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Cox v. Dayton Public Schools Board of Education

Court of Appeals of Ohio, Second District, Montgomery

June 28, 2019

GEORGIA COX Plaintiff-Appellant

          Civil Appeal from Common Pleas Court No. 2018-CV-2372

          GEORGIA B. COX, Ohio 45416 Plaintiff-Appellant, Pro Se

          PATRICK M. DULL, Atty. Reg. No. 0064783, 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, Ohio 45402 Attorneys for Defendant-Appellee, Dayton Public Schools Board of Education


          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} 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:

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.
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 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 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 (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 ...

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