[Cite as Reid v. MetroHealth Sys., Inc., 2017-Ohio-1154.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104015




                                        ROBERT REID
                                                            PLAINTIFF-APPELLANT

                                                      vs.

              METROHEALTH SYSTEMS, INC., ET AL.
                                                            DEFENDANTS-APPELLEES




                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-15-843359

        BEFORE: Keough, A.J., McCormack, J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: March 30, 2017
ATTORNEY FOR APPELLANT

Orlando E. Smith
3922 East 149th Street
Cleveland, Ohio 44128


ATTORNEYS FOR APPELLEES

For MetroHealth Sytems, Inc.

Marlene L. Franklin
Emily C. Fiftal
MetroHealth Medical Center
2500 MetroHealth Drive
Cleveland, Ohio 44109

For Director, Ohio Department of Job and Family Services

Mike DeWine
Attorney General
By: Patrick MacQueeney
Assistant Attorney General
Ohio Attorney General’s Office
615 West Superior Avenue, 11th Floor
Cleveland, Ohio 44113-1899
KATHLEEN ANN KEOUGH, A.J.:

      {¶1} Appellant, Robert Reid (“Reid”), appeals from the judgment of the common

pleas court affirming the decision of the Unemployment Compensation Review

Commission (the “Commission”) that he was terminated from his employment at

MetroHealth System (“MetroHealth”) for just cause and therefore not entitled to

unemployment benefits. We affirm.

                    I. Facts and Procedural History

      {¶2} Reid filed a claim for unemployment benefits with the Ohio Department of

Job and Family Services (the “ODJFS”). The ODJFS allowed the claim without a

hearing.   MetroHealth appealed the determination and on redetermination, ODJFS

affirmed its decision, again without a hearing.            MetroHealth appealed the

redetermination, and ODJFS transferred jurisdiction of the appeal to the Commission for

an evidentiary hearing pursuant to R.C. 4141.281. The hearing took place on September

15, 2014, and October 28, 2014.

      {¶3} Prior to the September hearing, Reid requested that the hearing officer issue

subpoenas to MetroHealth requesting documentary evidence and the appearance at the

hearing of various MetroHealth employees. Reid’s request totaled seven single-spaced

pages. The hearing officer did not issue all of Reid’s requested subpoenas, but on

September 10, 2014, he issued a broad subpoena ordering MetroHealth to produce “all

documents that relate or pertain to claimant and/or that contain information about

claimant including job performance, corrective action and/or discipline and claimant’s
record of employment with MetroHealth.”            In response, on October 21, 2014,

MetroHealth produced 170 pages of documents to Reid and the Commission.                The

documents included Reid’s personnel file, a corrective action report issued to Reid, notes

of weekly meetings Reid had with his supervisor after he received a written warning, and

the final disciplinary report discharging Reid.

          {¶4} Reid testified at the hearing, as did his supervisor, Simpson Huggins

(“Huggins”), and Alexander Tedosio, MetroHealth’s Labor Relations Director.

          {¶5} Tedosio testified that Reid was employed by MetroHealth as a senior

internal auditor from November 11, 2013, until he was discharged on June 16, 2014, for

inadequate job performance and conduct issues that violated MetroHealth’s disciplinary

policy contained in the employee handbook. Tedosio said that Reid was made aware of

the policy at his orientation and again when he was given a written warning on April 8,

2014, and put on a performance improvement plan.

          {¶6} Tedosio testified that Reid received a 45-day evaluation of his performance

in December 2013, and the review indicated that he was performing satisfactorily.     Reid

also received a 90-day evaluation in February 2014.     This evaluation indicated that Reid

was performing satisfactorily but needed to improve his efficiency in completing assigned

audits.

          {¶7} Tedosio said that Huggins met with him before April 8, 2014, and reviewed

numerous complaints he had received about Reid from various MetroHealth employees.

Huggins then asked what the appropriate action would be regarding someone in Reid’s
position. Tedosio recommended a written corrective action report; in short, a written

warning.

      {¶8} On April 8, 2014, Huggins met with Reid and gave him the written

corrective action report. The report stated that Reid had engaged in disorderly conduct,

such as verbal altercations with other employees, and willful conduct that interfered with

the effective operations of MetroHealth; that he had failed to meet the standards of the

job; and that he had failed to follow his supervisor’s instructions and complete his job

assignments, all in violation of specific sections of the employee handbook. Huggins

summarized Reid’s policy violations as follows:

      On numerous accounts during the past four months, I have commented
      verbally to Robert on how he should communicate with MHS personnel
      regarding audit matters. These communications were based on auditees
      commenting directly to me about his demeanor, approach, and lack of
      respect. As a result, attached is a summary of occurrences that outline the
      policy violations noted above.

      {¶9} The four-page summary identified various incidents where MetroHealth

employees had complained to Huggins about Reid’s statements to them or treatment of

them while he was conducting audits in their departments. The summary also found that

Reid had submitted audit reports that were not of the quality and standards expected of a

senior internal auditor. The summary noted further that when he was hired, Reid told

Huggins that he had IT auditing skills, but when he was assigned to develop an IT audit

program, he submitted a program based upon a previous employer’s program rather than a

program tailored to MetroHealth.
       {¶10} The corrective action report instructed Reid to immediately improve his

behavior by showing respect to other MetroHealth employees, and improve his

performance and time management skills by timely completing his audit assignments.

The report stated that Reid had six weeks in which to improve his verbal and written

communication skills, interpersonal skills, focus, and critical thinking.       The report

indicated that during those six weeks, Reid would have weekly one-on-one meetings with

Huggins to discuss his performance and the progress of his assigned projects.

       {¶11} On April 8, 2014, Reid provided a written response to the warning to

MetroHealth’s Human Resources Department. In his response, Reid addressed each

incident identified in Huggins’s summary.            He specifically stated “I accept

responsibility” with regard to each incident and identified the future corrective actions he

would take, including not interrupting inventory processes, seeking an effective

communications course, not becoming argumentative with other employees, not

expanding an audit scope without conferring with his supervisor, and writing in a clear

and concise manner.

       {¶12} Huggins testified that prior to April 8, 2014, he had met with Reid each time

there was a complaint or a question about his auditing skills. He testified that he rated

Reid “satisfactory” at his 45-day review because his audit work was just beginning, and

although he still rated him “satisfactory” at the 90-day review, he made comments about

what Reid needed to improve.
      {¶13} He testified further that he met weekly with Reid after April 8, 2014, and

that even though he gave Reid more counseling than he gave any other employee, Reid

simply could not do the work of a senior internal auditor. Huggins testified that he even

took some projects away from Reid to allow him to improve his work on his other

projects, but Reid’s work did not improve.

      {¶14} Huggins testified that when he was hired, Reid said he was an IT auditor, so

in March 2014, Huggins assigned Reid IT audit work under the close supervision of the

IT auditor. Huggins testified that Reid could not even perform the basic functions of the

audit, however. Huggins testified that one day he asked Reid whether he had the skills to

be an IT auditor. The next day, Reid told Huggins that “it was better to be humble and

admit your faults,” and that although he had wanted to try IT auditing, he did not have the

skills to perform IT audits. Huggins testified that because Reid could not perform the IT

and internal audits he had been hired to conduct, Huggins had to use third-party

consultants to perform audits, at an additional expense to MetroHealth.

       {¶15} Huggins testified that he gave Reid an assignment to develop an audit

program within the revenue cycle department. He said that although normally it takes a

day or two to develop the program, Reid took two weeks and, although he eventually

gave Huggins an audit program, Huggins could not use it, and the program later had to be

redone by a third party. According to Huggins, Reid was never able to successfully

complete a multi-faceted audit as he had been hired to do.
       {¶16} Huggins testified that although the corrective action plan initially called for

six weeks of one-on-one meetings, he still met with Reid weekly after the six weeks were

over because he wanted Reid to succeed. Huggins testified, however, that during the two

months he met with Reid, Reid’s weekly status reports never changed; he submitted the

same plans with the same “progress notes which were showing that there was nothing

new that he was working on.”        Huggins testified that he made notes regarding his

discussions with Reid during the weekly meetings; the notes were provided by

MetroHealth in response to the subpoena.

       {¶17} On June 16, 2014, MetroHealth terminated Reid’s employment.                The

discharge notice stated that during the two months since the written corrective action

report, Reid had demonstrated that he lacked the technical skills and independent critical

thinking needed to perform the duties of a senior internal auditor, and that his

performance of even basic tasks was extremely deficient. The discharge notice also

stated that Reid had been advised when he was hired that IT audits would comprise at

least 50 percent of his work, but he lacked the skills to perform IT audits, a deficiency

that Reid had admitted.

       {¶18} Reid testified, however, that he did not recall whether IT audits had been

discussed when he was hired, and that he could perform IT audits even though

MetroHealth never gave him an opportunity to do an IT audit. Reid admitted that he

drew up a general IT plan but denied that he used a plan from a prior employer. He also

denied telling Huggins that he could not do IT audits.
          {¶19} Reid testified that the first time he learned there were issues with his

performance was on April 8, 2014, when he received the written corrective action report.

He denied that Huggins had ever spoken with him prior to that day about any of the issues

identified in the corrective action report. Reid admitted that he sent Huggins a written

response to the corrective action report in which he accepted responsibility for his actions,

but said he accepted responsibility “for something that didn’t happen” because he wanted

to keep his job. Reid said he did not admit in his written response that any of the

incidents “actually happened.”

          {¶20} Reid agreed that he started meeting weekly with Huggins after the April 8,

2014 corrective action report, but testified that he “was totally blindsided” on June 16,

2014, when he was discharged, because he “had no indication” he had any performance

issues.     Reid denied that Huggins ever took any assignments away from him or

commented on the timeliness of the completion of his assignments. He testified further

that he completed all of his assignments except for the ones that were still pending when

he was discharged.

          {¶21} The hearing officer subsequently issued a written decision finding that Reid

had been discharged for just cause in connection with work, and therefore disallowing his

claim for unemployment compensation. Reid appealed the Commission’s decision to the

court of common pleas pursuant to R.C. 4141.282.             The trial court affirmed the

Commission’s decision, finding that it was not unlawful, unreasonable, or against the

manifest weight of the evidence. This appeal followed.
                                       II.     Law and Analysis

A.     Standard of Review

       {¶22} R.C. 4141.282 governs the standard of review for decisions by the

Commission.       Under R.C. 4141.282(H), the common pleas court shall reverse the

Commission’s decision only if it finds “that the decision of the commission was unlawful,

unreasonable, or against the manifest weight of the evidence.” Appellate courts are to

apply the same standard of review as the trial court. Tzangas, Plakas & Mannos v. Ohio

Bur. of Emp. Servs., 73 Ohio St.3d 694, 697, 653 N.E.2d 1207 (1995). 1 Although

appellate courts are not permitted to make factual findings or to determine the credibility

of witnesses (that is the Commission’s function), they must determine whether the

Commission’s decision is supported by the evidence in the record. Id. at 696, citing

Irvine v. Unemp. Comp. Bd. of Review, 19 Ohio St.3d 15, 17-18, 482 N.E.2d 587 (1985).

B.     Failure to Issue Subpoenas

       {¶23} Under R.C. 4141.281(C)(1), regarding administrative appeals, “[t]he

commission shall provide an opportunity for a fair hearing to the interested parties of

appeals over which the commission has jurisdiction.” Under R.C. 4141.281(C)(2), “[t]he




         Unlike our review of other administrative appeals, where our review is limited to whether the
       1


trial court abused its discretion, there is no distinction between the scope of review of common pleas
and appellate courts regarding just cause determinations under the unemployment compensation law.
Sinclair v. Ohio Dept. of Job & Family Servs., 8th Dist. Cuyahoga No. 101747, 2015-Ohio-1645, ¶
6, citing Durgan v. Ohio Bur. of Emp. Servs., 110 Ohio App.3d 545, 551, 674 N.E.2d 1208 (9th
Dist.1996).
principles of due process in administrative hearings shall be applied to all hearings

conducted under the authority of the commission.”

       {¶24} Reid raises five assignments of error on appeal. In four of them, he takes

issue with the hearing officer’s failure to issue his requested subpoenas. In his first

assignment of error, Reid contends that the trial court erred in affirming the Commission

because in light of the hearing officer’s failure to issue the requested subpoenas, the

hearing before the Commission was not a “fair hearing” as required by R.C. 4141.281(1)

and (2). In his second assignment of error, Reid contends that the trial court erred in

affirming the Commission’s decision because since the hearing officer did not issue the

requested subpoenas, the hearing before the Commission violated his procedural due

process rights under the Ohio and United States Constitutions. In his fourth assignment

of error, Reid contends that because the hearing before the Commission violated his due

process rights, the hearing was a “legal nullity,” which the trial court erred in affirming.

Finally, in his fifth assignment of error, Reid contends that the trial court erred in

affirming the Commission because, due to the hearing officer’s failure to issue the

requested subpoenas, the Commission did not conduct a “fair hearing” and therefore, it

lacked subject matter to determine his entitlement to unemployment compensation. We

address these assignments of error together because they are related.

       {¶25} First, we note that Reid’s insistence that the hearing officer failed to issue

“any” of his requested subpoenas is not an accurate statement of what happened in this

case. The certified record demonstrates that although the hearing officer did not issue all
of Reid’s subpoenas, on September 10, 2014, the hearing officer issued a subpoena, at

Reid’s request, ordering MetroHealth to provide “[a]ll documents that relate or pertain to

claimant and/or that contain information about claimant including job performance,

corrective action and/or discipline and claimant’s record of employment with

MetroHealth.” At the hearing before the common pleas court on Reid’s appeal from the

Commission’s decision, counsel for Reid acknowledged that this subpoena was indeed a

“version” of one of his requested subpoenas.

        {¶26} In response to the hearing officer’s subpoena, on October 21, 2014, prior to

the second hearing, MetroHealth produced 170 pages of documents. The record reflects

that Reid’s counsel referred to these documents at the October 28, 2014, hearing and, in

fact, questioned Huggins about their contents. Thus, Reid’s assertion that the hearing

officer denied his request for “any” of the evidence he wanted subpoenaed is simply not

true.

        {¶27} In order to successfully appeal a judgment on procedural due process

grounds, Reid must show that he was prejudiced by the allegedly inadequate process,

unless the procedure employed involves such a probability that prejudice will result that it

is deemed inherently lacking in due process. Bulatko v. Dir., Ohio Dept. of Job &

Family Servs., 7th Dist. Mahoning No. 07 MA 124, 2008-Ohio-1061, ¶ 9, citing Estes v.

Texas, 381 U.S. 532, 541-543, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). In this case, Reid

cannot demonstrate that the procedure was inadequate or that he was prejudiced by any

alleged deficiency.
      {¶28} Hearing officers are not bound by common law or statutory rules of

evidence or by formal rules of procedure. R.C. 4141.281(C)(2). The hearing officer has

broad discretion in accepting and rejecting evidence and in conducting the hearing in

general. Bulatko at ¶ 11; Hord v. Dir., Ohio Dept. of Job & Family Servs., 7th Dist.

Jefferson No. 05 JE 48, 2006-Ohio-4382, ¶ 25. Importantly, hearing officers have the

exclusive authority to exclude irrelevant or cumulative evidence, and have broad

discretion with respect to the admission of evidence and the number of witnesses that may

be needed to testify at the Commission’s hearings under R.C. 4141.281. Metzenbaum v.

Unemp. Comp. Bd. of Rev., 8th Dist. Cuyahoga No. 72233, 1997 Ohio App. LEXIS 4012,

*7, citing Nordonia Hills Bd. of Edn. v. Unempl. Comp. Bd. of Rev., 11 Ohio App.3d 189,

463 N.E.2d 1276 (9th Dist.1983).       In this case, the hearing officer exercised his

discretion to issue a broad subpoena relevant to the issue to be determined at the hearing

(whether Reid was discharged for just cause from his employment and therefore ineligible

for unemployment benefits) and to deny the issuance of subpoenas for the cumulative and

irrelevant evidence requested by Reid in his seven-page, single-spaced request.

      {¶29} The key factor in deciding whether the hearing satisfied procedural due

process is whether the claimant had the opportunity to present the facts that demonstrate

he was entitled to unemployment benefits. Atkins v. Dir., Ohio Dept. of Job & Family

Servs., 10th Dist. Franklin No. 08AP-182, 2008-Ohio-4109, ¶ 17; Bulatko at ¶ 12. Here,

the record reflects that the hearing officer issued a broad subpoena relevant to

determining whether Reid was discharged for just cause from his employment. The
record also reflects that Reid had access to and utilized the 170 pages of documents

produced by MetroHealth in response to the hearing officer’s subpoena. The record

further reflects that Reid, represented by counsel, had the opportunity to testify at the

hearing and to cross-examine the witnesses produced by MetroHealth. Accordingly,

there was no denial of Reid’s procedural rights, and no evidence that he was prejudiced

by any alleged deficiencies in the process.

       {¶30} The gist of Reid’s arguments on appeal is that the subpoenaed evidence was

necessary to demonstrate that he was wrongfully discharged under pretext and in

retaliation for his discovery of alleged fraud on the MEDTAPP audit.    He also contends

the subpoenaed evidence was necessary to demonstrate that other employees committed

similar infractions but did not face similar discipline. But unemployment compensation

proceedings determining whether an employee was terminated for just cause under R.C.

4141.29(D) are not the appropriate forum for resolving such wrongful discharge claims.

See Youghiogheny & Ohio Coal Co. v. Oszust, 23 Ohio St.3d 39, 491 N.E.2d 298 (1986);

Wilson v. Matlack, 141 Ohio App.3d 95, 750 N.E.2d 170 (4th Dist.2000).            This is

because “[j]ust cause under the Unemployment Compensation Act is not the same as just

cause under other contexts; it is predicated upon employee fault.” Hord at ¶ 26. Thus,

the motivation for the decision to discharge is irrelevant. Id., citing Durgan, 110 Ohio

App.3d at 549, 674 N.E.2d 1208.

       {¶31} Reid’s subpoena requests for evidence to show that MetroHealth had a

motive to falsely allege that his work was incompetent to conceal financial improprieties,
and for evidence to impugn the credibility of the coworkers who complained about him,

are nothing more than an improper attempt to convert his unemployment compensation

claim to a wrongful discharge claim. As the hearing officer told Reid’s counsel,

       I’m not looking at motives. I’m looking at whether he did what they said
       and if he did do it, would that deny him his benefits. I’m not looking at
       motives * * *, and we are not the forum for that. If you want to go for
       wrongful discharge, you have to go to another forum. File a civil rights
       complaint; you have to go to another forum.

       {¶32} Furthermore, Reid’s claim that other employees committed similar

infractions but did not face similar discipline is not relevant to whether he was discharged

for just cause under R.C. 4141.29(D). “An employee cannot be excused for his bad

conduct for the purposes of unemployment compensation simply because other employees

engage[d] in the same conduct.”            Hord, 7th Dist. Jefferson No. 05 JE 48,

2006-Ohio-4382, at ¶ 27.

       {¶33} The record demonstrates that Reid was given a fair hearing, and that the

hearing officer properly exercised his broad discretion under R.C. 4141.281 regarding the

requested subpoenas. Accordingly, there was no denial of Reid’s due process rights.

The first, second, fourth, and fifth assignments of error are therefore overruled.

C.     Manifest Weight of the Evidence

       {¶34} In his third assignment of error, Reid contends that the trial court erred in

affirming the Commission’s decision because the hearing officer’s findings of fact were

against the manifest weight of the evidence.
       {¶35} To be eligible for unemployment compensation benefits in Ohio, claimants

must satisfy the criteria in R.C. 4141.29(D)(2)(a), which provides that no individual may

be paid benefits if the individual has been discharged for just cause in connection with the

individual’s work.      The claimant has the burden of proving his entitlement to

unemployment compensation benefits under R.C. 4141.29(D)(2)(a).                Heller v. Ohio

Dept. of Job & Family Servs., 8th Dist. Cuyahoga No. 92965, 2010-Ohio-517, ¶ 35, citing

Irvine, 19 Ohio St.3d at 17, 482 N.E.2d 587.

       {¶36} Just cause, in the statutory sense, has been defined as “that which, to an

ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act.”

 Irvine at 17. In order to have just cause for discharge, there must be some fault on the

part of the employee. Heller at ¶ 36. Such fault does not require misconduct, but fault

must be a factor in the justification for the discharge. Id. Whether just cause exists is

unique to the facts of each case. Irvine at 18. The Commission’s decision will be

affirmed if some competent, credible evidence supports the claim that the employee was

terminated through his own fault. Heller at ¶ 37.

       {¶37} Reid argues that the Commission’s decision was not supported by the

manifest weight of the evidence because the hearing officer gave too much weight to

Huggins’s testimony that Reid was not able to perform the work of a senior internal

auditor. Reid contends that Huggins’s testimony at the hearing about his deficiencies

was contradicted by his written 45- and 90-day evaluations, in which Huggins noted that

Reid’s performance was satisfactory. Reid contends that Huggins was therefore a “liar”
— either in his evaluations or in his testimony at the hearing — and therefore, his own

testimony was more credible. Accordingly, Reid contends that the hearing officer’s

decision was against the manifest weight of the evidence because, in finding for

MetroHealth, the hearing officer must have necessarily determined that Huggins was

more credible than he.

      {¶38} We agree that in determining whether MetroHealth terminated Reid for just

cause, the hearing officer apparently found Huggins and Tedosio more credible than Reid.

Nevertheless, it is not our duty nor our role to make credibility determinations when

reviewing a decision from the Commission. In making a just cause determination, “the

duty of the fact-finder is to weigh and consider the reliability of the evidence and the

credibility of the witnesses.” Fisher v. Bill Lake Buick, 8th Dist. Cuyahoga No. 86338,

2006-Ohio-457, ¶ 20. In our limited role as a reviewing court, this court may not “make

factual findings or determine the credibility of witnesses.” Hansman v. Dir., Ohio Dept.

of Job & Family Servs., 12th Dist. Butler No. CA2003-09-224, 2004-Ohio-505, ¶ 5, citing

Tzangas, 73 Ohio St.3d at 696, 653 N.E.2d 1207.            “As a result, we may not

‘second-guess credibility determinations when reviewing a decision from the

Unemployment Compensation Review Commission.’” Hartless v. Dir., Ohio Dept. of

Job & Family Servs., 4th Dist. Pickaway No. 10CA27, 2011-Ohio-1374, ¶ 18, quoting

Brown v. Sysco Food Servs. of Cincinnati, L.L.C., 4th Dist. Scioto Nos. 90CA3275 and

09CA3276, 2009-Ohio-5536, ¶ 22. “Instead, we must uphold the Commission’s decision
so long as it is not unlawful or unreasonable and some competent, credible evidence

supports it.” Brown at ¶ 22.

      {¶39} The Commission’s decision that Reid was terminated for just cause is

supported by competent, credible evidence in the record. The evidence demonstrated

that Reid understood the duties he was to perform in his position and the expectations of

his employer. Even in his first 90 days of employment, however, there were issues with

his performance and conduct toward other MetroHealth employees. These issues were

discussed with Reid, and he was aware of them. When his performance did not improve,

he was placed on a performance improvement plan. Although he met weekly with his

supervisor, who tried to counsel him, his performance still did not improve. He was then

discharged because he was not meeting the obligations and requirements of the position.

In short, he was discharged for just cause. The third assignment of error is therefore

overruled.

      {¶40} Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said 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.
KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

TIM McCORMACK, J., CONCURS;
ANITA LASTER MAYS, J., DISSENTS WITH SEPARATE OPINION


ANITA LASTER MAYS, J., DISSENTING:

       {¶41} I respectfully dissent. I would find a violation of appellant Robert Reid’s

(“Reid”) due process rights and reverse the findings of the Commission and remand the

matter for another hearing.

       {¶42} The majority concludes that MetroHealths’ production of 170 pages of

documents was adequate and did not violate Reid’s due process. The record supports

that Reid requested information to support his claim. The record demonstrates that the

hearing officer did not issue all of Reid’s subpoenas but ordered MHS to “provide”[a]ll

documents that relate or pertain to claimant and/or that contain information about

claimant including job performance, corrective action and/or discipline and claimant’s

record of employment with MHS.”

       {¶43} I would conclude that the hearing officer’s determination to deny Reid’s

request for all of the evidence subpoenaed for his defense, and rely on the evidence

selectively provided by MetroHealth, resulted in the denial of a fair hearing.

       {¶44} The parties do not dispute that, pursuant to R.C. 4141.281(C)(1)(2) and

Ohio Adm.Code 4146-7-02, the hearing officer has broad discretion over the conduct of

the Commission administrative hearing. The parties are entitled to subpoena documents

and witnesses.    Ohio Adm.Code       4146-15-01.     However, Ohio has also statutorily
prescribed that hearings must be fair and the principles of due process must be followed.

R.C. 4141.281(C)(2).     “Our focus when reviewing an unemployment compensation

appeal is upon the commission’s, rather than the trial court’s, decision.” Sinclair v. Ohio

Dept. of Job & Family Servs., 8th Dist. Cuyahoga No. 101747, 2015-Ohio-1645, ¶ 6,

citing Ricks v. Dir., Ohio Dept. of Job & Family Serv., 8th Dist. Cuyahoga No. 99451,

2013-Ohio-3253, ¶ 11.

      {¶45} The court stated in Hertelendy v. Great Lakes Architectural Serv. Sys., Inc,

2012-Ohio-4157, 976 N.E.2d 950 (8th Dist.). The following:

       The principles of due process in administrative hearings apply to all
       hearings conducted under the authority of the commission.
       R.C. 4141.281(C)(2). The key factor in deciding whether a hearing
       satisfies procedural due process is whether the claimant had the opportunity
       to present the facts that demonstrate he was entitled to unemployment
       benefits. Howard [v. Elec. Classroom of Tomorrow, 10th Dist. Franklin
       No. 11AP-159, 2011-Ohio-6059,] ¶ 15, citing Atkins v. Ohio Dept. of Job &
       Family Servs., 10th Dist. Franklin No. 08AP-182, 2008-Ohio-4109, ¶ 17.
       This is because “‘[t]he object of the hearing is to ascertain the facts that
       may or may not entitle the claimant to unemployment benefits.’” Id.,
       quoting Bulatko v. Ohio Dept. of Job & Family Servs., 7th Dist. Mahoning
       No. 07 MA 124, 2008-Ohio-1061, ¶ 11.

       While R.C. 4141.281(C)(2) requires that commission hearings satisfy due
       process principles, it also provides that “[i]n conducting hearings, all
       hearing officers shall control the conduct of the hearing, exclude irrelevant
       and 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.” Thus, “‘[t]he hearing officer has broad discretion in accepting
       and rejecting evidence and in conducting the hearing in general.’”
       Howard at ¶ 16, quoting Bulatko at ¶ 11. “The hearing officer’s discretion
       is tempered only to the extent that he must afford each party an opportunity
       to present evidence that provides insight into the very subject of the
       dispute.” Howard at ¶ 16, citing Owens v. Admr. Ohio Bur. of Emp.
       Servs., 135 Ohio App.3d 217, 220, 733 N.E.2d 628 (1st Dist.1999).
Hertelendy at ¶ 18-19.

       {¶46} I would find that the denial of all of Reid’s subpoenaed documents denied

Reid the opportunity to fully present the facts that demonstrated he was entitled to

unemployment benefits and to provide insight into the very subject of the dispute. The

hearing officer’s discretion is tempered only to the extent that he must afford each party

an opportunity to present evidence that provides insight into the very subject of the

dispute. However, a hearing officer’s failure to allow a party to present witnesses or

otherwise develop their case is grounds for reversing the decision of the review

commission. Bulatko v. Dir., Ohio Dept. of Job & Family Servs., 7th Dist. Mahoning

No. 07 MA 124, 2008-Ohio-1061, ¶ 11, citing Owens v. Admr., Ohio Bur. of Emp. Servs.,

135 Ohio App.3d 217, 733 N.E.2d 628 (1999).

       {¶47}     “The key factor in deciding whether a hearing satisfies procedural due

process is whether the claimant had the opportunity to present the facts that demonstrate

he was entitled to unemployment benefits.” Hertelendy at ¶ 18. I would find that the

Commission’s denial of Reid’s subpoenas in their entirety constituted a violation of

Reid’s due process rights in violation of R.C. 4141.281(C)(2) and Ohio Adm.Code

4146-7-02.     I would conclude that the hearing officer abused its discretion by denying

Reid the opportunity to fully secure evidence and fully present testimony that would

“ascertain the facts that may or may not entitled him” to unemployment compensation

benefits.    Hertelendy at ¶ 27.
