[Cite as Hoover v. Elyria, 2016-Ohio-8092.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

JAMES P. HOOVER                                      C.A. No.       16CA010942

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
CITY OF ELYRIA, OHIO                                 COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellee                                     CASE No.   12CV176326

                                 DECISION AND JOURNAL ENTRY

Dated: December 12, 2016



        HENSAL, Judge.

        {¶1}     James Hoover appeals a judgment of the Lorain County Court of Common Pleas

that upheld the Elyria Civil Service Commission’s decision to suspend him for violating the

City’s anti-discrimination policy. For the following reasons, this Court affirms.

                                                I.

        {¶2}     Mr. Hoover worked for the City of Elyria’s water pumping plant as an assistant

superintendent. On October 5, 2011, he noticed that one of the part-time employees, who is

African-American, was wearing coveralls that had the name “Buck” on them. Attempting to

make a joke, Mr. Hoover told the others in the room that, in addition to the other two Bucks who

worked at the plant, there was now “Black Buck” or “Big Black Buck.” Mr. Hoover repeated his

“joke” with minor variations to other employees of the plant throughout the course of the day.

        {¶3}     After a plant employee complained about Mr. Hoover’s statements, the City’s

service director scheduled a pre-disciplinary meeting on the issue and an unrelated smoking
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violation. Following the meeting, the service director terminated Mr. Hoover for violating the

City’s anti-discrimination policy. Mr. Hoover appealed to the Civil Service Commission, which

held a hearing on the allegations. Although the Commission found that Mr. Hoover breached the

City’s anti-discrimination policy, it reduced his termination to a 45-day suspension without pay.

       {¶4}    Mr. Hoover appealed the Commission’s decision to the common pleas court. The

court determined that Mr. Hoover’s statements were insufficient to constitute harassment, so it

vacated his 45-day suspension. On appeal, this Court determined that the trial court had failed to

consider “the entirety of [the City’s] anti-discrimination code and it determined whether there

existed a preponderance of substantial, reliable, and probative evidence in the record before it to

support the Commission’s decision.”         Hoover v. City of Elyria, 9th Dist. Lorain No.

12CA010288, 2014-Ohio-1783, ¶ 11. We, therefore, reversed the trial court’s judgment in part,

and remanded the matter for further proceedings consistent with our decision.

       {¶5}    On remand, the trial court requested additional briefing and held a hearing

regarding the City’s anti-discrimination policy. Upon consideration of “the entirety” of the anti-

discrimination code, it determined that “that there existed a preponderance of substantial, reliable

and probative evidence in the record to support the Commission’s decision.” Mr. Hoover has

appealed, assigning five errors.

                                                II.

                                   ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FAILED
       TO UTILIZE FEDERAL OR STATE “HOSTILE WORK ENVIRONMENT”
       COMMON LAW TO DETERMINE WHETHER JAMES HOOVER’S
       CONDUCT VIOLATED THE CITY OF ELYRIA’S ANTI-DISCRIMINATION
       POLICY.
                                                3


       {¶6}    Mr. Hoover argues that the trial court incorrectly affirmed the Civil Service

Commission’s decision because, even if he made one racially insensitive joke a couple of times

over the course of a single day, it did not create a hostile work environment for the other

employees.      According to Mr. Hoover, his statements, therefore, did not constitute

discriminatory or harassing behavior under the Codified Ordinances of Elyria.

       {¶7}    Under Section 2506.04 of the Ohio Revised Code, a common pleas court reviews

a decision of a political subdivision agency to determine if it was “unconstitutional, illegal,

arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable,

and probative evidence on the whole record.” The common pleas court’s decision is appealable

to this Court on “questions of law.” R.C. 2506.04. “An appeal to the court of appeals, pursuant

to R.C. 2506.04, is more limited in scope and requires [the appellate court] to affirm the common

pleas court, unless [it] finds, as a matter of law, that the decision of the common pleas court is

not supported by a preponderance of reliable, probative and substantial evidence.” Kisil v. City

of Sandusky, 12 Ohio St.3d 30, 34 (1984). That “does not include the same extensive power to

weigh ‘the preponderance of substantial, reliable and probative evidence,’ as is granted to the

common pleas court.” Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St. 3d 142, 147

(2000), quoting Kisil at 34, fn.4.

       {¶8}    The hostile work environment case law cited by Mr. Hoover applies to an action

brought by a person who has been the target of harassment or discrimination in the workplace,

not to the person causing such harassment. The question here was whether Mr. Hoover could be

disciplined for allegedly violating Section 165.29 of the Codified Ordinances of Elyria, not

whether anyone at the plant had experienced a hostile work environment under state and federal

law. We, therefore reject Mr. Hoover’s argument that the trial court failed to properly apply the
                                                 4


hostile-work-environment test in determining whether he could be disciplined for his comments.

Mr. Hoover’s first assignment of error is overruled.

                                   ASSIGNMENT OF ERROR II

       THE COURT OF APPEALS ON REMAND IMPERMISSABLY TOOK A
       DEFINITION OF DISCRIMINATION FROM AN AFFIRMATIVE ACTION
       ORDINANCE WHEN NOTHING IN THE CASE PREVIOUSLY INVOLVED
       AFFIRMATIVE ACTION.

       {¶9}      Mr. Hoover argues that this Court incorrectly referred to Section 167.02(e) of the

Codified Ordinances in its previous decision in this action. According to Mr. Hoover, because

Section 167.02(e) is in a chapter called “Affirmative Action,” it had no applicability to his case.

He also argues that the trial court’s original decision, vacating his 45-day suspension for

discrimination was the correct decision and that this Court exceeded its authority when it vacated

that decision.

       {¶10} Mr. Hoover’s argument essentially asks this Court to reconsider its decision in

the prior appeal. Under the doctrine of law of the case, “the decision of a reviewing court in a

case remains the law of that case on the legal questions involved for all subsequent proceedings

in the case at both the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984).

Absent extraordinary circumstances, which Mr. Hoover has not demonstrated, this Court has no

authority to change our prior decision. See id. at syllabus. Mr. Hoover’s second assignment of

error is overruled.

                                  ASSIGNMENT OF ERROR III

       THE CITY OF ELYRIA FAILED TO FOLLOW ITS OWN ORDINANCE IN
       ANY FASHION WHICH WAS IGNORED BY THE REMAND ORDER TO
       THE COMMON PLEAS COURT.

       {¶11} Mr. Hoover next argues that the City failed to follow its ordinance in determining

whether he should be disciplined.        According to Mr. Hoover, under Section 165.29, the
                                                5


complaint against him had to be filed with the Equal Employment Opportunity Officer. That

officer would have then investigated the allegations and prepared a report for the safety service

director.

        {¶12} The procedures that Mr. Hoover has cited only explicitly pertain to “incidents,

which fall under the term ‘sexual harassment.’” Even assuming they apply to other forms of

harassment, the person who was acting as the City’s safety service director at the time the

complaint against Mr. Hoover was filed testified that the City’s Equal Employment Opportunity

Officer was on vacation the week of the incident. He, therefore, conducted his own investigation

into the issue.

        {¶13} After the safety service director made his decision, Mr. Hoover appealed to the

Civil Service Commission and received a full evidentiary hearing. Upon review of the record,

we conclude that Mr. Hoover has failed to establish a violation of his due process rights. See

Kennedy v. Marion Correctional Inst., 69 Ohio St.3d 20, 23 (1994).

        {¶14} Mr. Hoover also argues that his “Black Buck” statements did not violate any law

and also did not offend his co-worker. There were several witnesses, however, who testified that

they heard Mr. Hoover’s statements and found them offensive, including the employee at whom

they were directed.

        {¶15} Mr. Hoover further argues that he was not the other employee’s supervisor.

Neither the safety service director’s decision nor the civil service commission’s decision nor the

common pleas court’s decision, however, included such a finding. The only decision that

characterized the target of Mr. Hoover’s statements as Mr. Hoover’s “subordinate” was the

common pleas court’s initial decision, which was vacated. Mr. Hoover’s third assignment of

error is overruled.
                                                6


                                ASSIGNMENT OF ERROR IV

       THE CITY OF ELYRIA CHARTER AND CODE DOES NOT AND CANNOT
       LEAVE IT UP TO THE ELYRIA CIVIL SERVICE COMMISSION TO
       DEFINE RACIAL DISCRIMINATION OR HARASSMENT IN THE
       WORKPLACE.

       {¶16} Mr. Hoover’s next argument is that the decision of the civil service commission

had to be consistent with state and federal law. According to him, because the city’s ordinances

do not define “harassment,” it was appropriate for the trial court to determine, the first time it

considered the issue, that his joke to a group of guys did not constitute hostile-work-environment

discrimination.

       {¶17} As explained earlier, whether Mr. Hoover’s statements created a hostile work

environment for the other employees is not the measure for determining whether the City could

discipline him for making those statements. Section 165.29(a)(1) of the Codified Ordinances

provides that “[d]iscrimination, harassment and sexual harassment shall not be tolerated and are

prohibited.” The Civil Service Commission only needed to determine whether Mr. Hoover’s

statements violated that provision. A dictionary definition of “harassment” includes “to create an

unpleasant or hostile situation for esp. by uninvited and unwelcome verbal or physical conduct.”

Merriam-Webster’s Collegiate Dictionary 567 (11th Ed.2005). According to the witnesses at the

civil service commission hearing, Mr. Hoover’s repeated “joke” was uninvited, unwelcome, and

unpleasant for several of his co-workers, who testified to their understanding that the term

“Black Buck” was a racial slur used against African-American men following the end of slavery.

Upon review of the record, we cannot say that the Civil Service Commission used the wrong

criteria in determining whether Mr. Hoover violated the City’s anti-discrimination ordinance.

Mr. Hoover’s fourth assignment of error is overruled.
                                                   7


                                 ASSIGNMENT OF ERROR V

       THE TRIAL COURT’S FACTUAL AND LEGAL CONCLUSIONS WERE
       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶18} Mr. Hoover next argues that the common pleas court’s factual findings are against

the manifest weight of the evidence. He also argues that the court applied the wrong law in

reviewing the Commission’s decision.

       {¶19}    On remand, the common pleas court considered Section 165.29(a)(1) in order to

determine whether Mr. Hoover’s comments violated the City’s anti-discrimination policy. It also

considered whether the Civil Service Commission’s decision to suspend Mr. Hoover was

supported by the preponderance of the substantial, reliable, and probative evidence.          It

determined that the commission had applied and interpreted Section 165.29 in reaching its

decision. It also determined that the record contained a preponderance of substantial, reliable,

and probative evidence to support the Commission’s decision.

       {¶20} This Court’s review is more limited than the common pleas court’s.            R.C.

2506.04. In light of the testimony of Mr. Hoover’s co-workers who described the offensiveness

of his repeated comments, we cannot say that the common pleas court erred when it determined

that the Commission’s decision was supported by a preponderance of the evidence.            Mr.

Hoover’s fifth assignment of error is overruled.

                                               III.

       {¶21} Mr. Hoover’s assignments of error are overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                            Judgment affirmed.
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       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



WHITMORE, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

MICHAEL P. HARVEY, Attorney at Law, for Appellant.

SCOTT F. SERAZIN, Law Director, and AMANDA R. DEERY, Assistant Law Director, for
Appellee.
