Marlo v. Dir., Ohio Dept. of Job & Family Servs.

[Cite as Marlo v. Dir., Ohio Dept. of Job & Family Servs., 2021-Ohio-1366.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
GEOFFREY MARLO, : OPINION
Appellant, :
CASE NO. 2020-P-0082
- vs - :
DIRECTOR, OHIO DEPARTMENT OF :
JOB AND FAMILY SERVICES, et al.,
:
Appellees.
:
Civil Appeal from the Portage County Court of Common Pleas, Case No. 2019 CV
01008.
Judgment: Affirmed.
John A. McNally, IV, 100 E. Federal Street, 6th Floor, Youngstown, Ohio 44503 (For
Appellant).
Dave Yost, Ohio Attorney General, and Patrick MacQueeney, Assistant Attorney
General, 615 West Superior Avenue, 11th Floor, Cleveland, Ohio 44113-1899 (For
Appellee, Director, Ohio Department of Job and Family Services).
Christopher J. Newman and J. Michael Thompson, Henderson, Covington, Messenger,
Newman & Thomas Co., LPA, 6 Federal Plaza Central, Suite 1300, Youngstown, Ohio
44503 (For Appellee, M&A Distributing Co., Inc.).
THOMAS R. WRIGHT, J.
{¶1} Geoffrey Marlo appeals the trial court’s judgment, affirming the final decision
of the Unemployment Compensation Review Commission which denied Marlo’s
application for unemployment benefits. We affirm.
{¶2} Beginning June 8, 2015, Marlo was employed as a Class A CDL delivery
truck driver by M&A Distributing Co., Inc. (“M&A”), doing business as Superior Beverage
Group. M&A discharged Marlo on May 21, 2019. Marlo filed an application for
unemployment benefits, which the Office of Unemployment Insurance Operations denied
in August 2019 on the basis that Marlo was discharged for just cause. Marlo appealed,
and the matter was transferred to the Review Commission.
{¶3} A telephonic hearing was held before a hearing officer of the Review
Commission on October 30, 2019. Marlo offered testimony, as did the executive vice
president of M&A, Joseph McHenry.
{¶4} The record before the Review Commission also contains copies of relevant
sections of Superior Beverage Group’s Associate Handbook and Federal Motor Carrier
Safety Regulations (“Safety Regulations”), as well as Marlo’s written acknowledgment of
receipt of both documents on his date of hire. The handbook includes an “associate
conduct” policy, which provides that employees are subject to immediate discharge under
certain circumstances, including “insubordination and/or failure to follow supervisory
instructions” and “refusal to submit upon request to a substance abuse test.” The “drug
and alcohol program” in the handbook provides that employees are subject to drug and
alcohol testing in the following circumstances: based upon reasonable suspicion;
following work-related accidents; in certain circumstances after completing a drug or
alcohol rehabilitation program; to comply with DOT testing guidelines, such as random
testing; and in compliance with the company’s random drug testing for non-DOT
associates.
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{¶5} The testimony establishes that Marlo was notified on May 15, 2019, that he
was randomly selected for a DOT substance abuse test, for which he was required to
immediately submit. Marlo reported to the DOT-approved testing facility the following
evening. When questioned as to the timeliness of Marlo’s reporting, McHenry testified he
thought reporting the next day was within the guidelines.
{¶6} Upon arrival, Marlo submitted a urine sample on site. Marlo was
immediately informed that his sample was outside the acceptable temperature range,
and, according to the Safety Regulations, he would have to provide another sample
before leaving the facility. If he failed to give an adequate sample within three hours, his
results would be considered “positive.” After drinking water and attempting twice within
the next three hours, Marlo could not provide another sample.
{¶7} Marlo was discharged by M&A on May 21, 2019, for “insubordination and/or
failure to follow instructions” and “refusal to submit upon request to a substance abuse
test,” which was also noted as a violation of DOT’s testing guidelines.
{¶8} Marlo described the test as a “controlled test.” He testified:
When you enter the test facility, you are directed to empty your
pockets into a locker, raise your shirt, make sure you don’t
have any * * * shall we say additional appendages on you in
the form of * * * other fluids that you might be carrying with
you. You enter an observed room that has all the plumbing
shut off and dye in the toilet and you put a sample into a
sample cup and it has to be “X” amount of volume. * * * And
then as soon as you finish that you give it to the tester and
they now seal it up and send it off.
Marlo stated he was informed the sample was not within the temperature band on the
specimen cup and would have to give another sample. He said he was provided with two
cups of water but was only able to “choke down” one cup; the facilitators would not allow
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him to retrieve water from his vehicle. After three hours, he was unable to supply another
urine sample. He reported the situation to human resources the following morning, was
subsequently informed not to report to work, and was terminated four days later.
{¶9} Marlo further testified that, contrary to language in the Safety Regulations,
he was never advised to obtain an evaluation from a licensed physician within five days
of the test as to why he could not medically provide a urine sample within that three-hour
period of time. The Safety Regulations are published at 49 C.F.R. Part 40, and the specific
regulation provides:
As the [Designated Employer Representative], when the
collector informs you that the employee has not provided a
sufficient amount of urine (see paragraph (b)(4) of this
section), you must, after consulting with the [Medical Review
Officer], direct the employee to obtain, within five days, an
evaluation from a licensed physician, acceptable to the
[Medical Review Officer], who has expertise in the medical
issues raised by the employee’s failure to provide a sufficient
specimen.
See 49 C.F.R. 40.193(c). Marlo also stated that he offered to submit samples for a blood
test or hair follicle test at his own expense but was not permitted to do so.
{¶10} McHenry testified that Marlo had previously been suspended for two days
in May 2018 for a similar situation. Marlo had been off work due to a work-related accident
and injury. McHenry stated that Marlo did not provide a drug screen or post-accident
drug test within DOT’s time guidelines. Marlo was written up for the following violations:
1. Insubordination and/or failure to follow supervisory
instructions
2. Refusal to submit upon request to a substance abuse test
3. Carrying or possessing dangerous weapons on the job or
on company property
4. Violation of the “Stay home if you exhibit flu-like symptoms
policy”
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The letter further warned, “Any further instances may include further discipline up to and
including discharge.” McHenry testified that Marlo was warned that if it happened again
he would be subject to discipline, including possible discharge. Marlo testified that he
had been transported unconscious to the hospital following the accident and released
four days later, during which time he was not requested to submit a post-accident drug
screen.
{¶11} The hearing officer concluded that Marlo was discharged by M&A for just
cause in connection with work under R.C. 4141.29(D)(2)(a).
{¶12} Marlo’s subsequent appeals to the full Review Commission and the trial
court were denied. Now, in his appeal to this court, Marlo advances one assignment of
error:
The Portage County Common Pleas Court erred in affirming
the November 20, 2019 Determination of the Unemployment
Compensation Review Commission in affirming the October
31, 2019 decision of a UCRC Hearing Officer when the
Determination of the Commission and its Hearing Officer was
unlawful, unreasonable, or against the manifest weight of the
evidence as no just cause existed for the termination of
Appellant’s unemployment.
{¶13} A claimant is not eligible for unemployment compensation benefits if the
director of ODJFS finds that the claimant “has been discharged for just cause in
connection with the individual’s work[.]” R.C. 4141.29(D)(2)(a). A claimant has the
burden of proving his or her entitlement to unemployment compensation benefits,
including the issue of “just cause.” Holzer v. Ohio Unemp. Comp. Rev. Comm., 11th Dist.
Portage No. 2011-P-0011, 2011-Ohio-6523, ¶ 15, citing Irvine v. Unemp. Comp. Bd. of
Review, 19 Ohio St.3d 15, 17, 482 N.E.2d 587 (1985).
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{¶14} “The term ‘just cause’ has not been clearly defined in our case law. ‘* * *
Essentially, each case must be considered upon its particular merits. 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 at 17, quoting Peyton v.
Sun T.V. & Appliances, 44 Ohio App.2d 10, 12, 335 N.E.2d 751 (10th Dist.1975). “The
determination of whether just cause exists necessarily depends upon the unique factual
considerations of the particular case. Determination of purely factual questions is primarily
within the province of the [Review Commission].” Irvine at 17.
{¶15} Pursuant to R.C. 4141.282(H), “The court shall hear the appeal on the
certified record provided by the commission. If the court finds that the decision of the
commission was unlawful, unreasonable, or against the manifest weight of the evidence,
it shall reverse, vacate, or modify the decision, or remand the matter to the commission.
Otherwise, the court shall affirm the decision of the commission.” “This duty is shared by
all reviewing courts, from the first level of review in the common pleas court, through the
final appeal in [the Ohio Supreme Court].” Tzangas, Plakas & Mannos v. Ohio Bur. of
Emp. Serv., 73 Ohio St.3d 694, 696, 653 N.E.2d 1207 (1995), citing Irvine at 17-18. Thus,
“[a]n 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 at paragraph one of the syllabus.
{¶16} The appellate court is required to focus on the decision of the Review
Commission rather than that of the common pleas court. Kent State Univ. v. Hannam,
11th Dist. Portage No. 2018-P-0109, 2019-Ohio-2971, ¶ 9. “Furthermore, ‘[t]he court’s
role is to determine whether the decision of the Review Commission is supported by
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evidence in the certified record. * * * If the reviewing court finds that such support is
found, then the court cannot substitute its judgment for that of the Review Commission.
* * * “The fact that reasonable minds might reach different conclusions is not a basis for
the reversal of the [Review Commission’s] decision.”‘” Id. at ¶ 10, quoting Univ. of Akron
v. Ohio Dept. of Job & Family Services, 9th Dist. Summit No. 24566, 2009-Ohio-3172, ¶
11, quoting Irvine, 19 Ohio St.3d at 18, 653 N.E.2d 1207. Every reasonable presumption
must be made in favor of the decision and the findings of fact of the Review Commission.
Holzer, 2011-Ohio-6523, at ¶ 12.
{¶17} Marlo contends the trial court erred in affirming the Review Commission’s
determination that just cause existed for the termination of his employment with M&A
because said determination was unlawful, unreasonable, or against the manifest weight
of the evidence.
{¶18} Marlo advances several arguments, one of which is that M&A’s stated
rationale for his termination “remains ever-changing.” He directs us to the May 21, 2019
termination letter and the response to the Office of Unemployment Operations’ “Request
to Employer for Separation Information.” The termination letter provided that Marlo was
terminated for “insubordination and/or failure to follow supervisory instructions” and
“refusal to submit upon request to a substance abuse test”; “in addition, you failed to be
in compliance with the DOT testing guidelines (ie: Random, post-accident, reasonable
cause, return to work) for DOT associates.” M&A also provided the following responses
to questions in the Request:
What was the reason the claimant was separated from
employment (quit, discharge, laid off, leave of absence
etc.)?
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Claimant violated progressive discipline and last chance
agreement of May 16, 2018 of insubordination, failure to
follow supervisory instructions and refusal to submit to a
mandatory substance abuse test.
If you have any additional information you would like to
provide, please explain.
After previous acknowledged warning with described
consequences, claimant either provided a fake specimen or
specimen not within temperature range then refused to submit
another observed specimen within a mandatory timeframe.
What was the final event and date that led to the
claimant’s discharge?
Failure to submit to a mandatory D.O.T. drug screen on
5/16/19.
Each statement made by M&A consistently reveals the reason Marlo was
discharged regarded his conduct surrounding the substance abuse test administered on
May 16, 2019. Marlo’s argument lacks merit.
{¶19} Marlo also takes issue with M&A’s characterization of the May 16, 2018
suspension letter as a “last chance agreement” or evidence of “progressive discipline.”
The letter notified Marlo that he was suspended for two days without pay for just cause,
and it further warned, “Any further instances may include further discipline up to and
including discharge.” Marlo’s argument is not well taken—he was terminated for the
reasons stated in the subsequent May 21, 2019 termination letter, which are not
dependent upon the warning he received one year prior. Any mischaracterization of the
former letter does not affect disposition of the matter at hand.
{¶20} The core of Marlo’s dispute with the just cause determination is that he
believes he complied with M&A’s directions and DOT regulations as to the random
substance abuse test and did not refuse to submit a urine sample—he reported to the
approved testing facility and provided a urine sample; when the sample failed to register
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at an appropriate temperature for an unknown reason, he remained for several hours and
twice more attempted to provide an adequate sample; when unsuccessful, he suggested
alternative testing methods but was denied. He contends, therefore, that the requisite
degree of employee fault is not present here.
{¶21} “The [Unemployment Compensation] Act does not exist to protect
employees from themselves, but to protect them from economic forces over which they
have no control. 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. Thus, fault
is essential to the unique chemistry of a just cause termination.” Tzangas, 73 Ohio St.3d
at 697-698, 658 N.E.2d 1207. “[T]he question of fault cannot be rigidly defined, but, rather,
can only be evaluated upon consideration of the particular facts of each case. If an
employer has been reasonable in finding fault on behalf of an employee, then the
employer may terminate the employee with just cause. Fault on behalf of the employee
remains an essential component of a just cause termination.” Id. at 698, citing Irvine, 19
Ohio St.3d at 17, 653 N.E.2d 1207. “Fault” does not, however—and contrary to Marlo’s
suggestion—require misconduct on the part of the employee. Reddick v. Sheet Metal
Prods. Co., 11th Dist. Lake No. 2009-L-092, 2010-Ohio-1160, ¶ 22, citing Sellers v. Bd.
of Review, 1 Ohio App.3d 161, 164, 440 N.E.2d 550 (10th Dist.1981) and Schienda v.
Transp. Research Ctr., 17 Ohio App.3d 119, 121, 477 N.E.2d 675 (3d Dist.1984).
{¶22} Here, while there are conflicting innuendos as to whether Marlo provided a
fake specimen and refused to provide a second specimen, or whether there was
something wrong with the specimen collection cup and Marlo had a medical reason that
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rendered him unable to provide a second sample—the evidence in the certified record
supports the inference drawn by the Review Commission that Marlo is directly responsible
for his own predicament. Although considered timely, Marlo did not report to the testing
facility until approximately 7:00 p.m. on the day after he received notification of his random
selection, which is far from immediate; the only urine sample he provided was outside the
appropriate temperature range, suggesting he did not produce the urine sample on site
as required; and he refused to drink enough water to produce a valid sample within the
three-hour window provided. Further, it was within the province of the factfinder to
evaluate credibility regarding Marlo’s allegation that the testing facility’s report required
his employer to direct him to obtain an evaluation from a licensed physician within five
days of the test, as provided in the Safety Regulations.
{¶23} The conclusion that M&A was reasonable in finding fault on behalf of Marlo
to support a “just cause” termination is not against the manifest weight of the evidence.
The fact that reasonable minds could weigh the evidence and reach a contrary conclusion
is not a basis for reversal. Irvine, 19 Ohio St.3d at 18, 653 N.E.2d 1207; Reddick at ¶ 20.
Finally, Marlo has not demonstrated anything unreasonable or unlawful about the Review
Commission’s determination. The trial court did not err in affirming the final decision of
the Review Commission.
{¶24} The sole assigned error lacks merit.
{¶25} The judgment of the Portage County Court of Common Pleas is affirmed.
MARY JANE TRAPP, P.J.,
MATT LYNCH, J.,
concur.
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