Scali v. CSA HS UHHS Canton, Inc.

[Cite as Scali v. CSA HS UHHS Canton, Inc., 2012-Ohio-577.]

COURT OF APPEALS

STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

JUDGES:

LAURA SCALI : Hon. Patricia Delaney, P.J.

: Hon. W. Scott Gwin, J.

Plaintiff-Appellant : Hon. William B. Hoffman, J.

:

-vs- :

: Case No. 2011-CA-00165

CSA HS UHHS CANTON, INC., ET :

AL :

: OPINION

Defendant-Appellee

CHARACTER OF PROCEEDING: Administrative appeal from the Stark

County Court of Common Pleas, Case

No.2010CV03609

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 13, 2012

APPEARANCES:

For - Appellee - CSA HS UHHS Canton For – Appellant Laura Scali

TZANGAS, PLAKAS, MANNOS & RAIES BRENT ENGLISH

DAVID DINGWELL M.K. Ferguson Plaza

AMANDA M. PAAR CONROY Ste 470

220 Market Avenue South, 8th Fl. 1500 West Third Street

Canton, OH 44702 Cleveland, OH 44113-1422

For - Director – ODJ&FS

SUSAN SHEFFIELD

Assistant Attorney General

20 West Federal Street, 3rd Floor

Youngstown, OH 44503

[Cite as Scali v. CSA HS UHHS Canton, Inc., 2012-Ohio-577.]

Gwin, P.J.

{1} Appellant Laura A. Scali appeals a judgment of the Court of Common

Pleas of Stark County, Ohio, which affirmed the decision of the Ohio Unemployment

Compensation Review Commission’s denying her unemployment compensation

benefits. Appellees are CSA HS UHHS Canton, Inc. (hereinafter “Mercy”), and the

Director of the Ohio Department of Job and Family Services. Appellant assigns a single

error:

{2} “THE REVIEW COMMISSION’S DECISION THAT SCALI WAS

DISCHAGED FOR JUST CAUSE WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE AND WAS UNREASONABLE.”

{3} The hearing officer who reviewed appellant’s claim found she had been

employed by Mercy from October 20, 2008 until she was discharged on December 11,

2009. She was employed as a dental care assistant. The hearing officer found Mercy

discharged appellant for unsatisfactory performance after she received several formal

warnings for her performance in customer service. The hearing officer found appellant

contended that the patients who complained were just difficult and she was following

office policy. The hearing officer found appellant was hired to provide customer service

and after receiving warnings and offers of training, she continued to receive complaints

from customers. The hearing officer found based upon the evidence, appellant was

discharged for just cause in connection for her work.

{4} The Unemployment Compensation Review Commission confirmed the

hearing officer’s findings, finding it had reviewed the entire record and concluded

appellant’s claim for unemployment compensation should be disallowed.

Stark County, Case No. 2011-CA-00165 3

{5} Appellant appealed the matter to the Court of Common Pleas pursuant to

R.C. 4141.282. The trial court recited the factual background, adding more detail than

the hearing officer had included, and affirmed the administrative decision. From that

judgment, this appeal ensues.

{6} Our standard of review in unemployment compensation cases is limited.

An appellate court may reverse a board's decision only if the decision is unlawful,

unreasonable, or against the manifest weight of the evidence. See, Tzangas, Plakas &

Mannos v. Administrator, Ohio Bureau of Employment Services, 73 Ohio St.3d 694,

696, 1995–Ohio–206, 653 N.E.2d 1207, citing Irvine v. Unemployment Compensation

Board of Review, 19 Ohio St.3d 15, 17–18, 482 N.E.2d 587 (1985). An appellate court

may not make factual findings or determine the credibility of the witnesses, but rather, is

required to make a determination as to whether the board's decision is supported by

evidence on the record. Id. The hearing officer, as the fact finder, is in the best position

to judge the credibility of the witnesses. Shaffer–Goggin v. Unemployment

Compensation Review Commission, Richland App. No. 03–CA–2, 2003–Ohio–6907,

citing Hall v. American Brake Shoe Co., 13 Ohio St.2d 11, 233 N.E.2d 582 (1968);

Brown–Brockmeyer Co. v. Roach , 148 Ohio St. 511, 76 N.E.2d 79 (1947).

{7} Mercy produced documentation regarding four violations of its disciplinary

policy which occurred in less than one year. The first was on June 5, 2009, when Mercy

gave appellant a verbal warning for making a personal phone call in a patient area

without notifying her department manager.

{8} The second warning indicated two patients had complained about the

service they received on the phone with appellant, specifically, that she was rude and

Stark County, Case No. 2011-CA-00165 4

unprofessional and was unable to help them with the information they were trying to get.

In response, appellant wrote she was sorry that two patients felt she was unable to help

them because she tried to listen to every patient and address their needs. She stated

that although she had attempted to help the two patients, she could not give them the

outcome they wanted at that particular time, but she would try to be more aware of her

reactions.

{9} The next warning indicated Mercy had received a letter from a current

patient regarding the way she alleged appellant spoke to her and treated her over the

phone. Specifically, the patient said she was rude and not at all professional. Mercy

attached the letter itself from the patient to the warning. The letter recites that writer

had called the dental clinic and was told she could not schedule treatment until she set

up a treatment plan, met with a financial counselor, and had dental x-rays, for which she

would be billed. The writer felt appellant was condescending about the writer’s

intelligence. The letter writer expressed the opinion the person who scheduled

appointments should not make decisions about any need for updated treatment plans or

a patient’s ability to pay.

{10} The writer of the letter also complained appellant told her the cost was only

$37.00, which was she felt was disrespectful and insensitive to the patient’s financial

situation. The writer said although most of the conversation was professional, appellant

became sarcastic at one point. Appellant responded she did not remember having the

conversation and she would be surprised if she actually said those things. She

asserted she tried to be very respectful and mindful of the patient’s needs and feelings.

Stark County, Case No. 2011-CA-00165 5

{11} The final complaint which triggered the termination of appellant’s

employment was on December 11, 2009, wherein the supervisor had received a

complaint call, followed up by a written complaint from a patient, wherein he indicated

he was very disappointed by the treatment he had received from appellant when making

a dental appointment. He felt “brushed off” when he asked several questions that were

important to him, and was made to feel stupid by the employee’s responses to his

questions. Appellant responded that she did not brush off the patient but attended to all

of his inquires except those involving insurance. Everyone else was in a staff meeting

and appellant was unable to answer insurance questions, so she advised him to contact

his insurance company directly.

{12} Appellant argues the decision was against the manifest weight of the

evidence and was unreasonable. She asserts the evidence presented to the hearing

officer was hearsay, which, while permissible in an administrative hearing, should not

carry the same weight as testimony of live witnesses.

{13} The Director of the Ohio Department of Job and Family Services argues,

among other things, that appellant had failed to object to the introduction of hearsay

evidence, and has thus waived the issue. We do not agree. There is a distinction to be

drawn between an objection to the admission of evidence and an assertion the

evidence is insufficient to support the decision. In her brief appellant does not argue

hearsay should not be admitted in an administrative hearing, but argues there was no

corroborating evidence, and thus, the evidence was not sufficient to support the hearing

officer’s decision.

Stark County, Case No. 2011-CA-00165 6

{14} Appellant also argues the record does not show Mercy adhered to its

written policy of progressive discipline, and the record does not show Mercy

investigated the complaints before taking disciplinary action against her. Appellant

argues the record shows Mercy simply accepted the patients’ complaints as true in spite

of appellant’s explanation and denials.

{15} This court must affirm the trial court’s decision if we find it is supported by

some evidence in the record, and we find the record does contain sufficient, competent

and credible evidence from which the trial court could affirm the administrative decision.

This court is not permitted to substitute its judgment for that of the finder of fact even if

our judgment in the matter would have been different.

{16} The assignment of error is overruled.

{17} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is affirmed.

By Gwin, J.,

Delaney, P.J., and

Hoffman, J., concur

_________________________________

HON. W. SCOTT GWIN

_________________________________

HON. PATRICIA A. DELANEY

_________________________________

HON. WILLIAM B. HOFFMAN

WSG:clw 0113

[Cite as Scali v. CSA HS UHHS Canton, Inc., 2012-Ohio-577.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

LAURA SCALI :

:

Plaintiff-Appellant :

:

:

-vs- : JUDGMENT ENTRY

:

CSA HS UHHS CANTON, INC., ET AL :

:

:

Defendant-Appellee : CASE NO. 2011-CA-00165

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed. Costs to

appellant.

_________________________________

HON. W. SCOTT GWIN

_________________________________

HON. PATRICIA A. DELANEY

_________________________________

HON. WILLIAM B. HOFFMAN