Gray v. Ohio Civil Rights Comm. , 37 Ohio App. 3d 16 ( 1987 )

This matter is before us on an appeal from a judgment of the Franklin County Court of Common Pleas in favor of the Ohio Civil Rights Commission. Appellant, Donald Gray, filed discrimination charges against his employer, Roadway Express, Inc. ("Roadway"). He alleged in these charges that Roadway terminated his employment due to a physical handicap. After a public hearing, the Civil Rights Commission's hearing examiner recommended that the complaint be dismissed. Thereafter, the full commission voted to sustain the dismissal. On July 23, 1985, the commission mailed a copy of the final order to appellant and his attorney. The appellant filed a petition for judicial review on August 26, 1985. The Franklin County Court of Common Pleas sustained appellees' motions to dismiss on the basis that the petition was not timely filed.

In the section "Law and Argument," appellant's brief asserts:

"Ohio Revised Code Section 4112.06 does not impose a mandatory thirty-day time requirement in which to file an appeal from a final order of the Ohio Civil Rights Commission."

In comparing the statutory language of R.C. 4112.06(H) with the language of R.C. 4141.28(O), the language of R.C. 4112.06(H) is not as emphatic in requiring a mandatory, thirty-day time requirement in which to file an appeal. However, it is unlikely that the legislature's intent was to establish an open-ended statute of limitations, which is clearly against public policy. Also, it is unlikely that the legislature intended the trial court to conduct a de novo review.

R.C. 4112.06(H) states as follows:

"If no proceeding to obtain judicial review is instituted by a complainant, or respondent within thirty days from the service of order of the commission pursuant to this section, the commission may obtain a decree of the court for the enforcement of such order upon showing that respondent is subject to the commission's jurisdiction and resides or transacts business within the county in which the petition for enforcement is brought."

Accordingly, R.C. 4112.06(H) sets forth a time period or grace period within which the complainant can act and the commission cannot. This section also creates jurisdiction in the common pleas court only when the aggrieved party has filed a petition for review within thirty days of the service of the final commission order. It is only during this thirty-day period, following the service of this final order, that the complainant may exercise his right to petition for judicial review. However, the commission is unable to enforce its order during this same time frame.

Once the thirty days have passed, the commission is able to seek an enforcement of its order. It necessarily follows that the commission's right to enforce such orders causes the complainant to relinquish his right to seek a petition for judicial review.

Upon review of the federal legislation and similar legislation from other states in this same area of the law, there is no case law or statutory law to support appellant's position. See Section 2000e-16(c), Title 42, U.S. Code; Canamore v. Tube Turns Div. ofChemetron Corp. (Ky.App. 1984), 676 S.W.2d 800. The spirit of the civil rights legislation requires that these laws be liberally construed. Thus, administrative appeals from agency orders would either be governed by R.C. 119.12 or R.C. 2505.07. R.C. 119.12 imposes a fifteen-day limitation and R.C. 2505.07(B) requires the appeal to be filed within ten days. Therefore, R.C.4112.06(H) gives the most liberal construction to the time limit of appellant's appeal.

Appellant concedes that his appeal was filed beyond the thirty-day limitation pursuant to R.C. 4112.06(H). An individual who elects to proceed under the administrative provisions of R.C.4112.01 et seq. is bound by the thirty-day time limitation of R.C. 4112.06(H). After service of the commission's order, the time limit for appeal, pursuant to R.C. 4112.06(H), is thirty days. Service of the order is defined in Ohio Adm. Code4112-1-01(M) which states that "service" is complete upon mailing. In the instant case, the commission mailed the order on July 23, 1985. Therefore, when appellant filed his appeal on August 26, 1985, he was beyond the thirty-day time requirement for filing such an appeal pursuant to R.C. 4112.06(H).

There are several recent appellate court decisions which interpret R.C. 4112.06(H). In Walters v. Sears, Roebuck Co. (Aug. 15, 1986), Wood App. No. WD-86-6, unreported, the Sixth District Court of Appeals held at 5-6 that:

"In following this line of cases, this court finds that appellant has not complied with the strict requirements of the statute that has conferred his right of appeal. Therefore, the Wood County Court of Common Pleas did correctly grant the OCRC's motion to dismiss on the ground that the appellant's petition for judicial review was not timely filed. * * *"

The facts of the Walters case are that the appellant filed a complaint with the OCRC alleging discrimination as a result of appellant's handicap. The OCRC found there was insufficient evidence on which to issue a complaint against Sears. The appellant requested reconsideration which was denied and notice of the final decision and order was mailed to the appellant on April 15, 1985 and received by the appellant on April 16, 1985. The appellant petitioned the Wood County Court of Common Pleas on May 16, 1985 for judicial review pursuant to R.C. 4112.06(H) and the Wood County Court of Common Pleas dismissed the petition on the basis that R.C. 4112.06(H) permits appeal only within thirty days after notice of the OCRC decision.

Virtually the same fact pattern was presented to the Court of Appeals for the Fifth Appellate District in the case ofSchumacker v. Pinkertons, Inc. (Jan. 28, 1986), Stark App. No. CA 6465, unreported. The Fifth Appellate District also held that the thirty-day limitation as set forth in R.C. 4112.06(H) applied. In an opinion that denied the appellant the right to a judicial review, the notice of appeal had been filed more than thirty days after the notice of the order and entry had been mailed to the appellant.

More recently in the case of Makiaris v. Ohio Civil RightsComm. (Jan. 15, 1987), Cuyahoga App. No. 51548, unreported, Judge Markus stated at 1 that:

"The employee argues here that his complaint asserts an independent discrimination action, rather than an untimely appeal from the commission's adverse ruling. Alternatively, he contends that the appeal time did not run because the commission did not advise him about the time allowed to appeal its ruling.

"We hold that the employee's administrative claim was his sole remedy for alleged handicap discrimination. Ohio recognizes no independent civil action for such a claim. The only procedure to challenge the commission's ruling is an appeal pursuant to R.C.4112.06, and this employee did not appeal in the time allowed by law. The commission did notify him about his right to appeal its ruling and had no duty to specify the time for that appeal. Hence, we affirm the trial court's judgment."

While Judge Markus does not specifically address the question of the thirty-day limitation on the time of appeal as didWalters, supra, and Schumacker, supra, he did comment on the applicability of R.C. Chapter 4112 on the charge of handicap discrimination:

"The code establishes an administrative remedy for employment handicap discrimination. R.C. 4112.01(A), 4112.05. It creates an independent civil action for discriminatory housing practices. R.C. 4112.051. It also establishes an independent civil action for employment age discrimination. R.C. 4101.17, 4112.02(N). However, the code provides no civil action beyond an appeal from the commission's decision for any other type of employment discrimination. Howard v. State Farm Ins. (1978), 61 Ohio App. 2d 198,203; see Morris v. Kaiser Engineering, Inc. (1984), 14 Ohio St. 3d 45,48. The employee's sole remedy here was his administrative claim.

"* * *

"The trial court referred to R.C. 4112.06(H) as allowing thirty days for an appeal from that decision. While this district has not resolved that question, at least one other district has similarly construed that subsection. Schumacker v. Pinkertons,Inc. (Jan. 28, 1986), Stark Co. App. No. CA 6465, unreported. Several other trial courts have reached the same conclusion.Orris v. Ohio Civ. Rights Comm. (Sept. 13, 1982), Lake Co. Com. Pl. No. 81-CIV-944, unreported; Perez v. Ohio Civ. Rights Comm. (Sept. 16, 1981), Ottawa Co. Com. Pl. No. 21020, unreported;Barrison v. Ohio Civ. Rights Comm. (Jan. 6, 1984), Seneca Co. Com. Pl. No. 41659, unreported; Walters v. Sears, Roebuck andCo. (Jan. 23, 1986), Wood Co. Com. Pl. No. 85 CIV 181, unreported; Gillespie v. Ohio Civ. Rights Comm. (Sept. 16, 1981), Butler Co. Com. Pl. No. CV81070719, unreported; Tenyak v. P.P.G.Indus. (Dec. 18, 1980), Summit Co. Com. Pl. No. 80-0-2398, unreported." Makiaris, at 3-5.

Accordingly, the trial court did not abuse its discretion in granting appellees' motion to dismiss on the basis that the petition was not timely filed. Angelkovski v. Buckeye PotatoChips Co. (1983), 11 Ohio App. 3d 159, 11 OBR 242,463 N.E.2d 1280. The judgment of the Franklin County Court of Common Pleas is affirmed.

Judgment affirmed.

STRAUSBAUGH, P.J., concurs.

WHITESIDE, J., dissents.