Tarshis v. Ohio Civ. Rights Comm. , 2019 Ohio 3633 ( 2019 )

[Cite as Tarshis v. Ohio Civ. Rights Comm., 2019-Ohio-3633.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Vadim Tarshis, :
Plaintiff-Appellant, : No. 19AP-172
(C.P.C. No. 18CV-9838)
v. :
(REGULAR CALENDAR)
Ohio Civil Rights Commission, :
Defendant-Appellee. :
D E C I S I O N
Rendered on September 10, 2019
On brief: Vadim Tarshis, pro se. Argued: Vadim Tarshis.
On brief: Dave Yost, Attorney General, and Sharon D.
Tassie, for appellee. Argued: Sharon D. Tassie.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} Vadim Tarshis, plaintiff-appellant, appeals from a judgment of the Franklin
County Court of Common Pleas, in which the court dismissed his appeal of a letter of
determination on reconsideration issued by the Ohio Civil Rights Commission
("commission"), defendant-appellee.
{¶ 2} Emerald City Ballroom ("Emerald") is a dance studio owned by Jeff Stein.
Appellant is a patron of Emerald. According to appellant's petition, on May 12, 2017,
Stein told appellant to leave the premises and banned him from returning. Stein allegedly
told appellant that people did not like him, but he could not disclose their names.
Appellant claimed some females, including the former manager of Emerald, would
inappropriately touch him in a sexual manner during dances and he would politely reject
No. 19AP-172 2
their advances. Appellant opined that some of these females might have complained to
Stein as revenge.
{¶ 3} Appellant filed a charge of discrimination with the commission alleging
Emerald engaged in an unlawful discriminatory practice and claiming he was banned
from a place of public accommodation in retaliation for engaging in activity protected
under R.C. 4112.02(I). Appellant asserted Emerald retaliated against him based on his
resisting the sexual advances of female patrons and advising Stein about R.C. 4112
compliance at the time Stein forced him to leave the premises.
{¶ 4} The commission conducted an investigation and found no probable cause to
believe Emerald engaged in discriminatory conduct and declined to issue an
administrative complaint. Appellant applied for reconsideration of the commission's
decision. On October 25, 2018, the commission issued a letter of determination on
reconsideration. The commission found the evidence failed to corroborate appellant's
allegations that Emerald retaliated against him or that appellant engaged in protected
activity as defined by R.C. 4112. The commission indicated Emerald barred appellant from
the premises based on several complaints from patrons who reported feeling
uncomfortable and threatened by appellant's behavior. Therefore, the commission again
found there was no probable cause for the commission to issue an administrative
complaint and ordered the matter dismissed.
{¶ 5} On November 23, 2018, appellant filed a petition for judicial review of the
commission's determination with the common pleas court. On February 26, 2019, the
trial court issued a decision and entry dismissing appellant's petition. The trial court
found appellant had no due process claim against Emerald, the commission did not
violate his due process rights, and the commission did not act in an arbitrary, capricious,
or irrational fashion. Appellant appeals the judgment of the trial court, asserting the
following three assignments of error:
[I.] THE COMMISSION'S FINDINGS DID NOT SATISFY
THE "RELIABLE, PROBATIVE OR SUBSTANTIAL
EVIDENCE" REQUIREMENT PURSUANT TO R.C.
§4112.06(E) AND WERE IN VIOLATION OF THE
APPELLANT'S CONSTITUTIONAL DUE PROCESS RIGHTS
TO BE PUT ON NOTICE OF THE SPECIFIC PATRONS'
DETAILED COMPLAINTS AND SPECIFIC ALLEGED
ACTIONS THAT CONSTITUTE HARASSMENT IN EACH
No. 19AP-172 3
PATRONS' CASE SO THAT APPELLANT COULD PRESENT
A DEFENSE.
[II.] THE OHIO CIVIL RIGHTS COMMISSION ERRED BY
FAILING TO HOLD THAT THERE IS NO RELIABLE,
PROBATIVE OR SUBSTANTIAL EVIDENCE WHICH
SUPPORTS THE OHIO CIVIL RIGHTS COMMISSION'S
FINDING OF HOSTILE SEXUAL HARASSMENT
ENVIRONMENT OF MAKING "PATRONS" FEEL
"UNCOMFORTABLE AND THREATENED[,"] CREATED BY
APPELLANT.
[III.] THE OHIO CIVIL RIGHTS COMMISSION ERRED BY
FAILING TO HOLD THAT THERE IS RELIABLE,
PROBATIVE OR SUBSTANTIAL EVIDENCE WHICH
SUPPORTS APPELLANT'S CHARGES OF UNLAWFUL
RETALIATORY BAN FROM STUDIO AND REFUSAL OF
SERVICE BASED ON PROTECTED ACTIVITY OF
OPPOSING DISCRIMINATION AND PARTICIPATING IN
DISCRMINATION INVESTIGATION.
{¶ 6} We address appellant's assignments of error together. Appellant argues in
his assignments of error the trial court erred when it dismissed his judicial review because
there existed reliable, probative, and substantial evidence that Emerald engaged in
unlawful discrimination.
{¶ 7} R.C. 4112.02 provides:
It shall be an unlawful discriminatory practice:
***
(G) For 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.
{¶ 8} R.C. 4112.05(B)(1) provides "[a]ny person may file a charge with the
commission alleging that another person has engaged or is engaging in an unlawful
discriminatory practice." A charge under division (G) must be in writing, under oath, and
No. 19AP-172 4
filed with the commission within six months after the alleged unlawful discriminatory
practice was committed.
{¶ 9} The commission has the discretion to investigate a charge and determine
whether there is probable cause that unlawful discrimination occurred. R.C.
4112.05(B)(2). See also State ex. rel. Westbrook v. Ohio Civ. Rights Comm., 17 Ohio St.3d
215, 216 (1985) (the commission has the discretion to decide whether to investigate a
charge and to issue a complaint based on that charge); McCrea v. Ohio Civ. Rights
Comm., 20 Ohio App.3d 314, 317 (9th Dist.1984) (courts grant discretion to the
commission in determining whether to find probable cause). When the commission
makes a probable cause determination, no evidentiary hearing is held. R.C. 4112.o5(B)(5).
See also id. at 316. "Prior to the filing of a complaint, the procedure set out in the statute is
informal and in the nature of an ex parte proceeding." Id. "Although the commission
investigates the charge, it does not seek to receive formal evidence." Id. "A determination
of no probable cause is one which cannot, therefore, be reviewed on the basis of reliable,
probative, and substantial evidence." Thus, the product of the commission's investigation
does not constitute evidence that could be reevaluated by the trial court but, rather, only
contains the factual findings contained in its letter. Hous. Advocates, Inc. v. Am. Fire &
Cas. Co., 8th Dist. No. 86444, 2006-Ohio-4880, ¶ 9-11; McCrea at 316.
{¶ 10} Pursuant to R.C. 4112.06(A), a party "claiming to be aggrieved by a final
order of the [Ohio Civil Rights Commission], including a refusal to issue a complaint, may
obtain judicial review thereof * * * in a proceeding * * * brought in the common pleas
court." " 'Upon review of a determination that no probable cause exists [to issue a
complaint], the common pleas court must determine whether [the Ohio Civil Rights
Commission's] decision is unlawful, irrational, and/or arbitrary and capricious.' " Yeager
v. Ohio Civ. Rights Comm., 148 Ohio App.3d 459, 2002-Ohio-3383, ¶ 12 (11th Dist.),
quoting Coleman v. Warner, 82 Ohio App.3d 263, 265 (6th Dist.1992).
{¶ 11} In the present case, the commission found no probable cause that Emerald
engaged in discriminatory behavior. The commission concluded the evidence did not
demonstrate that Emerald retaliated against appellant or that appellant engaged in
protected activity. Instead, the commission found, Emerald banned appellant from the
premises because of several complaints from patrons who reported feeling uncomfortable
No. 19AP-172 5
and threatened by appellant's behavior. On judicial review, the common pleas court
found that, although appellant believed his actions were acceptable, the commission was
free to believe or disbelieve appellant's version of the facts. As for his misdirected due
process claim, the trial court found that because Emerald is not a state actor, due process
would not normally apply to it. The court also found there was no evidence the
commission committed any due process violation by violating its procedures or treating
appellant differently than other charging parties but, instead, merely disagreed with
appellant.
{¶ 12} We agree with the trial court. There is nothing before this court to suggest
the commission acted in an arbitrary, capricious, or irrational fashion. The commission's
investigation showed several patrons complained that appellant made them feel
uncomfortable and threatened. Although appellant asserts the patrons' "feelings" are not
facts and his behavior was not improper, the appropriateness of his behavior is not
relevant to our analysis on appeal, given our standard of review. Furthermore, although
appellant argues the commission should have been required to investigate every alleged
incident, appellant cites no authority for placing such a burden on the commission. The
commission investigated Emerald's actions and adduced facts from its investigation
pursuant to R.C. 4112.05. As explained in Hous. Advocates, we have no evidence to
review to determine what specific witnesses the commission relied on and whether the
evidence was substantial. We have only the letter of determination. From that letter, we
see nothing that would indicate the commission acted in an arbitrary, capricious or
irrational fashion. The letter does not indicate appellant complained to Emerald about
any harassing behaviors by female patrons or that Emerald was discriminating or
retaliating against him based on appellant's complaints about such alleged behavior.
Thus, the record before us is devoid of anything to substantiate appellant's claim that he
engaged in a protected activity or that Emerald engaged in discriminatory behavior based
on any protected activity.
{¶ 13} Furthermore, with regard to appellant's due process argument that the
commission's findings were in violation of his constitutional due process rights to be put
on notice of the specific patrons who complained about his behavior and their specific
complaints, we disagree. In addressing a due process argument, there is a two-part
No. 19AP-172 6
inquiry: the court must determine whether the party was deprived of a protected interest
and, if so, what process was his due. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428
(1982). In Logan, the protected property interest that was deprived was Logan's right,
created by Illinois law, to have a factfinding conference convene to consider his
employment discrimination charge within 120 days after he filed said charge. The present
case is unlike Logan, in that appellant was not deprived of the commission's adjudicatory
procedures. See id. at 429-30. Appellant would suggest he has a protected property
interest in being put on notice of the specific patrons who complained about his behavior
and their specific complaints. However, the United States Supreme Court has noted "[t]he
hallmark of property * * * is an individual entitlement grounded in state law, which
cannot be removed except for 'just cause.' " Id. at 430. Ohio law has not conferred on
appellant an individual entitlement to access such specific evidence at the preliminary
investigation stage of his discrimination charge. As we noted above, the Supreme Court of
Ohio found in McCrea that, prior to the filing of a complaint, the procedure is informal
and in the nature of an ex parte proceeding, and the commission does not seek to receive
formal evidence during the investigative stage. Appellant has cited no authority
demonstrating the commission is required to perform the specific type of investigation
and inquiry that he suggests or to provide him such specific information if it did.
Therefore, we find appellant did not possess any protected property interest susceptible of
deprivation without due process of law. For the foregoing reasons, we overrule appellant's
first, second, and third assignments of error.
{¶ 14} Accordingly, appellant's three assignments of error are overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
KLATT, P.J., and NELSON, J., concur.
____________________