
    Cortner, Appellee, v. The National Cash Register Company, Appellant.
    [Cite as Cortner v. National Cash Register Co. (1970), 25 Ohio Mise. 156.]
    
      (No. 134776
    Decided August 21, 1970.)
    Common Pleas Court of Montgomery County.
    
      Mr. James E. Drake, city attorney, and Mr. Thomas P. Randolph, for appellee.
    
      Mr. James E. Rambo, for appellant.
   Brenton, J.

This is an appeal from an order of the Human Relations Council of the city of Dayton, Ohio (H. R. C.). Respondent-appellant, the National Cash Register Company (N. C. R.), was ordered to cease and desist administering its personnel policy PP-2-12 or any other management regulation in a discriminatory manner contrary to Section 1115-3, Code of General Ordinances of the city of Dayton, Ohio. N. C. R. was further ordered to reinstate complainant-appellee, Michael Cortner, to employment with full restitution of back pay, seniority and all other employment benefits, less any pay received from other employment from the date of discharge to the date of reinstatement, and to report its manner of compliance.

N. C. R. complains that H. R. C. erred as follows:

1. In failing to state in its order its findings of fact and conclusions of law.

2. That the evidence on the record does not sustain a finding of racial discrimination.

3. In disclosing the terms of a proposed settlement and conciliation to the general public in violation of ordinance number 23466.

4. That H. R. C. had no authority to order the reinstatement of Michael Cortner to employment together with back pay.

I

The court finds that the ordinance creating the council requires that any order issued by it must state its findings of fact and conclusions of law.

The order complained of states as findings of fact: “The decision to discharge complainant, Michael Cortner, was based in part on racial considerations.” As conclusions of law the council stated, “The administration of said policy so far as it related to complainant, Michael Cortner, was discriminatory and in violation of Section 1115-18A (now 1115-3A) Code of General Ordinances of the City of Dayton.”

Cortner was discharged from his employment with N. C. R. on May 19,1969. N. C. R. alleges that he was discharged for violating its parking policy which is personnel policy PP-2-12. Cortner is black and charged racial discrimination in his dismissal. The ultimate issue, then, before H. R. C. was whether Cortner’s discharge was the result of racial discrimination.

A particular statement which would be considered a statement of fact in every day conversation might, never-the less, be considered a legal conclusion when used in connection with a legal proceeding if the truth of the fact stated is one of the ultimate issues to be determined in such proceeding. To state that a person was negligent or that his privacy was invaded is to state conclusions derived from known facts. Such statements are conclusions of law in legal proceedings in tort. The ordinance mandates H. R. C. to state in its order its finding of fact. This means the statement of an actual event or circumstance as distinguished from its legal effect or consequence. A reasoned deduction or inference which would be a conclusion must, of necessity, be bottomed upon a fact or facts which are found to actually exist. A fact to be stated, then, is the truth, the reality as disclosed by the evidence.

The ordinance under consideration defines the terms “discriminate” and “discrimination” as follows:

“The terms discriminate and discrimination include any difference in treatment based on race, color, religion, sex, ancestry, national origin or place of birth.”

Evidently the enactor^ of the ordinance did uot intend to exclude the accepted meaning of these terms. “Discriminate” means to make a distinction in favor of or against a person or thing on the basis of the group, class or category to which the person belongs, rather than according to actual merit. “Discrimination” means the act of making a distinction in favor of or against a person or thing based on the group, class or category to which that person or thing belongs, rather than on individual merit. Based upon these considerations, then, the court must necessarily ask the question, “What fact or facts and/or any inferences therefrom were delineated by the H. R. C. from the evidence produced at the hearing before it upon which it may logically conclude that there was a difference in the treatment of Cortner based on race?”

It is obvious from a review of the findings of fact as ■set forth by H. R. C. in its order of January 9, 1970, that it failed to state any act on the part of N. C. R. showing that its treatment of Cortner was any different than that meted out to any other employee from the same facts and circumstances.

The court is of the opinion that the H. R. C. failed to make findings of fact separate from conclusions of law with respect to the ultimate issue before it.

n

A review of the record reveals a remarkable absence of evidence of the facts and circumstances surrounding the dismissal of Cortner as compared to that devoted to the facts and circumstances in the dismissal of Page Gray. The only evidence on the record before the H. R. C. to the ultimate issue was provided by Cortner himself. The most that it revealed was that his foreman changed his mind over a weekend with respect to Cortner’s discharge. As puzzling as this may have been for Cortner, it is, by itself, certainly no evidence of a difference in treatment based on race. Furthermore, it would be extremely difficult to support a logical inference from such fact that Cortner was discharged because he was black.

in

A public disclosure concerning conciliation, compromise and settlement, although prohibited by the ordinance, cannot be considered error with respect to proceedings before H. R. C. The parties concerned had full knowledge of the matters disclosed before the contestants participated in the hearing before H. R. C. It would appear that N. C. R. argues that the matters so disclosed are evidence that the decision of H. R. C. was not based on the evidence before it but on what it felt should have been an acceptable compromise. Whether this may or may not have been the case the court cannot determine, because it is confined by statute to the transcript of the hearing before II. R. C. and cannot consider evidence outside of that hearing except under certain circumstances, none of which exist in this case. See R. C. 2506.03.

IV

The ordinance does not expressly confer power on H. R. C. to order reinstatement and back pay. It appears that a provision to that effect was deliberately omitted from the ordinance, inasmuch as that part of the ordinance is practically a carbon copy of R. C. 4112.05(G). It therefore appears that it was never the intention that H. R. C. have the power to grant affirmative relief to an individual complainant but rather that it was intended that a complainant who desires such relief seek his remedy with the Ohio Civil Rights Commission under Chapter 4112, Revised Code.

It is the finding and order of the court that the finding and order of the Human Relations Council with respect to complainant-appellee, Michael Cortner, is contrary to law and unsupported by the preponderance of substantial, reliable and probative evidence on the whole record. Consistent therewith, the court hereby reverses the finding and order of the Human Relations Council with respect to Michael Cortner and the same is hereby vacated and held for naught.

Order reversed.  