HARRIS,
APPELLEE,
vs.
ADMINISTRATOR, OHIO BUREAU OF EMPLOYMENT SERVICES, ET
AL.,
APPELLANTS. ARNOTO, APPELLEE, v. ADMINISTRATOR,
OHIO
BUREAU OF EMPLOYMENT SERVICES, ET AL.,
APPELLANTS
Nos. 88-2030, 88-2031
SUPREME COURT OF OHIO
51 Ohio St.3d 37, 553 N.E.2d 1350, 1990 Ohio LEXIS
207
May 9, 1990, Decided
APPEAL from the Court of Appeals for Trumbull County, No. 3899.
APPEAL from the Court of Appeals for Mahoning County, No. 87 C.A.
80.
HEADNOTE
Unemployment compensation -- Employee discharged for just cause is
disqualified from receiving unemployment compensation -- R.C.
4141.29(D)(2)(a) -- Employer justified in terminating employee
whose alcoholic condition may be characterized as involuntary, when
-- Employee fails to take reasonable steps to prevent his drinking
problem from affecting his job performance.
STATEMENT OF THE CASE
Case No. 88-2030
Appellee, Lotus J. Harris, was employed as a salesperson for Warren
Music Centre between June 7, 1984 and May 13, 1985. On November 6
or 7, 1984, Martin Petersime, the owner of Warren Music, confronted
Harris concerning her apparent problem with alcohol abuse.
According to Petersime, he had been receiving complaints from
Harris's co-workers that Harris had been working while intoxicated.
He stated that Harris had been reporting late to work and had been
leaving work for extended periods of time without permission.
According to Petersime, when he confronted Harris, she admitted
that she was an alcoholic. Petersime testified that he encouraged
Harris to seek treatment for her alcohol problem and offered to
give her time off for that purpose on several occasions.
On November 8, 1984, Petersime issued a letter to Harris which
stated in relevant part:
"Pursuant to our conversation of last week, I am informing you of
my decision to place you on a six-week probation effective
today.
"This action is taken in response to your following actions which
are contrary to the nature of our contract:
"A. Repeated lateness arriving for work.
"B. Intoxication on the job.
"C. Leaving work without permission for extended periods of
time."
On March 30, 1985, Petersime again discussed Harris's drinking
problem with her as part of her performance evaluation. On a
written evaluation that was shown to Harris, Petersime specifically
noted that alcohol was still a problem.
On April 16, 1985, a customer informed Petersime that Harris was
drunk while running a booth for Warren Music at a special show in a
shopping mall. When confronted about the customer's complaint,
Harris claimed that a low blood-sugar problem accounted for her
behavior at the mall. Harris stated that she was under a doctor's
care for the low blood-sugar condition and that her doctor wanted
her hospitalized for it. In response, Petersime told Harris that
she "had better find out what was wrong," and encouraged her to
obtain hospitalization. Harris was in fact subsequently
hospitalized for glucose intolerance, anxiety, depression and
hypertension.
On May 13, 1985, Harris received permission from Petersime to leave
work for one hour to go to the bank. Approximately an hour later,
Harris returned to work intoxicated but later departed without
permission. Upon learning that Harris had returned to work
intoxicated and had left without permission, Petersime decided to
discharge Harris and wrote her a letter of termination.
Later that evening, Harris was admitted to a hospital where she
underwent a three-day detoxification program followed by a
twenty-eight day alcoholism rehabilitation program. She was
released on June 13, 1985.
Subsequently, Harris applied for unemployment compensation. On June
26, 1985, the appellant, Administrator of the Ohio Bureau of
Employment Services, determined that Harris had been discharged by
her employer for just cause, and was therefore not qualified to
receive unemployment compensation benefits.
On July 9, 1985, Harris filed a timely request for reconsideration
with the appellant. The appellant referred the request to the
Unemployment Compensation Board of Review to be considered as an
appeal. After a hearing before a referee of the board, the referee
decided that Harris had been discharged for just cause, and her
claim for benefits was disallowed.
Upon appeal, the Trumbull County Court of Common Pleas affirmed the
decision of the board.
Upon further appeal, the court of appeals reversed, stating that
while the employer was justified in discharging Harris due to poor
job performance, Harris was not at fault for her job violations due
to her alcoholism. The appellate court held that Harris should
receive benefits for periods during which she could demonstrate
that she was "able and available for work."
Case No. 88-2031
Appellee, Paul T. Arnoto, was employed as a packer for Easco
Aluminum Corporation between September 27, 1978 and January 19,
1982.
On May 13, 1981, Arnoto was given a three-day suspension for
returning late from lunch and for leaving the plant without
permission or without punching out. Arnoto was warned that his next
offense could result in his termination.
In August 1981, Arnoto was discharged by Easco for insubordination.
However, the discharge was reduced to a four-week suspension.
On January 19, 1982, Arnoto was scheduled to work from 3:30 p.m. to
midnight. Under Easco's company policy, employees on that shift
were required to take their lunch breaks from 8:30 to 9:00 p.m.
Arnoto left for lunch that day at 8:30 p.m. and traveled to a local
tavern. However, he did not return to work until 9:10 p.m. When
confronted by his supervisor, who noticed that Arnoto was having
trouble walking and talking, and detected the odor of alcohol about
Arnoto, Arnoto admitted to having consumed three shots of whiskey
and four beers during his lunch time. As a result of this incident,
and in light of his prior disciplinary record, Arnoto was
discharged by Easco.
At the time of his discharge, Arnoto was thirty-one years old. He
had been an alcoholic and drug addict since he was a teenager, and
had been addicted to a wide variety of drugs, including Valium,
other sedatives, and hallucinogenic drugs. In 1980 or 1981,
according to Arnoto, he had been informed by union representatives
that Easco believed he had an alcohol or drug problem. The union
admonished Arnoto to follow his employer's rules concerning these
substances.
On January 30, 1982, Arnoto was admitted to an alcoholism treatment
program. Arnoto was treated in this program until March 4, 1982, at
which time he was released. His alcoholism counselor stated that
since his release, Arnoto had remained sober.
Arnoto then applied for unemployment compensation benefits. On
March 25, 1982, the appellant-administrator disallowed Arnoto's
claim on the ground that he had been discharged for just
cause.
Upon appeal to the Unemployment Compensation Board of Review, the
denial of benefits was affirmed based on Arnoto's violation of his
employer's policies relating to tardiness and intoxication. Upon
further appeal, the Mahoning County Court of Common Pleas also
affirmed the denial of unemployment compensation. Then, upon appeal
to the court of appeals, the lower court decision was reversed and
the cause was remanded to the board of review for a determination
of whether Arnoto's alcoholism was the reason he violated his
employer's policies on tardiness and intoxication.
On remand, a hearing was held before a referee of the board,
whereupon the board affirmed its previous decision and held that
Arnoto had been discharged by Easco for just cause. Upon Arnoto's
appeal to the court of common pleas, the board's decision was
reversed and remanded, thereby granting unemployment compensation
benefits to Arnoto.
Upon appeal, the court of appeals affirmed the decision to award
Arnoto unemployment benefits in a split decision. The appellate
court held that while the employer was justified in discharging
Arnoto for his violations of company policies, Arnoto was not at
fault for violating such policies due to his alcoholic condition.
The court of appeals observed that Arnoto could collect benefits
only if he could demonstrate that his condition was under control.
The appellate court then remanded the cause to the board of review
to determine if and when Arnoto was in control of his alcoholism so
as to be considered "able and available for work" under R.C.
4141.29(A)(4)(9).
The dissenting appellate judge opined that while there was
substantial proof of Arnoto's alcoholism at the time of his
discharge, there was no evidence that he had ever sought help for
his condition before his discharge. The dissent concluded that the
"employer should not be required to furnish security under such
circumstances."
The causes are now before this court pursuant to the allowance of
motions to certify the record in both appeals.
COUNSEL
Northeast Ohio Legal Services, Cherie H. Howard and Pat Booher
Rosenthal, for appellees.
Anthony J. Celebrezze, Jr., attorney general, Sherrie J. Passmore
and James John Schubert, for appellant administrator.
Anne M. Wilhelm and Walter J. Mackey, urging reversal for amicus
curiae, Ohio Manufacturers' Association.
JUDGES
Moyer, C.J., Sweeney, Holmes, Douglas, Wright, H. Brown and
Resnick, JJ., concur.
AUTHOR: PER CURIAM
OPINION
{*40} The determinative issue posed in these consolidated appeals
is whether the alcoholism of appellees and its ultimate effect on
their respective terminations from employment compel a finding that
they were not discharged for "just cause" within the meaning of
R.C. 4141.29(D)(2)(a). [FN1] Under the facts and circumstances of
these cases, we find that in spite of appellees' alcoholism, both
were dismissed from their jobs for just cause, so we therefore
reverse the decisions of the courts of appeals below.
In the instant cases, both of the courts of appeals were of the
opinion that except for the fact that the employees were
alcoholics, the employer was otherwise justified in discharging the
employee in issue. Nevertheless, the appellate courts focused upon
the fact that the employees' conduct which led to their dismissals
was so affected by their alcoholism that their alcohol-induced
conduct should be considered to be involuntary. Both appellate
courts relied on this court's decision in Hazlett v. Martin
Chevrolet, Inc. (1986), 25 Ohio St.3d 279, 25 OBR 331, 496 N.E.2d
478, wherein alcoholism was found to be a handicap with respect to
civil rights statutes, and interpreted the case to mean that
alcoholism did not necessarily foreclose a discharged employee from
qualifying for unemployment compensation benefits.
In our view, the courts of appeals read more into Hazlett, supra,
than was intended by this court. As we stated in Hazlett, albeit in
dicta, "[w]here chemical dependency adversely affects job
performance an employer is clearly within its rights to discharge
the employee." Id. at 281, 25 OBR at 333, 496 N.E.2d at 480. Thus,
although alcoholism is considered to be a handicap, the adverse
effects that alcohol has on a person's job performance will permit
an employer to discharge an employee for just cause, and thereby
prevent the employee from obtaining unemployment compensation
benefits.
In our view, the record is replete {*41} with instances
illustrating the just cause underlying the discharge of both
appellees from their respective employment situations. In Harris's
case, there was evidence that she was aware of her alcoholism and
admitted it to her employer when confronted about it. In addition,
Harris knew she was in danger of losing her job because of her
drinking problem, and she had been placed on probation by her
employer for poor job performance that was attributable to her
drinking problem. Harris's employer encouraged her to seek
treatment on several occasions and offered her time off in order to
obtain help. However, Harris did not seek treatment for her
alcoholism until she was discharged from her employment. In short,
Harris's employer did much to warn her about her tenuous employment
status and tried to help her through her alcohol addiction. Since
his warnings and assistance were essentially ignored, Harris's
employer was amply justified in terminating her employment based on
her poor job performance.
With regard to Arnoto, we find that his employer was also justified
in terminating his employment. While Arnoto may have refused to
directly acknowledge that he was an alcoholic, he knew his drinking
was adversely affecting his work and he knew his job was in
jeopardy. Arnoto testified that he had missed work between
twenty-five and thirty times due to hangovers during his employment
at Easco. In 1980 or 1981, Arnoto was warned by his union that he
was considered to be an alcohol and drug abuser. In addition, the
record indicates that Easco disciplined Arnoto twice before firing
him. Thus, Arnoto's employer was sufficiently justified in
discharging him for breaking the company's policies on drunkenness
and tardiness.
In our view, while appellees' condition as alcoholics may be
characterized as involuntary, both of them failed to take
reasonable steps to prevent their disability from affecting their
job performance and, therefore, both employers were justified in
terminating the appellees from their respective jobs. Since under
R.C. 4141.29(D)(2)(a) an employee who is discharged for just cause
is disqualified from receiving unemployment compensation, the
courts below erred in creating an exception to this statute which
would grant appellees the opportunity to qualify for unemployment
compensation benefits.
Accordingly, the judgments of the courts of appeals below are
reversed, and the decisions of the Unemployment Compensation Board
of Review are hereby reinstated.
Judgments reversed.
DISPOSITION
Judgments reversed.
OPINION FOOTNOTES
1 R.C. 4141.29 provides in relevant part:
"(D) * * * [N]o individual may serve a waiting period or be paid
benefits * * *:
"* * *
"(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 * * *."