486 N.E.2d 143 | Ohio Ct. App. | 1984
Complainant, John M. McCrea, appeals from the affirmance by the court of common pleas of the determination made by the Ohio Civil Rights Commission that there was no probable cause to believe that McCrea had been the subject of age discrimination, and the commission's refusal to issue a complaint pursuant to R.C.
McCrea subsequently filed a charge with the Ohio Civil Rights Commission claiming that he had been the subject of unlawful age discriminatory practices by the university. At the time of his initial response to the listing, McCrea was fifty-six years old. The successful applicant was twenty-six years old. After an informal preliminary investigation, the commission determined that there was no probable cause to believe that McCrea had been unlawfully discriminated against because of his age. The commission therefore notified McCrea that it would not file a complaint against the university or otherwise pursue the matter further. McCrea's request for reconsideration was denied.
McCrea appealed the commission's action to the court of common pleas, alleging that the decision was not based upon reliable, probative, or substantial evidence. The court affirmed the decision of the commission. McCrea now appeals to this court, setting forth the following assignment of error:
"The trial court erred in ruling that the decision of the Ohio Civil Rights Commission was supported by reliable, probative and substantial evidence. The trial court's ruling was thus against the manifest weight of the evidence."
A charge of unlawful discrimination, brought by an individual, is to be made in writing and under oath. R.C.
If the commission determines after such investigation that it is not probable that unlawful discrimination has been engaged in, it must notify the complainant that it will not file a formal complaint in the matter. R.C.
If the commission determines that it is probable that unlawful discriminatory practices have been or are being engaged in, the commission will initiate informal conciliatory measures in an effort to reach a settlement through the voluntary elimination of the discriminatory practices. If conciliation fails, the commission shall serve the respondent with a complaint and notice of formal hearing to be held before the commission, a member thereof, or hearing examiner.
At the hearing, testimony is taken under oath, reduced to writing and filed with the commission. R.C.
The final orders of the commission, including its refusal to issue a complaint, are subject to judicial review upon the filing of a petition in the court of common pleas by the aggrieved party. R.C.
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.
Thus, although the statute requires the commission's investigator to set forth findings of fact in a determination of no probable cause, these findings of fact are not subject to judicial review in the sense that the court can examine the record to see whether the findings are supported by the evidence. Nevertheless, the legislature intended that the commission set forth the factual findings underlying its decision not to issue a complaint and also that this decision would be subject to judicial review. As an appeal of the commission's determination of no probable cause cannot include a review of its findings of fact, the permissible scope of judicial review is brought into sharper focus.
R.C.
Our neighboring states of Kentucky and Pennsylvania have statutory provisions for dismissal of a finding of no probable cause similar to ours. A review of cases decided upon these provisions reveals that these jurisdictions have come to the same result as we do today. In each case, the standard of review applied to the dismissal of a charge for lack of probable cause is whether such dismissal was unlawful, arbitrary and capricious. See Kentucky Comm. on Human Rights v. Fraser (Ky. 1981),
Applying this standard to the instant case, we find that the trial court did not err in affirming the decision of the commission. The commission's findings of fact stated, interalia, that McCrea had not submitted a specific research outline, as did the successful candidate; that the successful candidate's *318 publications were significantly more recent than were McCrea's; and that the investigator found that McCrea's references were unanimously ill-favored. The commission's conclusion that there was no probable cause to believe that McCrea was unlawfully discriminated against because of his age is, therefore, not irrational, unlawful, arbitrary or capricious. Accordingly, the assignment of error must be overruled. The judgment is affirmed.
Judgment affirmed.
BAIRD, P.J., and MAHONEY, J., concur.