[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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Case No. 1-09-02


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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        {¶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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Case No. 1-09-02


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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Case No. 1-09-02


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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Case No. 1-09-02


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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