         [Cite as Lohmann v. Cincinnati, 2018-Ohio-2505.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



DANIEL LOHMANN,                                  :          APPEAL NO. C-170242
                                                            TRIAL NO. A-1602796
TAMIEKA GRAY,                                    :

 and                                             :
                                                               O P I N I O N.
MARQUITTA HUNTLEY-PHOENIX,                       :

        Plaintiffs-Appellants,                   :

  vs.                                            :

CITY OF CINCINNNATI,                             :

  and                                            :

CIVIL SERVICE COMMISSION OF :
THE CITY OF CINCINNATI,

    Defendants-Appellees.                        :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: June 27, 2018


Minnillo and Jenkins Co., L.P.A., Christian A. Jenkins and Robb Stokar, for
Plaintiffs-Appellants,

Paula Boggs Muething, City Solicitor, and William Hicks, Senior City Solicitor, for
Defendants-Appellees.
                      OHIO FIRST DISTRICT COURT OF APPEALS



D ETERS , Judge.

       {¶1}    Plaintiffs-appellants Daniel Lohmann, Tamieka Gray, and Marquitta

Huntley-Phoenix are city-of-Cincinnati employees who applied to take a promotional

examination for the administrative-specialist position. The city denied them the ability

to sit for the promotional exam because their applications lacked a transcript showing

they met the educational requirements for the position. Lohmann, Gray, and Huntley-

Phoenix appealed the city’s decision to the Civil Service Commission of the City of

Cincinnati.   The civil service commission denied them the ability to sit for the

promotional exam.

       {¶2}    Lohmann, Gray, and Huntley-Phoenix then appealed to the common

pleas court pursuant to R.C. 2506.04. They sought to supplement the record of the

administrative proceedings with additional records they had obtained from the city

through a public records request. The common pleas court denied their request to

supplement the record and affirmed the decision of the civil service commission.

       {¶3}    In this appeal, they argue the trial court erred in denying their motion to

supplement the record by failing to take judicial notice of public records, by declining to

strike, pursuant to Loc.R. 14(B) of the Hamilton County Court of Common Pleas, the

city’s memorandum opposing their motion to supplement the record as untimely, and

by affirming the decision of the civil service commission when it was unsupported by a

preponderance of the evidence as a matter of law.

       {¶4}    Because the trial court’s judgment affirming the civil service

commission’s decision to deny them the opportunity to sit for the promotional exam

is not supported by a preponderance of evidence as a matter of law, we reverse the

judgment of the trial court, and remand this matter for further proceedings.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



                            Factual and Procedural Posture

       {¶5}   In the fall of 2015, the city of Cincinnati posted the administrative-

specialist position as a promotional opportunity.        The position required employees

to satisfy one of the following qualification options:

       Have one year of experience as an Administrative Technician,

       Supervising Storekeeper, Secretary, Accounting Technician 3 or Senior

       Customer Relations Representative, with the City of Cincinnati and

       have successfully completed 60 quarter credit hours in any

       combination of the following course areas:            English composition,

       business law, economics, finance, human resources, psychology,

       sociology, business administration, public administration, information

       processing, accounting, or a related field; or

       Have three years of experience as an Administrative Technician,

       Supervising Administrative Technician, Supervising Storekeeper,

       Secretary, Accounting Technician 3 or Senior Customer Relations

       Representative, with the City of Cincinnati and have successfully

       completed 45 quarter credit hours in the above named courses; or

       Have five years of experience as an Administrative Technician,

       Supervising Administrative Technician, Supervising Storekeeper,

       Secretary, Accounting Technician 3 or Senior Customer Relations

       Representative, with the City of Cincinnati and have successfully

       completed 30 quarter credit hours in the above named courses; or

       Have two years experience with the City of Cincinnati in an equivalent

       position and have successfully completed an Associate or Bachelor’s

       degree from an accredited college or university.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶6}   The initial job posting for the administrative-specialist position

required that transcripts be attached.

       {¶7}   For multiple reasons, the fall 2015 exam was postponed and reposted

March 11-22, 2016.     When the position was reposted, all applicants, including

Lohmann, Gray, and Huntley-Phoenix, received email notification of the reposting.

Applicants were informed that they were not required to reapply and that they could

use their prior submission. All applicants were advised:

       This email is to inform you that the ADMINISTRATIVE SPECIALIST

       (PROMOTIONAL) exam process is moving forward. We will open the

       posting later this week in order to allow additional candidates to apply

       due to the length of time since the original posting. You are receiving

       this email because you have already applied. You are not required to

       submit another application. If you decide to submit a new application,

       we will use your most recent application.

       Please note, if you sent transcripts by mail to the HR department, you

       are encouraged to pick them up at the office at Centennial 2, scan, and

       attach to a new application. If you emailed transcripts, this is also an

       opportunity to submit a new application with the transcripts attached.

       * * * Minimum qualifications require credit hours. Transcripts must be

       attached or the application will be rejected.

       {¶8}   The city sent Lohmann, Gray, and Huntley-Phoenix an email on March

8, 2016, which provided:

       The posting for the Admin Tech, Admin Spec, and Senior Admin Spec.

       exams are open to current City employees through the City website

       until March 21, 2016 at 5 p.m.



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                    OHIO FIRST DISTRICT COURT OF APPEALS



       Applicants who previously applied in Aug-Sept. 2015 are not required

       to submit applications again. We will use the most recent applications

       for all who apply. Transcripts are required for all Admin Spec and

       Senior Admin Spec applicants and must be attached to the

       applications when they are submitted.

       {¶9}   On March 11, 2016, Lohmann, Gray, and Huntley-Phoenix received

another email from the city notifying them that the posting for the administrative-

specialist position was open to current city employees through the city website until

March 21, 2016, at 5 p.m. The email stated:

       Applicants who previously applied in Aug-Sept 2015 are not required

       to submit applications again. We will use the most recent applications

       for all who apply. Transcripts are required for all Admin Spec and

       Senior Admin Spec applicants and must be attached to the

       applications when they are submitted.

The email additionally provided the examination dates for the positions.

       {¶10} On March 23, 2016, Lohmann and Gray received an email informing

them that their applications had been rejected because they had failed to attach an

educational transcript to their applications as required by the posting. On March 30,

2016, Huntley-Phoenix received an email rejecting her application that was identical

to the email that Lohmann and Gray had received.

       {¶11} Lohmann appealed the decision to the civil service commission.

Lohmann maintained that he had sat for the administrative-specialist exam in 2014,

and his application and transcripts had been approved by the human resources

department; he had then applied for the administrative-specialist position on

September 9, 2015, with his application and transcripts provided. Lohmann had



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                    OHIO FIRST DISTRICT COURT OF APPEALS



received an email on March 8, 2016, informing him that the application process was

moving forward and that he was receiving the email because he had already applied.

He received another email on March 11, 2016, reiterating that applicants who had

applied did not need to apply again. On March 23, 2016, he received an email

informing him that his application had been rejected as incomplete because it lacked

his educational transcripts. Lohmann questioned whether anyone in the human

resources department had reviewed his application until after the closing date.

       {¶12} Huntley-Phoenix also appealed to the civil service commission. She

asserted that she had been approved to take the administrative-specialist

examination in June 2014, following her appeal to the civil service commission. She

attached a copy of her transcript and resume related to the June 2014 appeal. She

further asserted that she had been on medical leave from February 16, 2016, to April

3, 2016, and that upon her return to work on April 4, 2016, she had been informed

that her application was incomplete because she had not provided her educational

transcript.

       {¶13} Tamieka Gray appealed to the civil service commission.          She had

supplied a copy of her transcript from Devry University that had been issued on

September 9, 2015, and email correspondence from her supervisor, who had stated

that Gray was a 20-year employee with a master’s degree in information technology;

she had uploaded her application, driver’s license, and transcripts; and she had

received confirmation that the documents had been submitted. She believed that her

uploaded transcript must have been lost because of a system error.

                 Supplementation of the Administrative Record

       {¶14} For ease of discussion, we address the employees’ assignments of error

out of order. In their second assignment of error, the employees assert that the trial



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                     OHIO FIRST DISTRICT COURT OF APPEALS



court erred in denying their motion to supplement the record of the administrative

proceedings by failing to take judicial notice of various documents they had

requested from the city of Cincinnati via a public records request that showed they

had been treated differently than other applicants.

          {¶15} In their motion to supplement the administrative record, the

employees argued that the trial court should consider these additional documents

pursuant to R.C. 2606.03(A)(3) and (4) because the testimony before the civil service

commission was not given under oath and they lacked the power to subpoena these

documents before the civil service commission hearing. They also asked the trial

court to take judicial notice of the public records.

          {¶16} The trial court denied the employees’ motion to supplement the

administrative record on the basis that the employees had failed to object to the lack

of sworn testimony at the hearing, that they had never requested the civil service

commission to issue subpoenas or sought themselves to subpoena witnesses or

documents for the hearing, and that R.C. 2506.03 contained no exception for public

records.

          {¶17} The employees do not challenge on appeal the trial court’s

determination that neither R.C. 2506.03(A)(3) nor (4) applied to permit

consideration of the additional records they had obtained through the public records

request. As a result, they have forfeited any arguments related to these statutory

exceptions on appeal. See State v. Sanders, 1st Dist. Hamilton Nos. C-140579 and C-

140580, 2015-Ohio-5232, ¶ 41, citing App.R. 12(A)(1)(b) and Loukinas v. Roto-

Rooter Servs. Co., 167 Ohio App.3d 559, 2006-Ohio-3172, 855 N.E.2d 1272, ¶ 9 (1st

Dist.).




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶18} Instead, the employees argue only that the trial court failed to take

judicial notice of these documents. In Phillips Supply Co. v. Cincinnati Zoning Bd.

of Appeals, 2014-Ohio-3203, 17 N.E.3d 1, ¶ 30-34 (1st Dist.), however, this court

held that a party cannot circumvent the statutory requirements for taking additional

evidence pursuant to R.C. 2506.03 by asking the trial court to take judicial notice of

public documents. Given this court’s decision in Phillips, we cannot conclude the

trial court erred by denying their motion to supplement the administrative record on

this basis. As a result, we overrule their second assignment of error.

                                     Motion to Strike

       {¶19} In their third assignment of error, the employees argue the trial court

erred by declining to strike the city’s memorandum opposing their motion to

supplement the record because it was not filed within ten days of their motion as

required by Loc.R. 14(B) of the Hamilton County Court of Common Pleas.

       {¶20} “A trial court decision granting or denying a motion to strike is

reviewed for an abuse of discretion.” Fernwalt v. Our Lady of Kilgore, 2017-Ohio-

1260, 88 N.E.3d 499, ¶ 22 (7th Dist.). Loc.R. 14(B) of the Hamilton County Court of

Common Pleas provides:

       Any memorandum contra to [a] motion shall be served upon movant's

       trial attorney within ten days from the date the memorandum in

       support of the motion and proof of service thereof, was served. Failure

       to serve and file a memorandum contra may be cause for the Court to

       grant the motion as served and filed. A reply memorandum may be

       served and filed within seven days of the service of the memorandum

       contra. The time periods set forth in Paragraph B may be extended by

       the Court, for good cause shown, upon application therefor * * *.



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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶21} After reviewing the record, we cannot conclude the trial court abused

its discretion by overruling the motion to strike. The employees argue that the late

filing of the memorandum contra prejudiced them because it shortened the time in

which they were able to respond to the city’s arguments. But the memorandum

merely addressed the issues raised by the employees, and the employees’ arguments

were not novel, as there was ample case law discussing supplementation of the

administrative transcript by way of R.C. 2506.03(A)(3) and (4) and judicial notice.

Even if the trial court erred, any error would be harmless as the employees can

demonstrate no prejudice. They had ample time to respond to the memorandum

contra. They filed a reply memorandum and presented oral argument to the trial

court prior to its decision on the motion. See Civ.R. 61; see, e.g., Citicorp Sav. of

Illinois v. Brumagin, 1st Dist. Hamilton No. C-850368, 1986 WL 4517, *2 (Apr. 16,

1986). We, therefore, overrule the third assignment of error.

       Trial Court’s Decision Was Not Supported by Preponderance of
                        Evidence As a Matter of Law

       {¶22}   In their first assignment of error, the employees argue that the trial

court erred by affirming the civil service commission’s decision when it was not

supported by a preponderance of the evidence as a matter of law.

       {¶23}   In Weitzel v. Cincinnati, 1st Dist. Hamilton No. C-150415, 2016-Ohio-

1322, ¶ 10 and 11, this court set forth the applicable standard of review in an

administrative appeal filed pursuant to R.C. 2506.04 and acknowledged that the

common pleas court and appellate court apply different standards of review.

       The common pleas court may determine whether the administrative decision

       was “unconstitutional, illegal, arbitrary, capricious, unreasonable, or

       unsupported by the preponderance of substantial, reliable, and probative



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              OHIO FIRST DISTRICT COURT OF APPEALS



evidence on the whole record.” R.C. 2506.04. The common pleas court may

make factual and legal determinations and provide for the introduction of

new or additional evidence, although the standard of review is not de novo.

Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals, 141 Ohio St.3d

318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 23, quoting Kisil v. Sandusky, 12

Ohio St.3d 30, 34, 465 N.E.2d 848 (1984). This court’s authority is limited to

reviewing the common pleas court’s decision on “questions of law” only, and

does not encompass the same power to weigh the evidence. Id. at ¶ 25, citing

Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147, 735

N.E.2d 433 (2000).

         Ultimately, the standard of review that we apply in this

   administrative appeal “is designed to strongly favor affirmance. It

   permits reversal only when the court of common pleas errs in its

   application or interpretation of the law or its decision is

   unsupported by a preponderance of the evidence as a matter of

   law.” Id. at ¶ 30.

{¶24} In overruling the employees’ appeal, the trial court reasoned:

The plaintiffs applied for a job with the City of Cincinnati. The job

posting noted that applicants who had previously applied in August

and September of 2015 did not have to submit the application again.

The posting then went on to require transcripts to be attached to the

application when submitted. At this point, even though the plaintiffs

did not have to submit another application, they were on notice that

transcripts were required. The language could not have been more

clear.   The plaintiffs either did not pay attention to the fact that



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       transcripts were now required or ignored it. Either way, the plaintiffs

       did not follow the clear requirements of the posting.

               The appeal is overruled. The decision of the Civil Service

       Commission is not unconstitutional, illegal, arbitrary, capricious or

       unreasonable. It is supported by the preponderance of substantial,

       reliable, and probative evidence. I have weighed the evidence in the

       record and find the decision of the Civil Service Commission to be

       correct beyond any doubt.

       {¶25}     The employees argue the trial court’s decision is unreasonable

because it is unsupported by a preponderance of the evidence as a matter of law. The

employees argue that the trial court’s decision ignores the evidence in the

administrative record and the plain language of the city’s March 8, and March 11,

2016 emails, which provided that if the employees wanted to rely on their prior

application, which included transcripts, they needed to do nothing further to apply

for the promotional examination. Based on our review of the record, we agree with

the employees.

       {¶26}     The record reflects that all three employees’ applications were initially

accepted for the 2015 exam. There is no evidence in the record that the 2015

applications were deficient.     They had submitted transcripts.        Thus, there was

nothing more for them to do. Therefore, the record does not support the trial court’s

conclusion that the employees’ applications were subject to disqualification for

failing to resubmit their transcripts.

       {¶27}     We hold that the trial court’s judgment affirming the civil service

commission’s decision to deny them the opportunity to sit for the exam is not

supported by a preponderance of the evidence as a matter of law. As a result, we



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                     OHIO FIRST DISTRICT COURT OF APPEALS



sustain the first assignment of error. We reverse the judgment of the trial court, and

remand this matter to the trial court to enter an order reversing the judgment of the

civil service commission, and for further proceedings consistent with the law and this

opinion.

                                                Judgment reversed and cause remanded.

MYERS, P.J., and MILLER, J., concur.


Please note:
       The court has recorded its own entry this date.




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