[Cite as Cox v. Dayton Pub. Schools Bd. of Edn., 2019-Ohio-2591.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
GEORGIA COX : : Plaintiff-Appellant : Appellate Case No. 28261 : v. : Trial Court Case No. 2018-CV-2372 : DAYTON PUBLIC SCHOOLS BOARD : (Civil Appeal from OF EDUCATION, et al. : Common Pleas Court) : Defendant-Appellee :
...........
OPINION
Rendered on the 28th day of June, 2019.
GEORGIA B. COX, 4191 Mapleleaf Drive, Dayton, Ohio 45416 Plaintiff-Appellant, Pro Se
PATRICK M. DULL, Atty. Reg. No. 0064783, 30 E. Broad Street, 15th Floor, Columbus, Ohio 43215 Attorney for Defendant-Appellee, Ohio Civil Rights Commission
BEVERLY A. MEYER, Atty. Reg. No. 0063807 and JASON R. STUCKEY, Atty. Reg. No. 0091220, 312 N. Patterson Boulevard, Suite 200, Dayton, Ohio 45402 Attorneys for Defendant-Appellee, Dayton Public Schools Board of Education
............. -2-
DONOVAN, J.
{¶ 1} Cox appeals pro se from the December 14, 2018 order of the trial court
affirming the decision of the Ohio Civil Rights Commission (“OCRC”), which dismissed
Cox’s charge of discrimination against the Dayton Public Schools Board of Education
(“DPS”). We hereby affirm the judgment of the trial court.
{¶ 2} By way of background, we note that Cox was employed as a teacher with
the Dayton Public School system until she was terminated in December 2013, following
her criminal assault of a functionally-impaired student. The matter was submitted to
arbitration pursuant to a collective bargaining agreement. After the arbitrator determined
that there was good and just cause to support Cox’s termination, she filed a pro se motion
to vacate, modify, or correct the arbitrator’s decision in the trial court. The trial court
determined that Cox lacked standing to bring the appeal in the court of common pleas;
Cox appealed that determination, and this Court reversed the trial court’s judgment and
remanded the matter for further proceedings. Cox v. Dayton Pub. Schools Bd. of Edn.,
2d Dist. Montgomery No. 26382, 2015-Ohio-620, aff’d, 147 Ohio St.3d 298, 2016-Ohio-
5505, 64 N.E.3d 977. On remand, the trial court vacated the portion of the arbitrator’s
award as to the termination of Cox’s contract and remanded the matter to DPS for a
statutory review under R.C. 3391.16. DPS appealed that order, asserting in part that the
issue of whether Cox had waived her R.C. 3319.16 rights was moot, since her teaching
license had been permanently revoked after her assault conviction. On July 6, 2018, this
Court reversed and vacated the trial court’s order vacating a portion of the arbitrator’s
award. Cox v. Dayton Pub. Schools Bd. of Edn., 2d Dist. Montgomery No. 27613, 2018-
Ohio-2656. -3-
{¶ 3} In December 2017, Cox filed a charge with the OCRC. On April 26, 2018,
the OCRC issued a “Letter of Determination” addressed to Cox’s charge of discrimination.
The letter concluded that Cox’s charge of unlawful discriminatory practices had not been
filed within six months of the alleged discriminatory practice, as required by R.C.
4112.05(B)(1), that the OCRC therefore did not have jurisdiction under R.C. Chap. 4112,
and that the matter would be dismissed.
{¶ 4} On June 7, 2018, the OCRC issued a “Letter of Determination upon
Reconsideration,” which recounted that the OCRC had originally found that it lacked
jurisdiction over Cox’s charge of discrimination, but that it had reconsidered that
determination at Cox’s request. The letter then detailed the OCRC’s findings and
conclusion as follows:
FINDINGS OF FACT:
Upon reconsideration, the Commission re-examined the information
gathered during its original investigation and reviewed additional
information provided by Charging Party. After reconsideration, the
Commission finds Charging Party was not subject to new harm that
occurred within six months from the date she filed her charge. The harm
cited by Charging Party in August 2017 was Respondent responding to a
legal action related to her 2014 court case contesting the arbitrator’s
decision concerning her termination. There was no discrete and new act
of harm. Charging Party did not apply for a position for which Respondent
denied her rehire as alleged by Charging Party.
DECISION: -4-
The Commission determines that there is NO JURISDICTION under Ohio
Revised Code Chapter 4112. The Commission hereby orders that this
matter be DISMISSED.
{¶ 5} In May and June 2018, Cox filed a “Petition for Judicial Review” and a
supplemental petition, in which she asserted that the charge filed with OCRC in
December 2017 “was based on an unlawful discriminatory practice that occurred in
August 2017 – only about four-months earlier,” when DPS refused to rehire her.
According to Cox, DPS objected to her rehiring for “arbitrary, capricious, and retaliatory”
reasons linked to her race and sex, which “also happened to be reasons she had been
targeted for termination initially.” Cox concluded that DPS’s objection to her rehiring
“occurred within the six-month statute of limitation,” because the charge filed with the
OCRC was not based upon her 2013 termination but was based on DPS’s unlawful
objection to her rehiring, “as revealed by the Board’s August 2017 brief.” The brief in
question was filed in Cox, 2d Dist. Montgomery No. 27613, 2018-Ohio-2656. On July
18, 2018, the OCRC filed the record of its proceedings in the trial court.
{¶ 6} In August 2018, the OCRC filed a brief in the trial court in response to Cox’s
petitions for judicial review. In its brief, the OCRC stated that its factual findings
explained why it declined to pursue Cox’s charge, but that it had not conducted an
evidentiary hearing or issued legal conclusions. Citing McCrea v. Ohio Civ. Rights
Comm., 20 Ohio App.3d 314, 486 N.E.2d 143 (9th Dist. 1984), the OCRC asserted that
“when there has been no evidentiary hearing, there can be no ‘evidence’ to review at all
– reliable, probative, substantial, or otherwise.” According to the OCRC, McCrea held
that there are two different standards of review, depending upon whether the OCRC held -5-
an evidentiary hearing on the allegations presented: “With respect to judicial review, the
standard of reliable, probative and substantial evidence is applicable only to post-
complaint decisions and orders of the [OCRC]. The applicable standard of review for a
court of a pre-complaint decision by the [OCRC] not to issue a complaint, because of a
lack of probable cause, is whether the decision is unlawful, irrational, and/or arbitrary and
capricious.” (Emphasis sic.) Id. at syllabus. The OCRC asserted that since Cox
sought judicial review of a decision made without an evidentiary hearing, the proper
standard of review was McCrea’s “unlawful, irrational, arbitrary, or capricious” standard.
{¶ 7} The OCRC also asserted that the only document the court should examine
was the OCRC’s decision itself, which contained the OCRC’s findings of fact and
explanation regarding why it did not issue a complaint, i.e., the June 7, 2018 “Letter of
Determination Upon Reconsideration.” The OCRC further asserted that Cox’s
administrative appeal should be denied:
In her Petition, Ms. Cox argues that her charge was timely because
she alleged a “new” harm within the statutory six-month period. She claims
that, during the appeal of a civil action between them, Dayton Public
Schools voiced an objection to rehiring her. * * * Ms. Cox’s logic seems to
be that, because Dayton Public Schools announced in court filings an
objection to rehiring her (due to her teaching license being permanently
revoked), that a “new” harm had somehow occurred to her. * * *
This argument is simply an attempt to slip a long-untimely allegation
– Ms. Cox’s 2013 termination – within the Commission’s six-month
jurisdiction. But, of course, simply mentioning that Dayton Public Schools -6-
cannot rehire Ms. Cox due to the permanent revocation of her license does
not create a “new harm” over which the Commission has jurisdiction.
(Emphasis sic.) The OCRC attached an Appendix listing Ohio appellate cases that have
adopted the McCrea standard of review “for ‘no probable cause’ decisions” made by the
OCRC.
{¶ 8} On September 5, 2018, OCRC moved to dismiss DPS and its attorney from
the case, asserting that the OCRC was “the only proper Appellee” in a petition for judicial
review of an OCRC finding that it lacked jurisdiction. On October 9, 2018, the court
granted the motion to dismiss.
{¶ 9} On October 10, 2018, Cox filed a brief in the trial court. She asserted that
her charge clearly stated that the date of the unlawful act was August 21, 2017, and that
OCRC incorrectly applied the date of the alleged discriminatory act in reaching its
conclusion. Specifically, Cox argued that she applied for a position, DPS refused to
rehire her, and her December 27, 2017 charge filed with the OCRC explicitly noted she
had been subjected to adverse action “taken as late as 08/21/2017” on the basis of sex
and race and to retaliation after she asserted that her rights had been violated.
According to Cox, her “wrongful termination” “necessitated her rehiring” at the later date
on which her charge was based. She also alleged that DPS “deceitfully” used the
administrative appeal to raise a new controversy – the doctrine of mootness as a defense.
She asserted that neither the OCRC nor the trial court could “continue to justify” the
conclusion that her charge of discrimination “was not filed for a qualifying violation of law,”
when the DPS refused “to rehire her against a direct court order.” Cox attached the
following items to her brief: an “addendum” to her December 27, 2017 Charge Form -7-
(attachment 1); the trial court’s May 15, 2017 “Decision, Entry and Order Vacating Portion
of Arbitrator’s Award” (attachment 2); the August 21, 2017 “Brief of Defendant/Appellant
Dayton Public Schools Board of Education” (attachment 3); and this Court’s July 6, 2018
Opinion on DPS’ appeal from the trial court’s May 15, 2017 decision, Cox, 2d Dist.
Montgomery No. 27613, 2018-Ohio-2656 (attachment 4).
{¶ 10} The OCRC filed a motion to strike attachments 1 and 3 from Cox’s brief,
asserting that they were not in the record before the trial court. The trial court granted
this motion.
{¶ 11} On October 15, 2018, an OCRC filed an updated brief asking that it
“supplant its earlier one.” In this brief, The OCRC argued that the trial court should only
examine the OCRC’s June 7, 2018 “Letter of Determination upon Reconsideration,”
because Cox’s petition relied solely upon the OCRC’s final order and its “discretionary
decision” that DPS did not engage in a “ ‘new’ employment action” against Cox within the
six-month period prior to the filing of her charge.” The OCRC asserted that it “decided
that arguments made by [DPS] to an appellate court were not ‘new’ employment actions
against Ms. Cox,” and this decision was why OCRC “opted not to sue.” The OCRC also
asserted that its decision was “not a legal finding on the underlying merits of the
allegations in the charge * * * [but] it simply disclose[d] the [OCRC]’s reason for not issuing
an administrative complaint accusing an employer of unlawful discrimination.” The
OCRC argued that it “sufficiently explained its decision not to sue when it determined
[DPS’s] August 2017 appellate brief was not a ‘new act’ of employment harm, but was
instead just a legal argument proposing that re-employment was a moot point due to the
revocation of Ms. Cox[’s] teaching license, and that because it sufficiently explained its -8-
decision, the decision was “not ‘unlawful, irrational, arbitrary, or capricious.’ ”
{¶ 12} On October 29, 2018, Cox filed an objection to OCRC’s motion to strike
attachments 1 & 3 to her brief, asserting that the court ruled on OCRC’s motion without
allowing her time to respond, in violation of Mont. Co. C.P.R. 2.05(B)(2)(b). She further
argued that attachment 1 was “proof that she did not file a charge regarding a termination
matter, which had occurred years ago,” but that the charge “filed in December 2017, was
specific to action that occurred in August 2017, concerned a refusal to hire matter, and
was timely filed.” Cox attached her Charge of Discrimination, its addendum, and DPS’s
August 21, 2017 brief.
{¶ 13} Also on October 29, 2018, Cox filed a reply brief, wherein she asserted that
“the application documents need to be examined. It is only by examining all pages of
the application that the court can justly ascertain an objective standard of truth regarding
what Appellant applied for.” Cox argued that she was not rehired “under the pretext that
her license had been revoked,” and the “charge filed with the OCRC spoke to a refusal to
hire.” She argued that in “2013 the pattern of discrimination involved a contractual
matter. Here the pattern does not and the OCRC and EEOC are authorized to grant
relief.”
{¶ 14} On October 30, 2018, the OCRC filed a motion to strike “Discovery
Documents 1 and 2,” which were attached to Cox’s October 29, 2018 motion; these were
the charge Cox filed with the OCRC in December 2017 and DPS’s brief filed in Cox, 2d
Dist. Montgomery No. 27613, 2018-Ohio-2656, which previously had been attached to
Cox’s brief as attachments 1 and 3 and had been stricken from the record by the trial
court. -9-
{¶ 15} On November 13, 2018, Cox opposed the motion and also filed a motion to
compel OCRC to submit evidence in support of its findings. She asserted that the
information the OCRC “gave to support its findings relate back directly to the charge
application, and the Board’s August 21, 2017 Brief that triggered the charge” and that the
documents would prove that the OCRC’s dismissal of the charge was “neither legal, nor
rational, but [was] indefensible, unlawful, irrational, arbitrary and capricious; and must
therefore, be disturbed by being set aside.” Cox further argued that “[s]uppressing,
striking, or in any other way disallowing evidence proving [OCRC’s] falsehood, would be
an abuse of discretion, and miscarriage of justice.” Specifically, Cox argued that, in
OCRC’s June 7, 2018 Letter of Determination, it stated that she “did not apply for a
position for which [DPS] denied her rehire as alleged by Charging Party,” and that the trial
court was required to “establish the truth about the disputed fact, and substantiate just
what the claim on the charged application was before it accept[ed] the [OCRC’s] decision
as lawful and reliable.” Cox asserted that the OCRC’s opposition to the documents
suggested “a lack of sufficient reason for believing the basis of their statement regarding
their findings of fact.”
{¶ 16} On November 15, 2018, the OCRC opposed Cox’s motion to compel it to
submit evidence. Citing R.C. 4112.05(H), the OCRC asserted that the trial court’s review
was “limited to determining whether the [OCRC] satisfied its statutory obligation of
‘stat[ing] its findings of fact’ that support its decision not to issue a complaint.” It also
asserted that, “[i]n addition to Ms. Cox’s arguments being wrong, this Court has already
struck the very documents she seeks to compel, and there is currently a motion to strike
these same documents from another of Ms. Cox’s filings.” -10-
{¶ 17} On November 19, 2018, the court granted OCRC’s motion to strike
“Discovery Documents 1 and 2.” The trial court noted that this court has held that review
of additional documents during the judicial review of an OCRC decision pursuant to R.C.
4112.06(D) is only permissible when the OCRC has held an evidentiary hearing. As
such, the court concluded that the documents attached to Cox’s October 29, 2018 motion
should be stricken from the record.
{¶ 18} On November 26, 2018, Cox filed a reply to the OCRC’s response to her
motion to compel. On November 28, 2018, the court overruled Cox’s motion to compel
OCRC to submit evidence, noting that “the court is limited to the record from the
administrative hearing officer.”
{¶ 19} On December 14, 2018, the trial court affirmed the decision of the OCRC,
basing its decision on the record provided by the OCRC, which consisted of the OCRC’s
June 7, 2018 letter of determination upon reconsideration; it did not consider any
“supplemental evidence existing outside of the record provided by either party.” The
court looked to R.C. 4112.05 to determine whether the OCRC “sufficiently explained the
rationale for failing to find discrimination had occurred” by DPS. The court noted that the
OCRC determined that it did not have jurisdiction over Cox’s allegations because “she
was not subject to a new harm that occurred within six months from the date she filed her
claim,” and it “did not issue an administrative complaint or hold an evidentiary hearing”
concerning Cox’s allegations. The court noted that the “Ohio Supreme Court has
determined [the OCRC] has discretion whether to issue a complaint after an
investigation.”
{¶ 20} The trial court further concluded as follows: -11-
Utilizing the standard set forth in McCrea, the court’s review of the
[OCRC’s] findings will focus on whether or not the decision is “unlawful,
irrational, arbitrary or capricious.” The [OCRC’s] decision states that [Cox]
has not been subject to a new harm within six months of filing her charge,
as [Cox’s] termination occurred in 2013. [Cox] contends that “objecting to
rehire her, through tactics to obstruct justice, occurred within the six-month
statute of limitation.” Also, [Cox] argues that “[DPS] was objecting to rehire
her based on arbitrary, capricious, and retaliatory measures linked to her
race, and sex which just also happened to be reasons she had been
targeted for termination initially.” After reviewing the transcript,1 the court
finds that the evidence supports the [OCRC’s] finding that [Cox] had not
been subjected to a new harm within six months of filing her charge and
that [Cox’s] complaint stems from the 2014 legal action filed against the
school regarding her termination. Furthermore, the [OCRC] stated that
[Cox] did not apply for a position for which [DPS] denied her rehire as
alleged. Upon a review of the transcript and the arguments of the parties,
the court finds that the [OCRC’s] decision was not unlawful, irrational,
arbitrary, or capricious and was supported by competent, probative
evidence. * * *
{¶ 21} Cox asserts four assignments of error on appeal, which we will consider
together. They are as follows:
THE TRIAL COURT ERRED IN CONFLATING QUESTIONS OF
1 The record does not contain a transcript. -12-
LAW UNDER R.C. SECTIONS 3319 & 2711 TRIGGERED IN JANUARY
2013 TERMINATION WITH CONTROVERSY OF DISCRIMINATION
UNDER R.C. SECTION 4112 FILED IN DECEMBER 2017.
THE TRIAL COURT ERRED IN FAILING TO ADMIT INTO
EVIDENCE AND CONSIDER THE MATERIAL IMPACT OF THE
EVIDENCE PROVING APPELLEE’S CLAIM THAT THE COMMISSION
LACKED JURISDICTION IS UNSUPPORTED {SIC].
THE TRIAL COURT ERRED IN GIVING DEFERENCE TO THE
APPELLEE’S FALSE ASSERTION, AND RELIED ON THE ADVERSE
IMPACT OF THE FALSEHOOD TO REACH ITS DECISION.
THE TRIAL COURT ERRED IN ITS INTERPRETATION AND
APPLICATIONS OF DECISIONS AND RULINGS IN MCCREA V. CIV.
RIGHTS COMM., 20 OHIO APP.3D 314, 317, 487 N.E.2D 143 (1984) AND
STATE EX REL. WESTBROOK V. OHIO CIV. RIGHTS COMM’N., 17 OHIO
ST.3D 215, 217, (1985).
{¶ 22} In her first assignment of error, Cox asserts that the question of law that
was raised with the trial court concerned the charge she filed with the OCRC in December
2017, which was triggered by an event that occurred in August 2017. She asserts that it
did not concern the termination of her teaching contract in January 2013, her June 28,
2013 conviction, or her subsequent sentence. According to Cox, DPS explicitly stated
their “mootness claim” arose from “the outcome of a criminal trial and not a civil-arbitration
matter.” She argues that the trial court’s “failure to look to the record during its
administrative review allowed the error to slip by unaddressed and adversely impacted -13-
the court’s decision and order.” Cox asserts that the OCRC and the trial court relied
upon the “mootness claim” in reaching their decisions.
{¶ 23} Cox also argues that the trial court “created an artificial and misleading
discrimination charge date” by treating January 2013 as the “charge trigger date,” rather
than December 2017. Cox asserts that the “mootness claim was used to refuse to rehire
her” after DPS’s “defenses under §§ 3319 & 2711 had run their course, and to offer
legalistic reason and basis on which to base a reason to rationalize her unjust termination.
The arbitration and statutory hearing had nothing to do with a mootness doctrine.” Cox
directs our attention to this court July 6, 2018 opinion, Cox, 2d Dist. Montgomery No.
27613, 2018-Ohio-2656.
{¶ 24} Cox asserts that the DPS’s 2017 brief in a prior appeal clearly stated that
“the 2013 criminal charge and conviction were what caused the revoking of Ms. Cox’s
teaching license.” Cox argues that the “introduced ‘mootness claim’ is not only linked to
the outcome of an unjust criminal trial, raised as a pretext to not rehire Ms. Cox; it is
further veiled in its discriminatory nature by the use of an African American lawyer to mask
its intent.” Cox argues that the introduction of the mootness claim in the brief “marked a
new harm”; therefore, the date that claim was raised was the correct and applicable date
of the alleged unlawful discriminatory practice, and not some date tied to unrelated issues
earlier.” Cox argues that the OCRC “did not lack jurisdiction over the matter.”
{¶ 25} Cox argues that the OCRC’s “apparent perception that it had discretion to
act is not consistent with law. Options the statute affords the Commission are to act
proactively, or to choose to act either informally or formally R.C. §§ 4112.05(A)(2) or (B)(2)
[sic]. The decision to do nothing, formulate a misrepresentation and offer it as factual is -14-
not an option.”
{¶ 26} Cox asserts that DPS “knows Ms. Cox did not * * * assault anyone as was
alleged,” that she was a well-trained educator, and that she could have served DPS in
“many other ways” than in a classroom. Cox argues that “the finding [in one of our prior
opinions] to vacate the arbitrator award did not necessitate that Ms. Cox return to the
classroom; what the decision represented most of all was that she had regained her right
to gainful employment.” Finally, Cox asserts that OCRC should have “focused its
attention” on the “unlawful discriminatory action that occurred on August 21, 2017,” rather
than asserting “the mootness claim” and choosing “to make the prior incident its starting
point, and in so doing created a quagmire.”
{¶ 27} In her second assignment of error, Cox asserts that “[c]ritical to the decision
making and judgment in this matter is the need to determine the truth of the charge filed
in December 2017. She argues that a “decision-making party would need to study and
appreciate” the charge Cox filed in December 2017 and the DPS’s August 2017 brief that
precipitated the charge “to reach a just decision.”
{¶ 28} In her third assignment of error, Cox asserts that OCRC “failed to exercise
its mandate. It unjustifiably claimed that it lacked jurisdiction” to, in effect, prevent DPS’s
discriminatory practices.
{¶ 29} In her fourth assignment of error, Cox asserts that applying “the legal
standard stipulated in the McCrae ruling,” as advocated by DPS, would mean the court’s
examination of the OCRC’s findings of fact would be “limited,” rather than “relatively
exhaustive.”
{¶ 30} The OCRC responds that Cox’s “brief addresses many issues unrelated to -15-
this appeal. Indeed, the bulk of her brief addresses her employment termination, the
arbitration process contesting that termination, and her conviction for assault. Although
she tries to inject those issues here, this appeal does not directly concern any of them.”
The OCRC asserts that Cox believes that the trial court’s May 15, 2017 decision “was, in
effect, an order forcing the School to rehire her. * * * In fact, the court did not order rehire;
instead, it held that Ms. Cox did not waive statutory review of her termination, and so she
should be afforded that review on remand.” According to the OCRC, after this court
reversed the trial court, “the original arbitrator’s decision affirming Ms. Cox’s termination
was reinstated.”
{¶ 31} The OCRC asserts that R.C. 4112.05(B)(1) required Cox to file her charge
within six months of an alleged unlawful employment practice, but the OCRC concluded
that no adverse employment action had occurred within the six months preceding her
December 2017 charge. The OCRC asserts that the trial court did not abuse its
discretion when it affirmed the OCRC’s decision.
{¶ 32} The OCRC argues that DPS’s argument in its August 21, 2017 brief “was
not an employment harm.” OCRC further argues that, because it did not hold an
evidentiary hearing or issue a complaint, “there was no ‘evidence’ for the lower court to
review on appeal,” and Cox was properly prohibited from attempting to introduce so-called
“additional evidence.”
{¶ 33} The OCRC asserts that Cox’s third assignment of error must be overruled
“[b]ecause of the ‘limited examination’ required when [the OCRC] has not held an
evidentiary hearing.”
{¶ 34} Finally, regarding her fourth assignment of error, OCRC asserts that Cox -16-
“wants the reviewing court to review [the OCRC’s] underlying investigation, rather than
review the findings of fact that [it] is required by statute to provide,” but she gives “no
reason for this ‘exhaustive’ review,” and McCrea requires a limited review.
{¶ 35} In reply, Cox asserts that the OCRC “was obliged to make a ‘probable’ or
‘not probable’ decision”; it did not do so and thus acted unlawfully. “Instead it made a
‘no jurisdiction’ determination,” which was not one of the options available to it.
According to Cox, the determination of lack of jurisdiction was unlawful because it was
“not based on direct evidence noted on the charge” she filed with the OCRC; it was “based
on alternative relevant facts that [the OCRC] formulated.” Cox also asserts that,
notwithstanding the OCRC’s assertions that this case does not relate to her termination,
arbitration, or conviction, “it would have been negligent to not give them the attention they
were given. The lower level court introduced them as contextual issues, and enjoyed
their prejudicial impact in its decision-making.” She asserts that the OCRC failed to
provide “a reasoned analysis of how and why it had linked” Cox’s 2017 charge with the
2013 and 2014 incidents.
{¶ 36} Although dismissed from the case, DPS filed a brief. However, since DPS
is not a party to this appeal, we decline to consider its brief.
{¶ 37} We agree with the OCRC that Cox’s arguments regarding her conviction,
termination, and arbitration are not properly before us, and we will not consider them.
{¶ 38} R.C. 4112.05 provides:
(A)(1) The commission, as provided in this section, shall prevent any
person from engaging in unlawful discriminatory practices.
*** -17-
(B)(1) Any person may file a charge with the commission alleging
that another person has engaged or is engaging in an unlawful
discriminatory practice. In the case of a charge alleging an unlawful
discriminatory practice described in division (A), (B), (C), (D), (E), (F), (G),
(I), or (J) of section 4112.02 or in section 4112.021 or 4112.022 of the
Revised Code, the charge shall be in writing and under oath and shall be
filed with the commission within six months after the alleged unlawful
discriminatory practice was committed. * * *
***
(2) Upon receiving a charge, the commission may initiate a
preliminary investigation to determine whether it is probable that an unlawful
discriminatory practice has been or is being engaged in. * * *
(3)(a) Unless it is impracticable to do so and subject to its authority
under division (B)(3)(d) of this section, the commission shall complete a
preliminary investigation of a charge filed pursuant to division (B)(1) of this
section that alleges an unlawful discriminatory practice described in division
(H) of section 4112.02 of the Revised Code, and shall take one of the
following actions, within one hundred days after the filing of the charge:
(i) Notify the complainant and the respondent that it is not probable
that an unlawful discriminatory practice described in division (H) of section
4112.02 of the Revised Code, has been or is being engaged in and that the
commission will not issue a complaint in the matter;
(ii) Initiate a complaint and schedule it for informal methods of -18-
conference, conciliation, and persuasion, or alternative dispute resolution;
(iii) Initiate a complaint and refer it to the attorney general with a
recommendation to seek a temporary or permanent injunction or a
temporary restraining order. * * *
{¶ 39} As noted by the Ohio Supreme Court:
We would emphasize that R.C. 4112.05(B) states that the
commission may initiate a preliminary investigation. Thus, the preliminary
investigation is not mandatory. R.C. 4112.05(B) also provides actions that
should be taken subsequent to this investigation. These additional
requirements need be satisfied only if the preliminary investigation is
initiated. If no preliminary investigation is held, then the additional
requirements need not be met. Since the commission has discretion in
determining whether an investigation must be made, there is no absolute
duty to make a probable cause determination. Likewise, the commission
has discretion in determining whether to issue a complaint after an
investigation.
State ex rel. Westbrook v. Ohio Civ. Rights Comm., 17 Ohio St.3d 215, 216, 478 N.E.2d
799 (1985).
{¶ 40} R.C. 4112.06, which governs judicial review of a final order of the OCRC,
provides in part that the “court may grant a request for the admission of additional
evidence when satisfied that such additional evidence is newly discovered and could not
with reasonable diligence have been ascertained prior to the hearing before the -19-
commission.” R.C. 4112.06(D). This provision only applies, however, when the OCRC
has held an evidentiary hearing. Murray v. Ohio Civ. Rights Comm., 2d Dist. Montgomery
No. 9389, 1986 WL 2653, *5.
{¶ 41} We agree with the trial court and the OCRC that where, as here, the OCRC
did not hold an evidentiary hearing or issue an administrative complaint, the standard of
review is set forth in McCrea as follows:
* * * In order to successfully withstand judicial review, the refusal to
issue a complaint cannot be based upon unlawful, irrational or arbitrary
reasons. Thus, except in those rare instances where the commission’s
factual findings can be challenged without resort to a re-evaluation by the
court of the evidence, the court’s review should be confined to a limited
examination of the commission’s decision for the purpose of determining
whether the findings of fact show sufficient justification for its decision not
to issue a complaint. Unless the reviewing court finds that the findings of
fact show that the commission’s decision not to issue a complaint is
unlawful, irrational, arbitrary or capricious, the court should not disturb the
commission’s action.
McCrea, 20 Ohio App.3d at 317, 486 N.E.2d 143.
{¶ 42} We conclude that the trial court correctly confined its review to the record
as filed by the OCRC, namely the June 7, 2018 Letter of Determination upon
Reconsideration. We further conclude that the trial court did not err in applying the
unlawful, irrational, arbitrary, or capricious standard of review to the OCRC’s order
dismissing Cox’s charge of discrimination. Finally, we conclude that the trial court did -20-
not err by ruling that the OCRC’s order was not unreasonable, irrational, arbitrary or
capricious. Cox asserted that “an unlawful discriminatory practice” occurred on
December 21, 2017, when DPS filed its brief asserting that her license had been
permanently revoked, rendering further review of her termination moot. The OCRC
determined that DPS’s argument was not a “discrete and new act of harm” to Cox over
which it had jurisdiction, and the trial court correctly found sufficient justification for the
OCRC’s decision not to conduct an evidentiary hearing or issue a complaint.
{¶ 43} For the foregoing reasons, Cox’s assigned errors are overruled, and the
judgment of the trial court is affirmed.
.............
WELBAUM, P.J. and HALL, J., concur.
Copies sent to:
Georgia B. Cox Patrick M. Dull Beverly A. Meyer Jason R. Stuckey Hon. Mary Katherine Huffman