Smith v. Friendship Village of Dublin, Ohio, Inc. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Smith v. Friendship Village of Dublin, Ohio, Inc., 92 Ohio
St.3d 503, 2001-Ohio-1272]

SMITH, APPELLEE, v. FRIENDSHIP VILLAGE OF DUBLIN, OHIO, INC.,
APPELLANT.
[Cite as Smith v. Friendship Village of Dublin, Ohio, Inc. (2001), 92 Ohio
St.3d 503.]
Civil Rights Commission -- Filing of an unlawful discriminatory charge with
Ohio Civil Rights Commission under R.C. 4112.05(B)(1) does not
preclude person alleging handicap discrimination from instituting an
independent civil action under R.C. 4112.99.
(Nos. 00-1456 and 00-1553 -- Submitted May 16, 2001 -- Decided August 15,
2001.)
APPEAL from and CERTIFIED by the Court of Appeals for Franklin County, No.
99AP-1332.
__________________
SYLLABUS OF THE COURT
The filing of an unlawful discriminatory practice charge with the Ohio Civil
Rights Commission under R.C. 4112.05(B)(1) does not preclude a person
alleging handicap discrimination from instituting an independent civil
action under R.C. 4112.99.
__________________

FRANCIS E. SWEENEY, SR., J. This appeal stems from a handicap
discrimination claim brought by appellee, Kristie Smith, against appellant,
Friendship Village of Dublin, Ohio, Inc.

On September 2, 1997, appellee was hired by appellant as a home health
aide. Appellee, a diabetic, was required to monitor her blood-sugar level
throughout the day and to administer insulin when needed. In her complaint,
appellee alleged that appellant denied her request to adjust her work schedule to

SUPREME COURT OF OHIO
monitor and maintain her blood sugar. Appellee further alleged that appellant
denied her a promotion because of her disability, and that when her husband
complained about this alleged discrimination, appellant terminated her
employment.

Appellee filed a charge of discrimination with the Ohio Civil Rights
Commission ("commission"). On August 24, 1998, the Cleveland regional office
of the commission issued a recommendation that no probable cause existed to
support appellee's complaint. The recommendation stated that it was based upon
evidence indicating that appellee resigned from her position to enter appellant's
nurse's aide training classes and that appellee failed these classes and failed to
meet an agreed-upon schedule for additional training.

On October 1, 1998, the commission issued an order concluding that the
evidence did not substantiate appellee's claim that she was discharged because of
her disability or in retaliation for her protesting a "protected activity." The
commission order noted that it was a final order subject to judicial review under
R.C. 4112.06.

One day after the commission's order, pursuant to R.C. 4112.99, appellee
filed this civil action against appellant in the Franklin County Court of Common
Pleas alleging employment discrimination, retaliation, and intentional infliction of
emotional distress. Appellant answered the complaint and then filed a motion for
summary judgment. In its motion, appellant argued that appellee's sole remedy
was by judicial review of the commission's order pursuant to R.C. 4112.06, which
she had failed to pursue, and that she could not bring an independent handicap
discrimination action pursuant to R.C. 4112.99 after her claim had been dismissed
by the commission. The trial court granted the summary judgment motion,
finding that appellee could not file an independent civil action in the common
pleas court because she had already elected an alternative remedy.
2

January Term, 2001

Appellee appealed to the Franklin County Court of Appeals. The
appellate court reversed. The appellate court held that appellee was not barred
from filing her complaint with the trial court pursuant to R.C. 4112.99. In so
holding, the court determined that in enacting R.C. Chapter 4112, the General
Assembly did not intend to create a requirement that aggrieved parties elect
between civil or administrative remedies for handicap discrimination claims.
However, upon motion, the court of appeals certified a conflict to this court,
finding that its decision conflicts with a decision from the Seventh District in
Hultberg v. Ohio Edison Co. (1996), 116 Ohio App.3d 130, 687 N.E.2d 12.

The case is now before this court upon our determination that a conflict
exists (case No. 00-1553) and upon the allowance of a discretionary appeal (case
No. 00-1456).

The question certified by the court of appeals asks whether appellee is
"barred from filing her complaint with the trial court pursuant to R.C. 4112.99
simply because she had previously filed an administrative claim pursuant to R.C.
4112.05."1 For the reasons that follow, we answer the question in the negative
and affirm the judgment of the court of appeals.

R.C. 4112.02(A) makes it an unlawful discriminatory practice "[f]or any
employer, because of the * * * handicap * * * of any person, * * * to discriminate
against that person with respect to hire, tenure, terms, conditions, or privileges of
employment, or any matter directly or indirectly related to employment." A
person alleging handicap discrimination has two statutory methods for relief.
Pursuant to R.C. 4112.05, an aggrieved person may file a charge with the
commission to pursue an administrative remedy. R.C. 4112.05(B)(1) provides
that "[a]ny person may file a charge with the commission alleging that another
person has engaged or is engaging in an unlawful discriminatory practice." R.C.

1.
The discretionary appeal raises the same issue.
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4112.062 provides the procedure for judicial review of commission decisions.
Alternatively, the person alleging discrimination may file a civil action in the
common pleas court. This right is found in R.C. 4112.99, which provides that
"[w]hoever violates [R.C. Chapter 4112] is subject to a civil action for damages *
* *."

Although there are two methods for pursuing a handicap discrimination
claim, appellant argues that these procedures are exclusive so that the pursuit of
one excludes the other. Appellant contends that appellee is precluded from filing
a civil action because she opted instead to pursue a charge with the commission,
obtained a determination from that agency, and chose not to appeal that decision
to the common pleas court.

At the outset, we note that R.C. Chapter 4112 is remedial legislation.
Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St.3d 131, 133-134,
543 N.E.2d 1212, 1215. R.C. 4112.08 requires this court to liberally construe
Ohio's antidiscrimination law "for the accomplishment of its purposes." In Elek
v. Huntington Natl. Bank (1991), 60 Ohio St.3d 135, 137, 573 N.E.2d 1056, 1058,
we found that "R.C. 4112.99 is to be liberally construed to promote its object
(elimination of discrimination) and protect those to whom it is addressed (victims
of discrimination). * * * As such, R.C. 4112.99 must be interpreted to afford

2.
R.C. 4112.06 provides:

"(A) Any complainant, or respondent claiming to be aggrieved by a final order of the
commission, including a refusal to issue a complaint, may obtain judicial review thereof * * *.
Such proceeding shall be brought in the common pleas court * * *.

" * * *

"(E) The findings of the commission as to the facts shall be conclusive if supported by
reliable, probative, and substantial evidence on the record and such additional evidence as the
court has admitted considered as a whole.

"(F) The jurisdiction of the court shall be exclusive and its judgment and order shall be
final subject to appellate review. * * *

" * * *

"(H) 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 * * *."
4

January Term, 2001
victims of handicap discrimination the right to pursue a civil action." We have
also said that "R.C. Chapter 4112 is comprehensive legislation designed to
provide a variety of remedies for employment discrimination in its various
forms." (Emphasis added.) Helmick, supra, 45 Ohio St.3d at 133, 543 N.E.2d at
1215.
In
Elek, supra, we held that, under R.C. 4112.99, an individual may
institute an independent civil action for discrimination on the basis of physical
handicap even though that individual has not invoked and exhausted his or her
administrative remedies. However, because the plaintiff in Elek had not instituted
administrative proceedings prior to filing his civil action, our holding in that case
does not quite answer whether the General Assembly intended that handicapped
persons be barred from instituting a judicial action after electing to commence
administrative proceedings.

In determining the General Assembly's intent, the starting point in the
construction of a legislative enactment is the text of the statute itself. The plain
language of neither R.C. 4112.05 nor R.C. 4112.99 requires a plaintiff alleging
handicap discrimination to elect between remedies. Nor are there other statutory
provisions requiring such an election. In contrast, there are statutory provisions
requiring an election for age discrimination claims.

R.C. 4112.02(N) provides that "[a]n aggrieved individual may enforce the
individual's rights relative to discrimination on the basis of age * * * by
instituting a civil action." An individual may also file an age discrimination
charge with the commission pursuant to R.C. 4112.05(B)(1). However, the
General Assembly has specifically provided that individuals alleging age
discrimination must choose between an administrative or judicial action. R.C.
4112.08 states that "any person filing a charge under division (B)(1) of section
4112.05 of the Revised Code, with respect to the unlawful discriminatory
5

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practices complained of, is barred from instituting a civil action under section
4112.14 or division (N) of section 4112.02 of the Revised Code."

These provisions relating to age discrimination demonstrate that the
General Assembly was aware that individuals might attempt to commence both
administrative and judicial proceedings pursuant to R.C. Chapter 4112. So, in
clear language, the General Assembly expressed its intent that an election must be
made. However, in regard to handicap discrimination claims, the General
Assembly has not manifested a similar intent requiring a plaintiff to elect between
an administrative or judicial remedy. Thus, had the General Assembly intended
that individuals alleging handicap discrimination be forced to choose between an
administrative or civil proceeding, it would have specifically stated so, as it did
with respect to age discrimination. In this respect, we are guided by the Latin
maxim expressio unius est exclusio alterius, which translated means that the
expression of one item of a class implicitly excludes other items of the class that
are not specifically mentioned. State v. Droste (1998), 83 Ohio St.3d 36, 39, 697
N.E.2d 620, 622. The General Assembly has specifically limited an individual's
ability to bring both an administrative and civil proceeding in the context of age
discrimination only. Its exclusion of other forms of discrimination from this
limitation makes clear that it intended that both remedies be available for other
forms of discrimination.

Yet appellant argues that permitting an individual to commence a
proceeding in the commission and then, upon receiving an unfavorable response
from the commission, to file a separate, independent civil action is not an efficient
use of administrative and judicial resources. Nor is it fair, appellant asserts, to
subject defendants to the burden of repeatedly defending themselves in a
multitude of forums. While we recognize the legitimacy of these concerns, we
find they are ones better addressed by the General Assembly.
6

January Term, 2001

Accordingly, we find that in light of our obligation to liberally construe
R.C. Chapter 4112, R.C. Chapter 4112's goal of providing "a variety of
remedies," and in the absence of an express legislative expression imposing an
election requirement, we hold that the filing of an unlawful discriminatory
practice charge with the Ohio Civil Rights Commission under R.C. 4112.05(B)(1)
does not preclude a person alleging handicap discrimination from instituting an
independent civil action under R.C. 4112.99.

Therefore, the judgment of the court of appeals is affirmed, and the cause
is remanded to the trial court for further proceedings.
Judgment affirmed
and cause remanded.

MOYER, C.J., DOUGLAS, RESNICK, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
__________________

Law Offices of John S. Marshall and Joshua J. Morrow; Spater, Gittes,
Schulte & Kolman and Frederick M. Gittes; Reminger & Reminger Co., L.P.A.,
and Mark W. Biggerman, for appellee.

David L. Day, L.P.A., and David L. Day, for appellant.

Jeffrey D. Dillman, urging affirmance for amici curiae Housing
Advocates, Inc., Metropolitan Strategy Group, Ohio Academy of Trial Lawyers,
Ohio Civil Rights Coalition, Ohio Employment Lawyers Association, Ohio Fair
Housing Congress, Ohio Now Education and Legal Fund, and Ohio State Legal
Services Association.

Betty D. Montgomery, Attorney General, David M. Gormley, State
Solicitor, Judith B. Goldstein and Matthew D. Miko, Assistant State Solicitors,
urging affirmance for amicus curiae Ohio Civil Rights Commission.
__________________
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