The opinion
[Cite as Grybosky v. Civil Rights Comm., 2017-Ohio-7125.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
HELEN GRYBOSKY, et al., : OPINION
Appellant, :
CASE NO. 2016-A-0062
- vs - :
OHIO CIVIL RIGHTS COMMISSION, :
et al.,
:
Appellees.
Appeal from the Ashtabula County Court of Common Pleas, Case No. 2013 CV 00823.
Judgment: Reversed and judgment entered for appellant.
Tarin S. Hale, 6085 Waterloo Road, Centerville, OH 45459 (For Appellant).
Mike DeWine, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th
Floor, Columbus, OH 43215-3428, Marilyn Tobocman, Assistant Attorney General,
and Sharon D. Tassie, Assistant Attorney General, State Office Building, 12th Floor,
615 West Superior Avenue, Cleveland, OH 44113 (For Appellees).
THOMAS R. WRIGHT, J.
{¶1} Appellant,1 Helen Grybosky, appeals the trial court’s decision modifying in
part, and affirming in part the Ohio Civil Rights Commission decision that Helen
committed discriminatory practices. We reverse the trial court’s decision to the extent it
1. Helen’s son, Gary Grybosky, is not a party to the appeal. He was dismissed as a party by the trial
court, and this ruling was not appealed.
affirmed the commission’s decision and dismiss the commission’s discrimination
determination against Helen in its entirety.
{¶2} In September 2008, Helen and Gary Grybosky received two letters
notifying them of housing discrimination charges relating to a rental property they owned
and managed in Conneaut, Ohio. The facts resulting in the charges are spelled out in a
related appeal arising from Grybosky’s declaratory judgment action and civil rights
claims against certain Ohio Civil Rights Commission employees and the Ohio Attorney
General. Grybosky v. Ohio Civil Rights Commission, 11th Dist. Ashtabula No. 2010-A-
0047, 2011-Ohio-6843, ¶ 4-8.
{¶3} Following a hearing, the Administrative Law Judge found Helen and Gary
Grybosky’s practices regarding households with children and regarding people with
disabilities violated R.C. 4112.02(H). Upon review of the ALJ’s decision, the
commission adopted the ALJ’s liability report and recommendations, but modified its
damages recommendation. The commission ordered the Gryboskys to cease and
desist from all discriminatory practices and ordered them to pay the complainant’s
actual out-of-pocket damages, the attorney general’s attorney fees and travel costs, and
the attorney fees and travel costs incurred by the complainant, the Fair Housing
Resource Center (FHRC). The Gryboskys were also order to complete no less than
four hours of training on Ohio’s anti-discriminatory fair housing laws.
{¶4} The Gryboskys appealed to the Ashtabula County Court of Common
Pleas, and the court of common pleas modified the decision of the Civil Rights
Commission in part and affirmed it in part. It dismissed the commission’s decision
against Gary in its entirety. Helen asserts four assigned errors on appeal:
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{¶5} “[1.] The trial court committed prejudicial error in failing to dismiss all
charges against Appellant/Respondent for the reason that the charging instruments
were not under oath as required by ORC 4112.05(B)(1) as a jurisdictional prerequisite.
{¶6} “[2.] The trial court committed prejudicial error in concluding that the Civil
Rights Commission made a sufficient effort to eliminate the alleged unlawful
discriminatory practice by informal methods of conference, conciliation and persuasion
as required by R.C. 4112.05(B)(5) before filing a formal complaint.
{¶7} “[3.] The trial court committed prejudicial error in finding that FHRC
sustained any actual damages sufficient to provide standing to pursue the charges in
this case and the resulting award of actual damages to FHRC and attorney fees to the
Ohio Attorney General.
{¶8} “[4.] The trial court committed prejudicial error in finding that the Ohio fair
housing statutes, ORC 4112 et al, are constitutional on their face and as applied to
Appellant/Respondent and all other landlords.”
{¶9} Helen first argues that all charges against her should be dismissed
because the charging instruments were not under oath as required by R.C.
4112.05(B)(1). The original charging documents were submitted on U.S. Department of
Housing and Urban Development complaint forms that included a preprinted declaration
stating, “I declare under penalty of perjury that I have read this complaint (including any
attachments) and that it is true and correct” next to the signature line, which were
signed by Patricia Kidd on August 30, 2008. The forms do not include a statement that
the complaint or charges therein were made under oath or that Kidd had been sworn
and subscribed and that she swore to the truth of the matters asserted.
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{¶10} Helen argues here, as she did to the commission and trial court, that the
Ohio Civil Rights Commission lacked jurisdiction to hear the disability claims against her
because the charging documents do not satisfy the R.C. 4112.05(B)(1) oath
requirement.
{¶11} The trial court considered this issue and held that the oath requirement is
not a jurisdictional prerequisite to the commission’s jurisdiction over cases alleging
housing discrimination under R.C. 4112.02(H). We disagree and find that a plain
reading of R.C. 4112.05 dictates the results.
{¶12} The applicable version of R.C. 4112.05(B)(1) states in part:
{¶13} “Any person may file a charge with the commission alleging that another
person has engaged or is engaging in an unlawful discriminatory practice. * * * In the
case of a charge alleging an unlawful discriminatory practice described in division (H) of
section 4112.02 of the Revised Code, the charge shall be in writing and under oath and
shall be filed with the commission within one year after the alleged unlawful
discriminatory practice was committed.” (Emphasis added.) R.C. 4112.09 provides for
who may administer the requisite oaths, and states:
{¶14} “The executive director, administrative law judge, compliance officer, each
field investigator, field coordinator, mediator, regional director, and supervisor of the
Ohio civil rights commission, and any person appointed and commissioned as a notary
public in this state, with respect to matters relating to official duties, may administer
oaths, take affidavits, and acknowledgements, and attest the execution of any
instrument in writing.”
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{¶15} In opposition, appellees first argue that the proceedings against the
Gryboskys were not subject to the oath requirement because the charges against them
arose via the commission’s independent investigation under R.C. 4112.05(B)(2), which
is not subject to the oath requirement. We disagree. The applicable version of R.C.
4112.05(B)(2) states in part:
{¶16} “The commission also may conduct, upon its own initiative and
independent of the filing of any charges, a preliminary investigation relating to any of the
unlawful discriminatory practices described in division (A), (B), (C), (D), (E), (F), (I), or
(J) of section 4112.02 or in section 4112.021 or 4112.022 of the Revised Code.”
(Emphasis added.) R.C. 4112.05(B)(2) does not apply to housing discrimination claims
because these claims are identified in R.C. 4112.02(H), and subsection H is
conspicuously absent from R.C. 4112.05(B)(2).
{¶17} Notwithstanding, appellees claim that its charges against the Gryboskys
satisfy the applicable section of the Ohio Administrative Code, i.e., Ohio Adm. Code
4112-3-01(B)(2), and that its noncompliance with the oath requirement in R.C.
4112.05(B)(1) is a technicality that is not jurisdictional.
{¶18} As appellees contend, Ohio Adm. Code 4112-3-01(B)(2) does not require
the charges to be made under oath and instead only requires that housing
discrimination charges shall be “signed and affirmed by the complainant” and state, “I
declare under penalty of perjury that the foregoing is true and correct.”
{¶19} “Administrative rules are designed to accomplish the ends sought by the
legislation that has been enacted by the General Assembly. State ex rel. Am. Legion
Post 25 v. Ohio Civ. Rights Comm., 117 Ohio St.3d 441, 2008-Ohio-1261, 884 N.E.2d
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589, ¶ 14, citing Carroll v. Dept. of Adm. Serv., 10 Ohio App.3d 108, 110, 460 N.E.2d
704 (10th Dist.1983). Therefore, ‘[r]ules promulgated by administrative agencies are
valid and enforceable unless unreasonable or in conflict with statutory enactments
covering the same subject matter.’ Am. Legion Post 25 at id., citing State ex rel. Curry v.
Indus. Comm., 58 Ohio St.2d 268, 269, 389 N.E.2d 1126 (1979). The commission is
authorized to adopt rules to implement the provisions of R.C. Chapter 4112. Am.
Legion Post 25 at id. However, an administrative rule may not add to or subtract
from a legislative enactment. Cent. Ohio Joint Vocational School Dist. Bd. of Edn. v.
Ohio Bur. of Emp. Serv., 21 Ohio St.3d 5, 10, 487 N.E.2d 288 (1986). If it does, the
rule clearly conflicts with the statute, and the rule is invalid. Am. Legion at id.,
citing Cent. Ohio.” GMS Mgt. Co, Inc. v. Ohio Civ. Rights Comm., 2016-Ohio-7486, 64
N.E.3d 1025, ¶ 16 (8th Dist.) (Emphasis added.)
{¶20} Here, the administrative rule stating that a housing discrimination charge
can be made via a statement that the charges were made under the penalty of perjury
subtracts from the governing Revised Code section requiring that the charge “shall” be
made in writing “under oath.” Thus, the requirement set forth in the Ohio Revised Code
governs since the applicable OAC regulation conflicts.
{¶21} In Powell v. Ohio Civil Rights Commission, 51 Ohio App.2d 197, 367
N.E.2d 896, 897 (10th Dist.1976), the 10th District strictly construed R.C. 4112.05(B)(1)
and found the oath requirement jurisdictional. It held that the filing of a photocopy of a
complaint signed under oath was insufficient to confer jurisdiction upon the OCRC. Id.
{¶22} Moreover, in State ex rel Republic Steel Corp., v. Ohio Civil Rights
Commission, 44 Ohio St.2d 178, 339 N.E.2d 658 (1975), the Supreme Court held that
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the Ohio Civil Rights Commission lacked jurisdiction to investigate unlawful
discriminatory practices when another requirement in R.C. 4112.05 was not satisfied. It
held the commission lacked jurisdiction to issue a complaint because it had not
completed the jurisdiction prerequisite, i.e., it did not attempt to eliminate the
discriminatory practice via conference, conciliation, or persuasion. Id. at 184.
{¶23} Upon considering the precise issue before us, the Eighth District in GMS,
supra, set forth the following analysis explaining the difference between an oath and a
statement made subject to the penalty of perjury:
{¶24} “Black's Law Dictionary defines an ‘oath’ as follows:
{¶25} “1. A solemn declaration, accompanied by a swearing to God or a revered
person or thing, that one's statement is true or that one will be bound to a promise. The
person making the oath implicitly invites punishment if the statement is untrue or the
promise is broken. The legal effect of an oath is to subject the person to penalties for
perjury if the testimony is false * * * 2. A statement promise made by such a declaration.
3. A form of words used for such a declaration. 4. A formal declaration made solemn
without a swearing to God or a revered person or thing.
{¶26} “Black's Law Dictionary (9th Ed.2009).
{¶27} “It defines an ‘affirmation’ as ‘[a] solemn pledge equivalent to an oath but
without reference to a supreme being or to swearing; a solemn declaration made under
penalty of perjury, but without an oath.’ Id. While an oath is ‘sworn to,’ an affirmation is
merely ‘affirmed’; but either type of pledge may subject the person making it to the
penalties for perjury. Id.
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{¶28} “The Ohio Supreme Court has held that an unsworn written statement that
is signed under penalty of perjury may not be substituted for a sworn affidavit. Toledo
Bar Assn. v. Neller, 102 Ohio St.3d 1234, 2004-Ohio-2895, 809 N.E.2d 1152, ¶ 1. In
Neller, a disbarred attorney sent to the clerk of the Ohio Supreme Court a signed
document in which the attorney ‘state[d] and declare[d] under the penalties of perjury’
that his statements in the documents were ‘true and correct.’ Id. at ¶ 7. The court found
that a strict and traditional reading of the term ‘affidavit,’ was consistent with the court's
‘longstanding insistence that only a written declaration made under oath before a proper
officer qualifies as an “affidavit.”’ Id. at ¶24.” GMS Mgt. Co, Inc., supra, at ¶19-21.
{¶29} In In re Disqualification of Donnelly, 134 Ohio St.3d 1221, 2011-Ohio-
7080, 982 N.E.2d 713, the Supreme Court dismissed a case seeking to disqualify a
judge based on an “affidavit” of disqualification since the document was only signed
under penalty of perjury. The court explained that the two are not interchangeable and
that an “unsworn written statement that are signed under penalty of perjury cannot be
substituted for affidavits” that must be confirmed by oath or affirmation before a person
authorized to administer oaths or affirmations. Id. at ¶3; see also State v. Clark, 7th
Dist. Mahoning No. 06MA26, 2007-Ohio-2707, 2007 WL 1589493, ¶17-19 (holding that
statements made under penalty of perjury are insufficient to satisfy the affidavit
requirement since they were not sworn statements.)
{¶30} Notwithstanding the distinction between an oath and the lesser
requirement of a statement made under penalty of perjury, the Eighth District in GMS,
supra, concluded that the statement made under penalty of perjury before it was
nevertheless sufficient to invoke the commission’s jurisdiction for discrimination
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charges. However, the cases relied on by GMS are not compelling because they do not
address whether the filing of a discrimination charge under penalty of perjury only
satisfies R.C. 4112.05 and invokes the jurisdiction of the Ohio Civil Rights Commission.
{¶31} GMS relies on Baker v. Siemens Energy & Automation, Inc., 820 F.Supp.
1050, 1057 (S.D.Ohio 1993). In Baker, the court was considering an appeal from an
award of summary judgment and construing the facts in a light most favorable to the
nonmoving party. It found the plaintiff was able to pursue his federal age discrimination
claim and that he had essentially met the statutory prerequisite and filed a charge with
the OCRC even though the letter he sent was not under oath. Baker explains that
under federal law, a plaintiff cannot file a complaint under the ADEA until sixty days
after he has filed state administrative proceedings. Id. at 1057. The purpose of this
sixty-day requirement is to provide the state agency an opportunity to remedy the
dispute. Id.
{¶32} Baker does not hold that the plaintiff sufficiently invoked the jurisdiction of
the OCRC. Id. Instead, Baker acknowledges that R.C. 4112.05(B) requires a state
charge to be made under oath, but it nevertheless found that the plaintiff had sufficiently
initiated state administrative proceedings for purposes of pursuing an ADEA claim, and
as such, summary judgment on the federal claims was not warranted. Id.
{¶33} Both Baker and the Eighth District in GMS, supra, rely on Ackman v. Ohio
Knife Co., 589 F.Supp. 768 (S.D.Ohio 1984), which similarly held that the plaintiff there
satisfied the prerequisite for filing a state administrative claim for EEOC purposes. Like
Baker, Ackman considered an argument that it lacked jurisdiction to hear the federal
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claim based on the plaintiff’s alleged failure to first pursue his claim under state law
consistent with 29 U.S.C.A. 633(b), which states in part:
{¶34} “(b) Limitation of Federal action upon commencement of State
proceedings
{¶35} “In the case of an alleged unlawful practice occurring in a State which has
a law prohibiting discrimination in employment because of age and establishing or
authorizing a State authority to grant or seek relief from such discriminatory practice, no
suit may be brought under section 626 of this title before the expiration of sixty days
after proceedings have been commenced under the State law, unless such proceedings
have been earlier terminated: * * * If any requirement for the commencement of such
proceedings is imposed by a State authority other than a requirement of the filing of a
written and signed statement of the facts upon which the proceeding is based, the
proceeding shall be deemed to have been commenced for the purposes of this
subsection at the time such statement is sent by registered mail to the appropriate State
authority.” (Emphasis added.)
{¶36} The Ackman court applied 29 U.S.C. 633(b) and held that regardless of
whether a plaintiff properly invoked the jurisdiction of the Ohio Civil Rights Commission
and complied with the “niceties” of state law, “a letter to the OCRC accompanied by a
copy of an EEOC charge constitutes commencement of state proceedings for purposes
of the ADEA.” Ackman, supra, 770.
{¶37} Thus, we disagree with the Eighth District’s decision in GMS, supra, which
is based on cases that did not determine or discuss the issue before us. Moreover, the
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analysis in GMS was not determinative since the oath deficiency had been remedied.
GMS Mgt. Co, Inc., at ¶18, 20.
{¶38} Appellees also allege that the oath requirement is not jurisdictional and
that the long-standing “relaxation” of the oath requirement was recently codified in R.C.
4112.05(B)(1)(a), which although relevant, is inapplicable here. We disagree. The
recently enacted version effective April 6, 2017, states in part: “(a) An oath under this
chapter may be made in any form of affirmation the person deems binding on the
person's conscience. Acceptable forms include, but are not limited to, declarations
made under penalty of perjury.”
{¶39} The legislature’s recent amendment to the statute broadening the oath
requirement to include statements made under penalty of perjury only bolsters our
conclusion that the applicable version of R.C. 4112.05(B) governing the charges against
Helen were required to be made under oath requiring an affirmative statement made
and sworn to God or to be true before a person authorized to administer oaths or
affirmations.
{¶40} Because the charges against Helen did not satisfy the oath requirement in
R.C. 4112.05(B)(1), the Commission lacked jurisdiction to proceed. Powell v. Ohio Civil
Rights Commission, 51 Ohio App.2d 197, 201, 367 N.E.2d 896 (10th Dist.1976) (finding
that only the original writing signed and sworn under oath satisfies R.C. 4112.05(B).)
Thus, the conflicting administrative code regulation is invalid. Cent. Ohio Joint
Vocational School Dist. Bd. of Educ. v. Admr., Ohio Bur. of Emp. Services, 21 Ohio
St.3d 5, 487 N.E.2d 288, 289 (1986) (finding sections of the Ohio Administrative Code
in conflict with the Revised Code invalid.); Hoffman v. State Med. Bd. of Ohio, 113 Ohio
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St.3d 376, 2007-Ohio-2201, 865 N.E.2d 1259, ¶1 (2007) (finding Ohio Administrative
Code regulation invalid because the administrative rule conflicts with the statute.)
{¶41} Based on the foregoing, Helen’s first assigned error has merit, and her
remaining assigned errors are moot. App.R. 12(A)(1)(c).
{¶42} We reverse the trial court’s decision to the extent it affirmed the
commission’s decision and dismiss the discrimination determination against Helen in its
entirety.
TIMOTHY P. CANNON, J.,
DIANE V. GRENDELL, J.,
concur.
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