Smart v. Civ. Rights Comm.

[Cite as Smart v. Civ. Rights Comm., 2012-Ohio-2899.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MORESETTA SMART JUDGES:
Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellant Hon. Sheila G. Farmer, J.
Hon. Julie A. Edwards, J.
-vs-
OHIO CIVIL RIGHTS COMMISSION, Case No. 2011CA00246
ET AL.
Defendants-Appellees OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2011CV01038
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 25, 2012
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
DOUGLAS C. BOND PATRICK M. DULL
700 Courtyard Centre 30 East Broad Street
116 Cleveland Avenue, NW 15th Floor
Canton, OH 44702 Columbus, OH 43215-3428
ARETTA K. BERNARD
KAREN D. ADINOLFI
222 South Main Street
Akron, OH 44308
Stark County, Case No. 2011CA00246 2
Farmer, J.
{¶1} On July 9, 2010, appellant, Moresetta Smart, filed a discrimination
complaint with appellee, the Ohio Civil Rights Commission, against appellee, Aultman
Hospital, alleging invasion of privacy, HIPPA violations, and misuse of medical
information. On November 18, 2010 and February 24, 2011, appellee Commission filed
determinations denying appellant's claims, finding no probable cause. Appellant filed an
administrative appeal with the Court of Common Pleas of Stark County, Ohio. By
judgment entry filed September 30, 2011, the trial court denied appellant's appeal,
finding appellee Commission did not act in an arbitrary, capricious, or irrational manner.
{¶2} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶3} "THE OHIO CIVIL RIGHTS COMMISSION'S DETERMINATION OF NO
PROBABLE CAUSE IS UNLAWFUL, UNREASONABLE AND AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE BASED UPON THE RECORD IN THIS
CASE."
I
{¶4} Appellant claims the decision of appellee Commission was against the
manifest weight of the evidence. We disagree.
{¶5} Specifically, appellant argues appellee Commission failed to disclose the
facts or the items reviewed, and R.C. 4112.06 requires a full review of the investigative
file.
{¶6} First, we will address the appropriate standard of review. Appellant
argues the standard of review on a finding of no probable cause is the same as a
Stark County, Case No. 2011CA00246 3
finding on a post-probable cause decision: the reliable, probative, and substantial
evidence standard. Cleveland Civil Service Commission v. Ohio Civil Rights
Commission (1991), 57 Ohio St.3d 62. In Ashton v. Ohio Civil Rights Commission,
(1990), Fairfield App. No. 21-CA-89, we reviewed a probable cause determination and
cited and adopted the holding of our brethren from the Ninth District in McCrea v. Ohio
Civil Rights Commission (1984), 20 Ohio App.3d 314, syllabus:
{¶7} "With respect to judicial review, the standard of reliable, probative and
substantial evidence is applicable only to post-complaint decisions and orders of the
Ohio Civil Rights Commission. The applicable standard of review for a court of a pre-
complaint decision by the commission 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.)
{¶8} The McCrea court explained the following at 316-317:
{¶9} "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. 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. A determination of no probable cause is one which
cannot, therefore, be reviewed on the basis of reliable, probative and substantial
evidence. This standard can be applied by a reviewing court only to orders which come
about subsequent to or as the result of an evidentiary hearing. In the absence of an
evidentiary hearing, there is no evidence to review on appeal-reliable, probative,
substantial, or otherwise. To apply this standard to a probable cause determination
Stark County, Case No. 2011CA00246 4
would be to create a burden upon the commission where clearly none was
contemplated by the legislature."
{¶10} See, also, Kutz v. Ohio Education Association, et al. (1995), Franklin App.
No. 94APE06-781, wherein our brethren from the Tenth District reviewed a probable
cause determination and held the trial court "correctly relied only upon the findings of
fact from the commission's determination, rather than examining the full record of the
investigation, as urged by appellant."
{¶11} In the case sub judice, appellee Commission determined the following in
its determination dated February 24, 2011:
{¶12} "After receiving the charge, the Commission conducted an investigation
into Charging Party's allegation against Respondent. During its investigation, the
Commission gathered relevant information and contacted relevant witnesses. Based
upon its investigation, the Commission found no information or records that would raise
an inference that Respondent unlawfully discriminated against Charging Party. As a
result, the Commission entered into its records a finding of No Probable Cause.
{¶13} "After the finding of No Probable Cause, Charging Party applied for
reconsideration of the Commission's decision. The Commission granted Charging
Party's application, and has conducted a reconsideration of its original No Probable
Cause decision.
{¶14} "FINDING OF FACT:
{¶15} "Upon reconsideration, the Commission re-examined the information
gathered during its original investigation, and also reviewed additional information
provided by the parties. The reconsideration process also included a review of all the
relevant information and relevant witnesses provided by the parties. After
Stark County, Case No. 2011CA00246 5
reconsideration, the Ohio Civil Rights Commission still found no information or records
that would raise and (sic) inference that Respondent unlawfully discriminated against
Charging Party.
{¶16} "DECISION
{¶17} "Based upon its original investigation and the subsequent reconsideration,
the Ohio Civil Rights Commission has determined that there is No Probable Cause to
believe that Respondent engaged in an unlawful discriminatory practice under section
4112 of the Ohio Revised Code and hereby orders that this matter be DISMISSED."
{¶18} In its judgment entry filed September 30, 2011, the trial court found the
following:
{¶19} "Pursuant to the McCrea standard as refined by Kutz, the Court finds that
the OCRC's decision is lawful. The decision explicitly found that no information or
records before it raised any inference that Aultman Hospital unlawfully discriminated
against Ms. Smart. Finding no evidence of unlawful discrimination, the OCRC correctly
dismissed Ms. Smart's charge of such discrimination as no probable cause existed that
might support a finding that Aultman Hospital had engaged in such conduct.
{¶20} "The record in the present action lacks any evidence that the OCRC acted
inappropriately. Therefore, this Court finds the OCRC acted appropriately and did not
act in an arbitrary, capricious, or irrational fashion."
{¶21} Although we can understand appellant's frustrations with the lack of a
record to support her argument that probable cause did exist, we nevertheless find the
only record is appellee Commission's decision and it does not include the various items
within its investigative file. In addition, in reviewing the factual issues argued in the
claims against appellee Aultman, we find the claims (invasion of privacy, HIPPA
Stark County, Case No. 2011CA00246 6
violations, misuse of medical information) do not qualify under the definition of "Unlawful
discriminatory practices" enumerated in R.C. 4112.02.
{¶22} The sole assignment of error is denied.
{¶23} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Farmer, J.
Delaney, P.J. and
Edwards, J. concur.
s/ Sheila G. Farmer_______________
_s/ Patricia A. Delaney____________
_s/ Julie A. Edwards______________
JUDGES
SGF/sg 516
[Cite as Smart v. Civ. Rights Comm., 2012-Ohio-2899.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MORESETTA SMART :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
OHIO CIVIL RIGHTS COMMISSION, :
ET AL. :
:
Defendants-Appellees : CASE NO. 2011CA00246
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to
appellant.
s/ Sheila G. Farmer_______________
_s/ Patricia A. Delaney____________
_s/ Julie A. Edwards______________
JUDGES