Kappan v. Ohio Dept. of Job & Family Servs. , 2013 Ohio 4964 ( 2013 )

[Cite as Kappan v. Ohio Dept. of Job & Family Servs., 2013-Ohio-4964.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
JANICE S. KAPPAN, : OPINION
Appellant, :
CASE NO. 2013-P-0008
- vs - :
DIRECTOR, OHIO DEPT. OF JOB :
AND FAMILY SERVICES, et al.,
:
Appellee.
:
Administrative Appeal from the Portage County Court of Common Pleas, Case No.
2011 CV 01441.
Judgment: Reversed and remanded.
Nancy E. Grim, Nancy Grim, LLC, 136 N. Water Street, Suite 202, Kent, OH 44240
(For Appellant).
Mike DeWine, Ohio Attorney General, State Office Tower, 30 East Broad Street,
Columbus, OH 43215 and Susan M. Sheffield, Assistant Attorney General, 20 West
Federal Street, Third Floor, Youngstown, OH 44503 (For Appellee).
DIANE V. GRENDELL, J.
{¶1} Appellant, Janice S. Kappan, appeals the Order and Journal Entry of the
Portage County Court of Common Pleas, affirming the decision of the Ohio
Unemployment Compensation Review Commission, denying her claim for
unemployment benefits from her former employer, Schneller, LLC. The issues before
us are whether a hearing officer may accept unsubstantiated hearsay testimony to the
discredit of sworn witness testimony in an unemployment compensation hearing, and
whether a hearing officer errs by not enforcing subpoenas to produce evidence material
to the issue of whether the claimant was terminated for just cause. For the following
reasons, we reverse the decision of the court below and remand this matter for further
proceedings.
{¶2} On November 4, 2011, Kappan filed a Notice of Appeal from the
Unemployment Compensation Review Commission in the Portage County Court of
Common Pleas.
{¶3} The facts of the case, as determined by the hearing officer, are as follows:
{¶4} Schneller LLC employed claimant [Kappan] as a burn laboratory
technician from March 31, 2006, to May 9, 2011. In this position
she had responsibility for maintaining files, specifications and
testing of all incoming and outgoing products. This work also
included quality assurance, research and development, and
technical service.
***
{¶5} Claimant had previously demonstrated that she was able to perform
the required work in a satisfactory manner. However, her job
performance declined.
***
{¶6} One of claimant’s job duties was [to] calibrate testing equipment.
The employer reviewed the calibration completed by claimant for
the months of April and May, 2011. This review of records
2
demonstrated that on twenty percent (20%) of the days claimant
worked, she did not do daily calibration of the equipment as
required. The review also demonstrated that on twenty-eight
percent (28%) of the days during these months, the calibration of
equipment was done improperly. As a result, the work had to be
redone.
{¶7} On May 9, 2011, Schneller LLC discharged claimant for poor job
performance.
{¶8} The hearing officer disallowed Kappan’s Application for Determination of
Benefit Rights, “as claimant was separated from employment under disqualifying
conditions,” i.e., “Schneller LLC discharged her for just cause in connection with work.”
{¶9} Before the lower court, Kappan argued that the Review Commission’s
finding that she was discharged for just cause was not supported by the evidence. She
further argued that the Review Commission erred by not enforcing subpoenas she had
issued to Schneller prior to the review hearing. Kappan requested that Schneller
produce “the actual computer data used to show that I had not completed the required
calibrations,” as well as the calibration records of other employees using the same
equipment, and documentation regarding any changes to the equipment’s programming
during the relevant time period.
{¶10} At the hearing, Schneller failed to produce the subpoenaed records. The
hearing officer allowed Kappan to make a proffer of what she thought the information
would have demonstrated: “If I feel that I need that testimony or those documents to
make a fair decision, I will put the matter back on the schedule, we will re-issue the
3
subpoenas, and expect the employer to produce that documentation.” At the close of
the hearing, the officer stated that the subpoenaed information was not necessary to
render a fair decision.
{¶11} On January 7, 2013, the trial court issued an Order and Journal Entry,
affirming the decision of the Review Commission.
{¶12} On February 4, 2013, Kappan filed her Notice of Appeal with this court.
On appeal, Kappan raises the following assignment of error:
{¶13} “[1.] The Court of Common Pleas erred by failing to reverse the decision of
the Unemployment Compensation Review Commission.”
{¶14} “An appellate court may reverse the Unemployment Compensation Board
of Review’s ‘just cause’ determination only if it is unlawful, unreasonable or against the
manifest weight of the evidence.” Tzangas, Plakas & Mannos v. Ohio Bur. of Emp.
Servs., 73 Ohio St.3d 694, 653 N.E.2d 1207 (1995), paragraph one of the syllabus; R.C.
4141.282(H). The duty of the appellate court is not to make factual findings or
determine the credibility of the witnesses, rather, the court “is to determine whether the
decision of the board is supported by the evidence in the record.” (Citations omitted.)
Irvine v. Unemp. Comp. Bd. of Rev., 19 Ohio St.3d 15, 18, 482 N.E.2d 587 (1985).
“This duty is shared by all reviewing courts, from the first level of review in the common
pleas court, through the final appeal in this court.” Tzangas at 696.
{¶15} We reverse the decision of the Review Commission, not based on the
relative credibility of the witnesses, but upon the basic unfairness of the proceeding,
which compromised Kappan’s right to due process.
{¶16} The Ohio Supreme Court has recognized:
4
{¶17} [F]ederal law mandates that state unemployment programs provide
an “[o]pportunity for a fair hearing, before an impartial tribunal * * *.”
Section 503(a)(3), Title 42, U.S. Code. This statute has been
interpreted to impose requirements which are the same as
constitutional procedural due process requirements. Camacho v.
Bowling (N.D. Ill. 1983), 562 F. Supp. 1012, 1020. Hence, any
judicial analysis of the state’s hearing procedures in this case must
be conducted with a fundamental recognition that under the
Fourteenth Amendment the cornerstone of due process, in the
procedural sense, is the opportunity for a fair hearing. Boddie v.
Connecticut (1971), 401 U.S. 371, 378.
Henize v. Giles, 22 Ohio St.3d 213, 215, 490 N.E.2d 585 (1986).
{¶18} Ohio law recognizes that “[h]earing officers have an affirmative duty to
question parties and witnesses in order to ascertain the relevant facts and to fully * * *
develop the record.” R.C. 4141.281(C)(2).
{¶19} This court has recognized that “[t]he failure to allow a party to present
witnesses or otherwise develop their case is grounds for reversing the decision of the
review commission.” Dragon v. State Unemp. Comp. Rev. Comm., 11th Dist. Ashtabula
No. 2005-A-0017, 2006-Ohio-1447, ¶ 21 (cases cited).
{¶20} In the present case, Kappan was terminated “for cause,” i.e., poor job
performance. Specifically, it was claimed that, over a two-month period, she failed to
perform necessary calibrations to laboratory equipment 20 percent of the time, and did
5
so incorrectly 28 percent of the time. The only substantive issue for determination was
whether, in fact, Kappan performed as Schneller claimed.
{¶21} Prior to the hearing, Kappan properly subpoenaed the information from
Schneller that would confirm or disprove the allegations. Schneller did not comply with
the subpoenas and offered no explanation for not doing so.
{¶22} Kappan testified that she calibrated the equipment every day; was
unaware how it was possible to calibrate the equipment incorrectly; and, until
terminated, was unaware that there was a problem with her calibrations.
{¶23} Human resource generalist, Patricia Knotts, testified on behalf of
Schneller. Knotts testified that Kappan was terminated for not calibrating the testing
equipment. Knotts did not establish a foundation for her testimony regarding Kappan’s
failure to properly calibrate the equipment. Knotts referred to “a report that the
supervisor had to do,” which showed that the calibrations were not done. The report
itself was not in evidence. Knotts did not know how the calibration process worked.
{¶24} At the close of the testimony, the hearing officer declared, “I don’t need to
get that information from the subpoenas to make a fair decision.” In response, Kappan
reasserted her claim that she properly calibrated the equipment but could not “prove it”
without the documentation subpoenaed from Schneller.
{¶25} Any reasonable assessment of these proceedings must conclude that
Schneller presented nothing that could be considered “evidence” in support of its
position that Kappan was terminated for just cause. The only witness to testify for
Schneller could do nothing more than repeat the claim that Kappan had failed to
calibrate the equipment. Knotts had absolutely no knowledge or reason to know
6
whether this claim was merited. For practical purposes, Knotts did nothing more than
mimic the conclusion of the disciplinary report that Kappan was terminated for poor job
performance.
{¶26} There is abundant case law “that it is unreasonable for a hearing officer to
give more credence to uncorroborated hearsay evidence than to sworn testimony.”
(Citations omitted.) Tomlinson v. Ohio Dept. of Job & Family Servs., 3rd Dist. Allen No.
1-09-02, 2009-Ohio-3414, ¶ 7. Here, Knotts’ testimony does not even rise to the level
of hearsay, inasmuch as she did not testify that she had actually seen the report to
whose results she was testifying.
{¶27} The basic unfairness of crediting Schneller’s non-evidence over Kappan’s
sworn testimony is compounded by the fact that Kappan duly subpoenaed the records
that could prove or disprove the alleged “cause” of her termination. As noted above, it
is the hearing officer’s duty “to ascertain the relevant facts.” It is to this end, i.e., the
ascertaining of the relevant facts, that the officer is not strictly bound by the evidentiary
rules. The purpose is to create, not circumvent, “an efficient method for ascertaining a
claimant’s entitlement to unemployment compensation benefits.” Simon v. Lake
Geauga Printing Co., 69 Ohio St.2d 41, 43, 430 N.E.2d 468 (1982); Owens v. Ohio Bur.
of Emp. Servs., 135 Ohio App.3d 217, 221, 733 N.E.2d 628 (1st Dist.1999) (“[t]he
hearing officer could not simply disregard evidence in the hands of the employer that
the claimant had properly subpoenaed and that the employer had failed to provide”).
{¶28} Kappan’s sole assignment of error is with merit.
7
{¶29} For the foregoing reasons, we reverse the judgment of the lower court,
affirming the Review Commission’s determination, and remand this matter for further
proceedings consistent with this opinion. Costs to be taxed against the appellee.
TIMOTHY P. CANNON, P.J., concurs,
CYNTHIA WESTCOTT RICE, J., dissents with a Dissenting Opinion.
_________________________
CYNTHIA WESTCOTT RICE, J., dissents with a Dissenting Opinion.
{¶30} The majority opinion reverses the judgment of the trial court based upon
its view that appellant did not receive a fair hearing. In particular, the majority maintains
it was unreasonable for the trial court to affirm the hearing officer because the officer
gave greater credence to uncorroborated testimony than appellant’s sworn testimony.
Further, the majority emphasizes the unfairness is compounded by the hearing officer’s
decision to disregard the enforcement of properly issued subpoenas. While I agree that
the hearing officer’s decision not to require production of subpoenaed documents is
problematic, I cannot conclude, given the remaining circumstances of the case,
appellant received an unfair hearing. I therefore respectfully disagree with the majority’s
conclusion.
{¶31} It is clear the hearing officer did not demand the subpoenaed reports; it is
equally clear, however, he did not specifically refuse to enforce the subpoenas. To the
contrary, appellant simply failed to specifically object to Schneller’s failure to produce
8
the subpoenaed witnesses and documentation. Moreover, appellant did not question or
object to the value of the proffering process. Also, appellant could have requested a
postponement of the hearing until Schneller complied with the subpoenas. Instead of
doing so, she voluntarily entered a proffer with the understanding that the witnesses or
documents need only be produced if, in his discretion, the hearing officer deemed it
necessary to resolve the issue. Given these circumstances, I would hold appellant’s
due process rights were not compromised.
{¶32} Moreover, I disagree with the majority’s statement that Schneller produced
no evidence to demonstrate just cause. Although it is true the hearing officer did not
possess the subpoenaed calibration reports, it is also true that the hearsay nature of the
information gleaned from the reports was corroborated by Schneller’s human resources
department through the testimony of Knotts; and the hearing officer also had a copy of
the report that prompted appellant’s discharge, which included documentation of
appellant’s errors regarding the calibration of the equipment. That disciplinary report
provided:
{¶33} On Friday, May 6, 2011, while doing the Burn Lab accountability
reports, Al Gordon the Burn Lab supervisor discovered that the
OSU calibration requirements had not been performed as required
by the “Operating procedure for OSU”. [sic] Base[d] on calibration
records for the months of April and May 2011, 20% of these days
[appellant] did not do daily calibration, 28% of these days
calibration was done improperly. This means that 48% of these
days testing reports were not valid.
9
{¶34} The report, in conjunction with the documentary evidence of the formal
reprimands appellant received and Knotts’ testimony regarding appellant’s problems
between April and May calibrating the equipment, provided a reasonable and lawful
basis for the officer’s conclusion.
{¶35} Pursuant to R.C. 4141.29(D)(2)(a), an individual is not eligible for
unemployment compensation benefits if the individual has been “discharged for just
cause in connection with the individual’s work.”
{¶36} “Traditionally, just cause, in the statutory sense, is that which, to an
ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act.”
Irvine, supra, at 17, quoting Peyton v. Sun T.V. & Appliances, 44 Ohio App.2d 10, 12
(10th Dist.1975). In Tzangas, supra, the Supreme Court of Ohio provided a four-
pronged test for just cause termination:
{¶37} Unsuitability for a position constitutes fault sufficient to support a
just cause termination. An employer may properly find an employee
unsuitable for the required work, and thus to be at fault, when: (1)
the employee does not perform the required work, (2) the employer
made known its expectations of the employee at the time of hiring,
(3) the expectations were reasonable, and (4) the requirements of
the job did not change since the date of the original hiring for that
particular position. Id. at 698-699.
{¶38} In this case, the hearing officer determined that, given the testimony and
documentation submitted by Schneller, appellant failed to perform the required work in a
satisfactory manner; he further found, based upon testimony, appellant was made
10
aware of the Schneller’s expectations as a lab technician and those expectations were
reasonable. The officer also found that the requirements for appellant’s job did not
change in the course of her employment. And, as a result, after following its
progressive disciplinary policy of issuing three warnings, the fourth violation constituted
just cause to discharge appellant in connection with her work. The hearing officer’s
conclusion was neither unlawful, unreasonable, nor against the manifest weight of the
evidence.
{¶39} Pursuant to the foregoing, I would conclude the hearing before the
commission was not unfair and the trial court did not err in affirming the Commission’s
decision. I therefore respectfully dissent.
11