Whitehall ex rel. Wolfe v. Ohio Civ. Rights Comm.

• Decision Date: 22 November 1995
• Docket Number: No. 94-1156,94-1156
• Citation: 656 N.E.2d 684,74 Ohio St.3d 120
• Parties: , 69 Fair Empl.Prac.Cas. (BNA) 673, 68 Empl. Prac. Dec. P 44,060 CITY OF WHITEHALL ex rel. WOLFE, Mayor, Appellant, v. OHIO CIVIL RIGHTS COMMISSION et al., Appellees.
• Court: Ohio Supreme Court

Page 120

74 Ohio St.3d 120

656 N.E.2d 684, 69 Fair Empl.Prac.Cas. (BNA) 673,

68 Empl. Prac. Dec. P 44,060

CITY OF WHITEHALL ex rel. WOLFE, Mayor, Appellant, v. OHIO CIVIL RIGHTS COMMISSION et al., Appellees.

No. 94-1156.

Supreme Court of Ohio.

Submitted Oct. 10, 1995.

Decided Nov. 22, 1995.

The city of Whitehall Department of Public Safety, Division of Fire, employed appellee, Betty R. Jones, as a communications operator. In January 1992, Whitehall Mayor John A. Bishop notified Jones that she would be laid off effective February 14, 1992 due to funding problems. While the layoff was pending, Jones was given a disciplinary hearing on allegations that she had been asleep while on duty in January 1992. By letter dated February 13, 1992, the director of public safety notified Jones that she was being discharged effective February 14, 1992 because of her admitted failure to stay awake on the job.

Jones appealed her layoff and termination to the Whitehall Civil Service Commission, which affirmed the orders. The Franklin County Court of Common Pleas subsequently affirmed the decision of the civil service commission. Jones did not institute any further appeal.

On July 1, 1992, Jones filed a written charge with appellee, Ohio Civil Rights Commission ("OCRC"), claiming that she had been laid off and discharged due to unlawful racial and sexual discrimination. Following a preliminary investigation and failed attempts at conciliation, OCRC found probable cause to believe that Whitehall had engaged in unlawful discriminatory practices and issued a complaint and notice of hearing in June 1993. Whitehall filed an answer to the OCRC complaint claiming, inter alia, that it was immune and the OCRC proceedings were barred by res judicata and collateral estoppel.

In December 1993, appellant, Mayor John A. Wolfe, on behalf of the city, filed a petition in the court of appeals seeking a writ of prohibition preventing OCRC from proceeding further in the pending matter. The court of appeals granted OCRC's motion for summary judgment and denied the writ.

The cause is now before this court upon an appeal as of right.

Dennis J. Fennessey, Whitehall City Attorney, and Timothy S. Rankin, Assistant City Attorney, for appellant.

Betty D. Montgomery, Attorney General, Nancy Holland-Meyer and Duffy Jamieson, Assistant Attorneys General, for appellee Ohio Civil Rights Commission.

Daniel K. Friend, Columbus, for appellee Betty R. Jones.

PER CURIAM.

In his propositions of law, Wolfe asserts that the court of appeals erred in denying the writ of prohibition. In order to be entitled to a writ of prohibition, Wolfe had to establish (1) that OCRC was about to exercise judicial or quasi-judicial power, (2) that the exercise of that power is unauthorized by law, and (3) that denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law. State ex rel. Ruessman v. Flanagan (1992), 65 Ohio St.3d 464, 465, 605 N.E.2d 31, 33. As the court of appeals correctly determined, OCRC is about to exercise quasi-judicial authority in proceeding upon the complaint. See State ex rel. Republic Steel Corp. v. Ohio Civ. Rights Comm. (1975), 44 Ohio St.2d 178, 184-185, 73 O.O.2d 478, 481, 339 N.E.2d 658, 662; R.C. 4112.05. Thus, the dispositive issues are whether OCRC's exercise of quasi-judicial authority is unauthorized, and if denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law.

Wolfe claims entitlement to extraordinary relief in prohibition because of res judicata, collateral estoppel, immunity, the law-of-the-case doctrine, and the civil service commission's initial exercise of concurrent jurisdiction. Wolfe contends that Jones's prior civil service appeal precluded OCRC from exercising quasi-judicial authority over her unlawful discrimination charges.

As to Wolfe's claims that the prior civil service appeal acted to divest OCRC of jurisdiction based upon res judicata and the included concept of collateral estoppel, res judicata is an affirmative defense which does not divest the jurisdiction of the second tribunal to decide the validity of that defense. See State ex rel. Flower v. Rocker (1977), 52 Ohio St.2d 160, 162, 6 O.O.3d 375, 376, 370 N.E.2d 479, 480 (prohibition did not lie since court had jurisdiction to rule on affirmative defense of res judicata ); see, generally, 63A American Jurisprudence 2d (1984) 180, Prohibition, Section 48 ("The fact that the defense of res judicata based on a decision in a former action is available in a second action involving the same issues does not deprive the court in which the second action is brought of jurisdiction to try the case again, so as to warrant the issuance of a writ of prohibition to prevent such court from proceeding with the suit, and the only remedy of the aggrieved party is to set up the res judicata plea as a defense in that suit and to appeal from an adverse decision therein.").

In addition, res judicata has no application to the proceeding before OCRC. OCRC was not named as a party to the prior civil service proceeding and did not participate in that action. OCRC was also not in privity with either Jones or the city, the parties to the civil service proceeding. Therefore, res judicata, which requires mutuality of the parties, does not operate to bar OCRC from proceeding on the unlawful discriminatory practice charges. Broz v. Winland (1994), 68 Ohio St.3d 521, 523-524, 629 N.E.2d 395, 397; Dublin School Dist. Bd. of Edn. v. Limbach (1994), 69 Ohio St.3d 255, 257-258, 631 N.E.2d 604, 606.

Second, the issues involved in a civil service appeal before either the State Personnel Board of Review or a municipal civil service commission and an unlawful discriminatory practice charge before OCRC are different. See Cincinnati v. Dixon (1992), 78 Ohio App.3d 164, 169-170, 604 N.E.2d 193, 196-197 (municipal civil service commissions are restricted to determining whether the appointing authority's employment action is consistent with the tenure provisions provided in R.C. 124.34, whereas OCRC is given the statutory authority to determine whether an employment action constituted religious discrimination); Jackson v. Franklin Cty. Animal Control Dept. (Oct. 6, 1987), Franklin App. No. 86AP-930, unreported, 1987 WL 18210 (determination by State Personnel Board of Review that employee was discharged for just cause did not collaterally estop OCRC from proceeding on unlawful discrimination claim regarding discharge); R.C. 4112.08 ("This chapter [which sets forth OCRC's powers and duties] shall be construed liberally for the accomplishment of its purposes, and any law inconsistent with any provision of this chapter shall not apply.").

Wolfe also contends that OCRC lacked jurisdiction to proceed on the unlawful discrimination charges because...