La Riccia v. Ohio Civ. Rights Comm. ( 2023 )

[Cite as La Riccia v. Ohio Civ. Rights Comm., 2023-Ohio-1816.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
MARY LA RICCIA, :
Plaintiff-Appellant, :
No. 111976
v.
OHIO CIVIL RIGHTS COMMISSION, :
ET Al.,
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 1, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-22-960591
Appearances:
Mary La Riccia, pro se.
David Yost, Ohio Attorney General, Adrian C. Feiertag,
Assistant Attorney General, and David A. Oppenheimer,
Principal Assistant Attorney General, for appellee Ohio
Civil Rights Commission.
Littler Mendelson P.C., Timothy S. Anderson, and
Jennifer B. Orr, for appellee Cleveland Clinic Foundation.
MICHAEL JOHN RYAN, J.:
Pro se plaintiff-appellant, Mary La Riccia1 (“La Riccia”) appeals the trial
court’s judgment affirming the decision of defendant-appellee Ohio Civil Rights
Commission’s (“OCRC” or “commission”) finding of no probable cause that
defendant-appellee Cleveland Clinic Foundation (“CCF”) committed a violation of
Ohio’s civil rights laws. La Riccia claimed that CCF discriminated against her and
failed to grant her a reasonable accommodation by terminating her physician-
patient relationship with CCF employee Dr. Neil Cherian. After a thorough review
of the facts and the law, we affirm the judgment of the trial court.
Substantive and Procedural History
La Riccia began seeing Dr. Cherian, a CCF neurologist, in April 2020,
for treatment of her neurological disorder, Mai de Debarquement Syndrome, which
causes dizziness and balance disturbances. The record reflects that Dr. Cherian
treated La Riccia on four occasions consisting of one virtual visit and three in-office
visits between April 23 and August 26, 2020. Between July and October 2020,
La Riccia sent approximately 140 messages to Dr. Cherian through CCF’s online
MyChart system, which is a secure, online health management application that
allows patients to review their medical records, test results, prescriptions, and
appointment history and exchange messages with their health care providers.
1La Riccia’s name is also spelled as “Lariccia” or “LaRiccia” throughout the record
and in some citations. For consistency, we will use the spelling “La Riccia” in this opinion.
During La Riccia’s course of treatment, Dr. Cherian realized that he
could not effectively treat La Riccia’s symptoms and recommended she establish
care with a primary care provider, a psychologist, and a physical therapist. La Riccia
refused to see other providers unless Dr. Cherian physically accompanied her to the
appointments. La Riccia insisted that Dr. Cherian was the only provider that could
treat her.
In October 2020, a nurse notified Dr. Emad Estemalik, CCF’s Section
Head for Headache and Facial Pain at the Center for Neurological Restoration,
about the MyChart messages. Dr. Estemalik reviewed the messages and concluded
that they were “inappropriate, concerning, and crossed the professional boundary
between physician and patient.”
On October 12, 2020, CCF terminated La Riccia’s treating relationship
with Dr. Cherian. Dr. Estemalik instructed La Riccia to immediately discontinue
her contact with Dr. Cherian and advised her that he would assist with the transition
of her care to another CCF provider. La Riccia was not deterred and continued to
contact Dr. Cherian after obtaining his personal cell phone number. She also mailed
at least one letter to his house.
On March 19, 2021, La Riccia, proceeding pro se, filed a charge of
discrimination against CCF with the OCRC alleging that CCF engaged in unlawful
discriminatory practices. Specifically, La Riccia alleged that CCF discriminated
against her based on her mental disability. La Riccia wanted Dr. Cherian restored
as her treating physician.
The commission conducted an eight-month investigation into
La Riccia’s claims. On November 18, 2021, the commission issued a Letter of
Determination finding that there was no probable cause to believe CCF had
committed an unlawful discriminatory practice under Ohio’s civil rights laws. The
commission stated that it “considered relevant documents and testimony” to make
its findings of fact. The commission found that CCF did not deny La Riccia access
due to her disability but that “CCF terminated the physician/patient relationship
between La Riccia and Dr. Cherian due to La Riccia’s inappropriate behavior.” The
commission noted that CCF submitted evidence showing it had discontinued
treatment for other patients in the past based on inappropriate behavior and that
CCF tried to assist La Riccia with finding another provider. The commission
concluded that “CCF has no duty under R.C. Chapter 4112 to accommodate an
individual whose access to its services has been lawfully restricted” and dismissed
the complaint.
La Riccia filed for reconsideration. On reconsideration, the
commission upheld its original finding of no probable cause. The commission noted
that La Riccia’s requested accommodation of continuing treatment with Dr. Cherian
was unreasonable, given that Dr. Cherian himself believed he could no longer help
La Riccia, and given the inappropriate messages La Riccia sent him. The OCRC
reiterated that CCF had offered to assist La Riccia to find another provider and did
not deny La Riccia services.
In March 2022, La Riccia and her husband, Travis Horn, petitioned
the Cuyahoga County Common Pleas Court pursuant to R.C. 4112.06 for judicial
review of the OCRC’s finding of no probable cause. In April 2022, La Riccia filed an
amended complaint removing Horn as a petitioner and joining CCF as a defendant.
La Riccia filed numerous motions including motions for injunctive
relief and summary judgment, attaching numerous exhibits. The trial court denied
these motions and issued an order explaining that it was limiting its review to the
commission’s record and the parties’ briefs on the merits and that it would not
consider other motions or papers that were not properly before the court.
On September 20, 2022, the trial court issued its judgment entry and
opinion affirming the OCRC’s finding of no probable cause and holding that the
commission’s decision was not “unlawful, irrational, arbitrary, or capricious.”
Specifically, the court found that the record demonstrated that the physician-patient
relationship had “run its course” and was damaged beyond repair. The court noted
that Dr. Cherian referred La Riccia to providers who could treat her when he
determined that her symptoms were not within his area of expertise. The trial court
reasoned that the clinical relationship was no longer viable considering the nature
of La Riccia’s communications with Dr. Cherian. The court emphasized that La
Riccia never submitted any evidence that verified that her inappropriate conduct
was the result of a disability and found that CCF did not deny La Riccia care; “they
merely attempted to transition her to other providers who could provide more
suitable treatment.”
Federal Case
La Riccia pursued other avenues of relief in addition to filing a
complaint with the OCRC and a petition with the Cuyahoga County Common Pleas
Court. La Riccia, and her spouse, Horn, filed suit against CCF and several of its
employees (“CCF defendants”) in federal court alleging discrimination and
retaliation under the Americans with Disabilities Act (“ADA”), among other claims.
The district court dismissed their complaint pursuant to Civ.R. 16(b)(6) for failure
to state a claim upon which relief could be granted. Lariccia v. Cleveland Clinic
Found., N.D.Ohio No. 1:21 CV 1291, 2021 U.S. Dist. LEXIS 198552 (Oct. 15, 2021).
La Riccia and Horn appealed. The Sixth Circuit Court of Appeals
affirmed the district court’s judgment. La Riccia v. Cleveland Clinic Found., 6th Cir.
No. 21-3990, 2022 U.S. App. LEXIS 23809, 6 (Aug. 24, 2022). In so doing, the court
determined that the district court did not err in dismissing La Riccia and Horn’s
complaint because each of their federal claims required that the CCF defendants
discriminated against La Riccia on account of her disability. Id. at 4. The court
found that La Riccia and Horn’s own allegations showed that the CCF defendants
ended La Riccia’s treatment relationship with Dr. Cherian because of inappropriate
MyChart messages. “That is neither discrimination on the basis of disability nor
retaliation for requesting an accommodation.” Id. The court noted that even if La
Riccia’s messages stemmed from a mental disability, “it does not follow that the
defendants took their actions because of her disability.” Id. at 5. “As the district
court correctly put it, the defendants’ actions regarding La Riccia’s ‘care would have
been handled the same way if she had no illness and was exchanging personal, non-
medical messages with any physician through MyChart.”’ Id., quoting Lariccia,
N.D.Ohio No. 1:21 CV 1291, 2021 U.S. Dist. LEXIS 198552, at id.Assignments of Error
I. The trial court erred by allowing the Commission to exploit the
provisions set forth in O.R.C. 4112.05 to submit an incomplete and
clearly biased record.
II. The trial court erred by allowing the Commission to exploit the
provisions set forth in O.R.C. 4112.06(B) by failing to submit “all
evidence and proffered evidence” received during their preliminary
investigation to the court, without explanation and based solely on
their exploitation of O.R.C. 4112.05.
III. The trial court erred by finding the Commission’s determination
was not unlawful, irrational, arbitrary and capricious based on
evidence that is not included in the Commission’s submitted record,
and by disregarding all of my arguments and evidence, even what is
present in the Commission’s submitted record.
IV. The trial court erred by misinterpreting the text of
O.R.C. 4112.02(G) and allowing the legislative intent behind the
enactment of the statute to be defeated by overly restrictive
interpretation in direct contradiction of the Ohio Supreme Court.
V. The trial court erred by misinterpreting the provisions set forth in
Title III of the ADA and misapplied the law by applying Title I
standards and restrictions to a Title III claim.
Law and Analysis
Failure to Follow Appellate Rules
App.R. 12 and 16 provide this court with the authority to disregard
any assignment of error that does not conform to the applicable appellate
rules. Fleming v. Shelton, 8th Dist. Cuyahoga No. 108660, 2020-Ohio-1387, ¶ 10,
citing In re R.L.H., 8th Dist. Cuyahoga No. 100327, 2014-Ohio-3411. La Riccia is
proceeding pro se, without the representation of a licensed attorney. However,
“[u]nder Ohio law, pro se litigants are held to the same standard as all other
litigants.” Bikkani v. Lee, 8th Dist. Cuyahoga No. 89312, 2008-Ohio-3130, ¶ 29,
citing Kilroy v. B.H. Lakeshore Co., 111 Ohio App.3d 357, 363, 676 N.E.2d 171(8th Dist.1996). La Riccia’s appellate brief fails to comply with a number of
appellate rules. Cases, however, are best decided on their merits; therefore, we will
address her assignments of error, combining them for review.
The Commission
The OCRC was created under R.C. 4112.03 and operates pursuant to
R.C. Chapter 4112, as supplemented by Ohio Administrative Code Chapter 4112. The
commission is authorized to “[r]eceive, investigate, and pass upon written charges
made under oath of unlawful discriminatory practices[.]” R.C. 4112.04(A)(6). As it
applies to this case, R.C. 4112.02(G) provides:
It shall be an unlawful discriminatory practice * * * [f]or any proprietor
or any employee, keeper, or manager of a place of public
accommodation to deny to any person, except for reasons applicable
alike to all persons regardless of race, color, religion, sex, military
status, national origin, disability, age, or ancestry, the full enjoyment of
the accommodations, advantages, facilities, or privileges of the place of
public accommodation.
“Any person may file a charge with the commission alleging that
another person has engaged or is engaging in an unlawful discriminatory practice”
under R.C. 4112.02(G). R.C. 4112.05(B)(1). “[T]he 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.” Id.“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.” R.C. 4112.05(B)(2).
A member or members of the commission staff conduct this informal procedure to
examine the factual basis behind the charge and to obtain the information necessary
for the commission to determine whether it is probable that the respondent has
engaged in any unlawful discriminatory practices. McCrea v. Ohio Civ. Rights
Comm., 20 Ohio App.3d 314, 315-316, 486 N.E.2d 143 (9th Dist.1984); see also Ohio
Adm.Code 4112-3-03(A) and (B).
Although the commission investigates the charge, it does not seek to
receive formal evidence. Unlike the procedure set forth for a post-
complaint formal hearing, R.C. 4112.05 does not provide for the
swearing of witnesses, the taking of testimony, or the keeping of a
record during the preliminary investigation.
McCrea at id.; see also Ramudit v. Fifth Third Bank, 1st Dist. Hamilton No. C-
030941, 2005-Ohio-374, ¶ 19. After its investigation is completed, the OCRC issues
a decision stating whether it finds “probable cause” or “no probable cause.”
R.C. 4112.05(B)(4). When the OCRC makes a finding of “no probable cause,” it
notifies the complainant that it will not issue a complaint in the matter.
R.C. 4112.05(B)(4). The decision whether to issue an administrative complaint is
within the OCRC’s discretion. State ex rel. Westbrook v. Ohio Civ. Rights Comm.,
17 Ohio St.3d 215, 216, 478 N.E.2d 799 (1985).
When the OCRC decides not to pursue a claim beyond the
investigation phase, the complainant is notified of the decision via a Letter of
Determination. The commission states its findings of fact in the letter and dismisses
the complaint. R.C. 4112.05(H).
A party may apply to the commission for reconsideration of its
determination, which the commission has the discretion to accept or reject. Ohio
Adm.Code 4112-3-04(A) and (B). If the commission accepts an application for
reconsideration, it shall make a determination and notify all parties. Ohio
Adm.Code 4112-3-04(B)(2).
Judicial Review
The final orders of the commission are subject to judicial review upon
the filing of a petition in the court of common pleas by the aggrieved party.
R.C. 4112.06(A). The commission files its record, including all evidence and proffers
of evidence, with the reviewing court. R.C. 4112.06(B). Judicial review of the
commission’s orders is based upon the commission’s record and such additional
evidence as the court allows. R.C. 4112.06(B) and (D).
“The findings of the commission as to the facts shall be conclusive if
supported by reliable, probative, and substantial evidence on the record and such
additional evidence as the court has admitted considered as a whole.”
R.C. 4112.06(E). That said, because the commission does not hold an evidentiary
hearing when it makes a no probable cause finding, there is “no evidence to review
on appeal, reliable, probative, substantial, or otherwise.” McCrea, 20 Ohio App.3d
at 317, 486 N.E.2d 143. “The applicable standard of review for a pre-complaint
decision not to issue a complaint for lack of probable cause is whether the decision is
unlawful, irrational, and/or arbitrary and capricious.” (Emphasis sic.) Id. at 318.
Under this standard, the court’s review consists of a “limited examination” of the
OCRC’s decision, which only reviews the “findings of fact” and attachments from the
OCRC’s determination, “rather than examining the full record of the investigation.”
Kutz v. State Edn. Assn., 10th Dist. Franklin No. 94APE06-781, 1995 Ohio App.
LEXIS 1015, 7 (Mar. 16, 1995).
The reason for using the unlawful, irrational, arbitrary, and
capricious standard in an appeal from a no probable cause finding rests on the
fundamental differences between a pre-complaint and post-complaint proceeding
when a charge of discrimination is brought. Hous. Advocates, Inc. v. Am. Fire &
Cas. Co., 8th Dist. Cuyahoga Nos. 86444 and 87305, 2006-Ohio-4880, ¶ 10, citing
McCrea. Therefore, because this case stems from a pre-complaint proceeding, the
product of the commission’s investigation does not constitute evidence for the trial
court’s reevaluation. Rather, the trial court’s review is confined to reviewing the
commission’s findings of fact to determine whether sufficient justification is given
for not issuing a complaint. Id. at ¶ 11, citing McCrea at id.
Courts reviewing a determination made pursuant to R.C. 4112.06,
“must give due deference to the administrative resolution of evidentiary conflicts.”
Ashiegbu v. Ohio Civ. Rights Comm., 10th Dist. Franklin No. 96APE01-4, 1996 Ohio
App. LEXIS 2559, 10 (June 18, 1996) (citations omitted). The charging party must
demonstrate that the OCRC’s findings were unlawful or an abuse of discretion.
Freeman v. Ohio Civ. Rights Comm., 8th Dist. Cuyahoga No. 98273, 2012-Ohio-
4825, ¶ 17.
Our review of a trial court’s decision is even more circumscribed. Our
review is limited to whether the trial court abused its discretion in upholding the
commission’s order. Hous. Advocates, Inc. at ¶ 19, citing McCrea. An “abuse of
discretion” occurs where “a court exercise[s] its judgment, in an unwarranted way,
in regard to a matter over which it has discretionary authority.” Johnson v.
Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.
With these concepts in mind, we review La Riccia’s assignments of
error.
La Riccia’s Claims
Proceedings
La Riccia contends in her first, second, and third assignments of error
that the commission submitted an incomplete record to the trial court and the
commission and the trial court improperly disregarded her evidence. Specifically,
she alleges the commission’s record is incomplete and the commission disregarded
evidence that was relevant to the investigation. She argues that the supplemental
information she filed with the trial court constitutes evidence that the commission
deliberately omitted from its record.
As previously stated, the commission does not receive formal
evidence in its preliminary investigation of a charge of discrimination. McCrea,
20 Ohio App.3d at 316, 486 N.E.2d 143. Unlike the procedure set forth for a post-
complaint formal hearing, R.C. 4112.05 does not provide for the swearing of
witnesses, the taking of testimony, or the keeping of a record during the preliminary
investigation. Id. Thus, the “record” that is available for review is limited when
dealing with a preliminary investigation by the commission. Wu v. Ohio Civ. Rights
Comm., 11th Dist. Portage No. 2020-P-0065, 2021-Ohio-1541, ¶ 79, citing Van Horn
v. Ohio Civ. Rights Comm., 11th Dist. Trumbull No. 94-T-5117, 1996 Ohio App.
LEXIS 415 (Feb. 9, 1996).
In this case, the commission’s investigatory notes along with the
Letter of Determination, the reconsideration report, and attachments to the letter
and report constituted the commission’s record in this case. This is the sum of the
information the commission received and considered from the parties pertaining to
the applicable claims.
La Riccia has not shown that the commission disregarded
information she submitted. La Riccia attempted to supplement the record during
her appeal to the trial court, but the commission maintains the record, which the
trial court reviews to determine whether the commission’s decision was supported
by reliable, probative, and substantial evidence on the record. Although the trial
court may consider other evidence to determine whether the commission’s findings
of fact are supported by reliable, probative, and substantial evidence on the record,
the commission’s record remains the same. La Riccia cannot change the
information the commission considered during its investigation of her charge. A
petitioner can only supplement the record if the commission held an evidentiary
hearing. See R.C. 4112.06(D) (“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 commission.”); Murray v. Ohio Civ. Rights Comm., 2d Dist. Montgomery
No. 9389, 1986 Ohio App. LEXIS 5807, 14 (Mar. 3, 1986) (finding that
R.C. 4112.06(D) does not apply when there is no evidentiary hearing).
We note that La Riccia’s supplements, including messages she claims
were exchanged between her and Dr. Cherian, were never produced to the
commission during its investigation. Thus, those documents were not in the
commission’s investigatory file and are not part of the record on appeal. For
example, La Riccia’s claims that she and Dr. Cherian exchanged over 500 MyChart
messages during the time she was his patient, including numerous nonmedical
messages he sent to her in which, La Riccia contends, he encouraged her to disclose
private matters. CCF submitted copies of La Riccia’s MyChart messages with
Dr. Cherian during the relevant time period but redacted substantial portions of the
communications due to what it stated were patient privacy laws. During its
investigation, the commission sought a release from La Riccia so that it could obtain
an unredacted copy of her MyChart record, but La Riccia refused. Thus, the
commission only had the redacted version to consider.
Pursuant to statute, the commission issued its findings of fact in a
Letter of Determination, which supported its determination that no probable cause
exists to support La Riccia’s claim of discrimination. See R.C. 4112.05(H). It is these
findings of fact that the trial court considered, pursuant to its judicial-review
function under R.C. 4112.06, when it reviewed the commission’s decision.
Accordingly, the first, second, and third assignments of error are
overruled.
Commission Decision
In her fourth and fifth assignments of error, La Riccia claims that the
commission misinterpreted the ADA and R.C. 4112.02(G).
The commission contends that it does not have jurisdiction to
consider La Riccia’s ADA claims because it is limited to enforcing only the provisions
in R.C. Chapter 4112. La Riccia points to no authority that confers jurisdiction on
the commission for federal claims. Additionally, La Riccia’s ADA claims were
dismissed in federal court. The district court found that her claims “lack an arguable
basis in law,” reasoning that the ADA requires
as a central element of a cause of action that Plaintiffs plead facts
suggesting the Defendants discriminated against LaRiccia on the basis
of a disability. It is not enough to simply allege that LaRiccia has a
medical condition. Plaintiffs have to allege facts that suggest that this
medical condition meets the statutory definition of a disability, and that
these Defendants made the decisions they made and took the courses
of action that they took based solely on the fact that LaRiccia has Mal
de Debarquement Syndrome. Plaintiffs’ allegations establish none of
those elements. To the contrary, they allege that the Defendants were
motivated to transfer her care to another physician by the very personal
and non-medical content of the messages LaRiccia exchanged with
Cherian through MyChart. The decision to transfer her care would
have been handled the same way if she had no illness and was
exchanging personal, non-medical messages with any physician
through MyChart. Plaintiffs do not allege any facts that suggest
discrimination on the basis of a disability occurred here.
Lariccia, N.D.Ohio No. 1:21 CV 1291, 2021 U.S. Dist. LEXIS 198552, at 10-11.
Regarding the commission’s interpretation of R.C. 4112.02(G),
a successful claim under R.C. 4112.02(G) requires proof that the plaintiff is disabled
within the meaning of the law and that the defendant is a private entity that owns,
leases, or operates a place of public accommodation; took an adverse action against
the plaintiff that was based upon the plaintiff’s disability; and failed to make
reasonable modifications that would accommodate the plaintiff’s disability without
fundamentally altering the nature of the public accommodation. Powell v. Bartlett
Med. Clinic & Wellness Ctr., S.D.Ohio No. 2:20-cv-02118, 2021 U.S. Dist. LEXIS
12970, 19 (Jan. 25, 2021). In this case, the OCRC determined that La Riccia failed
to meet this standard because CCF did not deny her access to a place of public
accommodation or the services of said place based on her disability. CCF
“terminated the physician/patient relationship * * * because of Charging Party’s
inappropriate behavior.” Upon reconsideration, the OCRC confirmed that “the
original investigation appropriately found that Respondent did not deny Charging
Party public accommodation, access, or service because of disability.”
La Riccia argues that her behavior is a product of her mental
disability; therefore, by law, she cannot be held responsible for her actions or held
to the same standard as someone without a disability. She further argues that it is
unlawful for CCF to deny her access to Dr. Cherian, based on her mental disability,
because he is the only doctor in the area who can treat her Mai de Debarquement
Syndrome. La Riccia did not submit evidence, such as medical records or a report
from a physician, verifying that she suffered from a mental disability or that her
conduct was caused by a mental disability. Even if La Riccia was able to show her
behavior was due to a mental disability, it does not follow that CCF terminated the
physician-patient relationship because of her alleged mental disability.
CCF’s stated reasons for discontinuing La Riccia’s treatment with
Dr. Cherian were two-fold. Dr. Cherian initially began to treat La Riccia but she
began to complain of symptoms that the doctor does not treat. He recommended
that she establish care with a primary care physician and she insisted he serve as her
primary care physician even though he is not a primary care physician. Dr. Cherian
averred that he could do nothing further to help La Riccia’s various ailments and
recommended her to specific doctors but she refused to see them. Dr. Cherian
determined there was nothing more he could do to help La Riccia and informed her
of his decision on October 7, 2020. Dr. Estemalik, Dr. Cherian’s supervisor, found
that “Ms. La Riccia’s condition had not improved through treatment with Dr.
Cherian” and “Dr. Cherian did not believe there was anything more he could do to
treat her.”
Second, CCF based its decision on La Riccia’s inappropriate behavior.
Dr. Estemalik averred that he was notified that La Riccia sent an “alarming number”
of messages to Dr. Cherian using MyChart, many of which did not relate to her
medical care and some of which were “unusual and disturbing.” According to
Dr. Estemalik, after he “reviewed the messages that Ms. La Riccia sent to
Dr. Cherian, I concluded that the messages were inappropriate, concerning, and
crossed the line between physician and patient.” He contacted La Riccia directly and
“instructed her to immediately discontinue her contact with Dr. Cherian.” CCF
provided letters it had previously sent to other patients whose treatment had been
discontinued due to inappropriate behavior to show that La Riccia was not being
singled out or unfairly treated and was not the only patient with whom CCF had to
terminate a physician-patient relationship.
La Riccia argues that CCF failed to provide her access to a public
accommodation by prohibiting her from seeing Dr. Cherian as her treating
physician. CCF, however, never prohibited La Riccia access to the Cleveland Clinic
campuses, buildings, or its providers, except for Dr. Cherian. After CCF terminated
Dr. Cherian’s treatment of La Riccia, CCF continued to offer services to La Riccia by
offering her assistance in securing another CCF physician to treat her. Although
CCF did not offer La Riccia the accommodation she requested, which was to remain
under Dr. Cherian’s care, La Riccia is not entitled to the accommodation of her
choice. Martinez v. Ohio Dept. of Adm. Servs., 118 Ohio App.3d 687, 695, 693
N.E.2d 1152 (10th Dist.1997); Hankins v. Gap, Inc., 84 F.3d 797, 800-801 (6th
Cir.1996). La Riccia’s request to force Dr. Cherian to continue to treat her against
his clinical findings and against the advice of his department head is not a
reasonable accommodation under the circumstances of this case.
Accordingly, the fourth and fifth assignments of error are overruled.
Conclusion
The commission’s findings of fact are supported by reliable,
probative, and substantial evidence. The record demonstrates that CCF acted
lawfully in referring La Riccia to providers who could assist her once it determined
that Dr. Cherian could no longer treat La Riccia because her symptoms were not
within his area of expertise and because of the inappropriate nature of her
communications with the doctor. CCF did not deny Ms. La Riccia care; they
attempted to transition her to other providers who could provide more suitable
treatment.
Considering the above, the trial court did not abuse its discretion in
determining that the OCRC’s finding of no probable cause is not unlawful, irrational,
arbitrary, or capricious.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
MICHAEL JOHN RYAN, JUDGE
ANITA LASTER MAYS, A.J., and
MARY EILEEN KILBANE, J., CONCUR