Coles v. Ohio Dept. of Job & Family Servs.

[Cite as Coles v. Ohio Dept. of Job & Family Servs., 2011-Ohio-3726.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
:
ANTHONY COLES
Plaintiff-Appellant : C.A. CASE NO. 24289
vs. : T.C. CASE NO. 2010-CV-03725
: (Civil Appeal from
OHIO DEPARTMENT OF JOB AND Common Pleas Court)
FAMILY SERVICES, ET AL. :
Defendants-Appellees
. . . . . . . . .
O P I N I O N
Rendered on the 29th day of July, 2011.
. . . . . . . . .
Anthony Coles, 334 North Cherrywood Avenue, Dayton, OH 45403
Plaintiff-Appellant, Pro Se
Michael DeWine, Attorney General, Robin A. Jarvis, Atty. Reg. No.
0069752, Assistant Attorney General, 1600 Carew Tower, 441 Vine
Street, Cincinnati, OH 45202-2809
Attorneys for Defendant-Appellee Ohio Department of Job and
Family Services
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Petitioner, Anthony Coles, appeals from a final judgment
of the common pleas court entered pursuant to R.C. 4141.282(H),
affirming a decision of the Unemployment Compensation Review
Commission (“the Commission”).
2
{¶ 2} Coles is a former employee of Delphi Corporation where
he was employed as a machine operator. At some point, the United
States Secretary of Labor certified employment at Delphi
Corporation as adversely affected employment under the Trade Act
of 1974, as amended, 19 U.S.C. § 2271, et seq. Consequently, former
employees of Delphi Corporation are eligible to apply for Trade
Adjustment Assistance (“TAA”).
{¶ 3} TAA is a federally funded program administered by the
states that “is designed to assist individuals who become
unemployed as a result of increased imports from, or shifts in
production to, foreign countries.” O.A.C. 5101:9-6-41.
“Congress initiated the TAA program in 1962 ‘in the belief that
the special nature of employment dislocation resulting from changes
in trade policies necessitated a level of worker protection’ in
addition to state unemployment programs.” Former Employees of
Tesco Technologies, LLC v. United States Secretary of Labor, 30
C.I.T. 1754, 1757 (citations omitted).
{¶ 4} Coles applied to the Ohio Department of Job and Family
Services (“ODJFS”) for TAA. He sought to obtain training at the
University of Dayton under TAA for a program known as six sigma
green and black certification. Coles’ application was denied by
a claims specialist for ODJFS on findings that “there is a
reasonable expectation of [Coles] securing employment at
3
equivalent wages in the near future” and Coles “has 4 degrees which
is a marketable skill[.]”
{¶ 5} Coles requested a hearing before the Commission. After
receiving testimony, the Hearing Officer affirmed ODJFS’ denial
of Coles’ request for TAA training based on the following reasoning:
{¶ 6} “In considering that [Coles] has not applied for any
accounting clerk positions, the Hearing Officer is not persuaded
that no suitable employment (which may include technical and
professional employment) is available for [Coles]. With respect
to 20 CFR Section 617.22, the claimant’s request for TAA training
is denied.”
{¶ 7} Coles filed a notice of appeal from the Commission’s
decision to the common pleas court. R.C. 4141.282(H) governs such
appeals, and provides:
{¶ 8} “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.”
{¶ 9} The common pleas court entered its judgment on September
28, 2010 (Dkt. 18). After discussing the applicable law, the court
made the following findings and reached its conclusion, stating:
4
{¶ 10} “In his Brief, Appellant first argues that he did not
receive a fair hearing by the Unemployment Compensation Review
Commission. However, the record shows that the hearing officer
made a reasonable effort to ascertain the relevant facts; advised
Appellant of his right with respect to the hearing; explained the
proceeding process to Appellant; allowed Appellant to present
testimony and argument; and assisted Appellant in examining Ms.
Scarberry.1 Accordingly, upon review of the record and hearing
transcript, the court finds that the hearing officer provided
Appellant with the opportunity for a fair hearing.
{¶ 11} “Appellant also argues that the decision of the Review
Commission was against the manifest weight of the evidence, was
unlawful, and was unreasonable. Here, though, the court finds
that the record supports the finding that Appellant did have a
reasonable expectation of securing employment with his prior
educational experiences, including the three degrees he previously
earned. In other words, the court agrees with the finding of the
Review Commission that Appellant could expect to secure employment
with at least one of his three degrees if he applied for positions
for which he was qualified, as Appellant already has marketable
skills. Moreover, there are available accounting clerk and
1
Ms. Scarberry is the Claims Specialist who denied Coles’
application for TAA training.
5
business manager positions in the Dayton area, to which Appellant
could apply, and those positions pay approximately $480.00 per
week, which is more than $360.12, or 80% of Appellant’s average
weekly wage. Thus, the court finds that the record supports the
finding of the administrative agency that there is suitable
employment available for Appellant. Therefore, having again
reviewed the entire record, the court cannot say that the hearing
officer’s decision was unlawful, unreasonable, or against the
manifest weight of the evidence. Therefore, Appellant’s Appeal
is hereby OVERRULED.” (Id., p. 7-8.)
{¶ 12} Coles filed a notice of appeal to this court from the
final judgment of the court of common pleas. Coles’ appellate
brief fails to comply with App.R. 16 in several respects, including
the failure to include a statement of the issues and assignments
of error presented for review. However, the arguments in his
appellate brief appear to mirror the arguments that he made before
the common pleas court. In short, he argues that he did not receive
a fair hearing before the Commission and that the Commission’s
decision was against the manifest weight of the evidence.
{¶ 13} The Trade Act of 1974 provides that training shall be
approved for an adversely affected worker if:
{¶ 14} “(A) there is no suitable employment (which may include
technical and professional employment) available for an adversely
6
affected worker,2
{¶ 15} “(B) the worker would benefit from appropriate training,
{¶ 16} “(C) there is a reasonable expectation of employment
following completion of such training,
{¶ 17} “(D) training approved . . . is reasonably available
to the worker . . .,
{¶ 18} “(E) the worker is qualified to undertake and complete
such training, and
{¶ 19} “(F) such training is suitable for the worker and
available at a reasonable cost[.]”3 19 U.S.C. § 2296(a)(1).
{¶ 20} Similarly, O.A.C. 5101:9-6-41(B) provides that “[i]n
order for a training contract to be executed through the trade
program, the following six criteria, as specified in federal law,
must be satisfied:
{¶ 21} “(1) Reasonable expectation of employment on completion
in the labor market area.
{¶ 22} “(2) Demonstrated ability to support self while in the
2
The Trade Act defines “suitable employment” as “work
of a substantially equal or higher skill level than the worker’s
past adversely affected employment” with “wages for such work
at not less than 80 percent of the worker’s average weekly wage.”
19 U.S.C. § 2296(e).
3
Twenty C.F.R. § 617.22(a) provides that “[t]raining
shall be approved for an adversely affected worker if the State
agency determines that: (1) There is no suitable employment
* * * available for an adversely affected worker.”
7
training through the completion of the program.
{¶ 23} “(3) Reasonable cost of training is competitive for the
program in the area including quickest completion, as duration
may influence costs.
{¶ 24} “(4) No suitable work is available for the worker without
additional training.
{¶ 25} “(5) Training is appropriate for the worker or there
is a reasonable expectation of completion.
{¶ 26} “(6) Training is reasonably accessible from the worker’s
place of residence.”
{¶ 27} Although Congress initiated the TAA program in 1962,
by 1974 “it became clear that the program had ‘not been very
effective,’ so Congress revamped TAA to ‘ease [the] qualifying
criteria and . . . streamline [the] petitioning process. It [was]
the intention . . . that workers displaced by increased imports
receive all the benefits to which they are entitled in an
expeditious manner.’” Former Employees of Tesco Technologies, LLC
v. United States Secretary of Labor, 30 C.I.T. 1754, 1757 (citations
omitted).
{¶ 28} TAA laws “should be construed broadly to effectuate
[their] purpose” because they serve a “remedial purpose.” Id.
at 1758 (citations omitted). Indeed, “[a] primary purpose of the
Trade Act of 1974 was to make work adjustment assistance more
8
readily available . . . .” International Union v. Marshall (D.C.
Cir. 1978), 584 F.2d 390, 395.
{¶ 29} The Commission’s decision denying training assistance
was based on its finding that suitable employment was available
for Coles, which in turn was based on a finding that Coles’ four
advanced degrees provided him with a marketable skill. The court
of common pleas found the record demonstrates that Coles’
associates degree in accounting gives him a marketable skill for
which a job market exists.
{¶ 30} At the hearing before the Commission, Coles testified
that he possesses three advanced degrees: an Associate’s Degree
in Accounting, an Associate’s Degree in Electronic Data Processing,
and a Bachelor’s Degree in Management Information Systems. Debra
Scarberry, a Claims Specialist with ODJFS, testified that she
conducted searches for accounting clerk jobs “and different things
in that are of bookkeeping” and management jobs. (Tr. 16.) She
testified that the employment outlook in the Dayton area for these
types of jobs was “extremely high.”
{¶ 31} At the hearing, Coles testified “I have yet worked in
accounting.” (Tr. 22.) He also testified that he has not applied
for any accounting jobs. That fact appears to have driven the
findings denying Coles’s application for TAA. (Id.) However,
no testimony was developed at the hearing regarding why Coles had
9
not applied for any accounting jobs or whether Coles would be
qualified for any available accounting jobs. On appeal to the
court of common pleas and to our court, Coles argues that he did
not apply for any accounting jobs because he was not qualified
for any of these jobs. According to Coles, he received his degree
in 1986, has had no or little accounting experience, and has no
accounting skills.
{¶ 32} In order to determine whether suitable employment is
available to Coles, the hearing officer would need to compare any
marketable skills possessed by Coles with the market demand for
such skills. The bare fact that Coles possesses three advanced
degrees is insufficient to establish that suitable employment is
available to him without also comparing Coles’ actual skills with
the requirements of the job opportunities available in the
marketplace. Neither the testimony of Coles or Scarberry provided
the hearing officer with sufficient information to make the
necessary comparison.
{¶ 33} R.C. 4141.281(C)(2) provides, in part:
{¶ 34} “In conducting hearings, all hearing officers shall
control the conduct of the hearing, exclude irrelevant or
cumulative evidence, and give weight to the kind of evidence on
which reasonably prudent persons are accustomed to rely in the
conduct of serious affairs. Hearing officers have an affirmative
10
duty to question parties and witnesses in order to ascertain the
relevant facts and to fully and fairly develop the record.”
(Emphasis supplied.)
{¶ 35} The hearing officer’s failure to develop an adequate
record at the hearing regarding Coles’ marketable skills and
whether those particular skills were in demand in the job market
precludes a finding that suitable employment was available to
Coles. We acknowledge that it is not the hearing officer’s duty
to make the entire case for either party. However, the hearing
officer does have an affirmative duty to fully and fairly develop
the record. By failing to do so in this case, the hearing officer
was left with an insufficient record from which to make a competent
finding regarding whether suitable employment is available to
Coles, and in the balance weighed the insufficiency against Coles.
The affirmative duty that R.C. 4141.281(C)(2) imposes required
the hearing officer to do more to develop the record. Therefore,
the Commission’s decision to deny Coles’ request for TAA was against
the manifest weight of the evidence because it was not supported
by some competent, credible evidence. C.E. Morris Co. v. Foley
Const. Co. (1978), 54 Ohio St.2d 279, syllabus.
{¶ 36} Coles’ assignment of error is sustained. The judgment
of the court of common pleas is reversed and the cause will be
remanded for further proceedings consistent with this opinion.
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DONOVAN, J. concurs.
HALL J., dissenting:
{¶ 37} Because I believe that the appellant had a full and fair
hearing before the Hearing Officer of the Unemployment Compensation
Review Commission, I would affirm the trial court’s affirmance
of the Review Commission, which denied him re-training benefits.
{¶ 38} The majority opinion indicates that the Hearing Officer
failed to fully and fairly develop the record, particularly with
respect to whether suitable employment was otherwise available
to the appellant. The appellant has three advanced degrees: an
Associate’s Degree in Accounting, an Associate’s Degree in
Electronic Data Processing, and a Bachelor’s degree in Management
Information Systems. Debra Scarberry, Claims Specialist for the
Ohio Department of Job and Family Services, testified that there
was suitable work for the appellant. Notably, he did not apply
for any positions she described. Consequently, the Hearing Officer
and Review Commission concluded that suitable work was available
to him.
{¶ 39} I agree with the trial court that “* * * the hearing
officer made a reasonable effort to ascertain the relevant facts;
advised Appellant of his rights with respect to the hearing;
12
explained the proceeding process to Appellant; allowed Appellant
to present testimony and argument; and assisted Appellant in
examining Ms. Scarberry.” Decision, Order and Entry, filed
September 28, 2010, at p. 7. It was the appellant’s burden to
demonstrate that he was denied a fair hearing. I believe this record
was suitable for the Review Commission’s decision and the trial
court’s determination that the Commission’s decision was not
unlawful, unreasonable, or against the manifest weight of the
evidence.
{¶ 40} Undoubtedly, R.C. 4141.281(C)(2) requires that “Hearing
officers have an affirmative duty to question parties and witnesses
in order to ascertain the relevant facts and to fully and fairly
develop the record.” But, this provision should not be construed
to make the hearing officer an advocate for either party. Indeed
the Ohio Administrative Code reflects on the need for an impartial
adjudication. It provides: “The review commission and hearing
officers shall conduct hearings and other proceedings in a case
in such order and manner and shall take any steps consistent with
the impartial discharge of their 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.”
OAC § 4146-7-02(A) (emphasis added). Moreover, “[u]nder Ohio case
law, even when one or both parties appear pro se, a hearing officer
13
has no duty to present or establish either party's case. See Fasolo
v. Ohio Bur. of Emp. Serv. (Jan. 21, 1988), Cuyahoga App. No. 52839,
unreported, 1988 WL 5174. Having chosen to pursue its case without
counsel, appellee should not expect, and the law does not provide,
that the hearing officer must act as either party's advocate. Id.”
Fredon Corp. v. Zelenak (1997), 124 Ohio App.3d 103, 111; see,
also, Heller v. Ohio Dept. of Jobs & Family Servs., Cuyahoga App.
No. 92965, 2010-Ohio-517, ¶31 (recognizing that the hearing officer
has no duty to present the claimant’s case or act as an advocate
for either party).
{¶ 41} I believe the majority’s conclusion fundamentally
changes the impartial and non-adversarial nature of the hearing
officer’s duties and I therefore dissent.
. . . . . . . . .
Copies mailed to:
Anthony Coles
Michael DeWine, Esq.
Robin A. Jarvis, Esq.
Hon. Mary Katherine Huffman