Howard v. State Farm Ins. Co.

• Decision Date: 20 December 1978
• Citation: 401 N.E.2d 462,61 Ohio App.2d 198
• Parties: , 18 Fair Empl.Prac.Cas. (BNA) 1362, 18 Empl. Prac. Dec. P 8823, 15 O.O.3d 317 HOWARD, Appellant, v. STATE FARM INS. CO., Appellee.
• Court: Ohio Court of Appeals

Page 198

61 Ohio App.2d 198

401 N.E.2d 462, 18 Fair Empl.Prac.Cas. (BNA) 1362,

18 Empl. Prac. Dec. P 8823, 15 O.O.3d 317

HOWARD, Appellant, v. STATE FARM INS. CO., Appellee.

Court of Appeals of Ohio, Fifth District, Licking County.

Dec. 20, 1978.

Syllabus by the Court

Where an employee files a claim with the Ohio Civil Rights Commission, alleging certain discriminatory acts of an employer, and the Commission disposes of the matter pursuant to a "conciliation agreement and consent order" not approved by the employee, such employee has no standing to file a separate action in a Court of Common Pleas which is based upon the complaint before and the order of the Commission.

John C. Berryhill, Hebron, for appellant.

J. Gilbert Reese and Christopher R. Meyer, Newark, for appellee.

RUTHERFORD, Presiding Judge.

This is an appeal from a judgment entry of the Common Pleas Court of Licking County which reads:

"Martha Howard, plaintiff, in the present case is a white female formerly employed by the State Farm Insurance Company, defendant, at the latter's facility at 1400 Granville Road, Newark, Ohio, from August 30, 1971 until January 17 1977. On the latter date, plaintiff maintains that she was terminated from her employment with the defendant by her black supervisor because of alleged excessive absences, but that a black female, similarly situated but with more absences than Plaintiff, was not terminated. Plaintiff alleges that she was ultimately discharged because of her race and color in violation of Ohio Revised Code, Section 4112.02.

"On February 18, 1977, plaintiff filed an action with the Ohio Civil Rights Commission because of the alleged unlawful discriminatory employment practices. In a 'Notice of Commission Determination' dated July 8, 1977, the Commission made a finding that 'it is probable that unlawful discriminatory practices have been or are being engaged in by Respondent (defendant in the present case) in violation of Chapter 4112, Ohio Revised Code.'

"Thereafter, a 'Conciliation Agreement and Consent Order' was drawn up by the Ohio Civil Rights Commission, and signed by the defendant, State Farm Insurance Company. The order provides in part that:

"(A) Respondent (Defendant in the present case) shall expunge from Complainant's personnel file all information leading to and inclusive of Complainant's termination on January 17, 1977.

"(B) Respondent (Defendant in this present case) shall pay to Complainant a net payment of $1,208.74 representing net wages had Complainant been employed through July 29, 1977, less $2,054.00 received by Respondent in unemployment.

"(C) Method of Payment:

"Payment of above amount shall be by check to complainant and tendered to the Southeast Regional Office of the Ohio Civil Rights Commission, 200 South Parsons Avenue, Room 100, Columbus, Ohio 43215, for delivery.

"This Order was rejected by plaintiff as being 'arbitrary, capricious, and without support, in fact contrary to law.' Subsequently, plaintiff filed the present civil action with this Court seeking $20,000.00 compensatory damages and $30,000.00 punitive damages, and further that the Commission's determination be set aside, that plaintiff's files of employment reflect that she was wrongfully discharged, and for reasonable attorney's fees and costs.

"Subsequently, the defendant filed a motion to dismiss pursuant to Civil Rule 12(B)(6) and 12(B)(7), i. e. for failure to state a claim upon which relief can be granted and for failure to join a party indispensable to this action, respectively.

"The issue before the Court at this time is whether or not the plaintiff has a private cause of action for employment discrimination, separate from the provisions of Chapter 4112 of the Ohio Revised Code.

"We note at the outset that prior to the enactment of Chapter 4112, there was no common law cause of action for employment discrimination in Ohio. The right which plaintiff asserts in the case at bar is solely the creature of statute. Consequently, there exists no common law remedy for violations of the statute unless expressly provided for therein.

"In reviewing said statute, this Court can find no provision establishing a civil remedy such as plaintiff asserts in the present case. On the contrary, the Ohio General Assembly has seen fit to limit this Court's function to that of reviewing final orders of the Ohio Civil Rights Commission. See Ohio Revised Code Section 4112.06.

"It is, therefore, the finding of this Court that Chapter 4112 of the Ohio Revised Code is the sole legal remedy under Ohio law for a person alleging unlawful employment discrimination.

"Plaintiff's complaint is hereby dismissed pursuant to Civil Rule 12(B)(6) for failure to state a claim upon which relief can be granted. * * * "

In the complaint filed in the instant action, independent of proceedings before the Commission, plaintiff Martha Carol Howard, the appellant herein, has set forth three causes of action:

1. claiming entitlement to monetary damages for mental suffering, harm to reputation, and impairment of future employment potential because of wrongful termination of her employment for reason of race and color in that she was allegedly discharged for excessive absenteeism when a black female, who, allegedly was similarly situated and had a greater record of absenteeism was not also discharged;

2. claiming entitlement to monetary damages for mental suffering, harm to reputation, and impairment of her future earning potential as a result of a violation of her rights as set forth in R.C. 4112.02; and

3. alleging the previous filing of a petition with the Ohio Civil Rights Commission with the following allegations: that she was unlawfully discriminated against in employment by State Farm Insurance Company; that the Civil Rights Commission determined that there was probable cause to believe that unlawful practices by defendant "have been or are being engaged in"; that the conciliation agreement and consent order were unreasonably sought and, upon the refusal of plaintiff to consent thereto, she was told no hearing would be held.

The court was asked to rule that the settlement offer agreed to by the Commission and employer but rejected by the employee was arbitrary, capricious, without support and in fact contrary to law and plaintiff prayed for a judgment against defendant in the amount of $20,000 compensatory damages, $30,000 punitive damages and an order that plaintiff's employment file reflect that she was unlawfully discharged.

R.C. 4112.02, in pertinent part, provides:

"Unlawful discriminatory practices.

"It shall be an unlawful discriminatory practice: (A) For any employer, because of the race, color, religion, sex, national origin, handicap, or ancestry of any person, to refuse to hire or otherwise 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."

R.C. 4112.03 creates the Ohio Civil Rights Commission. R.C. 4112.04 empowers the Civil Rights Commission to hold hearings and affords the Commission all necessary procedural power to protect the rights of the parties with respect to such a hearing.

With respect to conciliation, R.C. 4112.05, in pertinent part, provides:

"Proceedings on complaint; findings; transcript of record.

"(A) The Ohio civil rights commission shall, as provided in this section, prevent any person from engaging in unlawful...