THOMAS S. LINDSEY, Appellant

vs.

ADMINISTRATOR, OHIO  BUREAU OF EMPLOYMENT SERVICES, et al.

No. 16542
COURT OF APPEALS OF OHIO, NINTH APPELLATE DISTRICT, SUMMIT COUNTY
1994 Ohio App. LEXIS 2543
June 8, 1994, Decided

APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT. COUNTY OF SUMMIT, OHIO. CASE NO. 93 5 1848

 COUNSEL

 

RONALD G. MACALA and RANDALL VEHAR, Attorneys at Law, 441 Wolf Ledges Pkwy., Suite 202, P. O. Box 1459, Akron, OH 44309, for Appellant.
THOMAS BURNS, Asst. Attorney General, 16 Cleveland Ave., N.W., Canton, OH 44702, for Appellees. DAVID H. SHAFFER and KEVIN T. LYDEN, Attorneys at Law, 50 S. Main St., Suite 700, Akron, OH 44308, for Appellees.

 JUDGES

 

BAIRD, QUILLIN, DICKINSON
 AUTHOR: BAIRD

 OPINION

 

 

 
DECISION AND JOURNAL ENTRY

 

Dated: June 8, 1994

 

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

 

BAIRD, J. This cause was heard upon the appeal of Thomas Lindsey from the judgment of the Summit County Court of Common Pleas, which affirmed the Ohio Employment Services' decision denying his unemployment compensation benefits. We affirm.

 

Lindsey was terminated from his position at Rondy, Inc., on April 22, 1992. The Ohio Bureau of Employment Services initially allowed his claim for unemployment compensation benefits. However, upon a motion for reconsideration from the employer, the Bureau reversed its decision, found that Lindsey had been discharged for just cause, and denied his claim. Lindsey appealed this reversal to the Unemployment Compensation Board of Review. Following hearings on the matter, the Referee agreed that Lindsey had been discharged for just cause and was disqualified from receiving unemployment compensation benefits, pursuant to R.C. 4141.29(D)(2)(a).

 

Evidence presented at the hearings before the Board of Review showed that from September 1991 to November 1991, Lindsey was out of work due to a work-related injury. Lindsey received worker's compensation benefits for this period of time. From November 22, 1991 until March 16, 1992, Lindsey was incarcerated on a charge of driving while under the influence of an intoxicating substance. He did not receive worker's compensation benefits for the time that he was incarcerated, as his incarceration disqualified him from eligibility.

 

During Lindsey's incarceration, his doctor continued to submit forms to Rondy, stating that he was still incapacitated due to the work-related injury. His doctor, however, did not examine Lindsey during this period of time and based his opinions on Lindsey's wife's reports of Lindsey's condition. A second doctor, Dr. Mann, did examine Lindsey during his incarceration and found that Lindsey was capable of returning to work. Upon Lindsey's release, however, his first doctor examined him and opined that he still could not work. At Lindsey's insistence, and based upon the dire financial circumstances which Lindsey faced at the time, the doctor nevertheless released him to return to work.

 

Upon his return to work, Lindsey's boss specifically asked him whether he was incarcerated during his absence. Lindsey lied and told him that he was not. Lindsey testified that he had been told that he did not have to tell his employer that he was incarcerated, because the incarceration was for a misdemeanor offense. Lindsey also testified, however, that he knew that the company had a policy of terminating employees who were incarcerated for extended periods of time>.

 

Five weeks later, on April 22, 1992, Lindsey was terminated from his employment. Rondy's representatives explained that the reason for the five week delay was that they were waiting for confirmation that Lindsey was incarcerated during his absence from work. Lindsey argued that this could not have been the reason for his termination because Rondy already had notice of his incarceration at the time he returned to work. Lindsey alleged that Rondy's attorney had notified Rondy that Lindsey could not appear at a worker's compensation hearing because he was incarcerated, and Dr. Mann, who had examined him for purposes of a worker's compensation evaluation, had to obtain Lindsey's temporary release from jail to perform the examination.

 

Lindsey appealed the Board of Review's decision to the Summit County Court of Common Pleas, pursuant to R.C. 4141.28(O). On October 19, 1993, the Court of Common Pleas entered a judgment order affirming the decision of the Board of Review.

 

It is from this order that Lindsey now appeals, asserting six assignments of error. The assignments of error have been reorganized for ease of discussion.

 

ASSIGNMENTS OF ERROR

 

"II. THE TRIAL COURT ERRED IN FAILING TO FIND THAT THE BOARD OF REVIEWS DECISION DENYING UNEMPLOYMENT COMPENSATION BENEFITS WAS UNREASONABLE, UNLAWFUL, AN ABUSE OF DISCRETION, AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

 

"IV. THE TRIAL COURT ERRED BY FAILING TO FIND THAT THE BOARD ERRED BY FAILING TO CONSISTENTLY APPLY ITS OWN LEGAL PRECEDENT.

 

"V. THE BOARD ERRED IN DENYING BENEFITS TO LINDSEY AND ITS DECISION IN DOING SO WAS UNREASONABLE, ARBITRARY AND CAPRICIOUS, AN ABUSE OF DISCRETION, AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AND CONTRARY TO LAW."

 

Assignments of error two, four, and five all require this court to review and weigh the evidence and, therefore, they will be discussed together.

 

Appellant argues, essentially, that the employer's initial reason for his termination, "worker comp fraud," was not supported by the evidence presented. Appellant claims that his employer subsequently added the fact that he lied about his incarceration as a reason for his discharge when it became apparent that no "worker comp fraud" actually occurred. Appellant claims that he was both incapacitated and incarcerated during his absence from work and that he was never told that he had to report his incarceration to his employer under such circumstances.

 

In reviewing the Court of Common Pleas' determination that the Board of Review's decision was not against the manifest weight of the evidence, this court will only reverse if it can be shown that the decision was an abuse of that court's discretion. Bottoms Up, Inc. v. Liquor Control Comm. (1991), 72 Ohio App.3d 726, 728, 596 N.E.2d 475.

 

It is apparent that Appellant has interpreted the statement "worker comp fraud" literally, as meaning that Appellant lied about his injuries in order to obtain worker's compensation benefits when he was not, in fact, injured. Using this literal interpretation, it is evident that Appellant did not engage in "worker comp fraud," as he never received worker's compensation benefits for the period when he was incarcerated and because there is evidence that he may not have been able to return to work due to his injuries.

 

However, we do not find that the use of the term "worker comp fraud" by the employer was meant to be applied literally. Rondy had continually received doctor's statements which reported that Appellant was still incapacitated by a work-related injury. These forms are routinely submitted to explain an employee's absence from work and are related to the employee's claims for worker's compensation benefits. There is no explanation as to why Appellant would continue to have his doctor submit these forms, except that he needed to do so to support a worker's compensation claim or to provide an excuse for his absence. The use of the term "worker comp fraud," while technically incorrect, can be interpreted to include this whole scenario, including the submission of doctor's reports to substantiate his injury.

 

The evidence submitted shows that Appellant's supervisors were not notified of his incarceration until shortly before he returned to work, and this fact was not confirmed until five weeks later. Appellant testified that he knew that it was the company's policy not to hold jobs open for employees who were incarcerated for extended periods of time. Furthermore, when he was directly asked whether he had been incarcerated, he lied and told his supervisors that he had not been in jail. All of this evidence supports a finding that Appellant had engaged in a scheme of deception to keep the fact of his incarceration from his employer and provides just cause for his termination, whether or not Appellant was also incapacitated due to injury during the time of his incarceration.

 

The trial court did not abuse its discretion in affirming the decision of the Board of Review. Therefore, the second, fourth, and fifth assignments of error are overruled.

 

ASSIGNMENT OF ERROR I

 

"THE TRIAL COURT ERRED IN FAILING TO FIND THAT THE BOARD OF REVIEW ERRED IN AFFIRMING THE DECISION OF THE ADMINISTRATOR, AND FURTHER ERRED IN FAILING TO FIND THAT THE BOARD OF REVIEWS DECISION WAS UNREASONABLE, UNLAWFUL, CONTRARY TO THE EVIDENCE, AND AN ABUSE OF ITS DISCRETION WHEN THE BOARD FAILED TO APPLY THE APPROPRIATE LAW TO THE UNDISPUTED FACTS REGARDING THE COMPANY'S FAILURE TO FOLLOW ITS PROGRESSIVE DISCIPLINARY POLICY."

 

Appellant argues that Rondy was required to follow its internal progressive disciplinary policy before terminating Appellant. According to Appellant, that policy required that, before he could be discharged without just cause, Rondy had to first verbally warn him of his misconduct and then warn him in writing if the conduct continued. In this case, the evidence showed that Appellant was never warned of any misconduct.

 

Appellant relies upon four cases1 for the proposition that the failure to follow a progressive disciplinary procedure, which results in an employee's discharge, is a discharge without just cause and entitles that employee to receive unemployment compensation benefits. All of these cases, however, dealt with relatively minor infractions of company rules and a pattern of behavior which could be changed, such as returning late from lunch, arriving late to work, or poor workmanship. The violation in this case, creation of a scheme of deception so as to prevent the employer from learning that the employee was incarcerated, can be classified as egregious conduct similar to a theft from the employer. A one time occurrence of such a violation can justify termination with just cause, even if a company's progressive disciplinary procedure is not followed.

 

The first assignment of error is overruled.

 

ASSIGNMENT OF ERROR III

 

"THE TRIAL COURT ERRED IN FAILING TO FIND THAT THE BOARD OF REVIEW ERRED BY FAILING TO ISSUE A SUBPOENA BY WHICH LINDSEY WAS ATTEMPTING TO ESTABLISH RACIAL DISCRIMINATION IN HIS TERMINATION AND BY FAILING TO PERMIT HIM TO ESTABLISH SUCH DISCRIMINATION."

 

Appellant argues that the Board of Review refused to issue a requested subpoena and to permit him to develop evidence on the issue of racial discrimination. Appellant proffered evidence that Rondy had permitted an African-American employee to return to work after that employee was incarcerated, but did not permit Appellant, a Caucasian, to also return to work.

 

We agree with the trial court's finding that the proffered evidence was irrelevant and that, if the exclusion of the evidence was error, the error was harmless. The grounds for Appellant's termination related only to his deception about his incarceration and not to the incarceration itself. The exclusion of such irrelevant evidence did not deny Appellant the opportunity for a fair hearing and was not an abuse of the Referee's discretion. See Nordonia Hills Bd. of Edn. v. Unemployment Comp. Bd. of Rev. (1983), 11 Ohio App.3d 189, 190, 463 N.E.2d 1276 (where the exclusion of arguably relevant evidence was not an abuse of discretion).

 

The third assignment of error is overruled.

 

ASSIGNMENT OF ERROR VI

 

"THE TRIAL COURT ERRED BY FAILING TO REQUIRE THE BOARD TO SUBMIT A COMPLETE ADMINISTRATIVE RECORD TO THE COURT."

 

Appellant alleges that certain exhibits were not before the trial court when it made its determination. However, he does not indicate what exhibits were missing or how their absence was prejudicial to his case. Furthermore, it was Appellant's responsibility to ensure that the record before the trial court was complete, and, as he did not bring the alleged omissions to the trial court's attention, he cannot now complain that the record was somehow incomplete.

 

The sixth assignment of error is overruled, and the judgment of the trial court is affirmed.

 

The Court finds that there were reasonable grounds for this appeal.

 

We order that a special mandate issue out of this court, directing the County of Summit Common Pleas Court to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

 

Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E).

 

Costs taxed to appellant.

 

Exceptions.

 

WILLIAM R. BAIRD

 

FOR THE COURT

 

QUILLIN, P. J.

 

DICKINSON, J.

 

CONCUR

 DISPOSITION
 

Affirmed.
 

OPINION FOOTNOTES

 

 

 
1 Pickett v. Unemp. Comp. Bd. of Review (1989), 55 Ohio App.3d 68; Eagle-Pitcher Industries, Inc. v. Ohio Bur. of Emp. Serv. (1989), 65 Ohio App.3d 548, 584 N.E.2d 1245, Harp v. Admin., Ohio Bur. of Unemployment Comp. (1967), 12 Ohio Misc. 34, 230 N.E.2d 376; Spear (Dec. 31, 1992), Unemployment Compensation Board of Review Case No. R92-14259-0000, unreported.