Tomlinson v. Ohio Dept. of Job & Family Servs. , 2009 Ohio 3414 ( 2009 )

[Cite as Tomlinson v. Ohio Dept. of Job & Family Servs., 2009-Ohio-3414.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
EARL B. TOMLINSON,
PLAINTIFF-APPELLANT, CASE NO. 1-09-02
v.
OHIO DEPARTMENT OF JOB OPINION
AND FAMILY SERVICES,
DEFENDANT-APPELLEE.
Appeal from Allen County Common Pleas Court
Trial Court No. CV 2008-1027
Judgment Reversed and Cause Remanded
Date of Decision: July 13, 2009
APPEARANCES:
John C. Kennehan for Appellant
Eric A. Baum for Appellee
Case No. 1-09-02
WILLAMOWSKI, J.
{¶1} Plaintiff-appellant Earl B. Tomlinson (“Tomlinson”) brings this
appeal from the judgment of the Court of Common Pleas of Allen County
affirming the judgment of the Unemployment Compensation Review Commission
(“the Commission”). The Commission had previously found that Tomlinson’s
employment was terminated for cause and he thus was ineligible for
unemployment benefits. For the reasons set forth below, the judgment is reversed.
{¶2} On January 11, 2008, Tomlinson accidentally backed a city-owned
truck into a car, which was parked illegally behind him. No citation was issued to
Tomlinson and no reason to suspect Tomlinson was under the influence of alcohol
or drugs was present. Tomlinson’s employer, Custom Staffing (“CS”) took
Tomlinson to Lima Memorial Hospital for a drug screen. At the hospital
Tomlinson produced a urine sample. The sample was rejected as being of
insufficient volume to meet the lab’s testing protocol. Tomlinson was instructed
by the hospital to drink liquids and wait three hours for a retest. Eventually,
Tomlinson chose to leave even though he was informed by the hospital that doing
so would be a “refusal.” No explanation of what a “refusal” would mean was
given. Soon after leaving the hospital and returning to his employer, CS Area
Manager, Rich Dorsett (“Dorsett”) informed Tomlinson that he was fired for
violating CS’s drug policy.
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{¶3} On January 15, 2008, Tomlinson filed for unemployment benefits.
Tomlinson’s application was disallowed by the Ohio Department of Job and
Family Services (“ODJFS”) finding that “the terms/conditions of an employment
agreement required the drug test and/or that the employer had reasonable
suspicion of drug use by the claimant, however, [Tomlinson] refused to submit to
a drug test * * *.” Director’s File. Tomlinson appealed the determination on
February 11, 2008, alleging that he had submitted to the drug test, but was unable
to produce enough urine. ODJFS affirmed the prior determination on February 29,
2008. On March 7, 2008, Tomlinson appealed this decision. Alleging that he did
submit to the drug test, that there was no reasonable suspicion of drug use, that he
was not informed that if he left the hospital before noon he would be fired, and
that Dorsett refused to allow him to return for a retest within the time provided by
the hospital. Review Commission File. ODJFS transferred jurisdiction to the
Commission on April 11, 2008.
{¶4} On April 24, 2008, Tomlinson’s counsel sent a written request to
ODJFS for copies of CS’s drug testing policies and any documents indicating that
Tomlinson had actually received the policy. On April 25, 2008, Tomlinson’s
counesl was informed that CS would not be allowed to rely upon any documents
which were not provided to the Commission. No copy of the drug policy, written
acknowledgment by Tomlinson indicating that he received the policy, or hospital
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records were provided to the Commission.1 On April 30, 2008, a telephone
hearing was held. Tomlinson and his counsel participated in the hearing. Dorsett
represented CS. During the hearing, Dorsett testified as to the contents of
documents never presented to the commission, requested by Tomlinson, and never
available for review by either Tomlinson or the hearing officer. On May 2, 2008,
the Commission entered a decision affirming the determination.
{¶5} On May 20, 2008, Tomlinson requested a review. The request for a
review was denied on June 10, 2008. On June 30, 2008, Tomlinson filed a notice
of appeal in the Court of Common Pleas of Allen County, Ohio. That court issued
its decision sustaining the decision of the Commission on December 17, 2008.
Tomlinson then appealed to this court and raises the following assignments of
error.
First Assignment of Error
The trial court erred as a matter of law in failing to find ODJFS
ignored its own requirement that employers submit a written
copy of drug testing policies and proof of employee notification.
Second Assignment of Error
ODJFS deprived [Tomlinson] of a fair hearing, in violation of
[R.C. 4141.281(C)(1), by basing its decision entirely on the
employer’s uncorroborated hearsay, in conflict with
[Tomlinson’s] direct testimony.
1
A review of the Director’s File indicates that CS claims to have provided these documents as
attachments to ODJFS’s questionnaire. The questions concerning these documents were marked with “see
attached.” However, no attachments appear in the record.
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Case No. 1-09-02
{¶6} When reviewing a decision from the Commission, the same
standard of review is used by both this court and the common pleas court. Mason
v. Admr., Ohio Bur. of Emp. Serv., et al. (Apr. 7, 2000), 1st Dist. No. C-990573.
“We may reverse the commission’s decision of ‘just cause’ only if we conclude
that the decision was ‘unlawful, unreasonable, or against the manifest weight of
the evidence.’” Id. (citing Tzangas Plaka & Mannos v. Ohio Bur. of Emp. Serv.
(1995), 73 Ohio St.3d 694, 653 N.E.2d 1207). Unemployment statutes are to be
liberally construed in favor of the claimant. R.C. 4141.46. Thus, there is a clear
legislative intent that employees are presumed to be entitled to benefits. Abate v.
Wheeling Pittsburgh Steel Corp. (1998), 126 Ohio App.3d 742, 711 N.E.2d 299.
Due to this presumption, this court chooses to address the second assignment of
error first.
{¶7} In the second assignment of error, Tomlinson claims that he was
denied a fair hearing. The Commission is required by statute to provide an
opportunity for a fair hearing. R.C. 4141.281(C)(1). The hearing is the first
opportunity for the parties to present their case in an adversarial setting.
Cunningham v. Jerry Spears Co. (1963), 119 Ohio App.169, 197 N.E.2d 810. “A
fair hearing contemplates * * * a hearing consistent with the principles of due
process.” Forbes v. Libbey-Owens-Ford Glass Co. (Mar. 16, 1979), 6th Dist. No.
L-78-143.” A fair hearing requires that the parties be allowed to present evidence
and be allowed to effectively cross-examine the evidence presented by the other
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side. Id. See also, Cunningham, supra and General Motors Corp. v. Baker
(1952), 92 Ohio App. 301, 110 N.E.2d 12. The fact that the Commission is not
bound by the rules of evidence does not mean that the court can ignore them.
Cunningham, supra.
Rules of evidence are not merely procedural or technical
methods for the presentation of information. They are in great
part substantive principles as well, and represent standards for
the evaluation of information-standards based on the
cumulative human experience of over 600 years in the Anglo-
American legal system. Nor does the statutory exemption from
“formal rules of procedure” permit unfair procedure.
The basic philosophy of judicial procedure revolves around the
principles of fairness, relevance, reliability and public policy. * *
* The principles remain even though their formulation as
technical court rules may be inappropriate to the operation of
this agency. Further, the rules themselves remain as a starting
point in determining whether there has been a violation of
fundamental principles. * * * [I]t is at the board level that a
party must be accorded a hearing consistent with principles of
due process.
Id. at 174-75. This court has previously held likewise. See Kirchner v. Fox Run-
H.C.F., Inc. (Sept. 24, 1986), 3d Dist. No. 5-85-23. As a result, appellate courts
have imposed some limitation on the unfettered use of hearsay testimony. See
Kirchner, supra; Mason, supra; Taylor v. Bd. Of Review (1984), 20 Ohio App.3d
297, 485 N.E.2d 287; Isaac v. Admr., Ohio Bur. of Emp. Serv. (Mar. 21, 1985), 8th
Dist. No. 48850; Green v. Invacare (May 26, 1993), 9th Dist. No. 92CA175478;
Vickers v. Ohio State Bur. of Emp. Serv. (Apr. 22, 1999), 10th Dist. No. 98AP-
656; and Royster v. Bd. of Review (Apr. 13, 1990), 4th Dist. No. 98 CA 1826. “In
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the majority of cases where the issue has been raised, courts have concluded that
it is unreasonable for a hearing officer to give more credence to uncorroborated
hearsay evidence than to sworn testimony.” Mason, supra.
[W]here the sworn testimony of a witness is contradicted only
by hearsay evidence, to give credibility to the hearsay statement
and to deny credibility to the claimant testifying in person is
unreasonable. * * * thus, any weight to be given the employer’s
hearsay is clearly outweighed by the appellant’s sworn
testimony at the hearing before the referee.
Taylor, supra at 299.
{¶8} Here, the only evidence presented by CS was the testimony of
Dorsett. Dorsett’s testimony was that the company had a policy, but he was not
supposed to testify to the contents due to the failure of CS to provide a copy to the
Commission. His testimony was that there was a policy and that Tomlinson
violated it. Dorsett also testified to the contents of medical records from Lima
Memorial Hospital, which also were not presented to the Commission. Dorsett
finally testified that Tomlinson had received a copy of the drug policy and had
signed an acknowledgment. This alleged signed acknowledgment was also not
presented to the Commission. Tomlinson objected to this testimony because the
records were not available for his review even though all of the documents were
requested prior to the hearing. The Commission overruled the objection and
permitted the testimony. On cross-examination, Dorsett admitted that there was
no reason to suspect that Tomlinson was intoxicated at the time of the accident
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and that no injuries resulted from the accident. Dorsett also admitted that the
policy does not define an inability to produce a valid urine sample as a refusal.
{¶9} After Dorsett’s testimony, Tomlinson testified. His testimony was
that he never received a copy of the alleged drug policy and that he never signed
an acknowledgment. Tomlinson testified he went to the hospital for the test at
9:00 and failed to provide a valid sample. He was instructed to drink water and
submit to a second test at 12:00. He left at 11:00 after being warned there would
be “consequences” for leaving. Tomlinson testified that he was unaware of what
those consequences could be because he had not seen a policy. Upon learning
that he was terminated upon his return to the office, he offered to immediately
return for a test, but was told no. Tomlinson did admit that he signed a paper
indicating that if he was injured, he would have to submit to a drug test before
receiving worker’s compensation for the injury. However, Tomlinson denied ever
seeing any other drug policy.
{¶10} Based upon this evidence, the Commission determined that
Tomlinson had violated the drug policy and was terminated for cause. However,
the only evidence before the Commission as to the policy and Tomlinson’s receipt
of the policy was the testimony of Dorsett that there was a policy and that
Tomlinson had violated it. The contents of the policy were never available for
Tomlinson or even for the hearing officer’s review. Dorsett testified as to the
contents of various documents, but never provided those documents for review by
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anyone. This court notes that since this was a telephone hearing, no one except
Dorsett ever saw the documents upon which the Commission’s decision is based.
By denying Tomlinson access to these documents, he was prevented from
conducting an effective cross-examination as he had no way of knowing what the
contents of the documents were. This problem is compounded by the
Commission basing its decision on the content of the documents which it had not
ever seen, but was relying upon the hearsay testimony rather than the sworn
testimony before it. This is a violation of Tomlinson’s right to a fair hearing and
due process. Thus, the trial court erred in affirming the decision of the
Commission. The second assignment of error is sustained.
{¶11} Having found that Tomlinson was denied a fair hearing, the issue
raised in the first assignment of error is moot and will not be addressed at this
time. The judgment of the Court of Common Pleas of Allen County affirming the
judgment of the Commission is reversed and the matter is remanded for further
proceedings.
Judgment Reversed
and Cause Remanded
ROGERS and SHAW, J.J., concur.
/jnc
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