[Cite as Marlo v. Dir., Ohio Dept. of Job & Family Servs. , 2021-Ohio-1366.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO

GEOFFREY MARLO, : O P I N I O N Appellant, : CASE NO. 2020-P-0082 - vs - : DIRECTOR, OHIO DEPARTMENT OF : JOB AND FAMILY SERVICES, et al., : Appellees. :

Civil Appeal from the Portage County Court of Common Pleas, Cas e No. 2019 CV 01008.

Jud g ment: Affirmed.

John A. McNally, IV , 100 E. Federal Street, 6th Floor, Youngstown, Ohio 44503 (For Appellant )

. Dave Yost , Ohio Attorney General, and Patrick MacQueeney, Assistant Attorney General, 615 West Superior Avenue, 11th Floor, Cleveland, Ohio 44113-1899 (For Appellee, Director, Ohio Departm ent of Job and Family Services)

. Christopher J. Newman and J. Michael Thompson, Henderson, Covington, Messenger, Newman & Thomas Co., LPA, 6 Federal Plaza Central, Suite 1300, Youngstown, Ohio 44503 ( For Appellee, M&A Distributin g Co., Inc. )

.

THOMAS R. WRIGHT, J. {¶1} Geoffrey Marlo appeals the trial court’s judgment, affirming th e final decision of the Unemployment Compensation Review Commission which denied Marlo’s application for unemployment benefits. We affirm.2 {¶2} Beginning June 8, 2015, Marlo was employed as a Class A CDL del ivery truck driver by M&A Distributing Co., Inc. (“M&A”), doing busin ess as Superior Beverage Group. M&A discharged Marlo on May 21, 2019. Marlo filed an a pplication for unemployment benefits, which the Office of Unemployment Insuran ce Operations denied in August 2019 on the basis that Marlo was discharged for just cause. Marlo appealed,

and the matter was transferred to the Review Commission. {¶3} A telephonic hearing was held before a hearing officer of the R eview Commission on October 30, 2019. Marlo offered testimony, as di d the executive vice president of M&A, Joseph McHenry. {¶4} The record before the Review Commission also contains copies of relevant sections of Superior Beverage Group’s Associate Handbook and Fe deral Motor Carrier Safety Regulations (“Safety Regulations”), as well as Marlo’s w ritten acknowledgment of receipt of both documents on his date of hire. The handbook in cludes an “associate conduct” policy, which provides that employees are subject to i mmediate discharge under certain circumstances, including “insubordination and/or failur e to follow supervisory instructions” and “refusal to submit upon request to a substanc e abuse test.” The “drug and alcohol program” in the handbook provides that employees ar e subject to drug and alcohol testing in the following circumstances: based upon reas onable suspicion; following work-related accidents; in certain circumstances afte r completing a drug or alcohol rehabilitation program; to comply with DOT testing guid elines, such as random testing; and in compliance with the company’s random drug testi ng for non-DOT

associates.3 {¶5} The testimony establishes that Marlo was notified on May 15, 20 19, that he was randomly selected for a DOT substance abuse test, for which he was required to immediately submit. Marlo reported to the DOT-approved testing facility the following evening. When questioned as to the timeliness of Marlo’s repor ting, McHenry testified he thought reporting the next day was within the guidelines. {¶6} Upon arrival, Marlo submitted a urine sample on site. Marlo wa s immediately informed that his sample was outside the acceptable temperature range, and, according to the Safety Regulations, he would have to prov ide another sample before leaving the facility. If he failed to give an adequate sample within three hours, his results would be considered “positive.” After drinking water a nd attempting twice within the next three hours, Marlo could not provide another sample. {¶7} Marlo was discharged by M&A on May 21, 2019, for “insubordinati on and/or failure to follow instructions” and “refusal to submit upon req uest to a substance abuse test,” which was also noted as a violation of DOT’s testing gui delines. {¶8} Marlo described the test as a “controlled test.” He testified: When you enter the test facility, you are directed to empty you r pockets into a locker, raise your shirt, make sure you don’t have any * * * shall we say additional appendages on you in the form of * * * other fluids that you might be carrying with you. You enter an observed room that has all the plumbing shut off and dye in the toilet and you put a sample into a sample cup and it has to be “X” amount of volume. * * * And then as soon as you finish that you give it to the tester and they now seal it up and send it off. Marlo stated he was informed the sample was not within the temp erature band on the specimen cup and would have to give another sample. He said he was provided with two cups of water but was only able to “choke down” one cup; the fa cilitators would not allow4 him to retrieve water from his vehicle. After three hours, he was unable to supply another urine sample. He reported the situation to human resources the following morning, was subsequently informed not to report to work, and was terminated four days later. {¶9} Marlo further testified that, contrary to language in the Safet y Regulations, he was never advised to obtain an evaluation from a licensed ph ysician within five days of the test as to why he could not medically provide a urine sa mple within that three-hour period of time. The Safety Regulations are published at 49 C.F. R. Part 40, and the specific regulation provides: As the [Designated Employer Representative], when the collector informs you that the employee has not provided a sufficient amount of urine (see paragraph (b)(4) of this section), you must, after consulting with the [Medical Review Officer], direct the employee to obtain, within five days, an evaluation from a licensed physician, acceptable to the [Medical Review Officer], who has expertise in the medical issues raised by the employee’s failure to provide a sufficient specimen.

See 49 C.F.R. 40.193(c). Marlo also stated that he offered to sub mit samples for a blood test or hair follicle test at his own expense but was not permi tted to do so. {¶10} McHenry testified that Marlo had previously been suspended for two days in May 2018 for a similar situation. Marlo had been off work d ue to a work-related accident and injury. McHenry stated that Marlo did not provide a drug s creen or post-accident drug test within DOT’s time guidelines. Marlo was written up f or the following violations: 1. Insubordination and/or failure to follow supervisory instructions 2. Refusal to submit upon request to a substance abuse test 3. Carrying or possessing dangerous weapons on the job or on company property 4. Violation of the “Stay home if you exhibit flu-like symptoms policy”5 The letter further warned, “Any further instances may include f urther discipline up to and including discharge.” McHenry testified that Marlo was warned that if it happened again he would be subject to discipline, including possible discharge . Marlo testified that he had been transported unconscious to the hospital following the accident and released four days later, during which time he was not requested to subm it a post-accident drug

screen. {¶11} The hearing officer concluded that Marlo was discharged by M&A for just cause in connection with work under R.C. 4141.29(D)(2)(a). {¶12} Marlo’s subsequent appeals to the full Review Commission and th e trial court were denied. Now, in his appeal to this court, Marlo adv ances one assignment of

error: The Portage County Common Pleas Court erred in affirming the November 20, 2019 Determination of the Unemployment Compensation Review Commission in affirming the October 31, 2019 decision of a UCRC Hearing Officer when the Determination of the Commission and its Hearing Officer was unlawful, unreasonable, or against the manifest weight of the evidence as no just cause existed for the termination of Appellant’s unemployment. {¶13} A claimant is not eligible for unemployment compensation benefi ts if the director of ODJFS finds that the claimant “has been discharged for just cause in

connection with the individua l’s work[.]” R.C. 4141.29(D)(2)(a ). A claimant has the burden of proving his or her entitlement to unemployment compen sation benefits, including the issue of “just cause.” Holzer v. Ohio Unemp. Comp. Rev. Comm ., 11th Dist. Portage No. 2011-P-0011, 2011-Ohio-6523, ¶ 15, citing Irvine v. Unemp. Comp. Bd. of

Review , 19 Ohio St.3d 15, 17, 482 N.E.2d 587 (1985).6 {¶14} “The term ‘just cause’ has not been clearly defined in our case law. ‘* * * Essentially, each case must be considered upon its particular m erits. 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.’” Irvine at 17, quoting Peyton v. Sun T.V. & Appliances , 44 Ohio App.2d 10, 12, 335 N.E.2d 751 (10th Dist.1975). “The determination of whether just cause exists necessarily depends upon the unique factual considerations of the particular case. Determination of purely factual questions is primarily within the province of the [Review Commission].” Irvine at 17. {¶15} Pursuant to R.C. 4141.282(H), “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 commissio n.” “This duty is shared by all reviewing courts, from the first level of review in the com mon pleas court, through the final appeal in [the Ohio Supreme Court].” Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Serv. , 73 Ohio St.3d 694, 696, 653 N.E.2d 1207 (1995), citing Irvine at 17-18. Thus, “[a]n appellate court may reverse the Unemployment Compensation Board of Review’s ‘just cause’ determination only if it is unlawful, unreasonable or against the manifest weight of the evidence.” Tzangas at paragraph one of the syllabus. {¶16} The appellate court is required to focus on the decision of the Review Commission rather than that of the common pleas court. Kent State Univ. v. Hannam , 11th Dist. Portage No. 2018-P-0109, 2019-Ohio-2971, ¶ 9. “Furt hermore, ‘[t]he court’s

role is to determine whether the decision of the Review Commiss ion is supported by7 evidence in the certified record. * * * If the reviewing cour t finds that such support is found, then the court cannot substitute its judgment for that o f the Review Commission. * * * “The fact that reasonable minds might reach different co nclusions is not a basis for the reversal of the [Review Commission’s] decision.”‘” Id. at ¶ 10, quoting Univ. of Akron v. Ohio Dept. of Job & Family Services , 9th Dist. Summit No. 24566, 2009-Ohio-3172, ¶ 11, quoting Irvine , 19 Ohio St.3d at 18, 653 N.E.2d 1207. Every reasonable presu mption must be made in favor of the decision and the findings of fact of the Review Commission.

Holzer , 2011-Ohio-6523, at ¶ 12. {¶17} Marlo contends the trial court erred in affirming the Review Co mmission’s determination that just cause existed for the termination of hi s employment with M&A because said determination was unlawful, unreasonable, or again st the manifest weight

of the evidence. {¶18} Marlo advances several arguments, one of which is that M&A’s st ated rationale for his termination “remains ever-changing.” He directs us to the May 21, 2 019 termination letter and the response to the Office of Unemployme nt Operations’ “Request to Employer for Separation Information.” The termination letter provided that Marlo was terminated for “insubordination and/or failure to follow superv isory instructions” and “refusal to submit upon request to a substance abuse test”; “in addition, you failed to be in compliance with the DOT testing guidelines (ie: Random, post -accident, reasonable cause, return to work) for DOT associates.” M&A also provided the following responses to questions in the Request: What was the reason the claimant was separated from employment (quit, discharge, laid off, leave of absence etc.)?8 Claimant violated progressive discipline and last chance agreement of May 16, 2018 of insubordination, failure to follow supervisory instructions and refusal to submit to a mandatory substance abuse test. If you have any additional information you would like to provide, please explain. After previous acknowledged warning with described consequences, claimant either provided a fake specimen or specimen not within temperature range then refused to submit another observed specimen within a mandatory timeframe.

What was the final event and date that led to the claimant’s discharge? Failure to submit to a mandatory D.O.T. drug screen on 5/16/19. Each statement made by M&A consistently reveals the reason Marl o was discharged regarded his conduct surrounding the substance abuse test administered on May 16, 2019. Marlo’s argument lacks merit. {¶19} Marlo also takes issue with M&A’s characterization of the May 1 6, 2018 suspension letter as a “last chance agreement” or evidence of “ progressive discipline.” The letter notified Marlo that he was suspended for two days wi thout pay for just cause, and it further warned, “Any further instances may include furth er discipline up to and including discharge.” Marlo’s argument is not well taken—he wa s terminated for the reasons stated in the subsequent May 21, 2019 termination lette r, which are not dependent upon the warning he received one year prior. Any mis characterization of the former letter does not affect disposition of the matter at hand

. {¶20} The core of Marlo’s dispute with the just cause determination i s that he believes he complied with M&A’s directions and DOT regulations as to the random substance abuse test and did not refuse to submit a urine sampl e—he reported to the approved testing facility and prov ided a urine sample; when the sample failed to register9 at an appropriate temperature for an unknown reason, he remaine d for several hours and twice more attempted to provide an adequate sample; when unsucc essful, he suggested alternative testing methods but was denied. He contends, there fore, that the requisite degree of employee fault is not present here. {¶21} “The [Unemployment Compensation] Act does not exist to protect employees from themselves, but to protect them from economic fo rces over which they have no control. When an employee is at fault, he is no longer the victim of fortune’s whims, but is instead directly responsible for his own predicam ent. Fault on the employee’s part separates him from the Act’s intent and the Act ’s protection. Thus, fault is essential to the unique chemistry of a just cause terminatio n.” Tzangas, 73 Ohio St.3d at 697-698, 658 N.E.2d 1207. “[T]he question of fault cannot be rigidly defined, but, rather, can only be evaluated upon consideration of the particular fact s of each case. If an employer has been reasonable in finding fault on behalf of an e mployee, then the employer may terminate the employee with just cause. Fault on b ehalf of the employee remains an essential component of a just cause termination.” Id. at 698, citing Irvine, 19 Ohio St.3d at 17, 653 N.E.2d 1207. “Fault” does not, however—a nd contrary to Marlo’s suggestion—require misconduct on the part of the employee. Reddick v. Sheet Metal

Prods. Co. , 11th Dist. Lake No. 2009-L-092, 2010-Ohio-1160, ¶ 22, citing Sellers v. Bd.

of Review , 1 Ohio App.3d 161, 164, 440 N.E.2d 550 (10th Dist.1981) and Schienda v. Transp. Research Ctr. , 17 Ohio App.3d 119, 121, 477 N.E.2d 675 (3d Dist.1984). {¶22} Here, while there are conflicting innuendos as to whether Marlo provided a fake specimen and refused to provide a second specimen, or whet her there was something wrong with the specimen collection cup and Marlo had a medical reason that10 rendered him unable to provide a second sample—the evidence in the certified record supports the inference drawn by the Review Commission that Marl o is directly responsible for his own predicament. Although considered timely, Marlo did not report to the testing facility until approximately 7:00 p.m. on the day after he rece ived notification of his random selection, which is far from immediate; the only urine sample h e provided was outside the appropriate temperature range, suggesting he did not produce th e urine sample on site as required; and he refused to drink enough water to produce a valid sample within the three-hour window provided. Further, it was within the provinc e of the factfinder to evaluate credibility regarding Marlo’s allegation that the test ing facility’s report required his employer to direct him to obtain an evaluation from a licen sed physician within five days of the test, as provided in the Safety Regulations. {¶23} The conclusion that M&A was reasonable in finding fault on beha lf of Marlo to support a “just cause” termination is not against the manife st weight of the evidence. The fact that reasonable minds could weigh the evidence and rea ch a contrary conclusion

is not a basis for reversal. Irvine , 19 Ohio St.3d at 18, 653 N.E.2d 1207; Reddick at ¶ 20. Finally, Marlo has not demonstrated anything unreasonable or un lawful about the Review

Commission’s determination. The trial court did not err in aff irming the final decision of

the Review Commission. {¶24} The sole assigned error lacks merit. {¶25} The judgment of the Portage Coun ty Court of Common Pleas is aff irmed.

MARY JANE TRAPP, P.J., MATT LYNCH, J.,

concur.