Clarence H. Shields, Plaintiff-Appellant,

vs.

Anderson Concrete Corp. et al., Defendants-Appellees.

No. 93AP-364
COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY
1993 Ohio App. LEXIS 3229
June 22, 1993, Rendered

APPEAL from the Franklin County Court of Common Pleas.

Legal Aid Society of Columbus, and Leslie Varnado, Jr., for appellant.
Vorys, Sater, Seymour & Pease, Robert A. Minor and Allen S. Kinzer, for appellee, Anderson Concrete Corp. Lee Fisher, Attorney General, and Cheryl J. Nester, for appellee, Administrator, Ohio Bureau of Employment Services.

 JUDGES

TYACK, BOWMAN, PETREE
 AUTHOR: TYACK

 OPINION

TYACK, J.

 

Clarence H. Shields was employed as a truck driver for Anderson Concrete Corp. ("Anderson Concrete"). His employment frequently called for him to operate motor vehicles which weighed over sixty thousand pounds.

 

The weekend before his annual employment physical examination, Mr. Shields smoked marijuana. As a result, a urine sample he gave as part of his examination tested positive for cannabinoids. The physician who conducted the examination informed Mr. Shields of the test results and further informed Mr. Shields that Anderson Concrete would be notified of the results. Mr. Shields then asked his employer for help for an alleged drug problem through the employee assistance program. He later would claim that this particular occasion was the only occasion on which he had smoked marijuana.

 

Upon being notified of the test results, Anderson Concrete had to and did suspend Mr. Shields from his driving responsibilities. Pursuant to United States Department of Transportation regulations, a person who tests positive for the presence of a drug of abuse is not medically qualified to drive a commercial vehicle.

 

Anderson Concrete also terminated the employment of Mr. Shields. He then applied for unemployment compensation, arguing that the termination of his employment was a termination without "just cause." He indicated that his recreational use of marijuana did not leave him impaired at any time during which he was expected to drive a vehicle for his employer.

 

Anderson Concrete argued that the termination was with just cause. Mr. Shields, while aware that his physical examination was scheduled for the next week and while aware that he could not drive if the urine test which was part of the examination came back positive, still smoked marijuana. Anderson Concrete asserted that Mr. Shields thereby effectively removed himself from being medically qualified to perform his job-related duties, which made his termination a termination with just cause.

 

The facts involving Mr. Shields and Anderson Concrete do not raise issues under the federal Americans with Disabilities Act ("ADA"). Further, the parties have not argued any potential applicability of the ADA to the issues before us, so we do not consider any potential applicability.

 

The Ohio Bureau of Employment Services denied unemployment compensation to Mr. Shields. That denial of benefits was upheld on appeal to the Unemployment Compensation Board of Review ("board"), and in turn on appeal to the Franklin County Court of Common Pleas.

 

Mr. Shields (hereinafter "appellant") has now appealed to us, assigning a single error for our consideration:

 

"THE FRANKLIN COUNTY COMMON PLEAS COURT ERRED IN UPHOLDING THE DECISION OF THE UNEMPLOYMENT COMPENSATION BOARD OF REVIEW IN THAT THE BOARD'S DECISION WAS UNLAWFUL, UNREASONABLE AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

 

The facts as set forth above are not in dispute. The question to be answered is whether the board acted reasonably and lawfully in finding that Anderson Concrete terminated appellant for just cause.

 

The board was bound by R.C. 4141.29(D)(2)(a), which reads:

 

"(D) Notwithstanding division (A) of this section, no individual may serve a waiting period or 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 * * *."

 

The Supreme Court of Ohio, citing an earlier decision of this court, has noted in Irvine v. Unemployment Comp. Bd. of Review (1985), 19 Ohio St.3d 15, at 17, 482 N.E.2d 587:

 

"The term 'just cause' has not been clearly defined in our case law. We are in agreement with one of our appellate courts that 'there is, of course, not a slide-rule definition of just cause. Essentially, each case must be considered upon its particular merits. Traditionally, just cause, in the statutory sense, is that which, to an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act.' Peyton v. Sun T.V. (1975), 44 Ohio App.2d 10, 12, 335 N.E.2d 751 * * *.

 

"The determination of what constitutes just cause must be analyzed in conjunction with the legislative purpose underlying the Unemployment Compensation Act. Essentially, the Act's purpose is 'to enable unfortunate employees, who become and remain involuntarily unemployed by adverse business and industrial conditions, to subsist on a reasonably decent level and is in keeping with the humanitarian and enlightened concepts of this modern day.' (Emphasis sic.) Leach v. Republic Steel Corp. (1964), 176 Ohio St. 221, 223, 199 N.E.2d 3 * * *; accord Nunamaker v. United States Steel Corp. (1965), 2 Ohio St.2d 55, 57, 206 N.E.2d 206 * * *. Likewise, 'the act was intended to provide financial assistance to an individual who had worked, was able and willing to work, but was temporarily without employment through no fault or agreement of his own.' Salzl v. Gibson Greeting Cards (1980), 61 Ohio St.2d 35, 39, 399 N.E.2d 76 * * *.

 

"* * *

 

"The determination of whether just cause exists necessarily depends upon the unique factual considerations of the particular case. * * *"

 

When an employee voluntarily uses a drug of abuse and as a result places himself or herself in a position such that he or she cannot perform the duties of the employment, we are not prepared to say that the employer lacks just cause to end the employment relationship. Appellant could not be construed as a marijuana addict, in light of his assertion that he had not used marijuana prior to the occasion which led to the positive test. We therefore are not addressing the situation where a person has been diagnosed with the disease of alcoholism or with an addiction which had led to a violation of an employer's policy against use of alcohol or drugs of abuse. Instead, we address a situation where an employee's recreational use of a drug of abuse rendered him medically unqualified to perform his employment duties for a period of time.

 

Because the finding by the board was reasonable and lawful, we overrule the assignment of error. The judgment of the Franklin County Court of Common Pleas is therefore affirmed.

 

Judgment affirmed.

 

BOWMAN and PETREE, JJ., concur.

 DISPOSITION
 

Judgment affirmed.