[Cite as Eckert v. Summit Cty. Pub. Health, 2016-Ohio-7076.]


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

HARRY J. ECKERT                                           C.A. No.   27844

        Appellee

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
SUMMIT COUNTY PUBLIC HEALTH                               COURT OF COMMON PLEAS
                                                          COUNTY OF SUMMIT, OHIO
        Appellant                                         CASE No.   CV 2014 09 4444

                                 DECISION AND JOURNAL ENTRY

Dated: September 30, 2016



        WHITMORE, Judge.

        {¶1}    Appellant, Summit County Public Health District (“Health District”), appeals

from an order of the Summit County Court of Common Pleas that vacated a decision by the State

Personnel Board of Review (“Board”) to remove Appellee, Harry James Eckert, from his

employment. We affirm.

                                                      I

        {¶2}    Eckert was employed by the Health District as an environmental specialist. One

of the functions of the Health District is to conduct air quality inspections for the Ohio

Environmental Protection Agency (“Ohio EPA”), including inspections of gas stations, formally

known as gas dispensing facilities (“GDF”). Eckert’s job responsibilities included performing

these inspections.

        {¶3}    GDF inspections are conducted in accordance with Ohio EPA standards.

Inspections include review of mandatory records, visual inspection of gas dispensing equipment,
                                                 2


and observation of pressure and leakage tests performed by outside vendors. The inspections

and tests are designed to minimize the release of fuel vapors into the air, which is hazardous to

human health and the environment. The Ohio EPA can impose significant fines on owners who

fail to comply with EPA inspection standards.

        {¶4}   In January 2013, the Health District received a complaint from gas station

manager Rahif Faris concerning Eckert’s interactions with Faris during an air quality inspection

at Faris’ station on December 17, 2012. Health District assistant director Sam Rubens and

supervisor Wallace Chambers met with Eckert about the complaint on January 15, 2013. After

the meeting, Rubens and Chambers investigated, but did not impose corrective action.

        {¶5}   In May 2013, the Health District received a complaint from Akron Children’s

Hospital concerning the impressions of Dr. Zaid Khatib during a ride-along with Eckert for an air

quality inspection on February 20, 2013. Khatib, a resident at the hospital, was assigned to ride

along with Eckert as a public health experience for doctors in training.

        {¶6}   Following the hospital’s complaint, the Health District served a notice of

proposed discipline to Eckert, and held a pre-disciplinary hearing before the Health Commission.

The hearing officer issued a report finding “no just cause for discipline” on two of the charges in

the pre-disciplinary notice, and finding “just cause for discipline” on three charges. The Health

Commission ordered removal based on charges of: (1) discourteous treatment of the public; (2)

breach of conflict of interest/ethics policy; and (3) discrimination based on national origin or

ethnicity.

        {¶7}   Eckert appealed to the Board. An administrative law judge (“ALJ”) heard the

appeal over two days. Some witnesses testified during the hearing. Others, including Eckert,

testified by video deposition. The ALJ issued a report and recommendation after post-trial
                                                 3


briefs. The ALJ recommended removal from employment. Eckert filed objections. In a two-

sentence decision, the Board adopted the ALJ’s recommendation.

       {¶8}    The ALJ, and therefore the Board, found just cause for removal under R.C.

124.34 on two of the five charges originally asserted by the Health District, specifically: (1)

discourteous treatment of the public and (2) discrimination in the form of comments relating to

national origin. The Board found that the charges were supported by at least two of numerous

incidents put forth by the Health District: (1) Eckert’s interaction with Faris in December 2012

and (2) the impressions of Khatib during the ride-along in May 2013. The Board found that the

two incidents justified removal from employment notwithstanding that Eckert had “little if any

cognizable discipline prior to his removal.”

       {¶9}    Eckert appealed to the common pleas court. The common pleas court reviewed

the evidence and concluded that “[a]lthough the evidence clearly suggest[ed] that, at times,

Eckert lacked in judgment * * * the County has failed to prove” that the allegations of

discourteous treatment of the public, breach of conflict of interest/ethics policy and

discrimination/harassment were “supported by reliable, probative, and substantial evidence.” On

this basis, the court of common pleas vacated the decision to remove Eckert from employment.

The trial court’s decision is stayed pending the Health District’s appeal to this Court. In this

appeal, the Health District raises one assignment of error for our review.

                                                II

                                       Assignment of Error

       WHETHER THE COURT OF COMMON PLEAS ABUSED ITS DISCRETION
       AND IMPROPERLY SUBSTITUTED ITS JUDGMENT FOR THAT OF THE
       STATE PERSONNEL BOARD OF REVIEW WHEN IT VACATED THE
       BOARD’S UNANIMOUS ORDER AFFIRMING ECKERT’S REMOVAL.
                                                4


       {¶10} In its only assignment of error, the Health District argues, inter alia, that the court

of common pleas “abused its discretion by failing to consider all the evidence.” We disagree.

       {¶11} The assignment of error requires us to keep close in mind the different scopes of

review available to the court of common pleas and an appellate court. Under R.C. 119.12, a

common pleas court, in reviewing an order of an administrative agency, must consider the

“entire record” to determine whether “reliable, probative, and substantial evidence” supports the

agency's order and the order is in accordance with law. Univ. of Cincinnati v. Conrad, 63 Ohio

St.2d 108, 110 (1980).

       {¶12} The common pleas court’s review of the administrative record is neither a trial de

novo nor an appeal on questions of law only, but a hybrid review in which the court “must

appraise all the evidence as to the credibility of the witnesses, the probative character of the

evidence[,] and the weight [to be given it].” Andrews v. Bd. of Liquor Control, 164 Ohio St. 275,

280 (1955). The common pleas court must give “due deference to the administrative [agency's]

resolution of evidentiary conflicts,” and “when the evidence before the court consists of

conflicting testimony of approximately equal weight the court should defer to the determination

of the administrative body * * *.” Conrad at 111. “However, the findings of the agency are by

no means conclusive.” Id. Thus, it is clear that although a court of common pleas may not

blatantly substitute its judgment for that of the administrative agency, the court must weigh

evidence of record, including the credibility of witnesses. Id. at 110; see Smith v. Richfield Twp.

Bd. of Zoning Appeals, 9th Dist. Summit No. 25575, 2012-Ohio-1175, ¶ 33 (considering an

administrative appeal under R.C. 2506).

       {¶13} A court of common pleas may “reverse, vacate, or modify the administrative

order” when “the court, in its appraisal of the evidence, determines that there exist legally
                                                5


significant reasons for discrediting certain evidence relied upon by the administrative body, and

necessary to its determination * * * .” Conrad at 111. “Thus, where a witness’ testimony is

internally inconsistent, or is impeached by evidence of a prior inconsistent statement, the court

may properly decide that such testimony should be given no weight.” Id. “Likewise, where it

appears that the administrative determination rests upon inferences improperly drawn from the

evidence adduced, the court may reverse the administrative order.” Id. at 111-112.

       {¶14} An “appellate court’s review is even more limited than that of the trial court.”

Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). Unlike the court of common pleas,

this Court is not permitted to weigh the evidence. Id. We may not reconsider the credibility of

witnesses. See id. “While it is incumbent on the trial court to examine the evidence, this is not a

function of the appellate court.” Id. On appeal, this Court determines only if the court of

common pleas abused its discretion in determining whether reliable, probative, and substantial

evidence supports the agency’s order. Id. An appellate court will not substitute its judgment for

that of the court of common pleas unless the trial court’s decision was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Absent an abuse of

discretion, we must affirm the trial court’s judgment, even if we would not reach the same

conclusion. Pons at 621.

       {¶15} Applying these standards, we believe that the common pleas court used the

correct scope of review in reversing the administrative order of the Board. In a thorough

opinion, the court of common pleas examined the evidence and testimony of all witnesses,

explained any relationship between the testimony and the charges against Eckert, and ultimately

concluded that the charges of discourteous treatment of the public, breach of conflict of
                                                6


interest/ethics policy and discrimination/harassment were “not supported by reliable, probative,

and substantial evidence.”

       {¶16} The Health District argues that the court of common pleas failed to properly

weigh the evidence and abused its discretion in failing to consider documents and testimony that

constituted hearsay evidence.     The Health District contends that the exclusion of hearsay

evidence “is inconsistent with Ohio administrative law.” In support of its argument, the Health

District points out that hearsay may be admitted in Board hearings if a proper “foundation

establishing the reliability of the testimony and its necessity” is laid. Ohio Adm. Code 124-9-02

provides that “[t]he board may permit the introduction of evidence otherwise excludable as

hearsay. A foundation, establishing both the reliability of the testimony and its necessity, shall

be laid before hearsay [is] admitted.”

       {¶17} However, despite the requirement to establish a foundation for the reliability and

necessity of hearsay testimony to make that testimony eligible for admission in evidence, the

Health District does not identify any disputed document or testimony, or any portion thereof, for

which a proper foundation was laid. See id. Absent a proper foundation for the disputed

evidence, we cannot hold that the common pleas court abused its discretion in declining to

consider evidence or portions thereof consisting of hearsay.

       {¶18} Moreover, the only specific hearsay finding that the Health District challenges is

the court’s comment that the testimony of gas station manager Faris is “fraught with hearsay.”

Eckert’s interaction with Faris in December 2012 was one of two incidents upon which the

Board based its findings upholding the charges of discourteous treatment of the public and

discrimination.
                                                   7


        {¶19} Faris, who previously lived in Jordan and Kuwait, is the managing principal of a

gas station owned by his wife. In general, Faris complained that Eckert was unprofessional

during his inspection of Faris’ gas station in December 2012. Faris arrived late after Eckert

began the inspection. Faris testified that, upon arrival, he conferred with station manager Mary

Lewis, who had been present but was unprepared to show Eckert required documentation. Faris

accused Eckert of making improper statements to Lewis. Faris also accused Eckert of making

discriminatory statements to Faris’ wife about foreigners. Eckert denied the accusations when

confronted by Faris and also at the administrative hearing. Neither Lewis nor Faris’ wife

testified at the hearing.

        {¶20} The Health District merely argues that “there were reasons why these women did

not testify” and contends that the court should therefore have considered an out-of-court affidavit

and interview notes concerning the absent witnesses. However, the fact that reasons may have

existed for not producing these witnesses does not establish the requisite reliability for the

admission of hearsay evidence concerning their interactions with Eckert in December 2012.

Moreover, we have recognized that “it is unreasonable to give credibility to [a] hearsay statement

and deny credibility to [a] claimant testifying in person.” Green v. Invacare Corp., 9th Dist.

Lorain No. 92CA5451, 1993 WL 175478, *2 (May 26, 1993), citing Taylor v. Bd. of Review, 20

Ohio App.3d 297, 299 (8th Dist.1984). Thus, the court of common pleas did not abuse its

discretion if it gave less weight to the hearsay evidence and more weight to Eckert’s denial of the

accusations attributed to Lewis and Faris’ wife.

        {¶21} The Health District also argues that the court of common pleas did not reasonably

evaluate the non-hearsay testimony concerning Eckert’s interactions with Faris in December

2012 and his interactions with Khatib in February 2013. We disagree.
                                                8


       {¶22} Aside from the discrimination charge, the Board also cited the incident with Faris

to uphold its finding of discourteous treatment of the public. Faris complained that Eckert

mistreated him during the inspection. Specifically, Faris complained that Eckert “comes so

mad” to inspections and is “not very nice to [Faris].” When Faris was late to the inspection in

December 2012, Eckert told Faris that it was “about time * * * you brought your ass here.” Faris

“took it as a joke as that’s how [Eckert] jokes.” Faris testified that he asked Eckert not to show

him broken equipment in front of customers. He said that Eckert was “not polite” and that his

discourse did not always pertain to the job. Faris was upset that Eckert “talk to me as six years

old” when explaining how to file the correct paperwork. He also was offended that Eckert used

his pointer finger to make a beckoning gesture to Faris.

       {¶23} The court of common pleas identified several legally significant factors that

diminished the relevance and credibility of Faris’ testimony.      In addition to finding Faris’

testimony “fraught with hearsay,” the court found, among other things, that: (1) portions of

Faris’ testimony were vague and unclear; (2) the Health District did not produce potentially

corroborating evidence identified by Faris (e.g., a surveillance video or testimony from the

testing vendor, Faris’ wife, and the station manager); (3) Faris’ chief complaint was about a

broken part and the associated cost, which he admitted were not caused by Eckert; (4) Faris’

station did not pass the EPA testing; and (5) Faris’ station did not have its paperwork ready for

inspection. The court also noted that Faris did not complain until he was urged to do so by

Eckert’s co-worker with whom there was “evidence of bad blood.”

       {¶24} Contrary to the Health District’s claim, with respect to the incident with Faris the

court of common pleas did precisely what the scope of its review requires. The court appraised

the evidence and identified several “legally significant reasons for discrediting certain evidence
                                                 9


relied upon by the administrative body, and necessary to its determination * * * .” See Conrad,

63 Ohio St.2d at 111. Under these circumstances, the court did not abuse its discretion.

        {¶25} The incident with Khatib in February 2013 was the second of the two main bases

for Eckert’s termination. Khatib initially claimed that on the drive to the site, Eckert told him

that he might see stickers on the gas pumps with a cartoon drawing of an extraterrestrial alien

head with a red circle and a dash through it, which was a signal to not buy gas from the station

because it was foreign owned. Khatib testified that Eckert later pointed out some alien stickers

on a gas pump. Khatib said that he believed that Eckert endorsed the purpose of the stickers:

                But he pointed them out to me and said, see that, I would never
                shop at this place or be a customer here. The exact context, I don’t
                remember the words, but basically something to the effect he
                pointed it out and said I wouldn’t go here.

        {¶26} Khatib emphasized that what really bothered him about Eckert was the discussion

about the alien stickers. In addition to the story about the alien stickers, however, Khatib

claimed that Eckert made a comment “to the effect of, you know, like little things like this, you

know, usually we let pass but, you know, in someone like this or, you know, these foreign guys, I

might not let it slide.”

        {¶27} The court of common pleas found that Khatib’s testimony was unreliable because

his account changed multiple times and became markedly “more innocuous.” Khatib initially

claimed in a May 1, 2013 email to Health District director Robert Hasenyager that Eckert kept

alien stickers on his clipboard and would place them on gas pumps himself. Khatib soon

retracted this version of events. In another email dated May 3rd, after Hasenyager pressed him

for details, Khatib revised his account, saying that Eckert never placed any alien stickers nor did

Khatib see any alien stickers in Eckert’s possession. Khatib further withdrew from his initial

account in a May 9th email, stating that he could not definitively state whether Eckert meant that
                                                  10


he placed the alien stickers personally or if he was just talking about people in general who did

place them. Khatib’s May 2013 emails did not mention the assertion that Eckert raised the

subject of the alien stickers during the drive to the inspection site. Regarding his claim that

Eckert said that he would not patronize stations where alien stickers were present, Khatib

modified his story and testified that he was not sure if Eckert was saying that he would not

patronize a station if he saw the stickers, or if that is what other people might do if they saw the

stickers.

        {¶28} Eckert addressed the alien sticker incident in his hearing testimony. Contrary to

Khatib’s assertion that the stickers were discussed on the way to the inspection site, Eckert

testified that the topic arose at the gas station. He testified that Tracy Weston, a representative of

Giant Oil who was at the station, called him over to a gas dispenser while he was conducting his

inspection. Eckert testified that Weston pointed to a sticker on the green dispenser nozzle and

asked if Eckert had ever seen one. According to Eckert, he had not. Eckert testified that the

sticker was a little bigger than a half dollar, depicting a cartoon space alien, with a line through it

like a highway sign warning against something. Eckert said that Weston told him that she had

seen them on almost all of the stations for which she was responsible. Eckert testified that,

because he did not know what the stickers were for, Weston proceeded to tell him that people

would place alien stickers on the pump nozzles which would alert an individual that was

purchasing gas there to not buy gas from that facility because it was foreign owned. He testified

that he explained to Khatib “almost verbatim what Tracy [Weston] had told me.” He testified

that he used the phrase “foreign owned” in describing what Weston told him because that is the

phrase Weston had used.
                                                   11


          {¶29} At the hearing, Harold Whaples, a petroleum services worker, testified that he

saw the same alien stickers witnessed by Eckert and Khatib. Like Eckert, he testified that

Weston told him about the stickers and their significance. He did not discuss the stickers with

Eckert.

          {¶30} In addition to his testimony about the alien stickers, Eckert testified regarding

Khatib’s claim that Eckert said that he would not let small things slide at stations where the

owner was a foreigner. Eckert denied making the statement. He claimed to use the same Ohio

EPA standards at the station he visited with Khatib as he did at other stations. That station did

not pass its tests that day, but did pass on a retest.

          {¶31} The common pleas court found that Khatib’s testimony about the alien stickers

was inherently unreliable and deserved little or no weight because his story changed significantly

with each retelling. The court observed, “While it is understandable that Khatib would take

offense to the nature of the stickers, he seems to have at least originally attributed their existence

to Eckert and then backed off of that position altogether.”

          {¶32} Having found Khatib’s testimony inconsistent with respect to the stickers, the

court went on to find that there was “no [credible] evidence presented” that Eckert said that “he

would not let some things slide with a station that was foreign-owned.” The court gave little

weight to Khatib’s testimony in that regard and instead credited Eckert’s testimony that he did

not make the statement and did not treat any station differently from another. The court also

found no evidence that any station actually was treated preferably over another. The common

pleas court observed that the Board drew an incorrect inference from Khatib’s testimony that

Eckert had the authority or ability to “let some things slide.” The common pleas court stated,

“there was considerable testimony to show that Eckert merely recorded the testing results; he did
                                                    12


not perform the tests himself.” Moreover, Eckert testified that his responsibilities included

recommending repairs to equipment, but that he could not make GDF owners replace equipment.

The common pleas court thus found that “it would seem that Eckert had no power or authority to

‘let little things slide’ or in essence treat stations any differently.”

        {¶33} Contrary to the Health District’s claim, the court of common pleas acted within its

authority in discounting Khatib’s testimony. The Supreme Court of Ohio has established that a

court of common pleas has discretion to discredit evidence when the witness’ testimony is

internally inconsistent.    In Conrad, the Court explained that when a witness’ testimony is

internally inconsistent, or is impeached by evidence of a prior inconsistent statement, the court

may properly decide that such testimony should be given no weight. Conrad, 63 Ohio St.2d at

111. Moreover, the common pleas court may reverse a decision of the administrative body when

it is based on an incorrect inference. Id. Thus, the court of common pleas was within its

discretion to give little or no weight to Khatib’s testimony, given his inability to recount a

consistent version of events, and based on the Board’s unsupported inference that Eckert had the

ability to treat station owners differently based on national origin or ethnicity. Indeed, the Health

District has not provided any evidence or argument to show that Eckert did have the ability to

treat station owners differently.

        {¶34} The court also did not err in adopting Eckert’s version of events in lieu of

Khatib’s account.      The court of common pleas must defer to the determination of the

administrative body only when “the evidence before the court consists of conflicting testimony

of approximately equal weight.” Id. When a witness’ testimony is given no weight because of

“legally significant” reasons such as inconsistency, the court of common pleas acts in accordance

with its statutory power under R.C. 119.12 in electing to not give credence to the testimony of
                                               13


that witness, and in relying instead upon the testimony of an opposing witness whose version of

events is more credible on the subject and therefore carries greater weight. Id. at 111-112.

Under these circumstances, we cannot conclude that the trial court abused its discretion in giving

Eckert’s testimony more credence than Khatib’s testimony.

       {¶35} The Health District also argues that the common pleas court failed to consider

“rebuttal evidence” to Eckert’s claim that he did not discriminate against any gas dispensing

facility or use racial language. The Health District emphasizes the testimony of Robert Colley, a

third-party tester, who claimed that Eckert used terms such as “foreigners” or “Arabs” or “towel

heads,” and would comment at certain stations “at least this is a white guy this time.”    Eckert

agreed that using the terms “towel head” or “Arabs” would be discrimination, but specifically

denied using those terms.

       {¶36} The court of common pleas found Colley’s testimony “less than credible.” The

court found, among other things, that although Colley attributed derogatory phrases to Eckert,

Colley himself used the terms “Arab” and “white guys” to refer to station owners, and that there

was some evidence that the other gas station inspector who was Eckert’s colleague was the

individual who used the term “towel head.” The court also took notice that there was no

corroborating evidence and no other witnesses who attributed this language to Eckert. In fact,

the transcript is unclear that Colley himself heard Eckert use any of these terms. When asked for

a specific example of Eckert’s conduct, Colley described only one incident when Eckert went

into a station where he allegedly persuaded the owners to change old gas pump nozzles and said

“Arabs [don’t] want to replace their stuff.” However, Colley admitted that he was not in the

store with Eckert when Eckert supposedly used the discriminatory language. Colley testified that

his testing company lost the station’s business after the owners agreed to pay for new nozzles
                                                       14


and then got upset about spending the money and accused Colley of working with Eckert to

convince them to purchase expensive new equipment. So, while Colley was aware of the station

owner’s reaction following the conversation with Eckert, his testimony regarding what Eckert

said is hearsay without any foundation as to its reliability. Thus, the common pleas court was

entitled to disregard it or assign it little weight.

        {¶37} The court of common pleas weighed the “rebuttal evidence” and Colley’s

credibility and found it lacking. In so doing, the court acted within the scope of its authority

under R.C. 119.12.       Accordingly, the common pleas court did not abuse its discretion in

discounting this evidence.

        {¶38} The Health District also argues that the common pleas court did not correctly

weigh testimony that Eckert used the term “30 percenters” or “foreign owned.”            Eckert

remembered using the term “30 percenters” but not “foreign born” to describe GDFs in

conversation with his supervisors, but not during inspections. Rubens, who testified that he

previously supervised Eckert and met with Eckert on January 15, 2013, testified that Eckert was

instructed at the meeting not to use those terms. He further testified that “30 percenters” is a

term that would accurately reflect that 30 percent of GDFs are foreign owned. He testified that

Eckert used the term during the January 2013 meeting. Eckert testified that he used the term

“foreign owned” during the discussion with Khatib regarding the alien stickers because he was

parroting what Weston told him.

        {¶39} The court of common pleas found that any use of the terms “foreign owned” and

“30 percenters” did not provide reliable, probative, and substantial evidence of discrimination,

because they “are actually accurate terms used to describe ownership rather than the actual

ethnicity of the owners themselves.” The Health District asks this Court to reexamine and
                                                  15


reweigh all of the evidence and, from the tenor of the whole record, conclude that Eckert did not

use the terms as factual descriptors, but rather as discriminatory labels. This we may not do.

Appellate courts may not weigh the evidence and judge credibility in order to substitute our

judgment for that of the common pleas court. Pons, 66 Ohio St.3d at 621. Accordingly, we

cannot find that the trial court abused its discretion in evaluating testimony concerning Eckert’s

use of the terms “30 percenters” or “foreign owned.”

          {¶40} To the limited extent that the Health District challenges the finding of the court of

common pleas with respect to the charge of conflict of interest, the challenge lacks merit. As an

initial matter, it is unclear what facts the Health District asserts as the basis for this charge.

Regardless, the trial court correctly determined that any such evidence is “scant.” Although

Eckert and other witnesses testified that Eckert approached individuals about an outside business

interest involving the marketing of natural gas, it is undisputed that Eckert did not, in fact, move

forward with any plans for a business venture. Additionally, the record contains only vague

accusations, but no proof, that Eckert had a policy of recommending particular third-party testing

vendors or that he had a financial interest in any vendor. Accordingly, the court of common

pleas did not err in finding a lack of reliable, probative, and substantial evidence to support this

charge.

          {¶41} The Health District argues the court of common pleas misinterpreted the Health

District’s policy 403 regarding progressive discipline. Under the policy, the only grounds that

justify removal from employment are “Group 3” offenses, which are “of a very serious and

possibly criminal nature and which cause a critical disruption to the productivity, efficiency,

and/or morale of the organization.” The Health District argues that the court of common pleas

“implicitly held” without any supporting authority that policy 403 “sets forth a mandatory
                                                 16


progressive discipline policy.” On this basis, the Health District contends that the trial court

erroneously concluded “that Eckert should not have been terminated for what was characterized

by Eckert as a first offense.” However, the trial court did not make any findings regarding policy

403.   Rather, the court based its ruling on a lack of “reliable, probative, and substantial

evidence.” Accordingly, we decline the Health District’s invitation to address implicit findings

not expressed in the court’s opinion.

       {¶42} The Health District also argues that the common pleas court misinterpreted policy

411. Under policy 411, “No person or persons responsible to the Board of Health and its officers

and members shall discriminate against any citizen requesting/needing services * * * on the basis

of race, religion, color, ethnicity, national origin * * *.”          Thus, policy 411 prohibits

discriminatory conduct toward the public.

       {¶43} The Health District claims that Eckert engaged in discrimination based on

national origin or ethnicity. In finding that the charge of discrimination was unsupported by

“reliable, probative, and substantial evidence,” the court of common pleas looked to a dictionary

definition to define discrimination as “unfair treatment or denial of normal privileges to persons”

belonging to protected classifications and a “failure to treat all persons equally” without

reasonable distinction.   The common pleas court then found that “discrimination requires

action.”

       {¶44} The common pleas court found that “[e]vidence must be presented to demonstrate

that a particular individual was unfairly treated as compared to others.” The court concluded that

“no evidence was presented to show that foreign station owners were subjected to disparate

treatment * * * [i]ndeed, no one was identified, came forward, or testified that he or she was

treated differently based upon his or her ethnicity or country of origin.”
                                                  17


       {¶45} The Health District asserts that the court “incorrectly held that discrimination

requires a showing of discriminatory effects to be actionable.” The Health District misstates the

court’s holding. The court actually found that discrimination requires “action” in the form of

unequal or unfair treatment. The Health District conceded in its opening appellate brief that

discrimination requires a finding that “Eckert acted consistently with [a] discriminatory policy.”

Thus, the Health District essentially agrees with the trial court that discrimination requires

“action.”

       {¶46} The Health District argues that Eckert did act consistently with a discriminatory

policy. In support of its argument, the Health District cites Eckert’s purported comments to

Khatib, including Eckert’s alleged statements that he would not let little things slide with foreign

owned gas stations or patronize them. However, as discussed above, we find that the court of

common pleas did not abuse its discretion in holding that the claim that Eckert made these

statements or acted in a manner consistent with them is not supported by reliable, probative, and

substantial evidence. Also in support of its argument, the Health District cites Eckert’s reference

to “30 percenters” and “foreign born” gas station owners during the meeting on January 15,

2013. We also find, for the reasons already explained, that the trial court did not abuse its

discretion in determining that these terms were not substantial and probative evidence of

discrimination. As such, we do not reach the Health District’s argument that these incidents

constitute “direct evidence” of discrimination.

       {¶47} The Health District also cites Faris’ testimony that Eckert was rude to him.

However, rudeness by itself is not evidence of discrimination based on national origin or

ethnicity. Moreover, as we have discussed, the common pleas court did not err in giving little

weight to Faris’ testimony.
                                                18


       {¶48} The Health District disagrees with the ruling of the common pleas court and asks

us to evaluate the evidence considering the entire record, including hearsay testimony, and the

cumulative effect of the conflicting evidence. Essentially, the Health District asks us to weigh

the evidence and reach a result different from the court of common pleas. However, the power

to weigh evidence is not within this Court’s scope of review. Pons, 66 Ohio St.3d at 621.

Moreover, we may not substitute our judgment for the common pleas court – even if we believe

that we would reach a different result – when we have found that the court of common pleas

acted within the scope of its authority under R.C. 119.12. We find that the common pleas court

acted in accordance with its scope of review in determining that the charges against Eckert were

not supported by reliable, probative, and substantial evidence, and in overruling the decision of

the Board. Accordingly, the common pleas court did not abuse its discretion. On this basis, the

Health District’s assignment of error is overruled.

                                                III

       {¶49} We have determined that the common pleas court acted within its scope of review

under R.C. 119.12, and therefore did not abuse its discretion. The assignment of error is

overruled. The judgment of the Summit County Court of Common Pleas is affirmed.

                                                                             Judgment affirmed.




       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 Summit, 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.
                                                19


       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.




                                                     BETH WHITMORE
                                                     FOR THE COURT



HENSAL, J.
CONCURS.

CARR, P. J.
DISSENTING.

       {¶50} I respectfully dissent. I would reverse as, in my opinion, the trial court exceeded

its scope of review.


APPEARANCES:

SHERRI BEVAN WALSH, Prosecuting Attorney, and LESLEY A. WALTER, Assistant
Prosecuting Attorney, for Appellant.

NANCY GRIM, Attorney at Law, for Appellee.
