Marvel Consultants, Inc. v. Ohio Civ. Rights Comm.

• Decision Date: 23 May 1994
• Docket Number: No. 65498,65498
• Citation: 93 Ohio App.3d 838,639 N.E.2d 1265
• Parties: MARVEL CONSULTANTS, INC., Appellant, v. OHIO CIVIL RIGHTS COMMISSION et al., Appellees.
• Court: Ohio Court of Appeals

Page 838

93 Ohio App.3d 838

639 N.E.2d 1265

MARVEL CONSULTANTS, INC., Appellant, v. OHIO CIVIL RIGHTS COMMISSION et al., Appellees.

No. 65498.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided May 23, 1994.

Luria & Belkin and Keith E. Belkin, Cleveland, for appellant.

Lee Fisher, Atty. Gen., and Wayne Kriynovich, Asst. Atty. Gen., Cleveland, for appellees.

NAHRA, Chief Judge.

Appellant, Marvel Consultants, Inc. ("Marvel") is appealing the order of the trial court affirming the decision of the Ohio Civil Rights Commission, finding that Marvel discriminated against an employee named Tina Pace on the basis of sex. Appellant contends that the commission's order was not supported by reliable, probative and substantial evidence. For the following reasons, we affirm.

Marvel is a placement and recruitment service. Tina Pace sought Marvel's services to help her find a permanent job. Marvel hired Pace as a temporary employee on October 10, 1988. Pace was hired, along with several other temporaries, to work on a temporary project updating client files, known as the "Are you available?" project.

In November 1988, Marvel's office manager quit and Pace was assigned some of the office manager's duties. Also in November, Pace told appellant she was pregnant.

Pace worked forty hours a week and received holiday and overtime pay. She believed she was a permanent employee, but management never said she was permanent. Marvin Basil, the president, and Lester Tavens, the vice-president, testified that Pace was not permanent. Pace received life insurance through the company. Basil and Tavens said that Pace obtained the life insurance without authorization from the company.

Robert Isabella, a co-worker, testified that he was told not to send Pace on any interviews, because she was permanent with Marvel. Isabella's credibility was called into question because he was later fired by Marvel. Tavens and Basil denied they told Isabella not to send Pace on interviews.

Pace testified that she had conversations with both Basil and Tavens, where she indicated she wished to return to work after she gave birth. Basil and Tavens denied that Pace made any such statements. Robert Isabella said he heard the conversations between Pace and Basil where Pace said she wanted to return to work. Isabella also said Tavens told him Pace would be returning after her maternity leave.

On July 15, 1989, one month after she delivered the baby, Pace called Tavens and said she was ready to return to work. Tavens said he did not have anything for her. Tavens testified that the "Are you available?" project was finished by July 4, 1989. The other temporaries hired for the project had all left. Marvel hired a full-time clerical employee in July 1989.

Appellant's sole assignment of error states:

"The OCRC's December 12, 1991 cease and desist order finding Marvel committed discrimination against Pace, as a matter of law, is not supported by reliable, probative and substantial evidence. The Cuyahoga County Court of Common Pleas erred in affirming the OCRC's December 12, 1991 order."

In order to affirm a finding of discrimination under R.C. 4112.02(A), the trial court must find that the finding is supported by reliable, probative, and substantial evidence. R.C. 4112.06(E); Plumbers & Steamfitters Commt. v. Ohio Civ. Rights Comm. (1981), 66 Ohio St.2d 192, 20 O.O.3d 200, 421 N.E.2d 128. The trial court must give deference to the administrative agency's resolution of evidentiary conflicts. Id. at 200, 20 O.O.3d at 205, 421 N.E.2d at 133.

"The role of the appellate court is to determine whether the trial court abused its discretion in its consideration of the evidence involving an administrative appeal. Abuse of discretion implies a decision that is without a reasonable basis and is clearly wrong * * *." (Citations omitted.) Scandinavian Health Spa, Inc. v. Ohio Civ. Rights Comm. (1990), 64 Ohio App.3d 480, 488, 581 N.E.2d 1169, 1174.

"Reliable, probative, and substantial evidence" means evidence sufficient to support a finding of discrimination under Title VII. Plumbers, supra, 66 Ohio St.2d at 196, 20 O.O.3d at 202, 421 N.E.2d at 131. To support a finding of discrimination under Title VII, the employee must prove by a preponderance of the evidence a prima facie case of discrimination. Then the burden shifts to the employer to articulate a nondiscriminatory reason for its actions. The employee must then demonstrate by a preponderance of the evidence that the reasons offered by the employer were pretextual. Id. at 197, 20 O.O.3d at 203, 421 N.E.2d at 132, ...