[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