Opinion
No. 83-13
Decided August 31, 1983.
Employment discrimination — Ohio Civil Rights Commission — R.C. Chapter 4112 — Commission relies on EEOC investigation — Prohibition does not lie to prevent proceeding on complaint, when.
APPEAL from the Court of Appeals for Cuyahoga County.
On April 4, 1980, Bruce Nance, a former employee of appellant, State Farm Mutual Automobile Insurance Co., filed a charge with appellee, Ohio Civil Rights Commission, alleging that his employment had been terminated as a result of discriminatory practices in violation of R.C. Chapter 4112. A similar charge was filed with the Federal Equal Employment Opportunity Commission ("EEOC").
EEOC had conducted an investigation and determined that probable cause existed that Nance's complaint was true. It engaged in efforts to resolve the matter by conciliation which were unsuccessful. The EEOC action resulted in the issuance of a right to sue letter to Nance.
Pursuant to a work-sharing agreement between EEOC and appellee, EEOC turned over its file to appellee. Appellee reviewed EEOC's file and advised appellant by letter that it agreed with EEOC's determination as to probable cause. The letter indicated that a proposed "Conciliation Agreement and Consent Order" was enclosed, which, in fact, was not. Appellant responded by letter indicating that the enclosure had not been received and that in view of the EEOC's handling of the matter it felt "[a]dditional processing by the Ohio Civil Rights Commission appears to be a needless duplication of effort."
In subsequent telephone conversations between appellant and a conciliator for appellee, appellant indicated that it would make only the same offer which it had made in the EEOC negotiations. The conciliator advised appellant that the offer was unacceptable to Nance and that in the event a counteroffer was not received, she would consider negotiations at an impasse. No counteroffer was made and the conciliator determined that appellant did not wish to enter into conciliation.
On December 15, 1981, appellee issued a complaint and notice of hearing charging appellant with employment practices claimed to be in violation of R.C. 4112.02. The complaint alleged that appellee had "* * * endeavored to eliminate such practices by informal methods of conference, conciliation and persuasion, and has been unable to do so by such methods."
Appellant filed a motion to dismiss, contending that efforts at conciliation had not been made prior to the issuance of the complaint. The commission postponed the hearing on the complaint to allow completion of discovery and further investigation with respect to the jurisdictional issue raised in appellant's motion, and decided to withhold its ruling on the motion until after the hearing. Appellant's request to bifurcate the hearing on the motion to dismiss from the hearing on the complaint was denied.
Appellant then brought this action in prohibition alleging that no conciliation efforts were attempted by appellee and seeking the issuance of a writ to prevent appellee from continuing with further proceedings and directing appellee to dismiss the complaint.
The court of appeals granted appellee's motion to dismiss finding that appellant had an adequate remedy at law by way of appeal. The cause is now before the court upon an appeal as of right.
Meyers, Hentemann, Schneider Rea Co., L.P.A., and Mr. Henry A. Hentemann, for appellant.
Mr. Anthony J. Celebrezze, Jr., attorney general, and Mr. Robert F. Deacon, for appellee.
Appellant claims entitlement to the issuance of a writ of prohibition based on our decision in State, ex rel. Republic Steel Corp., v. Ohio Civil Rights Comm. (1975), 44 Ohio St.2d 178 [73 O.O.2d 478], wherein we held: "Pursuant to R.C. 4112.05 (B), a completed and unsuccessful attempt by the Ohio Civil Rights Commission to eliminate unlawful discriminatory practices by conference, conciliation or persuasion is a jurisdictional prerequisite to the issuance of a complaint by the commission * * *." In Republic Steel, we allowed a writ of prohibition to prevent the commission from continuing with further proceedings upon its complaint which noted that conciliation efforts were not completed with respect to one respondent and had not begun with respect to the remaining respondents. Id. at 184.
In the case at bar, the complaint alleged, and the record demonstrates, that conciliation efforts were completed and unsuccessful. Accordingly, we find appellant's reliance on Republic Steel misplaced.
In substance, appellant's arguments do not deny that the necessary conciliation efforts were undertaken, but contest the authority of appellee to rely on investigations conducted by the EEOC as a reference in beginning conciliation efforts. These arguments do not present a challenge to appellee's jurisdiction, but rather, allege error as to the manner in which appellee conducted its investigation. These issues are properly raised on appeal which is available to appellant pursuant to R.C. 4112.06. As we stated in State, ex rel. Woodbury, v. Spitler (1973), 34 Ohio St.2d 134, 137 [63 O.O.2d 229]: "* * * Extraordinary remedies, i.e., mandamus, prohibition and habeas corpus, are available only when usual forms of procedure are incapable of affording relief. They may not be employed before trial on the merits, as a substitute for an appeal for the purpose of reviewing mere errors, or irregularities in the proceedings of a court having proper jurisdiction * * *."
Accordingly, we agree with the court of appeals' determination that appellant, having an adequate remedy at law by way of appeal, is not entitled to relief in prohibition.
We note, however, that this determination could not have been based solely on the allegations of the complaint. Appellant's complaint alleged that no conciliation had been undertaken. It was necessary for the court of appeals to rely on the deposition of appellee's conciliator, correspondence between the parties, and the commission's complaint to establish that conciliation had been completed. For this reason the motion should have been treated as one for summary judgment. Civ. R. 12 (B). We find that the requirements for summary judgment under Civ. R. 56 were met inasmuch as both parties were permitted to present a brief on the issue which contained exhibits setting forth the evidence relied on by the appellate court herein.
Accordingly, we affirm the judgment of the court of appeals as one granting summary judgment in favor of appellee.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.