Hicks v. Ohio Dept. of Job & Family Servs. , 2014 Ohio 2735 ( 2014 )

[Cite as Hicks v. Ohio Dept. of Job & Family Servs., 2014-Ohio-2735.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Melissa A. Hicks, :
Appellant-Appellant, :
No. 13AP-902
v. : (C.P.C. No. 13CVF-05-5442)
Ohio Department of Job and : (REGULAR CALENDAR)
Family Services et al.,
:
Appellees-Appellees.
:
D E C I S I O N
Rendered on June 24, 2014
Melissa A. Hicks, pro se.
Michael DeWine, Attorney General, and David E. Lefton, for
appellee Director of Ohio Department of Job & Family
Services.
McNees Wallace & Nurick LLC, and Samuel N. Lillard, for
appellee Bruce D. Bagley et al.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶1} Appellant, Melissa A. Hicks ("appellant"), appeals from a judgment of the
Franklin County Court of Common Pleas affirming a decision of the Unemployment
Compensation Review Commission ("commission"). The commission concurred with a
determination of appellee Ohio Department of Job and Family Services, Office of
Unemployment Compensation ("ODJFS"). ODJFS disallowed appellant's claim for
unemployment compensation benefits based on its finding that her employer, appellee
McNees Wallace & Nurick, LLC (the "employer" or "law firm"), discharged her from her
employment for just cause. We affirm the judgment of the common pleas court.
No. 13AP-902 2
I. Facts
{¶2} The employer is a law firm at which appellant began working as a legal
secretary in July 2010. At appellant's initial review in December 2010, she was counseled
that she should be aware that it was important that her self-assurance not be construed by
others as arrogance or disrespect of other workers. At her annual review in July 2011, the
law firm notified appellant that, although she was very capable, her office conduct was
sometimes inappropriate; her communication skills needed improvement; and her
coworkers found her, at times, to be combative and negative. In August 2011, employer
paid for appellant to attend a communication-training seminar and released her from her
usual job duties to allow her to attend.
{¶3} On April 12, 2012, the employer placed appellant on a 90-day probation
period based on its finding that her interpersonal relations with coworkers had continued
to be problematic. Appellant was advised in a written warning letter of the same date that
disrespect of her coworkers and supervisors would not be tolerated and that she would be
terminated if an additional infraction occurred.
{¶4} In July 2012, appellant received her second annual review. The employer
observed that she had completed the probationary period without incident, and it
therefore released her from probation. But employer again advised appellant that "future
interpersonal/communication incidents will not be tolerated, and if we determine that
[you have] behaved disrespectfully or inappropriately with a peer or supervisor, the
occurrence will result in the termination of [your] employment." (Employer Statement,
Attachment F.)
{¶5} On November 1, 2012, the employer terminated appellant's employment
following an incident that occurred on October 26, 2012, in the reception area of the law
firm. An attorney who supervised appellant reported that he had overheard appellant
speaking to another legal secretary in a loud voice—so loudly that, while conducting an
interview in a nearby conference room, he could hear appellant's voice even though the
conference room door was closed. The coworker, Renee Gannon, later testified that the
conversation concerned scheduling of coverage of the front desk during absences of the
receptionist and that appellant had escalated her voice as the conversation progressed.
Gannon stated that, during the conversation, another office worker approached and asked
No. 13AP-902 3
what was going on, whereupon Gannon stated that appellant was "acting a little cocky."
(Mar. 11, 2013 Tr. 12.) Gannon said that this statement upset appellant; "her voice rose and
she just said 'I am not' "; Gannon then told her " 'shhhh, your boss is in the hearing room
having a conference,' " to which appellant responded, "I don't care," and Gannon then
threw up her hands and walked away. (Mar. 11, 2013 Tr. 12.) Gannon denied having
herself raised her voice during the incident. In her testimony, appellant acknowledged that
the incident had occurred and that she had raised her voice during the conversation. She
testified that her coworker, Gannon, had also raised her voice, yet the coworker had not
been disciplined for it.
{¶6} The law firm's human resources ("HR") director testified that the employer
considered the October 26, 2012 incident to be the final incident of what had been a series
of interpersonal interaction issues. The HR director acknowledged that the employer had
no performance or attendance concerns concerning appellant and that she believed
appellant had made a good-faith attempt to meet the employer's standards after attending
the communication-training seminar. The HR director further testified that, in her view
and regardless of subject matter or provocation, yelling in a professional law office is
inappropriate.
{¶7} Appellant applied for unemployment compensation benefits, and the
ODJFS issued an initial determination denying the claim. The agency determined that
appellant had demonstrated a disregard of the standards of behavior that an employer has
a right to expect; her actions were such that an ordinary person would find the discharge
justifiable; and appellant had therefore been discharged with just cause. Appellant
appealed the initial determination, but the director of ODJFS issued a redetermination
also denying appellant's claim, based on the conclusion that appellant was discharged with
just cause under R.C. 4141.29(D)(2)(a).
{¶8} Appellant then appealed the director's redetermination pursuant to R.C.
4141.281. In her notice of appeal, she asserted that she had been terminated in retaliation
for having reported aggressive and hostile behavior by the attorney who had reported the
incident to the HR director. Appellant further claimed that she had been subjected to a
hostile work environment. She acknowledged that she had engaged in a "discussion" in the
No. 13AP-902 4
reception area with her coworker on October 26, 2012, but stated that she could not leave
the front desk area at that time and was trying to deflate the situation.
{¶9} The director of ODJFS transferred the matter to the commission, as
authorized by R.C. 4141.281(B). The commission assigned the matter to a hearing officer,
who conducted an administrative appeal hearing via telephone conference calls, as
authorized by R.C. 4141.281(D)(3). Testimony was given on three separate days:
January 16, February 4, and March 11, 2013.
{¶10} On March 14, 2013, the hearing officer affirmed the director's
redetermination. He specifically found that appellant had been discharged for just cause
and was therefore not entitled to unemployment compensation benefits. Consistent with
the hearing officer's decision, the commission disallowed appellant's request for review.
{¶11} Pursuant to R.C. 4141.282, appellant timely filed a notice of appeal of the
commission's decision in the Franklin County Court of Common Pleas. The court found
the commission's decision to be reasonable, lawful, and supported by the evidence and,
therefore, affirmed it.
II. ANALYSIS
{¶12} In her appeal to this court, appellant asserts the following three
assignments of error:
I. THE COURT ABUSED ITS DISCRETION WHEN IT
FAILED TO APPLY ORC 4141.281[D])(6) WHEN THE
HEARING OFFICER FAILED TO FOLLOW ORC
4141.281[D](6) BY POSTPONING THE HEARING OF
FEBRUARY 4, 2013 AFTER APPELLEE MCNEE WALLACE
& NURICK LLC FAILED TO APPEAR OR REQUEST A
POSTPONEMENT IN A TIMELY MANNER.
II. THE COURT ABUSED ITS DISCRETION WHEN IT
FAILED TO APPLY ORC 4141.281([C])(3) WHEN THE
COMMISSION AND DIRECTOR OF THE DEPARTMENT
OF JOB AND FAMILY SERVICES FAILED TO FILE A
COMPLETE DIRECTOR'S FILE WITH THE COURT.
III. THE COURT'S DECISION WAS UNREASONABLE,
UNLAWFUL AND AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
No. 13AP-902 5
{¶13} In examining these assignments of error, we are cognizant of the
appropriate standard of review we must apply. A reviewing court may reverse a just-cause
determination by the commission only if it is unlawful, unreasonable or against the
manifest weight of the evidence. R.C. 4141.282(H); Tzangas, Plakas & Mannos v. Ohio
Bur. of Emp. Servs., 73 Ohio St.3d 694 (1995), paragraph one of the syllabus. The
reviewing court may not make factual findings or determine a witness's credibility.
Williams v. Dept. of Job & Family Servs., 129 Ohio St.3d 332, 2011-Ohio-2897, ¶ 20. The
court "must affirm the commission's finding if some competent, credible evidence in the
record supports it." Id. "The focus of an appellate court when reviewing an unemployment
compensation appeal is upon the commission's decision, not the trial court's decision."
Mustafa v. St. Vincent Family Ctrs., Inc., 10th Dist. No. 12AP-305, 2012-Ohio-5775, ¶ 6.
{¶14} In her first assignment of error, appellant asserts that the hearing officer
should not have allowed additional testimony to be given after the conclusion of the
February 4, 2013 telephone hearing. In order to address this assignment of error, it is
necessary that we recount additional procedural facts concerning the administrative
appeal.
{¶15} The initial January 16, 2013 telephone hearing was scheduled to last 45
minutes. On that date, after 55 minutes, the hearing officer observed that the original 45-
minute scheduled hearing time had expired but that not all of the witnesses had testified.
After conferring with the parties, he continued the hearing to February 4, 2013, at 9:15
a.m. The commission thereafter sent formal notices of that continued hearing date to the
parties.
{¶16} On February 4, 2013, the hearing resumed, again by telephone. Appellant
and her counsel participated in the hearing. At the beginning of the hearing, the hearing
officer noted for the record that, although the employer's counsel and HR director had
participated by telephone in the January 16 hearing, neither the employer's counsel,
witnesses, nor other representative had called in at the prescribed hearing time. The
hearing officer advised that he would nevertheless proceed with the hearing. Accordingly,
appellant testified during the February 4 hearing.
No. 13AP-902 6
{¶17} After appellant's testimony, the hearing officer observed that appellant's
coworker, Gannon, had not yet testified concerning the October 26, 2012 incident. He
stated as follows:
I'm not inclined to postpone the matter yet again here to * * *
possibly to hear from Ms. Gannon again. We, we had an
agreed date here they had called in last time the * * *
company hasn't called in this time so I don't * * * think we
need to * * *. I'm not inclined to postpone it again.
***
* * * I'll take the matter under advisement and issue a
written decision that will come in the mail.
(Feb. 4, 2013 Tr. 14-15.)
{¶18} On February 8, 2013, however, the commission sent the parties notices that
the hearing would resume on February 21, 2013, effectively continuing the hearing. The
commission thereafter postponed the February 21 hearing and rescheduled it for
March 11, 2013.
{¶19} The hearing resumed on March 11, 2013. Appellant and her counsel, the
employer's counsel, Sam Lillard, appellant's coworker, Gannon, and the HR director all
participated in the hearing. At the beginning of the hearing, the hearing officer noted that,
about an hour after the hearing had ended on February 4, 2013, one of Lillard's colleagues
had called the commission to advise it that Lillard had been delayed by weather. The
hearing officer told the parties that he intended to allow Lillard an opportunity to cross-
examine appellant and that he would then hear Gannon's testimony, after which the
parties would be provided an opportunity to make closing statements. He stated that he
would then take the matter under advisement and issue a "written decision that's going to
be based on the information already in the record as well as the testimony that's taken here
today." (Mar. 11, 2013 Tr. 16.) The hearing officer asked the participants whether they had
any questions, and no one participating in the hearing asked any questions or objected to
the procedure the hearing officer had described. Accordingly, Lillard then cross-examined
appellant, and Gannon testified.
{¶20} In considering appellant's first assignment of error challenging the
continuation of the hearing until March 14, 2013, we note that R.C. 4141.281 governs
No. 13AP-902 7
administrative appeals from a director's redetermination of a claim for unemployment
benefits. R.C. 4141.281(B) authorizes the director to transfer such an appeal to the
commission. R.C. 4141.281(C)(2) provides that the administrative appeal may be
conducted by a hearing officer appointed by the commission. Consistent with principles of
due process, "all hearing officers shall control the conduct of the hearing * * * [and] are not
bound by common law or statutory rules or evidence or by technical or formal rules of
procedure." R.C. 4141.281(C)(2). Moreover, a hearing officer is obligated by Ohio
Adm.Code 4146-7-02 to "conduct hearings * * * in such order and manner and shall take
any steps consistent with the impartial discharge of [the hearing officer's] duties which
appear reasonable and necessary to ascertain all relevant facts and to render a fair and
complete decision on all issues which appear to be presented."
{¶21} In this case, it is true that the hearing officer stated at the conclusion of the
February 4 hearing that he was not inclined to continue the hearing and expected instead
to thereafter issue a written decision. However, upon being informed after the hearing
that counsel for the employer had been unable to call in due to inclement weather, the
hearing officer once again continued the hearing. Consistent with Ohio Adm.Code 4146-5-
07(B), the commission sent notices of the continued hearing to the parties. We find that
the hearing officer acted within his statutory and regulatory authority by continuing the
February 4 hearing until March 14, 2013.
{¶22} Appellant argues that, pursuant to R.C. 4141.281(D)(6), when appellee
failed to appear on February 4, 2013, the hearing officer lacked authority to continue the
hearing. That statute provides:
For hearings at either the hearing officer or review level, if
the appellee fails to appear at the hearing, the hearing
officer shall proceed with the hearing and shall issue a
decision based on the evidence of record. The commission
shall vacate the decision upon a showing that written notice
of the hearing was not sent to the appellee's last known
address, or good cause for the appellee's failure to appear is
shown to the commission within fourteen days after the
hearing date.
(Emphasis added.) R.C. 4141.281(D)(6).
No. 13AP-902 8
{¶23} R.C. 4141.281(D)(6), thus, establishes that, in the event an appellee fails to
appear at the hearing, a hearing officer nevertheless "shall proceed with the hearing and
shall issue a decision based on the evidence of record." Appellant argues that, based on
this statutory text, the hearing officer lacked authority to continue the hearing after
Lillard's non-appearance on February 4. She contends that the hearing officer was
required to issue his decision based on the evidence in the record as of the end of that
hearing. She argues that appellees' sole remedy, after Lillard failed to appear at the
February 4, 2013 hearing, was to wait for the issuance of the hearing officer's decision and
then, if unsatisfied with the decision, move to vacate it, as described in the second sentence
of R.C. 4141.281(D)(6).
{¶24} We reject appellant's interpretation as it is inconsistent with the authority
concerning unemployment compensation hearings granted to hearing officers by the
governing statutes and rules. See Howard v. Electronic Classroom of Tomorrow, 10th
Dist. No. 11AP-159, 2011-Ohio-6059, ¶ 16, quoting Bulatko v. Dir., Ohio Dept. of Job &
Family Servs., 7th Dist. No. 07 MA 124, 2008-Ohio-1061, ¶ 11 (a " 'hearing officer has
broad discretion in accepting and rejecting evidence and in conducting the hearing in
general' "). The hearing officer could have, in his discretion, determined to proceed directly
to his decision after the February 4, 2012 hearing. Accord Lawson v. State Unemp. Comp.
Bd. of Review, 8th Dist. No. 70256 (Nov. 21, 1996). But it was also within his discretion to
instead continue the hearing to allow the employer to produce additional testimony. That
authority is specifically provided by Ohio Adm.Code 4146-5-07(B), which provides that a
hearing officer may "[o]n [his] own motion, or upon the showing of good cause by an
interested party * * * adjourn or continue the hearing to a different time and/or place."
Moreover, the hearing officer's continuance of the hearing was consistent with his
obligation pursuant to Ohio Adm.Code 4146-7-02 to ascertain all relevant facts. We
discern no abuse of discretion by the hearing officer in this case in continuing the hearing.
{¶25} We therefore overrule appellant's first assignment of error.
{¶26} By her second assignment of error, appellant asserts that the court abused
its discretion when it failed to apply R.C. 4141.281(C)(3) when the commission and
director of ODJFS failed to file a complete director's file with the court. Appellant
correctly observes that the administrative record certified by ODJFS, as initially filed in the
No. 13AP-902 9
common pleas court, did not include a transcript of the January 4, 2013 hearing.
Appellant contends that, pursuant to R.C. 4141.281(C)(3), the court should have ruled in
her favor based on this omission.
{¶27} We reject appellant's contention for two reasons. First, the statute she
references, R.C. 4141.281, governs procedure at the administrative level—not at the
common pleas court. Second, upon discovering that the record as certified by the
commission lacked a copy of the February 4, 2013 transcript, the court of common pleas
ordered the commission to provide it with one. The commission complied with that order
on September 10, 2013, and the court had the February 4 transcript before it at the time it
rendered its decision. Accordingly, although its initial certified record did not include that
transcript, ODJFS ultimately did satisfy its R.C. 4141.282 responsibility to provide a
complete copy of the record to the common pleas court.
{¶28} The commission's obligation to provide the common pleas court with a
transcript of the February 4 hearing arose under R.C. 4141.282. That statute, which
governs the procedure of an appeal of commission decisions to a court of common pleas,
provides as follows:
(F)(1) Except as specified in division (F)(2) of this section,
the commission, within forty-five days after a notice of
appeal is filed or within an extended period ordered by the
court, shall file with the clerk a certified transcript of the
record of the proceedings at issue before the commission.
The commission also shall provide a copy of the transcript to
the appellant's attorney or to the appellant, if the appellant is
not represented by counsel, and to any appellee who requests
a copy.
(2) If the commission cannot file the certified transcript of
the record of proceedings within forty-five days after a
notice of appeal is filed, or within an extended period
ordered by the court, then the court shall remand the matter
to the commission for additional proceedings in order to
complete the record on appeal. The additional proceedings
may include a new hearing before the commission or a
designated hearing officer.
(Emphasis added.) R.C. 4141.282(F).
No. 13AP-902 10
{¶29} The statute thus requires the commission to file with the clerk of courts a
certified transcript of the record of the proceedings within 45 days of the filing of the
notice of appeal, unless the period is extended by the court. If the commission fails to
timely file the record, the remedy is provided by subsection (F)(2) of R.C. 4141.282, i.e.,
the court is to "remand the matter to the commission for additional proceedings in order
to complete the record on appeal." Nothing in the statutory scheme warrants the
conclusion that a failure of the commission to comply with its obligation to timely file a
complete copy of the record is determinative of the issues on appeal. Accord Whaley v.
Ohio Dept. of Job & Family Servs., 11th Dist. No. 2005-T-0070, 2006-Ohio-7017, ¶ 37
(quoting Newman v. Ohio Bur. of Emp. Servs., 11th Dist. No. 1065 (Dec. 31, 1981)
(" 'While [R.C. 4141.282(F)] imposes a duty upon the board to file a transcript * * * non-
compliance does not mandate reversal.' ").
{¶30} In this case, the commission certified its record as complete on July 5,
2013, but that record omitted a transcript of the February 4, 2013 hearing. Appellant was
not, however, prejudiced by the commission's failure to initially include a transcript of the
February 4 hearing in the record, nor is she entitled to judgment in her favor on the merits
of her unemployment claim based on that failure. On September 10, 2013, the commission
refiled the record, pursuant to the court's order that it do so, and the refiled record
included a transcript of the February 4, 2013 hearing. Under R.C. 4141.282(F)(2), the
remedy for failure to timely provide a complete record is for the commission to correct its
record and to complete the record in order that the common pleas court may review the
matter in view of a full and complete record. That is the result that was obtained in this
case.
{¶31} We therefore overrule appellant's second assignment of error.
{¶32} By her third assignment of error, appellant contends the court's decision is
unreasonable, unlawful, and against the manifest weight of the evidence. Unemployment
benefits are paid to eligible individuals in the amounts and subject to the conditions
stipulated in R.C. Chapter 4141 to compensate them for loss of remuneration due to
involuntary total or partial unemployment. Braun v. Indep. Taxi Cab Assn. of Columbus,
Inc., 10th Dist. No. 11AP-94, 2011-Ohio-6056, ¶ 13, citing R.C. 4141.29. "A claimant who
* * * has been discharged for just cause in connection with his or her work is not entitled
No. 13AP-902 11
to unemployment compensation benefits." Id.; R.C. 4141.29(D)(2)(a). "The claimant has
the burden to prove his or her entitlement to benefits." Id., citing Irvine v. Unemp. Comp.
Bd. of Rev., 19 Ohio St.3d 15, 17 (1985).
{¶33} A just-cause determination must be consistent with the legislative purpose
underlying the Unemployment Compensation Act: to provide financial assistance to
individuals who are involuntarily unemployed through no fault or agreement of their own.
Tzangas, Plakas & Mannos at 697. "When an employee is at fault, he is no longer the
victim of fortune's whims, but is instead directly responsible for his own predicament.
Fault on the employee's part separates him from the Act's intent and the Act's protection."
Id. at 697-98. Accordingly, just cause under the Unemployment Compensation Act is
predicated upon employee fault. Id. at 698. Just cause is conduct that would lead a person
of ordinary intelligence to conclude the surrounding circumstances justified the
employee's discharge. Chambers v. Ohio Dept. of Job & Family Servs., 10th Dist. No.
06AP-1043, 2007-Ohio-1493, ¶ 7. Just cause for discharge exists where " 'the employee, by
his actions, demonstrated an unreasonable disregard for his employer's best interests.'
" Mayes v. Bd. of Review, Ohio Bur. of Emp. Servs., 32 Ohio App.3d 68 (10th Dist.1986),
quoting Kiikka v. Ohio Bur. of Unemp. Servs., 21 Ohio App.3d 168, 169 (8th Dist.1985).
{¶34} We have examined the record and find that it includes competent, credible
evidence supporting the hearing officer's conclusion that appellant was discharged for just
cause. Appellant had repeatedly been advised, in writing, that the employer expected her
to act positively and non-combatively with her coworkers. She was specifically advised
that she would be terminated on the next occasion that she behaved disrespectfully or
inappropriately with a peer or supervisor. Moreover, appellant testified that she had,
indeed, raised her voice during the October 26, 2012 incident. She did not deny that the
level of her voice was such that it could be heard behind the closed door of the conference
room—rather, she contended only that her coworker was also speaking at a similar
elevated volume. The record, thus, included competent and credible evidence that
appellant's behavior was inconsistent with, and showed an unreasonable disregard for, the
best interests of her employer, a professional law firm. A person of ordinary intelligence
would conclude that a law firm may justifiably expect its employees to act professionally
No. 13AP-902 12
with each other, particularly when their conduct is within the sight or sound range of a
visitor to the law office. We therefore affirm the commission's finding of just cause.
{¶35} In her initial notice of appeal, appellant asserted that she was terminated
because her supervisors disliked her, rather than her inability to communicate
appropriately with her coworkers. But appellant provided little or no evidence at the
hearing of harassment, retaliation or other possible alternative motive for her discharge,
and we may not reverse the commission's evaluation of the witnesses' credibility. Sharif v.
Children's Hunger Alliance, Inc., 10th Dist. No. 10AP-796, 2011-Ohio-2049, ¶ 6.
Moreover, even where evidence exists to support the arguments of both an employer and
an employee as to the cause for termination, it is our duty to determine only whether the
commission's determination of just cause for termination was unlawful, unreasonable or
against the manifest weight of the evidence. Bennett v. Dept. of Job & Family Servs., 10th
Dist. No. 11AP-1029, 2012-Ohio-2327, ¶ 19. This is so even in cases where a determination
by the commission in favor of either party could have been lawful, reasonable, and based
upon sufficient weight. Id. That is, "[w]here the commission might reasonably decide
either way, the courts have no authority to upset the commission's decision." Chambers at
¶ 10, citing Irvine.
{¶36} We have examined all of the facts of this case and find that the commission's
finding that appellant was terminated for just case was neither unlawful, unreasonable or
against the manifest weight of the evidence. Accord Cottrell v. Ohio Dept. of Job & Family
Servs., 10th Dist. No. 05AP-798, 2006-Ohio-793 (affirming commission's determination
of just cause for discharge where employee had previously been warned concerning his
history of confrontations with other employees). Accordingly, we overrule appellant's third
assignment of error.
III. Conclusion
{¶37} For the foregoing reasons, we overrule appellant's three assignments of
error and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and O'GRADY, JJ., concur.
_________________