio
4428 at 9[9[ 10, 16, 27 (Appellee App. 86-87).
The Third Appellate District reached a similar conclusion in Luginbihl v. Milcor L.P.,
2002 Ohio 2188, 2002 Ohio App. LEXIS 2181 (Appellee Appx. 101). Following Elek, the
Luginbihl court reversed the trial court's disniissal of a union employee's R.C. 4112 claims for
failure to exhaust administrative remedies under a collective bargaining agreement. The Court
held:
R.C. 4112.99 does not explicitly require the exhaustion of administrative remedies. In [Elek], the Ohio Supreme Court affirmed the 10`h District Court of Appeals' decision that under 4112.99, an individual may institute an independent civil action for discrimination on the basis of physical handicap even though that individual had not invoked and exhausted his or her administrative remedies.
Luginbihl, 2002 Ohio at 9[22 (Appellee Appx. 103).
20 Luginbihl discussed the distinction noted above, holding: "grievance procedures of both general language and those that speak directly to discrimination cannot prevent an employee from bringing statutory claims, absent language in the relevant statute to the contrary."
Luginbihl, 2002 Ohio at 128 (Appellee Appx. 104).24
In Wilson v. Glastic Corporation, the Eighth Appellate District followed Luginbihl and held that the exhaustion doctrine does not apply to separate statutory actions. 150 Ohio App. 3d
706, 2002 Ohio App. LEXIS 6582 (Appellee Appx. 120). The Eighth District held:
As the court recently found in [Luginbihl], an employee who has abandoned the grievance procedure can still bring a statutory claim in the court of common pleas ...[t]herefore, because Wilson's statutory claim is separate from the contractual collective bargaining agreement claim, the trial court erred in finding that Wilson's failure to exhaust his administrative remedies barred his court action 25
Wilson, 150 Ohio App. 3d at 712 (following Luginbihl) (Appellee Appx. 123).
Not surprisingly, Appellants entirely ignore Basic Distribution, Luginbihl and their
progeny in their merit brief. Instead, Appellants either rely on inapposite or poorly reasoned
case law and policy considerations completely inappropriate to statutory interpretation and the
claims before this Court.
Appellants rely principally on the reasoning in Nemazee v. Mt. Sinai Medical Center
(1990), 56 Ohio St. 3d 109, 564 N.E.2d 477, to argue that even in the absence of a separate
contract, or pertinent legislative language, individual employees have to exhaust administrative
24 As previously discussed, R.C. 4112's language demonstrates that the General Assembly elected not to require disability discrimination plaintiffs to exhaust administrative remedies. See Friendship Village, 92 Ohio St. 3d at 506-07. 25 Despite concluding that the plaintiff was not required to exhaust his administrative remedies prior to commencing a separate statutory action for retaliation, the Wilson court ultimately affirmed the trial court's grant of summary judgment because the retaliation claim was preempted by Section 301(a).
21 remedies. The Eighth Appellate District's decision in Dworning and treatment of Portis and cited precedent is consistent with the Ohio Supreme Court's holding in Nemazee. In Nemazee, this Court considered the question - "does the exhaustion of administrative remedies doctrine apply to internal review procedures of privately owned hospitals?" Nemazee, 56 Ohio St. 3d at
111 (emphasis added).'6 Nemazee involved a breach of contract dispute between a former employee and a privately owned hospital. Nemazee did not file a disability discrimination claim subject to R.C. 4112. Rather, he filed a breach of contract and an intentional infliction of emotional distress claim. In discussing the issue before it, this Court noted:
Initially, it.must be noted that this case does not involve a governmental agency or any administrative procedures prescribed by statute. Rather, we are confronted by private parties who, by way of an employment contract, have established administrative procedures to deal with conflicts regarding hospital staff privileges. Thus, of necessity, we must review the employment contract.
Nemazee, 56 Ohio St. 3d at 112 (emphasis added).
In discussing Nemazee's limited application, the Eighth Appellate District in Filips noted
"because Filips filed statutory retaliation and hostile work environment claims [under R.C.
4112], neither Nemazee nor Fricl 27 apply as they relate only to breach of employment contract
claims." Filips, 2002 Ohio 4428 at 9[16 (distinguishing Nemazee, 56 Ohio St. 3d 109, and Frick,
133 Ohio App. 3d 224) (Appellee Appx. 86).
Dworning filed a civil action pursuant to R.C. 4112. The plaintiff in Nemazee filed a
breach of contract action. Nemazee is narrowly tailored. In issuing its decision, this Court
found:
[W] e hold that a physician in a private hospital whose employment and/or hospital privileges have been terminated must exhaust all internal
26 See also Frick v. Univ. Hospitals of Cleveland ( 1991), 133 Ohio App. 3d 224, 727 N.E.3d 600. 27 (1999), 133 Ohio App. 3d 224, 727 N.E.2d 600 ( discussed below).
22 administrative remedies provided by a hospital's charter, bylaws, rules, regulations and employment contract prior to seeking judicial review.
Nemazee, 56 Ohio St. 3d at 111-114 (emphasis added). The limited nature of this Court's
holding was further emphasized by the cases upon which it relied, all of which discussed a
private hospital's ability to govem its own staffing needs.28
As previously explained above, this Court has distinguished Nemazee, holding that the
exhaustion doctrine does not apply to independent causes of action:
The purpose of the doctrine of exhaustion of administrative remedies is to prevent premature interference with the administrative process. Nemazee v. Mt. Sinai Med. Ctr. (1990), 56 Ohio St. 3d 109, 111, 564 N.E.2d 477, 480. However, where there is a judicial remedy that is intended to be separate from the administrative remedy, the requirement of exhaustion of administrative remedies does not apply. See e.g., Larkins v. G.D. Searle & Co. (1991), 68 Ohio App. 3d 746, 589 N.E.2d 488.
Basic Distribution Corp., 94 Ohio St. 3d at 290.
Furthermore, this Court's decision in Elek and Friendship Village post-date Nemazee.
Only one year after issuing Nemazee, this Court issued its opinion in Elek, determining that
"R.C. 4112 must be interpreted to afford victims of handicap discrimination the right to pursue a
civil action." Elek, 60 Ohio St. 3d at case summary. This Court re-affirmed that holding a
decade later in Friendship Village. Obviously, when the Court determined that an employee
need not exhaust administrative mechanisms prior to filing a discrimination lawsuit, it found the
28 Nemazee, 56 Ohio St. 3d at 114, citing Khan v. Suburban Community Hosp. (1976), 45 Ohio St.2d 39, 44, 340 N.E.2d 398, 402 (holding courts should defer to the judgment of the hospital in matters regarding staffing); Bouqett v. St. Elizabeth Corp. (1989), 43 Ohio St. 3d 50, 538 N.E.2d 113 (private hospital's board of directors should be permitted to use its discretion with respect to staffing); Westlake Community Hospital v. Superior Court (1976), 17 Cal. 3d 465, 551 P.2d 410; Garrow v. Elizabeth General Hospital and Dispensary (1979), 79 N.J. 549, 401 A.2d 533; Eidelson v. Archer (Alaska 1982), 645 P.2d 171, 1982 Alas. LEXIS 406 (all finding the exhaustion doctrine applicable to private hospitals).
23 reasoning in Nemazee, which hinged on the particular employment contract and relationship before the Court, inapposite to the discussion.
Moreover, neither Nemazee nor any of the cases cited by Appellants contain any
substantive discussion concerning R.C. 4112 or Elek itself. The Eighth District in Dworning
correctly emphasized this point when discussing Frick v. University Hosp. of Cleveland (1999),
133 Ohio App. 3d 224, 727 N.E.2d 600, one of Nemazee's progeny:
We likewise distinguish Frick v. University Hosp. of Cleveland (1999), 133 Ohio App.3d 224. In Frick, a divided panel of this court held that a hospital employee making a claim under the Family Medical Leave Act had to first exhaust administrative remedies through her employer's three step grievance procedure. Again, although the panel strongly endorsed execution of administrative remedies as a prerequisite to the filing of a discrimination claim, it too failed to mention Elek and other cases which reaff rmed the remedial nature of the private right of action under R. C. Chapter 4112.
Opinion, p. 16 (emphasis added) (Appellants Appx. 23).
The Eighth District noted that, "[w]e also believe it is significant that none of the adverse
opinions cited [by Appellants] above make mention of the interplay between the applicable
administrative remedies and R.C. 4112.08." Opinion, p. 16 (emphasis added) (Appellants Appx.
23). In short, Nemazee and Frick merely mentioned the judicial exhaustion doctrine and ended
their analysis, entirely ignoring the language of R.C. 4112 and the Elek opinion.
The Dworning Court limited its holding to only those instances in which the employment
relationship is not govemed by a contract or some other collective bargaining agreement.
Specifically, the Court held:
We stress our holding does not apply to employment relationships defined by contract, whether private or by way of a collective bargaining agreement, which set forth agreed upon disciplinary procedures, regardless of whether the right to invoke those procedures is couched in discretionary language.
24 Opinion, pp. 22-23 (Appellants Appx. 29-30). That distinction is consistent with this Court's prior holdings and the special status afforded those private rights.
Appellants argue, however, that the distinction between contractual and non-contractual employment relationships is "devoid of any meaningful rationale." Merit Brief of.Defendants-
Appellants, p. 34. In the process, Appellants completely overlook the wisdom of the Eighth
District's reasoning and the language of R.C. 4112.
It is a hallmark of the American legal system to protect the sanctity of contract. It is unremarkable to state that parties are free to enter into contractual relationships and parties should be bound by the contracts into which they enter. See Westfield Ins. Co. v. Galatis, 100
Ohio St. 3d 216, 218, 797 N.E.2d 1256, 1261.29 Accordingly, if an employer and an employee
enter into an employment contract that provides that the employee must pursue an administrative
remedy prior to filing a lawsuit, that contract may be enforceable.
Separately, R.C. 4112 specifically recognizes certain kinds of contractual dispute
resolution mechanisms. As discussed above, R.C. 4112.14 contemplates that contractual
arbitration provisions will be enforced with respect to victims of age discrimination. Dworning's
specific exclusion of employment relationships governed by contract from its holding is well
reasoned, tracks precedent and reflects an appropriate judicial reluctance to rule only on those
matters before it. Similarly, when the legislation has conditioned the right of certain classes of
victims with contractual rights to arbitrate as it did in R.C. 4112.14, it is inappropriate for this
Court to apply a condition to those victims without a corresponding contractual right. The
29(holding "[t]he freedom to contract and the attendant benefits and responsibilities to the parties to a contract are integral to the liberty of the citizenry, so much so that the United States Constitution specifically protects against state encroachment upon contracts.").
25 distinction recognized by the Eighth Appellate District correctly harmonizes the rights of private parties to contract with the language of R.C. 4112.
The Appellants also cite to two decisions from the Ninth Appellate District: Sanders v.
Summit County Veterans' Serv. Comm'n, 2002 Ohio 2653, 2002 Ohio App. LEXIS 2504
(Appellants Appx. 156); and Portis v. Metro Parks Serving Summit County, 2005 Ohio 1820,
2005 Ohio App. LEXIS 1736 (Appellants Appx. 147). Sanders is abandoned precedent. The
Ninth Appellate District issued Sanders (a 2-1 split decision) in 2002. Since it was announced five years ago, no court in any jurisdiction has found the Sanders' logic persuasive.30 Even
Portis v. Metro Parks Serving Summit County, 2005 Ohio 1820, a Ninth Appellate District
opinion issued only three (3) years after Sanders, ignores Sanders altogether. The Eighth
District correctly disregarded Sanders when issuing its opinion in Dworning.
One of the reasons for its universal rejection is that the Sanders majority erred as a matter
of law. The Sanders court failed to consider the plain statutory language of R.C. 4112 and
affirmatively refused to follow stare decisis. Specifically, that court disregarded the precedent of
both Elek and Smith, holding:
This Court is cognizant that the Supreme Court of Ohio has stated that an individual may assert a civil action for discrimination pursuant to R.C. 4112.99, without first exhausting administrative remedies. Notwithstanding the Supreme Court of Ohio cases that interpret the statutory language of R.C. 4112.99, the Charter does not provide anything other than exhaustion of administrative remedies prior to asserting a claim in the court of common pleas.
Sanders, 2005 Ohio 1820 at y[ 8(declining to following Elek, 60 Ohio St. 3d at 136 and
Friendship Village, 92 Ohio St. 3d at 506) (Appellants Appx. 148).
30 A Shepard's Report concerning the Sanders opinion is attached to Appellee's appendix at 126.
26 The Sanders dissent correctly noted the majority's calculated refusal to follow Elek and
Smith. The dissent noted:
Under these circumstances, the failure to exhaust administrative remedies is irrelevant. This is especially true in relation to Appellant's claim of disability discrimination under R.C. 4112.99. Under R.C. 4112.99, the state legislature gave an aggrieved party claiming disability discrimination a direct route to the courts. The Summit County Charter cannot usurp the statutory scheme to protect the civil rights of its citizens.
Sanders, 2005 Ohio 1820 at 120 (Carr 7., dissent) (Appellants Appx. 151). This Court should
certainly not adopt the holding of a rogue court which recognized, and then consciously
disregarded, Ohio Supreme Court precedent.
Additionally, in Portis v. Metro Parks Serving Summit County, 2005 Ohio 1820, 2005
Ohio App. LEXIS 1736 (Appellants Appx. 147), an involuntarily terminated civil servant whose
employment was governed by an employee handbook, filed suit against his former employer.
Notwithstanding that the parties never briefed the issue, the Ninth District held that the
employee's failure to exhaust the administrative remedies outlined in his employment handbook
precluded him from bringing an independent civil action against his former employer. In issuing
its holding, the Ninth District relied on the contractual terms contained in the employee's
handbook. In fact, Portis contains no mention of either R.C. 4112.99 or R.C. 4112.08 because it
determined that the contractual underpinnings of Portis' employment dictated the outcome.
By relying on Portis in their merit brief, Appellants attempt to resurrect an argument this
Court previously rejected on May 2, 2007. In their notice of filing order certifying a conflict,
Appellants argued Portis conflicted with Dworning.31 In rejecting Appellants' argument,32 this
31 Notice of Filing Order Certifying a Conflict on Behalf of Defendants-Appellants, filed February 15, 2007 in Ohio Supreme Court Cause No. 2007-0308 (Appellee Supp. 74). 32 See May 2, 2007 Entry holding "It is determined that no conflict exists. Accordingly, this cause is dismissed." (Appellee Supp. 11).
27 Court tacitly recognized the distinction between the plaintiff in Portis, whose employment was governed by an employee handbook, and Dwoming. Had this Court found the contractual distinction baseless, it certainly could have certified a conflict between Portis and Dworning.
Appellants also cite the Eighth Appellate District's decision in Hall v. City of Cleveland
Dep't of Public Utilities, 8th Dist. 82034, 2003 Ohio 1964. Like the other precedent relied on by
Appellants, that case is not pertinent to this dispute. The Hall court applied the exhaustion doctrine to remedies found in a collective bargaining agreement, not in the civil service rules.
Specifically, Hall enforced a collective bargaining agreement's provision for fmal and binding arbitration under R.C. Ch. 4117. Hall, 2003 Ohio at 110. The Hall court did not consider whether the exhaustion doctrine applied in cases where there is no binding arbitration agreement, and did not address a local civil service commission's impotence to overrule the General
Assembly on a matter of statewide concern, such as employment discrimination. Hall, 2003
Ohio at 9[ 10.
Appellee Dworning urges the Court to simply read Hall. Appellants have replaced the
Court's actual holding with fiction. Appellants argued below that, "the [Hall] Court found that the civil servant's failure to exhaust ... his `civil service appeal' rights barred, as a matter of law, his statutory and tort claims." Hall, 2003 Ohio at 1 13. They have perpetuating that misstatement again in this appeal.
Notwithstanding Appellees' creative citations, the Hall court actually held, "where a collective bargaining agreement provides for final and binding arbitration of grievances, the
Public Employees Collective Bargaining Act, R.C. 4112.01, et seq., precludes an employee from seeking redress beyond the grievance process." Hall, 2003 Ohio at 9[ 10. The Hall court concluded, "Hall has not exhausted the bargaining agreement's grievance procedures. Therefore,
28 the con-mion pleas court lacks subject matter jurisdiction over Hall's claini,s." Hall, 2003 Ohio at y[ 11-12.
Obviously, Hall is inapposite to the present facts. Appellee was not subject to a collective bargaining agreement that compelled final and binding arbitration under R.C. Ch.
4117. Appellants implicitly acknowledged Hall's inapplicability by not citing it to the Trial
Court.
D. The Eighth District correctly determined that the policies and purposes of R.C. 4112 would be undermined bv anplyine the administrative exhaustion doctrine to R.C. 4112 claims.
Appellants cobble together an argument built upon relaxed and permissive language in a
city charter and the shifting sands of its own self-serving policies. Appellants' entire brief is
premised on the principle that discrimination plaintiffs must exhaust their administrative
remedies before filing suit, irrespective of that plaintiff's particular statutory rights, the plain
language of the statute, or the language of the municipal charter and its rules. Appellants argue
(without any statutory or judicial support) that, due to the existence of the exhaustion doctrine,
that "neither Elek nor Smith, nor any language contained within R.C. Chapter 4112 is implicated
by this appeal." Merit Brief of Defendants-Appellants, p. 29. This Court should reject
Appellants' invitation to judicially re-write the statute.
1. The policies and purposes of R.C. 4112 will be undermined by reguirina employees to file discrimination claims with civil service commissions.
When the General Assembly has enacted legislation that clearly identifies the relevant
policies, purposes and considerations, neither courts nor municipalities have the authority to re-
fashion or re-cast those matters. The Eighth District appropriately rejected the Appellants'
arguments below when it instead focused on the language and express purposes of R.C. 4112.
29 In interpreting the language of an unambiguous statute, Ohio courts need only focus on the language of that statute, and nothing more. State ex rel. Savarese, 74 Ohio St. 3d at 545.
R.C. 4112.08 unambiguously provides that discrimination victims are to be granted unfettered access to Ohio courts and that any law conflicting with this statute shall not apply. R.C. 4112.08
(Appellants Appx. 120); Friendship Village, 92 Ohio St. 3d at 506. Ignoring the plain language
of R.C. 4112 and statutory construction altogether, Appellants ask this Court to find in their
favor for policy reasons. Not only does this approach inappropriately ignore the unambiguous
language of R.C. 4112 and the legal cornerstone of statutory construction, the policies outlined in
Appellants' merit brief are outweighed by both a discrimination victim's right to open access to
Ohio courts and Ohio's strong policy behind the eradication of workplace discrimination. 112
Ohio Laws 12 (Appellants Appx. 126); See also Genaro, 84 Ohio St. 3d at 296-97.
Relying on Nemazee,33 Appellants argue that a public employer's desire to "correct its
errors,"s`` the opportunity to create an "early record" and an administrative body's "expertise"
with respect to discrimination, are concetns that are promoted by the judicial exhaustion
doctrine. Ignoring for the moment that Appellants completely fail to address statutory
construction, the policies outlined in their merit brief are untenable. The application of an
exhaustion doctrine does not provide employers with any additional ability to correct their own
illegal discrimination. An employer can remedy unlawful discrimination at any time - it need
not wait for the completion of a civil service appeal to do so. Moreover, creating an "early
33 As explained in Section lI above, Nemazee is inapplicable to the present appeal. 1' Appellants lift these policy arguments directly from dicta in Nemazee, 56 Ohio St. 3d at 114, a case, as discussed in Section II above, which is not only in line with Dworning but which is wholly inapplicable to the present dispute. Moreover, as noted above, Euclid's 30(B)(5) witness admitted that Euclid did not have the ability to award Dworning monetary damages or enforce anti-discriniination statutes. Accordingly, even if an employer's concetn in "correcting its own errors" were a legitimate policy consideration, Appellants have admitted they were unable to do so with respect to Dworning.
30 record" for a de novo discrimination claim filed under R.C. 4112.99 serves no purpose at all. In addition, Appellants cannot coherently argue that the civil service commission has any expertise relevant to a discrimination claim. This point is buttressed by the testimony of Appellant's Rule
30(B)(5) witness most knowledgeable about the conunission's authority. It is.illogical for
Appellants to argue that any civil service commission (let alone their own) possesses more expertise regarding statutory discrimination claims than Ohio courts themselves. Finally, precluding "premature and potentially unnecessary employment lawsuits," is a policy concern which does not outweigh Ohio's primary goal of the elimination of workplace discrimination.
Merit Brief of Defendants-Appellants, pp. 24-25.
The statutory langnage of R.C. 4112 and prior opinions of this Court provide
discrimination victims with a direct route to the courts. As noted by the Tenth Appellate District
and re-affirmed by this Court, "[a] direct civil action will undoubtedly serve R.C. Chapter 4112's
broader purpose of combating discrimination. Nothing in R.C. Chapter 4112 indicates that the
legislature considers a first resort to 'informal persuasion' as the sole desirable method of
enforcing civil rights laws." Elek, 1989 Ohio App. LEXIS 3299, at *11, (Appellee Appx. 80).
Similarly, it would make little sense for the General Assembly to create an independent
cause of action for potential R.C. 4112 plaintiffs and then create a system under which those
parties are prohibited from exercising that right. Such a system would entirely frustrate the
purpose of the statute. Opinion, p. 17 (Appellants Appx. 24).
Recognizing the purpose of R.C. 4112, the Dworning Court noted:
The remedial purposes of the discrimination laws are not served by requiring exhaustion of administrative remedies. We therefore hold that a separated civil service employee who has administrative remedies available to him by way of a civil service appeal is not required to exhaust those remedies as a predicate to filing a private disability discrimination action under R.C. Chapter 4112.99.
31 Opinion, p. 26 (Appellants Appx. 33).
Fundamentally, Appellants seek to deny Appellee the right to pursue his claim for disability discrimination while simultaneously arguing that the purposes of R.C. 4112 will be t served, albeit not with respect to Dworning. Moreover, Appellants incredibly claim that imposing Euclid's Civil Service Commission Rule requiring initiation of a discrimination suit within 10 days of an appropriately notified termination would serve the purposes of R.C. 4112, the interests of Euclid and the rights of anti-discrimination victims. Adopting Appellants'
arguments would re-write R.C. 4112 and relegate public employees' rights to second-class
status. The failure to file within 10 days of termination, or other discriminatory event would
result in the eliniination of any rights by the victim to seek the full panoply of damages conferred
by R.C. 4112.99. Appellants' argument is disingenuous and offends the announced purposes of
R.C. 4112 and clear precedent. It is self-evident that per R.C. 4112.08, and the right to proceed
with an original action pursuant to R.C. 4112 should not be hindered, delayed, undermined or
prohibited, in any way, by a discrimination victim's choice not to exhaust his or her
administrative remedies, or to separately file a charge with the OCRC, or the Equal Employment
Opportunity Commission. Appellants fail to recognize that any type of obstacle that interferes
with a plaintiff's statutory right to proceed with an original action is inconsistent with the
language and purpose of R.C. 4112 and should be rejected.
2. R.C. 4112 preempts conflicting municipal ordinances.
Irrespective of the foregoing, and ignoring the language of its own Charter, Euclid asks
this Court to allow their permissive municipal procedures3' to trump Ohio courts' jurisdiction
over R.C. 4112 matters. Merit Brief of Defendants-Appellants, pp. 23-24. Appellants argue that
15 See Discussion at IV. Ohio courts do not have jurisdiction to hear R.C. 4112 causes of action in the event that R.C.
4112 plaintiffs choose not to exhaust their administrative remedies. Merit Brief of Defendants-
Appellants, pp. 23-24. This argument is belied by the plain language of R.C. 4112, the case law cited above, Appellants' Amended Answer, and the plain language of Euclid's own charter.
Municipalities generally have the right to make rules that govern areas of local concem.
However, a municipality's powers of "local self-government are not completely unfettered."
Kettering v. State Emp. Relations Bd. (1986), 26 Ohio St.3d 50, 53, 496 N.E.2d 983, 986
(employment relations between police officers and their employers was a matter of statewide concern). "Section 3, Article XVIII exDlicitlv withholds from municipalities the authority to
exercise powers or adopt regulations which are in conflict with `general laws."' Rocky River v.
State Employment Relations Bd. (1989), 43 Ohio St. 3d 1, 12, 539 N.E.2d 103, 113 (quoting
Ohio Const. art. XVIII, § 3) (emphasis added by the court). Rather, where a statute provides a
uniform framework, or comprehensive legislation, a city authority, regardless of the local rules in
place, must yield. State ex rel. Evans v. Moore (1982), 69 Ohio St.2d 88, 91, 43 N.E.2d 311,
313.
This Court has recognized:
The authority granted to municipalities by Section 3 of Article XVIlI, Ohio Constitution, to `exercise all powers of local self-government and to adopt and enforce within their limits such police, sanitary and other similar regulations, as are not in conflict with general laws' and by Section 7 of Article XVIII, to `frame and adopt or amend a charter for its government and *** exercise thereunder all powers of local self- government' does not include the power to regulate the jurisdiction of courts established by the Constitution or by the General Assembly thereunder.
Cupps v. Toledo (1959), 170 Ohio St. 144, 163 N.E.2d 384 at paragraph one of syllabus
(emphasis added).
33 In enacting R.C. 4112, Ohio also prohibited any court from construing "any law" in any way that conflicts with R.C. 4112.99's provision for a direct civil action.sb R.C. 4112.08 states:
"This chapter shall be construed liberally for the accomplishment of its purposes, and any law inconsistent with ahy provision of this chapter shall not apply." R.C. 4112.08 (Appellants Appx.
120). In a decision affirmed by this Court, the Court of Appeals for the Tenth Appellate District held: "A direct civil action will undoubtedly serve R.C. Chapter 4112's broader purpose of
combating discrimination. Nothing in R.C. Chapter 4112 indicates that the legislature considers
a first resort to 'informal persuasion' as the sole desirable method of enforcing civil rights laws."
Elek, (Aug. 24, 1989), 10th Dist. No. 88AP-1183, 1989 Ohio App. LEXIS 3299, at *11 (Appellee
Appx. 80).
It cannot be reasonably disputed that the eradication of workplace discrimination is a
statewide concern that is specifically exempted from the purview of the Euclid charter. The
Ohio Supreme Court has acknowledged the broad scope of R.C. 4112 and Ohio's long standing
statewide commitment to eradicating discrimination in the workplace. Genaro, 84 Ohio St.3d at
296-97. In Genaro, this Court explained, in no uncertain terms, that employment discrimination
is a matter of general and statewide concetn. 84 Ohio St.3d at 296-97. The Euclid City Charter
is invalid to the extent it conflicts with the language and purpose of R.C. 4112. The "home rule"
provision of the Ohio Constitution does not empower municipalities to circumvent R.C. 4112,
and Euclid's Charter should be accordingly interpreted.
In addition, the plain language of the Euclid charter acknowledges that Euclid's
municipal government cannot usurp matters of statewide concetn. Specifically, the Charter
reads:
36 See R.C. 4112.08 ("any law inconsistent with any provision of this chapter shall not apply").
34 All general laws of the State of Ohio applicable to municipal corporation other than those pertaining to matters of statewide concern, now existing or hereafter enacted, not in conflict with the provisions of the Charter, or with the ordinances enacted thereunder, shall apply to the government of the City of Euclid.
See Euclid, Ohio Charter Article I (emphasis added) (Appellants Appx. 75).
Appellants recognize that when an "express conflict" exists between R.C. 4112 and civil service rules, the civil service rules are inapplicable. Merit Brief of Defendants-Appellants, p.
25. Nevertheless, in a winding, inapposite argument, Appellants contend, without ever citing to the language or to the purpose clause of R.C. 4112 itself, that "this Court need not work hard to
`harmonize' the objectives of Ohio's judicial exhaustion doctrine with the purposes of R.C.
Chapter 4112 in the public employment setting in Ohio." Merit Brief of Defendants-Appellants,
p. 26 37
Appellants claim Dworning was required to file a grievance through the Euclid Civil
Service Commission as a "precondition" to filing a lawsuit. Merit Brief of Defendants-
Appellants, p. 14. This is specifically the type of prerequisite prohibited by R.C. 4112. Opinion,
p. 16 (Appellants Appx. 23). Accordingly, R.C. 4112 and Euclid's civil service rules cannot be
harmonized utilizing Appellants' reading of those documents.
Moreover, Appellants admitted, in their Amended Answer, that this Court has jurisdiction
to hear this dispute. First Amended Answer of Defendants at 9[10 (R. 51, Appellee Supp. 1).
This tacit admission contradicts their current position that Ohio courts do not have jurisdiction to
hear R.C. 4112 causes of action where the plaintiff has not first exhausted his administrative
remedies. Merit Brief of Defendants-Appellants, pp. 23-24.
37 Appellants cite only one case, Strasshofer v. Lyndhurst (Cuyahoga Cty. 1991), 76 Ohio App. 3d 472, 489, 602 N.E.2d 379, 602 N.E.2d 379, which holds that no conflict exists between the Lyndhurst civil service rules and R.C. 124.44. As this case contains no discussion whatsoever concerning R.C. 4112, it is entirely inapplicable.
35 3. While public employees enjoy broader constitutionally guaranteed rights than private employees, R.C. 4112 grants them the identical rights to bring a discrimination lawsuit as provided to private emplovees.
This Court should reject Appellants' contention that public employees have fewer rights to initiate lawsuits than other victims of employment discrimination. R.C. Ch. 4112 provides the same rights and protections for municipal employees as it does for any other employee. R.C.
4112.01 defines an "employer" to include "any political subdivision of the state." R.C.
4112.01(A)(2) (Appellee Appx. 35). R.C. 4112.01 defines a "person" to include an employee of any "political subdivision of the state" R.C. 4112.01(A)(1)-(3) (Appellants Appx. 35). A municipality such as Euclid constitutes a "political subdivision of the state."38
Pursuant to Cleveland Bd. of Education v. Loudennill, (1985), 470 U.S. 532, 105 S. Ct.
1487, classified civil servants employed by political subdivisions of the Ohio possess constitutionally protected property rights to their public employment. Loudermill, 470 U.S at
535-36. Appellants concede that Dworning had a constitutionally protected property right to his employment with the City of Euclid. Merit Brief of Defendants-Appellants, p. 6.
Appellants turn Loudermill on its head, taking the position that that case actually denies public employees access to Ohio courts. This is a complete misapplication of that United States
Supreme Court opinion. Loudermill holds that public employers must provide classified civil servants with due process prior to termination. Loudermill, 470 U.S. 532 at paragraph four of. syllabus. In short, Loudermill outlines the protections a public employer must have in place to protect the public employee's property right.
38 See State ex rel. Ramey v. Davis (1929), 119 Ohio St. 596, 601 ("A municipality is a political subdivision of the state"); Whitehall ex rel. Wolfe v. Ohio Civil Rights Comm'n (May 3, 1994), 10th Dist. No. 93APD12-1719, 1994 Ohio App. LEXIS 1882, at *5 ("R.C. 4112.01(A)(2) defines an employer to include any political subdivision of the state. A municipal corporation is a political subdivision of the state..."), aff'd (1995), 74 Ohio St. 3d 120.
36 However, at no point does Loudennill limit the public employee's remedies to onlv that due process which the public employer is required to provide. In fact, it would be entirely inconsistent for this Court to hold that while Loudermill recognized the importance of protecting the constitutionally protected right to public employment, that right may only be protected by abiding by the due process provided by the public employer itself. A public employee's right to due process and his right to file an independent cause of action under R.C. 4112 are not mutually exclusive. In fact, the rights are complimentary. R.C. 4112 enhances the protections afforded to civil servants (and private employees).
The United States Supreme Court did not issue Loudennill to linut a civil servant's
remedies. Rather, it held that due process protections must be in place for that employee's
protection. This Court should reject Appellants' argument as entirely inconsistent with R.C.
4112.08 and 4112.99.
III. Dworning did not have any administrative remedies to exhaust when it is not disnuted that the Euclid Civil Service Commission was never notified of his termination and had no authority to consider or redress his R.C. 4112 discrimination claims, common law tort claims against Euclid. and separate claims against individuals.
The Euclid Civil Service Conlmission does not have any authority to determine whether
Euclid violated R.C. Ch. 4112, whether an employee has been defamed, whether his privacy
rights have been violated, or whether current or former individual employees have engaged in a
civil conspiracy to cormnit any of these unlawful acts. Appellee was not required to exhaust
administrative remedies with respect to these non-breach of contract claims. Moreover, the
Commission's rules are entirely permissive and do not require exhaustion.
It is long settled that there are no administrative remedies to exhaust when a grievance
procedure lacks authority to consider and redress the types of issues and complaints that the
aggrieved employee presents. East Cleveland Firefighters, Local 500 v. Civil Serv. Comm'n,
37 2000 Ohio App. LEXIS 6023 (Appellee Appx. 56). In short, the exhaustion of remedies doctrine does not apply to claims that an adm.inistrative body has no authority to redress. Salvation Army v. Blue Cross and Blue Shield of Northern Ohio (8' Dist. 1993), 92 Ohio App. 3d 571, 579, 636
N.E.2d 399, 403-04.
R.C. 124.34 only grants municipal civil service commissions the authority to determine whether an employee was terminated for just cause. R.C. 124.34(A) (Appellants Appx. 100).
Dworning's claims do not tutn on the issue of just cause. As such, they are not subject to the
exhaustion of administrative remedies doctrine.
The Eighth District in Dworning correctly noted that the "intemal administrative
remedies provided by the [Civil Service] Commission [of Euclid] are nowhere near as expansive
as those available to a litigant filing a discrimination action" under R.C. 4112.99. Opinion, p. 22
(Appellants Appx. 29). Specifically, Dworning held:
[t]he civil service commission does not appear to have the authority to order money damages as a remedy. This is opposed to the private right of action which specifically permits money damages and other injunctive relief. In other words, Dworning's civil service remedy would be no remedy at all. This is the antithesis of conservation ofjudicial remedies.
Opinion, p. 22 (Appellants Appx. 29).
A. Appellants do not know whether the Euclid Civil Service Commission has the authority to consider any of the claims brought by Dwomiu.
Appellants' position in this appeal is distinctly more refined than their prior admissions
and position earlier in this case. Throughout this litigation, Euclid conceded that it was unaware
if their own commission had the ability to award monetary damages to Dworning. For purposes
of this appeal, however, Appellants assert that Euclid not only has the authority, but also that
Dworning should be charged with knowledge of that authority. Appellants' 30(B)(5) witness (a
38 lawyer and the mayor's cousin-in-law) most knowledgeable to testify concerning Euclid's civil service rules and procedures,39 testifed:
Q: Do you know whether the Civil Service Commission had the authority to enforce Ohio's anti-discrimination statutes? I A: I don't really know how to answer that. . . So I - as I sit here today, I can't tell you how broad or how limited our authorities were.
30(B)(5) Gallagher Dep., pp. 49-50 (emphasis added) (R. 57, Appellants Supp. 81-82).
Appellants' 30(B)(5) witness also testified that he did not know if the Conunission had the ability to award Dworning money damages. 30(B)(5) Gallagher Dep., pp. 50-5 1; pp. 67-68
(R. 57, Appellants Supp. 82-83, Appellee Supp. 48-49). In short, the most knowledgeable person conceming Euclid's civil service charter testified that he had no idea if the Commission could award Dwoming monetary damages or enforce Ohio's anti-discrimination statutes.
In their merit brief, Appellants reverse course and argue that the Conunission, all along, had the power to fully compensate Dworning and enforce Ohio's anti-discrimination statutes.
Merit Brief of Defendants-Appellants, pp. 21-22. The testimony of a 30(B)(5) witness is
tantamount to an admission. Appellants have waived any argument that they had the ability to
provide Dwoming with this relief.40 It is black letter law that a party cannot raise new issues or
39 See 30(B)(5) Gallagher Dep., Exhibit 28 (R. 60, Appellee Supp. 68); See also 30(B)(5) Gallagher Dep., pp. 4-5 (Appellants Supp. 80, Appellee Supp. 39-40). 40 Appellants take the position that Dwoming cannot sidestep the administrative requirements of the charter by seeking more comprehensive damages than the charter may have the ability to provide. Appellants rely on three cases, Nemazee, Pappas & Associates Agency, Inc. v. State Automobile Mutual Insurance Co., 1998 Ohio App. LEXIS 22 (Appellants Appx. 142) and Quamme v. Lancaster-Fairfaeld Community Hospital 1995 Ohio App. LEXIS 1370 (Appellants Appx. 152) to buttress this argument. All three of those opinions concern plaintiffs who were seeking punitive damages or damages in excess of lost wages. Appellants' 30(B)(5) witness testified he was unaware if Appellants could award Dwoming any damages whatsoever. See 30(B)(5) Gallagher Dep., pp. 49-51 (Appellants Supp. 81-83). As Appellants admitted its
39 legal theories for the first time on appeal. See Stores Realty Co. v. Cleveland (1975), 41 Ohio St.
2d 41, 43, 322 N.E.2d 629, 630; Carrico v. Drake Const., 2006 Ohio 3138, 2006 Ohio App.
LEXIS 3006 (Appellee Appx. 39); Dolan v. Dolan, 2002 Ohio 2440, 2002 Ohio App. LEXIS
2523 (Appellee Appx. 52). Ohio courts hold "[I]itigants must not be permitted to'hold their arguments in reverse for appeal, thus evading the trial court process." Mark v. Mellott Mfg. Co.,
Inc. (1995), 106 Ohio App. 3d 571, 589, 666 N.E.2d 631.
Appellants' 30(B)(5) witness most knowledgeable conceming Euclid's Conimission's abilities testified that he did not know if the Commission could provide Dwoming the relief he sought. Appellants are not permitted to raise a novel argument and take a position that is contradicted by the testimony of their own 30(B)(5) witness.
B. The Euclid Civil Service Commission lacks the authority to consider Dwornino's R.C. 4112.99 claims or to award damages for those claims.
In fact, Appellee was not required to exhaust any administrative remedies with respect to
his claims for disability discrimination or aiding/abetting disability discrimination under R.C.
4112.99. The Euclid Civil Service Commission lacks jurisdiction over R.C. 4112.99 claims and
does not have the authority to award damages under that statute. The Eighth District correctly
noted that Appellee's claims were beyond the authority granted the Civil Service Commission.
The Ohio Supreme Court held in Whitehall ex rel. Wolfe v. State Civil Rights Comm'n
that "the issues involved in a civil service appeal before either the State Personnel Board of
Review or a municipal civil service commission and an unlawful discriminatory practice charge
before OCRC are different." Whitehall (1995), 74 Ohio St. 3d 120, 122 (citing Cincinnati v.
Dixon (Is` Dist. 1992), 78 Ohio App. 3d 164, 169-70). In that case, the Ohio Supreme Court
Commission could not award Dworning any damages, or did not know whether it could, these cases are inapplicable to the present dispute.
40 considered and rejected the argument that a "prior civil service appeal acted to divest [the]
OCRC of jurisdiction [over a charge of discrimination under R.C. Ch. 4112] based upon res judicata and the included concept of collateral estoppel...." Whitehall, 74 Ohio St. 3d at 122.
The Whitehall court cited the First Appellate District's decision in Cincinnati v. Dixon for
the proposition that civil service commission lack the authority to consider R.C. 4112.99 claims.
Whitehall, 74 Ohio St. 3d at 122. The appellate court in Dixon held that "the [Cincinnati civil
service] commission is not the appropriate body to resolve Dixon's allegation that her demotion
constituted religious discrimination [under R.C. Ch. 4112]." Dixon, 78 Ohio App. 3d at 169.
The Dixon court explained:
The [civil service] conunission, however, is a creation of the legislature and its powers are constrained to those provided in the relevant statutes ... Pursuant to R.C. 124.34, the commission's power is restricted to determining whether the appointing authority's employment action at issue is consistent with the tenure provisions provided in the statute (for example, whether an employee was discharged because of incompetency, inefficiency, dishonesty, etc.). The government agencies given the statutory authority to determine whether an employment action constitutes religious discrimination are the Ohio Civil Rights Commission pursuant to R. C. Chapter 4112 and the Equal Employment Opportunity Commission [under Title VII].
Dixon, 78 Ohio App. 3d at 169.
Like the Cincinnati Civil Service Conunission in Dixon, the Euclid Civil Service
Commission lacks the authority to determine whether Appellants' conduct violated R.C. 4112. It
only may determine whether Dworning was terminated for "just cause" under that statute. As
such, it would have been futile for Appellee to submit a R.C. 4112.99 discrimination claim to the
Conunission.
It similarly would have been futile for Appellee to submit a R.C. 4112.99 claim to the
Commission when it lacks the authority to award damages under that statute. In Salvation Army,
41 the Eighth Appellate District held that it is futile to subniit a claim for monetary damages to an administrative body that lacks the authority to award such relief. Thus, a claimant is not required to exhaust his administrative remedies with respect to that claim.41
R.C. 124.34 and the Civil Service Rules do not permit the Commission to award damages available under R.C. Ch. 4112, including past and future losses, injunctive relief, non-economic compensatory damages, or punitive damages.42 In Ohio, the "power to award damages to a person suffering loss" has "traditionally been limited to judicial proceedings" Ohio Civil Rights
Comm. v. Lys)j (1974), 38 Ohio St. 2d 217, 222, 313 N.E.2d 3.
Appellee did not have to exhaust any administrative remedies with respect to his R.C.
4112.99 claims because to do so would have been futile. The Commission lacks jurisdiction to hear those claims and the authority to redress them.
C. The Euclid Civil Service Commission lacks the authority to determine whether Appellants are liable for defamation, invasion of privacy, or civil conspiracy.
The Euclid Civil Service Conunission also lacks the authority to redress claims for
defamation, invasion of privacy, and civil conspiracy. As previously discussed, the
Commission's authority extends only to determining whether an employee has been terminated
for "just cause" under R.C. 124.34(A). That authority does not extend to determining whether an
employee has been defamed, whether an employee's privacy rights have been violated, or
whether anyone has engaged in a civil conspiracy to commit unlawful acts against an employee.
See R.C. 124.34(A) (Appellants Appx. 100).
41 See Salvation Army, 92 Ohio App. 3d at 579 (holding a plaintiff was not required to submit a tort claim for monetary damages to the Ohio Department of hisurance where the Department lacked the authority to award monetary relief). 42 See R.C. 124.34 (containing no provisions for such relief) (Appellant Appx. 100); Euclid, Ohio, Local Rules of the Civil Service Commission (same) (Appellant Appx. 36).
42 In Salvation Army, the Eighth Appellate District held that a defamation claimant was not required to exhaust his administrative remedies with the Ohio Department of Insurattce because the Department lacked not only the authority to grant monetary damages for defamation, but the jurisdiction to even hear such claims. Salvation Army, 92 Ohio App. 3d at 579. The Salvation
Army court wrote:
"It is not within the authority of the Ohio Department of Insurance to grant the relief sought by appellant for its defamation claim. The Ohio Department of Insurance is not able to grant appellant monetary damages for its claim. To require appellant to first bring its defamation claim before the Superintendent of Insurance would be to require a vain act...it was beyond the superintendent's authority to grant relief for the tort of defamation."
Salvation Army, 92 Ohio App. 3d at 579.
The Civil Service Commission has no authority under R.C. 124.34 to consider defamation, invasion of privacy or civil conspiracy claims 43
D. The Euclid Civil Service Commission lacks the authority to assess liabilit yor damages against any of the individual defendants.
Appellee did not have to exhaust his administrative remedies prior to filing his claims against individuals. No administrative remedies exist for such claims. Appellee properly named individuals as defendants to his R.C. 4112.99, defamation, invasion of privacy, and civil conspiracy claims." It is beyond dispute that the Civil Service Commission lacks the authority
41 See Dixon, 78 Ohio App. 3d at 169 (construing R.C. 124.34). 4' See, e.g., Genaro, 84 Ohio St. 3d at 300 (held: "for purposes of R.C. Chapter 4112, a supervisor/manager may be held jointly and/or severally liable with her/his employer for discriminatory conduct of the supervisor/manager in violation of R.C. Chapter 4112"); Cleveland Leader Printing Co. v. Nethersole (1911), 84 Ohio St. 118, 133 (holding publishers are liable for defamation "in the same manner as any other individual"); Sustin v. Fee (1982), 69 Ohio St. 2d 143, 145 ("one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person") (quoting Restatement of the Law 2d. Torts (1977) 378, Section 652B); Kenty v. Transamerica Premium Ins. Co.
43 to assess liability against individuals 45 It would have been futile for Appellee to pursue any administrative remedies with respect to his claims against individuals; the Commission is powerless to redress them.
E. Appellants cannot assert that Dwornin2 failed to exhaust administrative remedies when they failed to notify him of those rights.
Appellants failed to follow Euclid's civil service rules upon terminating Dworning.
Appellants never filed the written notice of Dworning's terniination required under Ohio law and never notified the Civil Service Commission of Dwoming's termination. Under Euclid's rules,
Dworning's time to file any challenge to his termination only starts to run when Euclid notifies its commission in writing of the reasons for the terniination. Because Euclid never notified either Dwoming or the Civil Service Commission in writing of the termination and Dworning's rights, any obligation Dworning had to avail himself of those administrative mechanism are not yet ripe.
"It is well-settled that when a municipality acts within the scope of its authority, the
(equitable estoppel] doctrine can be invoked against the municipality." Andres v. Perrysburg, 47
Ohio App. 3d 51, 56-57, 546 N.E.2d 1377, 1383-84. See also Pullins v. Springfield (Aug. 20,
1992), 2d Dist. No. 2906, 1992 Ohio App. LEXIS 4377, at * 7-8 (Appellee Appx. 107) (holding
"The doctrine of equitable estoppel is applicable to municipal corporations"); Kilko v. Cleveland
(8th Dist. 1951), 102 N.E.2d 476, 1951 Ohio App. LEXIS 939 (holding "The courts in Ohio have
applied the principles of equitable estoppel to municipal corporations as well as to individuals.").
Equitable estoppel precludes a municipal corporation from asserting certain facts when that
(1995), 72 Ohio St. 3d 415, 419 (quoting LeFort v. Century 21-Maitland Realty Co. (1987), 32 Ohio St. 3d 121, 126 ("Civil conspiracy," recognized in Ohio's common law, is defined as "a malicious combination of two or more persons to injure another in person or property, in a way not competent for one alone, resulting in actual damages."). " See Dixon, 78 Ohio App. 3d at 169 (construing R.C. 124.34).
44 party, by its own conduct, has induced another into changing his position to his detriment in good faith reliance on that conduct.
Appellants never provided Dworning with the required written notice outlining the reasons for his termination. R.C. 124.34 provides that "[i]n the case of ... removal of ... a chief of a fire department..., the appointing authority shall furnish such chief ... with a copy of the order of ... removal, which order shall state the reasons for the action. The order shall be filed with the municipal or civil service township civil service conunission." R.C. 124.34(C)
(Appellants Appx. 102).
Despite Dworning's termination, Rule 30(B)(5) witness Patrick Gallagher confumed that
Euclid never informed the Commission of Dworning's termination. 30(B)(5) Gallagher Dep., p.
35 (R. 57, Appellee Supp. 41). The period for Dworning to appeal his termination to the
Commission did not begin until the "appointing authority" filed the "order of removal" with the
Commission. That action never occurred. The Civil Service Statute mandates that "[w]ithin ten days following the filing of the order, such chief . . . may file an appeal, in writing, with the municipal or civil service township civil service commission." R.C. 124.34(C) (Appellants
Appx. 102).
Appellants cannot now equitably assert that Dworning failed to exhaust his
administrative remedies. Appellants never filed the requisite order of removal after terminating
Appellant nor did they inform Dwoming of the reasons for his termination in writing.
Appellants cannot honestly expect Dworning to file an appeal with the Commission when
Appellants themselves did not comply with its rules.
III. The lan2uaee of the Euclid City Charter is permissive and does not require exhaustion.
45 Assuming arguendo that the Civil Service Commission had the authority to hear and remedy R.C. 4112 claims, Euclid's rules are permissive and do not require a victim of discrimination to first file with it. In an argument on which the Eighth District reserved judgment, ihe civil service rules' plain language demonstrates that pursuing a,civil service remedy, while permitted, is not mandatory. Both the state and local provisions employ the permissive term "may" when describing the civil service administrative process. Specifically,
Euclid's civil service rules state: "Any employee or officer or holder of a position in the classified service may request a hearing before the Appointing Authority to appeal the notice of .
.. discharge..." Euclid, Ohio, Local Rules of the Civil Service Commission R. 8.3 (May 1,
2001, as amended) (emphasis added) (Appellants Appx. 58). The Ohio Revised Code's civil service law provides: "Within ten days following the filing of the order, such chief may file an appeal, in writing, with the municipal or civil service township civil service commission °" R.C.
124.34(C) (emphasis added) (Appellants Appx. 102).
It is a long standing general principle of statutory construction that the word "may" is permissive, not compulsory. Department of Liquor Control v. Sons of Italy Lodge 0917 (1992),
65 Ohio St. 3d 532, 534-35, 605 N.E.2d 368, 370 (quoting Dorrian v. Scioto Conservancy Dist.
(1971), 27 Ohio St. 2d 102, 271 N.E.2d 834, paragraph one of.the syllabus). No exhaustion requirement exists under the plain language of the civIl service rules. Nothing in the language of
R.C. 124 or the Euclid Civil Service Rules indicates that the term "may" is anything but permissive. There is no "clear and unequivocal" language to render the term "may" mandatory.
See Sons of Italy, 65 Ohio St. 3d at 534-35. Nothing in the language of the civil service
provisions even suggests that if an aggrieved employee chooses not to appeal his termination, he
forfeits the ability to commence an independent civil action.
46 Moreover, any interpretation of the Comniission's rules must be made against the backdrop of the full panoply of rights afforded employees. This Court should not construe the word "may" in a local municipality's charter and rules in such a way that it would eviscerate the rights granted to those same employees by the state sovereigti. While Euclid may be within its authority to mandate filing for only those narrow set of claims within its expressed purview, it is not within its authority with respect to R.C. 4112 claims. In short, R.C. 4112.08 and Euclid's own charter preempt and prohibit the interpretation of the commission's rules in a manner that would undermine the rights afforded by R.C. 4112.
IV. The individual defendants are not proper parties to this appeal.
Neither Cosgriff nor James Slivers are proper Appellants in this matter. In order to participate in an appeal, every party must show a stake in the outcome of the litigation.
Willoughby Hills v. C.C. Bar's Sahara, Inc. (1992), 64 Ohio St. 3d 24, 26, 591 N.E.2d 1203,
1205. Absent an abridgment of Dworning's constitutional rights, neither of the individual
Appellants have any stake whatsoever in the outcome of this appeal. It is not disputed that the
Civil Service Commission lacks jurisdiction to redress any lawsuit between Dwoming, Cosgriff
and Slivers. In fact, Dwoming's claims against Cosgriff and Slivers remain intact regardless of
the outcome of the current appeal. As those parties are not proper appellants, this Court should
sununarily dismiss the appeal of Cosgriff and Slivers.
CONCLUSION
The statutory language of R.C. 4112 is clear and unambiguous - a municipal employee
does not need to exhaust his or her administrative remedies prior to commencing an independent
civil action. No municipality can usurp this purpose or otherwise impair those rights conferred
by the General Assembly. To do so would ignore the plain language of R.C. 4112 and the litany
47 of case law interpreting that statute. Accordingly, this Court should uphold the Eighth Appellate
District's decision, reject Appellants' propositions of law and remand this matter for trial.
Respectfully Submitted,
IS,TOPHER P. THORMAN (0056013) [email protected] JON L. LINDBERG (0014288) i l indb erg @ thll aw. c om THORIVIAN & HARDIN-LEVINE CO., L.P.A. The Bradley Building 1220 West Sixth Street, Suite 207 Cleveland, Ohio 44113 (216) 621-9767 (telephone) (216) 621-3422 (facsimile)
Attorneys for Appellee Michael Dworning
48 CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Plaintiff-Appellee Michael Dworntng's
Merit Brief was served via U.S. Mail, postage prepaid, this 4`s day of September, 2007 upon:
Richard A. Millisor (0062883) William E. Blackie (0017699) MILLISOR & NOBIL CO., L.P.A. 9150 South Hills Boulevard, Suite 300 Cleveland, Ohio 44147-3599
Chris Frey (0038964) Euclid City Hall 585 East 222°a Street Euclid, Ohio 44123-2099
Counsel for Appellee, The City of Euclid and James Silvers
Barbara Kaye Besser (0017624) Elfvin & Besser L.P.A. 4070 Mayfield Road Cleveland, Ohio 44121-3031
Counsel forAppellees, James Silvers and Thomas Cosgriff
Stephen L. Byron (0055657) Interstate Square Building I, Suite 240 4230 State Route 306 Willoughby, Ohio 44094
John Gotherman (0000504) Ohio Municipal League 175 South Third Street, # 510 Columbus, Ohio 43215-7100
Counsel for Amicus Curiae The Ohio Municipal League
49 NOTICE OF APPEAII'I't, 4_'r''Z THE COURT OF APP ^j F OFII^T CUYAHOGA COUNTY, EIGHTE^PIi^ tA7j2 *SyfICT FROM A JUDGFP^ E FU`RS1 ^IERl^ DF' 5 IN THE COL-RT OF C6;^^W CUYAHOGA COUNTY, OHIO S
M.ICHAEL DWORNLNG, CASE NO. CV-04-5462 ^ 1
Plaintiff, JUDGE STUART FRIEDMAN
vs. NOTICE OF APPEAT.
CITY OF EUCLID, THOMAS COSGRIFF, JIM SLIVERS, and Tudee: JOHN DOES I & 2, IIIIIIVIIINIINfII^fIVIIIIfIIIBll^llllllllflflllllllll CA 06 087757 Defendants.
Plaintiff Michae] Dworning, through counsel, gives notice to all parties that he appeals to the Court of Appeals of Cuyahoga County, Ohio, Eighth Appellate District, from the Order granting Defendants' Motion for Summary Judgment, entered in this action on January 18,
2006, and the January 18, 2006, Docket Entry denying Plaintiff's Motion tc Compel as moot.
Copies of the Order and Docket are attached to,thtslNotice of Appeal.
Resp&^tfully submitted,
6,;HRIS'FQ,^HER P. THORMAN (0056013) [email protected] PETPI2ARDIN'-LEVINE (0014288) plevin qthllaw.com RYAN A. SOBEL (0078507) [email protected] Attorneys Jor Pluintiff THORM^N & HARD1Iv-LEVLNE C:C).,;..P.l^. The Bradlev Building 1220 West Sixth Street, Suite 307 Cleveland. Ohio 441. I 3 Phone (216) 621-9767 az i_iol 6:1-_}4_
APPELLEE APPX 001 CERTIFICATE OF SERVICE
1 certify that on February i 4 ; 2006. I served a courtesy copy of Notice of Appeal via regular U.S. mail upon. the followin8:
Richard Millisor, Esq. Robert C. Pivonka. Esq. W illiam E. Blaclcie, Esq. MILLISOR & NOBIL CO.. L.P.A. 9150 South Hi11s Boulevard, Suite 300 Cleveland, Ohio 44147
Phyllis Vento, Esq. CITY OF EUCLID 585 East 222nd Street Euclid, Ohio 44123
Attorney.r for Defendants Ciry ofEuclid and Jim Slivers
and
Barbara Kaye Besser, Esq, ELV IN. & BESSER CO., L.P.A. 4070 Mavfield Road Cleveland, Ohio 44121
Attorney for Defendant Thomas Co.rgriff
GHR I^ R P. THORMAN (0056013) ct^ZO thllaw.com PEZ'f- HARDIN-LEVINE (0014288) [email protected] RYAN A. SOBEL (0078507) rsobel C thIlaw.com Attornevs for Plaintr'ff
THORMAN & FIARDIN-LEVINE CO.. L.P.A. The Bradley Buildina I 1220 West Sixth StreeL, Suite 30? Cleveland, Ohio 44113 Phone(216)621-9767 Fax (216) 621-3422
APPELLEE APPX 002 I IIIIII IIIII!II!I IIIII Ilili II III IIIIII Ilill IIII IIII 1llil 37420031 IN THE COUR'T OF COMPvTON PLEAS CUYAHOGA COUW^'i', OHIO IvtICIL4EL DWORNING CaseNo: CG'-04-546231 Plaintiff I fudge: STUART A FRIEDMAN
Cil'Y OF EUCLIS'J, ET' AL DeFendant ,,:fOIURNAL ENTRY
89 DIS. W/PREJ - FINAL
MOTION OF DEFENDANTS CITX OF EUCLID,'I'IIOMAS COSGRJFN AND J1M SILVERS FOR SUMSrLARY JUDGMEN'!' FOR FAILURE TO EXFIAUST AD2,ffNTSTRA'i'[VE REMEDIES (FILED 10/14,'2005) IS GRANTED. COURT COST ASSESSED TO TI-IF PLAINT7FF(S).
r^=*^ Judge Signature 01f1B/20D6
TI1E STAT.E OF OHIO1 L. GER.ALD E. FUER5i, CLERI( OF ^ C^yahoya County SS. TIiE COURT OF COhiNON PLEAS tI WITHIN AND FOR SAID COUNTY. "'^ ^ ,iEFFF+,' CEP11F" THAI THE ABOVE AND FO"CjOI C . I ^^r7tc FH^ II I, He : ciuAL ^ i
APPELLEE APPX 003 Case Docket Pa^,c 1 of 6
Case Docket Listing
cass se[mrnaay , casa f?r'c4as uvs;s Svnriz, nF,
'Pran!:Lsasace` N.tias=, m2inhtsmu
Case Numirer: CV-04-546231 Case Titie: MICHAEL DWORNING vs. CITY OF EUCLID, E- AL Tiff 1PSewer. AlternaTIFF
ram Date Sor° Type Typ=- Type Tyoe Searci< ', i Ascending 0 JE ^Tar:S^h 00 '^e! Descending Date 6i¢e Tyne Plescriptivn 1 m25ae DZ THOMAS COSGRIFF NOTICE OF SUBSTITUTION OF COUNSEL. O1/24/2006 ^1D2 OT N/A BARBARA KAYE BESSER 0017624 D3 JIM SILVERS NOTICE OF APPEARANCE AS CO-COUNSEL ON BEHALF 01/24/2006 D3 OT OF DFNT. BARBARA KAYE BESSER 0017624 N/^ SUBPOENA TO20E0SQ: , CITY OF EUCLID LAW N/A O1/18/2006 Pl SR DEPARTMENTO, SERVED JqNEN17, MOTION OF DEFENDANTS CITY OF EUCLID, THOMAS COSGRIFF AND JIM SILVERS FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUS T D1/18/2006 N/A JE ADMINISTRATIVE REMEDIES (FILED 10/14/2005) IS GRANTED. COURT COST ASSESSED TO THE PLAINTIFF(S). BOOK 3475 PAGE 0356 01/18/2006 NOTICE ISSUED ^ I MOTION OF DEFENDANTS FOR 7-DAY EXTENSION OF TIME TO 01/18/2Q06 TO PLAINTIFF'S MOTION TO COMPEL (FILED 12/29/2005) IS FIJE GRANTED. BOOK 3475 PAGE 0339 01/18/2006 NOTICE ISSUED DEFT. BRIEF IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL. Oi(10/2006 F1 BR N/A IROBERT C PIVONKA (0067311) APPEARqNCE ON BEHALF THOMAS iy/A 12/30/2005 D2 OT DOSGRIFF^. BARBARA KAO 8E53ER 0017 Z DEFENDANT(S) CITY OF EUCLID(D1), THOMAS COSGRIFF(D2) and JIM SILVERS.(D3) MOTION FOR A 7 DAY EXTENSION OF TIME TO RESPOND :2/297ZQâ5 D FRO TO PLTF'S MOTION TO COMPEL ROBERT CPIVONKA 006731"1 IN/A . 01/18/2006 - GRANTED
I REPLY BRIEF IN FUTHER SUPPORT OF DEFTS. MOTION FOR SUMMARY I 12/27/2005 D1 BR JUDGEMENT DUE TO PLTFS. FAILURE TO EXHUAUST HIS N/A I ADMINISTRATIVE REMEDIES. RICHARD A MI_.LISOR ( 0062883) ^ PLTF. MOTION TO COMPEL RYAN A SOBEL ( 0078507) 01/18/2006 - ^12/_3^2005 P1 MO N/C. MOOT i 12/14/20C5 i D^I OT I CONSOLATED DEPOS^ION EXH;BITS- VOL.SI OF IL ...... I N/A 112/14/20051D< IOT CONSOLIDATED DEPOSITION EXHIBITS - VOL. I OF I: I N/A ^ P1 MICHAEL DWORNING DEPOSITION OF COLLEEN TARSITANO TAKEN i2/14/2005 G- N/A ^ ^' ON TUES., NOV. 29, 2005.,...... CHRISTOPHER P THORMAN 0056013 _ ^-^- P1 MICHAEL DWORNING DEPOSITION OF PATRICK GALLAGHER T.AKEN ^-I I l1?114/2005 Pl OT _ N•![. ON TES., NOV. 29; 2005...... CHPISTOPHERr THORMAN 0,.560i3 ^ Pl IOT IP1 MICHAEL DWORNING D°POEIT;ON OF BILL CERVENIk T.AKEN ON N/P. 1TL'ES., NOV. 1. 2Q05...... =ILED. CHRISTOPHER P THORMAN 00560:31
APPELLEE APPX 004 Case Docket P'dae21 of 6
^I MICHAEL DWORNING VIDEOTAPED DEPOSITION OF THOMAS 12/14/2005 COSGRIFF TAKEN ON FRIDAY, OCT. 21, 2005 .CHRISTOPHcR N/A P THORMAN 0056013 H b p1 P1 MICHAEL DWORNING NOTICE OF FILING DEPOSITION TRANSCRIPTS 12/14/2005 Pl OT WITH CONSOLIDATED EXHIBITS ...... CHRISTOPHER P THORMAN N/A 0056013 MICHAEL DWORNING BRIEF IN OPPOSITION TO DEFTS' MOTION FOR 12/14/2005 P1 BR I P1 ; N/A SU MMARY JUDGM"'...... CHRISTOPHER P THORMAN 0056013 MOTION OF DEFENDANTS FOR LEAVE TO FILE REPLY BRIEF INSTANTER. [12/06/2005 N/A ]E ( FILED 11/16/2005) IS DENIED. BOOK 3454 PAGE 0226 12/06/2005 IDal NOTICE ISSUED Dl CITY OF cUCLID FIRST AMENDED ANSWER ANSWER OF DEFf"S.. 11/22/2005 D1 iAN N/A WITH JURY DEMAND PHYLLIS VENTO 0061793 FINAL PRE-TRIAL SCHEDULED FOP. 12/12/2005 AT 03:00 PM IS 11/18/2005 N/A SC ICANCELLED. ( NOTICE SENT) N/^,' TRIAL BY JURY SCHEDULED FOR 01/11/2D06 AT 09:00 AM IS ^11/18/2005 N/A SC N/A CANCELLED.(NOTICE SENT) ^^F ^_ Dl CITY OF EUCLID MOTION FOR LEAVE TO FILE RELY BRIEF I 11/16/2005 1D1 MO N/A INSTANTER PHYLLIS VENTO 0061793 12/06/2005 - DENIED L TRIAL BY JURY SET FOR 06/21/20D6 AT 09:00 AM. PURSUANT TO THIS COURT'S ORDER, COUNSEL FOR PLAINTIFF AND DEFENDANT CONTACTED THE COURT 11/14/2005 WITH TRIAL DATE CONVENIENT i-; 11/15/2005 N/A ]E FOR ALL SIDES AND THE COURT. AS NOTED ABOVE, TRIAL IS LJ SCHEDUIED FOR 06/21/2D06 AT 9:00 AM. BOOK 3441 PAGE 0478 11/15/2005 NOTICE ISSUED `i CASE MANAGEMENT CONFERENCE HELD 11/09/2005. ALL COUNSEL PRESENT. COURT HEREBY GRANTS PLAINTIFF UNTIL 12/14/2005 TO FILE HIS BRIEF IN OPPOSITION TO DEFENDANTS' FIRST MOTION FOR SUMMARY JUDGMENT. DISCOVERY TO BE COMPLETED BY 01/31/2006. PLAINTIFF'S EXPERT REPORT DUE BY 01/31/2006. DEFENDANTS' EXPERT REPORT DUE BY 02/28/2006. DISPOSITIVE MOTIONS TO BE FILED BY 02/28/2006. BRIEFS IN OPPOSITION DUE BY 03/28/2006. REPLY BRIEFS IN SUPPORT OF SUMMARY JUDGMENT TO BE FILED 11/15/2005 N/A }E WITHIN ONE WEEK OF SERVICE OF BRIEFS IN OPPOSITION. FINAL PRE- TRIAL SET FOR 04/24/2006 AT 09:00 AM. ALL PARTIES AND COUNSEL OF RECORD TO BE PRESENT AT FINAL PRE-TRIAL OR APPROPRIATE !SANCTIONS WILL BE IMPOSED. TRIAL BY JURY TO BE HELD BEFORE 106/30/2006. COUNSEL TO SELECT TRIAL DATE CONVENIENT FOR ALL PARTIES AND ATTORNEYS AND TO NOTIFY COURT WITH SELECTED DATE BY 11/14(200.5. BOOK3441 PAGE 6438 11/15/2005NOTICE EISSUED MOTION OF DEFENDANTS FOR LEAVE TO FILE FIRST AMENDED ANSWER ^ (FILED 10,^13/2005) IS GRANTED, DEFENDANTS TO FILE AMENDED N/A I]E L l/1S/2005 ANSWER WITHIN ONE WEEK OF THIS ORDER. BOOK 3441 PAGE 043 7 1 11/15/2005 NOTICE ISSUED ^ ^^ Pl MICHAEL DWORNING RESPONSE TO MOTION FOR LEAVE TO FILE I ii lY/ 7/2C05 PS OT DEFENDANTS' FIRST AMENDED ANSWER. CHR?SOPHER ? THORMAN N/A OD56D13 MOTION OF PLAINTIFF MICHAEL DWORNING FOR 14 DAY EXT-NSION ' OF TIME TO RESPOND TO DEFTS. MOTION FOR LEAVE TO FILE DEFTS. 11/u^1; ZDOS N/A } E FIRST AMENDED ANSWER ( FILED 10/24/200S) IS GRANTED. I ^ PL4INTIFF'S BRIEF IN OPPOSITION DU.E ON OR BEFORE 11/07/2005. '.. BOOk 3433 PAGE 0686 11/C1/2005 NOTICE ISSUED I ^-1 STIPULATED PROTECTIVE ORDER RELATING "O PLTF'7 MEDICAL 1D,/31/20Os P pE hd/F RECORD5...05J. VOL.3431 PG.0938-942 NOTICE ISSUED ^-- i 7-
APPELLEE APPX 005 Case Docket Pa=e3of6
IMOTION OF DEFENDANT CITY OF EUCLID FOR A 60 DAY EXTENSION OF DISCOVERY, EXPERT WITNESS AND DISPOSITIVE MOTION DEADLINES AND TRIAL DATE ( FILED 10/12/2005) ?5 GRANTED. MATTER SET FOR A j 1 0/26/2005 N/A JE CASE MANAGEMENT CONFERENCE 11/09/2005 AT '_:50 PM IN ORDER I TO SET NEW DATES. ALL COUNSEL TO COME PREPARED TO SCHEDULE _ DATES. BOOK 3430 PAGE 01.82 10/26/2005 NOTICE ISSUED E COURT HEREBY TAKES NOTICE OF THE PARTIES CONTINUED EFFORT TO REACH AN AGREEMENT ON A PROTECTIVE ORDER RELATING TO 10/26/2005 1N/A DEFENDANTS ' COMPUTERS. SEE NOTICE FILED 10/13/2005. BOOK 3430 PAGE 0181 10/26/2005 NOTICE ISSUED P1 MICHAEL DWORNING MOTION FOR 14 DAY EXTENSION OF ITME TO RESPOND TO DEFTS. MOITON FOP, LEAVE TO FILE DEFTS. FIRST 10/24/Z005 IP1 MO N/A ^ AMENDED ANSWER CHRISTOPHER P THORMAN 0056013 11/01/2005 - ^
PIMICHAEL DWORNING BRIEF IN OPPOSITION TO DEFTS. MOTION FOR ^I A 60-DAY EXTEANSION OF EXPERT WITNESS AND DISPOSITIVE 10/24/2005 P1 BR MOTION DEADLINE AND TRIAL DATE AND RESPONSIVE BRIEF N/A SUPPORTING MOTION FOR 60-DAY EXTESNSION OF DISCOVERY. ^ CHRISTOPHER P THORMAN 0056013 F CASE MGMNT CONFERENCE SET FOR 11/09/2005 AT 01:50 PM. (Notice 10/21/2005 1N/A N/A ^ Sent). . DEFENDANT(S) C'tfY OF EUCLID(D1), THOMAS COSGRIFF(D2) and JIM ^ i SILVERS(D3) MOTION FOR SUMMRY JUDGMENT DUE TO PLAINTIFF'S 10/ 14/2005 D MO !N/A FAILURE TO EXHAUST HIS ADMINISTRATIVE REMEDIES RICHARD A MILLISOR 0062883 01./18/2006 - GRANTED DEFENDANT(S) CITY OF EUCLID(D1) and THOMAS COSGRIFF(D2) MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY N/A 10/14/2D05 D pT JUDGMENT DUE TO PLAINTIFF'S FAILURE TO EXHAUST HIS ADMINISTRATIVE REMEDIES. RICHARD A MILLISOR 0062883 PI 10/13/2005 Pl MO S RECO N/A ^CHRISTOPHER PDHOIR NOS 0013 0 GRANTDD ED ^ Pl MICHAEL DWORNINGMA NOTICE TO COURT OF CONTINUED EFFORT TO REACH AGREEMENT ON CONSENT PROTECTIVE ORDER W1TH RESPECT 10/13/20D5 Pl OT N/A EARCH OF DEECS ' COMPUTERS. CHRISTOPHER P C C THOORMANN056D13 DEFENDANT(S) CITY OF EUCLID(D1), THOMAS COSGRIFF(D2) and JIM SO/13/2005 SILVERS (D3) MOTION FOR LEAVE TO FILE FIRST AMENDED N/A EF ANSWEP ...... FILED PHYLLIS VENTO 0061793 11/15/2005 - GRANTED ^ DY CITY OF EUCLZDDEFTS MOTION FOR A 60DAY EXTENSION OF DISCOVERY °XPERT WITNESS AND DISPOSITIVE MOTION DEADLINES 10/12/2005 D1 ^ MO AND TRIAL DATE; AND ENCLOSURE OF PROPOSED PROTECTIVE N/A ORDERS REQUESTED BY THE COURTS SEPT.29,2005,ORDER RICHARD A ! MILLISOR 0062883 10/26/2005 - GRAN T ED 7- ^ DEFENDANT(S) CITY OF EUCLID(D1) and THOMAS COSGRIFF(D2) 1DJ03/2D05 D IOT ! N/A NOTIC" DF APPEARANCE. RICHARD A MILLISOR 0062883
PRE-T'aJAL CDNFERENCE HELD 09/27/2005. ALL COUNSEL PRESENT. UNTIL SUCH TIME AS THE PARTIES AGREE UPON A PROTECTIVE ORDEB WITH RESPECT TO PLAINTIFF'S MEDICAL RECORDS, PLAINTIFF'S COUNSEL TO PROVIDE PLAINTIFF'S SIGNED MEDICAL RELEASES TO A 09/29/2005 N/A COURT REPORTER. THIS COURT REPORTER IS TO ALLOW DEFENDAN T'S '. ; CCUNSEL ONLY TO REVIEW SUCH MEDICAL RELEASES. WITHIN 14 DAYS OF T'r1IS JOURNFC- ENTRY, COUNSEL TO DRAr'TWO AGREED PROTECTIVE ORDERS, THE FSP.ST CONCERNING PLAIN T IFPS MEDICAL RECORDS AND RELEASES, AND THE SECOND RELATING TO nprpplnANIT'C ^llMPl l`FQ H4RIl 1GT\!mC GH(1i.II fl f'(ll IMGFI P,= I INAP.'^. _!
APPELLEE APPX 006 Case Docket Pale 4 o(' 6
TO REACH AN AGREEMEN- WITH RESPECT TO THE TWO PROTECTIVE JORDERS, AS A LAST RESOR7, COUNSEL TO PROVIDE THE COURT WITH fDRAFT VERSIONS WITHIN FOURTEEN DAYS OF THIS JOURNAL ENTRY SO THAT THE COURT MAY RESOLVE THE PROTECTIVE ORDERS. BOOK 3413 PAGE 0464 09/29/2005 NOTICE ISSUED PRE TRIAL CONFERENCE SET FOR 05/27./2005 AT 03:00 PM. (NOtic=_ 109/09/2DOS ^NJA SC IN/A Sent). I JOINT STIPULATED MOTION FOR 8-DAY EXTENSION TO RESPOND TO _ 08/26/2005 FILED 08/15/2005) IS DENIED AS MOOT. 4 IN/A 3E DEFTS' MOTION TO COMPEL ( BOOK 3393 PAGE 0188 08/26/2005 NOTICE ISSUED rr- IP1 MICHAEL DWORNING BRIE.^ IN OPPOSITION TO DEFTS. MOTION TO OS/23/2D05 P1 'LB R COMPEL. CHRISTOPHER P THORMAN 00560I3 N/A MOTION OF PLAINTIFF FOR 45-DAY EXTENSION OF DISCOVERY AND CORRESPONDING DEADLINES ( FILED 08/03/2005) IS GRANTED IN PART. DISCOVERY TO BE COMPLETED BY 10/14/2005. PLAINTIFF'S EXPERT REPORT DUE BY 10/14/2005. DISPOSITIVE MOTIONS DUE BY 10/14/2005. DEFENDANT'S EXPERT REPORT DUE BY 11/14/2005. FINAL 08/22/2005 N/A E PRE-TRIAL REMAINS 12/12/2005. TRIAL DATE REMAINS 01/11/2006, MOTION OF DEFENDANT CITY OF EUCLID TO COMPEL DISCOVERY (FILED 08/05/20D5) IS GRANTED. PLAINTIFF TO RESPOND TO DEFENDANT'S DISCOVERY REOUEST WITHIN 10 DAYS OF THIS ORDER. L BOOK 3389 PAGE 0910 08/22/2005 NOTICE ISSUED
OS/'_5.!2005 TO C N/A FFICHRISTOPHER PRTHORMAN 0 5601 3 08 26/20 DENOIED AS MOOT IDl CITY OF EUCLID MOTION TO COMPEL DISCOVERY...... FILED 08/OSJ_DOS D1 MO NJA JpHYLLIS VENTO 0061793 08/22/2005- GRANTED
F-^ Pl MICHAEL DWORNING UNOPPOSED MOTION FOR 45-DAY EXTENSION 08J03/2D05 P1 MO OF DISCOVERY AND CORRESPONDING DEADLINES CHRISTOPHER P N/A THORMAN 0056013 08/22/2005 - GRANTED IN PART JOINT MOTION FOR 60-DAY EXTENSION OF DISCOVERY DEADLINE 07/22/2065 ( FILED 07/08/2005) IS GRANTED. DISCOVERY TO BE COMPLETED BY !=?, N/A IJE 09/13/Z005. ALL OTHER DATES SET AT 04/11/Z005 PRE-TRIAL REMAIN IN EFFECC. BOOK 3371 PAGE 0897 07/22/2005 NOTICE ISSUED P1 MICHAEL DWORNING JOINT MOTION FOR 60-DAY EXTENSION OF 07J08/2005 i Pl MO DISCOVERY DEADLINE CHRISTOPHER P THORMAN 0056013 07/22/2005 N/A • GRANTED EUCLI D FOR OS/25/2005 i N/A JE 5) 15 GRANTED.O BO K 3336 PAGEO 04 8 050/2o/200s 9 _ ^ NOT DE T-SSOED IDl CITYIC OF EUCLID MOTION FOR PROTECTIVE ORDER....FILED PHYLLIS OS/06/2005 D1 MO-l VENTO 0061793 05/25/2005 - GRANTED N/A I-I MOTION OF PLAINTIFF TO ORDER DEFENDANTS TO PRESERVE ELECTRONIC AND DIGITAL EVIDENCE ( FILED 03/21/2005) IS GRANTED. COURT FINDS MOTION WELL-TAKEN AS IT SEEKS ONLY TO PRESERVE DIGITAL AND EL.ECTRONIC EVIDENCE SO THAT ISSUES OF _- DISCOVERABIL^'TY AND ADMISSIBIL' MAY BE RESOLVED AT THE 04/18/2005 N/A JE APPROPRIATE TIME. COURT NOl c5 HAT iT IS WILLING TO ENTERTAIN A MOTION FOR PROTECTIVE ORDEP. THAT SETS FORTH WITH PARTICULARITY THOSE ITEMS WHOSE PRESERVATION WOllLD BE UNDULY BURDENSOME. BOOK 3312 PAGE 0988 04/18/2005 NOTICE ISSUED ' MOTION OF DEFENDANT CITv OF EUCi_ID FOR LEAVE TO FILE BRIEF IN 104!16! 2005 ^N/A 7E OPPOSITION INSTANTER (FILED 04/11/2005 I S GRANTED. BOOK 331-: ;! PAGE 0987 04/18/2005 NOTICE ISSUED
APPELLEE APPX 007 Case Docke± Pa:e 5 of 6
PRE-TRIAL HELD 04/11/2005. ALL COUNSEL PRESENT. DISCOVERYTO BE COMPLETED BY 07/15/2005. PLAINTIFF'S EXPERT REPORT DUE BY DB/15/2005. DEFENDANT'S EXPERT REPORT DUE BY 09/16/2005. IDISPOSITIVE MOTIONS TO BE FILED BY 09/30/2005. FINAL PRE-TRIAL SE'f FOR 12/12/2005 AT 03:00 PM. ALL PARTIES AND COUNSEL OF RECORD TO BE PRESENT AT FINAL PRE-TRIAL OR APPROPRIATE SANCTIONS WILL BE IMPOSED. TRIAL BY JURY SET FOR 01/11/2006 AT 09:00 AM. COUNSEL ARE DIRECTED TO SUP. R. 41 AND LOC. R. 17 04/1'_/2005 N/A jE REGARDING CONTINUANCE OF HEARING OR TRIAL. TRIAL BRIEFS AND PROPOSED JURY INSTRUCTIONS DUE ONE DAY BEFORE TRIAL. MOTIONS IN LIMINE DUE TEN DAYS BEFORE TRIAL. COURT HEREBY DIRECTS COUNSEL AND THEIR STAFF TO FIRST CONSULT THE CIVIL DOCKET AVAILABLE AT WWW.CUYAHOGA.OH.US BEFORE CONTACTING THIS COURT OR ITS STAFF WITH QUESTIONS CONCERNING THE SCHEDULING OF CASE EVENTS OR RULINGS UPON MOTIONS. BOOK 3309 PAGE 0804 D4/12/2005 NOT?CE ISSUED D1 CITY OF EUCLID BRIE^ IN OPPOSITION TO PLTF'S MOTION TO 04/11/2005 ^ BR PRESERVE ELECTRICAL & DIGITAL EVIDENCE...[W]. PHYLLiS VENTO N/A 0061793 Dl C1TY OF EUCLID MOTION FOR LEAVE TO FILE BRIEF IN OPPOSITION, 04/11/2005 N/A ID _MO "INSTANTER"... [W] PHYLLIS VENTO 006.1793 04/18/2005 - GRANTED PS MICHAEL DWORNING MOTION TO ORDER DEFENDANTS TO F_ 03/21/2005 fP1 MO PRESERVE ELECTRONIC AND DIGITAL EVIDENCE CHRISTOPHER P N/A ITHORMAN 0056013 04/18/2005 - GRANTED CASE MGMNT CONFERENCE HELD ON 03/01/2005. PRETRIAL SET FOR 104/11/2005 AT 02:00 PM. PRETRIAL TO BE HELD BY PHONE. COUNSEL 03/15/2005 N/A ]E FOR PLAINTIFF TO INITIATE CONFERENCE CALL. BOOK 3291 PAGE 0637 ^ 103/15/2D05 NOTICE ISSUED DEFENDANT(S) THOMAS COSGRIFF(D2) and JIM SILVERS(D3) ANSWER. N^/A 03/01/2005 AN WITH JURY DEMAND PHYLLIS VENTO 0061793 E CASE MGMNT CONFERENCE SET FOR 03/01/2005 AT 02:20 PM. (Notice N/A SC N/A 01/31/2005 Sent). MOTFILEION OF DEFENDANT FOR LEAVE TO FILE JURY DEMAND INSTANTER ^ 12/30/2004 N/A ]E ( D 12/10/20D4) IS UNOPPOSED AND GRANTED. BOOK 3244 PAGE 0735 12/30/2004 NOTICE ISSUED D1 C7TY OF EUCLID MOTION FOR LEAVE TO FILE JURY DEMAND 12/10/2004 Dl MO INSTANTER PHYLLIS VENTO 0061793 12/30/2004 - UNOPPOSED AND N/A GRANTED 11/23/2004 51 AN Dl CITY OF EUCLID ANSWER OF DErT.. PHYLLIS VENTO 0061793 I N/A CERTIFIED MAIL RECEIPTNO:5678769 RETURNEDBYU:S."MAIL -' il/17/20D4 D4 SR DEPARTMENT 11/08/2004 JOHN DOE 1EMPLOYEE OF THE CITY OF N/A. EUCLID MAIL RECEIVED AT ADDRESS 11/04/2004 SIGNED BY OTHER. CERTIFIED MAIL RECEIPT N0. 578770 RETURNED BY U.S. MAIL 11/17/2004 DS SR DEPARTMENT 11/08/2004 JOHN DOE 2 EMPLOYEE OF THE CITY OF N/A EUCLID MAIL RECEIVED AT ADDRESS 11/04/2004 SIGNED BY OTHER. SUMS COMPLAINT(5678768) SENT BY SPECIAL PROCESS SERVER. TO: L ill/O1/2004 C3 SR JIM SILVERS 20140 ARDWELL DRIVE CLEVELAND, OH 44123-DO 0 N A' SUMS COMPLAINT(5678767) SENT BY SPECIAL PROCESS SERVE k . TO: N/A 11 /O1/2004 D2 SR THOMAS COSGRIFF 125 EAST 214TH STREET EUCLID, OH 44123-0000
SUMS COMPLAINT(5678766) SENT BY SPECIAL PROCESS SERVER. 70: . ' 11/01/2004 ^ D '; SR N/P ^ CITY OF EUCLID 585 EAST 222ND STREET EUCLID, OH 44123-0000 UMS COMP,AINT(557S77r. CENT BY CERTIFIED MAIL. TO : :OHN DO E 111/01/2004 D5 SR 1 2 EMPLOYEE OF THE CITY OF EUCLD S85 EAST 222NC STREEf EUCLTD N/A IOH 44123 - 0000
APPELLEE APPX 008 Case Docket Paze6ofG
SUMS CDMPLAINT(5678769) SENT BY CERTIFIED MAIL. TO: JOHN DOE 11/01/2004 D4 SR 1EMPLOYEE OF THE CITY OF EUCLID 585 EAST 222ND STREET EUCLID, IOH 44123-0000 ^29/2004 DS WRIT FEE IN/A J10/29/2004 D4 CS WRIT FEE FN/A `10,^29/2004 D3 ^CS WRST FEE N/^ 1D,'29,^2004 D2 ICS WR1T FEE N/^ SQ/29/2004 51 CS WRIT FEE N/A UPON REVIEW AND CONSIDERATION OF PLTF'S MOTION TO APPOINT PROCESS SERVER, THIS COURT HAVING FDUND GOOD CAUSE SHOWN HEREBY GRANTS PLTF'S MOTION. IT IS HEREBY ORDERED THAT PLTF'S COUNSEL THORMAN & HARDIN LEVINE CO., L.P.A., AND/OR THEIR DESIGNEES, REPRESENTATIVES OR AGENTS, WHO ARE EIGHTEEN ( 18) 0/27/2004 P N/a JE YEARS OF AGE AND NOT PARTIES TO THIS LAWSUIT, ARE HEREBY APPOINTED BY THISCOURT AS PROCESS SERVERS TO SERVE VIA CERTIFIED MAIL PLTF' S MOTION TO APPOINT PROCESS SERVER, THE SUMMONS AND COMPLAINT UPON THE DEFTS IN THIS ACTION. 1T IS SO ORDERED. VOLUME 3209 PAGE 0137 10/27/2004 NOTICE ISSUED. 10/26/2004 FN/A SF JUDGE STUART A FRIEDMAN ASSIGNED ( RANDOM) FN/A I ^10/26/2004 P1 I SF LEGAL RESEARCH FN/A 70/26/2004 PS ;SF LEGAL NEWS N/A 110/26/2004 P1 SF LEGAL AID FN/A 10/26/2004 P1 SF COMPUTER FEE N/A 10/26/20D4 P1 SF CLERK'S FEE N/A IO/26/2004 Pl SF DEPOSIT AMOUNT PAID THORMAN & HARDIN-LEVINE CO., L.P.A. N/A 10/26/2004 FN/A ISF CASE FILED I N/A N/A 10/26/2004 PLAINTIFFS MOTION TO APPOINT PORCESS SERVER FILED. 10/27/2004 PS MO GRANTED L_ COMPLAINT WITH JURY DEMAND FILED. SERVICE REQUEST - SUMMONS =10/26/2004 P1 SR BY SPECIAL PROCESS SERVER AND CERTIFIED MAIL TO THE N/A DEFENDANT(S). L_: c:UswVsoe
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APPELLEE APPX 009 luslI^lmilu699uJiVlllill37420031 imi IN TIiE COTJRT OF G(11WIl4f1ON PLEAS CUVAffIOOA COUN-T3', OI3IO MICHAEi. DWORDITIVG i C:^^e?Io: CV-04-546231 Plaintif? ;udgc: STUART A FRIEDMAN
CITY OF EUCLID, ET AL Defend;mt :POURNAL ENTRY
89 DiS. W/ PREi - FINAL
MO'[7ON OF DEFE\TDfttiTS C11'Y OF EUCLID, TfIOMAS COSGRIFc AND JIM SII.VERS FOR SLR<9kARY lUDGiU^F"SN'1' FOR FAILURE TO EXHAUST ADMPVISTRATIVE REMEDIES (FILED.10/14:'2005) IS GR,ANTED. COURT COST ASSESSED TO TIIE PL1IN"1'IFP(S).
Judge Signature 01/18/2006
NESTfTwOFCH!01 LGEP.ALDE.FUcPST.OLEpKOF } ?Cwalac^;oum1' S. THF80'Jft`.OFC6MMOYPLEAS 'IY1THiN ANO F09 SAIC COU4TY }'.IEP-9YC'cGT:'R'TReTT".F,ASD'IFANG"?^ y01 G :_ s;:Pflr:Nbl C:8?1CD FA(5i^1NE i^'yGI7QAL ^ t
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-89 O1/i3/2006 RE(:EVED FOR 1'ILM0 OI/IS2006 14:235 BY CLKRM ;u_'-.+75 PG©:s5u GIIRALD E. T, Page 1 of 1
^^ .... _..._..
APPELLEE APPX 010 ^^ ^r0LED $Upr.eut.e ^.rrnrt aaf (0 [ ^ `^4.e '{ MAY 02 2007
MARCIA J. MENGEL, CLERK SUPREME CQURT QF QHfQ
Michael Dworning Case No. 2007-0308
V. ENTRY
City of Euclid et al.
1'his cause is pending before the Court on the certification of a conflict by the Court of Appeals for Cuyahoga County. On review of the order ccrtifying a conflict, appet;ee's objection to the notice of certified conflict, and appellants' memorandum in opposition to appellee's objection,
It is determined that no conflict exists. Accordingly, this cause is dismissed.
(Cuvahoga County Court of Appeals; No. 87757)
OMAS J. MOiYER Chief Justice
APPELLEE APPX 011 E ® 'ql4$ $Uvrr.extt$ ^vurt vrf c04t.a MAY 02 2007 MARCIA J. MENGEL, CLERK SUPREME COURT OF OHIO
Michael Dworning Case No. 2007-0307
V. ENTRY
City of Euclid et al.
Upon consideration of thejurisdictional. memoranda filed in this case, the Court accepts the appeal on Propositions of Law Nos, I and II. The Clerk shall issue an order for the transmittal of the record from the Court of Appeals for Cuyahoga County, and the parties shall brief this case in accordance with the Rules of Practice of the Supreme Court of Oliio.
(Cuyahoga Countv Court of Appeals; No. 87757)
TF-TOMAS J. Chief Justice
APPELLEE APPX 012 West?m Pagel 42 U.S.C.A. § 2000c
UNiTED STATES CODE ANNOTATED TITLE 42. THE PUBLIC HEALTH AND WELFARE CHAPTER 21-CTVIL RIGHTS SUBCHAPTER -0--EQUAL EMPLOYMENT OPPORTUNITIES y§ 2000e. Definitions
For the purposes of this subchapter--
(a) The term "person" inclndcs one or more individuals, governments, governmental agencies., political subdi- visions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint- stock companies, trusts, unincorpomted organizations, ttvstees, trustees in cases under Title 11, or receivers.
(b) The term "employer" means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calen- dar year, and any agent of such a person, but such tenn does not include ( 1) the United States, a corporation wholly owned by the Government of the United. States, an Indian tribe, or any dopartment or agency of the District of Columbia subject by stamte to procedures of the competitive service (as defined in section 2102 of Title 5, or (2) a bona fide private membership club (other than a labor organization) which is exempt from taxatiort under section 5012:1 of Title 26. except that during the first year after March 24, 1972, persons hav- ing fewer than twexty-five employees (and their agents) shall not be considered employers.
(c) The tcnn "employment agency" means any person regularly undertaking with or without cotnpensation to procure employees for an employer or toprocure for employees oppornmities to work for an employer attd in- cludes an agent of such a person.
(d) The term "labor organization" means a labor organization engaged in an industry affecting commerce. and atty agent of such an organization, and includes any organization of any kind, any agency, or empioyee repres- entation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dcaling with employers concenting grievances, labor disputes, waaes, rates of pay, hours, or other tetms or conditions of cmployment, and any conference, general committee, joint or system board, orjoint council so engaged which is subordinate to a national or international labor organiza- 6ion.
(e) A labor organization shall be deemed to be engaged in an industry afI'ecting commerce if (1) it maintains or operates a hiring hall or hiring office which procures cmplovees for an emplover or procures for cmployces opportunities to work for an employer, or (2) the mmnber of its members (or, where it is a labor organization composed of other labor organizations or their represenratives, if the aggregate mmiiber of the members of such other labor organization) is (A) rwenty-five or morc during the first vear after Mar@h 24. 1972, or (B)•fif- teen or more thereafter, and such labor organization-- I
(I) is the certifted representative of employees under the provisions of the National Labor Rclations Act, as amended [ 29 U.S.f, A. g 15 i et seq.]. or the Railway Labor Act, as amended [ 45 U.S.C.A. b 151 et seq.];
(2) although not certified, is a naticmal or international labor oi-ganization or a local labor organization re-
tC 2007 ThomsomtiVest. No Claim to Orig. U.S. Govt. Works.
APPELLEE APPX 013 Page 2 42 U.S.C.A. § 2000c
cognized or acring as the representative of employees of an etnployer or eniployers cngagcd in an industry affecting commerce; or
(3) has chartered a local labor organization or subsidiary body which is representing or actively seeking to represcnt employees of employers within the meaning of paragraph (1) or (2); or
(4) has been chartered by a labor organization representing or actively seeking to represent employees with- in the meaning of paragraph (1) or (2) as the local or subordinate body through which such employees may enjoy membership or become affiliated with suclt labor organization; or
(5) is a conference, general committec, joint or system board, or joint council subordinate to a national or intemational labor organization, which includes a labor organization engaged in an industry affecting com- mercc within the meaning of any of the preceding paragraphs of this subsection.
(1) The term "empioyee" means an individual employed by an employer, except that the terni "eniplovee" shall not include any person elected to public office in any State or politiul subdivision of any State by the quali- fied voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constimtional or legal powers of the office. The exemption set forth in the preceding sentence shall not inciude employees subject to the civil service iaws of a State govcmmcnt, governmental agency or political subdivision. \Vith respect to employment in a foreign country, such term includes an individual who is a citizen of the United States.
(g) The term "commerce" means trade, traffrc, commerce, tra.nsportation, transmission, or communica[ion amon-, the several States; or between a State and any place outside thereof; or within the Dishict of Colunibia, or a possession of the United States; or betwcen points in the same State but through a point outside thereof.
(h) The term "industry affecting conunerce" means any activity, business, or industry in commerce or in which a labor dispute would hindcr or obstruct commerce or the free flow of commerce and includes any activity or industry "affecting commerce" within the nteaning of the Labor-Management Reporting and Dis- closure Act of 1959 [29 U.S.C.A. & 401 ct seq.], and further includes any governmentai industry, business, or activitv.
(i) The term "State" includes a State of the Unitcd Statcs, the District of Columbia, Puerto Rico, the Virgin Is- lands, Atnerican Samoa, Guam, Wake Island, the Canal Zone, and Outer Continental Shelf lands defined in the Ottter Continental Shelf Lands Act [43 U.S.C.A. S 1331 et seq.].
(j) The term "religion" includes all aspects of religious observance and practice, as well as belief, unless an cmpiover demonstrates that he is unable to reasonably accommodate to an employee's or prospective employ- ee's religious observance or practice without undue hardship on the conduct of the empioyer's business.
(k) The terms "because of sex" or "on the basis of scx" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related ntedieal conditions; and women affceted by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipi of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothina in section 2000e-2(b) of this titie shall be interpreted to permit otherwise. Ti,is subsec- tion shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fems were carried to term, or except where medical complications havc arisen from an abortion: Provided, That nothing herein shall preclude an eniplover from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.
C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
APPELLEE APPX 014 Page 3 42 U.S.C.A. § 2000c
(1) The tenn "complaining party" means the Commission, the Attomey General, or a person who may bring an action or proceeding undcrthis subchapter. .
(m) The tetm "demonstrates" meansmects thc burdens of production and persuasion.
(n) The term "respondent" means an employer, employment agency, labor organization, joint labor- management committee controlling apprenticeship or other training or retraining program, including an on- the-job training program, or Federal entity subject to section 2000e-16 of this title.
EXECUTIVE ORDERS
EXECUTiVE ORDFR NO. 11126
Ex. Ord. No. 11126, Nov. 1. 1963. 28 F.R. 1171?, as amended by Ex. Ord. No. 11221, May 6, 1965, 30 F R. S^,i^ Ex. Ord. No. 12007, Aug. 22, 1977, 42 F.R 42839, formerly set out as a note under this section, which re- lated to the Interdepartmcntal Committee on the Status of Women and the Citizens' Advisory Council on the Status of Women, was revoked by Ex. Ord. No. 12050, Apr. 4, 1978, 43 F.R. 14431 fonncrly set out as a note undcr this scction.
EXECUTIVE ORDER NO. 11246
PART I--NONDISCRIMINATION IN GOVERNMENT EMPLOYMENT
[Superseded by Ex.Ord. No. 11478, [eff.], Aug. 8, 1969, 34 F.R. 12985]
PART II-NONDISCRIMINATION IN EMPLOYMENT BY GOVERNMENT CONTRACTORS AND SUB- CON'TRACTORS
SUBPART A--DUTIES OF THE SECRETARY OF LABOR
Sec. 201. The Secretary of Labor shall be responsible for the administrdtion and enforcement of Parts II and III of this Order. The Secretary shall adopt such rules and regulations and issue such orders as are deemed neces- sary and appropriate to achieve the purposes of Parts Il and III of this Order.
SUBPART B--CONTRACTORS' AGREEMENTS
Sec. 202. Except in contracts Gxempted in accordance with Section 204 of this Order, all Government contract- ing agencies shall include in every Govermnent contract hereafter enteied into the following provisions: I
"During the oerformance of this contract, the contractor agrees as follows:
"(1) The contractor will not disetiminate against any einployee or applicant for employment because of race,
C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
APPELLEE APPX 015 Pagc 4 42 U.S.C.A. § 2000c
color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to.their race, color. religion, sex or national origin. Such action shall include, but not be limited to the following: empioyment, upgrading, demo- tion, or transfer; recmitment or recruitmcnt advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship: The contractor agrees to post in cunspicuous places, available to employees and applicants for empiovment, notices to be provided by the contracting of5cer setting forth the provisions of this nondiscrimination clause.
"(2) The contractor will, in all solicitations or advertisements for emplovees placed by or on behatf of the con- tractor, state that all qualified applicant,c will receive consideration for empioyment without rcgard to race, col- or, religion, sex or national origin.
"(3) The contractor will send to each labor union or representative of workers with which he ha-s a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting of- ficer, advising the labor union or wodcers' represenrative of the contractor's commitments under Section 202 of Executive Order No. 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
"(4) The contractor will comply with all provisions of Executive Order No. 11246 of Sept. 24, 1965,and of the rules, regulations, and relevant orders of the Secretary of Labor.
"(5) The contractor will fumish all information and reports required by Executive Order No. 11246 of Septcm- ber 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, rccords, and accounts by the contracting agency and the Secretary of Labor for pur- poses of investigation to ascertain. compliance with such mles, regulations, and orders.
"(6) In the event of the contractor's noncompliance with the uondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be cancelled, tcmtinated or suspended in whole or in part and the contractor may be declaredineligibic for further Government contracts in accordance with proced- ures authorized in Executive Order No. 11246 of Sept. 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order No. 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
"(7) The contractor will includc the provisions of paragraphs (1) through (7) in every subcontract or purchase order uniess exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order No. 11246 of September24, 1965 [section 204 of this Order], so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed. by the Secretary of Labor as a means of enforcing such provisions includ- ing sanctions for noncompliancc: Provided, however, That in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the contractor may re- quest the United States to enter into such litigation to protect the interests of the United States."
Sec. 203. (a^Each contractor having a contract containing therprovisions prescribed in Section 202 shall file, and shall cause each of his suboontractors to file, Compliance Reports with the contracting agency or the Secret- ary of Labor as may bc directed. Conipliance Reports shall be filed within such times and shall contain such in- formation as to the practices, policies, programs, and employment policics, programs, and employment statistics of the contractor and eacb subcontTactor, and shall be in such form, as the Secretary of Labor may prescribe.
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(b) Bidders or prospective contractors or subcontractors may be required tc state whether they have participated in anv previous contract subject to the provisions of this Order, or any preceding similar Executive order, and in that cvcnt to submit, on behalf of thcniselves and their proposed subcontractors, Compliance Reports prior to or as an.initial part of their bid or negotiation of a contract."
(c) whenever the contractor or subcontractor has a collective bargaining agreement or other contract or under- standing with a labor union or an agency referring workers or providing or supervising apprenticeship or train- ing for sach workers, the Compliance Report shall include such information as to such labor union's ot- agency's practices and policies affecting compliance as the Secretary of Labor may prescribe: Provided, That to the extent such information is within the exclusive possession of a labor union or an agcncy referring workers or providing or supervisiug apprenticeship or training and such labor union or agency shall refuse to futnish such information to the contractor, the contractor shall so certify to the Secretary of Labor as part of its Compliance Rcport and shall set forth what efforts he has made to obtain such infonnation.
(d) The Secretary of Labor may direct that any bidder or prospective contractor or subcontractor shall submit, as part of his Compliance Report, a statement in writing, signed by an authorized officer or agent on behalf of any labor union or any agency referring workers or providing or supervising apprenticeship or other training, with which the bidder or prospective contractor deals, with supporting information, to the effect that the signer's prac- tices and policies do not discriminate on the grounds of race, color, religion, sex or national origin, and that thc signer either will affitmatively cooperate in the implementation of the policy and provisions of this order or that it consents and agrees that recruitment, employment, and the tetms and conditions of employment under the pro- posed contract shall be in accordance with the purposes and provisions of the order. In the event that the union, or the agency shall refuse to execure such a statement, the Compliance Report shall so certify and set forth what efforts havo been made to secure such a statement and such additional factual material as the Secretary of Labor may require.
Sec. 4. Amendment of Executive Order 11246.
Pnrsuant to section 12l(al of title 40. IJnited States Code, and section 301 of title 4. United States Code. and in order to further the sn-ong Federal interest in ensuring that the cost and progress of Federal procurement con- tracts are not adversely affected by an artificial restriction of the labor pool caused by the unwarranted exclusion of faith-based organizations from such contracts, section 204 of Executive Order 11246 of September 24, 1965, as amended. is hereby further amended to read as follows:
"SEC. 204 (a) The Secretary of Labor may, when the Secretary deetns that special circumstances in the national interest so require, exempt a contracting agency from the requirement of including any or all of the provisions of Section 202 of this Order in any specific contract, suhcontract, or purchase order.
(b) The Secretary of Labor may, bv rule or regulation, exempt certain classes of contracts. subcontracts, or piu- chase orders (1) whenever work is to be or has been performed outside the United States and no recruitment of workers within the litnits of the United States is involved; (2) for standard commercial supplies or raw materials: (3) involving ]ess than speeiPiod amounts of money or specified numbers of workers; or (4) to the extent that they involve subcontracts below a specified Cier.
(c) Sectidn 202 of this Order shall not apply to a Government contractor or subcontrnctor that is a religious cor- poration, association, educational instimtion, or society, with respect to the employment of individuals of a par- ticular religion to perform work connected with the carrying on by such corporation, association, educational in- stitution, or society of itsactivities. Such contractors and subcontracturs arc not exempted or excused from com-
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plying with the other rcquircmcntscontained in this Order.
(d) The Secretary of Labor may also provide, by rule, regulation, or order, for the cxcmption of facilities of a contractor that are in all respects separate * 77144 and distinct from activities of the contractor related to the performance of the contract: provided, that such an exemption will not interfere with or impede the effectuation of the purposes of this Ordcr: and provided further, that in the absence of such. an exemption all facilides shall be covered by the provisions of this Order."
SUBPART C--POWERS AND DUTIES OF THE SECRETARY OF LABOR AND THE CONTRACTING AGENCIES
Sec. 205. The Secretary of Labor shall be responsible for securing compliance by all Government contractors and subcontractors with this Order and any implementing rules or regulations. All contracting agencies shall comply with the terms of this Order and any implementing rules, regulations, or orders of the Secretary of Labor. Contracting agencies shall cooperate with the Secretary of Labor and shall furnish such information and assistance as the Secretary may require.
Sec. 206. (a) The Secretary of Labor may investigate the employment practices of any Govemnient contractor or subcontractor to determine whether or not the contractual provisions specified in § 202 of this Order have been violated. Such investigation shall be conducted in accordance with the prooedttres established by the Secretary of Labor.
(b) The Secretary of Labor may receive and investigate complaints by employees or pmspcctive cmployees of a Govemment contractor or subcontractor which aliege discrimination contrary to the contractual provisions spe- cified in Section 202 of this Order.
See. 207. The Secretary of Labor shall use his best efforts, directly and through interested Federal, State, and local agencies, contractors, and all other available instrumentalities to cause any tabor union engaged in work under Government contrdcfs or any agcncy referring workers or providing or supervising apprenticeship or train- ing for or in the course of such work to cooperate in the implementation of the purposes of this Order. The Sec- retary of Labor shall, in appropriate cases, notify the Equal Employment Opportuniry Commission, tlte Depart- ment of Justice, or other appropriate Federal agencies whenever it has reason to believe that the practices of any such labor organization or agency violate Title VI or Title VII of the Civil Rights Act of 1964 [sections 2000d to 2000d-4 of this title and this subchapter] or other ptvvision of Federal law.
Sec. 208. (a) The Socre.tary of Labor, or any agency, officer, or employee in the executive branch of the Govern- ment designated by r¢le, regulation, or order of the Sccretary, may hold such hearings, public or private, as the Sccretary may deem advisable for compliance, enforcement, or educational purposes.
(b) The Secretary of Labor may hold, or cause to bc held, hcarings in accordance with Subsection (a) of this Section prior to imposing, ordering, or recommending the imposition of penalties and sanctions nnder this Or- der. No order for debarment of anv contractor from further Government contracts under Section 209(a)(6) shall be made without affording the contractor an opportunity for a heating.
SUBPART D--SANCTIONS AND PENALTIES
See. 209. (a) ln accordance with such rules, regulations, or orders as the Secretary of Labor may issue or adopt, rhe Secretary may:
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(1) Publish, or cause to be published, the names of contractors or unions which it has concluded have complied or have failed to comply with the provisions of this Ordcr or of the rules, regulations, and orders of the Secretarv of Labor.
(2) Recommend to the Department of Justice that, in cases in which there is substantial or material violation or the threat of substantial or material violation of the contractual provisions set forth in Section 202 of this Order, appropriate proceedings be brought to enforce those provisions, inciuding the enjoining, within the limitations of applicable law, of organizations, individuals, or 2roups who prevent directly or indirectly, or scek to prevent dir- cctly or indirectly, compliance with the provisions of this Order.
(3) Recommend to the Equal Employment Opportunity Commission or the Department of Justice that appropri- ate proceedings be instituted under Title VII of the Civil Rights Act of 1964 [this subobapter].
(4) Recomniend to the Department of Justicethat criminal proceedings be brought for the fumishing of false in- f'ormation to any contracting agoncy or to the Secretary of Labor as the case may be.
(5) After consulting with the contracting aeency, direct the contracting agency to cancel, terminate, suspend. or cause to be cancelled, terminated, or suspended, any contract, or any portion or portions thereof, for failure of the contmctor or subcontractor to compiy with equal employment opportunity provisions of the contract. Con- tracts may be cancePled, terminated, or suspended absolutely or continuance of contracts may be conditioned upon a program for future compliance approved by the Secretary of Labor.
(6) Provide that any contracting agency shall refrain from entering into further contracts, or extensions or other modifications of existing contracts, with any noncomplying contractor, until such contractor has satisfied the Secretary of Labor that such contractor has established and will carry out personnel and employment policie.c in compliance with the provisions of this Order.
(b) Pursuant to roles and regulations prescribed by the Secretary of Labor, the Secretary shall make reasonable efforts, within a reasonable time iimitation. to secure compliance with the contract provisions of this Order by methods of conference, conciliation, mediation, and persuasion before proceedings shall be instituted under sub- section (a)(2) of this Section, or before a contract shall be cancelled or terminated in whole or in part under su.b- scction (a)(5) of this Section.
Sec. 210. Whenever the Secretary of Labor makes a determination under Section 209, the Secrctary shall promptly notify the appropriate agency. The agency shall take the action directed by the Secretary and shall re- port the results of the action it has taken to the Secretary of Labor within such time as the Secretary shall spe- cify. If the contracting agency fails to tatce the action directed within thirty days, the Secretary may take the ac- tion directly.
Sec. 211. If the Secretary of Labor shall so direct, contracting agencies shall noc enter into contracts with an,v bidder or prospective contractor nnless the bidder or prospective contractor has satisfactorily complied with the provisions of this Order or submits a program for compliance acceptable to the Secretary of Labor.
Sec. 212. When a contract has been cancclled or terminated under Section 209(a)(5) or a contractor has been,de- barred from further Goventment contracts under Section 209(a)(6) of thislOrder, because of noncompliance with the contract provisions speciried in Section 202 of this Order. the SecreLnry of Labor sball promptly notify the Comptroller General of the United States.
SUBPART E-CERTIFICATES OF MERIT
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Sec. 213. The Secretary of Labor may provide for issuance of a United States Governmcnt Certificate of Merit to employers or labor unions, or other agencies wbich are or may hereafter be engaged in work under Govern- niont contracts, if the Secretary is satisficd that the personnel and employment practiccs of the employer, or that the personnel, training, apprenticeship, membership, grievance and representation, upgrading, and other prac- tices and policies of the labor union or other agency conform to the purposes and provisions of this Order.
Sec. 214. Any Certificate of Merit may at any time be suspended or revoked by the Secretary of Labor if the holder thereof, in the judgment of the Sccretary, has failed to comply with the provisions of this Order.
Sec. 215. The Secretary of Labor may provide for the exemption of any employer, labor union, or other agency from any reporting requirements imposed undcr or pursuant to this Order if sucit employer, labor union, or other agency has been awarded a Cer[ificate of Merit which has not been suspended or revoked.
PART III--NONDISCRIMINATION PROVISIONS IN FEDERALLY ASSISTHD CONSTRUCTION CON- TRACTS
Sec. 301. Each executive depat2ment and agency which administers a programinvolving Federal linancial as- sistance shall require as a condition for the approval of any grant, contract, loan, insurance, or guarantee there- under, which may involve a constmction contract, that the applicant for Federal assistance undertake and agree to incorporate, or cause to bc incorporated, into all construction contracts paid for in whole or in part with funds obtained from the Federal Govetnment or borrowed on the credit of the Federal Govemment pursuant to such grant, contract, ioan, insurancc, or guarantee, or undertaken pursuant to any Fedeml program involvine such grant, contract, loan, insurance, or gnarantee, the provisions prescribed for Government contracts by Section 202 of this Order or such moditication thereof, preserving in substance the contractor's obligations thereunder, as may be approved by the Secretary of Labor, together with such additional provisions as the Secretary deems ap- propriate to establish and protect the interest of the United States in the enforcement of those obligations. Each such applicant shall also undertake and agree (1) to assist and cooperate actively with.the Secretary of Labor in obtaining the compliance of contractors and subcontractors with those contract provisions and with the mies, regulations and relevant orders of the Secretary, (2) to obtain and to fumish to the Secretary of Labor such in- fom'tation as the Secretary may require for the supervision of such compliance, (3) to carry out sanetions and penaities for violation of such obligations imposed upon contractors and subcontractors by the Secretary of Labor pursuant to Part II, Subpan D, of this Order, and (4) to refrain from entering into any contract subject to this Order, or extension or otber modification of such a contract with a contractor debaired from Govemment contracts under Part II, Subpart D, of this Order.
Sec. 302. (a) "Construction contract" as used in this Order means any contract for the construction, rehabiiita- tion, alteration, conversion, extension, or repair of buildings, highways, or other improvements to real property.
(b) The provisions of Pmt II of this Order shall apply to such constmction contracrs, and for purposes of such application the administering department or agency shall be considered the contracting agency refened to therein.
(e) The term "applicant" as used in this Order means an applicant for Federal assistance or, as determined by a,ency regulation, other.program participant, with respect to whom an application for any grant, contrac^ loan, insurance; or guarantee is not finally acted upon prior to the effective date of this Part, and it includes s. ch an applicant after he beconies a recipient nf such Federal assistance.
Sec. 303. (a). The Secretary of Labor shall be responsible for obtaining the compliance of such applicants with
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their undcrtakings mider this Order. Each administering department and agenev is directed to cooperate with the Secretary of Labor and to furnish the Secretary such information and assistance as the Secretary may require in the performance of rhe Secrctary's functions under this Order.
(b) In the event an applicant fails and refivices to comply with the applicant's undertakings pursuant to this Order, the Secrctary of Labor may, after consulting with the adnrinistering department or agcncy, take any or all of the following actions: (1) direct any administering department or agency to cancel, terminate, or suspend in whole or in part the agreement, contract or other arrangement with such applicant with respect to which the failurc or refusal occurred; (2) direct any administering department or agency to refrain from extending any furtber assist- ance to the applicant under the program with respcct to which the failure or refusal occurred until satisfactory assurance of fumre compliance has becn received by the Secretary of Labor from such applicant; and (3) refer the case to the Department of Justice or the Equal Employmeut Opportunitv Commission for appropriate law en- forcentent or other proceedings.
(e) In no case shall action be taken with respect to an applicant pursuant to clanse (1) or (2) of subsection (b) without notice and opportunity for hearing.
Sec. 304. Any executive department or agency which imposes by rule, regulation, or order requirements of nondiscrimination in employment, other than requirements imposed pursuant to this Order, may delegate to the Secretary of Labor by agreernent such responsibilities with respect to compliance slandards, reports, and proccd- ures as would tend to bring the administration of such requirements into conformity with the administration of requirements imposed under this Order: Provided, That actions to effect compliance by recipients of Federal fin- ancial assistance with requirements imposed pursuant to Title VI of the Civil Rights Act of 1964 [sections 2000d to 2000d-4 of this titlc] shall be taken in conformity with the procedures and limitations prescribed in Section 602 thereof [section 2000d-1 of this title] and the regulations of the administering department or agency issued thereunder.
PART IV--y1ISCELLANEOUS
Sec. 401. The Secretary of Labor may delegate to any officer, agency, or employee in the Executive branch of the Government, any function or duty of the Secretary under Parts U and III of this Order.
Sec. 402. The Secretary of Labor shall provide administrative support for the execution of the program known as the "Plans for Progress."
Sec. 403. (a) Executive Orders Nos. 10590 (January 19, 1955), 10722 (August 5. 1957), 10925 (March 6, 1961), 11 I 14 (June 22, 1963), and 111162 (July 28, 1964), are hereby superseded attd the President's Committee on Equal Emplovment Opportunity established by Executive Order No. 10925 is hereby abolished. All rccords and property in the custody of the Committcc shall be transferred to the Civil Service Commission [now Office of Personnel Management] and the Secretary of Labur, as appropriate.
(b) Nothing in this Order shall be deemed to relieve any person of any obligation a.csumed or imposed under or pursuant to any Executive Order supetseded by this Order. All rule,s, regulations, orders, instructions, designa- tions, and other directives issued b}1 the President's Conmtittee on Equal Employment Opportunity and thosc is- sued by the heads of various departments or agencies uader or pursuant to any of the Exccutive orders super- sedcd by this Order, shall, to the extent that they are not inconsistent with this Order, remain in full force and ef- fect unless and until revoked or superseded by appropriate authority. References in such directives to provisions of the superseded orders shall be deemed to be rcferences to the comparablc provisions of this Ordcr.
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Sec. 404. The General Service.s Administration shall take appropriate action to revise the standard Government contract forms to accord with the provisions of this Order and of the rules and regulations of the Secretary of Labor.
Sec. 405. This Order shall become effective thirry days after the date of this Order.
EXECUTTVE ORDER NO. 11478
Section 1. It is the policy of the Govemment of the United States to provide equal opportunitv in Federal em- ployment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, natiunal origin, handicap, age, sexual orientation, or status as a parent. [sic] and to promote the full realization of equal employment opportunity through a continuing affirmative program in each executive department and agency. This policy of equal opportunity applies to and must be an integral part of every aspect of personnel policy and nractice in the employment, development, advancement, and trcatment of civilian employees of the Federel Government, to the extent permitted by law.
Sec. 2. The head of each executive dcpartment and agency shall ostablish and maintain an affirmacive program of equal employment opporhrnity for all civiliau employees and applicants for employment within his jurisdic- tion in accordance with the policy set forth in section 1. It is the responsibility of each department and agency head, to the maximtun extent possible; to provide sufficient resources to administer such a progratn in a positive and cffcctive manner; assure that rccruitment activities reach all sources of job candidates; utilize to the fullest extent the present skills of each employee; provide the maximum feasible opportunity to employees to enhance their skills so thev may perfonn at their highest potential and advance in accordance with their abilities; provide training and advice to managers and supervisors to assure their understanding and implementation of the policy expressed itt this Order; assure participation at the local level ivith other employers, schools, and public or private gronps in cooperative efforts to improve community conditions which affect employability; and provide for a systeni within the dcpartment or agency for periodically evaluating the effectiveness with which the policy of this Order is being carried out.
See. 3. The Equal Employment Opportunity Commission shall be responsible for directing and furthering the impletncntation of the policy of the Government of the United States to provide equal opportunity in Federal employment for all cmployees or applicants for employment (except with regard to aliens employed outside the limits of the United States) and to prohibit discriminatitm in employment because of race, color, religion, sex, national origin, handicap, or age.
Sec. 4. The Equal Employment Opportunity Comnvssion, after consultation with all affected deparnnents and agencies, shall issue such rules, regulations, orders, and instructions and request such information from the af- fected departments and agencies as it deenis nccessary and and [sic] appropriate to carry out its responsibilities underthis Order.
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Sec. 5. All departments and agencies shall cooperate with and assist the Equal Employment Opportunity Com- mission in the performance of its funetions under this Order and shall furnish the Commissiun such reports and information as it may request. The head of each department or agency shall comply with rules, regulations, or- ders and instructions issucd by the Equal Employment Opportunity Commission pnrsuant to section 4 of this Or der.
Sec. 6. "Status as a parent" refers to the status of an individuat who, with respect to an individual who is under the age of 18 or who is 18 or older but is incapable of self-care because of a physical or mental disability, is:
(a) a biological parent;
(b) an adoptive parent;
(c) a foster parent;
(d) a stepparent;
(e) a custodian of a legal ward;
(t) in loco parentis over such an individual; or
(g) actively seeking legal custody or adoption of such an individual.
See. 7. The Offce of Pcrsonnel Management shall be authorized to develop guidance on the provisions of this order prohibiting discrimination on the basis of an individual's sexual orientation or status as a parent.
See. S. This Order applies (a) to military deparlments as defined in section 10'' of title 5 . United Svates Code [aer.rinn ^02 of Title 5, Govetrunent Organization and Employees], and executive agencies (other than the Gen- eral Accounting Office [now Government Accountability Office]) as defined in scction 105 of title 5. L7nitud States Code [section 105 of Title 5, Government Organization and Employees], and to the employees thereof (including employees paid from nonappropriated fi.tnds), and (b) to those portions of the legislative and judicial branches of the Federal Govcrmnent and of the Government of the District of Columbia having positions in the competitive service and to the employees in those positions. This Order does not apply to aliens employed out- side the liniits of the United States.
Sec. 9. Part I of Executive Order No. 11246 of September 24, 1965 [set out as a note under this section], and those parts of Executive Order No. 11375 of October 13, 1967 [amending Ex. Ord. No. 11246], which apply to Federal emplovrnent, are hereby superseded.
Sec. 10. This Order shall be applicable to the United States Posta] Service and to the Postal Rate Commission [Postal Regulatory Commission] established by the Postal Reorganization Act of 1970 [Title 39, Postal Service].
Sec. 11. This Executive Order does not confer any right or benefit enforceable in law or equity against the United States or its representatives.
EXECUTIVE PRDER NO. 12050
Ex. Ord.No. 12050, Apr. 47 1978, 43 RR. 14431. as amendcd by L•x. Ord. No. 12057, May 8, 1978, 43 F.R. 19811. Sx. Ord. No. 12135, May 9, 1979, 44 F R 27639 Ex. Ord. No. 12336, Dec. 21, 1981, 46 F.R.. 62239, set out as a notc under this section, which established a National Advisory Committee for Women, was omitted in
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view of the revocation of sections 1 to 5 and 7 and 8 by Ex. Ord. No. 12135, May 9, 1979, 44 1' R. 27639 and the revocation of section 6 bv Ex. Ord. No. 12336, Dec. 21, 1981, 46 F.R. 62239.
EXECUTIVE ORDER NO. 12067
aJune 30, 1978, 43 F.R. 2896 7, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055.> COORDINATION OF FEDERAL EQUAL EMPLOYMENT OPPORTUNITY PROGRAMS By virtue of thc authority vested in me as President of the United States by the Constitution and statutes of the United States, including Section 9 of Reorganization Plan Number I of 1978 (43 F.R. 19807) [set out under sec- tion 2000e-4 of this title and in Appendix 1 to Title 5, Govemmont Organizations and Emplovees], it is ordered as follows:
1-1. Implementation of Reorganization Plan.
1-101. The transfer to the Equal Employment Opportunity Commission of all the functions of the Equal Em- ployment Opportunity Coordinating Council, and the termination of that Council, as provided by Section 6 of Reorganization Plan Number I of 1978 (43 F.R. 19807) [set out under section 2000e-4 of this title and in Ap- pendix I to Title 5, Government Organization and Employees], shall bc effective on July 1, 1978.
3-2. Responsibilities of Equal Employment Opportunity Commission.
1-201. The Equal Etnployment Oppormnity Commission shall provide leadership and coordination to the efforts of Federal dcpartments and agencies to enforce all Federal statutes, Executive orders, regulations, and policies which require equal omployment opportunity without regard to race, color, religion, sex, national origin, age or handicap. It shall strive to maxitnizo effort, promote efficiency, and eliminate conflict, competition, duplication and inconsistency among the operations, functions and jurisdictions of the Federal depamnents and agencies having responsibility for enforcing such statutes, Executive orders, regulations and policies.
1-202. In carrying out its functions under this order the Equal Employmcnt Opportunity Commission shall con- sutt with and utilize the special expertise of Federal departments and agencies with equal employment opportun- itv responsibilitics. The Equal Employnient Opportunity Commission shall cooperate with sucb departments and agencies in the discharge of their equal employment responsibilities.
1-203. All Federal dcpartments and agencies shall cooperate with and assist the Equal Emplovmcnt Opportunity Commission in the performancc of its functions under this order and shall funtish the Commission such reports and 'anfotmation as it may request.
1-3. Specific Responsibilities.
1-301. To implement its responsibilities under Section 1-2, the Equal Employment Opportunity Commission shall, where feasible:
(a) develop uniform standards, guidelines, and policies defming the nature of empioyment discrimination on the ground of race, color, re{igion, sex, national orIigin, age or handicap under all Federal statutes, Executive orders, regulations, and policies which require equal e5nployment opportunity;
(b) develop uniform standards and procedurs for invcsfigatiuns and compliance reviews to be conducted by Federal departments and agencies under any Federal stamte, Exccutive order, regulation or policy requiring
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equal employnnent opportunitv;
(c) develop procedures with the affected agencies, including the use of memoranda of understanding, to minim- ize duplicative investigations or compliance reviews of particular employers or classes of employers or others covered by Federal statutes, Execntive orders, regulations or policies requiring equal employment opportunity;
(d) ensure that Federal departments and aeencies develop their own standards and procedures for undertaking enforcement actions when compliance with equal etnployment opportunity requirements of any Federal statute. Executive order, regulation or policy oannot be secured by voluntary means;
(e) develop unifonn record-keeping and reporting requirements concerning employment practices to he utilized by all Federal departments and agencics having equal entployment enforcement responsibilities;
(f) provide for the sharing of compliance records, findings, and supporting documentation among Federal de- partntents and agencies responsible for ensuring equal employment opportunity;
(g) develop uniform training programs for the staff of Federal departments and agencics with equal employment opportunity responsibilities;
(h) assist all Federal departments and agencies with equal emptoyment opportunity responsibilities in develop- ing programs to pmvidc appropriate publications and other information for those covered and those protected by Federal cqual emplovment opporitinity statutes. Executive orders, regulations, and policies; and
(i) initiate cooperative programs, including the development of inenioranda of understandine between agencies. designed to improve the coordination of equal employment oppommity compliance and enforcement.
1-302. The Equal Employmen[ Opportunity Commission shall assist the Office of Personnel Management, or its successor, in cstablishing uniform job-related qualifications and requircments for job classifications and descrip- tions for Federal employces involved in enforcing all Federal eqnal employtnent opportunity provisions.
1-303. The Equal Employment Opportnnity Commission shall issue such rules, regulations, policics, prucedures or orders as it deems necessary to carry out its responsibilities under this order. It shall advise and offer to con- sult with the affected Federal departments and agencies during the development of any proposed rules, reguia- tions, policies, proceduras or orders and shall formally submit such proposed issuances to affected departments and agencies at least 15 working days prior to public announcement. The Equal Employment Opportunity Com- mission shall use its best efforts to reach agreement with the agencies on niatters in dispute. Departments and agencies shall comply with all final mles, regulations, policies, procedures or orders of the Equal Employment Oppornmity Commission.
1-304. All Federal departrnents and agencies shall advise and offer to consult with the Equal Emplovtnent Op- pormnity Commission during the development of any proposed mles, regulations, policies, procedutcs or orders concerning equal employment opportunity. Departments and agencies shall formally submit such proposed issu- ances to the Equal Employment Opportunity Cornmission and other interested Federal departments and agencies at least 15 working days prior to public announccment. The Equal Employment Opportunity Commission shall review such proposed rales, regulations, policies, procedures or orders to ensure consistencv among the ooera- tions of the various Federal departments and agencies. Issuances related to mtelmal management and administra- tion are exempt from this clearance process. Case hatrdling procedures unique to a single progran7 also are ex- empt, although the Equal Employment Oppormniry Commission may review such procedures in order to assure maximuln consistencv within tlie Federal equal employment opportunity program.
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1-305. Before promulgating significant rules, regulations, policies, proceduxes or orders involving equal em- ployment oppormnity, the Commission and affected departments and agencics shall afford the public an oppor- tunity to conuncnt.
1-306. The Equal Employment Opportunity Commission may make recotnmondations concerning staff size and resource needs of the Federal departments and agencies having equal employment opportunity responsibilities to the Office of Management and Budget.
1-307. (a) It is the intent of this order that disputes between or among agencies concerning matters covered by this order shall be resolved through good faith efforts of the affected agencies to reach mutual agreement. Use of the dispute resolution mechanism contained in Subscctions (b) and (c) of this Section should be resorted to only in extraordinary circumstances.
(b) Whenever a dispute which cannot be resolved through good faith efforts arises between the Equal Employ- nient Oppor[unity Cominission and another Federal department or agency concerning the issuance of an equal employment opportunity rule, regulation, policv, procedure, order or any matter covered by this Order, the Chairman of the Equal Employment Opportnnity Commission or the head of the affected department or agency may refer the matter to the Executive Office of the President. Such reference must be in writing and may not be made later than 15 woridng days following receipt of the initiating agency's notice of intent publiclv to an- nounce an equal employment opportunity ruie, regulation, policy, procedure or order. If no reference is made within the 15 day period, the decision of the agency wbich initiated the proposed issuance will become effective.
(c) Following refere.nce of a disouted matter to the Executive Office of the President, the Assistant to the Presid- ent for Domestic Affairs and Policy (or such other official as the President mav designate) shall designate an of- ficial within the Executive Office of the President to meet with the affected agencies to resolve the dispute with- in a reasonable time.
1-4. Annual Report.
1-401. The Equal Employment Opportunity Commission shall include in the annual report transmitted to the President and the Congress pursuant to Section 715 of Title VIl of the Civil Rights Act of I964, as amended (42 U.S.C. 2000e-14) [Section 2000e-14 of this title], a statement of the progress that has been made in achieving the purpose of this order. The Equal Employment Opportunity Commission shall provide Federal departments and agencies an oppomznity to cotnmcnt on the report prior m formal submission.
1-5. General Provisions.
1-501. Nothing in this order shall relieve or lesscn the responsibilities or obligations imposed upon any person or entity by Federai equal employment law, Executive order, regulation or policy.
1-502. Nothing in this order shall limit the Attorney General's role as legal adviser to the Executive Branch.
EXECUTIVE ORDER NO. 12086
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cluding Section 202 of the Budget and Accounting Procedures Act of 1950 (31 U.S.C. 581c) [see now Section 1531 of Title 31. Money and Finance], in order to providc for the transfer to the Department of Labor of certain contract compliance functions t-elating to equal employment opportunity, it is hereby ordered as follows:
1-1. Transfer of Ftmctions.
1-101. The funetions concerned with being primarily responsible for the enforccmcnt of the equal employment uppormnity provisions under Parts II and III of Executive Order No. 11246, as amended [set out as a note imder this sectioni, arc transferred or reassigned to the Secretary of Labor from the following agencies:
(a) Department of the Treasury.
(b) Department of Defcnse.
(c) Department of the interior.
(d) Department of Commerce.
(e) Department of Health and Human Services.
(f) Department of Housing and Urban Devclopment.
(g) Dcpartment of Transportation.
(h) Department of Energy.
(i) Environmental Protection Agency.
Q) General Services Administration.
(k) Small Business Adniinistration.
1-102. The rccords, property, personnel and positions, and unexpended balances of appropriations or funds rc- lated to the functions transfctred or reassigned by this Order, that are available and necessary to finance or dis- charge thosc functions, are transfened to the Secretary of Labor.
1-103. The Director of the Office of Management and Budget shall make such determinations, issue such orders, and take all actions necessary or appropriate to effeetuate the transfers or reassignments provided by this Order, including the transfer of funds, records, property, and personnel.
1-2. Conforming Amendmcnts to Executive Order No. 11246.
1-201. (a) In order to reflect the transfer of enforcentent responsibility to the Secretary of Labor, section 201 of Executive Order No. 11246, as amended, is amended to read:
"Sec. 201. The Secretary of Labor shall bp responsible for the adtninistration and enforcement of Parts 11 and III of this Order. The Secretary shall adopt such rules and regulations and issue such orders as are deemed neces- sary and appropriate to achieve the purposes of Parts II and III of this Order.".
(b) Paragraph (7) of the contract clauses specified in Section 202 of Executive Order No. 31246, as amended. is amended to read:
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"(7) Tlrc contractor will include the provisions of paragraphs (I) through (7) in every subcontract or purchase order unless exenrpted by rules, regulations, or ordcrs of the Secretary of Labor issued pursuant.to Section 204 of Exccutive Order No. 11246 of September 24, 1965, so that such provisions will be binding upon each suhcon- tractor or vendor. The contractor wil] take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of cnforcing such provisions including sanctions for noncom- pliance: Provided, however, That in the cvcnt the contractor becomes involbed. in, or is threatened with, litiga- tion with a subcontractor or vcndor as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of The United States.".
1-202. In subsection (c) of Section 203 of Executive Order No. 11246, as ainended, delete "contracting agency" in the proviso and substitute "Secretary of Labor" therefor.
1-203. In both the beginning and end of subsection (d) of Section 203 of Executive Order No. 11246, as amended, delete "conuacting agency or the" in the phrase "conttacting agcncy or the Secretary".
1-204. Section 205 of Executive Order No. 11246, as amended, is amended by deleting the last two sentences, which dealt with agency designation of compliance officers, and revising the rest of that Section to read:
"Sec. 205. The Secretary of Labor shall be responsible for securing compliance by all Government contractors and subcontractors with this Order and any impiementing rules or regulations. All contracting agencies shall comply with the terms of this Order and any implementing rules, regulations, or orders of thc Secretary of Labor. Contracting agencies shall cooperate with the Secretary of Labor and shall futnish such infotmation and assistance as the Secretary may requirc.".
1-205. In order to delete refercnces to the contracting agencies conducting investigations, Section 206 of Execut- ive Order No. 11246, as amended, is aniended to read:
"Sec. 206. (a) The Secretary of Labor may investigate the employment practiccs of any Government contractor or subcontractor to determine whether or not the connactuai provisions specified in Section 202 of this Order have been violated. Such investigation shall be conductul in accordance with the procedures established by the Secretary of Labor.".
"(b) The Secretary of Labor may receive and investigato complaints by etnployecs or prospective entnloyees of a Government contractor or subcontractor which allege discrinrination contrary to the coniractual provisions specified in Section 202 of this Order.".
1-206. In Section 207 of Executive Order No. 11246, as amended, delete "contracting aaencies, other" in the first sentence.
1-207. The introductory clause in Section 209(a) of Executive Order No. 11246, as amended, is amended by de- leting "or the appropriate contracting agency" from "In accordance with such rules, regnlations, or orders as thc Secretary of Labor may issue or adopt, the Secretary or the appropriate contracting agency may:".
1-20 ' 8. In paragraph (5),of Section 209(a) of Executive Order No. 11246, als amended, insert at the beginning the phrase "After consulting with the contracting agency, direct the contracting agency to", and at the end of para- graph (5) delete "contracting agency" and snbstitute therefor "Secretary of Labor" so that paragraph (5) is amendedto read:
"(5) After consulting with the contracting agency, direct the contracting agency to cancel, cenninate, suspend, or
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cause to be cancelled, terminated, or suspended, any contract, or any portion or portions thereof, for failurc of the contractor or subcontractor to cotnply with equal employment oppottunity provisigns of the contract. Con- tracts may he cancelled, terminated. or suspended absolutely or continuance of contracts may be conditioned upon a program for future compliance approved by the Secretary of Labor.".
1-209. In order to reflect the transfer from the agencies to the Secretarv of Labor of the enforcement functions, substitute •'Secretary of Labor" for "each contracting agency" in Section 209(b) of Exccutive Order No. 11246, as atnended, so that Section 209(b) is amended to read:
"(b) Pursuant to rules and regulations prescribed by the Sccretary of Labor, the Secretary shall make reasonable efforts, within a reasonable time liniitation, to secure compliance with the contract provisions of this Order by niethods of confcrence, conciliation, tnediation, and persuasion before proceedings shall be instituted under sub- section (a)(2) of this Section, or before a contract sball be cancelled or terminated in wbole or in part under sub- section (a)(5) of this Secrion.".
1-210. In order to reflect the responsibility of the contracting agencies for prompt compliance with the directions of the Secretary of Labor, Sections 210 and 211 of Executive Order No. 11246. as amended, are amended to read:
"Sec. 210. Whenever the Secretary of Labor makes a detcrmination under Section 209, the Secretary shall proniptly notify the appropriate agency. The agency shall take the action direeted by the Secretar-v and shall re- port the results of the action it has taken to the Secretary of Labor within such time as the Secretary sball spe- cify. If the contracting agency fails w take the action directed within thirty days, the Secretary may take the ac- tion directly.".
"Sec. 211. If the Secretary of Labor shall so direct. contracting agencies shall not enter into contracts with any bidder or prospective contractor unless the bidder or prospective contmctor has satisfactorily complied with the provisions of this Order or submits a program for compliance acceptable to the Secretary of Labor.".
1-211. Section 212 of Executive Order No. 11246, as amended, is amended to read:
"Sec. 212. When a contract has been cancelled or terminated under Section 209(a)(5) or a contractor has been debarred from further Government contracts under Section 209(a)(6) of this Order, because of noncompliance with thc contract provisions specified in Section 202 of this Order, the Secretary of Labor shall promptly notifv tite Comptroller General of the United States.".
1-212. In order to reflect the transfer of enforcement responsibility to the Secrctary of Labor, references to the administering department or agency are deleted in clauscs (1), (2), and (3) of Section 301 of Executive Order No. 11246, as amended, and those clauses are amended to read:
"(1) to assist and cooperate actively with the Secretary of Labor in obtaining the compliance of contractors and subcontractors with those contract provisions and with the ruies. regulations and relevant orders of the Secret- ary, (2) to obtain and to fitrnish to the Secretary of Labor such information as the Secretary ntav require for the supervision of suchcompliancc. (3) -to carry out sanctions and penalties for violation of such obligations irn- posed upon contractIbrs and subcontractors by the Secretary of Labor pursuant to Part II, Subpart D, of this Or-, der.".
1-213. In order to reflect the transfer fioni the agencies to the Secretary of Labor of the enforcement functions "Secretary of Labor" shall be substituted for "administering dcpartment or agency" in Section 303 of Executive
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Order No. 11246, as amended, and Section 303 is amended to rcad:
"Sec. 303. (a). The Sccretary- of Labor shall be responsible for obtaining the compliance of such applicants with their tmdertakings under this Order. Each administering department and agency is directed to cooperatc with the Secretary of Labor and to furnish the Secretary such information and assistance as the Secretary may require in the performance of the Secretary's functions under this Order.".
"(b) In the event an applicant fails and refuses to comply with the applicant's undertakings pursuant to this Or- der, the Secretary of Labor may, after consulting with the administcring department or agency, take any or all of the following acticros: (1) direct any administering department or agency to cancel, terminate, or suspend in whole or in part the agreemcnt, contract or other arrangement with such applicant with respect to which the fail- ure or refusal occurred; (2) direct any adniinistering department or agency to refrain from extending any further assistance to the applicant under the program with respect to which the failure or refu.cal occurrcd nnGl satisfact- ory assurance of future compliance has been received by the Secretary of Labor from such applicant; and (3) refer the case to the Department of Justice or the Equal Employment Opportuniry Connnission for appropriate law enforcement or other proceedings.".
"(c) ln no case shall action bc taken with respect to an appficant pursuant to clause (1) or (2) of subsection (b) witltout notice and opportunity for hearing.".
1-214. Section 401 of Executive Order No. 11246, as amended, is amended to read:
"Sec. 401. The Secretary of Labor may delegate to any officer, agency, or employee in the Executive branch of the Govemment, any function or duty of the Secretary under Parts II and III of this Order.".
1-3. General Provisions.
1-301. The transfers or reassignments provided by § 1-1 of this Order shall take effect at such time or times as the Director of the Office of Management and Budget shall determine. The Director shall ensurc that all such transfers or reassignments talce effect within 60 days.
1-302. The conforming amendments provided by Section 1-2 of this Order shall take effect on October 8, 1978; except that, with respect to those agencies identified in Section 1-101. of this Order, the conforming amendments shall be effective on the effcctive date of the transfer or reassignment of functions as specified pursuant to Sec- tion 1-301 of this Order.
EXECUTIVE ORDER NO. 12135
Ex. Ord. No. 12135, May 9, 1979, 44 F R. 27639, formcrly set out as a note under this section, which estab- lished the President's Advisory Committee for Women, was revoked by Ex. Ord. No. 12336, Dec. 21, 1981, 46 P.R. 62239, set out as a note under this section.
EXECUTTVE ORDER NO. 12336
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men from receiving equal treatment from federal activities, it is hereby ordered as follows:
Section 1. Establishment. (a) There is established the Taslc Force on Legal Equity for Wotnen.
(b) The Task Force membei's shall be appointed by the President from among nominees by the heads of the fol- lowing Executive agencies, each of which shall have one representative on the Task force.
(1) Department of State.
(2) Department of The Treasury.
(3) Department of Defense.
(4) Departtnc-nt of Justice.
(5) Department of The intetior.
(6) Department of Agriculture.
(7) Department of Commerce.
(8) Department of Labor.
(9) Department of Health and Human Services.
(10) Department of Housing and Urban Dcvelopment.
(11) Department of Transportation.
(12) Department of Energy.
(13) Department of Education.
(14) Agency for International Development.
(15) Veterans Administration.
(16) Office of Management and Budgct.
(17) Intemational Communication Agency.
(18) Office of Personnel Management.
(19) Environmental Protection Agency.
(20) ACTION.
(21) Small Business Adtninistration.
(c) The President shall designate one of the members to chair the Task Force. Other agencies may be invited to participate in the functions of the Task Force.
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Sec. 2, Funetinns. (a) The members of the Task Force shall be responsible for coordinating and facilitating in their resnecdve agencies. under thc direction of the head of their agency, the implententation of changes ordered by the President in sox-discriminatory Federal regulations, policies, and practices.
(b) The Task Force shall periodically report to the President on the progress made throughout the Government in impleinenting the President's directives.
(c) The Attomey General shall complete the review of Federal laws, regulations, policies, and pmctices which contain language that unjustifiably differentiates, or which effectively discriniinates, on the basis of sex. The At- torney General or his designee shall, on a quarteriy basis, report his findings to the Presidcnt through the Cabinet Council on Legal Poiicy.
Sec. 3. Administration. (a) The head of each Executive agency shall, to the extent permitted by law, provide the Task Force with such information and advice as the Task Force may identify as being useful to fulfill its functions.
(b) The agency with its representative chairing the Task Force shall, to the cxtont permitted by law, provide the Task Force with such administrative support as may be necessary for the effective perfotmancc of its functions.
(c) The head of each agency represented on the Tasl: Force shall, to the extent permitted by law, furnish its rep- resentative such administrative support as is necessary and appropriate.
Sec. 4. General Provisions. (a) Section 1-101(h) of Executivc Order No. ; 2258, as amended [formerly set out as a note in Appendix 2 to Title 5. Government Organization a¢d Employees], is revoked.
(b) Executive Order No. 12135 [fonnerly set out as a note under this section] is revoked.
(c) Section 6 of Execuiive Order No. 12050, as amended [formerly set out as a note under this section], is re- voked.
EXECUTIVE ORDER NO. 13171
Section 1. PoliLy. It is the policv of the cxccutive branch to recruit qualified individuals from appropriate sources in an effort to achicve a workforce drawn from all segments nf society. Pursuant to this policy, this Ad- ministration notes that Hispanics remain underrepresented in the Federal workforce: thcy make up only 6.4 per- cent of the Federal civilian workforce, roughly half of their total representation in the civilian labor force. This Executive Order, therefore, affitms ongoing policies and recommends additional policies to eliminate the under- presentation of Hispanics in the Federai workforce. I Sec. 2. Responsibiltities of Executive Departments and Agencies. The head of each executive department and agency (agency) shall establish and maintain a program for therecruitment atid career devclopmeat of Hispanics in Federal employment. In its program, each agency shall:
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(a) provide a plan for recruiting Hispanics that creates a fully diversc workforce for the agency in the 21st cen- tury;
(b) assess and eliminate any systemic barriers to the effective recwitment and consideration of Hispanics, in- cluding but not limited to:
(1) broadening the area of consideration to include applicants from all appropriate sources;
(2) ensuring that seiection factors are appropriate and achieve the broadest consideration of applicants and do not impose barriers to selection based on nonmerit factors; and
(3) considering the appointment of Hispanic Federal executives to rating, seleccion, performanec review. and ex- ecutive resources panels and boards;
(c) improve outreach efforts to include organizations outside the Federal Government in order to incrcasc the number of Hispanic candidatcs in the selection pool for the Senior Executive Service;
(d) prontote participation of Hispanic employees in management, leadership, and career development programs;
(e) ensure that performance plans for scnior executives, managers, and supervisors include specific language re- lated to significant accomplishments on diversity recruitment and career development and that accountability is predicated on those plans;
(1) establislt appropriate agency advisory councils that include Hispanic Employment Program Managers;
(g) implement the goals of the Government-wide Hispanic Etnploytnent Initiatives issued by the Officc of Per- sonnel Management (OPM) in September 1997 (Nine-Point Plan), and the Report to the President's Management Council on Hispanic Employment in the Federal Government of March 1999;
(h) ensure that managers and supervisors receive periodic training in diversity management in order to carry out their responsibilities to maintain a diverse workforce; and
(i) reflect a continuing priority for eliminating Hispanic undcrrcpresentation in the Federal workforce and incor- porate actions under this order as strategies for achieving workforce diversity goals in the agency's Guvernment Performance and Results Act (GPRA) Annual Perfotmance Plan.
Sec. 3. Cooperation. All efforts taken by heads of agencies under sections 1 and 2 of this order shall, as appro- priate, further partnerships and cooaemtion among Federal, public, and private sector employers, and appropri- ate Hispanic organizations whenever such parmershins and cooperation are possible and would nromote the Fed- eral employment of qualified individuals. In developing the lono term comprehensive strategies required by sec- tion 2 of this order, agencies shall, as appropriate, consult with and seek information and advice from experts in the areas of special targeted recruitment and diversity in employment.
Sec. 4. Responsibilities of the Office of Persionnel Management. The Office of Personnel Management is re- quired by law and regulations to undertake a Government-wide minority recruitment effon. Pursuant to that on- going effort and in implententation of this order, the.Director of OPM shall:
(a) provide Fedeeal human resources tnanagemcnt policy guidance to address Hispanic underrepresentation whcre it occurs;
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(b) take the lead in promoting diversity to executive agencies for such actions as deemed appropriate to promote equal employment,.opportunity;
(c) within 180 days from the date of this order, prescribe such regulations as may be necessary to carry ont the purposes of this order;
(d) within 60 days from the date of this order, establish an Interaecncy Task Force, chaired by the Director and composed of agency officials at the Deputy Secretary level, or the equivalent. This Task Force shall meet semi- annually to:
(1) review best practices in strategic human resourccs management planning, including alignment with agency GPRA plans;
(2) assess overall executive branch progress in complying with the requirements of this order;
(3) provide advice on ways to increase Hispanic community involvement: and
(4) recommend any further actions, as appropriate, in eliminating the underrepresentation of Hispanics in the Federal workforce where it occurs; and
(e) issue an annual report with findings and recommendations to the President on the progress made by agencies on matters related to this order. The first annual report shall be issued no later than 1 ycar fiom the date of this order.
Sec. 5. Judicial Review. This order is intended only to iniprove the internal management of the executive branch. It does not create any right or benefit, substantive or procedural, enforceable in law or equity except as may be identified in existing laws and regulations, by a party against the United States, its agencies, its officers or employees, or any other person.
WILLIAM J. CLINTON
Current through P.L. 110-80 approved 08-13-07
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END OF DOCUMENT
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APPELLEE APPX 034 PAGE'S OHIO REVTSED CODE ANNOTATED Copy:right (c) 2006 by :+fatthew Bender & Company, Inc a member of the LexisNexis Group All rights reserved.
* CURRENT THROUGH LEGISLATION PASSED BY THE 126TH OHIO GENERAI. ASSEMBLY * AND FILED WITH THE SECRETARY OF STATE THROUGH FILE 87, 03/31/06 * * ANNOTATIONS CURREN'T THROUGH JANUARY 1, 2006 '
TITLE 41. LABOR AND INDUSTRY CHAPTER 4112. CIVIL RIGHTS COMMISSION
GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION
ORCAnn.4112.01 (2006)
§ 4112.01. Definitions
(A) As used in this chapter: (1) "Person" includes one or more individuals, partnerships, associations, organizations, corporations, legal repre- sentatives, trustees, trustees in bankruptcy, receivers, and other oreanized groups of persons. "Person" also includes, but is not limited to, any owner, lessor, assignor, builder, manager, broker, salesperson, appraiser, agent, employee, lending institution, and the state and all political subdivisions, authorities, agencies, boards, and commissions of the state. (2) "Employer" includes the state, any political subdivision of the state, any person employing four or more per- sons within the state, and any person acnng iffire"cffy tir ind-irectlyin theimeresroI-amemployer. (3) "Emoloyee" means an individual employed by any employer but does not inciude any individual employed in the domestic service of any person. (4) "Labor organization" includes any organization that exists, in whole or in part, for the purpose of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or other mutual aid or protection in relation to employment. (5) "Employment agency" includes any person regularly undertaking, with or without compensation, to procure opportunities to work or tn procure, recruit, refer, or piace employees. (6) "Commission" means the Ohio civil rights commission created by section 4112.03 oi the Revised Code. (7) "Discriminate" includes segregate or separate. (8) "Unlawful discriminatory practice" means any act prohibited by secrinn. 4112.02, 4112.021 (4112.02.11, or 4112.022 j4112.02 2J of the Revised Code. (9) "Place of public accommodation" means any inn, restaurant, eating house, barbershop, public conveyance by air, land, or water, theater, store, other place for the sale of inerehandise, or any other place of public accommodation or amusement of which the accomImodations, advantages, facilities, or privileges are available to the public. (10) "Housing accommddations' includes any building or structure, or portion of a building or structure, that is used or occupied or is intended, arranged, or designed tn be used or occupied as the home residence, dwelling, dwellikg unit, or sleepingplace of one or.more.individuals, groups, or families whether or not living independently of each other; and any vacant land offered for sale or lease. "Housing accommodations" also includes any housing accommodauons held or offered for sale or rent by a real estate broker, salesperson, or agent, by any other person pursuant to authoriza- tion of the owner, by the owater, or bv theowner's legal representative.
APPELLEE APPX 035 _Oa^-e 2 ORC Ann. 4112.01
(11) "Restrictive covenant" means any specification limiting the transfer, rental, lease, or other use of any housing accommadations because of race, color, religion, sex, familial status, national origin, disability, or ancestry, or any lirni- tation based upon affiliation with or approval by any person, directly or indirectly, employing race. color, reiision, sex. familial statns, national origin, disability, or ancestry as a condition of affiliation or approval.
(12) "Burial lot" means any lot for the burial ol' deceased persons within any public burial ground or cemetery, including, but not limited to, cemeteries owned and operated by municipal corporations, townships, or companies or associabons incorporated for cemetery purposes. (U) "Disability" means a phvsical or mental impairment that substantially liniits one or more major life activities, including the functlons of caring for one's self, nerforming manual tasks, walking, seeing. hearing, spealdng, breatiilng, learning, and working; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment. (14) Except as otherwise provided in sectior 4112.021 14112.02.11 of the Revised Code, "age" means at least forty years old. (15) "Familial status" means either of the following: (a) One or more individuals who are under eighteen years of age and who are domiciled with a parent or guard- ian having legal custody of'the individual or domiciled, with the written permission of [he narent or guardian having legal custody, with a designee of the parent or guardian; (b) Any person who is pregnant or in the process of securing legal custody of any individual who is under eighteen years of age. (16) (a) Except as provided in division (A)(16)(b) of this section, "physical or mental impairment" includes any of the following: (i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs: respiratory, including speech or- gans; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; sidn; and endocrine; (ii) Anv mental or psychological disorder, including, but not limited to. mental retardation, organic brain syn- drome, emotional or mental illness, and specific learning disabilities; (iii) Diseases and conditions, including, but not limited to, orthopedic, visual, speech, and hearing impair- ments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis. cancer, heart disease, diabetes, human inununodeficiency virus infection, mental retardation, emotional illness, drug addiction, and alcoholism. (b) "Physical or mental impairment" does not include any of the following: (i) Homosexuality and bisexuality; (ii) Transvesdsm, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not result- ing from physical impairments, or other sexual behavior disorders; (iii) Compulsive gambling, kleptomania, or pyromania; (iv) Psychoactive substance use disorders resulting from current illegal use of a controlled substance. (17) "Dwelling unit" means a single unit of residence for a fanuly of one or more persons, (18) "Common use areas" means rooms, spaces, or elements inside or outside a building that are made avaiiable for the use of residents of the building or their guests, and inciudes, but is not Iimited to, hallways, lounges, loboies, laundry rooms, refuse rooms, mail rooms, recreational areas, andI passageways among and between buildings. (19) "PubHe use areas" means interior or exterior rooms dr spaces of a privately or publicly owned buiiding that are made available to the general public. (20) "Controlled substance" has the same meaning as in secrior. 3719.01 of the Revised Code. (21) "Disabled tenant" means a tenant or prospective tenant who is a person with a disability.
APPELLEE APPX 036 Page 3 ORC Ann. 4112.01
(B) For the purposes of divisions (A) to (F) of section 4112.02 of the Revised Code, the tcrms "because of sex" and "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, any illness arising out of and occurring during the course of a pregnancy, childbirth, or related medical condidons. Women affected by prea nancy, childbirth, or related medical conditions shall be treated the same for all employment-reiated purposes, including receipt of benefits under frimge benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in division (B) of section 4111.17 of tlze Revised Code shall be interpreted to permit otherwise. This division shall not be construed to require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus werecarried to term or except where medical comolica- tions have arisen from the abortion, provided that nothing in this division precludes an employer from providing abor- tion benefits or otherwise affects bargaining agreements in regard to abortion.
HISTORY: 128 v 12 (Eff 7-29-59); 129 v 582 (860) (Eff 1-10-61); 129 v 1694 (Eff 10-24-61); 131 v 980 (Eff 10-30- 65); 133 v H 47 (Eff 10-24-69); 133 v H 432 (Eff 11-12-69); 135 v H 610 (Eff 12-19-73); 136 v S 162 (Eff 7-23-76); 138 v H 230 (Eff 11-13-79); 138 v H 19 (Eff 1-10-80); 143 v H 314 (Eff 5-31-90); 144 v H 321 (Eff 6-30-92'); 148 v H 264. Eff 3-17-2000.
APPELLEE APPX037 PAGE'S OHIO REVISED CODE ANNOTATED Conyright (c) 2006 by Matthew Bender & Company,Inc a member of the LexisNexis Group Al1 rights reserved.
CURRENT THROUGH LEGISLATION PASSED BY THE 126TH OHIO GENERAL ASSEMBLY °k AND FII,E.D WITH THE SECRETARY OF STATE THROUGH FILE 87, 03/31/06 "' * ANNOTATIONS CURRENT THROUGH IANUARY 1, 2006 *
CON'STITUTION OF THE STATE OF OHIO ARTICLE XVIII. MUNICIPAL CORPORATIONS
GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION
Oh. Const. Art. XVIII, § 7 (2006)
§ 7. Homeruie
Any municipality may frame and adopt or amend a charter for its government and may, suoject to the provisions of sectlon 3 of this arcicle, exercise thereunder all powers of local self-government.
Ii-t,STORY: (Adopted September 3, 1912.)
APPELLEE APPX 038 Page 1
LEXSEE 2006 OHIO APP. LEXIS 3006
VICKIE CARRICO, et al., Plaintiff-Appellee/Cross-Appellee -vs- DRAKE CONSTRUCTION, et al., Defendant-Appellant/Cross-Appellee
Case No. 2005 CA 00201
COURT OF APPEALS OF OHIO, FIFTH APPELLATE DISTRICT, STARK COUNTY
2006 Ohio 3138; 2006 Ohio App. LEXIS 3006
June 19, 2006, Date of Judgment Entry
PRIOR HISTORY: [**1] CHARACTER OF ["P2] On August 3, 2001, SJD signed a PROCEEDING: Civil Appeal from the Court of subwntractor agreement, with Drake, for the renovation Conunon Pleas, Case No. 2004 CV 00423. of the National First Ladies' Librerv located in Canton. Drakc served as the general contractor on the project. DISPOSITION: Affirmed. Patricic Sauers was Drake's field superintcndont and was responsible for overseeing the project and coordinating all aspects [**2] of the constructinn. COUNSEL: For PlaintifF Appellee!Cross-Appellee: GARY HINIIvIEL, Akron, OH. [*P3] SJD served as a subcontractor. Pursuant to the terms of the subcontractor agreemenc Dralce paid SJD For Defendant-AppellanbCross-Appellee: DAVID G. $140,975.00 to perform various demolition services at the UTLEY, DAVIS & YOUNG, Akron, OH, AND libmry, wbicb were completed by March 15, 2002. STEPHEN J. CHUPARKOFF, Akron, Ohio. Several months after SJD completed its work under the subwntractor agreement, Drake asked SJD if it could For Defendant-Appellcc/Cross-Appellant: ROBERT L. borrow an SJD employee to assist with cleanup from the TUCK.ER, RANIC G. MAZGAJ, Akron, Ohio. construction. Drake needed to borrow an employee to do the cleanup work because it was conttactually required to JUDGES: Hon. John W. Wise, P. J., Hon. William B. use a union employee to do the worlc and it had no Hoffnia.n, J., Hon. .iulieA. Edwards, J. By: Wise, P. J. contact with the union hall. SJD agrccd to loan one of its Edwards, J., cunc.ws. Hoffman, J., concurs separately. employees, Alvin Newman, to Drake for that purpose. SJD received compensation for this servicc. OPINJON BY: John W. Wise [*P4] Another subcontractor on the library prqject OPINION was Frank Novak and Sons Company. On July 22, 2002, Randall Carrico, a Novak employee, sustained a fatal injury when he was stmek in the head by an object whilc Wise, P. J. he was in or near a trash dumpster situated outside the liorary. As a result of this fatal accident, in Fobruary [*Pl] APpeliandCross-Appellee Drake 2004, Appellant/Cross-Appellee Vicki Carrico Construction ("Drake") appeals the decision of the Stark ("Appellant Carrico") filed a complaint against Appellees County Court of Comtnon Pleas that grdnted summary Drakc. SJD and several other parties that were [**3] judgnient in favor of Appellee/Cross-Appellant SJD subsequently dismissed frotn the casc. Constmction Contpany ("SJD"). The following facts give risc to this appeal. [*P5] After the completion of discovery, SJD fited a motion for summary judgment. In its motion, SJD
APPELLEE APPX 039 Paee 2 2006 Ohio 3138, "P5; 2006 Ohio App. LEXIS 3006, **3
argued that its only employee on the jobsite,, on the dav of [*Plij "II. THE TRIAL COURT ERRED iN the fatal injury, was Alvin Newman, who was a "loaned GRANTING ['•5] SUMMARY JUDGMENT TO SJD servanl" to Drake. Appellee Carrico filed a brief in COhTSTRUCTION AS A QUESTION OF FACT support of SJD's motion for sumnary judgment. On IiXISTED CONCERNING WI-IETHER ALVIN January 12, 2005, the trial court conducted a hearing on NEWMAN WAS AN ENiPLOYEE OF SJD OR DRAICE S.ID's motion. At this hearing, counsel for S.IDand CONSTRUCTION. Appellee Carrico argued that Drake and its field superintendent had exclusive control over Alvin Newman [*P12] "III. THE TRIAL COURT ERRED IN on the day of the accident. FINDING THAT ALVIN NEWMAN WAS THE LOANED SERVANT OF DRAKE CONSTRUCTION [*P6] At the conclusion of the hearing, the trial AS A GENUINE ISSUE OF FACT EXISTED court granted summary judgment to SJD and stated as CONCERNING WHETHER A DUAL AGENCY follows: RELATIONSHIP EXISTED INVOLVINCr SJD CONSTRUCTION AND DRAKE CONSTRUCTION." [*P71 "It's unusual for the Court to rule from the bench in these types of situations; however, the Court, as Cross-Appeal the Court indicated at the beginning of the oral arguments, had read the briefs and memoranda filed [*PI3] "I. THE TRIAL COURT ERRED IN THE relative to these motions add found that they were very (SIC)SIGNING THE JULY 27, 2005 JUDGMENT thorough in their presentations and that based upon the ENTRY BECAUSE: evidence in this particular case there is no genuine issue [*P]4] "A) THE JULY 27 JUDGMENT ENTRY oi material fact. The court finds as a marter of law that Mr. Newman was in fact a loaned servant [**4] of IS INCONSISTENT WITH THE TRIAL COURT'S EARLIER GRANT OF SUMMARY JUDGMENT TO Drake Corporation - let me makc srue I - I'm sorry, it's Drake Construction Company, and therefore, this Court is SJD CONSTRUCTION CO.; going to sustain both the motion of SID Constmction [*P15] "B) THE JULY 27 JUDGMENT ENTRY IS Company and the tnotion of the Plaintiff Vickie Carrico, COLLUSIVE BECAUSE, DESPITE THE individually and as executrix of the cstate of Randall W. STATEMENT IN THE JULY 27 JUDGMENT ENTRY Carrico, deceased and Vickie Carrico, individually." Tr. THAT A BENCH TRIAL' OCCURRED, THERE IS NO Hmg, Jan. 12, 2005, at 47-48. TRANSCRIPT OF ANY SUCH TRIAL AND THE COURT'S OWN RECORDS SHOW THAT THE [*PS] On January 19, 2005, the trial court filed a written . judgment entry granting S.ID's motion for REMAINRNG CLAIMS OF THE REMAINING PARTIES WERE SETTLED; AND summaty judgment. The trial court filed a mmc pro tune entry on July 18, 2005, adding Civ.R. 54(B) language. [*PI61 "C) SJD CONSTRUCTION CO. CANNOT Sometinie prior to Juiy 25, 2005, the remaining parties to CONSTITUTIONALLY BE BOUND BY ANY the case settled this tnatter. Subsequently, on July 27, FINDING OF FACT IN THE COLLUSIVE JULY 27 2005, the trial court signed a judgment entry containing JUDGMENT ENTRY. various findings of fact. [*PI7] "2. THE TRIAL COURT ERRED IN ['P9] Thereafter, Drake fled a notice of appeal and PURPORTING TO HOLD A'TRL4L BY BRIEF' TO SJD cross-appealcd. The parties set forth the following DECIDE DISPUTED ISSUES OF [**6] FACT." assigmments of error for our consideration: Summar,v Judgment Standard Dircct Appeal [*P 18] Suminary judgment proceedines nresent the [*P10] "I. THE TRIAL COURT ERRED IN appellate court with the unique oppottuniry- of reviewing GRANTING SUMMARY JU'DGMENT TO SJD thc evidence in the same manner as the trial court. CONSTRUCTION AS. ALVIN NERTIvIAN WAS AN .Srniddy v. The fYeddiiig Parry, Inc. (7987), 30 Ohio St.3d EMPLOYEE OF SID CONSTRUCTION, AS A 35, 36, 30 Ohio B. 78, 506.V.E.Zd 212. As such, we mu.st MATTER OF LAW. refer to Civ.R. 56 which ptuvides, in pertinent part:
APPELLEE APPX 040 Page 3 2006 Ohio 3138. *PI8; 2006 Ohio App. LEXIS 3006. **6
[*P19] "* * * Smnmary judgment shall be rendered explained that: forthwith if the picadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts [*P24] "In Iialkias• v. WilkojfCompan7- (7943), 141 of evidence in thc pending case and written stipulations Ohio St. 139, 47 NE.2d 199, [overruled on other grounds of fact, if any, timely filed in the aetion, show that there Helmick v. Republic-Franklin Ins. Co. (1988), 39 Ohio is no genuine issuc as to any material fact and that the St.3d 71, 529 N.E.2d 4641 the Ohio Supreme Court set moving party is entitled to judgrrrent as a matter of law. * forth the uest for courts to use in determining who is the * * A sumniary judgtmnt shall not be rendered unless it employer of a person, when an employee in the general appears from such evidence or stipulation and only employment of one person, has been loaned for the time therefroni, that reasonable minds can come to but one being to another for a particular task. The test is whethcr conclusion and that conclusion is adverse to the party whilc pcrfomning thc task, the employee continues to be against whom the motion for summaryjudgtnent is made, tiable to the direction and control of the general such party being entitled to have the cvidence or employer, or becomes subject ro that of the person to stipulation constmed most strongly in the party's favor. * whom he is lent. Thus, in Ragone v. Vitale & Beltomi. * *.^ Jr.. Inc. (1975), 42 Ohio S1.2d 161, 327 N.E.2d 645, the Ohio Supreme Court held the operator of a pumping [*P20] Pursuant to the above rule, a trial court machine suppiying concrete at a construction site, is not a [**7] may not enter sumtnary judgment if it appears a loaned servant of the company receiving the coneretc. material fact is genuinely disputed. The party moving for The court noted the pumper driver [**9] was entrusted summary judgment bears the initial burden of informing with a valuable piece of machinery, and could not Icave the trial court of the basis for its motion and identifying the machine while it was in operation. The contractor those portions of the record that demonstrate the absence accepting the concrete gave no directions to the driver on of a genuine issue of material fact. The moving party may how to operate the pumper. not make a conclu,sory assertion that the non-moving party has no evidence to prove its case. The moving party [*P25] "Likewise, in Hamlin v. The McAlpin must spe<.^ificallv point to some evidence which Company (1964), 175 Ohio St. 517, 196 N.E.2d 781, the demonstrates the non-moving party cannot support its driver of a dclivcry truck was deemed not a loaned claim. If the moving party satisfies this requirement, the servant. In Hamlin, the driver parked his truck at the rcar burden shifts to the non-moving party to set fortb specific entranu: to the store and part of his freight was unloaded. facts demonstrating there is a genuine issue of material Someone, either an employee of the store or of the fact for trial. Vahila v. Flall, 77 Ohio St.3d 421, 429, 1997 contractor who was remodeling the store, told the tmck Olrio 259, 674 N.E.2d 1164, citing Dresher v Burt, driver to take his tmck around the front entrancc of the (1996), 75 Ohio St.3d 280, 1996 Ohio 107, 662 N.E.2d store to unload the remaining part of the freight. While 264. doing so, an emplovee of the contractor was injured. The court found as a matter of law the driver in the case was [*P21 ] It is based upon this srandard that we review not a loaned servanr because the entire sitttation wa.s Drake's assignments of error. within the scope of his etnployment." Haldemun at P20, P21.
[*P26] Drake refers to the following deposition (*P22] We will address Drako's Fitst and Second testimony in support of its argumuent that Newman Assignments of Error simultaneously as both concetn the remained an employee of STi) and was not a loaned issue of whetteer Alvin Newman was an employce of SJD servant to Drake. First, Newmtm testified that he knew or Drake at the cime of the accident. Drake maintains the regular clean-up routine and he did not need Sauers Newman was an emplovee [**8] of SJD and thcrefore, [**10] nor any other Drake employcc to tell hini how to thc trial court crrcd when it c nciuded Newtnan was a perfonn his work. Depo. Alvin Newman at 59. Second, loaned. servant to Drake. We dis^ercc. the deposition testimony of Saucrs. Joscph Duale, an owner of SJD, and Newman all indicate that Drake did ['"P23] In Naldeman v. Cross Enterprises, Inc., not exercise direct control over the manner or means of Deiaware App. No. 04-CAE-02011, 2004 Ohio 4997, this how Newman performed the particular clean-up work Court discu.ssed the loaned servant doctrine. We
APPELLEE APPX 041 Page 4 2006 Ohio 3138, *P26; 2006 Ohio App. LEXIS 3006, **10
that caused Carrico's fatal injury. Rather, Drake maintains determination of who ha.s the power to control and direct the deposition testimony establishes that it only instmcted at the exact time of the act in ques[ion. In other word.s, in Newinan which floors required clean up and that deternvning whether in respect of a particuiar act, a Newman himself controlled the means and manner of servant. in the general employtnent of one pcrson, who pcrfbrming it. has been loaned for the time being to another is the servant of the original employer or the pcrson to whom [*P27] Third, Joseph Dualc and Alvin Newman he has been loaned, the test is whether in the particular both testified that Dmke and Pat Sauers lacked the service which he is engaged to pcrform, the servant authority to remove Newman from the construction site. continues liable to the direction and control of his eeneml Depo. Joseph Duale at 71; Depo. Alvin Newman at 70. employer or bcconies subjcxt to that of the person to Fourth, both Duale and Newman testificd that if a whom be is lent, - - whether the latter is in control as problem developed regarding Newman's work, either proprietor so that he can at any time stop or continue the Sattcrs or Drake would havc had to contact Duale or SJD work and determine the way in which it is to be done, to retnove Newman from the construction site. Depo. with refcrence not only to the result reached but to the Josenh Dualc at 71; Depo. Alvin Newman at 70. Finally, method of reaching it.' " Halkias• at 1S1-I52. Newman testified that Sauers and Drake lacked the authority to replacc Newman with a different laborer. [*P32] Here. Alvin Newman was loaned to Drake Depo. Alvin Newman at 70. to perfonu clean-up work. Deposition testimony establishes that the field sunervisor, Pat Sauers, [**13] [*P28] Based upon the above deposition testimony, directed Newman as to the floors that nccdcd clean-up [**11] Drakc argucs it did not have control over the work. Further, there was a specific manner in whicb the detail and manner by which Newanan performed his clean-up was m be performed. According to Joseph duties. Instead, Drakc argues it merely instmcted Duale, smaller debris was placed down a discharge chuu Newman and the other laborers where in the library to that existed on the outside of the building. The discharge perfumi the clcan-up work. chute had an opening on each floor and extended vertically down the outside of the building to a dumpster [°P291 SJD responds that the facts of the case sub located in the alley behind the building. Debris thar was judice meet all of the elements of the loaned servant too big to place down the chute were to be manually doctrine. Specificallv, SJD ioaned Newman, to Drake, to carried down to the dumpster. Depo. Joseph Duale at perform work under Drake's field superintendent, Patrick 19-20. Sauers. Sauers alone was responsible for giving directions to Alvin Newman. Depo. Patrick Sauers at [*P33] Thus, although Newman was an experienced 164, 169. Tlius, SJD concludes that because Alvin laborer and had previously worked at this construction Newman was under Drake's exclusive control, Newmatt site, the record establishes that Drako direeted the manner was a loaned servant of Drake and thercfore, the liability in which debris was tn be removed from the building. for the acts of Newmtan is that of Drake. Because Drake instructed Newman conccming the specific floors to be cleaned and the manner in which the [*P30] In the Halkiac case, the Coun cited 35 debris was to bo removed, we find Newtnan was a loaned American Jurisprudence, 970, Section 541, which servant to Drake at the tinte of the fatal injury to Carrico. pravides as follows: ['P34] Accordingly, tlte triai court did not en, when [*P3I] "'Indeed, as a general proposition, if one it granted SJD's motion for summary judgment. pcrson lends his servant to another for a panicular employment, the servant, for anything done in that [°P35] Dmice's First and Second Assignments of employment, is dealt with as the servant of the one to Error are overruled. whom he has been lent, although he remains the general servant of the person who lent him. An employer is not 6 [**12] liable for injury neglieently caused by a servant if the latter is not at the tin'te in the serviceof theemployer, ['P36] In its [** 14] ThirdAssio mentofError; but in the special service of auotber, although the Drake contends the trial court ened when it granted SJD's question of liability is ultimately dopcndent upon the motion for smmnary judgment becau.se a genuine issue of
APPELLEE APPX 042 Page 5 2006 Ohio 3138, *P36; 2006 Ohio App. LEXIS 3006, **]4
fact exists concerning whether a duai agency raiationsilip Drake Construction by SJD. existed involving SJD and Drake. We disagree. [*P44] "3. The Court further finds that Mr. [*P37] The record indicates that Drake did not taise Carrictrs injurics arosc out of Novak and Son's ongoing this argument before the trial court and is doing so for the [*"16] ooerations performed for Drake Construction. first time on appeal. Such arguments are barred by the doctrine of waiver for failure to raise these arguments [*P45] "4. Costs to the Defendant, Drake befote the trial court. "lt is weli esmblished that a party Construction Coinpany." cannot raise any new issues or legal theories for thc fust ["P461 SJD argues that having been granted tinic on appeal." Dolan v. Dodan. Trunahull App. .\^os. summary judgment, it was no longer a party to the action 2000-T-0154 and 2001-T-0003, 2002 Ohio 2440, at P7, when the trial court filed the judgment entry on July 27, citing Stores Rea11v Co. v. ClcNeland (1975), 41 Oluo 2005. SJD expresses concem that Drake may use the S1.2d 41, 43, 322 NE1d 629. "Litigants tntust not be language, in the July 18, 2005 judgment entry, to force permittcd to hold their arguments in reserve for appeal, SJD to repay Drake for some of the moncy it cxpe-nded in thus evadinethe trial court process." Mark v. iYlellott settiine Carrico's claims. iYff'g. Co., Inc. (1995), 106 Ohia App.3d 571, 589, 666 N.E.2d 631. [*P47] We acknowledge this concem. However, SJD's concem over the potentlal future assertion of res [•P38] Drake's Third Assigmnent of Error is judicata, with respect to the trial court's finding. is not ovemtled. ripe for review because no casc in controversy now Cross-Appeal exists.
I [*P48] For this reason, we dismiss SJD's cross-appeal. ['P39) In its First Assignment of Error on cross-appeal, SJD maintains the trial court erred when it [*P49] For the foregoing reasons. the judgment of signed the July 27, 2005 judgment entry. [**15] SJD the Court of Comnion Pleas, Stark County, Ohio. is specifically challenges the trial court's fmding that it was hereby affrrmed. perfotming ongoing opcrations for Drake at the time of By: Wise, P. J. the accident. SJD argues that it was not a party to the triai court's bench trial and therefore, could not be botmd by Edwards, J., concurs. the trial court's judgment entry that makes this finding. HofTman, J., concurs separatelv. [*P40] The judgment entry at issue in this assignment of error states as follows: HON. JOHN W. WISE
("'P4I )"This matter catne on for bench trial this 18 HON. WILLIAM B. HOFFMAN th day of July 2005. Upon duc consideration based upon the evidence presented, the transcripts filed in this matter, HON. JL'LIE A. EDWARDS the pieadings of the parties, and the arguments of counsel, the Court fmds as follows: JUDGMENT ENTRY
[*P42] "I. The Court finds that the Defendant, For the reasons stated in our accompanying Drake Construction, is liable for the negligent conduct of Memorandum-Ooinion, the judgment of the Court of Alvin Newman dropping the stud out the third floor Common Pleas of Srark Cotmty, Ohio, is afTirn-icd. Costs window and gtriking Randy Carrico in the head. [*•17] assessed to Appellant Drake. I Therefore, enters iudement in favor of Plaintiff and HON. JOHN W. WISP. against Drake in the amount of S1,000,000. HON. WILLIAM B. HOFFMAN [*P43] "2. The Court finds that at the tinic of this accident, there were ongoing opemtions performed for
APPELLEE APPX 043 Page 6 2006 Ohio 3138, °P49; 2006 Ohio App. LEXIS 3006,'*l7
HON. JULIE A. EDWARDS servant. I f'md the key is not necessarilv whether Drake actually directly controlled Newman's regular clean-up CONCUR BY: WILLIAM B. HOFFMAN routine, but whether Drake had the authonty to do so. I believe the evidence establishes Drake had such CONCUR anthonty, but it was unnecessary to exercise it in most respects because Newman's clean-up routine was well known to him. There was little need on rhe part of Drake Hoffman..L, cnncurring to actually direct the means and manner of Newman's job. Thc failure to actually d'uvct andior control all the [•Pil] I concur in the majoritys analvsis and means or manner of Newman's worlc does not preclude a disposition of Drake's direct appeal and SJD's cross finding Nev.•man was a luaned servant. appeal. JUDGE WILLIAM B. HOI'FMAN ["P52] In addition to the reasons set forth by the majority to suppon its conclusion Newman was a loaned
APPELLEE APPX 044 LEXSEE 1994 OHIO APP. LEXIS 1882
City of Whitehall ex rel. John A. Wolfe, Mayor, Petitioner, v. Ohio Civil Rights _Commission, Betty R. Jones, and Ruth A. Javvorsid, Hearing Examiner, Ohio Civil Rights Commission, Respondents.
No. 93APD12-1719 (REGULAR CALENDAR)
COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY
1994 Ohio App. LEXIS 1882
May 3,1994, Rendered
NOTICE: [*]J THE LEXIS PAGINATION OF THIS signed to terminate litigation at an early stage where a DOCUMENT IS SUBJECT TO CHANGE PEiNTDING resolution [*2] of factual disputes is unnccessary. How- RELEASE OF THE FINAL PUBLISHED VERSION. ever, summary judgment must be awarded with caution, resolving all doubts and construing the evidence against DISPOSITION: Writ of prohibition denied. the moving party, and granted only when it appears from the evidentiary material that reasonable minds can reach only an adverse conclusion as to the party opposing the COUNSEL: Dennis 1. Fennessey, City Attorney, and motion. See iVarris v. Ohio Std. Oil Co. (1982), 70 Ohio Timothy S. Rankin, for petitioner. St:2d 1, 433 IVE.2d 615; Rarless v. Wi(lis Day Ware- housing Co. (.1978), 54 Ohio St.2d 64, 375 N.E.2d 46. Lee Fisher, Attorney General, and Joseph D. Rubino, for The burden of establishing that material facts are not in respondent Ohio Civil Rights Commission. dispute and that no genuine issue of material fact exists is on the party moving for summary judgtnent When a Daniel Friend, for respondent Betty R. Jones. motion for summary judgment is made and supported as provided for in Civ.R. 56, an advetse party rnay not rest JUDGES: BOWMAN, J., WHTTESIDE, P.J., and upon the allegations or denials of his pleadings, but must PETREE. L. concur. produce evidence on any issue for which that party bears the burden of producdon at trial. Wing v. Anchor Media. OPINIONBY: BOWMAN Ltd. of Texas (1991), 59 Ohio Sr.3d 108, 570 N E.2d 1095. OPINION: OPLNION The facts in this matter are generally not in dispute and the issue is whether or not petitioner or respondent is ON MOTIONS entitled to judgment as a matter of law. Jones was eni- ployed by the city of Whitehall [*3] as a communica- BOWMAN, J. tions ooerator within the division of fire. In January Petitioner, city of Whitehall, has filed an original ac- 1992, Jones was notified she was to helaid off effective rion in prohibition requesting this court to issue an order February 14, 1992. While the layoff was pending. Jones to prevent respondent, Ohio Civil Rights Commission, was also notified of a disciplinary hearing to be held from proceeding to hear a complaint filed by Betty R. based on an allegation that she was asleep on duty. The Jones, a former Whitehall employee. In response, re- chief of the division of fire recommended that she be spondent filed a motion to dismiss which this court con- discharged. A hearing was held before the Whitehall verted to a motion for summary judPment with notice to Civil Service Commission which upheid the recommen- all pardes as xeouired by Giv.R 56. Likewise,. petitinner. dation to terminate Jones' employment, as well as to af- has filed a motion for summarv judgment. firm the decision that she be among those city employees to be laid off. Jones appealed to the Franklin County Sununary judgment is proper if there are no genuine Court of Common Pleas and the decision of the White- issues of fact and the moving party is entitled to judo ment as a matter of law. It is a procedural device de-
APPELLEE APPX 045 Page 2 1994 Ohio App. LEXIS 1882, '
hall Civil Service Commission was affirmed. No further quasi-judicial powers and, therefore, the first require- appeal was taken in thismatter. ment is met. As ta fhe secondrequirement, petitioner has failed to present any evidence showing it would suffer an In July 1992, Jones filed a complaint with the Ohio injury for which it has no adequate remedy at law. Any Civi] Rights Commission, contending she was laid off adverse [*5] decision of the Ohio Civil Rights Commis- and discharged based on her racc and gender. After in- sion is subject to judicialreview. R.C. 4112.06. The cost vestigating Jones' charge, the commission found there of defending an action before the Ohio Civil Rights was probable cause to believe that Whitehall had en- Commission is simply not the type of injury which gaged in an unlawful discrimina-tory practice, and a would support issuance of a writ of prohibition. R.C. complaint and notice of hearing were issued in June Chapter 4112 clearly authorizes the commission to inves- 1993. The- city filed an answer denying any unlawful tigate claims of discritrtination in employment and R.C. discriminatory practices [*4] and raising as an affirma- 4112.01(A)(2) defines an employer to include any politi- tive defense res judicata and/or collateral estoppel. cal subdivision of the state. A municipal corporation is a Petitioner contends it is entitled to a writ of prohibi- political subdivision of the state and, therefore, the Ohio tion because, as a municipal corporation, it is immune, Civil Rights Commission has jurisdiction to proceed in pursuant to R. C. 2744.02, that res judicata and collateral this matter. Petitioner's claim that resjudicara and collat- estoppel bar the relief sought by Jones and it would suf- eral estoppel bar any further proceeding are defenses to fer an injury, the cost of defending this action, for which be raised in the hearing before the commission and do there is no adequate remedy at law. not affect the commission's iurisdiction to investigate and hear Jones' claim. In order to be entitled to a writ of prohibidon, the petitioner must show: (1) the court or officer against Therefore, for the foregoing reasons, petitioner's mo- whom it is sought must be about to exercise a judicial or tion for summary judgment is overruled, respondent's quasi-judicial power; (2) it must appear that the refusal motion for sununary judgment is sustained, and the re- of the writ would result in an injury for which there is no quested writ of prohibition is denied. All pending mo- adequate remedy; and (3) the exercise of such power tions are overruled given our disposition of respondent's must amount to an unauthorized usurpation of judicial motion for surnmary judgment. power. State ex reL Flower v. Rocker (1977), 52 Ohio Writ of prohibitian denied. St.2d 160, 370 N.E.2d 479. There is no doubt that the Ohio Civil Rights Commission is a body which exercises WHITESIDE. P.L. and [*6] PETREE, J., concur.
APPELLEE APPX 046 LEXSEE 2002 OHIO APP. LEXIS 549
CIVIL SERVICE EMPLOYEES AS, Plaintiff-Appellee vs. CITY OF CLEVELAND, ET AL, Defendants-Appellants
NO. 79593
COURT OF APPEALS OF OIIIO, EIGFiTH APPELLATE DISTRICT, CUYAHOGA COUNTY
2002 Ohio 586; 2002 Ohio App. LEXIS 549
February 14, 2002, Date of Announcement of Decision
PRIOR HISTORY: [*1] CHARACTER OF permitted by law in some cases, many years longer. After PROCEEDING: Civil appeal from Common Pleas Court protracted litigation, the court ordered the city to estab- Case No. 264201. lish testing procedures and create eligibility lists for original appointments and promotions of those workers DISPOSITION: Trial court's judgment was affirrned. who were employed in the civil service system. The city complied witb this order as to orieinal appointments, but balked at establishing testing and eligibility lists for COUNSEL: For plaintiff-appellee: John Swansinger, those workers with temporary appointments who also Esq., RITZLER, COUGHLIN & SWANSINGER, LTD., belonged to collective bargeining units. The practical Cleveland, Ohio, Kevin P. Prendergast, Esq., Westlake, effect of the court's order, at least insofar as the city is Ohio. concerned, is that it would require unionized employees who had been hired as temporary civil service employees For defendant-appellant: Cornell P. Carter, Esq., Law to undergo civil service testing and be placed on eligibil- Director, City of ClevelanrL BY: Jennifer C. Heinert, ity Hsts for hire. This would likely violate the terms of Esq., Assistant Law Director, Cleveland, Ohio, Darryl A. existing collecting bargaining agreements. The question Hines, Esq., GRAVES & HORTON, Cleveland, Ohio, presented in this appeal is whether the term original ap- pointments encompasses temporary appointmems. For Ohio Council8. AFSCME. AFL-CIO and Local 100: The spirit of the classified civil service law, as Kimm A. Massengill, Esq., Associate General Counsel, shown by the basic constitutional provision. is that ap- Ohio Council 8, AFSCME, AFL-CIO and Local 100, pointments "shall be made according to merit and fitness, Worthington, Ohio. to be ascertained, as far as practicable, [*3] by competi- tive examinations. Siate ex rel. Higgins v. George JUDGES: MICNAEL J. CORRIGAN, PRESIDING (1946), 147 Ohio St. 165, 168, 34 Ohio Op. 55, 70 JUDGE. ANNE L. KILBANE, J., and ANN DYKE, J., N.E.2d 370, citing Section 10, Article XV, Ohio Consti- CONCUR tution. This is to effectuate the purpose of securing the maximum of efficiency and integrity in the public ser- OPINIONBY: MICI-IAEL J. CORRIGAN vice; restraining persons occupying positions in the clas- sified service from political activity; preventing dis- OPINION: JOURNAL ENTRY and OPINION crimination for political, refigieus or racial reasons; and MICHAEL J. CORRIGAN, P.J.: guaranteeing permanent tenure to persons in the classi- A temporary civil service employee is anemployee fied serviae. State ez rel. Neffner v. Hu»unel (1943), 142 appointed to a position without firstlhaving undergone Ohio St. 324, 329, 27 Ohio Op. 251, 51 A'.E.2d 900. civil service testing or placement on at:. eligibility list. By The city charter creates two classes of civil service law, workers cannot maintain temporary civil service employees: classified and uneiassified: The unclassified positions for more than ninety days. The city of Cleve- civil service includes all officers elected by the people, land employs a number of temporary civil service work- all directors of departments, the clerk of the city council, ers,, even though many of those workers have, been on the the chief of police, the members of boards or commis- payroll [*21 for considerably longer than the ninety-days sions appointed by the mayor, the mayor's secretary- and
APPELLEE APPX 047 Pa;e 2 2002 Ohio 586; 2002 Ohio App. LEXIS 549, *
one secretary for each director of a department, eight any temporary appointee within ninety (90) days of the executive assistants for the mavor, students. enrolled in a hiring of any temporary employee. The court also or- recognized college or university training program, school dered the cit,v to prepare and adnilnister promotional crossing guards, and members of the auxiliary police examinations for anv non-bargaining unit position in the force. See Cleveland City Charter, [*4] Section 126(1). classified service below the lowest grade which is now or hereinafter occupied by a temporary employee unless it All other employees are considered to be mdmbers is not practicable to do so. Finally, the court ordered the of the classified civil service. The unciassified civil ser- city to prepare and administer open, competitive exami- vice is divided into three classes of workers: the competi- nations for any non-bargaining unit positions unless the tive class, the non-competitive class and the ordinar-v civil service commission makes a specific finding that unskilled labor class. See Cleveland City Charter, Sec- the position requires peculiar and exceptional qualifica- tion 126(2). tions. The court made it clear that questions of fact re- Appointments to civil service jobs are made from mained on whether plaintiffs had standing to represent eligible lists established through competitive testing that employees currently bound to collective bargaining measures a candidate's fitness for a particular job. Id., agreements. The city did not appeal. Section 129. If there is no eligible list for a particular job, The question reserved by the courc whether tempo- a person may be temporarily appointed, without a test, rary positions held by employees bound by collective for no more than ninety days. Id., Section 130. Durmg bargaining agreements, became the next object of dis- that period, the civil service cotnmission is to hold the pute. At the core of this dispute was the defmition of the necessary tests for filling the position permanently. term original appointments. Plaintiffs argued that the When the city seeks to fill a position in the classified term original appointments meant all non-promotional civil service, it appoints one of the three highest ranking appointments [*7] that are subject to pre-hire civil ser- persons on an eligibiiity list. An original appointment is vice testing, and this would preclude the city from enter- probationary in nature, and the appointment is not con- ing into collective bargaining agreements that circum- sidered final unless the appointee has satisfactorily vent pre-hire testing requirements. The city argued that served the probationary period. Id. the term original appointments excludes the term tempo- rary appointments. It mainmined it was able to enter into The civil service commission has established rules collective bargaining agreements that defined terms of for testing that generally require open, competitive tests employment like promotions and temporary appoint- to be given [*5] for all applicants. Non-competitive tests ments to classified civil service positions. may be given if the position requires particular and ex- ceptional qualifications of a scientific, managerial, pro- The court ruled that RC. 4117.08. which states that fessional or educational nature. See Cleveland Civil Ser- original appointments are not appropriate subjects for vice Commission Rule 4.60. collective bargaining, required the city to follow appiica- ble civil service ruies and regulations when maldng This action began when plaintiff Cleveland Civil original appointments in the classified civil service of the Service Commission Employee's Association and three City of Cleveland The court ordered the city to (1) ad- other individuals (we refer to them collectively as plahm- minister open, competitive examinations fbr all original tiff ) brought suit against the city and the civil service appointments in the classified civil service unless the commission alleging that the city made temporary ap- appointments are for the non-competitive class or to the pointments that far exceeded the ninety day time period, unskilled labor class: (2) administer non-competitive had failed to create eligible lists for certain classified examinations for all original appointments into the non- civil service positions, and had improperly promoted competitive classified civil service; and (3) comply with persons who had not been certified by the civil service the city charter for al] original [*8] appointments into commission. the unskilled labor class. Crucial to this appeal, the court During the course of the litieation, the issues fo- stated: cused on temporary appointees who were also members of a collective bargaining unit. The city adaritted that it The term original appointment skall in- had 537 temporary appointees, and seventy-five percent ^lude all appointments made into the clas- of those temporary employees were covered by a collec- 'sified service of the City, including regu- tive bargaining agreement. lar and temporary appointments, but.shall. not include the promotionai appointment In a ruling on cross-motions for sutnmaryjudgment, of a City employee pursuant to procedures the court ordered the city to prepare and administer ex- r.ontained in a collective bargaining aminations for any non-bargaining unit position in the agreement. [*6] classified civil service now, or hereinafter, held by
APPELLEE APPX 048 Page 3 2002 Ohio 586; 2002 Ohio App. LEXIS 549, *
tion by collective bargaining units is of no initial con- cern. As we shali see shortly, there isno.substantive dif- I ference in the requirements for original appointees as The city's first assignment of error complains that opposed to temporary appointees, so R.C. 4117.08(B) plaintiff has no standing to represent city employees would refute any issues relating rto standing for those working under collective bargairting agreements. The . employees covered by collective bargaining agreements. city claims that only the unions representing these work- The first assignment of error is overruled. ers have the standing to enforce the civil service re- II quirements against those workers. The court specifically reserved ruling on this question when addressing the first The second, third and fourth assignments of error set of motions for summary judgment. raise issues relating to the court's definition of the term original appointment. The city argues that the court It is by no means clear that plaintiffs purported to usurped the city's right to define the tenn under its home represent civil service employees working under collec- rule powers and that in any event, material issues of fact tive bargaining agreements. Of the three individually exist concerning the definition of the term. [*1 ]J named plaintiffs in the case, one was a temporary em- ployee who had served beyond the ninety day period The city first claims that its definition of original allowed by law and the other wished to take promotional appointment, as set forth in the rules of the civil service exams for higher level positions held by temporary em- commission, supersedes the trial court's defmition as a ployees (the [*9] third individually named plaintiff was matter of law. The glossary of terms to the Cleveland listed as a city taxpayer, with no allegation that she beld Civil Service Commission Rules states: a civil service position with the city). There are no alle- gations that any of the named plaintiffs are members of REGULAR (OR LEGAL) collective bargaining units, and none of the evidentiary APPOINTMENT): shall be either Origi- materiais suggest this conclusion. nal or Promotional. (A) Original Appointment shall be any But even were we to assume that the court's actions appointment made from an eligible list, directly affect employees who are members of coilective created as a result of either competitive or bargaining units, we fail to see how the city has standing non-competitive entrance examination, or to raise arguments on behalf of those workers- In fact, by registration of the unskilled labor class. the city correctly cites to decisions that say a union is the (B) Promotional Appointment an ap- exclusive bargaining representative for its members. See, pointment shal] be deemed to be promo- e.g., Cleveland Bd of. Edn. v. lntl. Brotherhood of Fire- tional when made from any promotional men & Oilers, Local 701 (1997), 120 Ohio App.3d 63, eligible hst and which involves either ad- 64, 696 iVE.2d 658. Collective bargaining unit members vancement in rank and%or increase in sal- had the ability to intervene in the action, and at least one ary beyond the fixed grade limit for a collective bargaining unit did seek to intervene in the classification or both. (Emphasis sic.) case. It did so more than six years after commencement and just months before plaintiffs filed their motion for The city's argument boils down to this: the charter summary judgment. defines an original appointee as a person who has been employed from an eligible list drawn up after competi- The court denied that motion for intervention, and tive testing; a temporary appointee is one appointed to a the collective bargaining unit did not appeal, ending its position if no eligible list exists; by nature, a temporary (1991), 61 right to complain. See Januzzi v. Hickman appointee will not have taken any competitive testing, so Ohio .St.3d 40, 45, 572 A'.E.2d 641. [' 10] that person could not fall within the [*12] definition of Our result is furtber dictated by R.C. 4117.08(B), an original appointee because an original appointee must, which states: by definition, have taken the competitive tests. When construing the interpreration of a city charter, The conduct and grading of civil service we apply general principles of smtut(ory construction. examinations, the rating of candidates, the Hayslip v. Akron (1984J, 21 Ohio App.3d 165, 21 Ohio establishment of eligible lists from the ex- B. 176, 166. 486 NE.2d 1160. As a matter of law, we aminations, and the original-appointments review mattets of statutory construction de novo. Ritchie from the eligible lists are not appropriate v. Weston, Inc. (2001), 143 Ohio App.3d 176, 179, 757 sub,jects for collective bargaining. N.E.2d 835. citing State v. Wemer (1996), 112 Ohio This means that original appointments are not sub- App.3d 100, 103, 677 ,V.E.2d 1258. We give the lan- ject to collective bargaining agreements, so representa- guage used in the charter its ordinary and common us-
APPELLEE APPX 049 Page 4 2002 Ohio 586; 2002 Ohio App. LEXIS 549, *
age. State es rel. Fattlar v. Boyle (1998), 83 Ohio St.3d temporary appointments valid for only ninety days, so 123. 127, 698 N. E.2d..987,.. citing State_ ex rel. Minor v. that an eligible list can be created. Esc•hen (1995), 74 Ohio St3d 134, 138, 656 A'.E.2d 940. The city's position in this case would leave the civil The city is a home rule municipality with the right to service system open to the kind of [*15] abuse which the regulate the appoinunent of its employees. This home system purports to end. One of the plaintiffs alleged that rule authority gives it the right to enact ordinances that he has been a temporary employee for over twenty-two conflict with state statutes on matters of local self- years. The term temporary denotes an event that is not governance. See State ex rel. Canada v. Phillips (1958), permanent, but short in duration and subject to contin- 168 Ohio Sr. 191, 5 Ohio Op. 2d 481, 151 N.E.2d 722. gencies. Dated in terms of the average person's work-life, But we cannot accept the ciri•'s argument that it should twenty-two years cannot remotely be considered tempo- [*13] have sole authority under its home ruie powers to rary. interpret its civil service definitions. The city's position would eliminate any requirement The precedent for matters of charter interpretation that it adhere to its own civil service rules. If it decides it make clear that we review the city's definitions as a mat- does not wish to test the applicant, it need only appoint ter of law, according to.the normal rules of statutory con- that applicant on a temporary basis. This would let the stmction. The city has every right to adopt its oan civil city pick and choose which positions it opens up to com- service defmitions, but the interpretation of those defini- petitive testing, allowing it to circumvent testing as it tions is left to the courts. chooses. This result would blatantly flaunt the competi- tive testing requirements of the charter and do violence The city's argument is that temporary appointments to the spirit of the civil service system. do not fall within the gambit of original appointments, and therefore those persons who have been hired on a We also reject the city's argument that temporary temporary basis are not required to undergo civil service employees cannot be tested because this would violate testing. It claims the phrase original appointments is un- the terms of collective bargaining agreements covering defined by the city charter so it is within the city's discre- those workers. The collective bargaining units are the tion to determine its meaning. representatives of affected workers, and only one of those unions tried to intervene in the matter. Moreover, lf we understand the city's argument correctlv, it the impact the court's [*16] ruling has on the city's col- makes no distinction between initial hires, whom it lective bargaining agreements was a matter the city agrees should be tested no ifs, and's or but's, and persons should have foreseen when it decided to violate its own who have been hired and are serving in positions, but charter by refusing to establish eligible lists for competi- were not tested at the time of hire. See Appellant's Reply tive hiring. Brief at 2. The court correctly held that the city cbarter includes If as the city appears to agree, initial hires must be temporary appointments as a subset within the term tested, we can see no way of accepting the city's argu- original appointments. Under the city charter, all new ment that persons who currently [* 14] hold positions but hires are considered original regardless whether those have not been tested are not originally hired under the persons were hired from eligible lists or on a temporary terms of the city charter. This argument not onty contra- basis because no eligible list existed. If a person is tem- dicts the city's charter, but violates the spirit of the civil porarilv appointed to a civil service position, that person service system. Governments established the civil service may only serve in the position until the temporary term system in order to ensure that government jobs were expires. Once that term has expired, the position must be awarded on the basis of merit, not politics, favoritism or filled by a person chosen from a lesitimate eligible list patronage. S1ate ex rel. Sigafl v. Aetna (1976), 45 Ohio complied in accordance with the civil. service rules. The St.2d 308, 314, 74 Ohio Op. 2d 471, 345 N.E.2d 61. second, thhd and fourth assignments of error are over- We fail to see how original appointments must be ruled. made within the spirit of the civif service system, but that Judgment affirmed. temporary appointments are not subject to the same re- quirements. A temporary appointment is made only be- It is ordered that appellee recover of appellants its cause the city could not compty with the civil require- costs herein taxed. ments-atthe time ofhire: In fact;thecity-charterdefines The courtt fmds there were reasonable grounds for a temporary appointment as one made in the absence of this appeal. an eligible list to a position in the Classified Service of flte City pending an examination. (Emphasis added.) This would, of course, explain why the city charter makes
APPELLEE APPX 050 Page 5 2002 Ohio 586; 2002 Ohio App. LEXIS 549, *
lr is ordered that a special mandate issue out of this N.B. This entry is an announcement of the court's deci- court directing the Common Pleas Court to carry this sion. See App.R. 22(B), 22(D) and26(A); LocApp.R. 22. judgment into execution. This decision will be ioumalized and will become the judgment and order of ihe court pursuant to App.R.22(E) A certified copy [*17] of this entry shall constitute unless a motion for reconsideration. with suppordng the mandate pursuant to Rule 27 ofthe Rules ofAppellate brief, per App.R. 26(A), is filed within ten ( 10) days of Procedure. the attnouncement of the court's decision. The time pe- riodfor review by the Supreme Court of Ohio shall begin MICHAEL J. CORRIGAN to run upon the journalization of this court's announce- PRESIDING JUDGE ment of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. /!, Section 2(A)(1). ANNE L. KILBANTE, J., and ANN DYKE, J., CONCUR.
APPELLEE APPX 051 Pagc 1
LEXSEE 2002 OHIO APP. LEXIS 2523
PATRICIA A. DOLAN, Plaintiff-Appellee/Cross-Appellant, - vs - JAMES L. DOLAN,JR., Defendant-Appellant/Cross-Appellee.
CASE NOS. 2000-T-0154, and 2001 -T-0003
COURT OF APPEALS OF OHIO, ELEVENTH APPELLATE DISTRICT, TRi1MBULI, COUNTY
2002 Ohio 2440; 2002 Ohio App. LEXIS 2523
May 17, 2002, Decided
SIUBSEQUENT HiSTORY: [** I] As Modified. pension benefits.
PRIOR HISTORY: Origina] Opinion of May 17, [*P2] The parties married on June 26, 1971. 2002, Reported at: 2002 Ohio App. LB%IS 2379. Appellec filed a complaint for divorce on August 23, 1999. There is no answer by appcllant in the record CHARACTER OF PROCEEDINGS: Civil Appeals before this court. A hearing was held before the trial from the Court of Common Pleas, Domestic Rclations court, commencing August 1, 2000. At the hearing, the Division. Case No. 99 DR 422. attomeys for both parties agreed on the values of the pcnsions of appellant and appellee. [**2] Appellant DISPOSITION: Trial cotut's judgment was affirmed. testified he felt half of his pension should be awarded to appellee, while he should receive balf of appellee's pension upon her retirement. Appellant acknowledged he COUNSEL: ATTY. MARY JANE STEPHENS, would not receive any portion of his wife's pension unfil Youngstown, OH (For Plaintiff-Appellee). her retircment. This was the only testimony regarding his pension offered by appellant. No evidence was submitted ATTY. GEORGE E. GESSNER, Cortland, OH (For by appellant reflecting a valuation of his pension or that Defendant-Appellant). of appellee's pension.
JUDGES: HON. JUDITH A. CHRISTLEY, P.J., HON. [*P3] On November 28, 2000, the trial court issued ROBERT A. NADER, J., HON. DIANE V. its judgment entry of divorce. In its findings of fact. the GRENDELL, J. JUDITH A. CHRISTLEY, P.J., concurs, trial court explained that appellant had a pension with ROBERT A. NADER, J., dissents. Sharon Steel, which he is currently receiving. Appellee ha.s a pension with Delphi Packard. Both pensions wcrc OPINION BY: DIANE V. GRENDELL accrued during the marriage. The trial court acknowledged that appellant asked that it issuc a OPINION Qualified Domestic Relations Order ("QDRO") for both pensions. However, the court found it was better w DIANE V. GRENDELL, S. disentangle the parties, since there were sufficient assetc to distribute the property equally. The court stated it was [*P1] Defendant-appellantlcross-appellee, Jatnes L. provided with present day values' of the pensions as Dolan, J'-. ("appellant"), appeals from the judgmenC c-ntry calculated by an outside attUrney, by agrcemcnt of the- of the Trumbull County Court of Common Pleas granting parties. That infonnation was recalculated to use the appellant and plaintiff-appellee/cross-appeliant, Patricia sante years-[%'3]-for.both.-parties..Cnunsel._for both ... A. Dolan ("appellec"), a divorce.Specifically;appellant nar[ies aereed that the dates on the valuations were the objects to the valuation and division of the parties' dates to be nsed for determination of pension values. The
APPELLEE APPX 052 Pagc 2 2002 Ohio 2440, *P3; 2002 Ohio App. LEXIS 2523, **3
trial court valued appellant's pension at $ 86,978.32 and was unreasonable, arbitrary, or unconscionable. appellee's pension at S 51,228.98. Each party was Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 awarded their own pension in the property division. Ohio B. 481, 450 NE.2d 1140. Appellant has appealed from the judgment of the trial- comY. [*91 A vested pension plan accumulated during marriage is a marital asset subject to distribution between [*P4] Appellant assigns the follbwing error for the par¢es. Holcomb v. Holcomb (19891, 44 Ohio 5't.3d review: 128, 541 N.E.2d 597. A trial court must determine the value of a pension but has considerable latimde regardiug [*P5] "The trial court decision as to the division the method u.sed in the valuation. Spurloclc v. Spurlock and allocation of the parties respective pensions has (Dec. 15. 1995), 1995 Ohio App. LEXIS 5568. 11 th Dist. resulted in an inequitable division of the assets, and No. 94- A-0026. accordingly is in error and an abuse of discretion." [*PIO] At trial, appellant offered no evidence, [*P6] Upon appeal, appellant disputes the valuation beyond. his own, brief, speculative testimony, regarding and division of the parties' pensions. Appellant contend.s the benefits of the trial court issuing a QDRO for the tu^o it was error to assume appellee would retire at age 65 and pensions. Because he offered no evidence on this issue, receive benefits from then until age 81, her life appellant has waived the right to assert the argument on expecrancy. Appellant then calcuiates what hc and appeal. See Ferrero v. Ferrero (7une 8, 1999), 5th Dist. appellee would expect to receive in benefits over their No. 98- CA-00095, 1999 Ohio App. LE%IS 2848. Further, respective lifetimes. Based upon this ealculation, the parties agreed that a particuiar attorncy would value appcllant argues the trial court did not obtairi a result their respective pensiuns. They [**6] also agreed that the . which would preserve the pension in a way that the datcs on the valuations provided by the attorney were the panics would receive the most bcnefit. Appellant dates to be ased in determining the value of the pensions. maintains appellee [**4] will receive more than he in The court's finding that it was better to discntangle the pension benefits over her lifetime, rendering the valuation parties because there were sufficient assets to distribute of their pensions inaccurate and inequitable. property equally was not, based upon the evidence submitted below, an abuse of discretion. ["`P7] A review of the record bcfore this court shows that appellant never miscd this argument below ['Pl 1] Further, apoeilant's cursory statement in his nor presented the calculation he now contends is correct brief regarding the failure of the trial eourt to grant his to the trial court for its consideration. It is well request that a QDRO be issued for the pension benefits established that a patty cannot raise any new issues or contains no citations to the record or authoritv in support legal theories for the first tin-,c on appeal. See Stores as required by App.R. 16. Realtv Co. v. Cleveland (1975), 41 Ohio S1.2d 41, 43, 70 Ohio Op. 2d 123, 322 A!E.2d 629. Because appellant did As such, this court mav disregard his argument. not present this argument, or any evidence in support of a different vaiuation below, appellant has waived any [*P12] Appellant's sole assignnient of error is assertion of error upon appeal. ovenuled. The judgment of the Trumbull ConnTy Court of Common Pleas, Domestic Relations Division, is [*PS] Appellant also asserts the trial court should affrrmed. have granted his rcqrwst to issue a QDRO for the ponsion benetits of himself and appellee. A triial court has broad JUDITH A. CI-IItISTLEY, P.J., concuts, discretion in `ormuladng an equitable disrribution of ROBERT A. NADER, J., dissents. marital property. Berish v. Berish (1982), 69 Ohio St.2d 318, 319, 23 Ol:io Op. 3d 296. 432 N.E.2d 183. The trial DISSENT BY: ROBERT A. NADER court's judgment will not be disturbed upo^ appeal unless that discretion is abused. Booth o. Booth (7989), 44 Ohio DISSENT St:3d 142r J44; 541 h:E.2d 1028.['*5]-Thetenn-abuse of discretion implies more than an error of law or ROBERT A. NADER. Judgc, disscnting. judgment; rather, it intplies that the trial court's attitude
APPELLEE APPX053 Page 3 2002 Ohio 2440, *P12; 2002 Ohio App. LEXIS 2523, **6
[*P13] I respectfully dissent from the majority than if a more immediate distribution were ordered; "it ooinion. I believe that the trial court's distribution of [**9] is, however, a good compromise when a more inarital properry was unreasonable. It allowed appellee to immediate distribution.is not viable, because, once the receive an additional S 35,749,32 in marital assets and [QDRO] is in place, the nonparticipant spouse can look paymcnts to offset [**7] the difference in the values of directly to the pension fund for benefits rather than the pensions, and deprived appellant of the opportunity to having to look to the participant spouse." Sprrn:lrle v. bcnefit from any future growth of his marital interest in Sprankle (1993). 87 Ohio App. 3d 129, 134, 621 N.E.2d appellee's pension plan. 1310.
[*P[4] "When considering a fair and equitablc [*P7 7] in this case, the parties would have procured distribution of pension or retirement benefits in a divorce, the most benefit from their pension plans by a QDRO the trial court must apply its discretion based upon the dividing the pension plans. Appellant'srequest should circumstances of the oa.ce, the status of the parties, the have bccm granted regardless of the value of thc pensions, namre, terrtvs and conditions of the pension nr retirement since appellant was simpl,v seeking one half of both plans plan, and the reasonableness of the result; the trial court at the time of division. Instead of issuing a QDRO, the should attempt to preserve the pension or retirement asset court awarded appellant his pension plan, valued at $ in order that each party can procure the most benefit, and 86,978.32, and awarded appellee her pension plan, value should attempt to disentangle the parties' economic at $ 51, 228.98. To offset the S 35,749.32 discrepancy in partnership so as to create a conclusion and finaliry to the values of the parties' pension plans, appellee was their marriage." Hovt v. fHbyt (1990), 53 Ohio St.3d 177, awarded additional marital assets and appellant was 179. 559 N.E.2d 1292. ordered to pay her $ 3,450. The trial court should have considered the benefits of each spouse's retirement plan [*P15] In the instant case, appellant requested that in addition to their cash values when malcing its the pensions be divided equallv by a QDRO so that detcrmination. appellee would receive one half of appellant's current monthly pension and appellant would receive his marital ['P18] A retirement plan is an investment ntade by interest in appellee's pension, unon her retirement. both spouses [** 10] during marriage to provide for their Appellant was aware of the risk that his wife might chose later years with the expectation that the invesmtent will to retire sooner rather than [**8] later; however, he was increase in va[ue over time. Layne v. Layne (1992), 83 willing to assume that risk in order to havc the Ohio App.3d 559, 567, 615 N.E.2d 332 . ".4t divorce, upportunity to benefit from any growth in her pension each spouse is entitled to the value of his or her plan. In the court's November 28, 2000 judg,tnent entry it investment." "When the investment has not vet mamred, denied appellant's request for a QDRO, finding that it each is entitled to a right to its value at maturity in was "better to disentangle the parties since there [were] proportion to the years of marriage." Id. While the suffrcient assets to distribute property equally." non-participant former spouse is not entitled to share in the direct contributions made by the participant former [*P16] The Supreme Court of Ohio has recognized spou.se after the divorce, he or she is entitled to the that, duc to the nature of divorce, "some effort should be benefit of any increase in the value of his or her made to disentangle the parties' economic affairs." Id. at "unmaturcd proportionate sbare after divorce attributable 183. "However, where circumstances pennit, the trial to the continued participarion of the other spouse in the court should attempt to ascertain the optimum value the redrement plan." ld "So loag as each fomier spouse is pension or rctirement benefit has to the parties as a limited to his or her proporticmate right to share, there is couple, based upon the nature and terms of the plan. The neither unjtut enriclunent of the nonparticipant nor an trial court should structure a division which will best inequitable deprivation of his or her rights." Id. preserve the fund and procure the most benefit to each Accordingly, the trial court should have issued a QDRO party." ld Thus, tlisentangling the parties' economic dividing the p^rties' penaions thereby allowing appellant affairs should not be the court's sole focus when dividing to bencfit from any increase in the valuc of his unmatured the marital property. Although the utilization. of a QDRO proportionate share attor divorce [**11] attributable to to divide rc6rement funds may restilt in a greater appellee's continued participation in the retirenient plan. entanglement of the economic partnership of the parties
APPELLEE APPX 054 Page 4 2002 Ohio 2440, 'P18; 2002 Ohio App. LF,XIS 2523, ** 1 I
['P19] Based on the aforcmentioned reasons, I order a. QDRO as requested by appellant. respectfuily dissent from the majority opinion and would reverse and reniand. tlre judgment of the trial court to
APPELLEE APPX 055 LEXSEE 2000 OHIO APP. LEXIS 602,
EAST CLEVELAND FIREFIGHTERS, LOCAL 500, Plaintiff-appellant vs. CIVIL SERVICE COMMISSION OF EAST CLEVELAND, et al., Defendants-appellees
NO. 77367
COURT OF APPEALS OF OHIO, EIGIi'I'H APPELLATE DLSTRICT, CUYAHOGA COUNTY
2000 Ohia App. LEXIS 6023
December 19, 2000, Date of Announcement of Decision
PRIOR FHSTORY: 1 * 1l violation of the City Charter, City ordinance and state statute and sought have the judge order the Commission CHARACTER OF PROCEEDING: Civil appeal [*2] tci remove him from that office and conduct a coni- from Court of Common Plcas. Case No. 345,347. petitive promotional examination to create an eligibility list from which the Mayor would be required to promote. DISPOSITION: We affirm that part of the order on the relief in manda- AFFIRMED IN PART; REVERSED IN PART. mus, reversc that part granting summary judgment for the Commission, and enter judgment for the Union. The facts are not in dispute. In May 1996, Fire Chief COUNSEL: For Plaintiff-Appellant: JOSEPH W. Paul B. Blockson, III, notified the president ol' tttc DIEMERT, JR., Clevetand, Ohio. ECCSC that several vacancies had occurred or would shortly occur within certain promoted ranks in the fire For Defendant-Appellee: HELEN FORBES FIELDS, department. He asked the ECCSC to begin the process of IVAN L. HENDERSON, SCOTT H. SCHOOLER, promotional testing within the department in accordance Forbes, Fields & Associates. Cleveland, Ohio. with City ordinance and commission rules. On June 12, 1996, he provided the Human Resource Director and JUDGES: fUDGE ANNE L. KILBANE, PATRICIA ECCSC secretary, Wanda Deadwyler, with a list of those ANN BLACICvtON, J., CONCUR, TERREirCE fire fighters eligible to take one of the promotional tcsts, O'CONNELI., P.J., CONCURS IN PART AND i.e., those fire fighters who had served at least twelve DISSENTS IN PART. (SEE CONCURRING AND months in the next lower rank from the promoted rank. DISSENTING OPINION). He followed this June lener with an August 5, 19961etter to the ECCSC president; he again stressed the impor- OPINIONBY: ANNE L. KILBANE tance of heginning the promotional examinarion process as soon as possible since certain notice requirements ["3] OPINION: and other matters would delay the compilation of a list of JOURNAL ENTRY and OPINION persons cligible for promotion until October or Novem- ber, 1996. Shortly thereafter, Blockson redred, and Dep- ANNE L. KILBANE, J.: uty Chief LaValle Dorsey was appointed as Acdng Fire Chief. This is an appeal from an order of Judge Burt W. Griffin granting the motion for summary judgment of On September 24, 1996, Dorsey forwarded his appellees City of East Cleveland Civil Service Commis- memorandum to then-Mavor Wallace B. Davis, notifying sion ("ECCSC") and Mayor Emmanuel Onunwor (col- him of jboth actual and projected vacancies in the posi- lectively the "Commission") on the complaint for de- rions eiT Fire Chief, Deputy Chief, Captain and Lieuten- claratory juflgittentand writofmandamusaf-appeilant ant.^He-suggested that it-would bein-thecityis.best.inter-. East. Cleveland Fire Fighters Local 500, International e.st to conduct promotional examinations for all of these Association of Fire Fighters (the "Union"). The Union ranks to promote stability within thedepariment, facili- claimod that the Commission unlawf'ully certified and tato schedulinp, and maintain the fire inspection and pre- promoted Bobby Jenkins to the position of Fire Chief in vcntion programs. Two days later, he sent a list of candi-
APPELLEE APPX 056 Page 2 2000 Ohio App. LEXIS 6023, *
dates eligible to take the promotional examinations "by the previous April 25, 1997, deadline for the filing of virtue of having scrved at least one (1) year in the rank applications. immediately belnw the rank of the position being That same day the notice was posted. Kirchner and sought." Dorsey notified Jenkins that they were going to file a For the position of Fire Chief, he named three eligi- grievance against him, the ECCSC, and the city under ble candidates: himself and Deputy Chief Jerry C. the collective bargaining contract with regard to the De- Kirchner, and Roben L. Bearden. For the position of cember 1997 Fire Chief promotionat [s`6] test. On No- Deputy Chief, he named three clieible candidates:Cap- vember 18, 1997, Jenkins responded to the letter. indicat- tain Patriclc A. McDonough. Paul A. Lowry, and Bobby ing that the grievance was "denied" because they had R. Jenkins. On January 16, 1997, after Deputy [*4] cited no specific violation of any provision of the union Chief Bearden retired. Dorsey updated the list to include contract, statute, or local regulation. On that satne date, himself and Kirchner as the only candidates eiigible to almost seven months after the posted, April 1997, filing take the Fire Chief examination. deadline. Jenkins filed his application to take the Fire Chiefs examination. On December 7 and 8, respectively, Finally, on April 22, 1997, the ECCSC issued a no- I{irchner and Dorsey withdrew their applications to take tice for promotion to the position of Fire Chief, set the the examination. date of the examination for June 18 and 19, 1997 and provided a application deadline of April 25, 1997. By letter dated December 10, 1997, Ed Scott, the Kirchner and Dorsey submitted their applications before Union president, asked the ECCSC to notify thc Local the filing deadline. when it "will open the test up [in. accordance with state law] to the next lower ranks until you get candidates On June 2, 1997, the ECCSC issued notice of the willing to take the test[.]" Nothing in the record reflects postponement of the Fire Chief promotional examination that the Commission responded to this request. to Kirchner and Dorsey, indicating that the test was be- ing postponed because of "sonie legal issues that need to On December 16, 1997, the Union and Nathaniel be discussed with the City's Law Department." On June Richardson, a member holding the position of Captain, 25, 1997, the commission then issued notice of a promo- liled suit against the ECCSC and Mayor Davis and tional examination for the ranks of Deputy Chief. Cap- moved to enjoin the Fire Cbief promotional examination tain, and Lieutenant and set September 13, 1997 for the until the examination was opened to those holding the test. rank of Captain. On December 17th and 18th, the ECCSC administered the exantination to Jenkins only. Apparently Dorscy was removed as Acting Fire The hearing on the request for temporary [*7] restrain- Chief and, at some point before the release of the results ing order was reset by stipulation to December 22nd, and of the September examinations, Captain Bobby Jenkins the motion was denied on that date. was appointed to the position of Acting Fire Chief. On October 30, 1997, the ECCSC, in accordance with Sec- On December 29, 1997, the ECCSC certified Jen- tion 123.09(d) of the city administrative code, posted the kins for the position of Fire Chief, and Mayor Davis eligibility 1°51 lists for the positions of Deputy Chief, promoted him to that rank the same day. Captain, and Lieutenant, identifying Jenkins as the only On October 6, 1998, upon leave granted, the Union eligible candidate for Deputy Chief. Jenkins forwarded filed an amended complaint and requested relief in the these lists to Mayor Davis and. six days later, Deadwyler form of a writ in mandamus or declaratory judgment. certified the Deputy Chief eligibility list to the mayor. Richardson was dropped as a plaintiff, and Mayor On November 10. 1997, the ECCSC allegedly held a Onunwor, who had replaced Mayor Davis, and the mecting during which Jenkins asked it to waive the re- ECCSC were named defendants. The Union averred [hat quirement that an individual ntust serve one year in the when the ECCSC certified Jenkins as eligible to take the rank oi' Deputy Chief before being eligible to take the Fire Chief cxamination and certified him as eligible for Fire Chiefs examination. Although the minutes of that the promotion, it violated the Ohio Revised Code, the mqeting are not part of the record, the ECCSC allegedly East Cleveland City Charter and ordinances, and ECCSC granted that request. rules and regulations. It claimed that b ause there were• ]ess than two persons in the rank of Dfputy Chief whc On November 1.1, 1997. Jenkins received his official were eligible and willing to compete in the Fire Chief's promotion tothe positionofDeputy-Fire- Claief.-Three examrnation, statute required that tlieexamination should davs later. the ECCSC issued a second notice of the Fire have been opened to all fire fighters holding the next Chief promotional exaniination, set ttie dates of the ex- lowerrank (that of Captain) who were eligible and will- amination for Decenrber 17 and 18, 1997, but retained ing to compete. It asserted that, because the mayor ilie- gally promoted Jenkins to the position [*8] of Fire
APPELLEE APPX 057 Page 3 2000 Ohio App. LEXIS6023, *
Chief, Jenkins must be rentoved from that position and CIVIL SERVICE COMMISSION thc ECCSC must conduct a competitive promotional ACTED IN CONTRAVENTION OF cxamination allowing participation of all legally eligible THE REQUIREMENTS OF THE OHIO fire fighters inthe next lower rank who are willing to REVISED CODE AND ITS OWN compete. The Union asked the judge to declare the rights RULES AND REGULATIONS of Lhe parties and require the ECCSC both to remove RELATING TO THE PROMOTION OF Jenkins from office and to administer a new Fire Chief FII2EFIGHTERS. cxaminalion. II. THE TRIAL COURT ERRED BY On December 4. 1998, the Uni(in filed a motion for GRANTSNG DEFENDANTS' MOTION summary judgment, arguing that Jenkins was not eligible FOR SUMMARY JUDGMENT AND tc) take the Fire Chief pmmotional examination because HOLDINTG PLAIIVITFF /sicJ FAILED his application wa.s submitted beyond the April 25, 1997 TO EXHAUST ADMINISTRATIVE deadline and because he had not held the position of REMEDIES AS PLAINTIFF HAD NO Deputy Chief for at least one year. lt also asserted that ADMINISTRATIVE REMEDIES the ECCSC was not in a position to "waive" Lhe one-year AVAILABLE TO THEM /.ric] service requirement contained in Lhe citv ordinances. In addition, the Union claimed that the ECCSC was re- The Union argues first that the ECCSC had no au- quired by stau: law to open the examination to eligible thority to postpone the Fire Chief examination, which and willing fire fightersin the next lower rank below was scheduled for June 18 and 19, 1997, or to declare Deputy Chief because there were less than two individu- Jenkins eligible to take the exannnation given his proba- als, presently classified as Deputy Chief, who were eligi- tionary status as Deputy Cltief. It also complains that ble and willing to compete. lt argued that, when the because the ECCSC failed to open the examination to ECCSC did not open the examination [*9] as required, eligible fire fighters in the next lower rank below• Deputy Jenkins' promotion was illegal. Chief, given the failure of at least two persons in that rank willing to take the examination, the subsequent On December 7, 1998, the Commission filed its mo- promotion of Jenkins to Fire Chief was contrary to stat- tion for summary,judgmenrt arguing that the Union failed ute. The Union contends it has no adequate remedy at to exhaust both irs grievance and arbitration remedies law because the issues [*11] of promotion and the under the collective bargaining agreement as well as the ECCSC's wrongful acts cannot be arbitrated since they administrative remedies afforded to Lhe Union through do not involve the terms of the collective bargainin.g the ECCSC, itself. The Commission furthcr contended agreement. It claims that it could not admitnstratively that it had the authority to waive the twelve-month ser- "appeal" the ECCSC's decision to promote Jenkins be- vice requirement to allow Jenkins to take the Fire Chief cause the Cottunission's rules did not provide for such an promotional examination. appeal process. On November 15, 1999, the judge entered his writ- In response, the Comuussion counters that it had dhe ten opinion and order granting the Commission's motion authority, pursuant to its own rules, to postpone the June and denyingthat of the Union. Because Dorsey and 1997 exantination date and waive the twelve-month ser- Kirchner, non-parties to the action, had failed to properly vice requirement as it appHed to Jenkins' eligibility to file grievances in accordance with the collective bargain- take the exam and that the promotional examinations ing a;reement and had failed to exhaust thcir administra- compHed with the approptiate statutes. Finally, the tive remedies, he denied the request for the writ of man- Commission argues, the Union is not entitled to decl.ara- damus. He also concluded that the faiiure to invoke the torv or mandamus relief because it failed to exhaust both "statutory remedy," i.e., the grievance and arbitration the grievanceand arbitration procedure in the collective procedure set forth in the collective bargaining agree- ment, in accordance with R.C. 4117.10(A) precluded 1. IN GENERAL declaratory rclief. We review the grant of summary judgment de novo, Because the two assignmentsiof error asserted !"10] applying the same standard of review as that applied bv by the Union present related issues of law and fact, we the trial judge. Buyers First Realty, Inc. v. Cleveland will address them together: ' Arca Bd. of Realtors, 139 Ohio App. 3d 772. 2000 Ohio App. LEXIS 3504. 74-5 PI.E.2d 1069-(2000), citing..Druso v. Bank One of Columbus (1997), 124 Ohio App. 3d 125, 1. THE TRIAL COURT ERRED BY 131. 705 N:E.2d 717. A judge may grant [*12] a motion DENYING PLAINTIFF'S MOTION FOR for sumtnary judgment pursuant to Civ.R. 56(C) when SUMMARY JUDGMENT AS THE the followine elements are satisfied:
APPELLEE APPX 058 Page 4 2000 Ohio App. LEXIS 6023. *
(1) No genuine issue as to any mate- Metro. Park Dist. v. Tablack ( 1999), 86 Ohio St. 3d 293. rial fact remains to he ]itigated; (2) the 297; 714 N.E.2d 917. The relat.or also must be henefi- moving party is entitled to judgment as a ciallv interested in the case in order to bring a mandamus matter of law; and (3) it appears from the action. E.g., State ex rel. Spencer v. East Liverpoal Plan- evidence that reasonable minds can come ning Comm.issibn (1997), 80 Ohio St. 3d 297, 299, 685 to but one conclusion, and viewing such N.E.2d 1251, citine R.C. 2731.02, .State ex ret. Russell v. evidence most strongiy in favor of the Ehrnfelt (1993), 67 Ohio St. 3d 132, 133, 616 N.E.2d party against whom the motion fnr sum- 237. n] tnary judgment is made, that conclusion is adverse to that party. (/d.. quoting Temple v. Wean United, 1nc. (1977), 50 Ohio St. nl Wc note, however, that the Cotmnission 2d 317, 327, 364 N.E.2d 267, 274: accord did not challenge the Union's "beneficial interest" Zivich v. Mentor Soccer Club (1998), 82 or its standing in the subject matter of this action, Ohio St. 3d 367, 369-370, 096 N.E.2d and it acceded in its antended answer that a con- 201.] troversy existed regarding the interpretation of the statutes, charter provisions, ordinances, and "Mandamus is a writ, issued in the name of the state rules and regula[ions. Therefore, for the purpose to an inferior tribunal, a corporation, board, or person, of this action only, we consider waived any ob- commanding the performance of an act. which the law jection to standing in the context of either man- specially enjoins as a duty resulting from an office, trusi, damus or declaratory judgment. State ex rel. or station." R. C'. 2731.01. For a writ of mandamus to Tubbs.fones v. Suster (1998), 84 Ohio St. 3d 70, issue, this court must find that the City is under a clear 77. 701 N.E-2d 1002, referring to Civ.R. 17(A); legal duty to perform the requested act and that the com- see, also, State ex rel. Village of Botkins v. Laws plainant has a clear legal right to the requested relief. (1994), 69 632 (1990), 53 Ohio St. 3d 383, 387-388, N.E.2d E.g., State ex rel. Caspar v. Davton Ohio St. 897. 3d 16, 18, 558 N.E.2d 49. [*13] Courts have a duty in mandamus actions "to construe constitutions, charters, and statutes, if necessary, and thereafter evaluato whether [*15] the relator has established the required clear legal right To obtain reiief under the Declaratory .iudgment and clear legal duty." State ex rel. Fattlar v. Boyle Act, R.C. 2721.01, et seq., a plaintiff must establish the (1998), 83 Ohio St. 3d 123, 125, 698 N.E.2d 987 citing following: ( 1) a real controversy exists between the par- State ex rel. Tomino v, Brown (7989), 47 Ohio St. 3d ties, (2) the controversy is justiciable, and (3) speedy 119, 120. 549 N.E.2d 505, 506; State ex re1. A.shbronk v. relief is necessary to preserve the rights of the partics. Brown (1988), 39 Ohio St. 3d 115, 117, 529 N.E.2d 896, Burger Brewing Co. v. Ohio Liqtwr Control Comm. 898. A court niust also resolve all doubts concerning the (1973). 34 Ohio St. 2d 93, 97, 296 N.E.2d 261; R.A.S. legal interpretation of these provisions. Fattlar, supru, Entertainment, Inc. v. Cleveland (1998), 130 Ohio App. citing, in part. State ex rel. Melvin v. Sweeney (1950), 3d 125, 128, 719 N.E.2d 641, appeal not allowed (1999), 154 Ohio St. 223, 225-226, 43 Ohio Op. 36, 37, 94 84 Ohio St. 3d 1501, 705 N.E.2d 1242. "Courts of record N.E.2d 785, 787. may dediare rights, status. and other legal rclations[,] Even though a relator may establish a clear legal subject to specific exceptions, whether or not further duty and clear legal rigltt to relief, a writ of mandamus relief is or could be claimed." R.C. 2721.02. A judge will not issue when the relator has a plain and adequate may dismiss an action for declaratory judgment without remedy in the ordinary course of law. R.C. 2731.05. "In addressing the merits of the casc under two circum- general, if the allegations of a complaint for a writ of stances: "(1) there is neither a justiciable issue nor an mandamus indicate that the real objccts sought are a de- actual controversy between the parties requiring speedy claratory judgment and a prohibitory injunction, the relief to preserve rights which may otherwise be iost or [*14] complaint does not state a cauee of action in man- impaired; or (2) in accordance with R. C. 2721.07, the damus and must be dismissed for want of jurisdiction." dec[aratoryjudgment will not [*16] terminate the unoer- State of Ohio ex rel. Grendell v. Davidson (1999), 86 tainty or controvorsy'." Wagner v. Cleveland (1988), 62 Ohio St. 3d 629, 634, 716 N.E.2d 704. However, "if de- Ohio Ap15. 3d 8, 574 N.E.2d 533, citing Burger Brewing claratory judgment.would. ncat be..a. complete remedy Co. v, LiquorCorurnl.Comm. (1973), 34Ohio.St..2d93. unlcss coupled with extraordinary ancillary relief in the 63 Ohio Op. 2d 149. 296 N.E.2d 261.' Halle, v. Ohio nature of a mandatory injunction, the availability of de- Co. (1995); 107 Ohio App. 3d 518, 524, 6691V.E.2d 70, claratory judgmcnt does not precludea writ of rnanda- 74; accord R.A.S. Entertainment, 130 Ohio App. 3d at mus." State ex rel. Bd. of Commissioners of Mill Creek 129. In addition, "the doctrine of failure to exhaust ad-
APPELLEE APPX 059 Pag c 5 2000 Ohio App. LEXIS 6023. "
tninisirative remedies is not a jurisdictional defect to a B. The Commission Rules and City Ordinances deciaratory jndgment action; it is an affirmative defense ln pertinent part. R.C. 124.40(A) provides: that may be waived if not timely asserted and main- tained." Jones v. Village of Chagrin Falls (1997), 77 Ohio St. 3d 456, 674 N.E.2d 1388, syllabus. Such municipal civil service commission II. ADEQUATE REMEDY' AT LAW OR shall prescribc, amend, and enforce rules EXHAUSTION OF ADMINISTRATIVE not inconsistent with this chapter [f19] REMEDIES for the classification of positions in the As noted above, the judge did not consider whether civil service of such city and city school the Union established a clear legal right, what that riaht district, and al] the positions in the city was, or whether the Commission had a clear duty relative health district; examinations and resigna- to tlie Union's right. The judge essentially denied both tions therefor; for appointmenrs, promo- mandamus and declaratory relief for the reason that the tions, removals, transfers, layoffs, suspen- Union had adequate remedies at law and/or failed to ex- sions- reductions, and reinstatements haust its administrative remedies. After review, [*17] therein; and Cor standardizing positions we conclude that the terms of the collective bareaining and maintaining efficiency tberein. n2 agreement do not apply to promotions within the fire departnient and that the Commission rules do not apply when a person contests the alleged wrongful promotion The Supreme Court has previously concluded that the of a member of the fire department. express language in the East Cleveland Charter. Sections 28-31, enables the City to exercise local self-govenrment A. The CollecBve Bareaininn Agreernent powers in a manner contrary to state civil service stat- R.C. 4117.08 sets forth subjects appropriate for utes. State ex rel. East Cleveland Association qTF Fire- public employees' collective bargainin- agreements. fighters, Lor.al500, I.A.F.E v. East Cleveland (1988), 40 While R.C. 4117.08(B) prohibits collective bargaining Ohio St. 3d 222, 224, 533 N.E.2d 282. As a result, the over all matters concerning pre-hire exanrinations and city ordinances constitute a proper exercise of such home the estahlishment of pre-hire eIlgibility lists, matters that rule authority and, thus, supersede the provisions of R.C. affect promotinns are appropriate subjects for inclusion Chapter 124. Id., citing, in part, Sections 3 and 7. Articic in collective bargaining agreements. E.g.. DeVenni_ch v. XVIII of the Ohio Constitution. Section 30 provides for Calumbus (1991). 57 Ohio St. 3d 163, 566 N.E-2d 668. appointments and promodons in the classified civil ser- paragraphs one and two of the syllabus. Therefore, when vice to be made according to merit and fitness as ascer- "the subject of promotions is covered by the Agreement tained by competitive examination. It further provides at issue, it is subject to the mandatory grievancc proce- that "ordinances [*20] shall be passed to fix the powers dures which must be exhausted before resort to the and duties of the Civil Service Cotttmission and to pre- courts." Ma)field Heights Fire Fighters Ass'n v. DeJohn scribo rules and regulations governing the cla•ssified civil (1993), 87 Ohio App. 3d 358, 362, 622 N.E.2d 380, refer- service." n3 ring, in part, to R. C. 4117.10(A). [*18] While thc collective bargaining agreement at issue n2 This section further provides that the mu- addresses, among other things, matters of discharge, dis- nicipal civil service comniission shall exercise all ciplinary actions. and salaries, it does not mention pro- other powers and perform all other duties with re- rnotions; therefore, the grievance and arbitration proco- spect to the civil service of the city as prescribed dures provided in Articles XXXIV and XXXV of the in Chapter 124 and conferred upon the director oi' agreement do not apply when the Union or its members administrative services and the state personnel contest matters relating to promotions. Because the terms board of review. of the collective bargaining agreement do not apply, any n3 There are no ordinances, however. that dispute must then be decided in accordance with R.C. grant the ECCSC rule-nlakiQg authority. 4117.10(A), which provides•that when "an agreement makes no slecification about a matter, the public em- In accordance with the City Charter. East Cleveland ployer and public-...... _ employees ,...,.....- are subject to...... all applicable state or local laws or nrdinance s pc.r tai mng to the wages, has enactedChapier123 of its AdiiunistrauveCode, hours, and terms and conditions of employment for pub- which defines the powers of the Commission and pro- lic employees." This court must first turn to R.C. vides the rules for appointtnent, promotion, suspension, 124.40(A), which autlines the power and authority of a demotion, and rernoval of utembers of the classified ser- municipal civil serviec commission. vice, specifically members of police and fire divisions.
APPELLEE APPX 060 Pa2c 6 200II) Ohio App. LEXIS 6023. "
The provisions of Chapter 123, as enacted by ordinance, ["231 also provide for promotional examinations and set forth the qualifications necessary [*211 to take such examina- tions. n6 City of East Cleveland Ordinahce 5541 Section 123.06(b) allows a promotiona] position in (passed Mar. 12, 1964). the ciassified service to be filled without exaatination by n7 City of East Clcvciand Ordinancc 17-96 temporary appointment, but it linnts such an appointntent (passed Mar. 19, 1996). to no longer than 180 consecudve days in a calendar year. In pertinent part, Section 123.03(a) n4 provides: n81d. at subdivision (g)(2), All appointments and promotions in n9 Id., at subdivision (h)(1)-(2). thc classil'ied service of the CiLy sltal1 bo made by the Mayor according to merit "Review" bv or "appeals" to the ECCSC are limited. and fitness, which shall hc ascertained by competitive examinations(.1 * * * All ap- Section 123.03(a) provides that an emplovice appointed pointments and promotions shall be for a or promoted in the classified service shall bc subject to removal or demotion during Lhe probation period "with- probationary period of one year, and no out appeal to the commission" other than as stated in Lhc appoincmenl or promotion is final until the employee has satisfactorily served his charter. However, when an employee is suspended, de- moted, or removed, that employee is entitled to a hearing probationary period. * "'" before the i^lavor under Section 123.05. Under SecLion 123.(19(fj, a person also has the right to notice and a Section 123A8(a) n5 sets the initial eligibility rNuiro- hearing before Ihc Commission when thaL person is sub- ject to dis-qualifrcation and removal from the eligible ment to iake a promotional examination: "an applicant must have at least eine year of service in the rank imme- list. There is nothing within Chapter 123 which allows a person tn contest the alleged unlawful promotion of a fire diately below the rank for which he is an applicant." fighter. Subdivisions (b) through (d) of that section provide for competitive examinations, certain seniority and educa- The ECCSC rules also provide limited review. n10 tional crediL in scoring thc examinaLions. and certifrca- Rule 4.12 allows an applicant to seek review by it when tion of physical health. Section 123.09(a) n6 further the examining staff rejects his application prior ['224] to commands the Commission to hold competitive exami- the examination only when the application has been re- nations [°22] to establish an "eligible list" for a position jected for other than reasons specified in the rule - none or rank "whcn required by law or at anv time" in the "in- of which applies here. Rule 6.5(], like Section 123.09(g), terest of the public service." An eli;lble list for original provides for notice and a hearing when a person who is appointment is effective for a period of six months from on an eligible list after an examination is later disquali- the date of the list. subject to extension by the ECCSC fied. Rule 16 allows an)- person to file with the ECCSC for a period of no longer than three years. Subdivision charges of misconduct or inefficiency against anv officcr (g)(1) further provides that when the mayor provides or employee in the police or fire divisions. Like the ordi- notice that he intends to fill a position by promotion, the nances above, nothing within the ECCSC rules allows a ECCSC "shall certify to the Mayor the three persons person n> contest the allcged unlawful promotion of a fire with the highest grades on the appropriate eligibie Iist[.]" tighter. As such, there were no administrative remcdies n7 If the Mayor notifies the Commission that he intends available for the Union to exhaust. See. Joncs, supra. to fill a position by appointment. then the Commission must cerdfy the ten persons with the highest grades on the appropriate eligible list." n8 If fewer than three n10 See supra note 3. names appear upon a promotion eligible list, or fewer than ten upon an appointment eligible list the Cotnmis- sion must certify all names, and the Mayor either may Because the. grievance and arbitration procedures appoint froni tltis list or "demand an eligiblepist." n9 contained in the-coilective bargaining agreement do not apply to complaints regarding another member's promo- .._..tion and ..._ the ECCSC _. , ...... rules provided _.__. no .administrative ._..__. .. n4 City of East Clevelaad Chdinance 7944 remedies to exhaust. the Cotnmissioa's motion for sum- (passed Sept, 20, 1988). mary judgment should not have been {*25] granted on n5 Citv of East Cleveland Ordinance 7616 those bases. This conclusion, however, does not end our (passed Dec. 21, 1982). review because the question of ttte parties' legal rights and duties remain.
APPELLEE APPX061 Pkge 7 2000 Ohio App. LEXIS 6023. *
M. REQUESTED RELIEF tion in a class eligi- ble for promotion. As noted above. Section 123.03(a) requires the mayor to make all appointments and promotions accord- ing to "tnerit and fitness which is ascertained by com- pe6tive exanunations" and all persons who are appointed C?6] or promoted to serve a probationary period of one year Referring to Rulc 17A0, thc ECCSC points out that before the appointment or promotion becomes final. Sec- its rules allow it to waive, by majority vote, its own rules tion 123.08(a) further requires that a promotional exami- regarding time requirements for eligibility. While this nation applicant must have served at least one year in the may be true, we can find no authority in the City Charter rank immediately below the rank for which the applicant or Chapter 123 of the Administrative Code that supports is testing. n11 Applying the these ordinances to the facts the proposition that it can "waive" the application of city here, in order to be eligible to cake the Fire Chief promo- ordinances which govern both the conduct of the ECCSC tional examination. Jenkins would have had to serve in and the inidal examination eligibility requirements for the rank of Deputy Chief for one full year. but he served promotion of a member of the classified service. There- in that position for three days before flling his applica- fore, because Jenkins had not served the requisite one- tion and thirty-five days before taking the promotional year term as Deputy Fire Chief, he was not eligible under examittation. the express terms of Section 123.08(a) of the Administra- tive Code to take the Fire Chief examination in Decent- ber 1997 and, therefore, he was not eligible for certifica- ni l. See Rule 5.40, which defines "open" and tion or subsequent promotion to the rank of Fire Chief. "promodonal" competitive examinations. To be Although Jenkins was not eligible in 1997 to test for eligible to take a promotional examination, or hold the position of Fire Chief, the judgc was not in a position to grant the Union's requests for relief in man- damus to require either the removal of Jenkins or a new the employee must have been in exatnination. While we have determined that Jenkins was paid status for at luast 2080 hours not eligible for examination. certification and subsequent in the twenty-four (24) months promotion, mandamus [*27] is not the appropriate writ preceding the test date; meet the to remove him from the office of Fire Chief. Quo war- minimum requirements listed in ranto is the proper means to challenge a pubiic official's the job specification; and meet one right to hold office, and the remedy of ou.ster can be pro- (1) of the following conditions: nounced in no other proceeding. State ex rel. Stamps v. Automatic Data Processing Bd of Montgomery County (1989), 42 Ohio St. 3d 164, 167, 538 N.E.2d 105; see, 1. Have permanent also, State ex re(. Mazzaro v. Bd. of Edn. of the Euclid status in a ciass de- City Sch. Di.rt., 1984 Ohio App. LEXIS 12110 (Dec. 27, termined by the 1984), Cuyahoga App. No. 49044, uttreported. Commission to be eligible for the ex- T'he Union also did not establish that those holding amination: or the position of Captain for a period of one year had a clear legal right to take the December 1997 Fire Chief 2. Providing that promotional examination. The Union has claimed that. the last test was because there were fewer than two people from the rank open competitive, of Deputy Chief who were both clioible and willing to have been provi- take the examination, the ECCSC had a statutory duty sionally appointed under R.C. 124.45 n12 to open the examination to those to a position in the in the next lower rank of Captain. We note that the class being tested ECCSC rules do not specifically provide for the situation for at least one (1) where no one in ihe next lower rank is elisible and will- year prior to the ing to take the examination for the prontoted ranlc n13 test date; or While "the express ['°28] language of a charter may nul- lify a state ci"viI setvtce law; express cfiarter auth"or'rzaeion 3. Have. received a is necessary to enable municipalities to adopt ordinances provisionzrl ap- or administrative rules that will prevail over stanitory pointment to a posi- provision in case of conflict." Stare ex rel. Lightfeld v. Village of Indian Hill (1994), 69 Ohio St. 3d 441, 442,
APPELLEE APPX 062 Paae 8 2000 Ol io App. LEXIS 6023, *
633 N.E.2d 524, citing State es rel. Bardo v. Lyndhurst examination unless he has served (1988), 37 Ohio Sr. 3d 106, 110, 524 N.E.2d 447. As twolve months in the rank from noted above. Section 30 of the Charter provides only that which the promotion is to he appointments and promotions in the classified civil ser- made, provided in those cases vice shall be made according to merit and fimess, which where there are less than two pcr- is ascertained.by competitive examination, and that city sons in such next lower rank who council shall provide by ordinance for the enforcement have served-twelve months therein of Section 30. Based upon similar language in the char- and are willing to take the exami- ters addressed in Lightfield and Bardo, one might con- nation the twelvc months service clude that R. C. 124.45 is not superseded because the East requirement shall not apply. If the Cleveland Charter does not contain express language non-appiication of the twelve authorizing the adoption of rules regarding the situation month sen-ice requirement to per- where there are no eligible persons in the next lower rank sons in the next lower rank docs to take a promotional exantination, nor do the city ordi- not produce two persons eligible nances grant the ECCSC rule-making [*29] au[Itority. and willing to compete, then the Since there is no "conflict" with those portions of R.C. same method shall be followed by 124.45 calling for testing of successively lower ranks, eoing to successively lower ranks neither the Charter nor the ECCSC rules supersede the until two or more persons are eli- provision of R.C. 124.45. This court, however, is bound gible and willing to compete in an by the Supreme Court's 1988 ruling that Section 30 of examination for the vacancy. ln the East Cleveland Charter superseded the provisions of the event this process of scarching R.C. Chapter 124. See East Cleveland Firefighrers, su- successively Iower ranks reaches pra. Because R.C. 124.45 is superseded by Section 30, the rank of regular fireman, the and neither the ordinances nor the administrative rules twenty-four month service rc- otherwise allow a member of the ranks other than per- quirement applies, provided in sons who have served one year in the rank immediateiy those cases where such application below the promoted rank to take a promotional examina- still fails to produce two persons tion, the ECCSC had no clear legal duty to open the De- who are eligible and willing to cember 1997 Fire Chief promotional exantination to compete, said twenty-four month those persons who had served one year in the rank of service requirement does not ap- Captain. Since the only persons eligible to take the Fire ply. In the event two persons are Chief promotional examination, Doi-sey and Kirchner, unwilling to compete for such ex- withdrew their applications, no one was clearly entitled annnation, then the one person to take the examination and, thus, mandamus would not who is willin- to compete shall be lie to compel the ECCSC to open the examination to appointed to fill the vacancy after those persons [*30) who, during the application. period passing a qualifying examination. in November 1997, had held the ran.k. of Caprairt for a period af one cear [*31]
n12 Vacancies in positions above the rank of n13 See supra note 3. regular fireman in a fire department shall be filled by competitive promotional examinations, and promotions shall be by successive ranks as pro- We affirm the judgment with regard to the LJnion's vided in this section and section.s 124.46 to request for relief in mandamus but reverse with regard to 124.49 of the Revised Code, Petitions in which action for declaratory judgment and, pursuant to App.R. such vacancies occur shall be called promoted 12(B), enterjudgrttent in accordance with this Opinion. ^anks. lt is ordercd thaL thc parties hereto sharg equally in dte cost.s herein taxed. I
When-.a... u.acancy. occurs in--a Itis-ordered..that-a..special mandate issueout -of this promoted rank, other than the court directing the Cuyahoga County Court of Cotnmon promoted rank immediately above Plcas to carry this jutlgment into execution. the rank of regular Ptreman, no person shall he eligible to take the
APPELLEE APPX 063 Paue 9 2000 Ohio App. LEXIS 6023, *
A certified copy of this entry shall constitute the TERRENCE O'DONNELL, P.J., CONCURRLNG IN mandatc pursuant to Rule 27 of the Rules of 9ppellate PAR'P AND DISSENTING IN PART: Procedure. In this case. I concur with the conclusions reached JUDGE by the majoritv to rcversc the judgment of the trial cnurt and to enter final judgrtent declaring th¢t Bobby Jenkins ANNE L. KILBANE illegally holds the position as East Cleveland Firc Chicf. I also agree with the majority in its determination that we PATRICIA ANN BLACKMON, J., CONCUR cannot order Jenkins removed from office because no Wril of Quo Warranto has yet been filed, and that is the TERRENCE O'CONNELL, P.J.. CONCURS propcr means of secking removal. IN PART AND DISSENTS IN PART. (SEE CONCURRING AND DISSENTING OPINION). However, I dissent froni that portion of the opinion which denies relief in mandanius against the East Cleve- N.B. This entry is an announcement of the court's deci- land Civil Service Commission because it appears that sion. See App.R. 220), 22(D) and 26(A); LocApp.R. 22. Section 123.09 of the Administrative Code requires the This decision will be journatized and will become the Comnrission to hold competitive examinations to estab- judgment and order of the court pursuant to App.R. 22(E) lish a promotional eligibility list. While the majority ar- unless a motion for reconsideration with supporting gues [*33] that when Dorsey and Kirchner withdrew brief, per App.R. 26(A), is filed within ten (10) days of their applications, no one was clearly entitled to take the [*321 the announcement of the court's decision. The examination, I see the focus in this claim for relief as titne period for review by the supreme Court of Ohio being on the duty of the Cotntnission to conduct the ex- shall begin to run upon the journalization of this court's aminations and to establish the eligibility list, not on the announcement of decision by the clerlc per App.R. 22(E) . applicant's entitlem,ent tn take it. The facts of tltis case See, also, S. Ct. Prac. R. II, Section 2(A)(1). suggest to me, in accordance with Section 124.45, that the Commission should open the promotional examina- CONCURBY: TERRENCE O'DONNELL (In Part) tiorrs to those who held the next lowest rank. Captain, in November, 1997. DISSENTBY: TERRENCE O'DON'NELL (In Part) Accordingly, I would reverse the judgment of the trial court. and grant the writ of mandamus to compel the DISSENT: Commission to open the promotional examination to CONCURRING AND DISSENTING OPINION those who had held the rank of Captain for one year dur- ing the November. 1997 application period. Thus, on this claim for relief, I dissent from the majority.
APPELLEE APPX 064 Pasc 1
LBXSEE 1982 ALAS. LEXIS 406
Stewart EIDELSON, Ernest Webb, and Teamsters Union Local 959, Appellants and Cross-Appellees, v. Gary ARCHER, Appellee and Cross-Appellant
Nos. 5494, 5495
Supreme Court of Alaska
645 P.2d I71; 7982 A1as. LEXIS 406
May 21, 1982
PRIOR HISTORY: [•*1] Appeal from the Superior hospital and [•'2] had defamed him. I Court of the Stateof Alaska, Third Judicial District, accepted an offer of Anchorage, Roy H. Madsen, Judge. I On April 3, 1978, Archer judgtnent made by Ivy of $ 1.00. The remaining defendants Bidelson, Webb and Local 959 COUNSEL: Louis R. Veetrnan, Ely, Guess & Rudd, proceeded to trial and are appellan[s before this Joseph W. Evans, Stanley B. Maloes, and Lori S. court iCornblum, Birch, Horton, Bittnet, Monroe, Pestinger & Prior to trial Arclter amended . his complaint, Anderson, Anchornge, for Appellants and substituting forthc three claims for ["173] relief initially Cross-Appellees. pled a single claim for wrongful use of civil proceedings Lester W. Miller, Anchorage, for Appellee and grounded upon Restatement (Second) qf Torts § 680 Cross-Appellant. (1976), "Proceedings Before an Administrative Board". 2 The jury returned a verdict in Archer's favor for $ JUDGES: Rabinowitz, Chief Justice, Burice, Matthews, 150,000 in compensatory damages and $ 500,000 in and Compton, Justices, and Dimond, Senior Justice. punitive damages. The superior court thereafter denied Connor, Justice, not pardcipating. motions for judgment n.o.v. and for a new trial but granted remittitur in the amount of S 200,000, thereby * Dirnond, Senior Justice, sittingby assignment reducing the award of punitive damages from $ 500,000 made pursaant to article IV, section 16 of the m $ 300,000. Constitution of Alaska. Ala.ska R. Admin. P. 23 (1976)1 (a) 2 Restatemenf /Second) ofTorts,¢ 680 "Proceedines Before An Administrative Bozrd," OPINION BY: RABINOWITZ states:
OPINION One who takes an active part in the inifiation, confinuation or [*172] Gary Archer, M.D., filed an action against procurement of civil proceedings William Ivy, M.D., Stewart Eidelson, M.D., Emest against another before an Webb, and Teamsters Union Local No. 959 (Local 959) administrative board that bas following the summary suspension of his medical staff power to take action advmely privileges at the Alaska Hospital and Medical Center, Inc. affecting the legally protected Archer, in part, allegcd that defendants had conspired to interests of the other, is subject to accomplish his "wrongful renioval" from the hospital .liability . for any...specialharm_ tnedical staff, had intentionally interfered witlt his caused thereby, if contractual and professional relationships with the
APPELLEE APPX 065 Page 2 645 P.2d 171, *173; 1982 Alas. LEXIS 406, `*2
(a) he actswithout probable Second, appellants argue that in considering cause to believe that the charge or the validity of Archer's suspcnsion the trial court claim on which the proceedings are should have applied the "substantial evidence" based may be well founded, and svmdard. They claim that the superior court was primarity for a purpose other than presehted with clear and substantial evidence that of securing appropriate action supporting Archer's suspension, therefore Archer's by the board, and claim should have been rejected.
(b) except where they are ex Third, they contend there was insuificient parte, the proeeedings have evidence of any involvement by Local 959 to terminated in favor of the person support the jury's award of cotnpensatory and against whom they are brought. punitive damages against the Teamsters union.
Fourth, Webb and Eidelson claim they arc [*"'3] Appellants' primary contention in this appeai immune froni liability for Archer's suspension is that the judgment should be reversed and the suit because they acted in good faith within the scopc dismissed becau,se of Archer's failure to exhaust his of thc,-ir authority as agents of the hospital. adminisuative remedies. 3 We conclude that Archer's failure to exhaust the hospital's intemal remedies requires Finally, appellant.s argue there was the dismissal of his suit. 4 insufficient evidence that they acted with malice or reckless indifference to Archer's interests to 3 Appellants presented threc arguments on the support the jury's award of punitive damages. cxhaustion of remedies issue. First, that an action for damages by a physician, challenging the Archer cross-appealed on the issue of suspension of his hospital privileges, cannot be damages, claiming that the trial court abused its maintained until the physician has first exbausted discretion in ordering remittitur of the punitive the appeni procedures set out in the hospital's damages from $ 500.000 to S 300,000. As a bytaws. Second, that having failed to exhaust result of out decision Archer is no longer entitled these administrative remedies Archer cannot now to any damages so we need not address the complain that the suspension procedure was validity of the order of remittitur. improper. Third, that Archer's action for damages [**4] Summarv was an impermissible attempt to circumvent the oJ'the Facts notmal peer-review procedures. We treat these On August 8, 1977, Dr. Gary Archer. then director of separate arguments as components of the geneta) the Cridcal Care Unit (CCU^ at the Alaska Hospital and exhaustion of remedies doctrine. Medical Center (the hospital), was summoned to a 4 This bolding makes it unnecessarv to address mecting being held in the office of Dr. Stewart Eidelson. appellants' other specifications of error. Thc Dr. William Ivy, president of thc medical staff of the following is a summary of appellants alternative hospital, had asked Dr. Eidelson to arrange this meeting arguments. between Ivy, Eidelson, Archer, and hospital First, appellants assert that the hospital administratots Charles Rigden and Emest Webb. 5 1vy disciplinary procedures were not proceedings . testified he called this meeting to deal with allegations of beforc an "administrative board" therefore tnisconduct on the part [*174] of physicians, including Dr. Archer, working Archer's claim was improperly based on § 680 of in the CCU. the Restatement (Second) of Torts. See n.2 supra. 5 Dr. Eidelson was a health care, consuitant to Altematively appellants argue that Archer failed the Alaska Teamster Employers Service to establ#sh a claim for relief under § 680 because Corporation and had worked previously with Dr. there was no evidence that Webb and Eidclson Ivy. Ivy testificd that he wanted to conduct the acted without probablecauseor for some meeting in a confidential location and that improper purpose when they consented to Eidelson offered the use of his office, located in Archer's suspension.
APPELLEE APPX 066 Page 3 645 P.2d 171, *174; 1982 Aias. LEXIS 406, **4
the Teamsters Mail Building adjacent to the complaint was laterdismissed by thc Municipality hospital. of Anchomge. 8 Appellants contend that Ivy had inciependently Prior to Archer's arrival, Tvy, Webb, Eidelson and decided ro suspend Archer prior to the meeting Rigden discussed the problems [*"5] in the CCU and that the purpose of the meeting was to infomi revealed by a committes investigation 6 and a report that Archer and the others of Ivy's decision. Archer Archer had. boen involved in a dispute with a hospital contends that the decision to suspend hun was janitor. ' According to Archer, when he arrived at the made jointly by Ivy, Webb, Eidelson, and Rigden meeting Eidelson asked him to relate his vcrsion of the at this meeting. Archer claims that Eidelson was janitor incident and then asked him to wait in the outer acting as an agent for Jesse Carr, ofFice. Several minutes latcr Archer was called back into secretary-treasurer of Local 959, and that the the office where Ivy informed him that his hospital suspension was instigated by Carr and Local 959 privileges were summarily suspended for an indefinite through their representative Eidelson. term. 8 Archer testified that when he asked Ivy for an explanation, ivy stated that it was forpast and preseni The following day, August 9, 1977, Ivy scnt a letter disruptions. Ivy testified that bis response to Archer was to Archer formally notifying him of the sunmtary that he would not attempt to delineate all the reasons for suspension and of his right to [**7] a hearing under the the suspension, but that in general it was for past and hospital bylaws, 9 On August 16, Archer wrote Ivy a present dismptions involving patient care. letter requesting a hearing on the summary suspension; however, Archer rescinded this request on August 18. 6 There had been allegations that a CCU Archer stated that he withdrew his request for a hearing padent's medical records had been altered. in order upon the advice of Webb and Dr. Sherman Beachman to conceal the fact that the patient had been given who suegested that it would be better to await Ivy's a harmful drug overdose. Dr. Ivy had appointed announcemtmt of the duration of the snspcnsion before an ad hoc committee to investigate these charges. deciding whether to request a hearing. In its fmal report the committee concluded that the patient had probably been administered a drug 9 The bylaws, adopted and approved by the overdose and that there was definite evidence the medical staff and the hospital, set out the patient's medical records had been altered. The conditions and procedures governing the committee noted that there was evidence that suspension or termination of sraff privileges, physicians in the CCU had verbally abused Article VII § 2(b) provides: nurses, other employees and patients. There were also allegations that some physicians had A practitioner whose clinical consumed alcohol while on hospita( premises. privileges have been summarily The committee concluded that it was unable to suspended shall be entitled to make any concrete fmdings on these charges since request that the executive it had directed its main investigative efforts committee of the inedioal staff towards thc ovcrdose incidcnt. Ivy tcstiFicd that hotd a hearing on the matter within he attributed these problems to Arc6er, personaliy such reasonable time period and as director of thc CCLt. thereafter as the executive [**6] committee may be convened in 7 On the cvening of August 4, 1977, Archer accordance with Article VIII of apparently had an argument with a janitor these bylaws. cntployed at the hospital concerning a locked entrance door through which Archer had attempted to enter. A police offi er was .On August 23, ^at a meeting of the executive summoned because the janitor decided^to file a committec 10 of [*"8] the hospital medical staff, Ivy complaint. The janitor and his supervisor stated advised the committee members of the suspension and that Archer had shoved the janitor during the received the"coirinuttee's [*I75] suppdit for thc acfions argument. Archer denied this charge, and the he had taken conceming Archer. Two days later. August
APPELLEE APPX 067 Page 4 645 P2d 171. * 175: 1982 Alas. LEXIS 406. ""8
25, Ivy informed Archer that his suspension would 30, 1977, Ivv instituted corrective action procedures continue until December 1, 1977. Archer olaims that hc against Archer via a letter to the executive committee again asked whv he was being suspended and tLat he containing 37 altega8ons of misconduct.,t2 Archer's received no answer. The following day, August 26, Ivy counset received noiice of the investigation and a request seni written notification of his decision io Archer, stating to appear before the ednvnittee, but Archer declined to that the action was being taken in the interest of patient participate. care and advising that Archer had 30 days to request a hearing on his suspension. iI 12 Article VII § 1(a) of the bylaws states:
10 Article XI § I provides in part: Whenever the activities or professional conduct of any a. Composition: The executivc practitioner with clinical privileges committee shall be a standing are considered to be lower than the committee and shall consist of the standards or aims of the medical officers of the medical staff, the staff or to be disruptive to the chairmen of each clinical operations of the hospital, department and one corrective action against such member-at-large. The president is practitioner may be requested by chairman of the committee, and the any ofFicer of the medical staff, by chief executive officer is an Px the chairman (chiefl of any clinical officio member without vote who department, by the chairman of any shail sit with the comuuttee at all standin¢ committee of the medical times except when it is in staff, by the chief executive executive session. officer, or by the governing body. All requests for corrective action shall be in writing, shall be made At the time of Arcber's suspension, the to the executive committee, and executive committee consisted of Dr. David shall be supported by reference to Dietz, Dr. George Hale, Dr. Thomas Harrison, Dr. the specific activitie.c or conduet William Ivy, Dr. John Lyon, Dr. Gcmld Morris, which constimte the grounds for Dr. Burritt Newton, Dr. Jerry Orren, Dr. Donald the request. Rogers, Dr. Tryon Wieland, and hospital administrator Charles Rigden. [**9] [°*10] On December 1, the executive committee 11 We note that the hospital bylaws do not voted to permanently suspend Archer's hospital specifv any pttrticutar time period for the request ptivileges. Written notice was sent to Archet's attomey of a hearing. Since Archer has not raised any of Archer's right to request a hearing. Archer did not challenge to the adequacy of the 30 day period we request a hearing, proceeding instead with the court conclude that it was reasonabie. action he had already filed.
On August 29, the hospital executive committee held In the superior court appellants then moved for a special meeting. The members of the committee were: summary judgtncnt on the ground that Archer had failed issued copies of the investigation uito the probletns in the to exhaust tlte remedies available under the hospital's CCU, and Ivy informed them of bis extension of Archer's bylaws. The superlor court denied the motion, tuling that suspcnsion. The committee voted to support Ivy and to Archer was entitled to a trial to determine the validity of continue the investigation into the allegations of the original summaryI suspension. Appcllants contend the misconduct. superior court's r¢fusal to appiy the exhanstion of remedies requirement... and thus grant summary judgment ATchor apparently decidednntYorequestahzaring in tlieir favorwas erroneoiis. on his summary suspension, and on September 7, 1977, he filed this action in the superior conrt. On Scptember I. Does The Exhaustion qfRemedies Doctrine Applv?
APPELLEE APPX 068 Page 5 645 P.2d 171. *175: 1982 Alas. LEXIS 406. "*]0
The threshold question iswhether theexhaustion of The exhaustion ofremedies - doctrinc is well remedies doctrine is applicable to the internal peer review established in the field of administrative law, 15 A central and disciplinary prncedures of a privately owncYt hospital. principle of this doctrine is that a party is not cntitled to, 13 Althongh scvcral [*I76] courts 14 have,applied the seek judicial relier" for a supposed or threatened injury exhaustion doctrine to private hospital proceedings, this until the available administrative reniedies have been is a question of first impression in Alaska. exhausted. McKart v. United States. 395 U.S. .185, 193, 23 L. Ed. 2d 194. 203, 89 S. Ct. 1657 (1969); Mverr v. 13 W e note that cases involving the denial or Bethlehem Shipbuilding Corp., 303 U.S. 41, 51. 82 L. Ed. terminatitm of a physician's hospital privileges 638, 644, 58 S. Cl. 459 (1937). In this ca.se, however, we have focused on whether the hospital was a public zre not dealing with the actions of an administrative or private institution. The traditional rule is that a agency. Instead of an action taken by a public private hospital's decisions in this area are not governmental body, we are presented with the summary subject to judicial review unless it is charged that susnension and later tetmination of a physician's the hospital has violated the procedural privileges by the medical staff and governing board of a requirements of its by] aws. Shulman v.. privately opcrated hospital. To determine ,**121 Washington Hoso. Center, 222 F. Supp. 59, 63 whether the exhaustion rule should be applied in this (D.D.C. 1963); West Coast Hosp. A.s.r'n v. Hoare, context it is nccessary to examine the underlying 64 So.2d 293, 297 /F/a. 1953): Silver v. Castle objectives of the exhaustion doctrine and the nature of the Memorial Hospital, 53 Haw. 475, 497 P.2d 564, proceedings involved. 567, 53 Haw. 563 (Hawaii 1972), cer[. denied, 409 U.S. 1048, 34 L. Ed. 2d 500, 93 S. Ct. 517 15 IC Davis, Administrative Law Treatise §§ (1972): Burkhart v. Communitv Medical Center, 20.01 -.10 ( 1958 & Supp. 1965): L. Jaffo, Judicial 432 S. W.2d 433, 435 (Ky. 1968). Control of Administrative Action 424-58 (1965).
In Storrs v. Lutheratt Hoap. and Hnmes Socv, in Van Hyning v. Uaiversitv of Alaska, 621 P.2d 609 P.2d 24, 28 (Alaska 1980), we held that a 1354, 1355 (r3la.ska 1981) we stated: privately operated hospital, which was the only hospital serving the conanunity and which was "Tbe basic purpose of the exhaustion partially financed and supported by public funds, doctrine is to allow an administrative was a "quasi-public" insfimtion that could not agency to perfomi functions within its violate due process when suspending a physician's special competence - to make a factual privileges. It is unclear from the record whether record, to apply its expertise, and to the hospital in this case would qualify as a correct its own errorsso as to moot "quasi-public" institution under Storrs. A judicial controversies." Parisi v. Davidson, discussion of the public or private nature of the 405 U.S. 34, 37, 31 L. Ed. 2d 17, 25, f92 hospital is unnecessary, however, since Archer's S. Ct. 815] (1972). suit is based on charges that his suspension was rendered in violation of the procedural The reasons underlying the exhaustion doctrinc apply requirements of the hospital's bylaws. The equally to cases such as the instant case where a party hospital's decision is therefore subject to judicial seeks judicial review of a decision that was not appcaled review, even under the traditional test, regardless through the adtninistrative process. McKart v. United of the public or private character of the institution. States, 395 U.S. at 194, [**131 23 L. Ed. 2d at 203-04. [`*lll As the Supmmic Coun stated: 14 Shulmms v. Washington Hosp. Center, 121 Judicial review may be hindered by lhe U.S. App. D.C. 64, 348 F.2d 70 (D.C. Cir. 1965); failnre of the litigant to allow the agency Westlake Communitv Hasv. v. Superior Court, 17 to make a factual record, or to exercise its Cal. 3d•465, 551 P.2d 410, 131 Cal. Rptr. 90 discretion or apply its expertise .... A ^ (Cal. 1976); Garrow v. Elizabeah Gcm. Hosp, and complaining._...._ party may be successful in Dispensary, 79 N.J. 549,401 A.2d 533 (N.J. vtndicating his rights in the administrative 1979). process. If he is requircd to pursue his
APPELLEE APPX 069 Page 6 645 P.2d 171, *176: 1982 Alas. LEXIS 406, **13
adinihistrative remedies, the co»ttz ntay Asimilarobservationwasmadein Garrmvv. Elizabeth never have to intervene. And notions of Gersercd Hospital and Dispensary. 79 :'v:J. 549, 401 A.2d adtninistrative autonomy require that the 533, 538, (N.J. 1979): agency be given a chance to discover and correct its own errors. Finaliy, it is possible that frequent and delibemte flottting of the administrative processes could weaken the effectiveness of an The reasons for the rule relate with agency by encouraging people to ignore its like force to hospital proceedings. If the procedures. complaining party prevails before the administrative agency or the hospital Id. at 194-95. 23 L. Ed. 2d at 204. board, judicial proccedings would have been unnecessarv and the court would We must ascertain whether the basic purposes of the have intervened needlessly .... A hospital exhaasrion doctrine are relevant to the peer review board presumably has expertise in certain decisions and procedures of an association of physicians areas, particularly in determining a at a privately operated hospital. When faced with this physician's qualification in relation to a precise issue. the California Supreme Cotut concluded: lrospital's facilities, need.s and personnei .
The policy considerations which support the imposition of a general exhaustion Furthermore, it is preferable to decide requirement remain compelling in this issues after factual disputes have been context. In the first [*" 14] place, even if resolved by the fact-fmding body and not a plaintiff no longer wishes to be either ina vacuum. Often issues will become reinstated or admitted to be organization, more limited and sharpened wheti the facts an exhaustion of remedies,requirement have been delineated. These results will serves the salutary fimotion of eliminating generally be embodied in the factual fmdings of the agency or the hospital at or mitigating damages. If an organization the conclusion of the proceedings. is given the opportunity quickly to determine through the operation of its and Garrow persuasive and conciude intemal pmcedures that it has committed We find YYestlake ctror, it may be able to minimize, [*177] that the exhaustion of remedies doctrine is applicable to and sontetimes eliminate, any monetary cases involving the loss by a physician of hospital injury to the plaintiff by immediately privileees. reversing its initial decision . . . . In deciding that the exhaustion rule should apply to Moreover, by insisting upon Archer's challenge of his summary suspension of his exhaustion even in these circuntstances, medical staff privileges at the hospital, we balance the courts accord recognition to the intcrest in allowing the hospital [**16] to apply its "expertise" of the organization's special competence and expertise, correct its errors, devciop a proper record, and discourage deliberatc quasi-judicial ttibunal, permitting it to adjudicate the merits of the plaintiffs flouting of its processes with Archer's interest in the availabiliry of adequate redress for his griovance.^. claim in the first instance. Finally .... the Monrgomerv v. Rumrfeld, 572 F.2d 250, 253 (9rh Cir. prior administrative proceeding will still 1978); United States v. Newmame, 478 F.2d 829, 831 (8th promote judicial ef8ciency by unearthing the relevant evidence and by providitig a Cir. 1973). The hospital's dccision to suspend Archer and thesubsequent termination proceedings ncccssarily record which the court may review. concemed consideration of his professional competence andhis ability to function zsparr ofthehosprtsl'shcaltli We.rrlalre Commuracty Hospital v. Superior Court, 17 Cal. 3d 465, 551 P.2d 410, 416, 131 Cal. Rpn% 90 (Cal. 1976). care system. Courts have recognized that the evaluation
APPELLEE APPX 070 Page 7 645 P.2d 171. * 177; 1982 Alas. LEXIS 406, ** 16
of the medical qualifications of physicians is a factua.l hospita{; form nnintegral part of the contractual dctcrminadon properlv committed to the expert judgment relationship between the hospital and Archer. a ntctnbcr of the hospital authoritie.s: , of the medical staff. Fahev v. Holy Fami(v Hospilal, 32 III. App. 3d 537, 336N:E.2d 309. 314 (I11. App. Ct. 1975), No court should substitute its cvaluation c,ert. denied, 426 U.S. 936, 49 L. Ed. 2d 387, 96 S. Ci. of such matters for that of the Hospital 2650 (1976); Adler v. Montefrore Hospital Association, Board .... The evaluation of professional 453 Pa. 60, 311 A.2d 634, 645 (Pa. 1973), cert. denied, proficiency of doctors is best left to the 414 U.S. 1131, 38 L. Ed. 2d 755, 94 S. Ct. 870 () 974/. In speciatized expertise of their peers, subject accepting an appointment to the medical staff, Archer only to limitedjudicial stuveillance. agreed to abide by the provisions of the hospital bylaws. l8 Sosa v. Board of eYtanagers. 437 F:2d 173, 177 (5th Cir. 18 Article IIi § 3(d) provides: 1971). 16 Given this need for the expert judgntent of the medical staff. there is a strong interest in [*"17] allowing thc hospital's peer review process to function without Every application for staff appointment shall be signed by the premature interference by the court. At the same time we recognize that Archer's interest in maintaining his staff applicant and shall contain the privile¢es is an iinportant one which deserves adequate applicant's specific acknowledeement of everv protection. Storrs v. Lutheran Hospitals and Homes medical staff inember's obligations Society, 609 P.2d 24, 28 (Alaska 1980); Stretten v. to provide continuous carc and Wadsworth Yeterans Hospital, 537 F.2d 361, 366-68 (9th supervision of his patients, to abide Cir. 1976); Anion v. San Antonio Community Hospital, 19 Cal. 3d 802, 567 P.2d 1162, 1168, 140 Cal. Rptr. 442 by the medical staff bylaws, ruies and regulations, to accept (Cal. 1977). There is nothing in the namre of this interest, however, which would lead us to conclude that the committee assignments, to accept exhaustion rule is inapplicable [*178] or that itnmediate consultatinn assignments, and to judicial intervention was necessary to insure adequate participate in staffing the protection. 17 Bv allowing Archer to bypass the hospital's emergency service area and. other intemal adjudicatory procedures, the superior court, as a special care units. practical matter, improperly allowed thejury to substitute its judgtnent for that of the hospital's peer system. [*°19] Articlcs VII and VIII of the bylaws entitled request a hearine to contest the suspension of 16 See also Klinge v. Lutheran Charities Ass'n qf Archer to St. Louis, 523 F.2d 56, 61 {8th Ctr. 1975); his staff privileges and set out an internal appeal could seek review and .Iacksan v. Fulton-Dekalb Ha.sp. Auth., 423 F. procedure by which Archer by the hearing Supp. 1000, 1003 (Ad.D. Ga. 1976); Silver v. reconsideration of an advetse decision executive committee. 19 The bylaws also Castle Memorial Hosp., 53 Haw. 475, 497 P.2d board or the 564, 567, 53 Haw. 563 (Hawaii 1972) cert. provide that a practitioncr who fails to request the the bylaws denied, 409 U.S. 1048, 34 L. Ed. 2d 500, 93 S. Ct. appropriate hearing or appeal provided in 517 (1972); Garrow v. Elizabeth Gen. Hasp. and shall be deemed to have waived his right to appellate 20 The application of the exhaustion Dispensary, 79 N.J. 549, 401 A.2d 533, 538 (N.J. rcvicw of the matter. 1979). doctrine to Archer's suspension is supported by the ["*18] general rule that parties to a contract must exhaust the to seeking 17 ln Part II of the opinion, we consider the remedies provided by the coneract prior of Teamsters, specific grounds Archer has asserted in support of judicial relief., International Brotherhood his ciaim that the exhaustion requirement should Local 959 v. King, 572 P.2d 1168, 1172 n.9 (A1askcr v., International Union of Operaling be waivcd in this case. 1977); Holderby [*179] Engineers, Local_. Union._ . No. . _.. 1', 45 .,_.._ Cal. 2d 843, In reaching this decision, we note that the bylaws, 291 P.2d 463, 466 (Cal. 1955). Our decision is also adopted and approued by the medical staff and the consistent with the rule that an aggrieved member of a
APPELLEE APPX 071 Page 8 645 P.2d 171, *179; 1982 Alas. LEXIS 406, **19
private association mustexhausr theremediesprovided- §.q, by the organization before seeking judicial action against [.*21] the association. Garrow v. Elizabeth Gcneral Hospital 20 Article VIII § 2(b) provides: and [**20] Dispensary, 79 N.J. 549, 401 A.2d 533, 539 (NJ 1979); Kopke v. 2anney, 16 Wis. 2d 369, 114 The failure of a prectitioner to N.W'.2d 485, 487 (Wi.s. 1962); Atmot., 20 A.L.R.2d 532, request a hearing to which he is 564-65 (1951). entitled by these bylaws within the titne and in the manner herein 19 A physician whose staff privileges have been provided shall be deemed a waiver summarily suspended may request that the of his right to such hcaring and to executive committee hold a hearing on the matter. any appellate review to which he Article VII § 2(b). Within 10 days after receipt of might otherwiso have been entitled a request for a hearing, the execntive conunittee is on the matter. The failurc of a required to schedttle a hearing and provide the practitioner to request an appellate practitioner with notice of the hearing and a list of review to which he is entitled by the grounds for the suspension. Article VIII § 3. these bylaws within the time and in the manner herein provided shall The hearing shall be before an ad hoc be deemed a waiver of his right to comtnittee of three or more members of the such appellate review on the medical staff appointed by the president of the matter. medical staff in consultation with the executive committee. Article VIII §§ 1(a), 4(a). At this hearing the practitioner is entitled to present In light of the foregoing discussion we hoid that the evidence and to call and question witnesses in exhaustion doctrine is applicable to Archer's challenge of order to contest the charges of misconduct. the suspension and subsequent termination of his hospital Article VI17 § 5(i). The hearing committee then privilcges. forwards a written report and rewmtnendation to the executive committee. The report may 11. Is Arcner:s Failure To Exhaust The Availablc. recommend confirmation. modification or Remedies Excused? rejection of the sti.spension order. Article VIII § 5(I). The exhaustion of renicdies doctrine, like most _iudicial doctrines, is subject to excentions. McKart v. If the executive committee, after United States, 395 U.S. 185, 193. 23 L. Ed. 2d 194, 203. oonsideration of the hearing committee report, 89 S. Ct. 1657 (1969); L. Jaffe, Judicial Control of docs not terminate the suspension, then the Administrntive Action, 432-49 ( 1965). We now consider physician is entitled to request appellate review the specific grounds Archer [**22] has presented in by the governing board of the hospital. Articie support of his claim that an exception to the exhaustitm VIII §§ l(a), 6(a). The appellate review is requirement is ju.stificd in this case. conducted by the govetning body or by a duly appointed comnuttce of three or more members of Initially, Archer asserts that a physician who is the govetning body. Article VIII § 6(d). The suspended or tetminated without proper notice of the practitioner must bc given access to the record charges or a hearing is entitled to institute an immediate and report of the prior hearing and all other action for damages. He cites Willis v. Santa Ana material which was considered by the executive C'.ommuniry Hospital Association, 58 Cal. 2d 806, 376 comrnittee. He mav submit a written statement, P.2d 568, 570, 26 Cal. Rptr. 640 (Cal. 1962), which held and he may orally present his argvment to the that a physician who is excluded or distnisseq, without appeal board^which then has 20 days to issue its receiving any notice or ccaring, may immediately bring decision. If the governing board affirms the an action for damages. A proper reading of Willis does summary suspensmn, n beeomes final- audniit not-snpport ftrcher's-argument-that--he^ was-entitled- to- --- subject to furflier hearing or review. Article VIII bypass the hospital's review procedures. ln reaching this conclusion, we rely on the CalifomiaSupreme Caurt's
APPELLEE APPX 072 Pagc9 645 P.2d 171, r 179; 1982 Alas. LEXIS 406, **22
intcrprctationof Willis istAestlake Commmtitl-Ha,spitcrl patient and that the decision -to- suspend - him- was - v. Superior Court, 17 Cal. 3d 465, 551 P.2d 410, 131 niotivated by economic concems. He argues the hospital Cat. Rptr. 90 (Cal. 1976), in which the court stated: was experiencing financial difflcnlties and that the appellants decided to get rid of him in order to increasc In Willis• ... •, we held that a doctor's the usage of the CCU by outside physicians. 2' cotnplaint, containing allegations very similar to the instant complaint, stated a common law caase of action for intentional and unjustifiable interferenee Any one of the following -- the with the right to pursue a lawful business. chairman of the executive [**23] calling, trade or occupation. In contrnittee, fne president of the Willis, however, we did not address the mcdical staff, the chairman of a exhaustion o( remedies issue discussed clinical departnient, the chief herein, fur lhe complaint alleged simplv executive officer and the executive that p[aintiffs staff inembership had been committee of either the medical lerminated "without an), hearing or staff or the goveming body -- shall assigned rea.son...... and there was no each have the authoritv, whenever indication that any internal remedy was action must be taken immediatedv available under the hospital's bviaws. in the best interest of patient care in the hospital. to summarily Id. at 416 n. j (citations omitted) (emphasis added). suspend all or any portion of thc clinical privileges of a practitioner, Properly construed, Willis stands for the proposition and such summary suspension that whcrc no intemal remedies are afforded a direct shall become effective action for damages may be available. Westlake, 551 P.2d immediately upon imposition. at 417: In this case when Archer was summarily (emphasis added). suspended, he was notified of his right to a hearing under the bylaws. The day after Archer was advised that his ["*25] suspension would continue until December, he was given 22 In 1976, the hospital was moved from a written notiou of his right to request a hearing within 30 five-story 85 bed structure to a new seven-story days, Archer was also notificd of the subsequent 200 bed facility. Archer claims underusage of initiation of termination proceedings by the executive this new facility led to serious financial problems committee, and he was given the opportunity to for the hospital. Archer contends outside participatc. Unlike Willis, Archer did Itave available physicians were discouraged from using the CCU remedies, bur he declined to excrcise them, choosing becau.se, as director of the CCU. he demanded instead to file an independent law suit. Therefore, wc that they demonstmte their ability to carry out reject [**24] Archer's contention that he w•as entitled to complicated CCU procedures before he would imniediately commence an action in superior court for allow them to admit and treat their patienfs in the compensatory and punitive damagcs. CCLT. He asserts that the hospital adntinistration considered him an obsta.cle to the needed increase Archer next contends his summary suspension was a in hospital use and used the alleged problems in dcliberate misuse of the hospital's disciplinary the CCU and the janitor incident as an excuse to procedures, ner se invalid under the bvlaws, and thu.a get rid of hini. cxcused his failure to exhaust the remedies provided in the bylaws. According to Archer, appellants' decision to Areher relies on the fact that he was originally surnmarifv suspend him was impmper since they laed informed-that his suspensiori was for "past and present probable cause to believe that his immediate suspens on disruntions." He points out that while disruptive conduct was in the best interest of patient care is roqutred under is a groundfor "corrective acuon under Article VII § 1 Article VIT § 2 of the [*180] bylaws. Archer further of tbe bylaws, this section provides that the physician be asserts that there was no evidence he was a threat to any given noticeand a hearing prior to the imposition of any
APPELLEE APPX 073 Pa_c 10 645 P.2d 171, *180: 1982 Alas. LEXIS 406, **25
correctiveaction. 23He-arguesthatsince he was being with other nicmbersof the hospital staff may hinder or suspended. for "disruptions" he [**26] was entitled to undermine the effective neahnc.-nt of patients. Miller n. notice and a hearing prior to any suspension and that any Eisenhower Medical Ccmter, 27 Cai. 3d 614, 614 P.2d attempt to summarily susnend him was per se improper, 258, 267, 166 Cal. Rnrr. [**28] 826 (C'al. 1980); Silver .tbereby excusing him from any exhaustion of remedies v. CastleMemorialHospital, 53Haw. 475, 497P.2d564, requirement. 568, 53 Hav,,. 5 63 (Hatvaii 1972), cert. denied, 409 U.S. 1048, 34 L. Ed. 2d 500, 93 S. Ci. 5/7 (1972); Hufjaker v. 23 Under Articlc VII § I of the hospital bylaws, Bailey,273 Ore. 273, 540 P.2d 1398, 1400 (Or. 1975). a request for corrective action is fnst presented to Archers theory that his summary suspension for the executive committee. Article VII § 1(a). Tf the disruptive [*181] conduct was automatically void under corrcetive action could be a reduction or the bylaws tnust therefore be rcjected. suspension of clinical ptivileges, the executive committee then directs the chairman of the In rejecting Archer's arguments, we are not ruling on department in which the practitioner has the nterits of Archer's claim that the hospital's summary ptivilcges, to appoint an ad hoc inves-tig•ating action was unjnstified. Any challenge or objection which conunittee. Ardcle VII, § I(b). Archcr had regarding the propriety of his suspension and later termination should have been raised through the This investigating committee reports back to appeal process provided in the bylaws. Whether a the executive connnittee within 30 days. Article physician's alleged misconduct poses a threat to paticnt VII § 1(c). If the executive committee decides to care is nrecisely the type of question to which the reconnnend a reduction or suspension or exhaustion of remedies doctrine should apply, since the revocation of clinical privileges, the affected evaluation of the professional competence of doctors practitioncr is then entitled to an adversary requires the specialized expertise of a hospital review hearing before an ad hoc contmittee of the panel. Sosa v. Board qf Managers, 437 F.2d 173 (5tA medical stafl'. Article VII § 1(0, VTTI § 1(a). Cir. 1971). Furthermore, if we take Archer's argument to its logical conclusion, the exhaustion of remedies If the recommendation of the executive doctrine could be disregardcd [**29] whenever the committee following this hearing is still adversc hospital's actions are found to be improper. In order to to the practitioner, he is entitled to an appeal determine whether the doctrine should apply, a court before the governing body of the hospital before would first havc to grant a trial on the merits of the any disciplinary sanctions are actually imposed. hospital's action, the very result which the exhaustion Article VIIT § 1(a). domine seeks to avoid 24 In reality, this would result in the bypass of the exhaustion requirement once a plaintiff [**27] We reject, for severxl reasons, Archer's even alleges that thc hospital's action was invalid, since if assertion that the alleged invalidity of the suspension the allegations are larer fcund to be true, the failure to justified his failure to exhaust the remedies providcd in exhaust would be cxcused. thc hospital bylaws. Initially, we note Archer's main arguinent is based on an overly litcral interpretation of 24 The superior court appzrently accepted the bylaws. In essence, Archers contention is that since Archet's arguinent on this point. In denying dismptive conduct is mentioned in Article VII § 1(a) as a appollants' motion for sunimaty judgmcnt, the basis for corrective action, it can never serve as a ground court stated that regardless of Archer's failure to for sumnrary suspension under Article VII § 2. A more exhaust the hospiral's internal remedies Archer reasonable reading of the oylaws leads to the conclusion was entitled to a jury trial to determine the that corrective action under Article VII § I is not the validity of the original summary suspension. cxclttsive disciplinary remedy for disruptive conduct. The bylaws provide that summary action can be taken One of the primary purposes of the exhaustion of whencver immediate action is in the best interest of reinedies rule is to nkomote judicial economy by patient care. It is not difficult to imagine situations in affording an institution the opportunity to correct ita own w'hibh a physician's disruptive conduct oouldpose a errors, so as to render;(udicialaction iuinecessary. [**30] tbreat to patient care. Several courts have recognizcd that Van Hyning v. University nfAlas/ra. 621 P.2d 1354, 1356 a physician's inability or refusal to work cooperatively
APPELLEE APPX 074 Pagc I1 645 P.2d 171, *181; 1982.41as. LEXIS 406, **30
(Aldska 1981). If a party couldobviatethe exhaustion One-potential defect in the hospital's appellate reqtdrement simply by claitnikg that he hospital's action process is that Dr. Ivy, the hospital official who initiated was improper, the doctrine would effectively be the summary suspension of Archer's privileges, was also emasculated. a member of the hospital executive committee whicli wbuld review the suspension decision. We have stated Finally, Archer argues that his failure to pursue the that when the functions of investigating, prosecuting and hospital's intemal remedies is excused because anv judging are combined in the same petson, thc impartial appeal he cotild have taken purstunt to the bylaws would tribunal requirement nuy not be satisfied. Storrs v. have been futile. Under Article VII of the bylaws, Archer Lutheran Hospitals and Homes Sociery of Amer;ca. Inc.. had the right to appeal his summary suspension to the 609 P.2d 24, 2
APPELLEE APPX 075 Page 12 645 P.2d M. t 182; 1982 Alas. LEXIS 406. "33
impossible^ to select-^- a A similar-arguinentwas raised in Robbins--v. Ong, represenmtive group due to the size 452 F. .Saapp. 110 (S.D. Ga. 1978), when a physician was of tlic rnedical staff. notified of the niedical stafPs decision not to renew his hospital. privilegcs. The plaintiff was informed that a hcaring on the matter would be held before the hospital [**.'34] Archer's futility argument also rests on his board at which time he could contest the decision. The claiin that thc executive committee's action at its August hospital board had previously adoptcd a preliminary 29 meeting amounted to a prejudgmcnt of any appeal recommendation that the plaintiffs hospital privileges be Archer might havc requested. Archer areues that his allowed to expire. Plaintiff [**36] argued that in taking failurc to exhause is excused because this "preludgment" this initial action the board had prejudged the outcome of insured that his appeal would be adversely decided by the the later hearing and had deprived him of an impartial committee. While Archer was entitled to an appea( tribunal. The district court rejected this argument stating: before an unbiased tribunal, we reject his assertion that the executive cotnmittee's prior involvement in his case Due process requires a fair hearing made it itnpossibic for the committee to render an befbrc an impartial tribunal .... Howcver, itnpartial decision. "considerarion on a previous occasion of the plaintiffs qualifications would not In Duffield v. Charleston Area Medical Center, Inc., demonstrate such bias as to constitute a 503 F.2d 512 (4th Cir. 1974), the plaintiffs hcr3pital denial of due process" .... Where a privileges were summariiy su.spended, pending a medical board has adopted an er parle subsequent hearing beforc the hospital review committee. recotnmendatiom the members are not Several members of this committee also served on the disqualified from subsequently hearing hospital governing board which had initially accepted the evidence and rttling on the tnerits. deparnnent of surgexy's recommendation that the plaintiffs privileges be withdrawn, subject to the latter's Id. at 115-16 (citations omitted). The court held that in right of appeal before the review committce. Plaintiff order to establish that the board was disqualified from claimed this initial decision amounted to a prejudginent deciding an issue there must be evidence of actual bias on of his case and that the respective board members were the part of the individual members of thc board. Id. at thereby disqualified from sitting or (•*35] voting on the 116. The fact that the board had previously issued a rcview eommittee. In rejecting piaintiffs claim that his ruling on the case did not automatically preclude the case had been prejudged, the court of appeals stated: board from considering the appeal.
The action taken in this case by the We think the instant situation is analogous to these Governing Board on June 29 in receiving cases. Under the bylaws, Ivy, as president of the hospital and approving conditionally the staff, was authorizod to issue the summary suspension recommendation of the Department of and was not required to consult with or obtain [**37] the Surgery against the renewal of the prior approval of the executive cotninittee. '-R The appcllant's hospital privileges . . . . cotnmittee's later approva) of Ivy's action was based on represented sintply a step, largely a Ivv's ex parte recommendation and in reality was no more procedural one at that, in the than a decision to allow the Archer case to go fonvard in administrative resolution of the accordance with the bylaws. 9everal executive committee proccedings involving the appellant . . . . members testified that their support of Ivy's action merely The decision taken was pnrely tentative reflected their desire to see the investigation of the CCU and conditional; it became final onlv if7he problems continue and that they were not prejudging any appellant vo]untaridy chose to ["181] futw'e appeal. The fact that the executive cotmnittee accepl the recommendation and not r'o bccame involved with the case prior to the proposed contest it. suspension hearing does not mean that the board was a^Atomatically biased W:throw v Larkin, 47I US. ,35, Id. at 518-19 (emphasis in original). 47-49, 43 L. Ed. 2d 712, 723-25, 95 S. Ct. 1456 (1975); Fcderal Trade Commic.vinn v. Cement lnslituce, 333 U.S.
APPELLEE APPX 076 645 P.2d 171. * 183; 1982 Alas. LEXIS 406, •Y37 Page 13
583. 700.92-L-: Ed 10I0.1034; 68 S. Ct: 793(1947). claimso€bias orimpartiality. He-chosc-instead to'oypass Furthermore, the executive committee was not the oniy these procedures in order to seek judicial relief Wc avaiiable source of relief. Under the bylaws Archer had a conclude that Archer has failed to denionstrate that the separatc right of appeal to the governing body of the executive conunittec was prejttdiced against hinior that hospitai, the Board of Tmstees. 29 He has not any resort to' the appeal process was futile. In shott, dcmonstrated that his right of appeal to this body was Archer has failed to establish any adequate justification impermissibly tainted by the initial actions of the for his failure to exhaust the hospital's remedies. executive comminee. For these reasons we hold that the superior court's 28 Article VII § 2, see note 21 supra. denial of the appellants' motion for summary judgment [**38] was crrroneous and must be REVERSED. 29 Article VIII §§ 1(a), 6, see note 19 supra. Connor, Justice, not participating. Under the bylaws, Archer was given an adequate opportunity to appeal his suspension and to present any
APPELLEE APPX 077 LEXSEE 1989-OIIIO-f+PP.-LEXIS 3299
Louis A. Elek, PlaintSf-Appellant, v. The Huntington National Bank et al., De- fendants-Appellees
No. 88AP-1183
Court of Appeals of Ohio, Tenth Appellate District, Franklin County
1989 Ohio App. LEXIS 3299; 50 Fair EmpL Prac. Cas. (BNA) 1396
August 24, 1989, Decided
PRIORIIISTORY: [*]] BRYANT,J. APPEAL from the Franklin County Conunon Pleas Court. Plaintiff-appellant Louis A. Elek, appeals from a judgment of the Franklin County Common Pleas Court DISPOSIT[ON: granting the motion to dismiss of defendant-appellee, The Huntington National Bank Judgment reversed and cause remanded. Plaintiff filed a complaint on May 2, 19881 alleging that his employer, defendant The Huntington National COUNSEL: Bank, and others discriminated against him based on his handicap, thereby violating R.C. 4112.02(A) and (J) and BOWERSOCK, PEOPLES & MONG, MR. Section 504 of the Rehabilitation Act of 1973 (Section WILLIAM H. PEOPLES and MR JAMES F. MONG, 794, Title 29, U.S. [*21 Code). Defendant filed a mo- for appellant. tion to dismiss pursuant to Civ. R 12(B)(1) (lack of sub- PORTER, WRIGHT, MORRIS & ARTHUR, MR. ject-matter jurisdiction), and Civ. R. 12(B)(6) (failure to BRADD N. SIEGEL. MR. KEVIN E. GRIFFITH and state claim upon which reiief may be granted). The trial MR JOHN H. STEPHEN: and MR. LARRY D. CASE, court granted the motion and plaintiff appeals to this for appellee The Huntington National Bank court, assigning the following two errors:
SPATER, GITTES & TERZIAN. MR. '1. The trial court erred in granting defendant appellees' KATHALEEN B. FREDERICK M. G[TTES and MS. motion to dismiss because of section 4112.99, O.R.C. as SCHULTE: MR. LOUIS A. JACOBS; MR. GROVER amended creates a direct right of action in common pleas G. HANKINS and MR. CHARLES E. CARTER; court for plaintiffs who have suffered employment dis- ARTER & HADDEN, MR. LOUIS E. GERBER, MR. crimination because of handicap. GARY S. BATKE and MR. JOHN B. LEWIS; MR. LEWIS E. WILLIAMS, JR.; and MR. ISHRAG A. "IL The trial court erred in granting defendant appellee HAFIZ, for amici curiae. motion to dismiss because a conunon pleas court has concurrent subject matter jurisdiction over ptaintiffs JUDGES: federal handicap discrimination claim under Title 29 BRYANT, J., WFIITESIDE and YOUNG, JJ., con- section 794 of the United States Code." cur. [n his first assignment of error, plaintiff qontends I that the trial court erred by dismissing his claith under OPINIONBY: RC. 4112.02(A) and (J), since R.C. 4112.99's plain BRYANT nmeaning-sets..foctL.a.private cause_ ofactuon for violations of R.C. Chapter 4112. In 1987, the General Assembly OPINION: amended P. C. 4172.99 to read: OPINION
APPELLEE APPX 078 Pag^ ' 1989 Ohio App. LEXIS 3299, "; 50 Fair Empl. Prac. Cas. (BNA) 1396
"Whoever violates this chapter is subject to a civil action Defendant, however, may be correct in its assertion fordamages, injunctive [*3] reliefr_orany other appro- to the extent that the other civil actions provided for in priate relief." Title 41 overlap the cause of action in R.C. 4112 99. In particular, plaintiffs interpretation of RC. 4112.99 ar- ,In interpreting legislation, "courts must give the guably renders the private cause-of action for age dis- words used in statutes their plain and ordinary meaning, crimination in R.C. 4112.02(N) superfluous, R.C. unless legislative intent indicates otherwise." Covemry 4112.02(N) states: Towers, Inc. v. Strongsville (1985), 18 Ohio St. 3d 120. nonetheless contends the language of 122. Defendant "An aggrieved individual may enforce his riehts relative when read in context, does not create a R.C. 4112.99, to discrimination on the basis of age as provided for in cause of action. this section by instituting a civil action, within one hun- Initially, defendant points to the fact that the word- dred eighty days after the alleged uniawful practice oc- ing of the private cause of action sections in Title 41 curred, in any court of competent jurisdiction for any differs from that of RC. 4112.99. Title 41 contains sev- legal or equitable relief that will effectuate his rights. A eral provisions creating private causes of action for spe- person who files a civil action under this division is, with cific types of discrimination. See RC. 4107.17(B) (age respect to the practices complained of, therebv barred discrimination in hiring and discharge from employ- from instituting a civil action under section 4107.17 of ment); 4112.02(N) (age discrimination); 4112.021(D) the Revised Code or from ftling a. charge with the Ohio (credit discrimination); 4112.051(A) (housing discrimi- civil rights cornmission under section 4112.05 of the nation). These provisions all contain similar language. Revi.sed Cade." [*6] states that a victim of discrimination R.C. 4101.17(B) The existence of similar remedies is not necessarilv "may institute a civil action under R.C. 4101.17(A) fatal to plaintiffs interpretation of RC. 4112.99. The against the employer in a court of competent jurisdic- General Assembly may have intended to create more 4112.051(A) create "a civil tion." RC. 4112.021(D) and than one remedy for victims of some types of discrimina- action in a court of common pleas" for "aggrieved indi- tion. Comparing federal civil rights law, the United contra.st. 4112.99 merely states [*41 viduals." By R.C. States Supreme Court noted in a case arising under Title violates this chapter is subject to a civil that "[w]hoever VII of the Civil Rights Act of 1964 that "legisiative en- action." As defendant points out, the statute does not actments in this area have long evinced a general intent state who mav sue or where suit may be brought. Al- to accord parallel or overlapping remedies kEtainst dis- onilssions will probably not create practical though these crinunation." Alexander v. Gardner-Denver Co. (1974), difficulties, defendant argues that the difference in lan- 415 U.S. 36, 47. Because the Ohio Supreme Court has indicates that the legislature did not guage and specificity "determined that federal case law interpreting Title VII under R.C. intend to create a private cause of action of the Civil Rights Act of 1964, Section 2000(e) et seq., 4112.99. Title 42, U.S. Code, is generally appiicable to cases in- We conclude, however, that the relative lack of de- volving alleged violations of R.C. Chapter 4112;" tail in R.C. 4112.99 does not change the fact that the Plumbers & Steamfitters Commt. v. Ohio Civil Rights wording of R.C. 4112.99 explicitly allows "a civil action Comm. (1981), 66 Ohio St. 2d 192, 196, we may rea- for damages, injunctive relief, or any other appropriate sonably infer that the avoidance of redundancy was not relief " the General Assembly's paramount concern when it amended R.C. 4712.99. We therefore conclude that the Defendant next argues that plaintiffs interpretation existence of parallel remedies does not neQate the plain 4112.99 of R. C. renders the other private cause of action language of R. C. 4112.99. statutes meaningless. However, most of the specific pri- vate cause of action statutes contain provisions that differ Defendant also argues [*7] that the General Assem- significantly from the provisions of R.C. 4112.99. For bly amended RC. 4712.99 to effectuate a purpose other example, RC. 4107.17(B) specifically provides for the than the creation of a private cause of action for every awarding of attomey fees. as does R.C. 4112.021(D) and violation of R.C. Chapter 4112. Specifically, defendant 4112.051. R.C. 4172.99 contains no such provision. In contends that the purpose of the amendment of R.C. addition, 4712.021 and 4112.051 contain specific 4112.99 in 1987 was merely to remove the criminal pen- R.C. I provisions on punitive damages and appointment of altv in the statute. Before its amendment, R.C. 4112.99 Plainti€fs Y', attorne ["`5} s mcontxast-toR C 41-12. . read:. From these provisions, it appears that plaintiffs interpre- tation of R.C. 4112:99 recognizes a framework in which "Whoever violates divisions (A) to (H) of section 4112.99 and the other cause of action statutes compie- 5712.02, or sections 4112.07 or 4112.11 of the Revised ment each other. Code is guilty of a misdemeanor of the tliird degree."
APPELLEE APPX 079 Page 3 1989 Ohio App. LEXIS 3299, *; 50 Fair Emp1. Prac. Cas. (BNA) 1396
Defendant also contends, apparently as an alterna- -Defendant-assertsthat-the criminal.penalty in the. statute tive to its contention that R. C. 4112.99 does not create a hampered the Ohio Civil Rights Commission's ability to private cause of action, that Chapter 4112 requires plain- investigate alleged instances of discrimination, since the tiff to exhaust his adntinisirative remedies before [*10] possibility of a criminal penalty enabled alleged violators he can file suit under 4112.99. R.C. 4112.99 does not to invoke their privilege against self-incrimination under explicitiv require exhaustion of administrative.remedies. the Fifth Amendment to the United States Constitution. Defendant, though, asserts that 4112.99 implicitly re- According to defendant, the General Assembly recog- quires exhaustion because it did not eliminate the ex- nized this problem and remedied it by amending R.C. haustion requirement that existed under previous law. 4112.99 in H.B. No. 5 to provide for only civil penalties. Defendant's assertion is without merit. RC. Chapter H.B. No. 5 also amended RC. 4112.04(B)(3)(a), 4112 does not explicitly require exhaustion for the other 4112.05(F), and 4112.051(A) to remove references to the private cause of action statutes. In addition, although privilege against self-incrimination. Thus, defendants defendant correctlv notes that, under current law, a per- argue that the [*8] legislature's intent in amending RC. son who cannot take advantage of a private cause of ac- 4112.99 was to make clear that Chapter 4112 no longer tion statute can obtain relief in cortunon pleas court only contains criminal penalties; that the legislature's refer- after receiving a decision from the Ohio Civil Rights ence to civil actions in 4112.99 is merely a recapitulation Commission, the proceeding in common pleas court is an of the civil remedies that are available elsewhere in administrative appeal from the commission's decision Chapter 4112 under the private cause of action statutes. rather than a completely de novo action- See R.C. Defendant buttresses its argument by noting that the stat- 4112.06. A person must indeed "exhaust" his administra- ute's numerical designation is 4112.99 and "99" statutes tive remedies before appealing to the conunon pleas invariably refer only to criminal penalties. cotut under RC. 4172.06, but only in the sense that, without an order of the commission, he has nothing from Defendant's argument is not well-taken. The location which to appeal. In short, we find nothing in R.C. Chap- of a statute in the code "offers no guidance in determin- ter 4112 that would require reading an exhaustion of ing the nature, substantive or procedural, of the statute." remedies requirement into RC. 4112.99. Viers v. Dunlap (1982), 1 Ohio St. 3d 173, 175, over- ruled on other grounds, Wilfong v. Batdorf (1983), 6 Defendant nevertheless [*11] argues that direct civil Ohio St. 3d 100, third paragraph of the syllabus. See, actions will conflict with the fundamental purposes of also, R C. 1. 01. Moreover, the wording of R C. 4112.99 RC. Chapter 4112. Defendant refers to the provision that goes beyond mere recapitulation of other code sections. requires the Civil Rights Commission to first attempt to Unlike the other private cause of action sections, which resolve charges by "informal methods of conference, address specific types of discrimination, KC. 4112.99 conciliation, and persuasion." RC. 4112.05(A). See, also, applies to "whoever violates this chapter" (emphasis Stade, ex rel. Republic Steel Corp., v. Ohio Civil Rights added). The Legislative Service Conttnission's analysis Comm (1975), 44 Ohio St. 2d 178. Defendant asserts interpreted this language to mean "one who violates [*9] that reeoanition of a direct civil action, bypassing the any provision of the Civil Rights Conunission Law commission, will undermine the policy of informal per- (Chapter 4112) would be subject to a. civil action." (Em- suasion in R. C. 4112.05. We reject defendant's argument phasis added.) Baldwin's Ohio Legislative Service for several reasons. Firstly, R.C. 4112.99 does not acm- (1987), at 5-77. In short, defendant's interpretation of the ally conflict with R.C. 4112.05. RC. 4112.99 does not legislature's intent is not consistent with R.C. 4112.99's affect commission procedure; similarly, the conciliation actual wording, which does more than merely eliminate requirement applies only to proceedingsof the commis- the statute's crinlinal penalty. "In determining legislative sion. Secondly, defendant construes the purpose of R.C. intent, it is the duty of this court to give effect to the Chapter 4112 too narrowly. A direct civil action will words use& not to delete words used or insert words not undoubtedly serve R.C. Chapter 4112's broader purpose used." Columbus-Suburban Coach Lines v. Pub. Util. of combating discrimination. Nothing in RC. Chapter Comm. (1969), 20 Ohio St. 2d 125, 727. If the wording 4112 indicates that the legislature considers a first resort of a statute, "conveys a meaning which is clear, un- to "informal persuasion" as the sole desirable method of equivocal and definite, at that point the itnerpretatiee enforcing civil rights laws. Lastly, the legisl@ture, [*12] effort is at an end, and the statute must be applied ac- not the courts, must resolv^ anv tension between R.C. cordingly." Provident Bank v. Wood (1973), 36 Ohio St. 4112.99 and the eommission's traditional role. If the es- 2d 101, 105-106. Becausethemeaning of 4172:99is sence of de"fendant's argument is szmply that'the- General clear from its language, we need not inquire fhrther into Assembly could not have sought to effect significant the legislature's intent. changes in Ohio civil rights law when it ameaded RC. 4112.99, then its argument is notably unpersuasive in light of the unambiguous language of the statute. "Coures
APPELLEE APPX 080 PaEie 4 1989 Ohio App. LEXIS 3299, *: 50 Fair Empl. Prac. Cas. (BNA) 1396
do not have the authority to ignore, in the guise of statu- incompan'bility between state-court jurisdiction and fed- torvinterpretation,the-plain-atd--unambiguouslanguage eral interests." Id. in a statute." Board of Edn. v. Fulton Counry Budget We conclude that, under this test, Ohio courts of Comin. (1975), 41 Ohio St. 2d 147, .common pleas have concurrent jurisdiction over Section In sum, the trial court erred by dismissingplaintifYs 504 actions. Congress did not explicitly linrit actions claim for relief under R.C. Chapter 4112. We sustain under Section 504 to federal courts. Defendant also does plaintiffs first assignment of error. not cite us to any "unmistakable" indications in the legis- lative history to that effect in regard to the third part of Tn his second assignment of error, plaintiff asserts the Gulf Offshore test, we are not persuaded that a clear that the trial court erred by dismissing his claim under incompatibility exists. The only case defendant cites as Section 504 of the Rehabilitation Act of 1973. Section precedent for its incompatibility argument, Zorick v. 504, codified at Section 794(a), Title 29, U.S. Code, Tynes (Fla App. 1979), 372 So. 2d 133, did not apply the states in part: Gulf Offshore test. Defendant does emphasize the perva- siveness of federal law in the litigation of a Section 504 "No otherwise quaiified individual with handicaps in the claim as a factor weighing against the exercise of concur- United States; as defined in section 706(8) of this title, rent jurisdiction. However, incompatibility does not exist shall, solely bv reason of her or his handicap, be ex- between concurrent jurisdiction and federal interests cluded from the participation in, be denied [*13] the merely because a cause of action requires interpretation benefits of, or be subjected to discrimination under any of federal law. Even when a federal-law cause of action progratn or activity receiving Federal financial assistance entirely preempts substantive state law, state courts may or under any program or activity conducted by any Ex- exercise concurrentjurisdiction. See, e.g., Charles [*15] ecutive agency or by the United States Postal Service. * . :^ Dowd Box Co. v. Courtn y(1962), 368 U.S 502, 507- 508 (Section 301(a) of the Labor Management Relations Act), cited in Gulf Off,chore, supra, at 478. If defendant Defendant does not dispute the existence of a private argues that the federal issues in a Section 504 action are cause of action under the statute. See Consolidated Rail too complex for state courts, we disagree, shtce "[s]uch a 1984), 465 U.S. 624, 630, fn. 7. In- Corp. v. Darrone ( notion overlooks the obvious; most states have enacted stead, defendant argues that the trial court had no juris- empioyment discrimination laws, which are routinely diction to hear plaintiffs action because federal courts litigated in state courts, and state court judges are accord- have exclusive jurisdiction over suits under Section 504. inglv quite familiar with discrimination issues." Donne![v The United States Supreme Court set forth the test v. Yellow Freight System (C.A.7, 1989), 874 F. 2d 402, for exclusive jurisdiction in Gulf Offshore Co. v. Mobil 49 Fair Eanployment Practice Cases 1253, 1256 (finding Oil Corp. (I981), 453 US 473, 477-478: concurrent jurisdiction over actions under Title VII of the Civil Rights Act of 1964). Moreover, states have "* * * [S]tate courts may assume subject-matterjurisdic- concurrent jurisdiction over other federal civil ri.ghts tion over a federal cause of action absent provision by actions. See, e.g., Schwarz v. Bd of Trustees of Ohio Coneress to the contrary or disabling incompatibility State Unrv. (1987), 31 Ohio St. 3d 26? paragraph two of between the federal claim and state-court jurisdiction." the syllabus (suits under Section 1983, Title 42, U.S. Code). In short, defendant's arguments are insufficient to A court must presume that state coutts have concurrent rebut the presumption of concurrent jurisdiction. Accord- jurisdiction over federal causes of action. Id at 478. The ingly, we sustain plaintiffs second assignment of error. presumption can be rebutted only by one of the follow- Based on the foregoing, we reverse the decision of ing: (1) "explicit statutory directive", (2) "unmistakable 16] the trial court and remand for fiuther proceedings implication [*14] from legislative history"; or (3) "clear consistent with this opinion.
APPELLEE APPX 081 Page ;
LEXSEE 1991 U.S. DIST. LEXIS 14190
ELAiN'E J. EMSER, Plaintiff, v. CLTRTIS INDUSTRIES, INC., Defendant
Case No. 1:90CV1062
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OIiIO. EASTERN DIVISION
774 F. Supp. 7076; 1997 U.S. Dirt LEXLS 14190; 56 FairEmpL Prac. Cas. (8NA) 1718; 57 Empl. Prac. Dec (CCFI) P41,225
March 28, 1991, Filed
SUBSEQUENT HISTORY: Reconsidemtion Denied Reviced Code § 4112.02(A) prohibiting age August 2, 1991, Reported at 1991 US. Du•t. LEXIS discrimination, (3) breach of contract, and (4) a tort i5579. action for wrongful discharge in violation of Ohio public palicy.
COUNSEL: [**I] James A. Marx, Esq., Spangenberg, Curtis has filed a motion to dismiss Cotmts Two and Shibley, Traci & Lancione, Cleveland, Ohio, Ellen Simon Four which Emser opposes. For the reasons stated, the Sacks, Snangenber, Shibley, Traci & Lancione, Court ftndcthe motion well taken and grants [*"2] the Cleveland, Ohio, for phtintiff. motion to dismiss.
Andrew C. Mever, Esq., David Aaron Posner, Esq., I. Duvin, Cahn & Baniard, Cleveland, Ohio, for defendant. In reviewing the dismissal of a complaint under JUDGES: Ann Aldrich, United States District Judge. Federal Rule of Civil Procedure 12(b)(6), the Court nzust construe the compkaint liberally in plaintiffs favor and OPINION BY: ALDRICH accept as true all factual allegations and permissible inferences themin. Windsor p. Tlm Tennes.sean, 719 F.2d OPINIOIS 155, 158 (6th Cir. 1983), cert. denied, 469 U.S. 826, 83 L. Ed. 2d 50, 105 S. Ct. 105 (1984); LVe.stlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976). The complaint is only [*1076] MEIv1ORANDUMAND ORDER to be dismissed if the plaintiff could prove no set of facts in support of her claim which entitles her to rclief. ANN ALDRICH, UNITED STATES DTSTRICT Conlev v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 JUDGE S Ct. 99 (1957). The Court need not accept as true a legai conclusion couched as a factual allegation. Papasan v. Piaintifl; Elaine J. Emser, was empioved as an offset Allain, 478 U.S. 265, 286, 92 L. Ed. 2d 209, 106 S. CY. nress operator by Curtis Industries until her discharge in 2932 (1986). January 1989. L•mser allegcs that she was told that her position was eliminated but younger persons were hired II to perfomi her job. Slie also alleges that shortlv after,her discharge. Curtis advertised for help. Slteapplied and was The only issne presented by Count Two is whether not lnrod but a younger person was. Emser seeks O.R.C. § 4112.99 creates a mivate cau.se of action. Emser recovery from [*1077] Curtis based...... _._..... on four causes of originally fded a charge of age discrimination before the action: (1) violations of the Age Discrimination in Ohio Civil Rights Cdn^mission-("OCRC") ih July-1989 Employment Act, 29 U.S. C. ,¢ 623, (2) violation of Ohio prior to her filing this acrion. The OCRC made a
APPELLEE APPX 082 Page 2 774 F. Supp. 1076. *1077; 1991 U.S. Dist. LEXIS 14190, **2; 56 Fair Empl. Prac. Cas. (BNA) 1718; 57 Empl. Prac. Dec. (CCH) P41,225 detemtinafiob that therewas probable cause-to-believe -- iTccordingiy^ the--Courtgrantsthemotton todistniss Curtis had. violated the state law. Etnser then [**3] Count Two. withdre.wv her chargc and filed this lawsuit Emser concedes that "defendant is correct in asserting that by TTI filing a charge with the Ohio Civil Rights Cominission, a Emser, in Count Four, alleges that "the conduct of person is barred from filing a civil suit pursuant to O.R. C. the Defendant was in violation ["1078] of the laws of § 4101.17 or O.R.C. ¢ 4112.02(N)." (Emser's Brief in the State of Ohio and in violation of public policy ["*5] Opposition at p. 1). However, she asserts that she is for which tortious conduct Defendant is liable." entitled to bring a state law claim for age discrimination Complaint pard. 18. ln support of this theory of recovery. based on O.A.C. § 4112.99. Emser relies on two different Ohio cases. Bodt O.R.C. § 4701.17 and O.R.C. § 4112.02(N) First, Emser relics on Helmick v. Cincinnati Word provide that once a plaintiff has elected to pursue her Processing, 45 Ohio S9. 3d 131, 543 N.E.2d 1212 (1989) remedies under one statute, she cannot latcr choose to which held that a woman who was the victim of sexual pursue remedies under the other statute. Emser has hardssment, including criminal sexual imposition, in the elected to pursue neither of those remcdies but seeks to work place could pursue her common law torl remedy bring suit based on O.C.R. § 4112.99 which provides: and was not required to confme her suit to R.C. Chapter § 4112. The court stated that "an existing common-law Whoever violatcs this chapter is sttbject remedy tnay not be extinguished by a statute except by to a civil action for damages, injunctivc direct enactment or necessary implication." Id. at 135. relie£. or any otlicr appropriate relief. Thus, Helmick is only helpful to Emser if prior to the enactment of § Chanter 4112, she possessed a conunon Two Ohio coutts have hadthe opportunity to address law remedy for discharge and failure to hire based on whether § 4112.99 creates a private cause of action. In age. The short answer is that in Ohio. Emser possessed no Elek v. Huntington National Bank (August 25, 1989) such comrnon-law tort remedy and Helmick does not Franklin County Appeal No. 88AP-1183, t the court open the door to her bringing such a claim. detetmined that the section was not antbiguous and did Emser also relies on the casc of Greeley v. Liiami create a private causc of action. Valley Mainrenancc, 49 Ohio St. 3d 225, 551 N.E.2d 987 (1990). 1 The case is currently on appeal before the Ohio Greeley's at-will employmcnt was terminated by Supreme Court No. 89-1812. his employcr solely because of a court ordered child support [**6] wage assignment of the emtployee's wages. [**4] However, in Kern v Spangenbe^,. Shihley, Ohio Revised Code § 3113.213 makes it unlawful for an Traci & Larecione, Z(March 15, 1990) Cuyahoga Court employer to discharge an employee because of a wage of Comnton Pleas, the court rejected the reasoning of assignment. However, the statute has no provision for a Elek and held that no private cause of action was created. suit by the discharged. emplovee. The cuurt held that the This Court finds the rcasuning in Kern more persuasive. dischargcd employee. could bring a tort action for The section does not indicate who is authorized to seek wrongful discharge based on the violation of die statute. tlle penalties outlined and is thus ambiguous. More sienifrcantly, to hold that it creates a privau; cause of This Court is not persuaded that Greelev provides action, would allow plaintiffs to ciroumvent a carefully Emser with an additional theory of recovery. Etnser, like detailed legislative scheme for bringing age Greeley, was allegediy discharged in violation of a discrimination lawsuits. The Court fmds that Emser statute. However, unlike Greeley, the statntc which should not be allowed to circmnvent the stamtorv scbeme Emser was discharged tmder already sets forth a scheme and that no private cause of action is created by § for vindication, cither tltrough a lawsuit or through 4112.99 administrative proceedings, of the employep's rights. There is no need in this situatiod, as there was in Grcelcry, 2Thedefendant,Spangen6erg,Shible7;isthe tocarve amexceptton4othe emplovment-at-v.•illdoctrine law firm which represents Emscr in this and permit a tort action. The legislature has already proceeding. carved the cxception and provided a method for recovery.
APPELLEE APPX 083 Page 3 774 F. Supp. 1076, *1078: 1991 U.S. Dist. LEXIS 14190. **6: 56 Fair Empl. Prac. Cas. (BNA) 1718; 57 Empl. Prac. Dec. (CCH) P41 ,225
Accordmay; the CourF o anks lhe moUon to dismissAptil[**7] 22; 1991 as previouslyseF. Count Four of the compiaint for failure to s-tate a ciaim. IT IS SO ORDERED. In conclusion. the Court grznts the motion to dismiss Counts Two and Four. The case will pmceed to trial on
APPELLEE APPX 084 1 of r DOCUNIENT
DONNA J. FILIPS, Piaintiff-Appellant vs. CASE WESTERN RESERVE UNIVERSITY, Defendant-Appellee
NO. 79741
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY
2002 Ohin 4428; 2002 Ohio App. LEXIS 4576
August 29, 2002, Date of Antwuncetnent of Decision
PRIOR I-HSTORY: [**1] CHARACTER OF review, we I**2] have conciuded that the court erred in PROCEEDING: Civil appeal from the Cuyahoga County dismissing Filips' case, and we therefore roverse that Court of Common Pleas. Case No. CV-427841. judgment and remand the matter for further proceedings. [*P3] On May 18, 1998, CWRU hired Filips as an DISPOSITION: Trial court's judgment was reversed environmental specialist. Thereafter Filips claimed to and case was remanded. have experienced sexually hostile interactions with hcr co-workers and superiors, and as a result, on. December 21, 1998, she filed a written complaint with the univer- COUNSEL: For Plaintiff-Appellant: DANIEL S. sity's sexual harassment committee. Subsequently, on SMITH, Attorney at Law, Columbus, Ohio. February 9, 1999, an incident occurred in which Filips allegedly demonstrated dismptive and insubordinate be- For Defendant-Appellee: COLLEEN TREMEL, JOEL havior by using profanity and making threatening state- A. MAKEE, AMY BULL CAREY, Attortteys at Law, ments about her supervisors. As a consequence, the uni- Cleveland, Ohio. versity placed her on an investigatory suspension, com- pleted its investigation of the incident, and terminated JUDGES: JUDGE TERRENCE O'DONNELL. FRANK her employment on March 1. 1999. D. CELEBREZZE, JR., J., CONCURS, ANNE L. KILBANE, P.J., CONCURS IN JUDGMENT ONLY. [*P4] In its termination letter, the university ad- vised Filips that it had completed its investigadon of the OPIIVIONBY: TERRENCE O'DONNELL February 9, 1999 incident. It documented that she had been placed in progressive counseling because ol' her OPIIVION: ACCELERATED DOCKET inability to perCorm assigned functions, her failure to usc sound judgment in response procedures, and her lack of JOURNAL ENTRY and OPINION cooperation with her supervisor's [**3] directions. The university concluded that she was insubordinate, unco- JUDGE TERRENCE O'DONNELL: operative, unprofessional, threatening, and disruptive to [*P1 ] Donna J. Filips, an at-will employee of Case its Departmcnt of Occupational and Environmental Westem Reserve University (CWRU), appcais from a Safety, and that her action constituted misconduct under judgnnent of the common pleas court which granted the university's disciplinary action poiicy; as a result, it CWRU's motion to dismiss her complaint alleging R.C. terminated her employment. It also advised her that she 41.12 claims of hostile work environment and retaliatory could appeal her termination to its Staff Review Board discharge which she contends arose from her grievance within five days. It.is undisputed tha! she did not do so. to the university's sexual harassment committee. Th^e record before us also contains evidence that counsel foi' the university independently advised Filips' counsel On-appeal,F1ips.asserts_that_the..triaLcuurt about lYer inte[tPal-appeal righ'tson March`3-,1999; -how- erroneously granted the university's motion to dismiss ever, because neither Filips nor her counsel appealed, her her complaint because of her ftilure to exhaustits inter- termination became final on March 30, 1999. nal adtninistrative procedures which were designed to petmit appeal of employment termination. After careful
APPELLEE APPX 085 Page 2 2002 Ohio 4428. *; 2002 Ohio App. LEXiS 4576, **
[*P5] Almost two years later, on January 16, 2001. The Salvation Arrny v. Blue Cwss aru! Blue Shield of N. Filips filed_the'tnstant_complamt agai_nst-Case Western Ohio (1993), 92 Ohio App.3d 571, 576, 636 N.E.2d 399. Reserve Univcrsity. In response, the university filed a [*P13] Regarding a Civ.R. 12(B)(6) motion alleg- motion to dismiss the complaint pursuant to Civ.R. ing failure to state a claim upon which relief can be alleging a failure to exhaust ad- 12(B)(1) and 12(B)(6) granted, we recognize that a court may not disntiss a ministrative remedies in thaL FiGps did not appeal her complaint for Eailure to state a claim unless it appears termination pursuant to the university's internalgriev- bevond doubt from the complaint that the plaintiff can ance procedures. Filips failed to timely respond toIhaL prove no set of facts entitling recovery. See, e.g., Border motion, and the court granted [**4] it on April 27, 2001. Ctrv S. & L v. Moan (1984), 15 Ohio Sr.3d 65, 15 Ohio 1*P61 Filips now appeals and raises three assign- B. 759, 472 N.E.2d 3.i0. [**6] menLs of error. They state: [*P]4] In Nemazee, a physician signed a written [*P7] "OHIO LAW DOES NOT REQUIRE THE employment contract which included the hospital's ter- EXHAUSTION OF INTERNAL REMEDIES BY- mination review procedures. Upon terminatiou, the phy- PLAIlVTIFFS ALLEGING CIVIL RIGHTS sician failed to exhaust the internal administrative review VIOLATIONS UNDER R.C. CHAPTER 4112 THAT procedures, and instead filed a lawsuit alleging breach of PERTAIN TO SEXUAL HARASSMENT AND contract and intentional infliction of emotional distress RETALIATION FOR COMPLAINING ABOUT claims. As the Supreme Courr of Ohio held in its sylla- SEXUAL HARASSMENT. bus, "A physician in a private hospital whose employ- ment and/or hospital privileges have been terminated [*P8] "THE IN'1'ERNAL REMEDY PROVIDED must exhaust all internal administradve remedies prior to BY DEFTIVDANT WAS NOT FULL, COMPLETE, OR seeldng judicial review." MEANINGFUL. [*P15] In Frick, we considered the employee's [*P9] "THE LOWER COURT ERRED IN wrongfui terntination case filed against University Hos- GRANTING DEFENDANT'S MOTION TO DISMISS pital which alleged a violation of the Family Medical BECAUSE THE EXISTENCE OF AN INTERNAL Leave Act. We affirmed the judgment of the trial court REMEDY MAY BE EVIDENCE RELEVANT TO granting summary judgment based on her failure to ex- DETERMINE DEFENDANT'S ULTIMATE haust the internal grievance procedure set forth in the LIP.BILITY. BUT DOES NOT DEPRIVE THE employment handbook. LOWER COURT OF SUBJECT MATTER JURISDICTION." [*P]6] Unlike Nemazee and Frick, however, Filips, an at-will employee, did not file a claim for wrongful argues that because she is not seeking [*P10] Filips termination; had she done so, her failure to follow the reinstatement to her position, the affirmative defense of university's internal administrative appeal procedures exhaustion of internal administrative remedies does not may well have affected the court's jurisdiction. ["7] to Chapte.r 4112 of the apply to her. Instead, pursuant Further, based on her status as an at-will cmploycc, she she has filed retaliation and hostile Ohio Revised Code, may not have been able to successfully pursue a wrong; work environment claims which she argues are not pre- ful termination claim. However, because Filips filed empted by her failure to appeal her termination. She fur- statutory retaliation and hostile work environment ther contends that CWRU'sinternal procedures are unfair claims, neither Nemazee nor Frick apply as they relate and vague, and she claims that her faiiure to exhaust only to breach of employment contract claims. [**5] them is not ajurisdietiona] defect. [*P17] Since Filips has pled R.C. Chapter 4112 the other hand, relying on Ne- [*P] 1] CWRU, on claims. and CWRU filed a motion based in part on Civ.R. Med. Ctr. (1990) 56 Ohio St.3d 109, mazee n. Mr. Sinai 12(B)(6), wc are obligated to consider the elements of University Hosp. Of'Cleve- 564 N.E.2d 477, and Frick v. Lhesc claims and determine whether her complaint states (1999) 7.33 Ohio App.3d 224, 727 N.E.2d 600, land claims upon which relief can be granted. ln Couriney v. maintains that her failure to exhaust its internal adminis- Landair Transport Inc. (C.A.6, 2000), 227 F.3d 559, the subject matter ju- trative remedies deprives the court of court set forth the elements of rgtaliatory dischasge as risdiction and also constitutes a failure to state a claim follows: upon which the court could grant relief. -. .-___-. ...__ 1*P181-=""* *In-reviewingretalianon clamis;-©hto-- to be applied in reviewtng a Civ.R. [*P12] The test courls look to federal case law. See Barker v. Scovill, 12(B)(,7)m.ation alleging lack of suiijuct matter _lurisdic- Gu., 6 Ohio Sr.3d 146, 6 Ohio B. 202, 451 N.E.2d 807, the plaintiff has alleged any cause of ac- tion is whether 809 (Ohio 1983). To support a claim for retaliatory dis- to decide. Scc, e.g., tion which the court has authority charge. a plaintiff must show that (1) she engaged in
APPELLEE APPX 086 Pase 3 2002 Ohio 4428. `; 2002 Ohio App. LEXIS 4576, **
protected activity; (2) she was the subject of adverse [*P24] Hence, Filips here needed only to set forth a .,.employment_acti4n; and (3) a causal linkexisted hetween short, plain the protected activity and the adversc action. See Chan- dler v. Enpire Chem., Inc., 99 Ohio App.3d 396, 650 ['P25] statement of her ciaims. She did so. N.E.2d 950, 954 (Ohio Ct. App. 1994) [**81 (citing [*P26] We recognize that several federal coort_s Jackson v. RKO Bottlers of Toledo, Inc.. 743 F.2d 370, have dismissed.similar claims, but those cases were de- 375 (6th Cir. 1984)). If the plaintiff meets her initial bur- cided on summary judgment. See, e.g., Nelson v. J.C. den in establishing a prima facie case, then the burden Penney Company, Inc. (C.A.8, 1996), 75 F.3d 343: shifts to thc defendant to give a legitimate non- Quiroga v. Hasbro, Inc. (C.A.3, 1991). 934 F.2d 497; discriminatory reason for its action. See id. (citing Bur- Kipp v. Mi.rsouri Highway and Tran.cportation (C.A.8, rms v. Unitcd Tel. Co., 683 F.2d 339, 343 (10th Cir. 2002), 280 F.3d 893. Here, however, in the context of 7982)). If the defendant gives a non-discriminatory rea- Civ.R. 12(B)(6), examination of the allegations in the son, then the piaintiff must show that the articulated rea- instant complaint filed reveals that CWRU had notice of son was only a pretext for the adverse action." See id. the claims Filips intended to file and the causes of actiun [*P19] The elements of a hostile work environment she alleged. Hampel v. Food claim are set forth in the syllabus in [*P27] Based on the foregoing, we have concluded Ohio Sr.3d 169, 2000 Ingredients Specialties, Inc., 89 that the trial court erred in granting the motion to dismiss 729 where the court stated: Ohio 128, N.E.2d 726, in this case. Accordingly, we reverse that judgment and [*P20] "2. In order to establish a claim of hostile- remand this case for further proceedings. environment sexual harassment, the plaintiff must show Judgment reversed. Case [**11] remanded. (1) that the harassment was unwelcome, (2) that the har- assment was based on sex, (3) that the harassing conduct It is ordered that appellant recover of appellee her was sufficiently severe or pervasive to affect the "terms, costs herein taxed. conditions, or privileges of eniployment, or any matter The court finds there were reasonable grounds for directly or indirectly related to employment," and (4) that this appeal. either (a) the harassment [**9] was committed by a su- pervisor, or (b) the employer, through its agents or su- It is ordered that a special mandate issue out of this pervisory personnel, knew or should have known of the court directing the Cuyahoga County Court of Common harassment and failed to take immediate and appropriate Pleas to carry this judgment into execution. corrective action." A certified copy of this entr,v shall constitute the [*P21] In considering whether the trial court cor- mandato pursuant to Rule 27 of the Rules of Appellate rectly dismissed Filips' action pursuant to Civ. R. Procedure. 12(B)(6), we recognize that Ohio is a notice pleading state. Recently, in Cincinnati v. Beretta U.S.A. Corp., 95 JUDGE Ohio St.3d 416, 2002 Ohio 2480, 768 N.E.2d 1136, the TERRENCE ODONNELL court stated: [*P22] "Notice pleading is still the law, and the city FRANK D. CELEBREZZE, JR., J., CONCURS, clearly alleged that each defendant has manufactured defective products by failing to implement alternative ANNE L. KILBANE, P.J., CONCURS IN safety designs. That was enough to give the manufactur- ets fair notice of the claims against them." JUDGMENT ONLY. [*P23] "'* * * since Ohio is a notice-pleading state, N.B. This entry is an announcement of the court's deci- Ohio law does nut ordinarily requirc a plaintiff to plead sion. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. operative facts with particularity. [Footnote omitted.] This decision will be journalized and will become the Under the Ohio Rules of Civil Procedure, a complaint. judgment and order of thecourt pursuant to App.R. 22(E) need only contain "a short and plain statement of the unless a motion for reconsideration with supporting claim showing that the party is entitled to relief.' Civ.R. brief, per App.R. 26(A), is filed within ten (1.0) days of 8(A)(1) ' Conseguently. as long as there is a setof facts, the-annoancemenT-of-the court`s-decisirnr: Thetime- pe- consistent with the [**10] plaintiffs complaint, which riod for review by the Supreme Court of Ohio shall begin would allow the plain[iff to recover, the courr may not to ivn upon the Jouritaliiatioh [**12] of this court's an- York v. Oliio State grant a defendant's motion to dismiss.' nouncement of decision by the clerk per App.R. 22(E). Hwy. Parrol (1991), 60 Ohio St.3d 143, 145, 573 N.E.2d See. also, S. Ct. Prac.R. II, Section 2(A)(1). 1063. * * *"
APPELLEE APPX 087
Page I
LEXSEE 1951 OHIO APP. LEXIS 939
KILKO, PLAINTIFF-APPELLANT, V. CLEVELAND (CITY) ET, DEFENTDANT-APPELLEES.
21763
OHIO APPEALS, EIGHTH DISTRICT, CUYAHOGA COUNTY.
I02 N.E2d d76; 1951 Ohio App. LEXIS 939; 60 Ohio L. Abst 561
Februarv 19,1951
PRIOR HISTORY: [*1] APPEAL FROM A FROM A JUDGMENT OF THE COURT OF COMMON JUDGNIENT OF THE COMMON PLEAS COURT OF PLEAS OF CUYAHOGA COUNTY, OHIO, WHEREIN CUYAHOGA COUNTY REFUSING TO ENJOIN THE THAT COURT REFUSED TO ENJOIN THE ENFORCEMENT OF THE ZONING ORDINANCES ENFORCEMENT OF THE ZONING ORDINANCE OF OF THE CITY OF CLEVELAND. AFFIRMED. FOR THE CITY OF CLEVELAND, OHIO IN ITS FURTHER HISTORY SEE OMNIBUS INDEX IN APPLICATION TO THE PREMISES OF THE BOUND VOLUME. APPELLANT, STEVE KILKO. THE NOTICE OF APPEAL WAS FILED ON QUESTIONS ['2] OF LAW DISPOSITION: JUDGMENT AFFIRMED. EXC. AND FACT BUT THE ACTION WAS SUBMITTED TO THIS COURT ON QUESTIONS OF LAW. THE CASE WAS TRIED IN THE COURT BELOW UPON SYLLABUS AN AGREED STATEMENT OF FACTS, WI-IICA, WITH THE EXHIBIT ATTACHED THERETO, IS 1. THE PRINCIPLES OF EQUITABLE ESTOPPEL ABOUT 14 PAGES IN LENGTH AND APPLY TO MUNICIPAL CORPORATIONS AS WELL CONSEQUENTLY WILL NOT BE SET FORTH IN AS TO INDTViDUALS. 2. THE GRANT OF A FULL HEREIN. TFIE PERTINENT PARTS OF SUCH LICENSE TO OPERATE A RESTAU'RANT IS NOT A AGREED STATEMENT OF FACTS ARE: THE CONTRACT. BETWEEN A MUNICIPALITY AND ZONING ORDINANCE OF THE CITY OF ONE OF ITS CITIZENS: SUCH LICENSE CONNOTES CLEVELAND BECAME EFFECTIVE NOVEMBER 5, A PRIVILEGE, NOT AN AGREEMENT. 3. THE 1929; THE PREMISES IN QUESTION HERBIN ARE ISSUANCE OF A RESTAURANT LICENSE, IN A LOCATED IN A"B" DWELLING FIOUSE DISTRICT RESTRICTED AREA CONTRARY TO THE ZONING BY THE TERMS OF SUCH ZONING ORDINANCE; ORDINANCE OF TIIE 'vR7NICIPALITY, BEING AN PRIOR TO 1929 AND UP TO 1934, THE PREMISES ACT DONE WITHOUT AUTHORITY AND IN WERE OCCUPIED AS "NON-CONFORMING USE" VIOLATION OF LAW DOES NOT CREATE AN TO-WIT, A MEAT MARKET AND GROCERY - BY ESTOPPEL EVEN THOUGH THE GRANTING OF THE PREDECESSOR TN TITLE OF THE SUCH LICENSE HAS EXTENDED OVER A PERIOD APPELLANT, STEVE KILKO, HEREIN CALLED OF YEARS. KILKO; 1N 1934 IQLKO'S PREDECESSOR IN TITLE OBTAINED A RESTAURANT LICENSE AND JUDGES: STEVENS. PJ, DOYLE, J, CONCUR. BEGAN OPERATION OF A[ZESTAURANT ON THE PREMISES; AS SOON AS THE RESTAURANT OP[NION BY: BY HUNSICICER, J: BEGAN OPERATION, A LIQUOR LICENSE WAS OBTAINED...._. FROM`-.__.... THE DEPARTMENT ... .---- OF LIQUOR ' GONTROL OF THE STATE OF OHIO;FROM 1934 TO AND INCLUDING 1948, KILKO'S THIS IS AN APPEAL ON QUESTIONS OF LAW
APPELLEE APPX 089 Page 2 102 N.E.2d 476; 1951 Ohio App. LEXIS 939, *2; 60 Ohio L. Abs. 561
---PREDECESSOR IN--TITLE OBTARVED--YEARLY- -THEii:6-A-DISCLOSURE-AS TO-A- PERNIST--TO ---- FROM THE CITY OF CLEVELAND A CHANGE THE GROCERY AND MEAT VIARKET TC) RESTAURANT LICENSE FOR THE PREMISES A RESTAURANT, OR THAT LARGE SUMS OF I3EREIN AND ALSO A LIQUOR LICENSE FRO:v1 MONEY WERE SPENT TO MAKE SUCH CHANGE, THE STATE OF OHIO; KILKO PURCHASED [•3] ALTHO.UGH. COLTNSEL FOR KiLKO MAKES AN THE PREMISES HEREIN ON MARCH 20TH, 1948; ASSERTION CONCERNING SUCH PERMIT, AND KILKO, AFTER HIS PURCHASE OF THE PREMISES THE EXPENDITURES MADE TO EFFECT THE HEREIN, SOUGHT AND OBTAINED A TRANSFER CHANGE. WE HAVE REVIEWED ALL TFIE OF THE LIQUOR LICENSE FROM THE STATE OF CLAIMS OF ERROIt SET FORTH BY COUNSEL FOR OHIO, BUT NEGLECTED TO SECURE A APPELLANT, KILKO, AND FROM OUR RESTAURANT LICENSE FROM THE CITY OF EXAMINATION OF THE MATTERS HEREIN, WF. CLEVELAND; IN MAY OF 1948, A C.OMPLAINT WILL DISCUSS ONLY ONE OF SUCH CLAIMS. WAS MADE CONCERNING KILKO'S OPERATION THIS CLAIM AND THE QUESTION WI3ICH ARISES OF THESE PREMISES; AFTER INVESTIGATION BY THEREFROM IS DETERMINATIVE OF THIS THE PROPER AUTHORITY, KILKO WAS ORDERED APPEAL. IT MAY BE STATED IN THE LANGUAGE TO CEASE OPERATION OF HIS BUSINESS L1SED BY TTIE PARTfES IN THE AGREED BECAUSE IT WAS IN VIOLATION OF THE ZONING STATEMENT OF FACTS AS FOLLOWS: "*** IS THE ORDINANCE OF THE CITY OF CLEVELAND AND CITY OF CLEVELAND ESTOPPED FROM THE RESTAURANT LICENSE HERETOFORE. ENFORCING THE PROVISION OF THE ZONING [*5] ISSUED FOR THE PREMISES TO KILKO'S ORDINANCE BECAUSE OF THE FACT THAT A PREDECESSOR IN TITLE WAS CANCELLED; DULY APPOINTED ADMINISTRATIVE OFFICIAL KILKO THEN MADE APPLICATIOTT TO THE OF THE CITY OF CLEVELAND HAS CONP[NUED COMMISSIONER OF BUILDINGS AND HOUSING TO ISSUE LICENSES TO PLAINTIFF'S FOR A"CERTIFICATE OF COMPLIANCE" TO PREDECESSOR IN TITLE FROM THEYEAR 1934 CONTINUE THE OPERATION OF THE LIQUOR TO 1948 INCLUSIVE, CONTRARY TO THE BUSINESS ON THESE PREMISES; THE PROVISIONS OF THE ZONING ORDINANCE? " 3 "CERTIFICATE OF COMPLIANCE"WAS REFUSED POMEROY'S EQUITY JURISPRUDENCE (FIFTH AND THE CASE CERTIFIED TO THE BOARD OF EDITION) 805, SETS FORTH SOME GENtERAL ZONING APPEALS OF THE CITY OF CLEVELAND; REQUISITES FOR THE APPLICAION OF SUCH BOARD OF ZONING APPEALS, AFTER A EQUITABLE ESTOPPEL. THE AUTHOR ALSO, IN HEARING DULY HAD, REFUSED TO GRANT SUCH ARTICLE, CALLS ATTENTION TO THE KILKO THE RIGHT TO OPERATE HIS LIQUOR FACT THAT THE COURTS HAVE MODIFIED OR BUSINESSIN SUCH PREMISES. THE PARTIES IN LIMITED THESE ELEMENTS, AND HENCE THEY THE AGREED STATEMENT OF FACTS CONCEDE ARE TO BE ACCEPTED ONLY AS GUIDES IN THE THAT THE QUESTION INVOLVED HEREIN IS APPLICATION OF EQUITABLE ESTOPPEL. THE LTMITED AS FOLLOWS: "*** DID THE FINDING OF AUTHOR STATES THESE RULES AS FOLLOWS: THE BOARD OF APPEALS [*4] OF THE CITY OF "***. 1. THERE ML'ST BE CONDUCT - ACTS, CLEVELAND- IN SUSTAINING THE LANGUAGE, OR SILENCE - AMOUNTING TO A COMMISSIONER OF BUILDINGS AND HOUSING, REPRESENTATION OR A CONCEALMENT OF CONSTITUTE AN ABUSE OF DISCRETION AND IS MATERIAL FACTS. 2. THESE FACTS MUST BE THE CITY OF CLEVELAND ESTOPPED FROM KNOWN TO THE PARTY ESTOPPED AT THE TIME ENFORCING THE PROVISION OF THE ZONiNG OF HIS SAID CONDUCT, OR AT LEAST THE ORDINANCE BECAUSE OF THE FACT THAT A CIRCUMSTANCES MUST BE SUCH THAT DIJLY APPOINTED ADMINISTRATIVE OFFICIAL KNOWLEDGE OF THEM IS NECESSARILY OF THE CITY OF CLEVELAND HAS CONTINUED IMPUTED TO HLYt. 3. THE TRUTH CONCERNING TO ISSUE LICENSES T? PLAINTIFF'S THESE FACTS MUST BE UNKNOWN TO THE PREDECESSOR IN TITLE FROM THE YEAR 1934 OTHER PARTY CLAIM7NCr THE BENEFIT OF THE TO 1938;INCLUSIVE;-- CONTRARY-'FO--THE ES-TOPPEL-,-ATTBE TI-MEWHEN-SUCH CONDUCT -- - PROVISIONS OF THE ZONING ORDINANCE? WAS DONE, AND AT THE TIME WHEN IT WAS NOWHERE IN SLTCH AGREED STATEMENT IS ACTEI7 UPON BY HIM. 4. THE CONDUCT MUST
APPELLEE APPX 090 Paec 3 102 N.E.2d 476: 1951 Ohio App. LEXIS 939. *5; 60 Ohio L. Abs. 561
---BE--DONE-WITH-THE-fN'I'ENTION [*6]-ORAT-A-STREET--OCCUPIEDBY-SUCH ADJACENT LEAST WITH THE EXPECTATION, THAT IT WILL OW'NER. THAT IS, THE CIRCUMSTANCES MAY BE ACTED UPON BY TIIE OT.TiER PARTY, OR BE SUCH THAT THE PRIVATE RIGHTS OF UNDER SUCH CTRCUMSTANCES THAT IT IS A'DTVIDUALS ARE OF MORE PERSUASIVE FORCE BOTH NATURAL AND PROBABLE THAT IT WILL IN A PARTICULAR CASE THAN THE RIGHTS OF BE SO ACTED UPON. THERE ARE SEVERAL THE PUBLiC. AND IN SUCH A CASE IT IS FOUND FAMILIAR SPECIES 1N WHICI-I IT IS SIMPLY TO BE MORE JUST TO ENFORCE AN EQUITABLE IMPOSSIBLE TO ASCRIBE ANY INTENTION OR ESTOPPEL AGAINST THE MUNICIPALITY EVEN EXPECTATION TO THE PARTY ESTOPPED RATHER THAN PERMIT TT TO RETAKE THAT HIS CONDUCT WILL BE ACTED UPON BY POSSESSION OF SUCH STREET. "(,EMPHASIS THF; ONE W-HO AFTERWARDS CLAIMS THE OURS. ) A COLLECTION AND ANNOTATION OF BENEFIT OF THE ESTOPPEL. 5. THE CONDUCT AUTHORTTIES ON THE APPLICABILITY OF THE MUST BE RELIED UPON BY THE OTHER PARTY, DOCTRINE L*8] OF ESTOPPEL AGAINST AND. THUS RELYING, I3E MUST BE LED TO ACT GOVERNMENT AND GOVERNMENTAL AGENCIES UPON IT. 6. HE MUST IN FACT ACT UPON IT IN IS FOUND IN I A. L. R. (2D) 338. ET SEQ. FROM SUCH A MANNER AS TO CHANGE HIS POSITION THE REPORTED CASES IN OHIO AND IN OTHER FOR THE WORSE; IN OTHER WORDS, HE MUST STATES, THE DOCTRINE OF ESTOPPEL TN PAIS, SO ACT THAT HE WOUZD SUFFER A LOSS IF HE OR AS IT IS BETTER KNOWN, EQUITABLE WERE COMPELLED TO SURRENDER OR FOREGO ESTOPPEL, HAS BEEN APPLIED AGAINST OR ALTER WHAT HE HAS DONE BY REASON OF MUNICIPAL CORPORATIONS IN A WIDE THE FIRST PARTY BEING PERMITTED TO VARIETY OF CASES, EVEN THOUGH NOT REPUDIATE HIS CONDUCT AND TO ASSERT APPLIED WITH THE SAME STRICTNESS AS IT IS RIGHTS INCONSISTENT WITH IT ***, " THE IN MATTER ARISING BETWEEN PRIVATE COURTS IN OHIO HAVE APPLIED THE INDIVIDUALS. THE QUESTTON IN THE INSTAN'T PRINCIPLES OF EQUITABLE ESTOPPEL TO CASE, HOWEVER, CONCERNS THE MUNZCIPAL CORPORATIONS AS WELL AS TO APPLICABILITY OF THE DOCTRINE OF ESTOPPEL INDIVIDUALS. 16 O. JUR. ESTOPPEL, P. 653, SEC. IN A MATTER WHEREIN THE POLICE POWER OF 75 ET SEQ. AND AUTHORITIES THEREIN CITED. THE MUNICIPALITY IS INVOLVED. THE STATE EX REL SIMMONS V. YVIEBER, ET AL, 145 OH AUTHORITY OF A MUNICIPALITY TO ENACT A ST 121 AT P. 127. BAXTER, TRUSTEE V. VILLAE ZONTNG ORDINANCE IS WELL RECOGNIZED IN OF MANCHESTER, 64 OH AT 220. JUDGE THIS STATE AS A LAWFUL EXERCISE OF THE 6VASHBURN, A FORMER (*7] JUDGE OF THE POLiCE POWER. WE WOULD IIENCE DIRECT EIGHTIi DISTRICT. WHILE S77TING IN THE NINTH OUR INQUIRY TO THE QUESTION OF WHETHER DISTRICT, IA' THE CASE OF JOSEPH V. CITY OF ESTOPPEL CAN BE RAISED AFFIRMATIVELY IN AKRON. 19 OII A1' 412 AT P. 415, SAID: "IN OHIO, AN ACTION TO ENJOIN THE ENF'ORCEMENT OF AS 1N MOST STATES, THE STATUTE OF SUCH ZONING ORDINANCES. "2. THE DOCTRINE LIMITATIONS, AS SUCH, DOES NOT RUN OF ESTOPPEL IS APPLICABLE TO MUNICIPAL AGAINST MUNICIPALITIES AS TO THEIR TITLE CORPORATIONS WHERE THEY HAVE THE AND RIGHTS IN STREETS WHiCH THEY HOLD IN POWER TO ACT OR CONTRACT, BUT IS NOT TRUST FOR THE PUBLIC; SUCH RIGHTS ARE NOT APPLICABLE WHERE THE SUBJECT-MATTFR OF EXTIIdGUISHED BY MERE NON-USE OR ADVERSE THE CONTRACT IS ULTRA VIRES, ILLEGAL OR POSSESSION DUE TO LACHES, NEGLIGENCE OR MALUM PROHIBITUM. " BAXTER. TRUSTEE V. NONACTION OF MUNICIPAL AUTHORITIES, BUT YILLAGE OF %b49NCHESTER, 64 OH AP 220. THE OHIO, IN COMMON WITH MANY OTHER STATES, GRANT OF A LICENSE TO OPERATE [*9] A RECOGNIZES TI-IE DOCTRINE THAT THERE ARE RESTAURANT IS NOT A CONTRACT BETWEEN A EXCEPTIONAL CASES WHERE THERE HAS BEEN MUNiCrALITY AND ONE OF ITS CITIZENS; SUCH SUCH CONDUCT ON THE PART OF THE PLBLIC LICENSE CONNOTES A PRIVILEGE, NOT AN AUTHORTi'IES-RELIED-AND ACTED-UPON BY AN AGREEMENT-: -T•HIS--LICENBE-WASNO'F- 3S•SUED.------ADJACENT OWNER, AS WILL ESTOP THE PUBLIC SO FAR AS TI-IE. AGREED STATEMENT OF FACTS FROMRETAK'ING POSSES9ION OF A PORTION OF SHOWS, BY THE DIVISION OF THE
APPELLEE APPX 091 Page 4 102 N.E.2d 476; 1951 Ohio App. LEXIS 939.. *9; 60 Ohio L. Abs. 561
IvIiJNICIPat= THAT IS CHARf,ED--WITH- --THEAGREED--STAT'E-M£N3=OF--FACTS; MAKES SUPERVISION OF THE ZONING ORDINANCE. WE ANY VIOLATION THEREOF, AFTER SEE NO NEED TO DISCUSS THF., QUESTION, THAT NOTIFICATION, A MISDEMEANOR,(SEC. 211-36 NATURALLY ARISES, AS TO WHETHER THE GC). iN77-IE INSTANT CASE, THE CITY OF ISSUANCE.OF A LICENSE BY ONE DR7SION OF CLEVELAND. THROUGHITS OFFICERS, ISSUED A THE CITY GOVERNMENT NOT CHARGED WITH RESTAURANT PERMIT FOR MANY YEARS TO THE SUPERVISION OF A ZONING ORDINANCE, KILKO'S PREDECESSOR IN TITLE. THE CITY CAN WORK AN ESTOPPEL AGAINST THE CITY. THUS ACTED, NOT IN A PROPRIETARY WE DO NOT FIND ANY REPORTED CASE iN OHIO CAPACITY, NOR IN THE EXERCISE OF ITS WHERE A SIMILAR FACTLTAL SITUATION AS IN CONTRACTUAL POWERS, BUT IN THE THE INSTANT CASE, IS DISCUSSED OR DECIDED. DISCHARGE OF GOVERNMENTAL FUNCTIONS IFOWEVER, SEVERAL CASES IN OTHER THROUGH PUBLIC OFFICERS OF LIMTTED .NRISDICTIONS ON THE QUESTION OF ESTOPPEL AUTHORITY. A MUNICIPALITY MAY, IN SOME AS APPLIED TO THE ENFORCEMENT OF A INSTANCES, BE ESTOPPED BY THE ACT OF ITS ZONING ORDINANCE HAVE BEEN CALLED TO OFFICERS IF DONE WITHIN THE SCOPE AND IN OUR ATTENTION. THESE CASES ARE CITED THE COURSE OF THEIR AUTFIORITY OR IJNDER THE TITLE OF ESTOPPEL, IN 31 CORPUS EMPLOYMENT, BUT ESTOPPEL DOES NOT ARISE JURIS SECUNDUM, 142 B, AS AUTHORITY FOR IF THE ACT DONE IS IN VIOLATION OF LAW. THE FOLLOWING STATEMENT: "THE THERE NEVER WAS, IN THE INSTANT CASE, GOVERNMENT OR ITS INSTRUMENTALTT'fES ARE AUTHORITY TO ISSUE A LAWFUL PERMIT TO NOT ESTOPPED BY ACTS OF ITS OFFICERS OR OPERATE A RESTAURANT ON THE PREMISES AGENTS IN ENTERING INTO AGREEMENTS OR HERE INVOLVED. ESTOPPEL, UNDER THE ARRANGEN4ENTS TO DO WHAT THE LAW DOES CIRCUMSTANCES A THE INSTANT CASE, NOT SANCTION OR PERMIT; AND IT MAY NOT BE CANNOT, THEREFORE, PEVENT THE CITY FROM ESTOPPED BY ACTS OF ITS OFFICERS OR ENFORCING THE RESTRICTIONS OF THE ZONING AGENTS [*10] IN VIOLATION OF POSITIVE LAW, ORDINANCES. WE HAVE EXANIINED ALL OTHER AS BY ACTS IN VIOLATION OF A ZONING CLAIMED ERRORS, [*I1] - AND FIND NONE ORDINANCE OR OF FIRE REGULATIONS. " PREJUDICIAL TO THE STJBSTATT'TIAL RIGHTS OF (EMPHASIS OURS. ) THE COMPREHENSIVE THE APPELLAN'T. ZONING ORDINANCE OF THE CITY OF CLEVELAND, TO WHICH REFERENCE IS MADE IN
APPELLEE APPX 092 Page I
LEXSEE 2000 OHIO APP. LEXIS 1179
KENNETH I.OCSEI, PLAINTIFF-APPELLANT vs. MAYFIELD CITY SCHOOL DISTRICT, DEFENDANT-APPELLEE
NO. 75277
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGACOUNTY
2000 Ohio App. LEXIS 1179
March 23, 2000, Date of Announcement of Decision
PRIOR HISTORY: [*1] CHARACTER OF The appellant first began his employment with the PROCEEDING: Civil Appeal from Common Pleas appellee in January 1991. At this time he was assigned as Court, Case No. CV-341368. a substimte custodian at the high school. In May 1991 rhe appellant interviewed for and obtained a position at Lander Elententary School (Lander) as a second [*21 shift Class I custodian. The appeliant remained in this position until April 1997 when he was transfen•ed to the COUNSEL: For Plaintiff-Appellant: WAYNE P. high school. The appeliant asserts that hc was MARTA, Esq., Cleveland, Ohio. intentionally transferred into a job at which he was predestined to fail, due to his handicap, uniess hc For Defendant-Appellee: DAVID K SMITH, Esq., received reasonable accommodations. These SCOTT C. PETERS, Esq., Means, Bichimer, Burkholder accormnodations were not provided. & Baker Co., L.P.A., Cleveland, Ohio. Prior to his employment with the school system, the JUDGES: JAMES D. SWEENEY, JUDGE, LEO M. appeliant sulTcrcd an indushial accident. The appeliant SPELLACY. J., CONCURS; and TERRENCE suffered a traumatic brain injury which left hhn paralyzed O'DONNELL, P.J., DISSFNTS. on the left side of his body and has affected the appellant's memory. After stvgery and therapy, the OPINION BY: JAMES D. SWEENEY appellant graduated fmm a wheelchair, to a walker, to a cane. In two years or so he was able to walk as he does OPINION now, with a pronounced limp and a much slower pace than normal. The appellant has lost all fccling in his lett JOURNAL ENTRY AND OPINION foot, easily loses his baiance, his toes do not move, liis JAMES D. SWEENEY, J.: knee snaps back, ite has an irregular gait and negotiating stairs presents difficulties. Plaintiff-appellant Kenneth Locsei appcals fmm the trial court's decision granting the summary judgnent of According to the appellant, at the titne he applied for the defendant-appellee Mavfield City School District, the the job with the appellee, his limitations did not impact appellant's employer. The appellant filed this action on his abilitv to effectuate the duties of a custodian. The alleging that he is a ltandicappeki pcrson who can safely appellant testified at his lengthy deposition [*3] that, and substantially perfotm the essentio functions of his while he is able to fulfill the requirements of the cttstodial job and that adverse etnploynzent action was taken by the position at Lander, the job in which he is now placed at appellee, at least in part, because of his handicap. -the'high-schooiexceedsthelimitsof=3iiseapablity: ^ Fhe appellant stated that the pain in his back, legs and hip beganto increase in 1993 and that, as the years go by, his
APPELLEE APPX 093 Page 2 2000 Ohio App. LEXIS 1179, *3
-mutiscles or tendons atrophpcansing-rrrorcr-diffictrltyrThe- "set--up"--based-on his handicap.-T-ho--ttppellant-gave transfer to the high school has exacerbated this worsening examples of instances whcn he was ordered to perform pain. The appellant stated that the size of the area he was work not within his job descripticm. He believed these assigned to clean was just too large and there was too ordets were given to provoke him into losing his temper. muchwalking involved. Instead, Loscci simpiy began perfonning the task. At one point Ms. First ordered that bags of garbage be carried For the first few years at Lander the appellant had no down the stairs two at a time. When he inr"otmed her that interpersonal difficulties with his supervisors. During the it was unsafe for him to do so, she stated that if she could 1993-1994 school year this changed and the relationship do it, he could do it. He responded that she had two good began to deteriorate. However, thc record reflects that the legs and that be did not. He was ordered to do it anyhow, appellant's 7tmo 1996 performance evaluation rated the but when he ignorcd the order was found to bc appellant as good or outstanding in all categories except insubordinate. two. Under the categories of "punctuality/promptness" and "ability to work with others" the appellant received a Another issue was the appellant's use of sick timc. checkmark in the satisfactoryiimprovemont needed Apparently there were innuendos frotn his supervisors column. The written portion of this evaluation noted that regarding his use of sick timc w plow snow in the winter. the appellant had a previous injury to his knee and ankle The appellant denied doing so. The appcllant did not and that he was reporting [*4] additional pain which was know [*6] how many days he had taken for sick leave, causing him to miss work. The appellant was directed to but stated that it did not exceed his contract allotment. take corrective measures to improve attendance and to The appellant affirmed in his affidavit that there were exhibit loyalty to his superiors. problems between he and Ms. First regarding her alleged habitual tardiness and her allegcd pilfering. The appellant By April 1997, the appellant's relationship with his stated that Ms. First was very insecure about her job and supervisors, Ms. First, the head day custodian, and Ms. that she was not adept at making the rcpaits her position Stephan, the principal, had cotnpletely eroded. In this required her to make. evaluation he received an unsatisfactory in "punctuality/promptness" and a satisfactory/needs' On March, 27, 1997, prior to the transfcr to the high improvement in "courtesy/manners/self controP", "ability school, a meeting wa.s held with the school system to work with others," "completes work related superintendent at that time, Dr. Abbot. The meeting was assignments and follows oral and written instructions," attended by the appellant; Dr. Abbot; Rodney Olenchick and "maintains an effective worlcing relationship with the appellant's union representative; and Mr. Lynn teachers, school officials, the general public and Schreffeler, head of buildings and grounds. Olenchick co-workers." The written portion of the evaluation stated affirmed that at the meeting, the appellant informed Dr. thai the appellant performed his cleaning duties in an Abbot that he was able to clean bis area at Lander acceptable manncr and that he goes beyond the standard without further injury to his leg, but that tit the high clcaning regimen during sun'uner and other breaks by school, iqjury to his leg was likely. Olenchick infonned restoring the alummum on the windows, polishing Dr. Abbot that transferring the appellant to that particular doorknobs, etc. He was also reported to have a good area of the high scltool would be setting the appellant up rapport with certain teachers, however, there was a need for failure. to inrprove rapport with supervisors and other teachers. Amongst other mtxtmmendations, he was directed to Prior to the meeting, the appellec was iti receipt of a promote harmony with all [*5] staff on a consistent letter dated March 25, 1997, addressed to Dr. Abbot, basis. from [*7] a teacher at Lander, Ms. Gottschalk. Ms. Gottschalk infornred Dr. Abbot that the accusations The appellant testified at his deposition that he was against the appellant were unjust and that the appellant repeatedly criticized for failing to perfonn portions of his was being set up based upon his handicap. work which he knew he had already completed. The appellant testificd that Ms. Stephan harbored ill will The iecord contains a letter dated March 26, 1997, towards him and began a paper trail in order toremovc from'the -tippzllant's -physician, Drr-- Stephen - Crnnbs; him from Lander. Thc appellant believed he was being stating that the appellant was his patient and detailing the appellant's medical problems. Dr. Coinbs stated that these
APPELLEE APPX 094 Page 3 2000 Ohio App. LEXiS 1179, *7
probtem's` precluda-tlre-appeltant-from-do4ng-ser'ra4-stair appel3ant--would-benefit-by- limitingthc extentof- his climbing and iimits the number of chairs the appellani walking during the day: and that walking is not doing the may move in a single day. Additionally, the appellant appellant permanent harm. but it is certainly reasonablc presented to the school system a letter from his physical to expect that it is aggravating his pain and limiting his therapist indicating that the pain in the appellant's knee overall endurance. and hip is aggravated by prolongt:d walking. The thetapist requested a modification to decrease the time On April 7, 1997. the appellanr was transferred to the the appellant was required to stand. high school. At the high scbool, the appellant's duties entailed general cleaning such as mopping, washing As a result of this letter from Dr. Combs, Dr. Larry tables, windows, bathroonis, sweeping carpets, and Boulwate examined the appellant on behalf of the school cleaning the wood and metal shops. Thc appellant was board. Dr. Boulware's fitat letter to the school system also required to assist in "set ups" for basketball games in indicates that the appcllant has spasticity of the ie8lower the gynmasium. The appellant's cleaning schedule had to extremity, but stated that this physical abnotmality was bc altered in order ['10] to accommodate community present in his former job [at Lander] and that there is fitnctions in the cafeteria. hIis area was difficult because nothing in the history [*8] or examination to suggest that of the greater area and because the public at times there is a worsening of the process. Subsequently, Dr. re-enters areas already cleaned. This necessitates Boulware observed the appellant on the job site and re-cleaning those areas. The bathrooms for which he was submitted an addendum. Dr. Bonlware found the responsible werc the most difficult in the building appellant to have diffiotrlty walking. He also stated: "At because they are open to the public in the evening The this time I see no clear medical reason to restrict [the appellant deposed that he was unahle to clcan the entire appellant's] activities. However, I do believe that the area cvcry night and that he atrempted changes in routine extonded walking is aggravating [the appellant's] medical in order to accomplish his tasks, but in the end, no one condition." Dr. Boulware concluded by finding this to be was satisfied. a very compiicated issue. The appellant believes that he has not been given tbc On May 27, 1997, Dr. Combs sent a letter to the proper tools witii which to perform his tasks. He states school system which explained the appellant's injuries that chemicals and supplies arc not stored where he can and informed tbem that permission was being awaitcd to easily obtain thcm, that he has been prohibited from perform surgery on the appeliant. Dr. Combs then storing these chenrieals in his own "slop" closet, and that requested that the appcliant be permitted to retum to his equipment was stored far from his area, requiring former workioad so that his systarn was not overtaxed walking which tires his leg. The appellant has requested and to allow the appellant to gain the reserves needed to that these items be stored more conveniently for his use, return to his exercise program. A third doctor was agreed but this accommodation has been denied. The appellant upon by the parties, and, as a result, Dr. Jack Andrish deposed that hc had carried chairs in excess of Itis examined the appellant as well. limitations because he is given such a difficult time by other employees if hc stops. In the appellant's work status report, Dr. Andrish recommended that the appellant undergo stngery. The The appellant believes that [*I1] hc has managedto report noted that the appeliant could remm to medium make some adjusnnents in his work to accommodate his work duty. Mcdium [*9] work is defined on the form as physical difficulties, such as carrying tables with one "lifting 50 pounds maximum with frequent lifting and/or arm, while still maintaining effrciency. Suggestions given carrying objects weighing up to 25 potmds." Dr. Andrish by his supervisors regarding changing his working habits aiso placed two restrictions on the appellant's retum to were not practical bccause they did not accommodate his work. Dr. Andrish stated that the appellant does not have disability. The appellant also points out that the union unlimitP-I walking ability and standing abilitv and stating had filed a grievance with the schbol systcm regarding that a"Smaller area of coverage bctter for patient" Dr: the area the appellant was assigncd to clean, stating thah Andrish's report noted that the appellant's difficulties are the area is too large to clean effectively by one person. complex and that there ls no prucedvre to normalize tlte Hcbequested;but wasdenied 6ssistaiice"^fioi"ri"fe1ow appellant's condition. Finally, Dr. Andrislt stated that the custodians when they fmished their ra.sks. The appellant
APPELLEE APPX 095 Page 4 2000 Ohio Anp. LEXIS 1179, *11
believes-he-is dotrtga goodjob-givcn-lh"me.-he-is -at--Iauder-Ranvicey-acknowledgedthat the high-schoo] allotted. Complainis ftvm Curtis Early, Bill Schneider arca was more difficult to clean because of the heavy and Glen Ramsey regarding his performance arc brought traffic and that the arca required an organized etnployee. to his attention alniost evcry day. From Mr. Lombardo, Ramsey' did not believe that certain cleaning methods the high school princioal, the appellant received letters caused the appellant pain; rather, he found the appellant regarding deficiencies. was resistant to chaneing his methods. Rainsey deposed that every time the appellant was asked to do something The appellant stated that he was threatened by other differently. his leg suddenty hurt. Ramsey acknowledged co-workers, and that when he reportcd the harassment the that the appellant had difficulty bending down. appellee did nothing. At least one co-worker threatened him with physical violence and two others verbally At the end of the three weeks, Ramsey believed threatened him. One incident was witnessed by [*12] [*14] the appellant's job petfonnancc was improved. Clara Merritt, a fellow custodian. The appellant stated Wben asked whether or not it would be a hardship to the that other co-worlcers- did such things as purposefully school to direct a custodian wlto was done with an spilling coffee on the floor in his area and shunning him assigned area to assist the appellant in finishing his area, in the lunchroom. Ramsey answered that it not schonl policy. Ramsey then stated that he knew of no such policy, but that he does not The appcllant filed this lawsuit on October 1, 1997. have the authority to order it. On October 30; 1.997, the appellee held its fitat discipfinary hearing regarding the appellant. Ultintately, Curtis Early, the high school supervisor of building, the appellant was suspended for six days without pay grounds and maintenance, deposed that the appellant has front April 6. 1998 to April 13, 1998 for neglect of duty requested a smaller area to clean, cieaning supplies kept and discourteous and inappropriate behavior toward his closer to his area, and hetp from other custodians as supervisors (Burkholder Depo. T. 150). accommodations for his disabiiity. Mr. Eariy indicated that the appellant was provided with some of the itetns he The appellant's immediate supervisor, ltead night requested, such as assistance in changing light bulbs, custodian at the high school. Bill Schneider, special gloves, face protection, and a back brace. acknowledgcd that the appellant had asked for cclp cleaning his area. Schneider was of the opinion that the Mr. Lynn Schreffler, supervisor of buildings. appellant should be able to clean his area and, therefore, grounds and equipment, testificd at his deposition that the even when other custodians were fmished with their appellant complained abeut something or other on a daily areas, no belp was assigned to hint. Schneider knew that a basis. Mr. Schreftler believed that the appellant was able grievance had previously been filed by the union to and had cnough time to clean his area, but instcad regarding the sizc of the appellant's area. Mr. Schneider spent his time walking through the hallways. Schreffler was aware that there was a restriction on the appellant's was informed by Dr. Burkholder that the appellant had ability to move chairs, but he was unaware of the medical restrictions [*15] ou dailv stair climbing and specifics. He teft it up to the appellant to cease moving moving chairs. He was aware that the appellant was chairs [*l3] when the limit had been reacbed. He was injured on two occasions when he was moving aware that a report was filed regarding the appellant tablesichairs up and down stairs. Schreftler was also falling down stairs, aware that a grievance had been filed by the union regarding the arca the appellant cleaned. Glen Ramsey, the night supervisor of building, grounds and equipmcnt, had observed the appellant's In November 1997, Mr. Schreffler began video performance of his work over 100 times prior to 1997 and taping the appellant's area in order to have evidence of found the appellant to be adequate. In 1997 he was asked how well the area had been cleaned. It was the end of by Lynn Schreffler to follow the appellant around on the October before SchrefYler was aware that there was a job and assist the appellant in becoming[more efficient. serious problem with the cleanliness of the appellant's Ramsey followed the appellant around for a three weeic area. Schreffler was aware that tbe appellant had peiiodRamsev found 4ie appellarifwa-s not8ohlpYeitig requested accommodauonsfor his- disatiility'such- asa his work because he was "walking in airctes" and doing smaller area or help from other custodians. Although he nothing. The appcllan[ did not ezhibit this behavior while had never made any iiiquiries, Schreffler did not believe
APPELLEE APPX 096 Pace 5 2000 Ohio App. LEXIS 1179, ° 15
-that-other-eu.stodruts- had -time-to-fmish-their-own-work------Ms.-Merrin-also--a€fianed-that-h^clcaning-area-wac -- -- and thcn assist the appellant. Mr. Schreffler was aware next to the appellant's; that although the appellant worked that the appellant's co-workers refu.sed to work with him hard. his area was ioo large for him to complete in one and shtmned him from the lunchroom. As a result, dtuing shift; and that the appellant is able to perform all aspects work requirino group effort, Schreffler directed Mr. Early of the job, but that sometimes he is too tired or in too to assign the appellant tasks which would ettablc the much pain to finish the area because of his leg or bccause appeltant to worlc alone. of the size of the ama. Nfs. Merritt stated that the appellant was written up unfairly on two occasions. On During his deposition, Mr. Schroffler was asked onc uccasion, the appellant was reprimandcd for failing about the appellee's expert rcporc indicatmg [*16] that to clean bathrooms and on anotlter occasion for faiting to ihe area assigned to the appellant rcquired the longest turn out lights. VIs. Merritt afiirmed that she had cleaned rime to clean when compared with other areas of the high the bathrooms and [*I8] had mmed out the lights herself school. Mr. Schreffler admitted that, perhaps, the and that she so informed the supervisor. Ms. Merritt also appellec needed to reevaluate the areas and that, possibly, affirmed that she observed two other custodians, Toni the appellant's area would be downsized. Kump and Jim Smrcina, confront the appellant in his area. The men were smgry about the appellant's complaint On March 31, 1998, the appellant was charged with to the supervisor regarding Smrcina's having thrown a neglect of duty and given a daity list of items he had chair at him. Sntrcina was shaking his finger in the failed to coniplote. This was to continue from March 13 appellant's face and Kump also had words with the until the end of the school year, but after May, the list appellant. was no longer given to the appellant. The appellant stated that there were times when the list contained itemswhich The appellant sets forth one assignment of emor. had already been cleaned and that when he attempted to have a supervisor checlS he was refused. THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR One incident clearly outlines the differing version of SUMMARY JU'DGMENT ("MSJ") OF events related by the parties. Dr. Burkltolder, who has DEFENDANT-APPELLEE MAYFIELD bcon the school superintendent since June 14, 19977 CITY SCHOOL DISTRICT testified at her deposition that she received a telephone ("DEFENDANT SCHOOL DISTRICT) call from another high school custodian, Clara Merritt. Al\-D DISMISSING THE COMPLAINT Ms. Merritt, an African-Amrrican, informed the OF PLAINTIFF-APPELLANT superintendent that the appellant would enter her work KENNETH LOCSEI ("PLAINTIFF area and make inappropriatc racial remarks. Dr. LOCSEI"). Burkholder stated that Ms. Merritt related that these comments made her [* 17] uncomforh.able. The appellant asserts that he has placed sufficient Attachcd to the appellant's brief in opposition to thc evidence in the record to demonstrate that hc has tnet the appellee's motion for summary judgment is the affidavit criteria to cstablish a prima f'acie case of handicap of Clara Merritt. Ms. lvierritt affirmed that: discrimination. Mr. Locsei asserts that he has shown that he is a handicapped person who can safely and Last year, I called Dr. Suzanne substantially perform the cssential funetions of his job Burkholder to tell her that Ken Locsei had and that advcrsc eniployment actlon was taken by the overheard other custodians at the High appcllec, at least in part, because of his handicap. The School telling racial jokes that offended appellant asserts that the appellee [*19] transferred him me. Dr. Burkholder refused to believe that to another position even after thev were infbrmed that he those jokes were beittg told. I never said to could not aquately perform the new job; that the Dr. Burkholder that Kcn was personally appeliee fail and refused to provide him with matdng racial comments which I found reasonablc accommodations; and that he was subject to a offcnsive or thafI---wanted liim to sray hostile work environment. away from my area.
APPELLEE APPX 097 Page 6 2000 Ohio Aop. LEXIS 1; 79, *19
- This--coun rc=view's--the lower'court'sgrant--of--- - -hcarhtg,spealdng.breathiitgc-leaming;-and__ stunmary judgment de novo. Adelman v, Timman (1997), worlcing; a record of a physical or 117 Ohio App: 3d 544, 690 N.E.2d 1332; Brown v. Sciolo impairment; or being regarded as having a, Bd. of Commrs. (1993), 87 Ohio App. 3d 704, 622 .V.E.2d physical or niental impairment." 1153. An appellate court applies the sanie test as the trial courL Brvaru v. Engli.sh Nanmy aru! Governess School, Inc.. (1996), 117 Ohio App. 3d 303, 690 N.E.2d 582. Thc Ohio Supreme Court rccently reiterated the Summary judgment is appropriately rendered when no elements of a claim for discrimination based upon a genuine issue as to any material fact remains to be handicapping condition. In Columbus Civ. Serv. Comm. litigated; the moving party is entitled to judgment as a v. McGlone (1998), 82 Ohio St. 3d 569, 697 N.E.2d 204, matter of law; it appears from the evidence that the coutt noted held. that: reasonable minds can come but to one conclusion; and viewing such evidence most strongly in favor of the party To establish a prima facie case of against whom the motion for summaryjudgment is made, handican discrimination, the person that conclusion is adverse to that party. Turner v. Turner scclcing relief must demonstrate (1) that he 0993), 67 Ohio St. 3d 337, 617 N.E.2d 1123, citing to or she was handicapped, (2) that an Temple v. Wean United, Inc. (1977), 50 Ohio St 2d 317. adverse employment action was taken by 364 A^E.2d 267, [*20] and Harle.s.s v. Willis Day an employer, at least in part because the individual was handicapped, and (3) that Warehousing Co. (I978), 54 Ohio SY. 2d 64, 375 ;V.E.2d 46. A court is permined to grant a mooon for summary the person, though handicapped, can judgment where all of the tests provided in Civ.R. 56 are safely and substantially perform the met. See Celntex Corp. v. Cadrett (1986). 477 C.S. 317, essential functions of thejob in question. 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548.
The Ohio Snpreme Court has held that Chapter 4112 Once a piaindff has established a prima.facie case of must be construed liberally for the accotnplishment of its handicap disctimination, the burden shifts to the [*22] employer w set forth some legitimate, nondiscriminat.ory purpose, a strong public policy against discrimination. Genaro v. Central Transport, Inc. (1999), 84 Ohio St. 3d reason for the action. Hooct v. Diamond Products. Inc. citing to 293, 703 N.E.2d 782. There is no place in this state for (1,996), 74 Ohio St. 3d 298, 658 N.E.2d 738, anv sort of discrimination, no matter its size, shape or Piunebers & Steamfitters Joint Apprenticeship Commt. v. 66 Ohio 5't. 2d 192, 427 fomt or in what clothes it might masquerade. Id. at 296. Ohio Civ. Rights Comms. (1981), Leg'ttimate non-discriminatory reasons for This includes discrimination in the workplace. Genaro, N.E.2d 128. the action taken by the employer may include, but are not supra. limited to, insubordination on the part of the employee In the employment discrimination eontext, a clainring discrimination,or th e inabilitv of the employee "qualified handicapped person" means a handicapped to safely and substantially perform, with reasonable person who can safely znd substantially perform the accommodations, the essential functions of the job in essential functions of the job in question, with or witliout qucstion. Hood, supra, at 302. Once the employcr reasonable assistance. Ohio C'iv. Rights Comm. v. Case establishes a non-discriminatory reason for the action YG' Re.s. Univ. (1996), 76 Ohio St. 3d 168, 666 IJ.E.2d taken, then the emplovee must demonstrate that the 1376. emplover's stated reason was a pretext for impermissible discrimination. Id. The term "handicap" has been defined [*21] by the logislaturff in R.C. 4112.01(A)(3) as follows: In Betn.sk, v. Abbott Laboratories, 1996 Ohio App. LEXIS 4056 (Sept. 19, 1996), Franklin App. No. "'Handicap' means a physical or inental 96APE03-373, the court considered a hti1e work impaitment that substantially limits one or cnvironment claim by an employee with a harjdicap. The more major life activities, including the court, citing to Harris v. Forldift Sysrems lnc. (1993), 510 functions of caring for one's self, U.S. 17, 726L. Ed. 2d 2-95, 774 S. 367 -fo[*'L3] performing manual tasks,.walking, seeing, that to establish a prima.facie case of a hostile worlc
APPELLEE APPX098 Page 7 2000 Oltio App. LEXIS 1179, *23
--envtronmem-a-htigant -needs-toestablish-that:-i)- the----notes-taken-regard'utg-his-jobperformance. litigant has a protccted handicap; 2) thc litigant was subjccted to un-welcomed-verbal or physical conduct; 3) The appellco counters the appellant's contention that the litigant w^as harassed by such unwelcomed verbal or he was discriminated against based on his handicap with physical conduct; 4) the alleged harassment had the effect testimony and documents indicating that the appellant of unreaconably interfering with the lidgant's work was not an otherwise qualified person because he was performance and created an intimidating, hostile or unable to tneet the raluircd standard of cleaning in his offensive environment; and, 5) that re.spondeot superiur position of a high school cu.stodian. It is abundantly clear liability exists. from the deposition testimony of the Mayfield ernployees and administmtors that they believed that the appellant In the case suh judice, the record, when viewed in a could perform his job if he chose, but that he refased. The light most favorable to the appellant, contains ample school system presented evidence that the appellant failed evidcnce to support the appcllant's prima facie claim of to follow through on his charges of harassment by his handicap discriuunation. The appellant presented co-workers. The appellee contends that the close evidence that he is a handicapped person for purposes of supervision of the appellant was designed to assist him in R.C. 4112.02 by submitting medical evidence that he has retaining his position as a custodian. difficulty walking, lifting, and carrying. There w'as testimony that the appellant has difficulty with bending The appellant, in the reply brief, rebuts the appellee's and repeated stair climbing. Secondly, the appellant arguments regarding both the claini [*26] for presented evidence by way of a letter from a teacher at discrimination based upon handicap and the claim for a Lander, Ms. Gottschalk, that his supervisors at Lander hostile work environmcnt. The appellant states that hc is were attempting to "set him up" based upon his ["24] a qualified bandicapped person because, contrary to the handicap. Ccrtainly there is evidence in the appellant's appellee's assertions, consrant walking is not a deposition that he believed this to be true. The school requiremem of the custodial position. The appellant systeni was informed, prior to transf'erring the appellant asserts that he has performcd the essential tasks of the job from Lander to the high school that to do so would such as mopping, making minor repairs, vacuuming, adversely impact the appellants physical disability and dusting, washing windows and walls, and wiping tables would therefore set the appellant up for failure. Thirdiy, and chairs. The appellant admits to quantirative the appellant also submitted evidencc that he is able to limitations in the amount and manner of performancc of safely and substantially perform the essential funetions of his work, but points out that none of the medical the job of a custodian. The appellant's evaluations at professionais have concluded that he is qualitatively Lander clearly indicate that the appellant, while having incapable of perfomtity his job. interpersonal difficulties with his supervisors, is abte to The appellant argues that the appellee's assertion that perform the major tasks required of a school custodian. there was no advorsc employment action based upon his The appellant also presented testimony regarding his handicap is incorrect. The appellant notcs that he does not claim of a hostile work environment. He stated that the challenge the right of the school administration to treatment he was subjected to by some of his fellow manage its personnel, but that when the school custodians included threatens, sabotaging of his cleaning intentionally transferred him to a position at which he area, and ostracism frorn the lunchroom. Thc appellant was predestined to fail, based upon his handicap. without stated that his co-workers acted out of fear that they reasonable acconunodations. it was an adverse would be required to undertake additional duties to assist employment action. The appellant contends that he was thc appellant. The appellee's response was to ostracize predestined to fail based upon his documcntod ["27] him further. Thc appeliant's requests for reasonable quantitative iimitations caused by his handicapped accommodations, such [*25] as a smaller work area, condition. The appellant points out that the appellee had assistauce cleaning, and closer storage of materials, were input from the appellant's union representative prior to dcnied. The appellant contends that he Nyas subject to his transfer which indicated that the appellant would be interASe scrutigyby his supervisors which dtffered_from unable to perform the rcquirements of the hieh school that given to his fellow empioyees. He was subject to nosition. Thescirool system was also-inroccipfbf tlie having a supervisor follow him for weelcs and having ]ctter from Ms. Gottschalk that the appellant had been
APPELLEE APPX 099 Page 8 2000 Ohio App. LFXIS 1 t 79, *27
----- uttaiTireate -GGa.se3 upon hisliandicap, afl.arider: Ttiis environment. cnurt noteswith interest that the appellee's expert found The appellan['s assignment of error is wcll taken. aRer evaluating the work areas at the high school that the appellant's area took the iongest to clean and that the Judgment reversed and remanded. adrninistretion, through the testimony of Lymt Schref37er, essentially conceded that the distribution of work needs It is ordered that appellant recover of appeliee his to be adjusted. costs hercin laxed.
As to the appellant's claim of a hosdle work The Court finds [*29] thcrc were reasonable envirotnnent, the appellee argues that there isato evidence grounds for this appcal. thal such threats were related to thc appcllant's physical condition. Rathcr. the appellee attributes the treatment the It is ordered that a special mandate issue out of this appellant received to the appellant's aggressive and Court directing the Common Pleas Court to carry this annoying conduct towards his co-workers. The appellant judgment into execution. contends that it did investigate the appelhtnt's allegadons as dentonsttated by the exhibits attached to the appellant's A certified copy of this enuy shall constitute the ["28] deposition. mandate pursuant to Rule 27 of the Rules of Appellate Procedure. The appellant construes the evidence differently. The appellant points out that he stated in his deposition JAMES D. SWEF,NEY, JUDGE testimony that he was transferred to an oversized zrea, he was obstmaed in the perforttuvtce of his duties when LEO M. SPELLACY, J.. CONCliRS; and supplies were found missin; from his can; there were TERRENCE O'DONNELL. P.J., DISSENTS. conirived shortages of suppiies when he needed them, he received verbal threats of physical violence from N.B. This entrv is an announccment of the court's co-workers, and he was harassed and disciplined by his decision. See App.R 22(B), 22(D) and 26(A); Loc.App.R. supervisors, all based upon his handicap. The appellant 22. This decision will bejoumalized and will bccome the asserts that thc notes made by his supervisors were of an judgment and order of the court pursuant to App.R. 22(E') investigatory nature and used to discipiine him rather uniess a motion for reconsideration with supporting brief, than to assist him in the performance of Itis duties. per App.R. 26(A), is filed within ten (10) days of the announccment of the court's decision. The time period for The appellant bas met his burden under .VcG(ane, review by the Supretne Court of Ohio shall begin to run supra, and presented sufficient evidence, when construed upon the journalization of this court's announcement of in his favor, to surmount surrtmary judgment on his claim decision by the clerk per App.R. 22(E). See, also, S. Ct. for discrimination based upon his handicap. Likewise, the Prac R. 11, Seclion 2(A)(a). [*30] record contains sufficient evidence to surmomtt sumniary judgtnent on the appellant's claim lor a hostile work
APPELLEE APPX 100 __-- -=SEE 2:00ZOFII02188
DIANA LUGINBII3L, PLAINTIFF-APPELLANT v. MILCOR LIMITED PARTNERSHIP,DEFENDANT-APPELLEE
CASE NUMBER 3-01-162
COURT OF APPEALS OF OHIO, THIRD APPELLATE DISTRICT, ALLEN COUNTY
2002 Ohiw 2I88; 2002 Ohio App. LEXIS 2181; 170 L.R.R.M. 2442
May 3, 2002, Date of Judement Entry
PRIOR HISTORY: [**1] CHARACTER OF in the fabrication of metal heating registers, access doors, PROCEEDINGS: Civil Appeal from Common Pleas and [**2] other stamped ntetal products, Plant employ- Court. ees are represented by the Shopmen's Local Union No. 778 of the International Association of Bridge, Struc- DISPOSITION: Trial court's judgment was affirmed, in tural, Ornamental, and Reinforcing Ironworkers, herein- part_ reversed, in part, and cause was remanded, after the Union. Mileor and the Union are parties to a collective bargaining agreement (CBA) wltich govcrns the terms and conditions of employment at the Lima COUNSEL: MIKE MOORE, Attorney at Law, Colum- plant. hus, OH For Appellant. [*P3] Among other things, the CBA establishes various job classifications avaiiable to employees at the GREGORY T. LODGE, Attorney at Law, Toledo, OH Lima plant. Each job classification falls into one of six For Appellee. wage groups. All of the job classi6cations, excepting those in "Wage Group Six" are "bid jobs," meaning that KATHLEEN B. SCHULTE, Attorney at Law, Frederick an employee can oniv obtain the job through a job bid- M. Gittes, Attorney at Law, Columbus, OH For Ohio ding process in which seniority plays a key role. A"bid Civil Rights Coalition, Ohio Now Legal Defense and job" is posted when the job becomes vacant. "Group Six" Education Fund, the CommittLe Against Sexual Harass- positions, also known as "General Assembly" are not bid ment, the Ohio Employment Lawyers Association, and jobs, but rather are entry level posiLions and involvc a the Ohio Academy of Trial Lawyers. wide range of tasks taking place in various positions throughout the plant. A General Assembly employee's JUDGES: Bryant, J. SHAW, P.J., and HADLEY. J., joh duty and,job location can vary from week to week concur. depending on the needs of management. Also relevant to this matter is that the CBA contains a standard grievance OPINIONBY: Bryant [**3] and arbitration provision providing that all dis- puted niatters between an employee and management are OPINION: handled according to a very specific procedure which Bryant, J. ultiniately culminates in binding arbitration. [*P1] This appeal is brought by plaintiff-appellant [*P4] Appellant Dana Luginbihl began working at Diana Luginbihl from the judgment of the Court of Milcor's Lima manufacturing plant in September, 1995 Coumton Plea, Allen County,.grandng summary,judg- in the position of General Assemblerl In February. 1998 mencto defendnt-appellee, Milcor Limited Partnership. Luginbihl suffered an injury to her spine while perform- ing duties within the scope of heremploynient at Mitcor. - - - [*-P2] Therecord_presents the-following facts.Ap- Aftera brief-ahsence: she-returned•to-work-and-suecess- pellee Milcor LimitedPartnership, hereinafter Milcor, fully bid into the job of "Press Operator." However, Lima, Ohio which em- operates amanufacturing plant in Luginbihl's injuries continued to cause her pain.IaMay, pVoys approximately 300 people. Employees at the Lima 1999 Luginbihi began a vear-long niedicalieave of ab- in a heavily industrialized setting and engage plant work sence from Milcor in order to undergo treatment, includ-
APPELLEE APPX 101 Page 2 2002 Ohio 2188. *; 2002 Ohio App. LEXIS 2181. **; l70 LR.R.M. 2442
ing surgery, for her condition. Luginbihl ru;dved [*P9] . Appellant raises the following assignment _-__ w_orke.rs cgmpensation benefits dunng thisperiod.___ .
(*P5] On February 28, 2000. Luginbihl's treating [*PIO] The trial court erred in granting sum- physician evaluated her condition and concluded that she nmry,judgment to Defendant-Appellee. had reached "maximum medical improvement," and that she wati capable of working in a sedentary position and [*Pl I l Sumnlary JudgmentStandard at light workload levels. On March 30, 2000 Luginbihl [*P12] We review the grant of a motion for sum- presented Milcor with a work restriction slip setting forth maty judgment independently and do not give deference the following 1**41 restrictions: "No repetitive bend- to the trial court's determination. Schuch v. Rogers ing/lifting, no prolonged static standing/shif[ing. No lift (1996), 11.3 Ohio App.3d 718, 720, 681 N.E.2d 1388, 30 #." Luginbihi requested that Milcor place her in a 1389-13.90. Accordingly, wc apply the same standard for General Assembiy position rather than her old "Press summary judgment as did the trial court. Midwest Spe- Operator" position since she could no longer use the foot cialties, Inc. v. Firestone 7ire & Rubber Co. (1988), 42 operated machinery. Oi7io App.3d 6, 8,536 N.E.2d 411. 413-414. [*P6] On April 12, 2000 Milcor informed Lugin- [*P13] Summary judgment is propcr when, looking bihl and the Union that the company had no work avail- at the evidence as a whole (1) no genuine issuc of mate- able that met the restrictions imposed by Luginbihl's rial fact remains to be litigated, (2) the moving party is physician. In response, Luginbihl filed a grievance with entitled to judgment as a matter of iaw. and (3) it appears the Union in accordanec with the relevant portions of the from the evidence, construed most strongly in favor of CBA. Milcor denied the grievance, again restating its the nonmoving party, that reasonable minds could only position that it had no work that coincided with her work conclude in favor of the moving party. Civ.R. 56(C); restrictions. On Mav 15, 2000, Luginbihi's one year Horton v. Harwick Chem Corp. (1995), 73 Ohio 5't.3d medical leave of abscnce expired and she was termi- 679, 686-687, 653 N.E.2d 1196. To make this showing nated. the initial burden lies with the movant to inform the trial [*P7] On September 6, 2000 Luginbihl filed suit in court of the [**7] basis for the motion and idcntify those the Allen County Court of Common Pleas alleging that portions of the record that demonstrate the absence of a Milcor terminated her because she was disabled in viola- genuine issue of material fact on the essential element(s) tion of R.C. 4112. The complaint, amended by stipula- of the nonmoving party's claims. Dresher v. Burt (1996), tion on May 11, 2001 sets out three causes of acdon; (1) 75 Ohio St.3d 280, 293, 662 N.E.2d 264. Milcor failed to accommodate her handicap; (2) Milcor [*P14] Once the movant has satisfied this initial wrongfully terminated her in violation of R.C. 4112; and burden, the burden shi8s to the nonmovant to set forth (3) Milcor wrongfully terminated [**5] hcr in violation specific facts, in the manner prescribed by Civ.R. 56(C), of public policy. indicating that a genuine issue of material fact exists for [*P8] Milcor moved for Summary Judgment on trial. Id, at 293. The non-moving party is entitled to October 1, 2001 on four theories; (1) Luginbihl failed to have the evidence construed most strongly in his favor. set out a prima facie case for handicap discrimination in Hariess v. Willis Day Warehousing Co. (1978), 54 Ohio violation of R.C. 4112.02:(2) As a union member, St.2d 64, 66. 375 N.E.2d 46. Luginbihl was precluded from bringing a common law (*P151 Initially. we point out that appellee Milcor wrongful discharge claim; (3) Federal Labor Law pre- moved for sumntary judgment on four theories; three of cluded Luginbihl's claims; and (4) Lugjnbihl's claims which the trial court dismissed as not well taken. The were precluded by the grievance and arbitration clause appellant's appeal focuses on Milcor's remaining fourth contained in the CBA between Milcor and the Union. theory on which the trial court based its grant of sum- The trial court rejected Milcor's argument's that Federal mary judgment. We review summary judgment de ncivo labor law precluded Luginbihl's claim and further held and therefore we will review the four theories presented that Luginbihl had in fact established a prima facie case by Milcor independently of the trial courts detcrmina- for discriminatory discharge under both R.C. 4112.02 tioh. and the common law. However, in a judgm*t entry dated November 13, 2001 the triai court grante8 Mileor [*P16] [**8] That having been said, we agree summaryjudgment on the -theory - that-since-Luginbihl with-the trial court-with respeet tc,twoaf-Mil.cors-theo=- was party to a CBA which contained a provision for arbi- ries and hereby adopt the following conclusions of the traBon. R. C. 4112.14(C) precluded her from bringing the trial court:^ (1) Summary judgmehtis not warranted on claims. it is from this judgment rhat Appellant now ap- the basis that Luginbihl's claims are preempted by fcd- peals. eral labor law on the authority of Lingle v. Norge Div. Of
APPELLEE APPX 102 Page 3 2002 Ohio 2188, *; 2002 Ohio App. LEXIS 2181, **; 170 L.R.R.M. 2442
Magic Chef. Inc. (1988), 486 U.S. 399. 100 L. Ed- 2d bargaining agreement, she was not an employce-at-w•ill _410,.108-5_0_18Z7-which.statcsshatas.tttte-law clauro._..._and thereftfrc: ineligible to bnnga Greely wrongCul dis- is not subjectto federal preclusion where that claitn is charge claim. Accordingly, summary judgment ispronor independent of thecollective bargaining agreentent and as to Appellant's claim for wrongful termination in viola- presents purely factual quesLions that can be resolved without interpretatioti of the collective bargaining agreement. (2) Summary judgment is not proper on the ;*P20] Preclusion by the terms qf'the Collective Bar- theory that Luginbihl failed to esiablish a prima facie gaining Agreernent case for handicap discrimination in violation ofR.C. [*P21] In its fourth theory as to why summary 4112.02 nl brought pursuant to R.C. 4112.99 since judgment is warranted as a ntatter of law, Milcor assens Luginbihl established that therc were issues of material that Luginbihl:s rcmaininE. statutory disability discrimi- fact as to whether or not Milcor could have reasonably nation claim is prccluded by the arbitration and gri.ev- accomniodated her physical restrictions. With respect m ance procedure contained within the collective bargain- t[ie remaining two theories, we issue our own independ- ing agreement betw•een Milcor and the Union. In support ent findings below. of this argument. Milcor offers two "sub-theories." First, Milcor claims that Ohio law prevents Luginbihl from filing a R.C. 4112.99 action prior to the exhaustion of ni Ohio Revised Code 4112.02(A) provides: administrative remedies to include grievance procedures It shall be an unlawful discriminatory practice for within a private employment contract. Second, Milcor any employer, because of the race, color, religion. asserts that R.C. 4172.14(C), a provision [**11] pertain- sex, national origin. disability. age, or ancestry of ing to age discrimination, prevents Luginbihl from bring- any person, to discharge without just cause, to re- ing her claims since she was a party to a collective bar- fuse to hirc, or otherwise to discriminate against eaining agreemcnt containing an arbitration clause. We that pcrson with respect to hire, tenure, terms, do not find either of these arguments to be well taken. conditions, or privileges of employment, or any matter directly or indirectly related to empioy- [*P22] RC. 4112.99 does not explicitly require the ment. exhaustion of administrative remedies. In Elek v. Hunt- ington Natl. Bank ( 7991), 60 Ohio St.3d 135, 136, 573 1056 [**9] N.E.2d the Ohio Supreme Court affirmed the l0th District Court of Appeal's decision that under R.C. 4112.99, an individual may institute an independent civil [*P17] Common Law Wrongful Discharge action for discrinrination on the basis of physical handi- . [*P18] In its motion for summary judgment Milcor cap even though that individual had not invoked and argued that Luginbihl's third claim for relief, common exhausted his or her administrative rentedies. See Elek v. law wrongful discharge in violation of public policy, was Huntington National Bank (Aug. 24, 1989), 1989 Ohio barred as a matter of law. We agree. App. LEXIS 3299, Franklin App. No. 88AP-1183, unre- ported, See also; Carney v. Cleveland Hts.-Univ. Hts. [*P19] Generally, Oltio follows the "employment- City School, 143 Ohio App. 3d 415, 758 ACE.2d 234 at-will" doctrine, the identifying char•actcristic of which (2001); Ward v. Hengle (1997), 124 Ohio App.3d 396, is that either the employer or the employcc may termi- 706 N.E.2d 392: Larkins v. GD Searle & Co. (1991), 68 nato the employment relationship at any time and for any Ohio App.3d 746, 589 N.E.2d 488; Vass v. The Rie.srer & 19 reason. Mers v. Dispatch Printing Co.(1985), Ohio Thesmacher Co. (2000), 79 F. Supp. 2d 853. [**12] St.3d 100. 19 Ohio B. 261, 48.3 N.E.2d 150. In Greeley v. Miami Valley Maintenance Contr.r., Inc•.(1990), 49 Ohio [*P23] Furthermore, in S'mith v. Friendshlp Village St.3d 228. 551 N.E.2d 981 the Ohio Supreme Court cre- of Dublin (2001), 92 Ohio St.3d 503, 751 N.E.2d 1010 ated an exception to the "employment-at-will" doctrine the Ohio Supreme Court clarified the Elek decision stat- by establishing a cause of action for wrongful discharge ing that a person alleging handicap discrimination has in violation of public policy as articulated in a specific two statutory methods for relief; ( 1) pursuant to R.C. statute. Shaffer v. Ft-ontrunner (1990), 57 Ohio App.3d 4112.05, an age°^}eved person may frie a charge with the 18, 20, 566 VE.2d 193. However, in order for an em- Ohio Civil Rigtt'o.s Commission (OCRC) to pursue an ploy-ee to avail-herself of a Greely claim the, emplyyee administrative..._. remedy ..._._ or (2) may _..._. alternadvely ... file. . a ..civil must be an "employee-at-will" and a not pany to an em- action in the common pleas court pursuant to R.C. ploym.ent cnntract, such as a colleeavc bargaining 4.112-99. Id pt 504-5, Miloor arp es ihat as a union agreement. I ** 101 Haynes v. Zoological Socien, of Cin- member and a party io a collective bargaining agrcement cinn.ati (7995), 73 Ohio St.3d 254, 652 N.E.2d 948. Since containing a provision for grievance arbitration, Lugin- Luginbihl, as union mentber, was a party to a collective bihl had neither of the aforementioned options provided
APPELLEE APPX103 Pa;e4 2002 Ohici 2188, *; 2002 Ohio App. LEXIS 27 81, 170 L.R.R.M. 2442
by state law but was required to first exhaust the reme- disputes based upon a collective bargaining agree- -dics-prov-ided-inxhe-collecti-ve_bargaininA aPement.._. ------_mentThis is not,_however, the same body of expertise or the same body of law implicated by the ctvtl-rtghtc [*P24] Milcors arguntent presents the compclling statutes. Nor are the remedies the same. Id at 830. issue ot' whether Ohio law permits an employer and a union to waive or forfeit an individual employee's right [*P281 Following Ga-dner-Denven supra, Wright.v. to bring a cause of action pursuant to R.C. 4112.99 by Universal Maritime Seroice, supra and Thomas v. Gen- merel.y including a grievance procedure [**13] in a col- eral Electric Company, supra we hold under Ohio law a lecdve bargaining agreement. Or, put in more simpler union cannot prospecuvelv waive the individual right of terms, today we explore the issue of whether union a member to select a judicial forum for the resolution of ni.embers can bring claints against their employers pursu- the member's state statutory claims. This means that ant to R.C. 4112.99 orwhether they are they first re- grievance procedures of both general language and those quired to exhaust the rentedies provided in their CBA. that speak directly to discrimination cannot prevent an ["P25] Tn intet-preting the Ohio anti-discrimination employee from bringing statuu>ry claints, absent lan- statutes Ohio courtc may look to cases and regulations guage in the relevant statute to the contrary. interpreting federal civil rights legislation to include the [*P29] Luginbihl properly brought her claim pur- federal Americans with Disabilities Act. Columbus Civ. suant to R.C. 4112.99 in state court even after she filed a (1998), 569, 573. Serv. Comm v. McGlone 82 Ohio St.3d grievance with her union and then ['* 16] abandoned the In Wright v. Universal Maritime Service (1998), 525 procedure prior to full exhaustion.Whilo there is strong US. 70, 119 S. Ct. 391, 142 L Ed. 2d 361 the United public policy in favor of pursuing matters through arbi- States Supreme Court explicitly rejected an employer's tration, Luginbihl's state law discrintination claim is her argument that an employee's claim under the federal own and may not be forfeited by her membetship in a American with Disabilities Act was barred by his failurc labor organization. to exhaust his conlractual remedies under a collective bargaining agreement. In making its decision in Wright, [*P30] In its second "sub theory" under the general the Supreme Court refied on the landmark decision of theory that the grievance and arbitration procedure in the Alexander v. Gardner-Denver Co. (1974), 415 U.S. 36. collective bargaining agreement precludes Lugxnbihl's 94 S. Ct. 1011. 39 L. Ed. 2d 147 in which the Court held clainis. Milcor asserts that R. C. 4112.14(C) provides the that an [*3'14] employee does not forfeit his right to a necessary statutory language to require Luginbihl to ex- judicial forum for claimed discriminatory discharge in haust the remedies in the CBA prior to bringing suit in a violation of Title VII of the Civil Rights Act of 1964 if court of common pleac. Milcor's interpretation of R.C. "he first pursues his grievance to final arbitration under 4112.14(C), which the trial court adopted, has brought the nondiscrimination clause of a collective-bargaining forth several amici including the Ohio Civil Rights agreement." 415 U.S. at 49, 1011. In Gardner-Denver Commission, the Ohio Civil Rights Coalition, the Ohio the Supreme Court reasoned that a grievance is designed NOW Legal Defense and Education Fund, the Commit- to vindicate a"contractual right" under a CBA rather tee Against Sexual Harassmen4the Ohio Employment than "indcpendent statutory rights accordcd by Con- Lawyers AssociaGon, and the Ohio Academy oC Trial gress." Id. Lawyers, all of which argue against that interpretation. [*P26] Ohio courts have followed the United [*P31] The Ohio Age Discrimination Statute, R.C. State's Supremc Court's reasoning. In Thomas v. General 4112.14. provides in pertinent [**17] part: Electric Company (1999), 131 Ohio App.3d 825, 723 [*P32] No employer shall discriminate in any N.E.2d 1139 the First District Court of Appeals held that job opening against any applicant or discharge with- an employee who was member of a labor union that had out just cause any employee aged forty or older who a collective bargaining agreenient w-ith an arbitration is physiwlly able to perform the duties and otherwise clauso specifically providing for the resolution of dis- meets the establisbed requirements of the job and putes involving discrimination, was not required to pro- laws pertaining to the relationship between employer ,'tration first, or even at all. on claims that em- ceed to arb7 and employee. I ployer subjected him to racial discrimination in violation of civil rights law. The Thomas court reasoned: [*P33] Any person aged forty or oldelt who is discriminated against- _._____ in any ...._._._..... job opening ..___.-'._--. or dis- [*P37)-Laborarbitrators-are-atrtborizedvndera charged without just cause by an employer in viola- collective [*"15] bargaining agreement to resolve tion of division (A)of this section may institute,a civil contractual claims, not statutory ciaims. Labor arbi- action against the employer in a court of competent body of expertise in labor trators have developed a jurisdiction. *** law. This is wby the law presumes the arbitrability of
APPELLEE APPX104 P&!e 5 2002 Ohio 2188. *; 2002 Ohio App. LEXiS 2181, "*; 170 L.R.R.M. 2442
[*P341 The cause of action described in division R.C. 4101.17(C) individuals could not bring age dis- (B) of this section andanx remediesavailablepursu- crirnination claims to the court of canmon pleas when ant to sections 4112.01 to 4112.11 of the Revised Code arbttratton was available. In thetr amicus brtef, The Ohto shall not be available in the case of discharges where Civil Rights Cotnmission asserts that "nothing about the the employee has available to the employee the oppor- recodific,adon of the age discrimination statute suggests tunity to arbitrate the discharge or where a discharge that the longstandins statutory limit on aee- has been arbitrated and has been found to be for,just discrimination lawsuits in Ohio has now been extended cause. to lawsuits invoiving all other forms of d'rscritnination a.e well. A simple recodification of the age discrimination [*P35] In granting summary judgment to Milcor. statute should not be interpreted as affecting a total statu- the trial court concluded thaL R.C. 4112.14(C) manife.sted tory change." We agree. an intent [*"18] by the Ohio Gencral Assembly "to pre- clude a civil suit for any of the remedies under 4112.01 Co 41 12.11. including handicap discrimination under R. C. n2 Senate Bill 162, eff. 10-29-95 4112.02 when the claimant has an opportunity to arbi- trate notwithstanding the heading of R.C. 4112.14 which is'Age discrimination by employers."' [*P39] Therefore, iC is our holding today that [**21] R.C. 4172.14(C) does not apply to Appellant's ["P36] We agree with the Appellant and her amici claim brought pursuant to R.C. 4112.99. Furthermore, that P.C. 4112.14(C) is not applicable to the case at bar R.C. 4112.]4(C) does not apply to any claim not sound- nor to any non-age discrimination claim brought pursu- ing in age discrimination. Accordingly summary judg- ant to R.C. 4112.99. The language of the statute is unam- ment as to plaintiff-appellant Luginbihl's claim for dis- bit,vous. R.C. 4112.14(C) speaks to the cause of action criminatory discharge in violation of R.C. 4112.02 creatnd in R.C. 4112.14(B) and any remedies provided brought pursuant to R. C. 4112.99 is not proper on thesc under 4112.01 to 4112.11. Here, Luginbihi is not seeking grounds. a remedy under 4112.02 for there is no remedy provided therein. Luginbihl is enforcing the "thou shall not dis- [*P40] Finally, Luginbihl, in both her amended criminatc" language of R.C. 4112.02 thraugh an action complaint for relief and at oral argument, asserted two brought pursuant to R.C. 4712.99. Nowhere in the latt- actionable claims under P.C. 4112.02: (1) discriminatory guage or the interpretation of the statute could it be said discharge and (2) failure to accommodate. Specifically, that R.C. 4112.14(C) [**19] applies to actions brought at oral argument Luginbihl's counsel told this court that pursuant to R. C. 4112.99. Luginbihl could bring a claim for relief pursuant to R. C. 4112.02 norwithstanding whether or not she was dis- [*P37] Furthermore, a close review of R.C. charged, but solely on Milcor's failure to accontmodate 4112.01 to R.C. 4112.11 reveals only two remedial pro- her disability. visions to which the literal language of R.C. 4112.14(C) could be applied. First of all, R.C. 4112.02(U) provides ^*P41] On the contrary, the law does not provide for the filing of a civil suit for age discrimination in hir- for a separate action for the failure to accommodate. ing or discharge. Secondly, R.C. 4112.0.5 provides for the Rather, R.C. 4112,02 states [**221 that employers shall flling of a complaint with the Ohio Civil Rights Com- not discriminate. The aecommodation requirement is mission. Bv applying the trial court's intcrpretation of found in Ohio Administrative Code Section 4112-5. R.C 4112.14(C) to non-age discrimination claims, all 08(E)(1). Administrative Code provisions are not action- individuals who have arbitration available would be pre- able under 4112.99 and thus, while it is an element to a cluded from bringing any discriminatory claim to the prirna facie case for disability discrimination and there- Ohio Civil Rights Commission. We cannot rationally fore a central issue to this case, the failure to accommo- conclude that the General Assembly, by tucking a re- date is not a separate claim. quirement deep within the Age Discrimination Statute. [*P42] In conclusion, Milcor's motion for sutnmary intended to preclude aU discriminatory claims to the judgment is granted with respect to Luginbihl's claim for OCRC where arbitration is available. It is more likely common iaw wronsful discharge in violation of public that the General Assembly intended R.d. 4112.14(C) policy and her separate claim for failure to accommo- [**20] to apply exclusively to age discrintinatio>wciaims. date. Summary judgment is not proper on Luginbihl's --[*P38]Areviewof-thelegislatice-historyofthe -claim-for-d'tscrimi.natorq-discharge-inviolationof-R,G- Ohin Age Discrimination Statute supports our view. 4112.02 pursuant to R.C. 4112.99 for there retnains an Prior to being incorporau:dintci Seciion 4112 ofttie Re- issue of material fact as towhether ornot Milcor could vised Code in 1995 n1the Ohio Age Discrimination have provided reasonable accommodation for Laginbihl's Statute existed as a separate secCion. Under the former disabilitv.
APPELLEE APPX105 Page 6 2002 Ohio 2188, *; 2002 Ohio App- LE%IS 2 181, 170 L.R.R.M. 2442
[*P43] For the reasons stated it is the order of this Court thatthe- jud= nen"Ltht;-Courb-of-Common-Pleas-judgment_afj'inned_in parl, reverscrl Brtpart and cause - Allen County is AFFIRMED in part and REVERSED remanded. in parr and REMANDED to [hat court for further [**23] SFIAW. P.J., and HADLEY, J., concur. probeedings in accordance with this opinion. .
APPELLEE APPX106 ------LEXSEE 1992 OHIO APP. LEXIS 4377
HOBART PULLINS Plaintiff-Appellant v. THE CITY OF SPRINGFIELD Defen- dant-Appellee
CASE NO. 2906
COURT OF APPEAI S OF OHIO, SECOND APPELLATE DISTRICT, CLARK COUNTY
1992 Ohfo App. LEXZS 4377
August 20, 1992, Rendered
PRIORHISTORY: [*I] I (T.C. NO 91 CV 577) Pullins is the owner of property located at 305-307 Franklin Street in Springfield, Ohio. ln April, 1991, DISPOSITION: Springfield conducted an inspection of the saitctures on Both of Pullins's Assignments of Error having been Pullins' property. The inspection disclosed [*2] numer- Oveauled, the judgment of the trial court is Affitmed. ous code violations. It was determined that the structures were beyond reasonable repair, and in June, 1991, Pullins received a notice of the violations and orders to COUNSEL: demolish the structures. In September, Springfield noti- fied Pullins that it was prepared to proceed with demoli- BONNIE A. CONRAD, 31 E. High St., Suite 500, tion of the structures. Springfield, OH 45502, Attorney for Plaintiff-Appellant. Pullins did not appeal the June, 1991, "Notice of ROBIN DEBELL, 76 E. High St, Springfield, OH Violations and Orders to Demolish" to the Board of 45502, Attorney for Defendant-Appellee. Building Appeals, as provided for by Springfield Codi- fied Ordinances. Pullins did, however, in lieu of an ap- JUDGES: FAIN, WOLFF, WILSON peal, apply for the necessary permits to repair the prem- ises. He claims he was told to do so by Springfield. The OPINIONBY: FAIN application for the permits was denied by Springfield. In response, Pullins filed an action for an injunction OPINION: to restrain Springfield from demolishing the structores. OPINION The trial court found thatit did not have jurisdiction to proceed in the case because Pullins had failed to exhaust FAIN, P.J. all administrative remedies available to him. From the judgment of the trial court, Pullins appeals. Plaintiff-appellant Hobart Pullins appeals from the trial eourt's entry of summary judgment in favor of de- II fendant-appellee City of Springfield (Springfield). Pullins's First Assienment of Error is as follows: Pullins contends that the trial court erred in ganting Springfield's motion for sumtnary judgment because the THE TRIAL COURT ERRED IN FINDING NO trial court incotrectly, found that it did not have jurisdic- JURISDICTION TO HEAR THE RLAINTIFF'S tion to hear the case,^and because the trial court failed to COMPLAINT. consider Pullins's esfoppel argument. -_....PU.lltnscontends that_because[*3] he raised a-con- Weconclude that the ttial court diditof have jtins- ...... _...... ^--- - stituttonal argument in his complaint, the trial court had diction, and that summary judgment was properly jurisdiction to proceed even though Pullins did. not ap- granted. Accordingly, the judgment of the trial court is peal Springfield's initial order to demolish the buildings. affir'med, Pullins claims that the order to demolish and the denial
APPELLEE APPX 107 Page 2 1992 Ohio App. LEXIS 4377, *
of a building permit, when combined, violated his Con- building was "beyond reasonable repair." This finding is ----stitutinnal-xi^ttx^"deal-with5tis_o.w.n.ptopercy'.`4,lPSall'lrts__^i.consistent with his present areument that he was not Complaint: paragraph five). a ven a reasonable time within which to repair "slu build- ing. Because that issue could have been raised in an ad- Prior to taking judiciaJ- action in an administrative ministrative appeaL, Wolfe is distinguishable. • matter. the aggrieved partymust exhaust the administra- tive remedies available through the administrative appeal Pullins contends that the order to demolish, when process. Noernberg v. Brook Park (1980), 63 Ohio St. combined with the denial of a building permit, consti- 2d 26, 29, citing State, ex rel. Lieux, v. Westlake (1957), tttted a taking of his property for public purposes [*6] 154 Ohio .St. 412; City of Dayton v. Fuhrman (August without compensation. We disagree with Pullins's con- 30, 1990), Montgomery App. No. 11845, unreported. tention that Springfield's denial of a building permit had The exhaustion-of-administrative-remedies doctrine pre- any impact upon his constitutional attack on the order to vents premature interference with agency processes. The demolish. An order to demolish and a denial of a build- doctrine's purpose is to allow an administrative agencv to ing permit are two separate and distinct administrative apply its own special knowiedge and expertise and to processes. In his claim, Pullins is challenging Spring- develop a facrital record without premautre judicial in- field's denial of his request for a building permit rather tervention. Southern Ohio Coal Co. v. Donovan (C.A. 6, than the constitutionality of any ordinance itself. Once 1985), 774 F. 24693, 702. Springfield had made the determination, from which no appeal was taken, that Pullins's building was "beyond Pullins relies upon Wolfe v. City of Avon (1984), reasonable repair," he had no right to a building permit [`4] 11 Ohio St. 3d 81. In that case, a property owner authorizing him to repair the building. was assessed $ 20,978.80 for water mains installed along his property. He brought an injunction action to restrain To render summary judgmeat, a trial court must de- the city from collecting the assessment He contended termine that there is no genuine issue as to any material that the water mains improvement did not benefit his fzct; that the moving party is entitled to judgment as a property to the extent of $ 20,978.80, because of a well matter of law; and that, when the evidence is construed and pump that he had previously installed on his prop- most strongly in the opposing party's favor, reasonable erty, which produced up to 100,000 gallons of water a minds can come to but one conclusion, and that conclu- day. The City of Avon contended that the increased. wa- sion is adverse to the party against whom the Motion for ter pressure resulting from the water mains would en- Summay Judgment is made. Harless• v. Willis Day hance the property owner's fire protection and other Warehouse Co. (1978), 54 Ohio St. 2d 64. needs, so that it was worth S 20,978.80, the amount of The trial court in this case found that there was no the assessment The City defended the injunction action genuine issue [*7] as to any material fact and that by alleging that the property owner had not exhausted his Springfield was entitled to judgment as a matter of law administrative remedies because he did not file an objec- because Pullins failed to file an administrative appeal tion to the assessment. The opinion of the Ohio Supreme following Springfield's order to demolish the struciures Court does not specify what kinds of issues could have on Pullins's property. The trial court found that it lacked been raised by the objection procedure. We presume that jurisdiction due to Pullins's failure to complete the ad- the unconstitutional taking, or inverse condemnation, minist.rative process. We conclude that the trial court was issue raised by the property owner in the injunction ac- correct in granting summary judgment for Springfield, tion could not have been raised by administrative objec- because when the evidence is viewed most strongly in tion; otherwise, the holding in Wolfe cannot ["5] be Pullins's favor, there is no genuine issue of material fact, reconciled with the many holdings of the Supreme Court and reasonable minds can come to only one conclusion that the failure to exhaust administrative remedies can be that is adverse to Pullins. a defense even to constitutional claims. Pullins's First Assignment of Error is overruled. In the case before us, Pullins pled that the failure to grant him a reasonable time in which to repair his build- III ing effectively deprived him of his property-an inverse Pullins's Second Assignment of Error is as follows: condemnation argument. The order to demolish included a specificfmding that the building was "beyond rea^on- DEFENDANT'S MISREPRESENTATIONS ESTOP ablerepair" [n other words Sprmgfieldhad found that TfiE13EFENDAN-T-F•ROM DENxING PLAINTIFF A the building could not be repaired satisfactorily, no mat- BIJILDING PERMIT. ter how much time Pullins might have in which.to do so: Pullins could have contested this finding in ah adminis- Pullins contends that because Springfield misrepre- trative appeal from the order to demolish the building. sented to him that he would be abie to obtain a bullding When he did not do so, he effectively conceded that his
APPELLEE APPX 108 Pa:e 3 1992 Ohio App. LEXIS 4377, *
permit to repair his properry, it is now estopped from person. even if in actual or apparent authority, knew that ._._____Ien.ymghim thaLpe^t. Pullins'pem, was subject to an outsranding demoli- don order. For all we know. this mav have been a rou- The doctrine of equitable estoppel is applicable to tine answer to the routine question, "can I apply for a municipal corporations: Equitable estoppel precludes a building permit to repair my propertv?" Pullins further municipal corporation from asserting certain facts when fails to [*9] estabiish whether the representation was that party, [*8] by its conduct, has induced another, to made before his appeal time had expired. If not, then his detriment, to change his position in good faith reli- Pullins could not have relied upon the representation to ance on that conduct. Shapely, Inc. Y. Norwood Bd. of his detriment, since his right of administrative appeal had Appea[s (1984), 20 Ohio App. 3d 164, 165, citing State, already expired. Pullins's conclusory affidavit failed to 63 Ohio ex rel. Cities Service Oil Co., v. Orteca (1980), establish the elements of estoppel. We conclude that the for summary St. 2d 295, 299. When opposing a motion trial court did not err when it granted Springfield's mo- the respond- judgment, properly supported by affidavits, tion for summary judgment. ing parry's affidavit must set forth specific facts showing that there is a genuine issue of material fact for trial. The Pullins's Second Assignment of Error is overruled. of purely con- averments in an affidavit cannot consist IV clusory allegations. Ohio Poly Corp. Y. Packaging & Handling Supplies Co. (1988), 44 Ohio App. 3d 88, 91; Both of Pullins's Assignments of Error having been Civ. R. 56(E). overruled, the judgment of the trial court is A1.f'irmed. Pullins's affidavit is too conclusory as to the alleged estoppel. It fails to aver who made the representation that Pullins could obtain a building permit on behalf of WOLFF and WILSON, JJ., concur. Springfield. The affidavit does not establish whether that
APPELLEE APPX109 DEBI I. ROTH, Plaintiff-Appellant -va- MARK B. SCHILDHOUSE, Defendant- Appellee
NO. 75617
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAI3OGA COL'NTY
2000 Ohio App. LEXIS 2029
May 11, 2000, Date of Announcement of Decision
PRIOR HISTORY: ["]] Civil Rule 37 with Local Rule 21;" and in failing to con- sider the parties' income information submitted in sup- CHARACTER OF PROCEEDiNG: Civil appeal port of her motion to modify [k2] child support as evi- from Common Pleas Court, Domestic Relations Divi- dence on the question of attorney fees. We affirm in part, sion, Case No. D-214647. reverse in part and remand. DISPOSITION: The couple divorced on March 6, 1992. The Shared Parenting Plan required Schildhouse to pay S 692.86 per JUDGMENT: AFPIl2MED IN PART, REVERSED month to Roth for the support of their two minor chil- IN PART, AND REMANDED. dren. On July 12, 1995, Roth filed a Motion to Modify Child Support and Motion for Attorney Fees, and sent a copy of that document, together with a Request For Pro- COUNSEL: For Plaintiff-Appellant: Roger L. Klein- duction of Documents, to Schildhouse. When she did not man, McDonald, Hopkins, Burke & Haber, Cleveland, receive the requested discovery, she filed a Motion to Ohio. Compel Discovery and a Motion for Attorney Fees on October 31, 1995. In her supporting brief, Roth requested For Defendant-Appellee: Jeffrey K. Lehman, Fairview that Schildhouse be ordered to produce the requested Park, Ohio. discovery, impose .sanctions under Civ.R. 37(B). and award attorney fees pursuant to Civ.R. 37(D). The mo- JUDGES: ANNE L. KILBANE, I. JOHN T. PATTON, tion was not opposed and, on September 19, 1995, the P.J., CONCUR; LEO M. SPELLACY, .i., judge granted the motion, ordering Schildhouse to pro- CONCURRING IN JUDGMENI' ONLY. duce the documents and passing on the Motion for At- torney Fees until final hearing. OPI.NIONBY: ANNE L. KILBANE When Schildhouse did not obey the order, Roth filed OPINION: a Motion to Hold Defendant in Contempt of Court, a Motion for Rule 37 Sanctions, and a Motion for AttomeV IOURNAL ENTRY AND OPINION Fees, and requested sanctions and attorney fees [*3] under Civ.R. 37(B) (2), on October 13, 1995. Schild- ANNE L. KILBANE. J.: house, again, did not oppose the motion but, on October Appellant Debra 1. Roth claims Domestic Relations 16, 1995, did provide a portion of the requested docu- Judge Timothy M. Flanagan erred when he adopted the mentation. decision of Magistrate Ann Weatherhead and entered the At his Februarv 26th, 1996 deposition, Schildho e judgment which denied her five motions for attorney produced more information and agceed to provide ad^- fees,.three_motions to hold appellee MarkB,Sctuldhouse tional-documents-r.egardinQ. his._finances..-. When_-that in contempt of court, and one motion for sanctions. promise was not fulfilled. Roth filed a Motion to Com- issues, she. contends the judge erred: in Among othe-r pel, a Motion to hoid Defendant in Contempt of Court, a malcinR, specific evidence of income and expenses a nec- Idtotion for Rule 37 Sasctions, and a Motion for Attorney essary predicate to an award of attorney fees in an action Fees on March 14, 1996. In this motion. Roth requested to modify child support; in "amending the provisions of
APPELLEE APPX 110 Pase 2 2000 Ohio App. LEXIS 2029, "`
that the judge order Schildhouse to produce the infurma- tions Division ("D.Loc.R. 21"), which requires evidence tion he_had_pr-omised_at tne Ef bmary 26th d.e^osiIio^and__ of _the_parliesse.cne.ctiye_income-antLex nen cesat.finaL order him to pay attorney fees, hold Schildhouse in con- heatine. "The requirements of R.C. 3105.18(H) anri tempt and award both the sancuons provided under Loc.R. 21," she concluded, "provides the court with a Civ.R. 37(B) (2) and attomey fees. Once agairl, Schild- basis upon which to determine 1*61 what 'reasonable' house did not-file a response. fees are in the context of the litigation. *"* The court cannot determine what constitutes a'reasonable' sanction By journal entry dated June 3, 1996, the parties absent evidence of the parties' incomes and expenses." agreed Schildhouse would provide, by June 26, 1996, a She pointed out that neither party had complied with copy of the loan application for the purchase of his cur- statute or local rule which mandate disclosure of the par- rent residence and copies of all his canceled checks writ- ties' financial situadon. "While the agreed judgment en- ten on his personal checking account since June 1, 1995. try and documents procured in tliscovery proceeding may Theyfurther agreed that all, discovery would be com- have been available in rhe court file, Loc.R. 21 specifi- plete by June 31, 1996. [*4] cally requires the evidence to be presented. To require When none of the foregoing documents were re- the court to search the court fle for the evidence which it ceived, Roth filed a Motion for Contempt and a Mouon deems necessary to resolve an issue would obviate the for Attorney Fees on July 10, 1996. Roth attached to her need for any hearings." As a result, she denied both par- motion a copy of a fax sent to her attomey from Schild- ties' motions. and equally allocated costs. house's attotney which provided in pertinent part: "I am Roth filed her objections to the magistrate's decision waiting for you to make arrangements to inspect the on June 15, 1998. Five months later, on November 2, documentation at my office as it relates to checks and the 1998, Judge Flanagan issued his judgment entry overrul- loan application of Mr. Schildhouse." Roth contended ing the objections and adopting the decision of the mag- that this did not constitute compliance with the agreed istrate. This appeal followed. journal entry. We will address Roth's assignments of error in a On December 18, 1997, Roth withdrew her October slightly different order than presented. In her first as- 13, 1995 and March 14, 1996 motions for sanctions, and signment of error, Roth asserts: the parties filed their agreed judgment entry and support agreement approved by the judge as it applied to Roth's July 12, 1995 Motion to Modify Support. The parties I. THE TRIAL COURT ERRED, AS A agreed t'ttat Schildhouse would pay support in the amount MATTER OF LAW; IN RULING THAT of $ 1,210 per month plus a 2% administrative fee. They OHIO REV. CODE § 3105.18(H) [°'7] stipulated as to the reasonable hourly rate of each coun- MANDATES SPECIFIC EVIDENCE OF sel and the income of both parties for the preceding INCOME AND EXPENSES AS A three-year period and agreed that costs would be passed NECESSARY PREDICATE TO AN to a final hearing. They also reserved theissue of attor- AWARD OF ATTORNEY FEES IN AN ney fees for final hearing. ACTION TO MODIFY CHILD The hearings on Roth's attorney fee motions and SUPPORT. upon Schiidhouse's motion [*5] for attorney fees based Roth contends that. R.C. 3113.219, which does not Roth's alleged failure to provide discovery were held require evidence of income and expenses, applies to the before the magistrate on January 16 and 21, 1997 and present action because it relates to child support issues June 10, 1997. Neither party appeared and the only tes- and not R.C. 3105.18(H) because it addresses spousal umony raken was that of Roth's atcorney and Schild- support only. house's attorney. Eight months later, on February 2, 1998, the magistrate issued her written decision. In her Schildhouse concedes that the magistrate relied upon conclusions of law, she determined that it was not neces- the wrong code section, but asserts that this court should sary to reach the issue of whether either or both garties substitute its iudgment for that of the magistrate and, kfad violated discoverv orders. She concluded thLt the thereby, agree that the award of attomey fees is not ap- mandatory language of Civ.R. 37, which requires the trial. propriate. court to award amovtngnartythe reasonable expenses, -R.C. 3113:219(B)--which aliows, a domesticrela- - including att.orney fees., in procuring an order to aid in tions jude to award either party attorney fees and costs, the discgvery process, must be read in conjunction with appiies to proceedings for the mo'dification ofchild sup- R.C. 310518(H). which requires a determination of'the pori whercas R:C. '105.08(H) does nat. Therefore, both ahiiity to pay attorney fees, and Loc.R. 21 of the Cuya- the magistrate and judge erred in applying R.C. hoga Couniy Court of Common Pleas, Domesdc Rela-
APPELLEE APPX t i I Pase : 2000 Ohio App. LEXIS 2029, s
3105.08(H) to this action. Roth's firsc assignment of error vising him or both to oay the reasonable is-sustained _ __._xpenses>__inrlurina atinLne.v''c Per.G^__ caused by the failure, unless the court ex- Roth's third assignment of error stat.es: pressly finds that the failure was substan- tially justified or that [*10] other circum- stances make an award of expenses un- III. TI-IE TRIAL COLZtT ERRED, AS A just. MATTER OF LAW, IN AMENDING TEE PROVISIDNS 1*8] OF CIVIL The failure to act descrbed in this RULE 37 WITH LOCAL RULE 21. subdivision may not be excused on the ground that the discovery sought is objec- Roth ar?ues that the judge "amended" Civ.R. 37(D) tionable unless the parcy failing to act has by gralting Vonto it the reqturements of D.Loc.R. 21 applied for a protective order as provided which requires that the wronged party show need or by Rule 26 (C). prove that the wrongdocr has the ability to pay sanctions for discovery abuses. If that was the case, she argues, a wealthy party could never recover attorney fees for dis- Subdivision (D) of Civ.R. 37 complements subdivision covery abuses and persons of iimited means could en- (A). Civ.R. 37 (1994), staff notes, n.5, citing Wright, gage in such conduct without fear of financial detriment. Federal Courts 394 (2d Ed. 1970). While CIv.R. 37(A) is A conclusion that a domestic relauons judge cannot concerned with compelling discovery, subsecflon (D) is award attorney fees as sanctions under Civ:R. 37(D) for concemed with the immediate application of sanctions discovery abuses without evidence of income and ex- against non-complying parties or persons. Id. pense, she asserts, is contrary to law. D.Loc.R. 21, on the other hand, sets forth the proce- Schildhouse counters that Rath failed to show thai dural requirements of malang a request for attorney fees he engaged in discovery abuses and the magistrate made to either prosecute or defend an action under the jurisdic- no finding on that question. In addition, he contends that tion of the Cuyahoga County Court of Common Pleas, Civ.R. 3.7(D) and D.Loc.R 21 must be read together; Domestic Relations Division. It also addresses the type they are not, as Roth contends, inconsistent. of evidence the court requires to render a decision award- A trial judge interprets the meaning of a court rule as ing attorney fees for such defense or prosecufion of the a question of law, not as a question of fact. Cf. Neiman action. While it contemplates complications in defending v. Dortofrio (1992), 86 Ohio App. 3d 1, 3, 619 N.E.2d or prosecuting the action brought on by 'problems with 1117 (trial judge interprets statute as a question of law). completing discovery" as a basis of providing attomey An anpellate court reviews [*9] questions of law de fees, it is but one factor in [*11] determining the amount novo, without deference to the decision of the iudge. See of an attorney fee relative to time expended. D.Loc.R. 21 Nationwide Mut. Fire Ins. Ca, v. Guman Rros Farm (B) (2) (c). It does not contemplate awarding sanetions (1995), 73 Ohio St. 3d 107, 108. 652 N.E.2d 684, 686, for discovery abuses. Cf. Villa v. Villa, 1998 Ohio App. citing Ohio Bell Tel. Co. v. Pub. Util. Comm. (1992), 64 LEXIS 2171 (May 14, 1998), Cuyahoga App. No. 72709, Ohio St. 3d 145, 147, 593 N.E.2d 286, 287. unreported. (D.Loc.R. 21(B) does not apply to action in contempt for failing to pay spousal support under R. C. different pur- Civ.R. 37(D) and D.Loc.R. 21 serve 3105,18(H)). poses. Civ.R. 37 specifically addresses sanctions for,fail- ure to provide discovery. Subdivision (D) provides in Therefore, a party who might not be awarded attor- pertinent part: ney fees for prosecuting or defending a domestic rela- dons action under the provisions of D.Loc.R. 21(B) If a party "`** fails *** to serve a might be entitled to sanctions, including attorney fees, written response to a reouest for inspec- occasioned by the discovery abuses of the other parry tion subntitted under Rule 34, after proper under Civ.R. 37. Cf. Seagraves v. Seagraves (1997), 125 service of the request, the.court in which Ohio App. 3d 98, 1Q3, 707 N.E.2d 1165 (implies that the aciion is pending on motion and notice attorney fees awarded under R.C. 3105.18(H) are distinct may make such orders in regard to the from those awarded pursuant to frivolous conduct stat- failure as are lust.-and- eaznong others it ute,R:-C. 2z2331); As-noted-ahevc:;-the-award-of-reaeon------may take any action authorized unaer able expenses and attorney fees caused by the non- (a), (b), and-(r,.) of subdivision subsections moving ^party's failure to. servc a written response to a (B) (2) of'this rute. In lieu of any order or request for inspection is rrmndators "unless the court in addition thcreto, the court shall require expressly finds that the failure was substantially justified the party failing to act or the attorney ad- t*12] or that other circumstances make an award of ex-
APPELLEE APPX112 Page 4 2000 Ohio App. LEXIS 2029, *
penses unjust." Civ.R. 37(D). The judge, therefore, erred an award of attorney fees. He contends tltat, despite the when he^d94zLed_the r^tagistrates decisi.on_inwhich sh_e____A.cLth2un.eoAieinftrczztatin for_each_party_bec_ame_npazt_- concluded thatRoth's failure to present evidence of the of the agreed judgment entry on the child support modi- parties' respective incomes and expense precluded an fication, Roth's attorney failed to disclose this informa- award of attornev fees' for alleged discovery abuses. tion at the final hearing on the motion. Schildhouse con= Roth's third assignment of error is sustained. tends that [*14] Roth's position emasculates D.Loc.R. 21 because it would place the burden on the court to look to This conclusion does not end our inquiry because the contents of proceedings that are separate from a hear- Roth filed various motions requesting contempt and evi- ing on fees every time a party fails to provide the man- dentiary sanetions including attomey fees. With regard to dated inf'ormation, sometbing not contemplated by motions, only the attorney fees requested in the Civ.R. 37 D.Loc.R. 21. Therefore, Schildhouse argues, the magis- conjunction with the September 19, 1995 Motion to trate rendered a correct decision and the judge did not Compel are subject to consideration upon remand. Roth err. withdrew her October 13, 1995 and March 14, 1996 dis- covery related motions and. therefore, the attorney fees It is well settled that D.Loc.R. 21(B) applies to at- associated with those motions are not subject to consid- torney fees to prosecute or defend an action before the eration upon remand. domestic relations court, such as Roth's motion for modi- ficadon of child support, and evidence of income and As to the second and fifth assignments of error: expense must be provided. Roth's second assignment of error must he overruled. U. THE TRIAL COURT ERRED, AS A Roth's issue on whether the magistrate and judge MATTER OF LAW. IN RULING THAT abused their discretion in refusing to consider evidence DOiv1ESTIC RELATIONS LOCAL submitted at the hearing on the motion to modify child RULE 21 MANDATES THE support when determining whether to grant attorney fees, ADMISSION OF EVIDE.'QCE OF however, has merit. INCOME AND EXPENSE AS A "The term 'abuse of discretion' connotes more than NECESSARY PREDJCATE TO AN an error of law or judgment; it impiies that -thecourt:s AWARD OF ATTORNEY FEES IN AN attitude is unreasonable, arbitrary orunconscionable." ACTION TO MODIFY CFIILD [Citations omitted.] Blakemore v. Biakemore (1983), 5 SUPPORT. Ohio St. 3d 217, 219, 450 N.E.2d 1140, quoting Srate v. Adams (1980), 62 Ohio St. 2d 151, 157, 404 N.E.2d 144. V. THE COURT ["13] ABUSED ITS [*15] DISCRETION IN FAILING TO CONSIDER THE CHILD SUPPORT Subdivision (B) of D.Loc.R. 21 provides as follows: GUIDELINE WORKSHEETS, THE At the time of the final hearing on the INCOME/EXPENSE STATEMEIv'TS, motion or pleading that gives rise to the AND THE STIPULATIONS OF THE request for attorney fees, rhe attorney PARTIES SUBMITTED IN SUPPORT seeking such fees shall present: OF THE MOTION TO MODIFY CHILD SUPPORT AS EVIDENCE IN (1) an itenuzed statement describing SUPPORT OF THE MOTION FOR the services rendered, the timc for such ATTORNEY FEES. services, and the requested hourly rate for in-court time and out-of-court time; Here Roth contends that during the resolution of her Motion to Nlodify Child Support, the parties submitted (2) testimony as to whether the case the mandatory Chiid Support Guideline Worksheet, In- was complicated by any or all oi' the fol- come and Expense statements, including detailed stipula- lowing: tions regarding the income of each. She asserts an abuse of discretion in refusing to cqnsider this information be- cause this evidence was properly before the court for its (a) new or unioue issues of
Schildhouse points out that. evcn though R.C. (b) difficulty in ascertain- 3105.18 does not apply, D.Loc.A 21(B) (4) controls and ing or valuing the parties' evidence of the pttrlies' respecuve incomz and expenses assets; must he disclosed during the hearing in order to support
APPELLEE APPX 113 Page 5 2000 Ohio App. LEXIS 2029, "'
(c) problems with complet- RULE THAT THE ISSUE OF INCOME ng iiscnver_y------^ âl FXPENSE_WAS_ W.AIVED_BY-----__-_ THE DEFENDANT. (d) any other factor neces- Roth argues that Schildhouse waived the issue of in- sitating extra time being come and expense, her need for attorney fees or his in- soencon the case. ability to pay such, because he "failed to inquirc of Mrs. (3) testimony rgarding the attotney's Roth as to her expenses and resources." Moreover, she years in practice and experience in do- asserts that he failed to present any evidence that he mestic relations cases; and could not afford to pay the attorney fees. Shield'nouse argues that the burden of proof is on the moving party (4) eVidence of the parties' respective and he had no duty to disprove evidence which was income and expenses, if not otherwise never submitted in the first instance. disclosed during the hearing. Roth fails to cite anv authority in support of her as- signment of error. We note, however, that nothing in Subdivision (D) further provides that the "failure to D.Loc.R 21 requires a party opposing a motion for attor- comply with the provisions of this rule shall result in the ney fees to comply with subdivision (B). The fourth denial of a request for attorney fees, unless jurisdicdon to [*18) assignment of error is without merit. determine the issue of fee.s is expressly reserved in any Based upon the foregoing, this action is affirmed in order resulting from the hearing." part, reversed in part and remanded for consideration of Contrary [*1.6] to the conclusion of the magistrate, the merits of Roth's Motion for Attorney Fees for the nothing in this rule precludes evidence presented "at the prosecution of the Motion to Modify Child Support and hearing on the motion °" that gives rise to the request the attorney fees associated with the September 19, 1995 for attornev fees" from being considered as evidence of Motion to Compel in accordance with this opinion. the patties' respective income and expenses when "juris- It is ordered that the appellant shall recover from the diction to determine the issue of fees is expressly re- appellee her costs herein taxed. served in any order resulting from the hearing. Rather, it implies that' such evidence may be considered when ju- This court finds there were reasonabie grounds for risdiction has been expressly reserved The purpose of this appeal subdivision (D) is judicial economy: to address related It is ordered that a special mandate issue out of this requests for relief, i.e., modification of child support and court directing the Cuyahoga County Common Pleas attorney fees, in one hearing rather than address the is- Court. Domestic Relations Division, to carry this judg- sues in separate hearings where the evidence may often` ment into execution. times be duplicative of the evidence submitted aC an ear- lier hearing. A certified copy of this entry shall constinite the mandate pursuant to Rule 27 of tlie Rules• of Appellate In the present matter, the agreed journal entry, as Procedure. approved by the judge, which incorporated the income of both Roth and Schildhouse for the previous three years, JL'DGE passed the issue of attorney fees to an additional hearing. ANNE L. KILBANE In that order, the parties specifically agreed on the rea- sonableness of the respective attorneys' hourly wage. As JOHN T. PATTON, P.J., CONCUR; such. Roth reasonably complied with tlte requirements of LEO M. SPELLACY, J., CONCURRING IN D.Loc.R. 21(B). The [*17] decision of the judge and JUDGMENT ONLY. magistrate to ignore the order and the information con- ra"rned therein was unreasonable, arbitrary and uncon- N.B. This entry is an announcement of the court's deci- scionable. Roth's fifth assignment of error is sustained App.R. 22(B), 22(D) and 26(A); Loc. App.R.22. and the matter is remanded for a new hearing on [ne mer- sion. See This decisior, will be journalized and will become the its of attorney fees for the prosecution of the motion to judgment and order of the court pursuant to App.R. 22 modify child support. IE):-unless a-motion-forzecons'tderation-withsupporting-- Roth s fourth assienment of error asserts: [*19] brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The titne period foi review by the Svpreme Court of Obio TV. THE TRIAL COURT ERRED, AS A shall begin to run upon the journalization of this court's MATTER OF LAW, IN FAILING TO
APPELLEE APPX 114 Page 6 2000 Ohio App. LEXIS 2029, *
announcement of decision by the clerk per App.R. 22(E). See, &lso, S.Ci. Prac.R. II, Section 2 (A) (1).
APPELLEE APPX 115 LEXSEE 2001 OHIO APP. LEXIS 2930
The WilIiamsburg Association, ei al., Appellants v. Leslie Jan, et al., Appellees
Court of Appeals No. WD-00-069
COURT OF APPEALS OF OI3IO, SIXTH APPELLATE DISTRICT, WOOD COUNTY
2001 Ohio App. LE%IS 2930
June 29, 2001, Decided
PRIOR HISTORY: ['11] TrialCourt No. 99CV324. "B. TIIE TRIAL COURT ERRONEOUSLY RULED [*27 THAT THE RECORDED DISPOSITION: AFFIRMBD IN PART AND RESTRICTIONS ARE NOT ENFORCIBLE [sic] DUE REVERSED IN PART. TO THEIR VAGUENESS BECAUSE DEF'ENDANTS/APPELLEES FAILED TO DEMONSTRATE AN ABSENSE [sic] OF GENUINE COUNSEL: Joseph W. Westmeyer, Jr., for appellants. ISSUE OF VIATERIAL FACT REGARDING THE FACT THAT STANDARDS DO NOT EXIST." Merritt W. Green. I1I, for appellees Martin and Leslie Jan,. "Ii. THE TRIAL COURT ERRONEOUSLY GRANTED DEFENDANTS/APPELLEES, LESLIE JUDGES: Metvin L. Resnick, J., TC7DGE, James R. AND MARTY JAN'S, MOTION FOR SUMMARY Sherck, .i., 7UDGE, Mark L. Pietrykowsid, P.J., JUDGE, 7UDGMENT BECAUSE DEFENDANTS/APPELLEE'S CONCUR. [sic] WERE NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW AS EVIDENCED BY THE OPINIONBY: Melvin L. Resnick COURT'S SUBSEQUENT ENTRY STATING THAT THE DECLARATION OF RESTRICTIONS FOR THE OPINION: DECISION AND JUDGMENT ENTRY WILLIAMSBURG ASSOCIATION ARE VALID AND ENFORCIBLE Isic]." RESNICK, M.L.. J. This is an accelerated appeal from the grant of summary judgment to defendants- Pursuant to 6th DiseLoc.App.R. 12(Bj, this cause is appellees, Marty Jan and Leslie Jan, by the Wood placed on the court's regular calendar. The facts of this County Court of Common Pleas. Plaintiffs-appellants, case are as follows. The Williamsburg Association, George Broadright and Leslie and Marty Jan purchased properry in a resi- Larry Rigei. appeal that judgment and assert the foilow- dential development known as Williamsburg on tire ine assignments of error: River, Second and Third Extensions, in March 1997. In "1. THE WOOD COUNTY COURT OF COMMON March 1998, the developer of the suhdivision, William PLEAS ERRONEOUSLY GRANTED Wumer, approved the plans and specifications for the DEFENDANTS/APPELLEES, LESLIE .ANTD MARTY construction of a house on that property. Ir. Septemher JAN'S, SUMMARY 7UDGMENT MOTION BY 1998, appellees submitted plans and snecifications for DECIDING FACTUAL MATTERS IN DISPUTE." the completion of construction of their residence to Wil- liam Wumer. The plans included [*3; a description of a "A. THE TRIAL COURT ERRONEOUSLY split-rail fence to be erected on the property. After re- RULED THAT PLAINTIFFS/APPELLANTS ARE ceiving approval from Wumer, consuuction of the resi- EQUITABLY ESTOPPED FROM ENFORCING THE dence;-ineiudin,-hhe€ence;was-eorripleted: _..- DEC1...ARATION -OF RESTRICTIONS BECt1USE A.PPELLEE'S [sic] FAILED TO DEVIONSTRATE AN Su6sequentl}; appellants instituted this declaratory ABSENSE %sicJ OF GENUINE ISSUE OF MATERIAL iudgment action asking the trial court to enforce a con- FACT REGARDING THE CONDUCT OF THE sent provision in the Declaration of Restrictions for the ARCHITECTURAL CONTROL COMMITTEE." subdivision. Pursuant to the Declaration of Restrictions,
APPELLEE APPX 1 1E Page 2 2001 Ohio App. LEXIS 2930, *
Section 2.1, written approval of the Architectural Control specific standards or guidelines for approval and was, -Comuritteel;"Conmuttee"Y-is iezjuired-prior^o^-i^cor- can^cptitettU^unertforceable.------struction of any structure, inciuding a fence. The Com- We shall first address appellants' second assignment mittee consists of the develooer, William Wumer, and two other resident owners designated as Committee of error. In that assignment, appellanC> assert that a genu- members by the developer. Declaration of Restrictions, ine issue of material fact of fact exists on the question of whether the restrictive covenant requiring ptior approval Section 2.13. Approval must be granted in writing. Id. Declaranon of Restrictions, Section 2.14 reads: "Deter- of construction of structures or improvements on prop- minations by the Architectural Control Conunittee shall erty located in Williamsburg [*61 on the River, Second be made by the Developer and by a majority of the and Third Extensions, is valid and enforceable due to a if the Develaner shall purported consent judgment entry filed after the date of members present at any meeting the the Architectural Control Committee." The par- e judgment appealed from. Appellants appended a ties agree that tivs sentence means that approval of copy of this entry to their brief. pl•anned structures must be by a majority vote of the The trial couY. granted summary judgment in this three member Committee. case on October 6, 2000; judgment was journalized on October 10, 2000. The judgment contains the requisite In addition to their request [`4] for a declaratory Civ.R. 54(B) language necessary to render it immediateiy judgment, appellants raised a breach of fiduciary duty final and appealable. Ostensibly, the subsequent consent claim against William Wumer, alleging that the devel- judgment entry, file-stamped tiovember 29, 2000, settled ooer and Sharon Wumer wrongfully authorized the erec- the dispute between appellants and the remaining defen- tion of the fence on appellees' property in violalion of the dants, William Wumer and Sharon Wumer. Declaration of Restrictions. Appellees answered the complaint, asserting, among other things, the defense of Pursuant to App.R. 12(A)(1)(b), this Court deter- estoppel. Moreover, appellees alleged a counterclaim in mines an appeai on its merits based upon only the fol- wirich they asked the court to declare that the fence was lowing information: the assignments of error set forth in erected in accordance with Lhe Declaration of Restric- the appellate briefs, the record on appeal, and, unless tions. The other named defendants, William Wumer and waived, oral argument. A"i°"* Court of Appeals is Sharon Wumer, also answered the complaint. . bound by the record before it and mav not consider facts extraneous thereto." Paulin v. Midland Mu!. Life ln.s. Co. Appellees filed a motion for summary judgment ar- (1974), 37 Ohio St. 2d 109, 112, 307 N.E.2d 908. In guing that the restrictive covenant requiring property short, "[a] reviewing court cannot add matter to the re- owners in Williamsburg on the River to obtain prior ap- cord before it, which was not part of the triai court's [^"7 proval of the Gommittee for the construction of "stmc- proceedings, and then decide the appeal on the basis of tures" was unenforceable. Appellees urged that the Dec- the new matter." State v. Ishmail (17978), 54 Ohio St. 2d laration of Restrictions was too vague and contained no 402, 377 N.E.2d 500, paragraph one of the syllabus. guidelines for those seeking approval from the Commit- Therefore, we can neither consider the consent,judgment tee. In the alternative, appellees contended ttiat appellant entry nor decide this appeal on the basis of that entxy. was estopped from maintaining tbat the erection of a For this reason, we find appellants' second assigtunent of fence required written prior approval by a majority of the error not well-taken. committee. Appellees claimed that the undisputed [*5] factsshowed that each member of the Conunittee made Appellants' first assignment of error deals with hoth unilateral, and often verbal, decisions pertaining to the legai bases used by the trial court to support the zrant of cnnstruction of structures; therefore, appellants were appellees' motion for summar,v judgment. Our review of estopned 5-om arguing that Wumer's approval of their that judgment is de novo. Gra$on v. Ohio Edison Co. fence violated the Declararion of Restrictions. (1996), 77 Ohio St. 3d 102, 105, 671 N.E.2d 241. Ther fore, appellees car, prevail on their motion for summary In grantin_ summary judgment to appellees, the judgment only if: (1) no genuine issue of material fact common pleas court held that the Committee has never, remains to be Iitigated;(2) it appears from the evidence been a formal committee and titat unilateral decisions^ that reasonable. minds can reach but one coneiusion and concerning the construction of structures had, in the past, fhat conclusion is adverse to the nottmoving party; and been made by only one of the members of the Comtnit- (3) the moving^ary is entitled to summar} Juagutent as tee•. 'Pherefore;-the-coutrconeluded-that-appeljants-wvere : .------. ._.._ ._-- a matter of law. Civ.R. 56(C); Honon v. Harwtck Chem. equitably estopped from enforcing the Declaration of Corp. (1995), 73 Ohip St. 3d 579, 653 N.E.2d 1196, Restrictions. Furtherfrtore, the-court found that the re- paragraph three of the syllabus. str;ctive covenant requiring prior approval of the con- struction of structures or improvements did not contain Appellants initially contend that the ;"'8] trial court erred in granting summary judgment to appellees on the
?.PPELLEE APPX 117 Page 3 2001 Ohio App. LEXIS 2930, *
basis of equitable estoppel because questions of fact exist ther stares: "Please forward it [the applicationi to the ---onthetssurehance. ----- ^-- - -'AtcnifeZUia^Approval-i-sicj-Cammittee'-forapprnvat-^^ per our earlier discussions below." A recitation of those In Cuip v. Marshall & Prlelmm^this(1999j: court 133 heid:Ohio , discussions at the close of the application reveals that 729 1240, Apn. 3d 8i4, 819, N.E.2d appellees believed that Wiiliam Wumer promised that, if "Estoppel -occurs when a person by they purchased the lot, they could have a spit-rail fence act. representations, or by silence when he on their new property. ought to speak out, intentionally or negli- Moreover, appellants filed the affidavits of 7an D. gently induces another to believe that cer- Castanza. President of the W'illiamsburg Associadon, tain facts exist and the otherjustiftably re- and Alex Molnar, a member of the Board of Trustees of lies and acts on that belief to his preju- the Williamsburg Association. In his affidavit, Castanza dice. *'"* 'Equitabie estoppei prevents a avers that he advised the Jans that they must get approval party from exercising rights which he from the Commi¢ee prior to erecting the fence and to might otherwise have had against one contact George Broadright. In his affidavit, Molnar who has in good fairh relied upon the swears that he told Leslie Jan not to erect a fence on her conduct of that party.' Apponi v. Sunshine property without anproval of the Committee and to speak Biscuits, Inc. (C.A.6, 1981), 652 F.2d 643, with George Broadright regardin; the fence. Both affi- 650 n. 8." ants maintain that, prior to the erection of the fence, ap- pellees [*11] were told that the board's policy was not to permit the erection of fences in Williamsburg on the The record of this case reveals that William Wumer des- River, Second and Third Extensions and that the board ignatcd George Broadright and Larry Rigel as the other had a policy of enforcina the Declaration of Restrictions. two members of the Comntittee at some point at least ten vears' prior to the dispute giving rise to this appeal. Nev- Based on this evidence, we cannot find that no genu- ertheless, the Committee members diti not act in confor- ine issue of marerial fact as to the element of justifiable mance with the Declaration of Restrictions, Section 2.1. reliance exists on appeliees' estoppel claim. Even though It is undisputed that Wumer or Broadright or Broadright the conduct of the members of the Committee may have in conjunction [*9] with Rigel made unilateral decisions misied appellees into believing that William W umer was reiative to approval of "structures" or "improvements," authorized to approve their plans for a fence. appellees' including fences. Sometimes this approval was in writ- own application for approval, indicating knowledge that ing; sometimes, it was not. the Committee must grant that approval, creates, at the very least, a question of fact on the element of justifiable While there is some evidence that Wumer abdicated reliance on a belief that Wumer alone could approve the any responsibility for approval of "structures" and "im- construction of their fence. In addition, the affidavits of provements" after construction of a hame was com- Castanza and Molnar also create a question of fact on nleted, he did take sole respnnsibility for approval of the this issue. Accordingly, appellants' first argument has same dunng construction. Any subsequent request for merit, and the common pleas court could not predicate its prior approval of a structure or improvement was dealt grant of summary judgment on equitable estoppel. Be- with by George Broadright or George Broadright and cause, however, we find the trial court properly granted Larry Rigel. There is no dispute as to the fact that appel- summary judgment to appellees based upon the unenfor- lees reouested approval for the erection of the fence dur- cabilitv of the consent restriction, [1`12] this initial con- ing the construction of their residence, and that Williarit clusion is of no avail to appellants. Wumer approved their reauest. Furthermore, in their affidavits in support of their motion for summary judg- Resnictive covenants that require consent before meat. appellees state that, prior to the purchase of the construct.ion are valid and enforceable as long as there is property in Williamsburg on the River, Wutner assured a general building plan in effect and the iandowner has them that a split-rail fence would be no "problem." notice of the plan. Carranor Woods Property Owners' Assn. v. Driscoll (195), 106 Ohio App. 95, 99, 153 Nevertheless, the 7ans' September 1998 application N.E.2d 681. Tbe general building pian mav be written or fdr approval of roof, siding and trim colors for their new it mav be evident de facto from the appearance of the home,:n landscagmg_plans aad for_iheerectton of a. subdivision:-Presnvirk--Landrnvners=Assn:-vr{}ndnrhell--- solit-rail fence is addressed to "Mr. Wumer and f*101 (1980), 69 Ohio App. 2d 45. 49, 429 N.E.2d 1191; Dun- Archirectural.Contrpl Cbnunittee." The. applicatitmindi- kirk Re¢lty, Tnc. v: Collette, 1999 Ohio App. LEXIS 1936 cates that it was submitted to William. Wumer because he (Anr. 30, 1999), Wood App.Nc. WD-98-070, unreeorted. was personaily involved.in the sale of the lot in Wil- However, restrictions on the use of property are gener- liamsburg on the River to appeliees. Nevertheless, it fur- ally disfavored and are tn be suictiy cons-sued. Driscoll
APPELLEE APPX 118 Paue 4 2001 Ohio App. LEXIS 2930. "'
Austintown Associates(1975),42 Ohio St. 2d 263, 277, plans for a fence in the Second and Third Extensions 328-KE?d 39:5.Thus,when resrricuans are unc eai anna_- nIdoe arot an y relecte^ therefore "susceptible to being exercised in an arbitrary, Additionally, the appsarance of Williamsburg on the capricious, and unroasonahle manner," they are invalid Rivcr; Second and Third Extensions, did not give appcl- 0'Neil v. Anvell (1991), 73 Ohio and unenforceable." lees [*15] nodce of a de facto plan that precluded the App. 3d 631, 637, 598 N.E.2d 110. erection of fences. From the evidence offered. it appears Declaration of Restrictions. Section 2.1, provides that the Second Extension was in the fairly early stage of that owners of property in !*13] Williamsburg on the develooment and that, at that point in time, ihe Third River, Second and Third Extensions, must submit "plans Extension was not developed. However, the evidence and soeoifications" for all structures, including fences for presented did demonstrate that there were many fences in prior aoproval bv the Committee. Section 2.5 sets forth Williamsburg an the River, First Extension, and that scv- the archirectural stantiards: erai, if not most, of these fences, were split-rail fences. Consequently, the appearance of the developed oortion "In requiring the submission of detailed plans and of Williamsburg on the River save appellees de facto specit5cations, Developer intends to assure the develop- notice of a general plan that did include f'ences. Accord- ment of Williamsburg II/III as an architecturally harmo- inglv, reasonable minds could only conclude that thc nious, artistic and desirable residential subdivision, ***. consent restriction for Williamsburg on the River, Sec- In approving or withholding its approval of any plans or ond and Third Extensions, is invaiid and unenforceable. specifications, the Architectural Control Therefore, the trial court did not err in granting appellees' Committee shall have the right to consider the suit- motion for summary judgment. ability of the proposed t** Structure ***; its effect on Appellant's sole assignment of error is found well- the view and outlook from other Lots; the extent to taken, in part and not well-taken, in part. That portion of which its location and configuration preserves the natural the trial court's judgrrtent granting appellees' motion for attributes of the Lot; and such other matters as may be surnmarv judgment on the basis of equitable estoppei is deemed to be in the interest of other Lot owners." reversed. Nonetheless, the grant of summary judgment to In Prestwick, the Ninth District Court of Appeals appellees by the Wood County Court of Common Pleas strictly construed a restrictive covenant very similar to [*16] on the basis of the unenforcabilitv of the consent the one before us. That restriction provided that prior restriction is affirmed. Appellants are ordered to pay the approval of an architectural committee was required for costs of this appeal. the erection of, among other things, a fence. 69 Onio AFFIRMED IN PART AND App. 2d at 46. The relevant provision of the Declaration of [*14] Restrictions in that case mandated the submis- REVERSED LN PART. sion of plans and specifications so that the committee A certified copy of this entry shall constitute the could approve or disapprovc said plans "as to harmonv mandate pursuant to App.R. 27. See, also. 6th of structural design and location in relation to surround- Dist.Loc.App.R. 4, amended 1/1/98. ing structures and topugraphy." 69 Ohin App. 2d at 49. The Presrwick court found that this restricdon did not Melvin L. Resnick, J. contain sufficient guidelines to give notice to a[ot owner as to the kind of fence that would qualify for approval. JUDGE Id. While the language of the consent restricdon in the James R. Sherck. J. present case is not identical to the language in the Prest- wick n:sniction, it addresses the same specifications that JUDGE are geared to a general standard of "hatmony." There- fore, the written restriction in this case provides an insuf- Vlark L. Pietrykowski, P.S. ficient standard for approvingI or rejecting pians for fences, thereby allowing the Committee to exercise its TUDGE authority in an arbitrary, capricious and unreasonable manner: -Ftrom the^ Evideace-offered- as tothe-Bnard-of- - CONCUR_- Trustees policy on this matter. it would appear that any
APPELLEE APPX 11c Page 1
LEXSEE 2002 OHTO APP. LEXIS 6582
REGINALD WILSON, Plaintiff-Appellant vs. GLASTIC'CORPORATiON, Defendant-Appellee
COURT OF APPEALS OF OHIO, EiGHTH APPELLATE DISTRICT, CUYAHOCA COUNTY
150 Ohio App. 3d 706; 2002 Ohio 6821; 782 N.E.2d 1208; 2002Ohio App. LEXIS 6582: 171 L.IL&M. 2690
December 12, 2002, Date of Announcement of Decision
SUBSEQUENT HISTORY: Appeal denied by Wilson v. ['°"*1209] [**Pl] Plaintiff-appellant Reginald Glastic Corp., 98 Ohio S't. 3d /540. 2003 Ohio 1946, 786 Wilson appeals the mal court's granting summary N.E.2d 902, 2003 Ohio LEX1S 1090 /Ohio, Apr. 23, [***1210] judgment in favor of defendant-appellee 2003) Glashc Corporation ("Glastic"). Wilson argues that he did not have to exhaust his contractual rcmedies prior to PRIOR HISTORY: CHARACTER OF pursuing a retaGatian claim pursuant to RC. 4123.90. We PROCEEDING: Civil appeal from Common Pleas Court. find no merit to the appeal and affirm. Case No. CV-436681. [**P2] A review of the record indicates the DISPOSITION: Judgment affirmed. following fzcts.
[**P3] The employees of Glastic Corporation are COUNSEL: For Plaintiff-Appellant: DONALD G. govemed by a collective bargaining agreement, which RIEMER, MATTHEW A. PALNIK, Shapiro, provides the terms and conditions of employment at Marnecheck & Riemer, Cleveland, Ohio. Glastic Corporation. The callective bargaining agreement contains a smndard grievance and arbination provision, For Defendant-Appellee: SALVATORE J. LOPRESTI, providing that all disputed matters between an employee TIMOTHY A. MARCOVY, Willacy, LoPresti & and management are handled according to a very specific Marcovy, Cleveland, Ohio. procedure which ultimately culminates in aroitraiion.
JUDGES: PATRICIA ANN BLACKMON, P.J. [**P4] Wilson was hired by Glastic on September CONCURS; FRANK D. CELEBREZZE, JR, J. 4, 2000. On October 17, 2000, Wilson sutTered an iniury CONCURS IN JUDGMENT ONLY IN SEPARATE to his wrist while performing duties at Glastic. He did not CONCU'RRING OPINiON. JUDGE COLLEEN file a workers' compensation claim at this time because CONWAY COONEY. other employees had informed him that Glastic fires employees for filing workers' compensation claims. He OPINION BY: COLLEEN CONWAY COONEY stopped working in December 2000 because the injury twas exacerbated .:: by his work. His physician,,. Dr. Fum4ch . OPINION ced him onlight-dury work and Wilson ihen filed a rkers compensanonclaim; [*708] JOURNAL ENTRY anrl OPINION .,_....-[*_*Pi],.:Approximately a week later, Wilson s Wrist COLLEEN CONWAY COONEY, J.: had deteriorated furtherand Dr.Fumich ordered him to take a leave of ^absence. Glastic; accordingly, granted him
APPELi.E`. APPX 120 Pase" 150 Ohio App. 3d 706, *708; 2002 Ohio 6821, **P5; 782 N.E,2d 1208, ***1270; 2002 Ohio App. LEXIS 6582
------a leave of absence until January 14, 2001. --- uit supervtsar of' hts` --"- - doctor's order, and on March 21, gave him Fumich's [**P6] According to Wilson's affidavit, at this point disability cettificate authorizing Wilson to be off work in time, he noticed a chznge in attimde towards hini by until March 30. Mr. Azzareilo, Glastic's human resource manager. Wilson testified at his deposition that two weeks prior to his [**P11] On March 21, Azzarello callcd Wilson and scheduled retttra. Azzarello telephoned him and angrily demanded he retunt to woric. Wilson explained that his demanded that he nrovide him with a doctor's note smting doctor had not authonzed him to work until March 30. his exact return date, On January 19, Wilson had still not Azzarello again called on March 22 and ordered Wiison tetumed to work and had not provided a doctor's note for to conie to work for a meeting. Along with Wilson and an extended leave of absence. On this date, Aaarello Azzarello, present at the meet'ing were Wilson's shop wrote Wilson a letter demanding the note from Dr. .steward Lonnie McClain, and the union vice nresident, Fumich and also threatened to fire Wilson if he failed to Jeff Tachett. According to Wilson's affidavit, Azzarello compiv with the letter requirement and for being on was very hostile towards him at the meeting and unapprovedleave. questioned the validity of Dr. Fumich's note extending Wilson's leave. [**P71 [*709] Wilson obtained pemiission for extended leave from Dr. Ftanich, and Glastic extended [`*P12] Azzarello placed Wilson on a discip5nary his leave to March 5 based on the doctor s certification. suspension while an investigation took piace to determine whether Wilson forged his doctor's nores. Wilson filed a [**P8] Prior to his return date, Azzarello ordered grievance with the tmion regarding this suspension, that Wilson be examined by Dr. Kapian to ascerrzin which was denied. whether Wilson could perform light-duty work. Dr. Kaplan examined Wilson on February 26 and determined [**P13] On Apn] 2, 2001, Az2arello wrote a letter that Wilson could perform light-duty work. At tiie same to Wilson informing him that he was discharged as of time, Wilson's personal physician, Dr. Fumich, March 26 for failure to return to work on March 21 as determincd that Wilson sbould not return to work and [*7101 instr¢cted. According to Azzat'e]1o, Wilson's extended Wilson's leave until March 30. In spite of this, failure to renun violated Article 13, Section 6(e) of the on March 13, Azzareilo wrote a letter to Wilson collective bareaining agreement. informing him that ptusuant to Dr. Kaplan's opinion, he was not "totally disabled" and ordered Wilson to return to [**Pl4] In reVonse, Wilson filed a gnevance with work as of March 19 to perform light-duty work. the union in accordance with the collective bargaining According to Wilson, he complied with Aa`iarelIo's agreement. His grievance was denied, and Wilson demznd to return early, even though it was against his attempted to take his grievance to the second step, but his doctor's advice, because he was afraid he would bc ftrod grievance was again denied. Wilson chose not to take his if he did not return. grievance to arbitration. Instead, on April 23, 2001, Wilson filed suit in the court of conunon pleas pursuant [**P9] On his first day back, Wilson reinjured his to R.C. 4123.90, alleging that he was terminated because wrist by ittstinctively attempting to catch a heavy item he had filed for workers' compensation. using his injured wrist. He immediately informed his supervisor and was sent by the cotnpany to see Dr. [**P15] Glastic moved for summary judgment on Breitenbach. According to Wilson, although his wrist wac October 22, 2001, arguing that (1) Wilson failed to swollen,. the [***1211] doctor did not X-ray the wrist exhaust his administrative remedies set forth in the and after acursory examination, allowed Wilson to return collective bargaining agreemcnt pnor to filing suit in the to his light-duty work. court of eotnmon pleas; (2) federal law prcempted Wilson's ciditns; (3) Wilson was Icollaterally estopped [*'Pl0] Wilson, however. refused to return to work from bringing a claim by Glastiq'sfinal and binding that day because he had 'oeeninjured performing grievance processt and (4) therewas no evidence . . ... light^lutv-work:-Thenext-day,-March20; tte-went tnsee -- nresented-that--Wiison-•was-fired--for--f^tling--u-workers ------his personal physician. Dr. Fumich, who ordered him not compensation claim. The trial court granted Glastic's to rettun to work until March 30, as he had previnusly motion for snm.,,,,,vjudgment stating, "Dcfendanc's MSJ
aPPELLEE APPX 121 150 Ohio App. 3d706.. *710; 2002 Oh'to 6821, **P15; 782 N.E.2d 1208, ***1211; 2002Ohio App. LEXIS 6582
--^ Filed 10/22,101 is granted as PlaintitThas failed to exhaust I Although Glastic contendsthat Wilson tailed all contractual remedies prior to filing the captioned to rebut this argument in his brief in opposition to matter. Final." Wilson appeals and raises one assignment summary ,judgment, Glastic did address this of error contesting the trial court's gmnting summary argmnent on page 10 of its brief. Furthermore, the judgment 'oasedon his failure to exhaust his contractnal failure to rebut a legal argtunent raised in a remedies. "movant's" niotion for summary judgment does not constimte waiver for purposes of appeal, Faiiure to Exhaust Contractual Remedies because if the trial wurt based summary judgment on an incorrect legal premi.se, we must reverse [**P16] Appellate review of summary judgments based upon our de novo rcview. is de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio S'1.3d 102. 105, 1996 Ohio 336, 671 At.E.2d 241; Zemcik [**P20] "No employer shall discharge * * * any v. La Pine Truc% Sales & Equipment (1998). 124 Ohio empiovee because the employee filed a cla.hn *** under App.3d 581, 585, 706 N E.2d .860. The Ohio Supreme the worker's compensation act for an injury or Court stated the appropriaze test in Zivich v. Mentor occupationai disease which occurred in the course of and Soccer Club (1998), 82 Ohio S1.3d 367, 369-370, 1998 arising out of his employment with that employer. Any Ohio 389, 696 KE.2d 201, as follows: such employee may file an action in the wnunon pleas court of the county of such employment in which the [**1'17] [***1212] "Putsuartt to Civ.R. 56, relief which may be granted shall be limited to ( summary judgment is appropriate when 1) there is no reinstatement with back pay, if the action is based upon ( genuineissue of material fact, 2) the moving party is discharge ***. The action shall be forever barred atiless entitled to judgment as a matter of law, and (3) filed within one hundred eighty days immediately reasonable minds can wme to but one conclusion and following the discharge * * * and no action may be that conclusion is adverse to the nonmoving pany, said institut.ed or maintained unless the employer has received party being entitled to have the evidence construed nrost written notice of a claimed violation of this paragraph strongly in his favor. Horton v. Harwick Chem. Corp. within ninety days immediately following the discharge * (1995), 73 Ohio St.3d 679, 1995 Ohio 286, 653 ,ti.E.2d +*„ 1196, paragraph three of the syllabus. The partv moving for summary judgroent bears the burden of showing that [**P21] in Alexander v. Gardner-Denver Co. there is no Qenuine issue of material fact and that it is (1974), 41.5 US. 36, 39 L. Ed 2d 147, 94 S. Ct. 1011, the entitled to judo nent as a tnatter of law. Dresher v. Burt U.S. Supreme Court addressed whether an employee (1996), 75 Ohio 5t.3d 280, 292-293. 1996 Ohio 107. 662 waived his claim that his discharge violated Title VTI of N.E.2d264, 273-274." the Civil Rights Act of 196x4, by first pursuing his grievance to final arbitration under the nondiscrimination [**P18] Once the moving parry satisfies its burden, clause of a collective bargaining agreemenl. The Court the nonmoving party "may not rest upon the mere reasoned in that case: allegations or denials of the party's pleadings, but the party's response, by affidavit or a.s othcrwisc provided in [**P22] "In submitting his g,nevance to arbitretion, this rule, mu.st set forth [*711] specific facts showing an employee seeks to vindicate his wntrzetual right under that there is a genuine issue for trial," Civ.R. 56(E). a collective-bargaining agreement, in filing a lawsuit Mootispaw v. Eclcrtein (1996), 76 Ohio St.3d 383, 385, undcr Tit1e VII, an employee asserts independent 1996 Ohio 389, 667 N.E.2d 1197. Doubts must be stamtory rights accorded by Congress. The distinctly resolved in favor of the nonmoving party. Murphy v. separate natnre of these contractual and statutory rights is Revno(ds•bur,q (1992), 65 Ohio St.3d 356, 358-359, 1992 not vidated merely because both were violated as a result Ohio 95, 604N.E.2d 1381 of the same factual occurrence." Id. at 49. See, also, Barrentine v. Arkansas-Best Freight Sv.s.. Inc. [***1213] [**P 19] Wilson argues that summary judgment was l1981), 450 U.S. 728, 67 L. Ed. 2d 641, 101 S. Ct. 1437 4123.90, improperly granted because, pursuantto R.C. wa.c not barred by the prior (truclc drivcrs' FLSA claim -. ------exhaustion of conttactnalremedies--contained inthe- submtsston of thetr a evances w eonuactual resolution collecdve bargaitring agreement is not required. I R.C. procedures); Truax v. Em Industries, bxc. (1995), 107 4123.90 states in pertinent part:
APPELLEE APPX 122 Pase 4 150 Ohio App. 3d 706, *711; 2002 Ohio 6821, **P22; 782 N.E.2d 1208, ***1213; 2002 Ohio App. LEXIS 6582
------Ohio App.3d 210, 668 N.E.2d 524 ("just cause' proviston clavn ' isseparate^tom tlie coniractual coRecttve -- in coilective bargaining agreement did not [*712] bargaining agreement claim, the trial court erred in prevent plaintiff from, pntsuing Ii.C.'. 4123.90 claim in fmding that Wilson's failure to exhau,st his administratiye triat cottrt): Thomas v. Gen. Elec. Co. (1999), 231 Ohio remedies barred his court action. 2 App. 3d 825, 723 N.E.2d 1139, ( empioyee not required to exhaust administrative remedies contained in CBA before 2 Although Glastic relies on Nemazee v. Mr. ( filing R.C. 4) 12.01 claim in trial comt.) Sinai Medieal Center 1990), 56 Ohio St3d 109, 564 N.E.2d 477, in support of its arguntent that [**P231 "Whilc oourts should defer to an arbitral Wilson had to exhaust his administrative decisiun where the emoloyee's claim is based on rights remedies, that case is distinguishable because it ansine out of the collective bargainine agreement, does not involve a statutory right or a collective different considerations apply where the enq^loyee's bargaining agreement. claitm is based on rights arising out of a statute designed to provide minimum substantive gttarantees to individual [**P28] [*713] However, even though we 5nd woricers." Barrentine v, Arkarrsas-Besr Freight 5},.s.. Inc., that the ttial court erred in finding that Wilson failed to suora at 737. exhaust his administrative remedies, we must affirm tho trial court's judgment if it reached the right resuit, [**P24] Following Garctner- Denver, supra, 415 alrhough for the wrong reasons. April v. U.S. 36, and its progeny, we bold that by filing a claim Reflector-Herald, Inc. (1988), 46 Ohio App.3d 95, 97, for retaliatory discharge pursuant to R.C. 4123.90, 546 KE.2d 466; McCormick v. Haley (1973), 37 Ohio Wilson was asserting a statutory right independent of the App.2d 73, 77, 307 N.E.2d 34. In Glastic's motion for colleetive bargaining agreement. A union cannot summary judgment, Glastic aiso argued that Wilson's prospectively waive the individual right of a rnember to [*** 12141 claim was preempted by Section 301(a) of the sclect a judicial forum for the resolution of the member's Labor Management Relations Act (29U.S.C. Section state statutory clainis. Gardner-Denver, supra, 415 U.S. 185). at 52. [**P29] In Lingle v. Norge Div. of Magdc Chef Inc. [**P25] Because the claims under the collective (1988), 486 U.S. 399. 100 L. Ed 2d 410. 108 S. Ct 1877, bargaining agrccvtent and those pursuant to stamtc are the U.S. Supreme Cotm addressed when a statutory separate and independent of each other, Wilson's failure discharge claim is preempted by Section 301(a). The to pursue the grievance process to final arbitration is of Court held that a state-law rctaliator,v discharge claim no consequence. As the court rccently found in Luginbihl wa.c independent of the collective bargaining agreement v. Milcor Limited Partnership, Third Dist. No. i-01-162, and, thus, not preempted by fcderal labor law, when the 2002 Ohio 2188, an employee who bas abandoned the state-law claim presented purely factual questions that grievance proccdure can still bring a statutory claim in could be resolved. without interpreration of the coliective the court of common pleas: bargaining agreement. Id. at 407. The Court noted that "'not every dispute ... tangentially invoiving a provision [**P261 "[Appellant] properly broueltt her claim of a collective-bargaining agreement, is pre-empred by § purstmnt to R.C, 4112.9.9 in state court evcn after she 301."' Id al 413,fn 12, quoting.Alltr-ChaGne•s Corp. v. filed agrievance with hcr union and then abandoned the Lueck (1985), 471 U.S. 202, 211, 85 L. Ed. 2d 206, 105 S. procedure prior to full exhaustion. While there is a strong Ct. 1904. public policy in favor of pursuing matters through arbitration, [appellant's] state law disorinunation claim is [**P30] Accordingly, Section 301(a) of the Labor her own and may not be forfeited by her membership in a Management Relations Act preempts state claims in two labor organizztion." Id., 2002 Ohio 2188, at P29. See. situations: if the state claim is founded on rights created also, Truax, supra at 217, (because claims are by collective bargaining agreements or if the rights are independetn issues raised before the trial court were not created bv state law but the application of the law is barred by collaterel estoppei by issues raised in grievance dependent on an analysis or interpretation of a collective ..__. bargmning- agreetncnt. `SineB V:7Jenriian-Tirp"-"Corp ---- (1999), 13> Ohio App.3d 44, 732 XE.2d 1033. [**P27] Therefon;, because Wilsoti's statutory
APPELLEE APPX 123 Page 5 150 Ohio App. 3d 706, *713; 2002 Ohio 6821, **P30; 782 N.E.2d1208y ***1214; 2002 Ohio App. LEXIS 6582
.,.--- [**P31] The Court in Lingle found that no OPINION ------interpretation of the "just cause" terminati.on ciause in the collectivo bargaining agreement was necessary to res•olve IUDGE the state retaliatory claim. COLLEEN CONWAY COONEY [**P32] Unlike the retaliat.ory discharge claim in Lingie, supra, Wilson's claim cannot be resolved by a CONCUR BY: FRANK D. CELEBREZZE. JR. purely factual inquiry into Wilson's conduct and Glastic's conduct and motive. The detennination of whether CONCUR Giastic's reason for torntinatine Wilson was merelv FRANK D. CELEBREZZE, JR., pretextual, requires an interoretation of the collectivc CONCURRING: bargaining agreement to ascertain if Glastic had the authority to call Wilson back to work to perform [**P40] While I concur with the majority's ultimate light-duty work on March 19, despite the fact that conclusion, I would find that the lower court was correct Wilson's doct.or had authorized leave until March 30, and in granting summary judgment in favor of the appellees whether once Wilson re-injured himself upon rettnn, for appellant's failure to cxhaust all administrraove Glastic had the authority to ignore Wil.son's personal remcdies provided through the collective bargaining physician's order to take a leave of absence, in preference agreement. to their own doctor's suggestion that Wilson could immediately retum to light-duty work. [**P41] [***1215] First and foremost, the appellant was subject to a collective bargaining [**P33] [*714] Because we find that under the agreement between the union and the appellees. It is well specific faats of the instant case Wilson's retaiiator,v settled in Ohio that the failure of an employee to exhaust discharge ciaim requires interpretation of the collective his or her administralive remedies pursuant to a collective bargaining agreement, the claim is preernpted under bargairung agreement will result in a determination that a Section 301(a) of the Labor Management Relations Act court does not have jurisdiction to hear the employees contplaint. Nemazee v. Mt. Sinai Med. Cm. (1990), 56 [*"P34] The trial court's granting summary Ohio Se.3d 109, 111, 564 KE.2d 477. Stated another judgment, albeit on incorrect reasoning, was proper. way, "a common pleas court will not have subject matter W ilsnn's sole assignment of error is overruled. jurisdiction over an employee's grievance if [the] [**P35] Sudgment is affirmed employee failed to exhaust the grievance procedtne * * * set forth in a labor contract." Fratarnal Order of Police, [**P36] It is ordered that appcllee recover of Ohio Labor Council, Inc. v. Springdale (Feb. 5, 1.997), appellant its costs herein taxed. Hamilton App. No. C-960151, 1997 Ohio App. LEXIS 354. [**P37] The court finds there werc reasonable grounds for this appeal. [**P42] There are two exceptions to the above rule. First, if there is no administrative remedy available which [**P38] It is ordered that a special mandare issue can provide the sought after relief, or if pursuing out of this court directing the Cuyahoga Counry Court of administretive remedies would be wltolly futile, Common Pleas to carry this judgment into execution. exhaustion is not required. " Parches v. Cincrnnati (1988), 38 Ohio St.3d 12, 17. 526 N.E.2d 1350. Second, [**P39] A certified copy of this entry shall exhaustion of administrative remedies is also unnecessary constitute the mandatc pursuanr to Rule 27 e,f the Rule.r of when the available remedy is onerous or unusually AppellateProcedaae. expensive.Id
P-.'97R1CIA ANN BLACKMON, P.J. CONCURS: [**P43] A plaintiff must fust avail himself of the administrative remedies referred to *** prior to seeking ....FI2ANK D-.- GELEBREZZE; 7R.: 7-CONCURSIN_.-.. judicial review. The parpose of the exbausfion doctrine it JUDGMENT ONLY IN SEPARATE CONCURRING to afforded the trial cortrt with an adequate factual record
APPELLEE APPX 124 Page 6 l50 Ohio App. 3d 706. *714; 2002 Ohio 6821, **P43; 782 N.E.2d 1208, ***121j; 2002 Ohio App. LEXIS 6582 upon which to make an informed decision and to pron-iote administrative remedies prior to seeking satisfaction with judiciai economy through the resolution [*7I5j of these the lower court_ Simply, therc is a strong pu6lic policy in disputes without the premature need for judicial favor of pursuing matters through arbitration, notably, in intervention. See ,'s'emcree v. zNt. Sinai Med. Ctr. (1990), a situation atising from an interpretation of a collective 56 Oluiu Sr.3d 109, 564 A'.E.2d 477. . bargaining ageement.
[**P44] The fact that the appcllant's claims stem KEYWORDS SUMMARY directly from an interpretation of the collective bargaining agreement certainly would warrant an Fzlson v. Glactic Corp., No. 80840 interpretation that the remedies afforded under said Workets' Compensation; R.C. 41?3.90; Exhaustion agreement be adhered to unleas it would obviously prove ( a) Labor Management futile. Accordingly. I am of the opinion that the trial court Of Remedies; Section 301 was correct in ruling that the appellant's claitns whem Relations Act premature since the appellant had failed to exhaust all
APPELLEE apov 1 25 Pa¢e 1
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Sanders v. Summit County Veterans' Serv. Comm'u, 2002 Ohio 2653, 2002 Ohio App. LEXIS 2504 (Ohio Ct. App:, Summit County May 29, 2002)
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(CITATION YOU ENTERED): Sanders v. Summit Counry Veleran,c' Serv. Comm'n, 2002 Ohio 265, 2002 Ohio App. LEXIS 2504 (Ohio Ct. App., Sumnvt County May 29, 2002)
APPELLEE APPv -2:: Copyright (c) 1986 Ohio State Law Journai Ohio State Law Journal
Spring, 1986
47Ohic Sz. L.J. 4i 3
LENGTH: 12774 words
AR'IYCI.E: Separation Anxiery: Free Hxerise Versus Equal Protection.
NAME: BENSON A. WOLMAN R
B1O:
" Benson A Wolman is the Legislative Ditmtor of the American Civil Liberties Union of Ohio. The views expressedare personal, not organizational, nor thnse to whom the author expresses his appreciadon for assis- tance: Professors Bernard Dushman (Assistant Dean, Yale Law School); Brian Freeman fCapital Universit,v Col- lege of Law): David Goldberger, Lawrence Herman, and Louis Jacobs (all of The Ohio Stare Universiry College of Law); and Richard Saphire (University of Dayton College of Law); Jerilyn L. Wolman, Ph.D.; Susan Gell- man, J.D.; Howard R.Besser, Esq.; and Bruce A. Campbell, Esq.
SUMMARY: ... What follows is a view of the controversy surmunding the Dayton Christian Schools case, focusing primarily upon some of the aspects of the free exercise of religion issue as it collides with the fourteenth amendment values in Ohio's laws that prohibit discrimination in employment. ... In January 1979 Linda Hoskinson, a teacher at Dayton Christian Schools (DCS), informed Principal James Rakestmw that she was pregnant_ ... Still, the possibility that a religious insti- tution (utilizing a chain of command doctrine) may be totally inununized from any secular scrutiny whatsoever creates an agonizing tension hetween the competing values of the religion clauses of the frrst amendment and a legitimate state concern for eradicating discriminadon -- and the complete triumph of either value is unacceptable. ... Even more re- cently, the Ohio Supreme Court has unanimously reaffirmed its role of special protection of free exercise interests, hold- ing that state-imposed rninimum standards may go "no further than necessary to assure the stare's legitimate interests in education of clrildren in pnvate elementary schools," noting that "the balance is weighted, ab initio, in favor of a Firs; Amendment claim to religious freedom." ... Whete the issue is one of permitting discrimination in favor or co- reHgionists in teaching and other jobs in schools, the extent of religious permeation of the instimtion and the age of the subjects of instruction (for example, elementary and secondary school children as opposed to college students) bernnte relevant consideradons....
TEXT: [*453] Among the most fascinating and difficult constiwtional quesuons are those which involve cottflicts of'-val- ues underlying the religion clauses of the frrst amendment nl and the equal protecdon clause of the fourteentn amend- ment. n2 At this writing one such case, pending before the .Supreme Court, can have no really satisfactory resolution for those concerned about constimtional liberties, including this writer What follows is a view of the controversy surrounding the Dayton Christian Schools n3 case, focusing ^:na:iiv upon some of the aspects of the free exercise of relrigion issue n4 as it collides with rhe fotmteenth amendme#tt values in Ohio's laws that prohibit discrimination in employment. This Article wiil examine those sections of Ohios antidis- crimination laws that appear to permit no excepdon for reGgious or other forms of discrimination in religious institu- dons. The Article will eonsider whether there must be exceptions and, if so, on what bases should they'ne created. Pro- found questions arc raised by Dayton Clnristian Schools. First, it must be determined whether, or under what conditions,
APPELLEE AP°X 127 Pan= 2 47 Ohio St. L.I. 453, "
a state maypronibit a nonoublic elementary and secondary school witich maintains a pervasively reIlgious atmosphere for the inculcation of its students from applving a reIlgious test for its teaching staff. Second, if a religious test is consti- tutionally nrotecred, then it must be determined whether the test may (1) discriminate on the basis of gender and (2) inciude withinit a proscription on recourse to-governmentai autherity. Tbe problem of discrimination based on truly held religious views may not trouble those who make no distinction between various categones of non-rational diserittdnation. But, for those for whom the concept of separation of church and state on the one hand and a nadonal eormnitment toequal protection of the laws. on the other both play a sienivcant roie in their scbeme of things, the resolution of these issues creates a real "separauon anxiety." In attempting to deai with the diletnma, Part iwil] give a background of the controversy and a view of the perva- sively sectarian nature of the school. Part II will consider the special problem of the chain of command reiigious doc- trine and its [*454] patenrial for ousting peopte from access to remedies. Part III will examine the apnarently absolute language of the Ohio civil rights statutes, related federal laws, and the role of the federal and state courts in intetpreta- ¢on, abstendon, and pzeempdon. Part IV will suggest the most appropriate interpretation of the Ohio statutes. And, Part V will conclude by recommending a mode af analysis that would expand the ecclesiasdcal exemption from civii rights laws to include most, if not all, teachers in religiously operated and oriented eiementary and secondary schools but limit other staff exemptions to those schools that do not receive public assistance. T. PROPAGATION: OF A CHSI.D, OF A FAITH, AND OF THE CONTROVERSY in January 1979 Linda Hosltinson, a teacher at Dayton Christian Schools (DCS), n5 informed Principal James Rakestraw that sbe was pregnant. Rakesrraw then took rhe matter up with DCS SupedmmDdent Claude Schindler, who directed Rakestraw to nodfy Hoskinson that she would not be given a contract for the next academic year "because of cur desire to have a mother home with pre-school age children." n6 Rakestraw responded in iate February n7 in writ- ing that: [A]s you will be a new parent (June) your teaching next year would be in contxast to the School's philosophy. As a school, we see the importance of the mother in the home during the early years of child growth. This is a factor we con- sider as we interview prospective [eachers. If rhere are pre-school age civldren in the home we recommend the mother stay there and do not accept her appiication. n8
DCS concedes it "had not adequately explained" its philosophy on this point. indeed, in testimonv the superintendent acknowledged this and concluded that the DCS facttlty and staff, including Hoskinson, were "not fuily nware of the convictions of the administration and of the School Board reladve to this particular Biblicai principle," But, he said, the policy of the school had been consistent "since its inception," and he acknowledged having applied that policy in the past. n9
[*455] Based on all of the evidence before it. the district court rejected the Commission's contention that the rluf:y of a moiner to stay at honie to raise her children was the ntere "personal philosonhy" of the superintendent "simply be- cause the belief might not have been a clearly atticulamd tenet at DCS." Furthennore, the court made a specific tinding that Schindler's "initial decision not to renew Mrs. Hoskinson's teaching contract was founded on religious precepts and therefore falls witlun the ambit of the first amendment's protection afforded to the free exercise of religion." n10 i7te court noied that intrafaith differences are common in many religions, and it found "deficiem" the notion that "only those practices based upon articulated, agreed upon, and well established religious beliefs of the insutution should receive first amendment protection." nil Throughout the litigauon, the plaintiffs have maintained that this is institutional doc- ttine based on scriptute. n12 After receiving the February 20 memorandum. Hosi On Marca 14, 1979, the supenntendent and the pnncipal met with Hoskinson and susnended her t.hen and there, as the district court found, "because she had gone to an attorney." al? That, said the schooi officiaLs,violated the'oiblical chain of eommand. adherence to which was a specti{tc requirement of her contract withthe school. n15 APPELLEE APPX 128 Page .3 47 Ohio St. L.S. 453, * [*456] The next day Hasldnson met with the DCS Board, at which time her preenancy was discussed. On March 26, at a mcedng at which she was not present, the Board decided to discharge her. The following day. March 27, a let- ter was sent to Hoskinson, rescinding the memorandum of February 20 n16 but discharging her due to "a serious phi- iosopincal difference" with particular reference to her violation of Paragranh 13 of the contract (the Chain of Command pnnciple). n17 On March 28 Hoskinson filed a Charge of Disctiminadon with the Ohio Civil Rights Commission (OCRC), ciaiming sex discnminadon because of the nonrenewal due to pregnancy and retaliatory dismissat for having consulted a lawyer, n18 The filing set in motion, in April and May of 1979 a series of traditional procedures of the OCRC. These included launching a preiiminary inquiry, a suggestion that DCS consider "adjustment of the matter," additionai orodding for adjustment. and notice that a formal investigatioa would ensue from failure to adjust. In October the OCRC presented ta DCS counsel a fairly standard but lengtby list of information that OCRC wanted for an investigative conference in November, as well as a nodce that it wished to interview certain school officiais. The list sought compiete informauon from January 1, 1977 to October 29, 1979 on the following: employment data on Hoskinson; current empioyee hand- books and mles; written DCS policies governing discipline, discharge, pregnancy, oral or wntten performance evalua- tions and standards,employees working with preschool children, contract renewals, grievance procedures, employee resort ro the legal system, determinauons of "serious philosophical differences," and inquiries into empioyees' financial stams and babysitting plans; job descriptions and model contracts; employee pregnancy and any change of sratus and reasons therefore; and suspension and discharge records. In addition, the OCRC asked for current employment applica- tion forms; a written position statement regarding Hoskinson's allega[ions; minutes of the March 15 and 26, 1979 meet- ings of the DCS Board of Directors, and the complete personnel files of Hoskinson and other DCS employees. n19 In Januarv 1980 the OCRC told DCS counsel that it wa.s probable that DCS had engaged in uttlawful discnnunatory practices and it proposed a conciliauon agreement. Inter alia, the Commission found: Evidence and testimony indicate ffiat but for the fact that Comolainant is female and selected to have a child, she would have been offered a teaching contract for the 1979-1980 schoo] year. Evidence and testimony also indicate that Complainant's discharge, and the reasons [*457] given for it by Respondent, were directly hnked to the February 20, 1979 memo w•hich stated that she would not be offered a contract because "[i]f there are pre-school age children in the hotne we recommend the mother stay there and do not accept her application." Evidence and testimony indicate the Complainant would not have been thus treated had she been a male, and ittat. therefore. she has been discriminated against because of her sex. a20 DCS did not appear at a conciliation confcrence and had declined to respond to or sign the proposed Conciliation Agreement which, in addidon to requiring reinstatement with back pay and prohibition aeainst retaliadon against Hosidnson, also required the school to "implement and administer the poGcies and work rulas of the school equally without regard for employee.s' ... sex [or] reiigion...." a2l After DCS failcd to sign the proposed Conciliation Agreement and Consent Order or to present a counterproposal, the Cornmission fiied formal chargea in April 1980 to inidate adminisuative hearings on both the sex discrimination and retaliatory dismissal issues. DCS answered in May. An August hearing date was postponed, and DCS filed suit in United States District Coun for the Southern District of Ohio, at Dayton, a week before the rescheduled hearing, then set for October S. 1980. n22 The federal complaint. under 42 U.S.C. § 1983, soughr declaratory and injunctive relief frum application of the Ohio civil rights statutory procedures n23 to r*458] the employment practices of the Dayton Chrisuan Schools on grounds that the Ohio statutory scheme contravcnes the nrst, ninth, and fourreenth amendments to the Constitution of the United States. The plaintiffs in the case, in addition to DCS, include Patterson Park Church, Christian Ta6ernacte; DCS Officials; two parents who alleged that the Ohio law "burdens and endangers the ability of parents to choose a religious educationfor their children;" and a teacher who charged that the state statute "burdens and endangers the op- portunity of religious teachers and administrators to carry out their reli;ious vocation in the Christian formation and education of young people." n24 The district court on October 6 granted a temporary restraining order preventing the OCRC from conducting a pub- lic heanng. By agreement of the parties, a trial on the merits was consolidated with a hearing on the plaintiffs' mouon for a permanent injunction. n25 That trial was held on December S. 198D. On January 6, 1984, the court denied the pemanent injunedonand dismissed the case, hoiding that the exercise of;uristliction by the OCRC did not "impermis- sibly impinge on Plaintiffs' free exercise rights or resultin excessive government entanglement in religion." n26 APPELLEE APPX 129 Page 4 47 Ohio St L.J. 453, " In June 1985 a three-judge panel of the United StatesCourt of Appeals reversed, n27 holding that the emplovment diserimination and remliarory dismissaiprovisions of the Ohio civil rights statutes constitutionally could not he applied to employment in a religiously permeaied school when the challenged practices serve to fulfilTthe religious mission of the school. n28 The State of Ohio appealed to the Supreme Court of the United States, wiuch has accepted the case for appellate review. n29 In Dayton Christian Schools everyone concedes the predominantly sectarian-fundamentalist Chrisiian -- aura of the educational setting. Thisis apparent from the testimony of the complainant herself, school officials, and the findings of the district court to that effect: As no contrar,v evidence was presented by the Defendant as to the rel3gious purpose and mission of the school, the Court concludes tbat the religious purpose and mission of Dayton Christian Schools. Inc., is for orooagation of the Chrisrian beliefs and faith and that this religious orientation is an integral part of the school's philosophy and operation. The [*459] aforesaid religious purposes are shown by the evidence to permeate the school's goals, curriculum and ad- ministration. n30 The pervasive religious atmosphere was evident: Every aspect of the schoul's operation is geared toward exposing and educating the students on how to lead a Chris- tian life by understanding what the members consider to be the guidance anddirection provided by the Bible. As re- vealed in the testimony at the hearing on this matter and in the exhibits accepted into evidence, the teachers at DCS are selected because of their ability to blend their avowed religious beliefs into every lesson and school activity. Teachers are required to be born again Christians and to carry with them into their ciasses the religious fervor and conviction felt necessary to stimulate young minds into accepting Christ as savior. Because ofthe emphasispiaced on the religious education of the students, the school demands that teachers conform both in thought and conduct to the tenets and prin- ciples felt essential to leading a Christian life. The belief system espoused by the members of DCS toucbes every aspect of their life: work, interpersonal relationships, family and recreational activities. Deviation in anv way from what is felt to be the proper religious way of life may cast doubt on a teachei s ability to perform his or her criticai role and may, therefore, be grounds for dismissal. n31 These conclusions were unchallenged by the OCRC on appeal before the Court of Appeals for the Sixth Circui! n32 Also unchallenged w•as the awareness of all conceined of the biblical chain of cotnmand doctrine n33 and its cnplica- tions for employment. n34 The underlying complaint -- namely, sex discrimination by the nonrenewal of employment contract based upon the school's view that a mother's place is at home with her pre-school age children, and whether a state constitutionally ntay prohibit a secrarian elementary and secondary school from imposing such a religion-based standard n35 upon an em- pioyee that the schon] and the emoloyee conclude is in the role. of an exemnlar -- is at the crux of this case. It is firther complicated by thc retaliatory disnussal for breaking the religious chain of command. II. TI-IB. CI-L9IN OF COMMAND: A TIE THAT BLINDS There has been an aggressive pursuit of the premise that the Supreme Court should dispose of the Davton Christian Schools case on grounds that allowing a religon-based chain of command doctrine to prevail would oust the civil au- thority of any capacity to make threshold inquiries. n36 The Conmmission and those amici in iu support maintain that it is inherent in the authority of the stare at least to inquire whether the first amendment mandates an exemption of religion from "facially [4:460] neutral" governmental regulations of general applicability that serve compelling governmental interests. Closely related to this issue ofjurisdic¢on to inquire is the importance of the state's interest in protecting an employee from retaliation for consulting with counsel or for filing a complaint with the appropriate authorities. DCS has sugg.ested that the clain of comtnand as a valid basis for retaliatory dismissal should await the dcterrruna- tion of the merits of the underlying religious claim -- that one who has agreed to abide by the chain of command and breaks the agreement may have to run the risk, 0 a case-by-case basis, in which the courts would sdll b^ the ultimate arbiter. LJnfortunately, this approach piaces upon a complainant the significant burden of the risk of how a court ulfi- mately wigl rule,and runs contrary to the generally accepted rule protecting good faith complainants from retaliaticn. n37 One need not go so far as to hypothesize that in a school such as DCS, where every employee including custocial personnel has sworn (and nerhaps contracted) to the articles of faith, including the chain uf cummand, that if a janitor reports a faulty fire extinguisher to the iire departrnent n38 he or she might be subject to dismissal. First, the courts would balance the religious interest with the heaith and safety interest of youngpeopl.e. n39 More significantly, the APPELLEE APPX 130 Page 5 47 Ohio St. L.J. 453, * religious interest itself would he diminished because the janitor may be less likely to be a central exemplar than is a. teacher. Still, the possibility that a religious institution (utilizing a chain of command docuine) may be totally itntnu- nized from any secular scrutiny whatsoever creates an agonizing tension between the competing values of the religion clause-s of the first amendment and a legitimate statc concetn for eradicating discrimination - and the complete triumph of either value is unacceptable. A passible approach for dispensing with the chain of command/retaliatory dismissal on other grounds than whether a ciaim was filed ir. good faith is also related to outeome. Should the Court decide that there was no jurisdiction over religious elementary and secondary schoots or, even more natrowly, over teachers in such schools. the Court then could permit the retaliatory dismissai issue m abide a decision on the jurisdiction question. Thus, the tension between the competing constitutionai values could be reduced by allowing a chain of command exempdon only to a very narrow category of instimtions or cerrain personnel within those institutions. In the absence of statutory guidance, thc exemp- tion could further be narrowed or more clearly defined by a presumption (for or against allowing the exemption) which could include some external indicia, such as whether the institntion accepted direct or indirect state or federal aid, whether it claimed and was granred exemption from sales ["461 ] or property taxes, or whether it was eligibte for and accepted tax-deductible contributions. Other, more subjective indicia, such as centrality-to-the-faith (as in Wisconsin v. Yoder n40 ) and the religious role of the employee in the institution. are also possible. n4l There is a public policv strongiy disfavoring waive: of siraniftcant rights. n42 There is also a constitutionallv trou- hSng feature of the chain of command argument, which surfaces in ehe effects of its successful assertion. Insulating the school from the Ohio Civil Rights Act's ant'uetaliabon provision apparently couid prevenisecular authorities from re- viewing and remedying any kind of wrongdoing, discriminatory or otherwise. Here, if given full weight, this insulation would appear to preclude the courts from making any threshold judgment, even upon jurisdiction over the underiying discrimination ciaim. Another approach would be for the courts to put the burden upon the religious institution to take other actions against Hoskinson that would have less drastic impact than ousting the civil authority of jurisdiction - namely, as the Court of Appeais for the Ninth Circuit suggested in EEOC v. Pacific Press, n43 the imposition of intemal religious szinctions for substantial violations of religious principles. That analysis may be unworkable in this case because one of the specitic biblical sanctions for breaeh of chain of command could be a farm of excommunication. n44 But if Hoskinson were to be excommunicated. she no longer would be regarded as of sufficient faith to teach in the religious school, in just the same way as the violation of the chain of command itself rendered her religiously uuqualii7ed in thc eyes of'school officials. More significant are the arguments that in other cases there coufd be a proliferation of dubious or even fraudulent claims. But that is not the situation in ihis case (as both lower courts found), and thus it would be a less appropriate basis for decision. Even if one concedes the rcasonableness of not aliowing the chain of command argument to prevail on first amendment grnunds over a brnader social interest of the state, n45 that will not dispose of Ihe issue of whethcr DCS should have been allowed to refuse to renew Host The Ohio scheme creates no religion-based or other exception for acts of empioyment discriminariop. based on re- ligion or sex, although it permits inquiries, advertising. and recordkeeping on religion, gender and other bases where an employer asserte "a bona fide occupational qualification certified in advance by the eommission ...." n50 On its face. then, while the statnte permits certain employment related-practices if a bona frde occupational qualification is applied APPELLEE APPX 131 Page 6 47 Ohio St. L.J. 453, * for and certified, the act of discriminating inhirine or retention on the basis of religion or scx in ajob where there was such a bona fide occupationai qualification neverthelesawould stil] appear to bo a violation of the plain language of the statute. Both the district court n51 and the court of appeals n52 adhered to this literat reading (much like a fundamen- talist interpretation of the Bible), viewing the language of the sramte both in light of the absence of any Ohio legislative history and in the face of a specific exclusion from the fair housing portion of the civil rights act for religious inatitu- tions that give housing pteference to their coreligionists. n53 In its failure to include any religious exemption or qualification whatsoever, the Oitio law n54 clearly is disdn- guishable from the compzrable provisions of federal law. 42 U.S.C. § 2000e-1 of the Civil Rights Act of 1964 pro- vides: This subchapter shall not apply to an employer with respect to the employment of aliens outside any Smte, or to a religious corporation, association, educational institution, or society with respect to tbe emplovment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institu- tion, or socicty of its acflvities. n55 Sindlarly, 42 U.S. C. § 2000e-2(e)(2) states: [*463] [I]t shall not be an unlawful employment practice for a school, college, universiry; or other educadonal institution or institution of learning to hire and employ employees of a particu- lar religion if such sch The Ohio statute also differs from the laws of most other srates n56 which were adopted or modified afler the federa' Civil Righrs Act of 1964. Chapter 4112 of the Ohio Revised Code sets forth a system of administrative inquiries; hearings, and findings, as well as a resort to Ohio's Courrs of Conmton Pleas for declaratory and injunctive proceedings to enforce, modify, or set aside Commission orders. n57 However, there is no de novo consideration, for the Commission's fact-finding is "con- ciusivc if supported by reliable, probative and substantial evidence on the record ...." n58 The act also separately makes it a crime to engage in any unlawful discriminatory practice listed in the snbstantive sections. n59 A rclated provision makes unlawful an,v act of retaliadon because a person "has opposed any unlawiul practice defined in this section...," n60 but while a retaliatory practice is subject to administrative and civil law emedies, it carries no crimi- nalsanction. The Commission maintains that the district and appeals courLs erred in holding that the Ohio statutory scheme does not give it the authority to create a religious bona fide occupational qualification. n61 Even so, the Commission also asserts that the exemplary function of eiementary and secondary [eachers is not sufficient to bring thetn into a purely ecclesiasflcal role worthy of exemption, n02 in the absence of Ohio judicial construction, the district court might have applied abstention here. In oral argument before the Supreme Court, the Commission, in response to questions from the Court, asserted that the Younger n63 issue was raised before, but not addressed by, the district court. n64 In an unusual post-zrgument briefinthe Supreme Court, DCS urged that, neither Younger nor Pullman n65 ahstentions were appropriate because the state never disputed jurisdictiun n66 and because the scheme of [*464] the act is not subject to any state i.n.terpretation that would uernut the Conunission to find a bona fide occupational oualification, n67 The prospect of abstention, however, may be very attractive to the Suprente Court, wiuch could remand with an opinion suggestive of guidelines for interpretation. n68 Furthermore, DCS's argument that. the administrative procedures are entangling and that the Ohio nrocesses for appea'. of the Commission's administrative proceedings are very limited n69 are not all that persuasive: Dayton Chrisdan Schools could have filed its section 1983 action in state coun. n70 However, to invoke abstention now when it was no". very vigorously contended below could complicate and drae out the already iengthy proceedings, n7l unless very sie nificant guidance is given by the Supreme Cotst. As interpreted by both the district court, which upheld the Commission's riiht to proceed, and the Court of Appeals, whieh de:ued that prerogative, the Ohio statutory scheme, unless totured; could'not yield a religious exemption. Both courts deciined to stretch it on the raek. Anather possible inrerpretation is to held the federal religious exemption pre-empts inconsistent Ohio law and therefore is to be read into the Ohio statute. Clearly, Title VI3 of the Civil Rights Act of 1964 contemplates narailel APPELLEE APPX 132 Pasa - 47 Ohio St. L.J. 453, * federal and srate systems for eradicating employment discrimination. Indeed, the federal statute provides for prior re- sort to available state adnunistrative rcmedies. Howcvcr, state lawsgenerally are not pre-empted except where they contravene the purpose of Title VII or "purport to require or permit the doing of any act which would be an unlawful employment practice under Ihis subchapter." n72 Still, it might not require too much stretching, either through pre- emption by, or tlvough interpretation of the Ohio statutes in pari materia with, the reli;ious exemptions of 42 U.S.C. $ 2000e-1 and § 2000-2(e)(2) n73 to make their inciusion "unlawful employment practlces." Indeed, in a related area, the Supreme Court has been very creative in concluding that "the absence of an affirmative intention of Congress forti- f-ies" its conclusion that Congress would not want the NLRE interfering with church-operated schools. 174 Thus, a eourt might adopt an analogous approach and conclude that the federal religious excmnrion pre-cmnts or modifies a stare prohibition which might be lawful under Title VII, and apply the statutory construction scheme of Catholic Bishop. A court very concerned with free exercise of religion could determine the [*465] presence of an affirmative exception in Title VII constitutes federal pre-emption and preclusion of'stata legislation that does not exempt religious institutions from the operation of state civil rights statutes. n75 Dayton Christian Schools and various amici n76 maintain that taken on its face, the absolute terms of the Ohio statute could lead to prohibiting the Catholic Church from employing only celibate males as priests, barring synagogues from hiring only males who eschew celibacy as rabbis, or strii APPELLEE APPX 133 Page 8 47 Ohio St. L.J. 453, * The Ohio Supreme Court has not been heard on the issue of religious exemptions from the civil right.s statutes, n84 but it has not been silent on relieving religious schools ["467] from another gencrallv applied standard. In Statc v, Whisner n85 the Ohio Supreme Court dealt with the prosecution of twelve parents for promoting uuancy by sending their children to a fundamentalist Christian school in violation of a statute n86 requiring attendance at schools that con- form tominimum state standards. In reversing the convictions and discharging the defendants on grounds that the stat- ute too broadly imposed upon the free exercise clause, the court used language which could have appHcation to DCS: In our view, these standards are so pervasive and all-encompassing that total compliance with each and every smn- dard by a non-public school would effectively eradicate the distinction between public and non-pubtic education, and thereby deprive these appellants of their traditional interest as parenta to direct the upbringing and education of their children. n87 It would appear that, if confronted by the question whether a religious standard might be applied to the hinng of a teacher in a reHgious school, the Ohio Supreme Court, n88 at least in the last decade. would have read in such an ex- emption. n89 Indeed, the court, citing the Pierce through Yoder line of cases, n90 held that "the right of a parent to guide the education, including the religious education, of his or her children is indeed a'fundamental right' guaranteed by the due process ctause of the Fourteenth Amendment." n91 On the question of whether the state interests were of sufficient magnitude to override free exercise claims, the Ohio court noted that "even if the state can establish the requisite degree of interest, it must yet demonstrate that such interests cannot otherwise be served in order to overbalance legitimate claims to the free exercise of religion." n92 Even more recently, the Ohio Supreme Court has unanimously reaffirmed its role of special protection of free exercise interests, holding that state-imaosed minimum standards may go "no further than necessary to assure the state's legiti- mate interests in education of children in private elementarv schools," noting that "the balance is weighted, ab initio, in tevor of a First Amendtnent claim to religious freedom." n93 The quest to identify other means of protccting the interests of the state could [*468] lead to a decision permitring the institution to discriminate while denving it certain forms of public support, direct or indirect. The record indicates that DCS declines to receive some of the forms of aid that are availabie in Ohio in the wake of Nolman v. Walter, n94 but that students are transported at public expense to and from the school daily, n95 pursuant to secrion 3327.01 nfti:e Ohio Revised Code, Inu:restingly, the transportarion costs arc provided to parents with students enrolled in any "school for which the state board of education prescribes nunimum standards," pursuant to section 3301.07(D), one of the stat- utes at issue in the Whisner case. Thus, it is clearly possible for the state to apply a less drastic sanetion, by adop¢ng a rule denying an affirmative benefit such as busing or parental reimbursement for transportation expenses, or by restrict- ing thc availability of tax exemptions by precluding their use to otherwise qualifying instituNons which practice forms of discrimination condemned by the state. It is not clear from the record if DCS is eligible for Ohio's intangible pron- erty eax exemption, n96 exemption from certain real property taxes, n97 or charitable real and uutgible personal prop- erty tax exemption. n98 Whether federal income tax deducdbilitv could be denied by the Internal Revenue Service for charitable contributiuns to DCS would have to abide a determination whether the discrimination involved was contrary to a national policy abolisihing sex discrimination under such circumstances, and whether, for example, Tirie V1I would he anplicable to DCS. Using this approach, the state wouid neither compel DCS to violate is religious precents by an order to retain Hoskinson on the facultv nor subject it to a criminal sanction for dismissing her, but the public policy of the state could be at least nartially vindicated by denying public a.ssistance to the institution. As Chief Jusuce Burger observed in a recent establishment clause case, the constitution "mandates accommodation, not merely tolerance, of all reliaions and forbids hostility toward anv." n99 OCRC v. Dayton Christian Schools may be a proper case for accommodation and, r ven Bob ]ones University v. United States, n1O0 the denial of tax exemption or other affirmative support is not likely to bu construed as forbidden hostility. Indeed, in Bob Jones, in upholding an Internal Revenue Service denial of tax- deductibility status to that institution on grounds of racial discrimination, the Court noted that "[o7n occasion this Court has found certain governmental intere;ts so compelling as to allow even regulations prohibiting religiously based con- duct." n 101 Furthermore, "the Goverhment has a fundamental, overriding interest in eradicanng racial discrimination [':469] in educatior...... n102 However, the Court also pointed out that "[d]enial of tax benefits will inevitably have a substantial imnaet on the operadon of private religious schools, but will not prevent those schools from observing their religious tenets." n103 V. A MODB OF ANALYSIS APPELLEE APPX 134 Page 9 47 Ohio St. L.J. 453, * So, it comes back to whether a religiously operated elementary and secondary school should be petmitted to select ics faculty on religious, albeit sexist, grounds. This in turn uitimately comes down to a question-of which social values to accent, which principles to aceept and which to rejecL I For more than sixty yeats it has been the law of the land that the free exercise clause of the first amendment pro- tects the ¢aditional parental control of the religious education of their children, io the extent that the state cannot compel their attendancc at public schools vis-a-vis church-operated schools. n104 Although the ciash between state-imposed values in education and free exercise of religion claims is difficult to resolve, the Supreme Court has held that "[a] regu- lation neutral on its face may, in its applicadon, nonetheless offend the constitutionai reauirementfar governmental neutraiity if it unduly burdens the free exercise of religion." n105 One of the :aev factors for deciding whether special treatment shall be accorded to religious groups depends upon the nature of the insdtudons involved. This issue should be resolved, for even if this case is decided in favor of the ao- pellant on some narrow ground, the issue likely will recur. In afuture case if not this one, the Supreme Court eventually must deternune the existence and scope of an eiementary and secondary religious school's authority to make decisions based upon the religious and moral fitness of its faculty. The Ohio Civil Rights Conunission and others have suggested that significant reliance ought to be given to a Fifth Circuit holding excluding facuity who teach secular subjects in a religiously controlled and operated college from the Title VII reIlgious exemption. n106 That court held: The Collegc is not a church. The College's faculty and staff do not function as rninisrers. The facuity members are not intermediaries between a church and its congregatian. They neither attend to the religious needs of the faithful nor insffuct students in the whole of religious doctrine. That faculty members are expected to serve as exemplars of practic- ing Christians does not serve to make the terms and conditions of their employment matters of church administradon and thus purely of ecclesiasrical concern, n107 Indeed, in Bob Jones Umversiry v. United States nlOS there is a note in which the Supreme Court does make a distinc- 9nn between churches and schoots: We deal here only with religious schools -- not churches or other purely religious institutions; [*470] here, the governmental interest is in denying public support to racial discrinunation in education. As noted earlier, racially dis- criminatory schonls "exer[t] a pervasive influence on the entire educational process," outweighing any pubGc benefit that they might otherwise provide .... n109 However, the Supreme Court has regularly distinguished the religious nature of eiementary and secondary schools nn the one hand from that of colleges and universities on the other. For example, in Lemon v. Kurtzman the Court struck down as unconstitutional certain forms of public aid to religious elementary and secondary schools, noting that "parochial schnols involve substantial religious activity and purpose." n 110 However, in Tilton v. Richardson, decided the same day, the Cuurt upheld different forms of aid to colleges, finding "no basis" for the proposition that religion so permeates the secular education provided by church-related colleges and univesities that their religious and secular edu- cational functions are in fact inseparable. nl 11 Likewise, the absence of pervasive sectarianism at colleges was the crux or-further decisions upholding revenue bonds for construcrion n112 and noncategorical grants by states. n113 That is not the case, though, in elementar,v mtd secondary schools, as the courts below found in this case and as the Supreme Court has noted in its dealings in the iast few years with teaching functions in nonpublic elcmentary and sec- ondary schools. For instance, in disfinguishing betweer. state funding of diagnostic staff services (permitted) and state fundine of teaching functions (not permitted) the Court drew the line between the former and latter because of the "op- portunity for transnussion of sectarian vicws as attends the relationship between teacher and student.' n114In Meek v. Pittenger, n115 the Court rejected state support for remedial teaching because of the possibility "thatreligieus instruc- tion"will become intertwincd with secular instruction and because, "whether the subject is'remedial reading,"advanced reading,' or simply reading,' a teacher remains a tcacher." ai 16 These primarIly establishment clause cases join with free exercise cases involving parentai rights to contmi primary and secondary education n117 and the delicate role of teachers in suci, schools ni 18 to indicate the Court's special regard and unwillingness to allow broad governmental intrusion into the arena. Recent decades have witnessed a strong national commitment to eradicate discrimination [*471] based on race, sex, n119 and some other grounds. Nonetheless, it ispossible to reconcile this commitment with govemmental toler- ance of some degree of those forms of discrimination in certainc'scumstances where that disiriminauohis sincerelv APPELLEE APPX 135 Page 10 47 Ohio St. L.J. 453, " believed n120 to be religiously required. Indeed, such tolerance must be perrrutted to exist in religious institutions if the ftee exercise clause of the first amendment is to have any meaning. Still, the issue remains: how much discrimina- tion must be permitted, and on what basis should it be permitted? Several possibilities cxist. The most simple solution might be to exempc all employees of all religious institutions from the statutory require- ments. This solution, however, would be far broader than necessary in that it would fail to protect emoloyees of institu- tions that do not have extensive religion-based employment requirements. Another possibla approach would be to exempt religious institudons in a degree that is inverse to the amount of di- rect and indirect forms of public aid which flow to them. Since most instirutions of their contributors receive some form of tax benefits at the very least, n121 the number of institutions exempted would be small. While this resolution might warm the hearts of tbose (including the author) dissatisfied with public aid to and tax benefits for these religious institu- tions, it presents a major problem. Congress and most states alreadv either exempt some catagories of religious ern- ployment from antidiscrimination sramtes or pernvt bona frde occupational qualifications. This soludon might upset the delicate balance, carefully crafted and anchored on weli-estabiished public policy in most jurisdictions, that pernrits institurions to receive tax exemptions while simultaneously retaining certain religion-based exemptions from employ- ment discrimination prohibitions. In spite of this problem, however, a quanmm-of-aid test might be a useful ancillary consideration in looking at these cases. A third approach might be to exempt certain roles within certain relmious institutions, namely those with an essen- tially religious mission. Although defining these roles could be difficult, one possibiHty is to use a catagorical approach such as the exemption of elementary and secondary school staff which the Supreme Court utilized in NLRB v. Catholic Bishop. n122In the Dayton Christian Schools case, the Supreme Court might categorically exempt all aspects of this religious schooi, relying on dicta in previous cases relating to the pervasive religious atmosphere and the sectarian func- tion and role of teachers in these schools. The preferable solution would blend the latter two approaches, quantum-of-aid and role exemption. The scope and application of bona fide occupational qualifications applied to teachers, custodial persoanel, and others would depend both upon the role plaved by the employee and upon the extent to which an institution chooses to make itself into a sec- tarian enclave by declining to accept govemment aid or benefits. For example, as noted earlier, Ohio pays for transpor- tation of students to schools [*472:1 which meet certain minimum state scandards. Because this aid is not tied to the civil rigbts statutes, it is not denied to those schools that engage in religious or gender discrimination in any role. If an exemption is created for certain categories of'religiou.c institutions (such as churches and religious elementary and secondary schools), they the tkueshold question for the Commission is whether the institution falls into one of those categories. If the answer is affirmative, it must then be determined if the scope of the exemption could be narrowed further by a religious role limitation. Both inquiries would invelve sotnc entanglcment, however minimal. However, if an instimtion is given the option of helping to de6ne itself for these purposes as an enclave of faith by eschewing certain benefits. that intrusion could be minuscule, avoiding morc excessive forms of entangiement. n123 In order to avoid governmental intrusion into the religious domain, it is well established that religious discrinuna- tion in ecclesiasdcal positions is perrnissible even when that discrimination is related to racial associations and is gender based. n124 Similarly, but not as well estabHshed, courts are disinclined to allow some :orms of governmental regula- tion of emnloyment in positions whicn may not be ecclesiastical but are nonetheless related to the nussion of a ch•.trch or churcb-related instituticnr. n1.25 Where the issuc is one of permitting discrimination in favor or co-religionists in teachine and other jobs in schools, the extent of religious permeation of the institution and the age of the subjccts of instruction (for example, elementary and secondary school children as oppose(I to college studernts) become relevant considerations. Both factors -- quantum-of-aid and role exemprion -- must be contemplated in attempting co reconcile the competint societal and consdtutional values involved in this case. On one hand, the first amendment both prohibits governmental interference with religion and mandates the separation of church and state. On the other hand is the cur- rent nationat commitment to eradicate discrimination, wlrich easily could be imnaired by government decisions that not only may imply official approval of discrimination but may foster it for vet another generation by permitting it to flour- ish in the pregence of the ycung. A judicial or [*473] legislative applicadon of thc proposed mode of anai) APPELLEE APPX 136 Page. 11 47 Ohio St. L.T. 453, * Even if the Supreme Coutiaffitms the decision of the court of appeals, there remain significznt unresoived policy iudgments which might be addressed legislatively. If the Cotst doe.s anytivng other than affirm, these matters will be deait with in further administrative orjudicial proceedings, or both. n127 Even so, thc egalitarian ['474] vaiues at stake are incapable of complete accommodation witb the free exercise claims. Any purported resolution will be uneasq -- and no amount of verbal massage will relieve the consdtutional tension. nl "Congress shall makc no law respecting an establishment of religion, or prnhibiting the free exercise thereof ...." U.S. CONST. amend. I. n2 "No State shall ... deny to any person within its jurisdiction the eoual protection of the laws." U.S. CONST. amend. XIV, § 1. n3 Ohio Civil Rights Cornrn'n v. Dayron Chrisrian Schools. 766 F.2d 932 (6th Cir. 1985), appeal granted, 106 S. Ct. 2718 (1986). As this svmposium went to press, the case was decided by the Supreme Court. See infra note 127. n4 While establishment clause issues also formed a basis for the decisions of the district and circuit courts in this case, they are used herein primariiy to facilitate a free exercise analysis. n5 Dayton Christian Schools, Inc., is a nonprofit corporation that operates eiementary and secondary school facilities in Montgomery County, Ohio. n6 Dayton. Chris'tian Schools v. Ohio Civil Rights Commn, 578 F. Supp. 1004, 1011 (S.D. Ohio 1984). The sexist, by many current standards, tone of some of the scriptures cited by DCS is apparent. See, e.a. I Peter 3:1 (King James): "Likewise, ye wives, be in subjection to your own husbands; that, if any obey not the word, they also may without the word be won by the conversation of the wives:"; I Timothy 2:9-15 (King James): In like manner also, that women adorn themselves in modest apparel, with shame facedness and sobriery; not with braide n7 Thc District Court says the memorandum was received by Hoskinson "on or about February 20." 578 F. Supp. 1004, 1012, and it has become known as the "Pebruary 20, 1979" tnemo or letter. 766 F.2d 932, 934 (6th Cir. 1985). n9 Id. Counsel for the Commission has indicated that while the school had no written policy other than gen- eral ref'ercnce to scripture, she (counsel) is aware of no instance, before or since this litigation, where the school has permitted a woman with young chiidren to be a fuIl time teacher, although it may have permitted such a APPELLEE APPX137 Page 12 47 Ohio St. L.J. 453, * woman on a part time basis.Interview with Kathleen McManus, Deputy Chief Counsel to the Attorney General of Ohio, in Columbus (Apr 16, 1986). n10 578 F. Supp. 1004, 1031. nl] Id. n 12 See, for example, Appellees' Motion to Dismiss or Af?irm at 3, Dayton Christian Schools v, Ohio Civil Rights Comm'n, 766 F.2d 932 (6th Cir. 1985). n13 578 F. Supp. 1004, 1012. n14 Id. Despite the lower courts' conclusions on the dual reasons underlying the dismissal of Hoskinson, in areument before Ihe Supreme Court, the school cast the chain of command pnnciple in a different light: I think that is a conciliation procedure which was used here, was used then repeatedly in the present circum- stances, and she was not fired because she was pregnant. She was not fired because she went to a lawyer. In each case the school said, come back and let's talk about this. Let's see if we can't become reconciled. And it is only at the end of that process, when on the advice of her attorrtey she refuses to participate in that proceeding, that she is finally told, es the school told her, {ve can no longer walk together. In other words, at that point, she terminated. - i thirtY, that another aspect of her comtnitment is the fact that she signed a contract in which she pledged her adherence to all the beliefs of the school, and she was hired on the basis of that commitment. Her religious rep- resentations caused her to get the job. Those are very extensive religious reauirements of which she was aware. Official Transcript, Proceedings Before the Supreme Court of the United 5tates, Case No. 85-488, at 43 (Mar. 26, 1986). n15 Matthew 18:15-17 (King )ames): "Moreover if thy brother shall trespass against thee, go and tell him his fault between thee and him alone; if he shall hear thee, thou hast gained thy brother. But if he will not hear thee. then take with thee one or two more, that in the mouth of two or three witnesses every word may' be estab- lished. And if i7e shall neglect to hear them, teft it unto the church; but if he neglect to hear th:: church, let nim be unto thee as an tteathen man and a pubhcan." Galatians 6:1 (King lames)i "Brethren, if a man be overtaken in a fanlt, ye which are spiritual, restore such an one in the spirit of ineekness; considering thyself, lest thou also be tempted." As the district court noted, Hoskinson was aware of the Biblical Chain of Command. On the em- ployment application which she filled out was a question "As a teacher in a Christian School, on what basis would you require obedience of your students?" The reply, in her own handwriting, was: "Obedience to those in authority over you is clearly stated in the Bible. I believe in God's Chain of Command." 578 F. Sunn. 1004. 1012. Subsequently, she also personally initialed paragraph t 3 of her entpioyment contract which read; "The Tcachnr agrees to follow the Biblical pattern of Matthew 18:15-17 and Galatians 6:1 and always give a good re- port. Atl differences are to be resoived by using Biblical principles -- always aresenting a united front." 578 F. Supp. 1004, 1013; 766 F.2d 932, 940. The district court noted that Hoskinson had admitted in her own testi- mony that she was aware that thc ciaim of command reouires one Christian not to take another Christian to law; the court also found that on an earlier occasion (in 1977) she had faiied to adhere te the principic, was warr.ed, and had faced possible discharge, but was rehired. 578 F. Supp. 1004, 1013. I nl6 See suura notes 7-8 and accompanying text. APPELLEE APPX 138 Page 13 47 Ohio St. L.S. 453, * n17 578F.Supp.1004,1013: Inaddition.artiele8,3 4oftheConstitutionof âaytonChristianSchools, Inc., states "the Board of Directors shall havethe right todsmiss any employee ... whose personal life or in- struction conflicts with thc basis and purposes of the corporation ...." Id. at 1011 n.4. n181d. a: 1014. n19 Id. n20 Id. ar 1015. n21Sume of the other provisions required that: H. Respondent will not discharge Complainant without iust cause. Respondent will submit to the North Southwest Regional Office of the Commission, copies of any warnings or reprimands given to Complainant dur- ing the next one (1) year, and will also not3fy said office if Complainant is discharged for any reason within the period of one (1) year. F. Respondent agrees to impiement and administer the policies and work rules of the school equally with- out regard for the employees' handicap, race, sex, religion, age, color, aational origin or ancestry. G. Respondent shall post in a conspicuous place or places on its premises, the Commission's mandatory no- tice which sets'forth excerpts of Chapter 4112, Ohio Revised Code, and other relevant information. H. Respondent shall not seek information regarding race, color, re&gion, age, sex, national origin, handicap or ancestry on its form of application, uniess a bona fide occupa8onal qualification is certified in advance by the Conmdssion. 1. Responclent shall make clear in its employment contracts that employees ntay contact the. Comnvssion if they believe they are being discriminated against at any time because of handicap, race, sex, religion, aee, coior, national origin or ancestry. 1. Respondent acrees to establish specific guidelines for employee pregnancy and home childcare, to notify all employees in writing of'this nolicy, and to fnrnish the Commission's North Southwest Regional Office. within sixty (60) days from the date of ratification of tlus agreement, proof of compliance with this provision. K. Not later than tlilrty (30) days atter the effective date of this conciliation agreement and consent order, an authorized officer of the designated Respondent will furnish the North Sonthwest Regional Office of the Commission a certified check, made to the order of Complainant, for the full amount of back pay sripulated to ir. paragraph 11(b) supra. Id. at 1015-16. n23 OHIO REV. CODE ANiV. §§ 4112.01-.99 (Page 1980 & Supp. 1985). Inter alia, section 4112.04(B) nermits the Commission to: (2) initiate and undertake on it.s own motion investigations of problems of employment discrimination; (3) Hold hearings, subpoena witnesses, compel thei.^ attendance, administer oaths, take the testimony of any person under oath, and require die production for examination of any books and papers relating to any matter under investigation or in question before the commission, and may make rules as to the issuance of subpoenas - ov individual commissioners. (a) In conducting a hearinn or investigation, the commission shall have access at all reasonable times to premises, records. documents, individuals, and other evidence or possible sources of evidence and may examine, APPELLEE APPX 139 Page 14 47 Ohio St. L.J. 453, * record, and copy such macerials and take and record the testimony or statements of such petsons as are reasona- bly necessary for the furtherance of the investigatian. In such investigations, the comntission shall complv with the fourtb amendmcnt to the United States Constitution relating to unreasonable searches and seizures. The commission or a eommissioner may issue subnoenas to campel access to or the production of such materials, or the appearance of such persons, and mavissue interrogatories to a respondent, to the same extent and subject to the same limitations as would apply if the subpoenas or interrogatories were issued or served in aid of a civil ac- tion in a common pleas court. No person shatl be compelled to be a witness against himself. Section 4I12.05(G) allows the Commission to "cause to be served on such respondent an order requirm such resnondent to cease and desist from such unlawful discriminatory nracdce and to take such further affn7rtative or other action as will effectuate the purposes of sections 4112.01 to 4112.08 of the Revised Code, including, but not limited to, hiring, reinstatcment, or upgrading of employees with, or without, back pay, admission or restora- tion to union membership, including a requirement for reports of the manner of compliance. n24 766 F.2d 932, 935 n.4. n25 578 F. Supp. 1004, 1008, n26 Id. ar 1041. The court also held that the Ohio stamces giving the OCRC jurisdiction "are not unconstitu- tionallv overbroad or void for vagueness." Id. 1'he district court also granted plaintiffs an injunction pending ap- peal. Dayton Christian Schools v. Ohio Civil Rights Commn, 604 F. Supp. 101, 104 (S.D. Ohio 1984). n27 Dayton Christian Schools v. Ohio Civil Righrs Covemn, 766 F.2d 932 (6th Cir. 1985). n28 Id. at 947 passim. n29 706 S. Ct. 379 (Nov. 12, 1985) (No. 85-488). n30 578 F. Supp. 1004, 1010, n31 Id, at 1018-19, n32 766 F. 2d 932, 936 n.6. n33 See supra notes 15. 17, n34 See supra note 15 regarding Hoskinson's familiaritv with the doctrine. n35 See supra note 6. n36 The brief of the American Civil Liberties Union and the Women's i.egal Defense Fund. amici cunae in support of the Civil Rights Commission, is devoted aimost solely to that topic, as is a small nortion of the brief of American Jewish Congress, anucus curiae, urging affirmance in part and reversal in part. On the other hand. APPELLEE APPX 140 Page 15 47 Ohio St. L.J. 453, * the potential for extensive and perhaps unconsdtudonal entanolementis evident from the procedures outlined in Parts I and III. See supra notes 19-23 and accompanying text ar{d infra notes 77-83 and accompanying text. n37 In "[ejverv circuit that has considered the issue, opposition activity is protected when it is based on a mistaken good faith belief dtat Title VII has been vioiated." Love v. RP./,41AX ofAmerica, Inc., 738 F.2d 383. 385 (IOth Cir. 1984). For the Ohio antiretaliation statute, see iaiia note 60 and accompanying text. r.38 Brief ofArnerican Civil Liberties Union, supra note 62, at 42. Curiously, counscl for the School. in re- sponding to questions from the Court in oral argument, answered that the ohain of command would be applica- ble to matters of reporting child abuse, rape, and other crimes. Official Transcript, supra note 14, at 36-38, 42. However, obviously aware of this error in failing to distinguish health and safety tnatters, couasel filed a post- argument brief reversing himself in this area. Post-argumentBrief ofDayton Christian Schools, Ohio Civii Rights Comm'n v. Dayton Christian Schools, 766 F.2d 932 (6th Cir. 1985), appeal granted, 106 S. Cr. 379 (Nov. 12, 1985) (No. 85-488) 1-7. n39 Including whether fear of dismissal might deter the janitor from reporting if internal adntinistrative ef- forrs did not immediately succeed in having the fire extinguisher repaired or replaced. n40 46 U.S. 205 (1972). n41 See, e.g., NLRB v. Catholic Bishop, 440 U.S. 490, 501-02 (1979). See also infra note 118 and accompa- nying text. n42 Judicial disfavor pf waiver of significant rights is illustrated by Miranda v. Arizona, 384 U.S. 436 (1966). The Court stated that "[Qhis Court has always set high standards of nroof'for the waiver of constitutional rights," and "a heavy burden rests on the govemment to demonstrate that the defendant knowingly and inten- donally waived his privilege against sedf-incriminadon and his right to retained or appointed counsel." Id. a: 475. n43 EEOC'v. Pacific Pre,cs Publishing, 676 F.2d 1272, 1281 (9th Cir. 1982). n44 ;ulatthew 18:17 (King James) savs of those who disregard chain of command, "let him he unto thee as an heathen man and a publiean." n45 This would follow a cetury-old line of cases dealing with such matters as prohibition on polygamy, Reynolds v. United States, 98 U.S. 145 (1879), and criminalizing nonpayment of Social Security tnxes although payment of the taxes contlicted with the Anush faith, United States v. Lee, 455 U.S. 252 (1982). n46 01110 REV. CODEANN. § 4112.01(A)(2) ( Page 1980). I n47 OHIO REV. CODEANN. § 4112.02(A) (Page 1980 & Supp. 1985). n48 OHIO REV CODEAN'V. § 4112:01(B) (Page 1980). APPELLEE APPX 141 Page 16 47 Ohio St. L.S. 453, * n49 Id. n50 OHIO REV. CODE AeVN. § 4112.02(E) ( Page 1980 & Supp. 1985). See infra note 80. n51 578 F. Supp. 1004, 1020. n52 766 F.2d 932, 940-41 r..16. n53 The fair housing section is OHIO REV. CODE ANN. § 41 ]2.02(H) (Page 1980 &Supp. 1985); the re- ligious exemption to ii is contained in section 4112.02(K), but it does not apply to the employment section. n54 The Ohio law, 8rst passed in 1959, antedates the federal civil rights statute, which was enacted in 1964. n55 Civil Rights Act of 1964,42 U.S.C. § 2000e-1 (1982). n56 The court of appeals nrovides a list in a lengthy note 766 A.2d 932, 941 a18. A recent exatnule of a broad exempdon being upheld is a case in which a teacher of secular subjects in a sectarian school was dis- missed purportedly because she was not a follower of the school's religion. A state trial court in California ruled that a blanket exemption from state antidiscriniination law given to religious employers in California did not vioiate the establishment clause of the first amendment nor the equal protection clause of the fourteenth amend- ment. Bennett v. Department of Fair E.mployment and Housing, No. C497 487 (Cal. Supcr. Ct. Apr. 24, 1.986) 6-8 (order denying plaintiffs and granting defendant's motion for suntmary iudgment). n57 OHIO RE''V. CODE M`19. § 4112.06(A)-.06(B) (Page 1980). n5S 01110 REV. CODEANN. ^ 4112.06(E) (Page 1980). n59 Under this section any such discriminatory practice is a nusdemeanor of the third degree. OHIO REV. CODE AA'N. § 4112.99 (Pagc 1980). n60 OHIO REV. CODEANN'. § 4112.02(I) (Page 1980 & Supp. 1985). n61 iurisdictional Statement at 14, n.7. n62 Id. at 13 (citing EEOC v. Mississippi Coliege, 626 F.2d 477, 485 (5th Cir. 1980), cert. denied. 453 U.S. 912 (19(91)).i n63 Youre,er v. Harris, 402 U.S. 37 (1971). APPELLEE APPX 142 Paae 17 47 Ohio St. L.S. 453, * n64 Official Transcript, supra note 14, at 7-8. n65 Railroad Comm'n v. Pullman Co., 312 U.S.496 (1941). n66 Post-argument Brief of Davton Christian Schools, sunra note 38 at 7. n67 Id. at 7-11. n68 Colloquy between the Court and counsel for Dayton Christian Schools follow tlvs line of thought. Of- ficial Transcript, supra note 14, at 26-31. n69 Post-argument Brief of Dayton Christian Schools, supra note 38, at 7-11. n70 Sce infra note 88 and accompanying text n71 See C. WRIGHT, HANDBOOK ON THE LAW OF FEDERAL COURTS § § 52-52A (3d ed. 1976) . n72 42 U.S.C. § 2000e-7 (1982). n73 The Ohio Supreme Court, for instance, has resorted to federal court interpretation of Title VII defini- tions to bridge perceived gaps in Ohio civil rights laws. In Plumbers ard 5?eamfitters Comm. v. Ohio Civil Rights Comm'n, 66 Ohio St. 2d 192, 421 N:P.2d 128 (1981), the Ohio court noted, "[W]e have determined that federal case law interpretin8 Title VII of the Civil Rights Act of 1964, Secdon 2000e et seq., Title 42, U.S. Code, is @enerally applicable to cases involvinp alleged violadons of R.C. Chapter 4I 12." id. at 196, 421 N.E'.2d, at 131. n74 NLR73 v. Cathofic Bishop, 440 U.S. 490 (1979). 77te Cathoiic Bishop approach to statutory construction focused upon a search for a"clear expression of an afnrmative intention of Congress that teachers in church- operated schools .. . be covered under the Act." Id. at 504. Noting the absence of such an expression, the Coun declined to construe the Act in a manner which would require resolution of difficult constimtional questions. Id. a1504-(i7. n75 However. four sitting members of the Court, without expressing a conclusion on the first antendment claims in Catholic Bishop, found the majori[y's judicial construction "plainly wrong" and "seernin-ly invented by the Court for the purpose of deciding this case." 440 U.S. 490, 508 (Brennan, 7., dissentino). n76 These amici include, inter alia, the American Jewish Coneress, the Conferenc,e of Seventh Day Advent- ists, and the United States Catholic Conference.l n77 In NLRB v. Catholic Bishop, 440 L'.S. 490 (1979), the Supreme Court came close to adopting a simiiar view regarding NLRB j urisdiction over sectarian school employmen:, see id. ar 498-99, but decided the case in- stead on what may be at best a-very creative construction of a restrained intent of Congress based on a very lim- APPELLEE APPX 143 Page 18 47 Ohio St. L.I. 453, ` ited record of that purported intent, The Court noted that a statute "ought not be construed co violatc the Consti- tution if anv other possible construction remains availabte." See id. at 500. n78 578 F. Supp. 1004, 1020. n791d. at 1020 n.6. n80 OHIO REV. CODEANN. § 4112.02(E) (Page 1980 & Supp. 1985) makes it unlawful: (E) Except where based on a bona fide occupational qualification certified in advance by the commission, for any employer, employment agency, or labor organization, prior to employment or admission to membership, to: (1) Elicit or attempt to elicit any information conceming the race, color, reiigion, sex, national origin, handicap, age, or ancestry of any applicant for employment or membership; (2) Make or keep a record of the race. color, religion, sex, national origin, handicap, age, or ancestry of any applicant for employment or membership; (3) Use any form of appiication for employment, or personnel or membership blank seeking to elicit infor- mation regarding race, color, religion, sex, national origin, handicap, age, or ancestry; but an employer holding a contract containing a nondisorindnation clause with the govemment of the United States, or any department or agency thereof, may require an employee or applicant for employment to fumish documentary proof of United States citizenship and mav retain such proof in the empioyer's personnel cecords and may use photograpiuc or ftngerprint identification for security purposes; (4) Print or publish or cause to be printed or published any notice or advertisement relating to employment or membership indicating any preference, limitation, spocification. or discrimination, based upon race, color, re- ligion, sex, national origin, handicap, age, or ancestry; (5) Announce or follow a policy of denying, or limiting, through a quota system or otherwise, employment or membership opprutunities of any group because of the race, color, religion, sex, narionai origin, handicap, age, or ancestry of such group; (6) Utilize in the recruitment or h¢ing of persons any etnployment agency, placement service, training school or cencer, labor organization, or any other employee-referring source known to discriminale against per- sons because of their race, color, reiigion, sex, nauonal origin, handicap, agc, or ancestry. n81 578 F. Supp. 1004, 1020. Query: Is a co-re7igionist who breaks the f'aith still a co-rekigionist? n82 Official transcript, suln'a note 14, at 12. n83 Interview with Kathleen McManus, supra note 9. nS4 Nor have other Ohio courts addressed the issue. n85 47 Ohio St. 2d 181, 351 KE 23 750 (1976). n86 OHIO REV. CODE ANN. § 3321.03 (Page 7980). APPELLEE APPX 144 Page 19 47 Oluo St. L.T. 453 . n8747OhioS!.2d181, 211-]2.351 N.E.2d750, 768. n88 Query whether counsel for Dayton Christian Schools (who also argued for Whisner in the Ohio Su- preme Court) should have sou,ght retief in the Ohio courts! n89 In addition to the free exercise clause of the 8rst amendment. the court relied upon article I. § 7 of the Ohio Constitution: All men have a natural and indefeasible right to worship Almighty God according to the diciates of their own conscience. No person shall be compelled to attend, erect, or support any place of worship, or maintain any form of worship, a;ainst his consent; and no preference shall be given, by law. to any religious society; nor shall any interference with the rights of conscience be permitted.... Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the General Assembly to pass suitable laws, to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encnurage schools and the means of instruction. 47 Ohio St. 2d 181, 198 n.3, 351 N.E.2d 750, 761 n.3, quoting OHIO CONST. art. I, § 7. n90 Pierce v. Society ofSisters, 268 U.S. 510 (1925); Wisconsin v. Yoder, 406 U.S. 205 (1972). n91 47 Ohio Sr. 2d 181, 214, 351 V.E.2d 750, 769. n92 Id. at 217, 351 N.E.2d or 771. n93 Srate ex rel Nagle v. Olln, 64 Ohio St. 2d 341, 354-55, 415 N.E.2d 27Q. 288 (1980). n94 433 U.S. 299 (1977). Such aid includes textbooks, standardiud tcsts and scoring, medical services, and diagnostic speech, hearing. and psychological services. See OHIO REV. CODEANN. § 3317.06 (Page 1980), n95 766 F.2d 932, 955. n96 01110 REV. CODE ANN. q 5709.04 (Page 1980). This section provides exemption of intang.ible prop- erty belonging to "corporations, trusts, associations, funds, foundations. or conununity chests, organized and op- erated exciasiveiy for religious ... purposes:" n97 OHIO REV. CODE ANN. § 5709.07 (Page. 1980). u98 OHIO REV, CODEAhN. 5709.12 (Page 1980). n99 Lyncn v. Donnelly, 465 U.S. 668. 673 (1984), n100 461 U.S. 574 (1983). APPELLEE APPX145 Page 20 47 Ohio St. L.J. 453, " n101 ld.at603. n 1021d: at 604. n103 Id. at 603-04. n104 Pierce v. Soeiety of Sisters, 268 U.S. 510, 518-19 (1925). n105 Wisconsin v. Yoder, 406 U.S. 205, 220 (1972). n106 EEOC r. Mississippi College, 626 P.2d 477 (5th Cir, 1980), cert, denied, 453 U.S. 912 (1981). n107 626 F.2d 477, 485. n108461 U.S. 574 (1983). n1091d. at 604 n.29 (emnhasis in original), quodng Norwood v. Harrison, 413 U.S. 45S, 469 (1973), ni 10 Lemon r. Kurtzman, 403 U.S. 602, 616 (1971). nl l] Tilron v. Richardson, 403 U.S. 672, 681 (1971), rt i 12 Hunt v. AIcNair, 413 U.S. 7.34 (1973). n 113 Roemer v. Baard a f Public Works. 426 U.S. 736 (1976). 71114 Wolman v. Walter, 433 U.S. 229, 244 (1977). Walter is not related to the author! ri 715 421 U.S. 349 (1975). n 7161d. ar 370. n117 See, e.g.. Pierce v. Society of Sisters, 268 U.S. 510 (1925); Wisconsin v. Yoder, 406 U.S. 205 (1972). n118 NLRB v: Catholic Aishop, 440 U.S. 490 (1979). Although the free exercise clause was not tlae fo:mal basis for striking down NLRB jurisdicdon over parochial school teachers, id at.i07, it was the pressure of that APPELLEE APPX 146 Page 21 47 Ohio St. L.S. 453. clause that nioved the Court to fetret out the "intent" of Congress to exempt them. Id. at 499. See also supra note 75 and accompanying text. n119 The nation's failure to adopt the Equal Rights Amendment might suggest some softness in commit- ment regarding sex! The national commimtent to free exercise of religion seems to he strong, and it is cleariy order. n120 The "question of sincerlty ... is, of course, a question of fact ...." United States v, Seeger, 380 U.S. 163, 185 f1965). n121 Walz v. Tax Comm'r.. 397 U.S. 664, 672-73 (1970). n122 440 U.S. 490 (1979). n123 Assunting that the free exercise clause mandates bona fide occupational qualifications or categories of exemptions, the court then must provide a mecbanism for determining the scope of the role to be played by the Ohio Civil Rights Commission. In the DCS case, the school challenged the Commission's jurisdiction in court late in the process; indeed, more than a year and a haif after Hosldnson was told her contract would not be re- newed. Perhaps, given the potential for intrusion into the substantial first amendment rights that are at stake, in the face of a claim of constitutional exemption by a religious school, the Commission should be required, if it wishes to proceed, tn obtain a"judicial determination of the threshold First Amendment Issues." This type of approach has been suggested by University of Dayton Law Professar Richard 9apbire. R. Saphire, Memoran- dum on the Dayton Christian Schools Case (unpublished manuscript, Dec. 1985). It would shift the burden to the Commission rather than requiring the school to file. See sapra notes 50, 80-83 and accompanying mxt. This jurisdictional approach would at least minimize the burden on the instimtion claiming exemption, while ac- knowledging the possibility of inquiry by the Commission into purported acts of unlawful discrimination. n124 Rayburrt v. General Conference of Seventh-Day Adventists. 772 F.2d 1164, 1167-68 (4th Cir. 1985), cert. denied, 106 S. Ct. 3333 (1986). And, cifing Rayburn and Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976), the United Stares Court of Appeals for the Sixth Circuit recently has held that the courts lacked subject matter jurisdiction over a case in wluch a minister challenged his enforced retirement under church rules. Hutchison v. Thomas, No. 85-3051 (6th Cir. Apr. 28, 1986). n125 NLRB v. Catholic Bishop, 440 U.S. 490, 501 passim (1979). n126 See, e.g., Bob.lnnes University v. United Stares, 461 U.S. 574 (1983). In the Dayton Christian Schools case the low•er cour[s found there to be little evidence of public support in the record. but the record was silent on tax exemption and deducdbility of contribution.s benefits, n127 While this Euticle was at the printer, the Supreme Coun of the United States revezsed the decision of the United States Court of Appeals fnr the Sixth Circuit oy a nine-to-nothing margin, with two opinions. Ohio Civil Rights Comm'n v. Dayton Christian Schoois, 106 S. Ct. 2718 (1986), reversing and remanding 766 F.2d 932 (2d Cir. 1985). A five-member majority of the Court (per Sustice Rehnquist) found attractive the notion that "the District Court should have abstainedfrom adjudicating this case under Youngdr. . .." Id: at 2722. See supYa text accompanying note 68. The Court said that in the wake o.' its admonition in Younger to abstain from en- joining pending state criminal proceedings, it had "since recognized that our concern for comity and federalism APPELLEE APPX147 47 Ohio St. L.J. 453, " is equally applicable to certain other pending state proceedings ...[including] state administradve proceedings in which important state interests are vindicated so long as in the course of those proceedings the federal plain- tiff would havc a full and fair onnonunity to liugate his constitutional claim," 106 S. Ct. 2718, 2723. It cited "tbe elimination of proiribited sex discrimination !as] a sufficiently important state interest to bring the present case within the amhit" of this concept. Id. As observed supra in the text accompanying note 69, the Court deemed dubious the school's contendon that, a constitutional challenge could not be made in the Comnussion's adniinis- trative proceedings: "[E]ven if Ohio law is such that the Commission may not consider the constitutionality of the statute under which it operates, it wouid seem an unusual doctrine ... to say that the Commission could no: construe its own statutory mandate in Hght of federal constitutional principles," 106 S. Ct. 2718, 2724, invidng comparison with the Court's mode of construcdon in NLRB v. Ca:hoiic Bishop, 440 U.S. 490 (1979). See supra note 74 and accompanying text. The majority added that even if the Commission could not consider the consti- tutionality of the statute, "it is sufficient ... that constimtional claims may be raised in state court iudicial review of the administrative proceeding." 106 S. Ct. 2718, 2724. See supra note 88 and text accompanying note 70. In a separate concurrence in the result, fom Justices (per Justice Stevens) amed with the District Court that the po- tential for coercion by the Comaussion at the investigatory and hearing stage was speculative, "premature," and "not ripe for review." 106 S. Ct. 2718, 2726. However, the concurrence disagreed with the majority's expansion of the Younger abstention doctrine to limit review of even au unconstitutional and coercive order of an adminis- trative agency to the state courts without access to federal judicial relief of federally guaranteed rights. Id. n.5. The Court did not address directly the merits of most of the constitutional claims, but explicit or implicit in its holding are certain conclusions. First, all nine Justices agree that "the Commission violates no constitutional rights by merely invesdgating the cimumstances of Hoskinson's discharge in this case, if only to ascertain whether the ascribed religion-based reason was in fact the reason for the discharge." Id. at 2724 and quoted with approval in the concurrence at 2725-26. See supra text accompanying note 36. Second, all nine Justices agree that while "religious schools carmat claim to be wholly free from some srate regulation," the Commission can and should consider whether any ptoposed sanction would violate the religion clauses of the first amendment. 106 S. Ct. 2718, 2724, 2726. See supra text following note 39. Last, there is passing, and impliedly approving, reference to apparent Commission recognition of some degree of co-religion as a valid basis for employment hmitation in sectarian schools. 106 S. Ct. 2718, 2724, 2726. See supra text accompanying notes 78, 81-83, 118. The net result of the Supreme Court's disposidon of the case is that the resolution of the free exercise versus equal nrotection controversy -- including any interpretation of the Ohio statute and any application of constitu- tional principles thereto -- is now initially within the province of the Ohio Civil Rights Commission, perhans eventually in the state court.c, and maybe ultimately in the distant future back in the Supreme Court of the United States. The author believes that last orosoect is unlikely for reasons set forth in the first two paragraphs oF Part IV. See supra notes 84-93 and accompanying text. While the schools absolutist position on the chain-of- command claim is not likely tn succeed (unless the Ohio courts conclude that the statute does-not confer juris- diction over sectarian school teachers), the long-range prospects are better if the school presses its underlying desire to be able to hire or dismiss based upon the standard of a"pod Christian woman" as it finds inat to be scripturally defined. APPELLEE APPX 148