[Cite as Cox v. Dayton Pub. Schools Bd. of Edn., 2019-Ohio-2591.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 GEORGIA COX                                          :
                                                      :
         Plaintiff-Appellant                          :    Appellate Case No. 28261
                                                      :
 v.                                                   :    Trial Court Case No. 2018-CV-2372
                                                      :
 DAYTON PUBLIC SCHOOLS BOARD                          :    (Civil Appeal from
 OF EDUCATION, et al.                                 :    Common Pleas Court)
                                                      :
         Defendant-Appellee                           :


                                              ...........

                                              OPINION

                             Rendered on the 28th day of June, 2019.

                                              ...........

GEORGIA B. COX, 4191 Mapleleaf Drive, Dayton, Ohio 45416
    Plaintiff-Appellant, Pro Se

PATRICK M. DULL, Atty. Reg. No. 0064783, 30 E. Broad Street, 15th Floor, Columbus,
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, 312 N. Patterson Boulevard, Suite 200, Dayton, Ohio 45402
     Attorneys for Defendant-Appellee, Dayton Public Schools Board of Education

                                              .............
                                                                                        -2-


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-


      {¶ 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:

      FINDINGS OF FACT:

      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.

      DECISION:
                                                                                        -4-


       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
                                                                                          -5-


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
                                                                                            -6-


       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
                                                                                            -7-


(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 trial court. The trial court granted

this motion.

       {¶ 11} On October 15, 2018, an OCRC filed an updated brief asking that it

“supplant its earlier one.” In this brief, The OCRC argued that the trial court should only

examine the OCRC’s June 7, 2018 “Letter of Determination upon Reconsideration,”

because Cox’s petition relied solely upon the OCRC’s final order and its “discretionary

decision” that DPS did not engage in a “ ‘new’ employment action” against Cox within the

six-month period prior to the filing of her charge.” The OCRC asserted that it “decided

that arguments made by [DPS] to an appellate court were not ‘new’ employment actions

against Ms. Cox,” and this decision was why OCRC “opted not to sue.” The OCRC also

asserted that its decision was “not a legal finding on the underlying merits of the

allegations in the charge * * * [but] it simply disclose[d] the [OCRC]’s reason for not issuing

an administrative complaint accusing an employer of unlawful discrimination.”             The

OCRC argued that it “sufficiently explained its decision not to sue when it determined

[DPS’s] August 2017 appellate brief was not a ‘new act’ of employment harm, but was

instead just a legal argument proposing that re-employment was a moot point due to the

revocation of Ms. Cox[’s] teaching license, and that because it sufficiently explained its
                                                                                           -8-


decision, the decision was “not ‘unlawful, irrational, arbitrary, or capricious.’ ”

           {¶ 12} On October 29, 2018, Cox filed an objection to OCRC’s motion to strike

attachments 1 & 3 to her brief, asserting that the court ruled on OCRC’s motion without

allowing her time to respond, in violation of Mont. Co. C.P.R. 2.05(B)(2)(b). She further

argued that attachment 1 was “proof that she did not file a charge regarding a termination

matter, which had occurred years ago,” but that the charge “filed in December 2017, was

specific to action that occurred in August 2017, concerned a refusal to hire matter, and

was timely filed.” Cox attached her Charge of Discrimination, its addendum, and DPS’s

August 21, 2017 brief.

           {¶ 13} Also on October 29, 2018, Cox filed a reply brief, wherein she asserted that

“the application documents need to be examined. It is only by examining all pages of

the application that the court can justly ascertain an objective standard of truth regarding

what Appellant applied for.” Cox argued that she was not rehired “under the pretext that

her license had been revoked,” and the “charge filed with the OCRC spoke to a refusal to

hire.” She argued that in “2013 the pattern of discrimination involved a contractual

matter. Here the pattern does not and the OCRC and EEOC are authorized to grant

relief.”

           {¶ 14} On October 30, 2018, the OCRC filed a motion to strike “Discovery

Documents 1 and 2,” which were attached to Cox’s October 29, 2018 motion; these were

the charge Cox filed with the OCRC in December 2017 and DPS’s brief filed in Cox, 2d

Dist. Montgomery No. 27613, 2018-Ohio-2656, which previously had been attached to

Cox’s brief as attachments 1 and 3 and had been stricken from the record by the trial

court.
                                                                                            -9-


       {¶ 15} On November 13, 2018, Cox opposed the motion and also filed a motion to

compel OCRC to submit evidence in support of its findings.            She asserted that the

information the OCRC “gave to support its findings relate back directly to the charge

application, and the Board’s August 21, 2017 Brief that triggered the charge” and that the

documents would prove that the OCRC’s dismissal of the charge was “neither legal, nor

rational, but [was] indefensible, unlawful, irrational, arbitrary and capricious; and must

therefore, be disturbed by being set aside.” Cox further argued that “[s]uppressing,

striking, or in any other way disallowing evidence proving [OCRC’s] falsehood, would be

an abuse of discretion, and miscarriage of justice.” Specifically, Cox argued that, in

OCRC’s June 7, 2018 Letter of Determination, it stated that she “did not apply for a

position for which [DPS] denied her rehire as alleged by Charging Party,” and that the trial

court was required to “establish the truth about the disputed fact, and substantiate just

what the claim on the charged application was before it accept[ed] the [OCRC’s] decision

as lawful and reliable.” Cox asserted that the OCRC’s opposition to the documents

suggested “a lack of sufficient reason for believing the basis of their statement regarding

their findings of fact.”

       {¶ 16} On November 15, 2018, the OCRC opposed Cox’s motion to compel it to

submit evidence. Citing R.C. 4112.05(H), the OCRC asserted that the trial court’s review

was “limited to determining whether the [OCRC] satisfied its statutory obligation of

‘stat[ing] its findings of fact’ that support its decision not to issue a complaint.”   It also

asserted that, “[i]n addition to Ms. Cox’s arguments being wrong, this Court has already

struck the very documents she seeks to compel, and there is currently a motion to strike

these same documents from another of Ms. Cox’s filings.”
                                                                                        -10-


       {¶ 17} On November 19, 2018, the court granted OCRC’s motion to strike

“Discovery Documents 1 and 2.” The trial court noted that this court has held that review

of additional documents during the judicial review of an OCRC decision pursuant to R.C.

4112.06(D) is only permissible when the OCRC has held an evidentiary hearing. As

such, the court concluded that the documents attached to Cox’s October 29, 2018 motion

should be stricken from the record.

       {¶ 18} On November 26, 2018, Cox filed a reply to the OCRC’s response to her

motion to compel. On November 28, 2018, the court overruled Cox’s motion to compel

OCRC to submit evidence, noting that “the court is limited to the record from the

administrative hearing officer.”

       {¶ 19} On December 14, 2018, the trial court affirmed the decision of the OCRC,

basing its decision on the record provided by the OCRC, which consisted of the OCRC’s

June 7, 2018 letter of determination upon reconsideration; it did not consider any

“supplemental evidence existing outside of the record provided by either party.” The

court looked to R.C. 4112.05 to determine whether the OCRC “sufficiently explained the

rationale for failing to find discrimination had occurred” by DPS. The court noted that the

OCRC determined that it did not have jurisdiction over Cox’s allegations because “she

was not subject to a new harm that occurred within six months from the date she filed her

claim,” and it “did not issue an administrative complaint or hold an evidentiary hearing”

concerning Cox’s allegations.      The court noted that the “Ohio Supreme Court has

determined [the OCRC] has discretion whether to issue a complaint after an

investigation.”

       {¶ 20} The trial court further concluded as follows:
                                                                                           -11-

                Utilizing the standard set forth in McCrea, the court’s review of the

         [OCRC’s] findings will focus on whether or not the decision is “unlawful,

         irrational, arbitrary or capricious.” The [OCRC’s] decision states that [Cox]

         has not been subject to a new harm within six months of filing her charge,

         as [Cox’s] termination occurred in 2013. [Cox] contends that “objecting to

         rehire her, through tactics to obstruct justice, occurred within the six-month

         statute of limitation.” Also, [Cox] argues that “[DPS] was objecting to rehire

         her based on arbitrary, capricious, and retaliatory measures linked to her

         race, and sex which just also happened to be reasons she had been

         targeted for termination initially.” After reviewing the transcript,1 the court

         finds that the evidence supports the [OCRC’s] finding that [Cox] had not

         been subjected to a new harm within six months of filing her charge and

         that [Cox’s] complaint stems from the 2014 legal action filed against the

         school regarding her termination. Furthermore, the [OCRC] stated that

         [Cox] did not apply for a position for which [DPS] denied her rehire as

         alleged. Upon a review of the transcript and the arguments of the parties,

         the court finds that the [OCRC’s] decision was not unlawful, irrational,

         arbitrary, or capricious and was supported by competent, probative

         evidence. * * *

         {¶ 21} Cox asserts four assignments of error on appeal, which we will consider

together. They are as follows:

                THE TRIAL COURT ERRED IN CONFLATING QUESTIONS OF


1
    The record does not contain a transcript.
                                                                                          -12-


       LAW UNDER R.C. SECTIONS 3319 & 2711 TRIGGERED IN JANUARY

       2013 TERMINATION WITH CONTROVERSY OF DISCRIMINATION

       UNDER R.C. SECTION 4112 FILED IN DECEMBER 2017.

              THE TRIAL COURT ERRED IN FAILING TO ADMIT INTO

       EVIDENCE AND CONSIDER THE MATERIAL IMPACT OF THE

       EVIDENCE PROVING APPELLEE’S CLAIM THAT THE COMMISSION

       LACKED JURISDICTION IS UNSUPPORTED {SIC].

              THE TRIAL COURT ERRED IN GIVING DEFERENCE TO THE

       APPELLEE’S FALSE ASSERTION, AND RELIED ON THE ADVERSE

       IMPACT OF THE FALSEHOOD TO REACH ITS DECISION.

              THE TRIAL COURT ERRED IN ITS INTERPRETATION AND

       APPLICATIONS OF DECISIONS AND RULINGS IN MCCREA V. CIV.

       RIGHTS COMM., 20 OHIO APP.3D 314, 317, 487 N.E.2D 143 (1984) AND

       STATE EX REL. WESTBROOK V. OHIO CIV. RIGHTS COMM’N., 17 OHIO

       ST.3D 215, 217, (1985).

       {¶ 22} In her first assignment of error, Cox asserts that the question of law that

was raised with the trial court concerned the charge she filed with the OCRC in December

2017, which was triggered by an event that occurred in August 2017. She asserts that it

did not concern the termination of her teaching contract in January 2013, her June 28,

2013 conviction, or her subsequent sentence. According to Cox, DPS explicitly stated

their “mootness claim” arose from “the outcome of a criminal trial and not a civil-arbitration

matter.”   She argues that the trial court’s “failure to look to the record during its

administrative review allowed the error to slip by unaddressed and adversely impacted
                                                                                          -13-


the court’s decision and order.” Cox asserts that the OCRC and the trial court relied

upon the “mootness claim” in reaching their decisions.

       {¶ 23} Cox also argues that the trial court “created an artificial and misleading

discrimination charge date” by treating January 2013 as the “charge trigger date,” rather

than December 2017. Cox asserts that the “mootness claim was used to refuse to rehire

her” after DPS’s “defenses under §§ 3319 & 2711 had run their course, and to offer

legalistic reason and basis on which to base a reason to rationalize her unjust termination.

The arbitration and statutory hearing had nothing to do with a mootness doctrine.” Cox

directs our attention to this court July 6, 2018 opinion, Cox, 2d Dist. Montgomery No.

27613, 2018-Ohio-2656.

       {¶ 24} Cox asserts that the DPS’s 2017 brief in a prior appeal clearly stated that

“the 2013 criminal charge and conviction were what caused the revoking of Ms. Cox’s

teaching license.” Cox argues that the “introduced ‘mootness claim’ is not only linked to

the outcome of an unjust criminal trial, raised as a pretext to not rehire Ms. Cox; it is

further veiled in its discriminatory nature by the use of an African American lawyer to mask

its intent.” Cox argues that the introduction of the mootness claim in the brief “marked a

new harm”; therefore, the date that claim was raised was the correct and applicable date

of the alleged unlawful discriminatory practice, and not some date tied to unrelated issues

earlier.” Cox argues that the OCRC “did not lack jurisdiction over the matter.”

       {¶ 25} Cox argues that the OCRC’s “apparent perception that it had discretion to

act is not consistent with law. Options the statute affords the Commission are to act

proactively, or to choose to act either informally or formally R.C. §§ 4112.05(A)(2) or (B)(2)

[sic]. The decision to do nothing, formulate a misrepresentation and offer it as factual is
                                                                                           -14-


not an option.”

       {¶ 26} Cox asserts that DPS “knows Ms. Cox did not * * * assault anyone as was

alleged,” that she was a well-trained educator, and that she could have served DPS in

“many other ways” than in a classroom. Cox argues that “the finding [in one of our prior

opinions] to vacate the arbitrator award did not necessitate that Ms. Cox return to the

classroom; what the decision represented most of all was that she had regained her right

to gainful employment.”       Finally, Cox asserts that OCRC should have “focused its

attention” on the “unlawful discriminatory action that occurred on August 21, 2017,” rather

than asserting “the mootness claim” and choosing “to make the prior incident its starting

point, and in so doing created a quagmire.”

       {¶ 27} In her second assignment of error, Cox asserts that “[c]ritical to the decision

making and judgment in this matter is the need to determine the truth of the charge filed

in December 2017. She argues that a “decision-making party would need to study and

appreciate” the charge Cox filed in December 2017 and the DPS’s August 2017 brief that

precipitated the charge “to reach a just decision.”

       {¶ 28} In her third assignment of error, Cox asserts that OCRC “failed to exercise

its mandate. It unjustifiably claimed that it lacked jurisdiction” to, in effect, prevent DPS’s

discriminatory practices.

       {¶ 29} In her fourth assignment of error, Cox asserts that applying “the legal

standard stipulated in the McCrae ruling,” as advocated by DPS, would mean the court’s

examination of the OCRC’s findings of fact would be “limited,” rather than “relatively

exhaustive.”

       {¶ 30} The OCRC responds that Cox’s “brief addresses many issues unrelated to
                                                                                             -15-


this appeal. Indeed, the bulk of her brief addresses her employment termination, the

arbitration process contesting that termination, and her conviction for assault. Although

she tries to inject those issues here, this appeal does not directly concern any of them.”

The OCRC asserts that Cox believes that the trial court’s May 15, 2017 decision “was, in

effect, an order forcing the School to rehire her. * * * In fact, the court did not order rehire;

instead, it held that Ms. Cox did not waive statutory review of her termination, and so she

should be afforded that review on remand.” According to the OCRC, after this court

reversed the trial court, “the original arbitrator’s decision affirming Ms. Cox’s termination

was reinstated.”

       {¶ 31} The OCRC asserts that R.C. 4112.05(B)(1) required Cox to file her charge

within six months of an alleged unlawful employment practice, but the OCRC concluded

that no adverse employment action had occurred within the six months preceding her

December 2017 charge.         The OCRC asserts that the trial court did not abuse its

discretion when it affirmed the OCRC’s decision.

       {¶ 32} The OCRC argues that DPS’s argument in its August 21, 2017 brief “was

not an employment harm.”         OCRC further argues that, because it did not hold an

evidentiary hearing or issue a complaint, “there was no ‘evidence’ for the lower court to

review on appeal,” and Cox was properly prohibited from attempting to introduce so-called

“additional evidence.”

       {¶ 33} The OCRC asserts that Cox’s third assignment of error must be overruled

“[b]ecause of the ‘limited examination’ required when [the OCRC] has not held an

evidentiary hearing.”

       {¶ 34} Finally, regarding her fourth assignment of error, OCRC asserts that Cox
                                                                                          -16-

“wants the reviewing court to review [the OCRC’s] underlying investigation, rather than

review the findings of fact that [it] is required by statute to provide,” but she gives “no

reason for this ‘exhaustive’ review,” and McCrea requires a limited review.

       {¶ 35} In reply, Cox asserts that the OCRC “was obliged to make a ‘probable’ or

‘not probable’ decision”; it did not do so and thus acted unlawfully. “Instead it made a

‘no jurisdiction’ determination,” which was not one of the options available to it.

According to Cox, the determination of lack of jurisdiction was unlawful because it was

“not based on direct evidence noted on the charge” she filed with the OCRC; it was “based

on alternative relevant facts that [the OCRC] formulated.” Cox also asserts that,

notwithstanding the OCRC’s assertions that this case does not relate to her termination,

arbitration, or conviction, “it would have been negligent to not give them the attention they

were given. The lower level court introduced them as contextual issues, and enjoyed

their prejudicial impact in its decision-making.” She asserts that the OCRC failed to

provide “a reasoned analysis of how and why it had linked” Cox’s 2017 charge with the

2013 and 2014 incidents.

       {¶ 36} Although dismissed from the case, DPS filed a brief. However, since DPS

is not a party to this appeal, we decline to consider its brief.

       {¶ 37} We agree with the OCRC that Cox’s arguments regarding her conviction,

termination, and arbitration are not properly before us, and we will not consider them.

       {¶ 38} R.C. 4112.05 provides:

              (A)(1) The commission, as provided in this section, shall prevent any

       person from engaging in unlawful discriminatory practices.

              ***
                                                                                   -17-


        (B)(1) Any person may file a charge with the commission alleging

that another person has engaged or is engaging in an unlawful

discriminatory practice. In the case of a charge alleging an unlawful

discriminatory practice described in division (A), (B), (C), (D), (E), (F), (G),

(I), or (J) of section 4112.02 or in section 4112.021 or 4112.022 of the

Revised Code, the 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. * * *

       ***

        (2) 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. * * *

       (3)(a) Unless it is impracticable to do so and subject to its authority

under division (B)(3)(d) of this section, the commission shall complete a

preliminary investigation of a charge filed pursuant to division (B)(1) of this

section that alleges an unlawful discriminatory practice described in division

(H) of section 4112.02 of the Revised Code, and shall take one of the

following actions, within one hundred days after the filing of the charge:

       (i) Notify the complainant and the respondent that it is not probable

that an unlawful discriminatory practice described in division (H) of section

4112.02 of the Revised Code, has been or is being engaged in and that the

commission will not issue a complaint in the matter;

       (ii) Initiate a complaint and schedule it for informal methods of
                                                                                       -18-


      conference, conciliation, and persuasion, or alternative dispute resolution;

              (iii) Initiate a complaint and refer it to the attorney general with a

      recommendation to seek a temporary or permanent injunction or a

      temporary restraining order. * * *

              ***

      {¶ 39} As noted by the Ohio Supreme Court:

              We would emphasize that R.C. 4112.05(B) states that the

      commission may initiate a preliminary investigation. Thus, the preliminary

      investigation is not mandatory. R.C. 4112.05(B) also provides actions that

      should be taken subsequent to this investigation.          These additional

      requirements need be satisfied only if the preliminary investigation is

      initiated.    If no preliminary investigation is held, then the additional

      requirements need not be met. Since the commission has discretion in

      determining whether an investigation must be made, there is no absolute

      duty to make a probable cause determination. Likewise, the commission

      has discretion in determining whether to issue a complaint after an

      investigation.

State ex rel. Westbrook v. Ohio Civ. Rights Comm., 17 Ohio St.3d 215, 216, 478 N.E.2d

799 (1985).

      {¶ 40} R.C. 4112.06, which governs judicial review of a final order of the OCRC,

provides in part that 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
                                                                                         -19-


commission.” R.C. 4112.06(D). This provision only applies, however, when the OCRC

has held an evidentiary hearing. Murray v. Ohio Civ. Rights Comm., 2d Dist. Montgomery

No. 9389, 1986 WL 2653, *5.

       {¶ 41} We agree with the trial court and the OCRC that where, as here, the OCRC

did not hold an evidentiary hearing or issue an administrative complaint, the standard of

review is set forth in McCrea as follows:

              * * * In order to successfully withstand judicial review, the refusal to

       issue a complaint cannot be based upon unlawful, irrational or arbitrary

       reasons. Thus, except in those rare instances where the commission’s

       factual findings can be challenged without resort to a re-evaluation by the

       court of the evidence, the court’s review should be confined to a limited

       examination of the commission’s decision for the purpose of determining

       whether the findings of fact show sufficient justification for its decision not

       to issue a complaint. Unless the reviewing court finds that the findings of

       fact show that the commission’s decision not to issue a complaint is

       unlawful, irrational, arbitrary or capricious, the court should not disturb the

       commission’s action.

McCrea, 20 Ohio App.3d at 317, 486 N.E.2d 143.

       {¶ 42} We conclude that the trial court correctly confined its review to the record

as filed by the OCRC, namely the June 7, 2018 Letter of Determination upon

Reconsideration. We further conclude that the trial court did not err in applying the

unlawful, irrational, arbitrary, or capricious standard of review to the OCRC’s order

dismissing Cox’s charge of discrimination. Finally, we conclude that the trial court did
                                                                                           -20-


not err by ruling that the OCRC’s order was not unreasonable, irrational, arbitrary or

capricious.    Cox asserted that “an unlawful discriminatory practice” occurred on

December 21, 2017, when DPS filed its brief asserting that her license had been

permanently revoked, rendering further review of her termination moot. The OCRC

determined that DPS’s argument was not a “discrete and new act of harm” to Cox over

which it had jurisdiction, and the trial court correctly found sufficient justification for the

OCRC’s decision not to conduct an evidentiary hearing or issue a complaint.

       {¶ 43} For the foregoing reasons, Cox’s assigned errors are overruled, and the

judgment of the trial court is affirmed.



                                       .............



WELBAUM, P.J. and HALL, J., concur.




Copies sent to:

Georgia B. Cox
Patrick M. Dull
Beverly A. Meyer
Jason R. Stuckey
Hon. Mary Katherine Huffman
