[Cite as Smart v. Civ. Rights Comm., 2012-Ohio-2899.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



MORESETTA SMART                                         JUDGES:
                                                        Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellant                             Hon. Sheila G. Farmer, J.
                                                        Hon. Julie A. Edwards, J.
-vs-

OHIO CIVIL RIGHTS COMMISSION,                           Case No. 2011CA00246
ET AL.

        Defendants-Appellees                            OPINION



CHARACTER OF PROCEEDING:                                Appeal from the Court of Common
                                                        Pleas, Case No. 2011CV01038



JUDGMENT:                                               Affirmed




DATE OF JUDGMENT:                                       June 25, 2012




APPEARANCES:

For Plaintiff-Appellant                                 For Defendants-Appellees

DOUGLAS C. BOND                                         PATRICK M. DULL
700 Courtyard Centre                                    30 East Broad Street
116 Cleveland Avenue, NW                                15th Floor
Canton, OH 44702                                        Columbus, OH 43215-3428

                                                        ARETTA K. BERNARD
                                                        KAREN D. ADINOLFI
                                                        222 South Main Street
                                                        Akron, OH 44308
Stark County, Case No. 2011CA00246                                                       2

Farmer, J.

        {¶1}   On July 9, 2010, appellant, Moresetta Smart, filed a discrimination

complaint with appellee, the Ohio Civil Rights Commission, against appellee, Aultman

Hospital, alleging invasion of privacy, HIPPA violations, and misuse of medical

information. On November 18, 2010 and February 24, 2011, appellee Commission filed

determinations denying appellant's claims, finding no probable cause. Appellant filed an

administrative appeal with the Court of Common Pleas of Stark County, Ohio.             By

judgment entry filed September 30, 2011, the trial court denied appellant's appeal,

finding appellee Commission did not act in an arbitrary, capricious, or irrational manner.

        {¶2}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

        {¶3}   "THE OHIO CIVIL RIGHTS COMMISSION'S DETERMINATION OF NO

PROBABLE CAUSE IS UNLAWFUL, UNREASONABLE AND AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE BASED UPON THE RECORD IN THIS

CASE."

                                             I

        {¶4}   Appellant claims the decision of appellee Commission was against the

manifest weight of the evidence. We disagree.

        {¶5}   Specifically, appellant argues appellee Commission failed to disclose the

facts or the items reviewed, and R.C. 4112.06 requires a full review of the investigative

file.

        {¶6}   First, we will address the appropriate standard of review.        Appellant

argues the standard of review on a finding of no probable cause is the same as a
Stark County, Case No. 2011CA00246                                                     3

finding on a post-probable cause decision: the reliable, probative, and substantial

evidence standard.      Cleveland Civil Service Commission v. Ohio Civil Rights

Commission (1991), 57 Ohio St.3d 62. In Ashton v. Ohio Civil Rights Commission,

(1990), Fairfield App. No. 21-CA-89, we reviewed a probable cause determination and

cited and adopted the holding of our brethren from the Ninth District in McCrea v. Ohio

Civil Rights Commission (1984), 20 Ohio App.3d 314, syllabus:

      {¶7}   "With respect to judicial review, the standard of reliable, probative and

substantial evidence is applicable only to post-complaint decisions and orders of the

Ohio Civil Rights Commission. The applicable standard of review for a court of a pre-

complaint decision by the commission 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.)

      {¶8}   The McCrea court explained the following at 316-317:

      {¶9}   "Prior to the filing of a complaint, the procedure set out in the statute is

informal and in the nature of an ex parte proceeding.        Although the commission

investigates the charge, it does not seek to receive formal evidence.         Unlike the

procedure set forth for a post-complaint formal hearing, R.C. 4112.05 does not provide

for the swearing of witnesses, the taking of testimony, or the keeping of a record during

the preliminary investigation.   A determination of no probable cause is one which

cannot, therefore, be reviewed on the basis of reliable, probative and substantial

evidence. This standard can be applied by a reviewing court only to orders which come

about subsequent to or as the result of an evidentiary hearing. In the absence of an

evidentiary hearing, there is no evidence to review on appeal-reliable, probative,

substantial, or otherwise. To apply this standard to a probable cause determination
Stark County, Case No. 2011CA00246                                                    4

would be to create a burden upon the commission where clearly none was

contemplated by the legislature."

      {¶10} See, also, Kutz v. Ohio Education Association, et al. (1995), Franklin App.

No. 94APE06-781, wherein our brethren from the Tenth District reviewed a probable

cause determination and held the trial court "correctly relied only upon the findings of

fact from the commission's determination, rather than examining the full record of the

investigation, as urged by appellant."

      {¶11} In the case sub judice, appellee Commission determined the following in

its determination dated February 24, 2011:

      {¶12} "After receiving the charge, the Commission conducted an investigation

into Charging Party's allegation against Respondent.      During its investigation, the

Commission gathered relevant information and contacted relevant witnesses. Based

upon its investigation, the Commission found no information or records that would raise

an inference that Respondent unlawfully discriminated against Charging Party. As a

result, the Commission entered into its records a finding of No Probable Cause.

      {¶13} "After the finding of No Probable Cause, Charging Party applied for

reconsideration of the Commission's decision.      The Commission granted Charging

Party's application, and has conducted a reconsideration of its original No Probable

Cause decision.

      {¶14} "FINDING OF FACT:

      {¶15} "Upon reconsideration, the Commission re-examined the information

gathered during its original investigation, and also reviewed additional information

provided by the parties. The reconsideration process also included a review of all the

relevant information and relevant witnesses provided by the parties.               After
Stark County, Case No. 2011CA00246                                                     5

reconsideration, the Ohio Civil Rights Commission still found no information or records

that would raise and (sic) inference that Respondent unlawfully discriminated against

Charging Party.

       {¶16} "DECISION

       {¶17} "Based upon its original investigation and the subsequent reconsideration,

the Ohio Civil Rights Commission has determined that there is No Probable Cause to

believe that Respondent engaged in an unlawful discriminatory practice under section

4112 of the Ohio Revised Code and hereby orders that this matter be DISMISSED."

       {¶18} In its judgment entry filed September 30, 2011, the trial court found the

following:

       {¶19} "Pursuant to the McCrea standard as refined by Kutz, the Court finds that

the OCRC's decision is lawful. The decision explicitly found that no information or

records before it raised any inference that Aultman Hospital unlawfully discriminated

against Ms. Smart. Finding no evidence of unlawful discrimination, the OCRC correctly

dismissed Ms. Smart's charge of such discrimination as no probable cause existed that

might support a finding that Aultman Hospital had engaged in such conduct.

       {¶20} "The record in the present action lacks any evidence that the OCRC acted

inappropriately. Therefore, this Court finds the OCRC acted appropriately and did not

act in an arbitrary, capricious, or irrational fashion."

       {¶21} Although we can understand appellant's frustrations with the lack of a

record to support her argument that probable cause did exist, we nevertheless find the

only record is appellee Commission's decision and it does not include the various items

within its investigative file. In addition, in reviewing the factual issues argued in the

claims against appellee Aultman, we find the claims (invasion of privacy, HIPPA
Stark County, Case No. 2011CA00246                                                       6

violations, misuse of medical information) do not qualify under the definition of "Unlawful

discriminatory practices" enumerated in R.C. 4112.02.

      {¶22} The sole assignment of error is denied.

      {¶23} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Farmer, J.

Delaney, P.J. and

Edwards, J. concur.




                                             s/ Sheila G. Farmer_______________



                                             _s/ Patricia A. Delaney____________



                                             _s/ Julie A. Edwards______________

                                                           JUDGES

SGF/sg 516
[Cite as Smart v. Civ. Rights Comm., 2012-Ohio-2899.]


                    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT




MORESETTA SMART                                         :
                                                        :
        Plaintiff-Appellant                             :
                                                        :
-vs-                                                    :        JUDGMENT ENTRY
                                                        :
OHIO CIVIL RIGHTS COMMISSION,                           :
ET AL.                                                  :
                                                        :
        Defendants-Appellees                            :        CASE NO. 2011CA00246




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to

appellant.




                                                        s/ Sheila G. Farmer_______________



                                                        _s/ Patricia A. Delaney____________



                                                        _s/ Julie A. Edwards______________

                                                                    JUDGES
