Ohio Civ. Rights Comm. v. Triangle Invest. Co.Ohio Civ. Rights Comm. v. Triangle Invest. Co.
Rendered on March 15, 2012
Michael DeWine, Attorney General, Duffy Jamieson and Stefan J. Schmidt, for appellant.
Zeiger, Tigges & Little LLP, Marion H. Little, Jr. and Matthew S. Zeiger, for appellee.
APPEAL from the Franklin County Court of Common Pleas
CONNOR, J.
{¶ 1} Appellant, Ohio Civil Rights Commission (“commission“), appeals from the summary judgment granted by the Franklin County Court of Common Pleas in favor of appellees, Triangle Investment Company, Triangle Properties, Inc., Triangle Real Estate Services, Inc., and Albany Club Condominiums Association (collectively “Triangle“). For the reasons that follow, we reverse.
{¶ 2} This is the second time this matter has presented to this court. See Ohio Civ. Rights Comm. v. Triangle Invest. Co., 10th Dist. No. 06AP-1009, 2007-Ohio-2937. As we previously outlined, an apartment complex known as the Albany Club Apartments was constructed in Columbus, Ohio. Id. at ¶ 2. Based upon the design and construction of the complex, Fair Housing Contact Service filed a charge with the commission alleging
{¶ 3} On December 14, 2005, Triangle filed a motion for summary judgment and argued that the commission had failed to meet the jurisdictional prerequisite of completing an unsuccessful conciliation attempt prior to filing suit. The motion was opposed and was eventually scheduled for an evidentiary hearing. Following the hearing, the trial court granted summary judgment in favor of Triangle. The commission timely appealed, and we reversed after concluding that the trial court relied upon impermissible evidence in granting summary judgment. Id. at ¶ 14, 17. Upon remand, Triangle again sought summary judgment, which was again granted. The commission has timely appealed and presents the following assignments of error:
First Assignment of Error: The Trial Court erred when it held that the Commission did not fulfill its statutory duties.
Second Assignment of Error: The Trial Court erred when it failed to determine whether the “errors” in the proposed agreement caused Triangle to reject the Commission‘s attempts to conciliate, and when it refused to allow the Commission to conduct discovery on this issue.
Third Assignment of Error: The Trial Court erred when it held that the Commission too quickly shifted the burden to Triangle to present a counteroffer.
Fourth Assignment of Error: The Trial Court erred when it found that the Commission‘s conciliation process was flawed from the beginning.
Fifth Assignment of Error: The Trial Court erred when it dismissed the case rather than staying the matter to allow additional conciliation to take place.
Sixth Assignment of Error: The Trial Court erred when it refused to allow the case to proceed on the additional causes of action the Commission asserted in its Amended Complaint.
{¶ 4} The first, third, and fourth assignments of error all regard the substantive basis for granting summary judgment in favor of Triangle. For purposes of clarity, we will address these assignments of error together.
{¶ 5} An appellate court‘s review of summary judgment is de novo. Helton v. Scioto Cty. Bd. of Commrs., 123 Ohio App. 3d 158, 162 (4th Dist. 1997). Under such a review, an appellate court stands in the shoes of the trial court and conducts an independent review of the record. Jones v. Shelly Co., 106 Ohio App. 3d 440, 445 (5th Dist. 1995). Summary judgment is proper only when the party moving for summary judgment demonstrates that: (1) no genuine issue of material fact exists; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in that party‘s favor.
{¶ 6} In its first, third, and fourth assignments of error, the commission argues that summary judgment was improperly granted. It argues that it met its statutory obligations by completing an unsuccessful conciliation attempt. Thus, it argues that it had jurisdiction to file the complaint underlying this matter.
{¶ 7} Whether the commission has jurisdiction to file an administrative complaint under
{¶ 9}
{¶ 10} “Any person may file a charge with the commission alleging that another person has engaged or is engaging in an unlawful discriminatory practice.”
{¶ 12} Conciliation is a flexible and responsive process involving an interchange amongst multiple participating parties. See Equal Emp. Opportunity Comm. v. Norvell & Wallace, Inc., M.D.Tenn. No. 3:02-0951 (Apr. 18 2003), quoting Equal Emp. Opportunity Comm. v. Kaiser Foundation Health Plans, Inc., N.D.Ohio No. 1:98 CV 2839 (May 12, 1999); see also Equal Emp. Opportunity Comm. v. One Bratenahl Place Condominium Assn., 644 F. Supp. 218, 221 (N.D.Ohio 1986).
{¶ 13} A completed and unsuccessful conciliation attempt is a jurisdictional prerequisite to filing a complaint, unless the commission issues a complaint directly upon knowledge of discrimination. Republic Steel at syllabus. Upon our review, however, no Ohio court has set standards for determining whether the jurisdictional prerequisite has been met.
{¶ 14} When the commission‘s conciliation efforts are challenged in court, the court‘s only role is to determine “the reasonableness and responsiveness” under the circumstances. See Dinkins v. Charoen Pokphand USA, Inc., 133 F. Supp. 2d 1237, 1241-
{¶ 15} As to the circumstances presented herein, on April 1, 2004, the commission issued a probable cause letter to Triangle. The letter described the commission‘s preliminary investigation, which revealed alleged violations pertaining to the thresholds of doorways, the hardware used on the entrance for the apartment, the height of the thermostat, the floor space between cabinets, the floor space for bathroom doors, and the slope of walkways in the absence of handrails. According to the commission, these alleged violations constituted unlawful discriminatory practices under
{¶ 16} Also on April 1, 2004, the commission sent a formal, written invitation to engage in conciliation. This invitation named Ms. Wallace as the commission‘s conciliator. It suggested that Triangle contact her in order to schedule a meeting to participate in conciliation. Attached to this letter was a proposed Conciliation Agreement and Consent Order (“CACO“).
{¶ 17} Also on April 1, 2004, Ms. Wallace obtained the commission‘s file related to the charges. At that point, she became aware of the identities of the complainant, the respondent, and the respondent‘s counsel.
{¶ 18} Ms. Wallace testified about the typical role conciliators play in attempting to resolve discrimination charges. According to Ms. Wallace, conciliators act as intermediaries between the complainants and respondents. They attempt to eliminate the discriminatory practices and facilitate settlements. Usually, upon being assigned as a conciliator, Ms. Wallace first contacts a respondent‘s counsel in order to determine its
{¶ 19} With regard to the specific facts underlying this matter, on April 5, 2004, Ms. Wallace called Marion Little, Triangle‘s counsel. She asked if Triangle was interested in signing the proposed CACO. According to Mr. Little, Triangle had no such interest. Ms. Wallace then asked if Triangle had any counter proposals to resolve the charges. Mr. Little again said no. Instead of discussing conciliation, Mr. Little inquired about the process of requesting reconsideration of the commission‘s probable cause determination.
{¶ 20} Following the April 5, 2004 telephone call, a “notice of failure to conciliate” was mailed to Triangle‘s counsel. This notice reflected the content of the telephone call and referenced the fact that Triangle refused to sign the proposed CACO and refused to engage in other negotiations. It also indicated that the commission would receive notice of the failure to conciliate within seven days. Finally, the notice indicated that any further settlement offers would need to be made within seven days.
{¶ 21} On April 15, 2004, another attorney representing Triangle, Matthew Zeiger, sent a facsimile to Ms. Wallace requesting reconsideration of the commission‘s probable cause determination. According to Ms. Wallace, she had no role in the request for reconsideration process. However, she indicated that Triangle‘s request for reconsideration had been deemed untimely by the commission. Nevertheless, she used her April 15, 2004 conversation with Triangle‘s counsel to again inquire about Triangle‘s willingness to engage in conciliation. Mr. Zeiger refused and instead expressed frustration with the fact that Triangle‘s request for reconsideration had been deemed untimely.
{¶ 22} On August 26, 2004, another notice of failure to conciliate letter was sent to Triangle‘s counsel. It mirrored the April 5, 2004 letter by indicating that the commission would receive notice of the failure to conciliate within seven days and that any proposed
{¶ 23} On September 17, 2004, the commission issued its administrative complaint.2 The matter was removed to the trial court by way of an election in accordance with
{¶ 24} The determinative issue, therefore, is whether conciliation was attempted by the commission. Again, a completed and unsuccessful conciliation attempt is a jurisdictional prerequisite to filing a complaint. Republic Steel, 44 Ohio St. 2d at syllabus. Thus, an attempt must be made to undertake the flexible and responsive process to resolve the charges and eliminate the discrimination. See Norvell & Wallace, M.D.Tenn. No. 3:02-0951, quoting Kaiser, N.D.Ohio No. 1:98 CV 2839.
{¶ 25} Under
Failure by a respondent to agree to a proposed conciliation agreement or to submit a counter proposal acceptable to the commission, shall constitute prima facie evidence of a failure, within the meaning of division (A) of section 4112.05 of the Revised Code, of informal methods of conference, conciliation and persusasion
{¶ 26} In this matter, it is undisputed that the commission sent Triangle a proposed conciliation agreement. Triangle twice refused to sign it. Further, Triangle never submitted a counter proposal, despite multiple invitations to do so. According to
{¶ 27} When a respondent rejects a conciliation attempt, the commission may file its complaint. See Keco, 748 F.2d at 1102 (“once the employer rejects the conciliation attempts, the EEOC is free to file suit“); see also
{¶ 28} In this matter, Triangle‘s arguments all challenge the form and substance of the commission‘s conciliation efforts. Indeed, Triangle argues that conciliation was not attempted and offers two positions in support. First, Triangle contends that the proposed CACO was defective because: it did not reflect the content of the commission‘s probable cause determination; it contained discrepancies regarding the parties and the apartment complex at issue; it incorrectly cited remedial actions sought by the commission; and it omitted a dollar amount due as damages as a result of the discrimination. Second, Triangle notes Ms. Wallace had no authority to change the proposed CACO and had not familiarized herself with the charges prior to contacting Triangle‘s counsel. Triangle notes the fact that Ms. Wallace had no authority to accept a counter proposal. According to Triangle, had it made a counter proposal, Ms. Wallace would have been forced to present it to her supervisor and then to the complainant. Again, based upon these circumstances, Triangle argues that conciliation was never attempted. We disagree.
{¶ 29} Importantly, Triangle‘s arguments require a consideration of the commission‘s conciliation efforts in isolation, with no regard for Triangle‘s own participation in the process. Triangle focuses on the content of the proposed CACO and cavils about the errors and omissions contained therein. Triangle cites Ms. Wallace‘s limited authority, as if it had some relation to what actually transpired amongst the parties. It did not. Conspicuously omitted from these arguments is any reference to Triangle‘s own participation in the process. We cannot analyze the commission‘s conciliation efforts without also considering Triangle‘s uniform unwillingness to engage in conciliation. Again, in reviewing the commission‘s conciliation efforts, we must determine only whether the commission‘s efforts were reasonable and responsive in light of Triangle‘s conduct and participation. See Prudential, 763 F.2d at 1169, citing Marshall, 605 F.2d at 1335; see also Dinkins, 133 F. Supp. 2d 1237 at 1241-42, citing Kingler, 636 F.2d at 107. As is clear, the commission‘s every effort at conciliation was met with uniform resistance.
{¶ 31} Because conciliation requires at least two willing participants and Triangle refused to sign the CACO, refused to offer counter proposals, and otherwise refused to engage in any conciliation negotiations, we conclude that the commission‘s conciliation efforts were reasonable and responsive under the circumstances of this matter. Thus, we find that the commission satisfied the jurisdictional prerequisite of attempting conciliation prior to filing the complaint underlying this matter. The trial court erred when it concluded to the contrary.
{¶ 32} Based upon the foregoing, we sustain the commission‘s first, third, and fourth assignments of error, which renders moot the commission‘s second, fifth, and sixth assignments of error. We accordingly reverse the judgment rendered by the Franklin County Court of Common Pleas and remand this matter for further proceedings in accordance with law and consistent with this decision.
Judgment reversed; cause remanded.
BRYANT and TYACK, JJ., concur.