Lee Ann Lawson appeals the judgment of the Cuyahoga County Common Pleas Court which affirmed the decision of the Unemployment Compensation Board of Review denying Lawson's claim for unemployment compensation.
Lawson worked as a licensed practical nurse at MetroHealth Medical Center from August 2, 1982 until February 10, 1994 when her supervisor smelled the odor of alcohol on her breath, ordered her to report for a drug test and placed her on administrative leave. The following day, despite negative drug test results, she was not called back to work because co-employees reported incidents of theft, manipulation of the billing system, and intimidation committed by Lawson. Specifically, these employees reported that Lawson had taken two cordless phones, and other hospital supplies including Tylenol, syringes, disposable diapers, and towels. They further reported that Lawson and her two daughters received examinations in the MetroHealth Eye Clinic for which Lawson failed to register and, thus, was never billed. A subsequent search of her locker by hospital security and a union representative uncovered original medical documents for Lawson and her daughters relating to these examinations. Additionally, employees reported that Lawson made threatening comments and they feared retaliation from her. Upon further investigation of these claims, MetroHealth discharged Lawson from employment on February 17, 1994 for dishonesty, theft, unauthorized possession of hospital property and inappropriate behavior.
On February 18, 1994, Lawson filed an application for unemployment benefits with the Ohio Bureau of Employment Services. On March 11, 1994, the Administrator determined MetroHealth discharged Lawson for "just cause" in connection with work and therefore denied her claim. On March 21, 1994, Lawson filed a request for reconsideration alleging that the allegations of theft only surfaced after the drug test came back negative. The Administrator, then, reversed the original decision and allowed her claim for benefits.
Thereafter, on May 31, 1994, MetroHealth filed an appeal with the Board of Review. The first hearing was held on October 12, 1994 at which two MetroHealth employees testified and Lawson cross-examined these witnesses. At the conclusion of this testimony, the hearing officer continued the proceedings to allow additional witnesses who were working at the time to testify on behalf of MetroHealth. On December 9, 1994, however, the officer again continued the hearing due to inclement weather conditions.
On January 3, 1995, the hearing officer conducted another hearing. Lawson failed to appear, and in her absence MetroHealth presented written statements from two employees who had reported on Lawson's behavior. Based upon all evidence presented, the hearing officer concluded that MetroHealth discharged Lawson for dishonesty in connection with work.
Lawson then requested a further appeal which the Board of Review denied on March 24, 1995. Thereafter, on April 14, 1995, Lawson appealed to the common pleas court. The common pleas court affirmed the decision of the Board of Review, thereby denying her appeal, and Lawson now appeals to this court assigning three errors for our review.
The first assignment of error states:
THE DECISION OF THE COMMON PLEAS COURT IS ERRONEOUS BECAUSE IT FAILED TO HEAR ADDITIONAL EVIDENCE (PURSUANT TO THE PROVISIONS OF O.R.C. 2506.03) OR TO REMAND THE CASE BACK TO THE BOARD OF REVIEW FOR FURTHER PROCEEDINGS.
Lawson argues the trial court erred in failing to hear additional evidence or remand the case for further review because the record does not contain information she gave to the referee including information that an employee who filed the reports against Lawson has recanted her story, and that a MetroHealth doctor possesses one of the missing phones.
The Bureau, on the other hand, argues the trial court acted appropriately in affirming the decision of the Board of Review because the common pleas court properly considered the case solely upon the record certified by the Board of Review.
The issue then, for our review, is whether the trial court properly determined Lawson's appeal based on the record from the Board of Review.
R.C. 4141.28(O) governs the procedure to be followed in an appeal from a decision of the board and provides, "The appeal shall be heard upon such record certified by the board." In accordance with this provision, Ohio law provides that an administrative appeal to the court of common pleas be limited to the record as certified by the board. See Hall v. Am. Brake Shoe Co. (1968), 13 Ohio St. 2d 11, 233 N.E.2d 582; Ray v. Ohio Unemp. Comp. Bd. of Rev. (1993), 85 Ohio App. 3d 103, 619 N.E.2d 106.
In this case, the certified record on appeal contains not only transcripts of the two hearings before the hearing officer, but also various documents filed by Lawson wherein she challenges the decision of the Bureau at various levels of her appeal. Furthermore, we recognize that nowhere in any of these documents, including Lawson's own cross-examination of MetroHealth witnesses, is there any indication that she gave additional information to the hearing officer or that she had evidence regarding a witness recanting testimony or that she identified the location of the allegedly stolen cordless telephones. In conformity with the provisions of R.C. 4141.28, judicial review of an unemployment compensation appeal is not de novo, but rather is limited to the record as certified by the board. Hence, neither the common pleas court nor this court can properly consider the matters contained in the affidavit appellant filed in the common pleas court. Accordingly, as the common pleas court properly limited its review to the record as certified by the board, this assignment of error is overruled.
The second assignment of error states:
THE COMMON PLEAS COURT ERRED IN AFFIRMING THE DECISION OF THE BOARD OF REVIEW BECAUSE THE REFEREE'S FINDINGS ARE UNLAWFUL, UNREASONABLE AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
Lawson contends the trial court erred in affirming the decision of the Board of Review because the hearing officer denied her a fair hearing since she did not have an opportunity to present evidence or cross-examine witnesses, and because the January 3, 1995 hearing should have been continued, and also because the hearing officer decided the case upon hearsay allegations contained in un sworn statements of co-employees.
The Bureau contends the trial court properly affirmed the Board of Review's decision because it is supported by the manifest weight of the evidence, Lawson had every opportunity to present her case, and the hearing officer decided the matter on admissible evidence.
The issue for our consideration is whether the trial court erred in affirming the decision of the Board of Review.
In making this determination we note the decision of the Ohio Supreme Court in Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Serv. (1995), 73 Ohio St. 3d 694, 653 N.E.2d 1207, where the court held in paragraph one of its syllabus:
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.
The court explained that although appellate courts do not act as fact finders, there is a duty to determine whether the evidence in the record supports the board's decision. "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 Supreme Court.]" Id. at 696.
With this standard in mind, we consider whether the record supports the board's decision to deny benefits in this case.
R.C. 4141.29 governs eligibility for unemployment compensation benefits and provides, in pertinent part:
(D) * * * no individual may * * * be paid benefits under the following conditions:
(2) For the duration of his unemployment if the administrator finds that:
(a) He quit his work without just cause or has been discharged for just cause in connection with his work's.
In examining the purpose of the Unemployment Compensation Act, the Ohio Supreme Court in Tzangas, supra, explained 73 Ohio St. 3d at 697-698:
The 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.
In this case, the record on appeal contained evidence that Lawson had taken hospital property for her own use, failed to register for family eye examinations and thereby never received a billing statement, and also threatened other employees. Thus, the evidence revealed Lawson was directly responsible for her own predicament; sufficient evidence of just cause for discharge existed in the record; and the trial court did not err in affirming the Board of Review's decision.
Another question is whether the hearing officer should have continued the January 3, 1995 proceedings because Lawson did not appear. R.C. 4141.28(J) controls the procedure for appeal from the decision of a referee or board and provides:
If the party appealing fails to appear at the hearing the referee or the board shall dismiss the appeal, * * * . If the other party fails to appear at the hearing, the referee or the board shall proceed with the hearing and shall issue a decision without further hearing, provided that the referee or board shall vacate the decision upon * * * good cause for his failure to appear is shown to the referee or the board within fourteen days after the hearing date. (Emphasis added.)
In this case, MetroHealth appealed the decision allowing Lawson's claim thereby making Lawson the "other" party. Pursuant to the mandatory language of R.C. 4141.28(J), the hearing officer properly conducted the hearing in Lawson's absence and issued a decision.
Furthermore, on the issue of hearsay evidence, we recognize that R.C. 4141.28(J) provides, in pertinent part:
In the conduct of such a hearing or any other hearing on appeal to the board which is provided in this section, the board and the referees are not bound by common law or statutory rules of evidence or by technical or formal rules of procedure.
Thus, it is well-settled in Ohio that "evidence which might constitute inadmissible hearsay where stringent rules of evidence are followed must be taken into account in proceedings such as this where relaxed rules of evidence are applied." Simon v. Lake Geauga Printing Co. (1982), 69 Ohio St. 2d 41, 44, 430 N.E.2d 468. Therefore, the hearing officer properly considered the allegedly hearsay evidence consisting of statements of co-employees, together with the direct testimony of the witnesses who testified at the hearing. Having made this determination, we do not reach the question of whether those statements constitute MetroHealth business records and therefore qualify as an exception to the hearsay evidence rule.
In accordance with the foregoing, we conclude the trial court properly affirmed the decision of the Board of Review because the hearing officer's findings are supported by the manifest weight of the evidence, the hearing officer need not have continued the hearing, and the hearing officer did not err in accepting hearsay evidence. Thus, the second assignment of error is overruled.
The third assignment of error states:
THE COMMON PLEAS COURT ERRED IN AFFIRMING THE DECISION OF THE BOARD OF REVIEW BECAUSE THE REFEREE FAILED TO ASSIST APPELLANT IN PRESENTING FACTS WHICH WOULD ESTABLISH HER RIGHT TO BENEFITS.
Lawson urges the trial court erred in affirming the Board of Review's decision because the hearing officer failed to act in a fair and impartial manner.
The Bureau argues the trial court properly affirmed the Board of Review's decision because the hearing officer discharged her duties in a fair, impartial, and helpful manner and because the law does not require a hearing officer to act as a pro se claimant's advocate.
The issue, then, for our consideration, is whether the trial court erred in affirming the decision of the Board of Review based on the conduct of the hearing officer.
Ohio Administrative Code 4146-7-02 provides that where a claimant is not represented by counsel, "the Board or Referee conducting the proceeding shall advise such party as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the discharge of the official duties of the Board or Referee."
A review of the record in this case reveals that the hearing officer fulfilled her duties in accordance with this administrative rule. At the initial hearing in October, 1994, the hearing officer repeatedly addressed Lawson, advised her of her right to cross-examine MetroHealth's witnesses, and helped her properly frame questions on cross-examination. Additionally, the fact that the hearing officer told Lawson in October that she could present her case in later proceedings after the conclusion of MetroHealth's case did not constitute impartiality. Rather, the hearing officer gave Lawson notice of when she would be given the opportunity to present her case. Such actions do not make the hearing officer responsible for Lawson's failure to appear at the January 3, 1995 hearing. Furthermore, there is nothing in the record to suggest the hearing officer conducted herself in an unfair or impartial manner at either the October, 1994 or January, 1995 hearings. Accordingly, the trial court did not error in affirming the decision of the Board of Review and the third assignment of error is overruled.
It is ordered that appellee(s) recover of appellant(s) costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SWEENEY, P.J., and
DYKE, J., CONCUR