[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.
                                                                      11




     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
