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Hambuechen v. 221 Market North, Inc.

Court of Appeals of Ohio, Fifth District, Stark

December 11, 2017

ANA M. HAMBUECHEN Complainant - Appellee
v.
221 MARKET NORTH, INC., DBA NAPOLI'S ITALIAN EATERY Respondent- Appellant

         Appeal from the Stark County Court of Common Pleas, Case No. 2012-CV-3644

          For Complainant-Appellee Ohio Civil Rights Commission WAYNE D. WILLIAMS Principal Assistant Attorney General

          For Complainant-Appellee TODD W. EVANS

          For Respondent-Appellant STANLEY R. RUBIN

          JUDGES: Hon. John W. Wise, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, J.

          OPINION

          Baldwin, J.

         {¶1} Respondent-appellant 221 Market Avenue North, Inc. appeals from the October 31, 2016 Judgment Entry and Order from the Stark County Court of Common Pleas.

         STATEMENT OF THE FACTS AND CASE

         {¶2} On March 15, 2007, appellee Ana Hambuechen ("Hambuechen") filed a charge affidavit with appellee Ohio Civil Rights Commission ("Commission") alleging that her employment as a server by appellant, 221 Market North, Inc., d.b.a. Napoli's Italian Eatery ("Napoli's"), had been unlawfully terminated because she became pregnant. The Commission investigated the complaint and, on July 19, 2007, found probable cause existed that an unlawful employment practice had occurred in violation of R.C. 4112.02(A).

         {¶3} On September 13, 2007, the Commission filed a complaint and notice of hearing, requesting a finding that appellant had violated R.C. 4112.02(A). Appellant filed an answer on October 31, 2007. The matter proceeded to a trial before an administrative law judge ("ALJ") on November 19, 2008.

         {¶4} The ALJ found that the employer had discriminated against Hambuechen on the basis of sex and recommended that the Commission find that appellant had violated the law by firing Hambuechen. The ALJ further recommended the following: the Commission order appellant to cease and desist from all discriminatory practices in violation of R.C. 4112; the Commission order appellant to make an offer of employment to Hambuechen for the position of server; and the Commission order appellant to pay Hambuechen back pay at the amount she would have earned had she been employed as a server as of December 6, 2006 and until the offer of employment, less interim earnings.

         {¶5} Appellant filed objections to the ALJ's report and recommendations on April 9, 2012. The Commission adopted the ALJ's recommendation and, on November 15, 2012, issued a final order adopting the ALJ's report.

         {¶6} On November 26, 2012, appellant filed a Petition for Judicial Review pursuant to R.C. 4112.06 with the Stark County Court of Common Pleas, arguing that the Commission's order was contrary to law, constituted an abuse of discretion, and was not supported by reliable and probative evidence. The Commission filed a Motion to Dismiss on December 28, 2012, contending that appellant had failed to initiate service on the parties through the Clerk of Courts within thirty (30) days. The trial court granted the Commission's Motion to Dismiss on February 19, 2013.

         {¶7} Appellant then appealed the trial court's February 2013 Judgment Entry to this Court. In Hambuechen v. 221 Market North, Inc., 5th Dist. Stark No. 2013CA00044, 2013-Ohio-3717, this Court reversed the decision of the trial court and found that the trial court had erred in dismissing appellant's Petition for Judicial Review on the basis that service of the petition was not obtained through the Clerk of Courts within thirty (30) days. The Ohio Supreme Court affirmed the judgment in Hambuechen v. 221 ...


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