[Cite as Schuler v. Ohio Civ. Rights Comm., 2017-Ohio-2602.]


                                  IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   TRUMBULL COUNTY, OHIO


PAUL SCHULER,                                          :       OPINION

                 Petitioner-Appellant,                 :
                                                               CASE NO. 2016-T-0075
        - vs -                                         :

OHIO CIVIL RIGHTS COMMISSION,                          :

                 Respondent-Appellee.                  :


Administrative Appeal from the Trumbull County Court of Common Pleas, Case No.
2002 CV 02715.

Judgment: Affirmed.


Michael D. Rossi, Guarnieri & Secrest, P.L.L., 151 East Market Street, P.O. Box 4270,
Warren, OH 44482 (For Petitioner-Appellant).

Mike DeWine, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th
Floor, Columbus, OH 43215, and David A. Oppenheimer, Assistant Attorney General,
State Office Building, 11th Floor, 615 West Superior Avenue, Cleveland, OH 44113
(For Respondent-Appellee).


DIANE V. GRENDELL, J.

        {¶1}     Petitioner-appellant, Paul Schuler, appeals from the Judgment Entry of the

Trumbull County Court of Common Pleas, affirming the respondent-appellee, the Ohio

Civil Rights Commission’s, decision finding no probable cause to support Schuler’s

charge of discrimination. The issue to be determined in this case is whether the trial

court erred in failing to discuss certain applicable case law and by relying on federal
court decisions finding the program at issue to be non-discriminatory. For the following

reasons, we affirm the judgment of the lower court.

      {¶2}   On November 29, 2001, Schuler filed a charge of discrimination with the

Ohio Civil Rights Commission against his employer, General Motors/Delphi Packard

Electric Systems.   He alleged that, in 1995, he had applied for an apprenticeship

position, but was not given the opportunity to take the apprenticeship test or join the

program. He contended that because of his qualifications, he should have been able to

“bypass the random draw, as were other women and minority candidates with similar

high qualifications,” and that the random draw prevented him from participating. He

believed he was denied the opportunity to participate in the program because he is a

Caucasian male.

      {¶3}   On August 1, 2002, the Commission found it “NOT PROBABLE” that GM

engaged in an unlawful practice under Revised Code Section 4112 and did not issue a

complaint. It found that “available evidence substantiates that [GM’s] apprenticeship

training program as it relates to female and minority applicants has been the subject of

several previous complaints before the Commission as well as civil litigation which have

found it to be in compliance with both state and federal law.” It also found that evidence

showed “the vast majority of applicants” selected to be in the apprenticeship program

were Caucasian males.

      {¶4}   Schuler moved for reconsideration of the Commission’s finding.           The

Commission reaffirmed its decision on October 22, 2002, and again ordered the case

dismissed.

      {¶5}   Schuler appealed the Commission’s determination to the Trumbull County

Court of Common Pleas, pursuant to R.C. 4112.06, on November 19, 2002. In his

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March 31, 2003 Petitioner’s Brief, Schuler argued that women and minorities are

permitted to bypass a random draw to take the apprenticeship test and are subject to

different testing requirements.       He asserted that the Commission’s decision was

arbitrary, in that it relied on past decisions of other courts rather than reviewing the

process used by GM in this case.

          {¶6}   The Commission’s April 14, 2003 Brief argued that the same program at

issue had been upheld in various courts.

          {¶7}   Supplemental briefing by both parties was filed in April and May of 2016.

          {¶8}   The trial court issued a Judgment Entry on July 22, 2016, affirming the

decision of the Commission finding no probable cause and found that the Commission’s

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

          {¶9}   Schuler timely appeals and raises the following assignment of error:

          {¶10} “On RC §4112.06 judicial review of Respondent-Commission’s ‘Not

Probable’ determination and refusal to issue complaint, the trial court erred to affirm that

disposition.”

          {¶11} Pursuant to R.C. 4112.06(A), a party “claiming to be aggrieved by a final

order of the [Civil Rights Commission], including a refusal to issue a complaint, may

obtain judicial review thereof * * * in a proceeding * * * brought in the common pleas

court.”

          {¶12} “Upon review of a determination that no probable cause exists [to issue a

complaint], the common pleas court must determine whether [the] OCRC’s decision is

unlawful, irrational, and/or arbitrary and capricious.” Yeager v. Ohio Civ. Rights Comm.,

148 Ohio App.3d 459, 2002-Ohio-3383, 773 N.E.2d 1097, ¶ 12 (11th Dist.), citing

Coleman v. Warner, 82 Ohio App.3d 263, 265, 611 N.E.2d 878 (6th Dist.1992). “Absent

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an abuse of discretion, an appellate court will not disturb the trial court’s determination.”

Id.

       {¶13} Schuler argues that the Commission’s decision was unlawful because it

relied on prior federal court decisions which did not properly consider or make findings

under United Steelworkers of Am. v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d

480 (1979), and Johnson v. Transp. Agency, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d

615 (1987).

       {¶14} In reaching the determination in the present matter that it was not

probable that discrimination occurred, the Commission emphasized previous federal

court decisions which addressed the same GM program and found it not to discriminate

against white males. In Yeager v. Gen. Motors Corp., 265 F.3d 389 (6th Cir.2001), the

Sixth Circuit addressed the apprenticeship program in the GM Lordstown plant, where

white males were randomly selected to sit for the apprenticeship test while minorities

and women were permitted to skip the random selection process. Id. at 393. This is the

same process for the apprenticeship program described by Schuler in his filings. After

considering that program, the Sixth Circuit concluded that “there is no evidence that

GMC discriminates against white men in the administration of its apprentice program.”

Id. at 397. It has also been noted that the process at the Packard Plant, where Schuler

was employed, was “substantially similar.” Yeager v. Gen. Motors Corp., 67 Fed.Appx.

335 (6th Cir.2003).

       {¶15} Moreover, in Garnet v. Gen. Motors Corp., 114 F.Supp.2d 649 (N.D.Ohio

2000), the Court evaluated the apprenticeship program at the GM Packard plant and

rejected a claim of reverse discrimination against white males. It noted that “[m]erely

administering a program which affords women and minorities greater opportunities to

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obtain positions in a workforce that is dominated by white males does not rise to the

level of intentional discrimination against the majority.” Id. at 658. Also Garnet v. Gen.

Motors Corp., 19 Fed.Appx. 363, 366 (6th Cir.2001) (“the mere existence of” a program

presenting minorities and females the chance to improve their scores for apprenticeship

selection through a pre-apprenticeship program “is not direct evidence of reverse

discrimination”).

       {¶16} Given the similarities of these cases to the present one, and that this

matter has been addressed repeatedly both in federal and Ohio state appellate courts, it

was reasonable to consider these decisions. The same program has consistently been

found to be non-discriminatory and there is nothing in the record to demonstrate that

Schuler showed the program in this case differed from that in the aforementioned

matters. The trial court did not err in determining that the Commission’s consideration

of the decisions was lawful.

       {¶17} Schuler contends that these cases cannot be applied since they find only

that a “vast majority” of the GM workforce was white males, not that the percentage of

women and minorities was underrepresented.            Primarily, he contends that the

Commission, and the trial court, failed to find that there was a “manifest imbalance” or

underrepresentation of minorities and women in GM’s workforce when compared to the

area labor market, which is necessary “for a lawful voluntary affirmative action plan.”

He argues that such a finding is mandated under Weber and Johnson.

       {¶18} This exact issue was previously raised in this court in Koehler v. Ohio Civ.

Rights Comm., 11th Dist. Trumbull No. 2005-T-0149, 2006-Ohio-5178.            There, the

appellant argued that the Commission had failed to apply the “proper governing law,”

i.e., Weber and Johnson, in evaluating his claim for “discrimination alleged against a

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private employer with a voluntary affirmative action plan.” Id. at ¶ 9. Koehler arose from

the same claim as is at issue here: GM’s apprenticeship program and the ability of

women and minorities to bypass the random selection process to take the

apprenticeship test constituted reverse discrimination. Id. at ¶ 2.

       {¶19} As this court noted in Koehler, the trial court’s failure to set forth the

substantive principles in Johnson and Weber does not constitute an abuse of discretion

in affirming the Commission’s decision.      “So long as the Commission’s substantive

conclusion was fundamentally reasonable in light of the proper legal standard, the trial

court did not abuse its discretion in affirming the Commission’s decision.” Id. at ¶ 10.

       {¶20} Johnson requires a claimant to set forth a prima facie case for reverse

discrimination and, if such a showing is made, the burden is shifted to the employer to

set forth a non-discriminatory basis for its decision. Johnson, 480 U.S. at 626-627, 107

S.Ct. 1442, 94 L.Ed.2d 615. The burden then shifts back to the claimant to demonstrate

pretext. Id. Weber sets forth considerations to be made in relation to a challenge to an

employer’s affirmative action plan. “That is, a court will observe whether the employer’s

voluntary affirmative action plan is designed to ‘eliminate manifest racial imbalances in

traditionally segregated job categories.’” Koehler at ¶ 11, citing Weber, 443 U.S. at 197,

99 S.Ct. 2721, 61 L.Ed.2d 480. Again, if the claimant fails to make a prima facie case, it

follows that he or she cannot prevail on a claim.

       {¶21} As this court held in considering this issue, Weber and Johnson “set forth

a generic framework for analyzing a private employer’s voluntarily adopted affirmative

action plan.” Koehler at ¶ 11. While the Commission did not cite the cases specifically,

this does not demonstrate that it did not properly consider whether Schuler proved the

facts of his case. In the absence of a prima facie showing of discrimination, evaluated

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in light of existing law holding that GM’s program was not discriminatory, the

Commission properly dismissed the complaint.      “In effect, the Commission did not

misapply the law, it simply recognized the shortcomings in appellant’s allegations and

dismissed them accordingly.” Id. at ¶ 12.

      {¶22} We find no reason to depart from this court’s analysis in Koehler. The

Commission considered the existing law and weighed it in determining there was a lack

of probable cause to find discrimination. There was no abuse of discretion by the trial

court in finding this determination was not unlawful, irrational, and/or arbitrary and

capricious. The GM program has been repeatedly found to be non-discriminatory and,

in the absence of evidence showing discrimination, there was no error below.

      {¶23} The sole assignment of error is without merit.

      {¶24} For the foregoing reasons, the Judgment Entry of the Trumbull County

Court of Common Pleas, affirming the Ohio Civil Rights Commission’s decision, is

affirmed. Costs to be taxed against appellant.



TIMOTHY P. CANNON, J.,

THOMAS R. WRIGHT, J.,

concur.




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