[Cite as Freeman v. Ohio Civ. Rights Comm., 2012-Ohio-4825.]


                 Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 98273




                                  EUNICE FREEMAN
                                                         PLAINTIFF-APPELLANT

                                                   vs.


           OHIO CIVIL RIGHTS COMMISSION, ET AL.
                                                         DEFENDANTS-APPELLEES




                                          JUDGMENT:
                                           AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-768599


        BEFORE: Jones, P.J., Keough, J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED: October 18, 2012
FOR APPELLANT

Eunice Freeman, Pro se
3301 East 132nd Street
Cleveland, Ohio 44120


ATTORNEYS FOR APPELLEES

For Ohio Civil Rights Commission

Mike DeWine
Attorney General

BY: Patrick M. Dull
Assistant Attorney General - Civil Rights Section
30 East Broad Street
15th Floor
Columbus, Ohio 43215

For AVI Foodsystems, Inc.

Timothy S. Anderson
Littler Mendelson, P.C.
1100 Superior Avenue, 20th Floor
Cleveland, Ohio 44114
LARRY A. JONES, SR., P.J.:

      {¶1} This case came to be heard upon the accelerated calendar pursuant to App.R.

11.1 and Loc.R. 11.1.

      {¶2} Plaintiff-appellant Eunice Freeman appeals from the trial court’s April 10,

2012 final judgment.    In that judgment, the trial court affirmed defendant-appellee, the

Ohio Civil Rights Commission’s (“OCRC” or “the commission”) finding that no probable

cause existed to issue an administrative complaint against defendant-appellee AVI

Foodsystems, Inc. (“AVI”).    We affirm.

                             I. Procedural History and Facts

      {¶3} Freeman worked in the food service department for the Shaker Heights City

School District. In the summer of 2010, the district contracted with AVI for it to be the

district’s food service provider.   In December 2010, Freeman filed a charge with the

OCRC alleging that AVI retaliated against her for previously filing a charge of

discrimination against the Shaker Heights City School District. Specifically, Freeman

claimed that AVI reduced her work hours and failed to promote her.

      {¶4} In September 2011, the OCRC issued its “letter of determination,” in which it

stated that it found no credible information supporting Freeman’s allegation of unlawful

activity. The commission did not find any probable cause to issue an administrative
complaint against AVI, therefore, and dismissed Freeman’s charge.

       {¶5} Freeman appealed to the common pleas court.                She attached various

documents to her complaint, which the OCRC motioned to dismiss; the trial court granted

the motion.   The matter was submitted on briefs, and in its final order, the court affirmed

the commission’s decision. Freeman now appeals, raising nine assignments of error,

which are set forth in the appendix.

                                   II.   Law and Analysis

       {¶6} R.C. 4112.05 authorizes the OCRC to accept charges of discriminatory

practices.    “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.” R.C. 4112.05(B)(2). After completing its preliminary

investigation, the commission must either (1) notify the parties that it is not probable that a

discriminatory practice has been or is being engaged in and a complaint will not be

initiated; or (2) initiate a complaint. R.C. 4112.05(B)(3). If the commission finds that

no probable cause exists, it must state the reasons for its determination by setting forth

findings of fact.   R.C. 4112.05(H).     When a complainant is aggrieved by a final order of

the commission she may seek judicial review under R.C. 4112.06.

       {¶7} In the seminal case regarding the trial court’s standard of review, the Ninth

Appellate District held that “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 v. Ohio Civ.
Rights Comm., 20 Ohio App.3d 314, 317, 486 N.E.2d 143 (9th Dist.1984). This court

has followed McCrea.    See, e.g., Hous. Advocates, Inc. v. Am. Fire & Cas. Co., 8th Dist.

Nos. 86444 and 87305, 2006-Ohio-4880; Zafirau v. Ohio Civ. Rights Comm., 8th Dist. No.

85882, 2005-Ohio-6361; Coe v. Cleveland, 8th Dist. No. 55126, 1989 Ohio App. LEXIS

1000 (Mar. 23, 1989); Bokel v. Ohio Civ. Rights Comm., 8th Dist. No. 55103, 1988 Ohio

App. LEXIS 3007 (July 28, 1988).

      {¶8} Although Freeman assigns nine errors for our review, her contentions can be

categorized as follows: (1) the trial court erred by granting the commission’s motion to

strike the documentation filed with her complaint; (2) the OCRC’s investigator “aided the

[OCRC] in an unlawful discriminatory practice”; and (3) the OCRC’s attorney

“disregarded * * * a legal and binding Union contract between Local 200 and the SHCSD

(Board) stipulating the terms [under] which the contracting agent (AVI) had to abide by.”

      {¶9} We disagree with Freeman’s contention that the trial court erred by striking

the documentation filed with her complaint. In conducting its review, the trial court was

“confined to reviewing the Commission’s findings of fact to determine whether sufficient

justification is given for not issuing a complaint.” McCrea at 317. Thus, the trial

court’s review is “confined to a limited examination of the commission’s decision.”

Smart v. Ohio Civ. Rights Comm., 5th Dist. No. 2011CA00246, 2012-Ohio-2899, ¶ 21.

In fact, the record filed in the trial court by the commission as required under R.C.

4112.06(B) consisted solely of its letter of determination. Although R.C. 4112.06(D)

allows the trial court to “grant a request for the admission of additional evidence,” the
additional evidence must be evidence that was “newly discovered and could not with

reasonable diligence have been ascertained prior to the hearing before the commission.”

This case was decided before the commission upon its preliminary investigation and no

hearing was had.

      {¶10} Moreover, this court has held that:

       R.C. 4112.06(D) * * * only applies when an evidentiary hearing has been
       held by the Commission. * * * Thus, under the relevant standard for
       reviewing the Commission’s no probable cause determination, the common
       pleas court must base its decision on the record as prepared by the
       Commission. Therefore, if the common pleas court were to receive
       “additional evidence” in an appeal for a “no probable cause” finding, it
       would exceed its proper role on appeal.
(Citations omitted.) Hous. Advocates, supra, at ¶ 28.

      {¶11} In its final order, the trial court stated the following:

      The court having reviewed the record affirms the finding issued by the Ohio
      Civil Rights Commission. [The Commission’s] findings of fact suggest an
      investigation was completed by the OCRC. Subsequent to its investigation
      the OCRC determined that [Freeman] had not been denied a promotion and
      had work hours reduced in retaliation for filing a complaint with the [Equal
      Employment Opportunity Commission] and OCRC against her employer.
      While [Freeman] disagrees with the OCRC finding [she] has not articulated
      evidence that the decision was unlawful, irrational, arbitrary, or capricious.


      {¶12} Thus, the trial court reviewed under the correct standard — abuse



 of discretion — and properly limited its review to the commission’s finding.    Similarly

related to her contention about additional evidence, Freeman also contends that the trial

court erred in relying on various “statements” made by the assistant attorney general

representing the OCRC. But the trial court’s findings were based on its review of the
commission’s determination.

       {¶13} In light of the above, the trial court’s judgment that struck Freeman’s

documentation was proper, and her contention that the court improperly did not consider

all of the relevant evidence, and improperly considered statements made by the

commission’s counsel, is without merit.

       {¶14} Freeman’s second contention is that the commission’s investigator

participated in unlawful discriminatory conduct.    In support of her contention, Freeman

relies on the documentation that was attached to her complaint, which we find that the trial

court properly struck.   Our review demonstrates that the trial court properly relied on the

record submitted by the commission under R.C. 4112.06(B).           Freeman’s contention,

therefore, is not well founded.

       {¶15} For her third contention, Freeman claims that the commission ignored a

contract between her union and the Shaker Heights City School District that set forth the

terms under which AVI was to provide food service to the district, and which AVI

breached to her detriment.    Freeman’s contention did not fall under the purview of the

commission, however.

       {¶16} Under R.C. 4112.02, the commission is charged with “[r]eceiv[ing],

investigat[ing], and pass[ing] upon written charges made under oath of unlawful

discriminatory practices” such as “discrimination because of race, color, religion, sex,

military status, familial status, national origin, disability, age, or ancestry.”      R.C.

4112.02(A)(6) and (7). The OCRC is not charged with enforcing contractual obligations.
 Freeman’s contention is therefore not well founded.

       {¶17} Thus, what this case comes down to is that, after its investigation, the

commission “found no information or records that would raise an inference that [AVI]

unlawfully discriminated against [Freeman]. Specifically, the [c]ommission found that

[Freeman] was not denied a promotion or subjected to reduced work hours.”             Upon its

review, the trial court found that Freeman disagreed with the commission’s finding, but

did not demonstrate that the finding was “unlawful, irrational, arbitrary, or capricious.”

“We review a common pleas court’s affirmance of a ‘no probable cause’ finding under an

abuse of discretion standard.” Hous. Advocates, supra, at ¶ 19, citing McCrea, supra.

       {¶18} Upon such a review, we do not find that the trial court’s decision was an

abuse of discretion.     There was sufficient justification for a “no probable cause”

determination. See McCrea, supra, at 317 (“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.”).

 Freeman’s third contention is therefore without merit.

       {¶19} In light of the above, all of Freeman’s assignments of error are overruled and

the trial court’s judgment is affirmed.

       It is ordered that appellees recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




LARRY A. JONES, SR., PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR




                                       APPENDIX

      [I.] The lower court erred in its decision to grant the defendants[’] motion
      to dismiss my judicial review disregarding the proponderance [sic] of
      evidence submitted by the appellant.

      [II.] The lower court erred in its reliance on the statement made by the
      principal assistant attorney general Dull that the defendant AVI
      Foodsystems, Inc. was not obligated to hire the plaintiff-appellant, when in
      fact they were per the memorandum of understanding, a legal and binding
      contract its employer Shaker Heights City Schools (Board) and Local 200
      stipulating the terms for outsoucring [sic] the food service department.
Also the fact that I Eunice Freeman, appellant had already been hired by
AVI July 13th, 2010.

[III.] The lower court erred in its reliance on the statement made by [the
principal assistant attorney general] Dull that the plaintiff-appellant was not
retaliated against by AVI by not promoting her with a position and hours that
was [sic] already given to her.

[IV.] The lower court erred in its reliance on the statement made by [the
principal assistant attorney general] Dull that the Ohio Civil Rights
Commission decision finding no probable cause regarding my complaint was
not unlawful, irrational, arbitrary and capricious because of the investigator’s
unfair assistance to the respondent AVI.

[V.] The lower court erred in its reliance on the statement made by [the
principal assistant attorney general] Dull that the memorandum of
understanding was an agreement between the plaintiff-appellant and AVI
Foodsystems, Inc. and that the OCRC does not have jurisdiction over such
an agreement, when in fact, again, it was and is part of contract law in the
state of Ohio, which is binding and legal to all parties who have signed in
agreement of same.

[VI.] The lower court erred in its reliance of statements made by [the
principal assistant attorney general] Dull that additional documents given to
the lower court to prove the charge of retaliation should be stricken, when in
fact they were automatically part of the record because the plaintiff-appellant
had discussed and made them part of the initial charge with the intake person
and the investigator at the OCRC on December 29th, 2010, but had not yet
obtained the documents that were given to this honorable appeals court and
the lower court proving that I Eunice Freeman, plaintiff-appellant was part
of the agreement between AVI and the board because my personal
information from my personell [sic] file, (disciplinary documents) were
attached to said agreement signed and dated by all concerned on August 5th,
2010.

[VII.] The lower court erred in its decision to dismiss my judicial review
without regard to a witness statement given to the investigator on October
10th, 2011 confirming the fact that I Eunice Freemen [sic] was not hired
back at the same time as other former board employees were, with their same
hours and or positions and that I was a supervisor.

[VIII.] The lower court erred in its decision to dismiss my judicial review
because it did not take into consideration the discrepancies in the date of the
decision letter from the OCRC, dated September 29th, 2011. The date of
the witness statement that was verbally given over the phone to the
investigator on October 10th, 2011 and the date of the envelope the decision
letter was mailed in, dated October 13th, 2011 which shows the decision
letter was held for almost two weeks before it was mailed.

[IX.] The lower court erred in its decision when it stated that the evidence
submitted was not substantial enough to prove my case that the OCRC failed
in their duty to be fair and impartial regarding its decision.
