Petition for Writ of Certiorari — Macon v. Ohio Department of Job & Family Services

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Supreme Court, U.S.

FILED

No_ 10 -2§ JUN 28 2019

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

MARY H. MACON

Petittoner

versus

OHIO DEPARTMENT OF JOB

AND FAMILY SERVICES

Respondent

On Petition For Writ of Certiorari

To The Ohio Supreme Court

PETITION FOR WRIT OF CERTIORARI

Frank Yates, Jr.

4602 Southern Parkway

Louisville, KY 40214

502-361-8422

Counsel for Petitioner

QUESTIONS PRESENTED

Why did the Ohio Administrative Law Judge

presiding over the Ohio State Personnel Board

of Review hearings rule against the Petitioner

on 3 of the 4 violations cited in the Removal

Letter when evidence and _ testimonies

supported the Petitioner?

Why were records missing in appellee's

EXHIBIT 2, ‘Employee History on Computer

for Appellant’ presented by the appellee in the

Ohio State Personnel Board of Review

hearing?

Why were subsequent appeals to the Ohio

Court of Common Pleas, the Tenth District

Court of Appeals and the Ohio State Supreme

Court a waste of time and money?

Did the Ohio Department of Jobs & Family

Services Management Information Systems

Deputy Director cause the allegedly abused

employee to potentially be at rmsk when she

did not reassign the employee immediately,

confront the employee's supervisor and initiate

an investigation, post haste?

Did the Ohio Department of Jobs & Family

Services Management Information Systems

Deputy Director target the Petitioner for

removal and employ discriminatory practices

to achieve that objective?

IN THE SUPREME COURT OF THE

UNITED STATES

October Term 2009

No. _.

Mary H. Macon, Petitioner

Ohio Department of Job and

Family Services

PETITION FOR A WRIT OF CERTIORARI TO

THE OHTO SUPREME COURT

To the Honorable, the Chiet Justice and

Associate Justices of the Supreme Court

of the United States:

Mary H. Macon, the Petitioner, prays that a Writ of

Certiorari issue to review the judgment of the Ohio

Supreme Court entered in the above-entitled case on

OPINION BELOW

The judgment of the Ohio Supreme Court was

entered on

JURISDICTION

The jurisdiction of the Supreme Court is invoked

under 28 U.S.C. § 1257(1).

PARTIES

Mary H. Macon, Petitioner

Ohio Department of Job and

Family Services, Respondent

TABLE OF CONTENTS

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TABLE OF CASES

TABLE OF STATUTES

Ohio Revised Code 124.34 .......cccccccccccccscecccccccscss Serre

STATUTE INVOLVED

Ohio Revised Code 124.34 see Appendix A.

STATEMENT OF THE CASE

Procedural history,

This action arises out of the wrongful termination

November 21, 2005 of Mary Hackney Macon who was

an Ohio State Government employee (hereafter

“Petitioner”). he Petitioner held the position of Data

Systems Administrator from December 10, 2001

until November 21, 2005.

The Petitioner filed an appeal with the Ohio State

Personnel Board of Review. The first hearing date

was June 13, 2006. A settlement agreement was

offered by the Ohio Department of Job & Family

Services. When the document was sent to the

Petitioner, it was reviewed and rejected. The law

firm representing the Petitioner was fired and the

Petitioner requested the Administrative Law Judge

to reschedule the hearing.

The Ohio Department of Job & Family Services

submitted a motion to the Administrative Law Judge

to limit the back pay of the Petitioner if the

Petitioner won the case to the amount that would

have due as of June 13, 2005 if the Petitioner had

signed the proposed Settlement Agreement. The

Administrative Law Judge granted that motion.

The Administrative Law Judge presiding over the

case ruled in favor of the appellee on three (3) of the

four (4) alleged violations of Ohio Revised Code

124.34, e.g., neglect of duty, dishonesty and failure of

good behavior and _ finding the charge of

insubordination was unsupported by testimony or

evidence.

Testimony supporting the Petitioner and refuting

statements made by the appellee was ignored and

statements by the appellee remained unchanged and

quoted by the ALJ in her report. The statements can

be reviewed in the hearing transcripts and are

addressed in the ‘Relevant Facts’ portion of this

document.

The subsequent decisions made _ by passive

judiciaries, e.g., Ohio Court of Common Pleas, Ohio

Tenth District Court of Appeals and the Ohio State

Supreme Court could potentially result in severe

implications for Ohio State Government union and

exempt employees, e.g., prior to this case, employees

were allowed to prepare their job performance

evaluation appeals during work hours as a normal

practice.

The court records are inaccurate, misleading and

basically distorted statements attributed to the

Petitioner. According to the ‘laws’ of the legal

process in Ohio quoted on the decision paper from

the Tenth District Court of Appeals, ‘No new’

evidence can be submitted once the case moves from

the trial court to the next court. In other words,

innocence is not as important as keeping the

allegations on track and new information will not be

tolerated.

The Petitioner was unaware of the ‘yellow brick road’

requirements and attempted to supplement the court

records by providing additional information to the

three Judge panel presiding over oral arguments in

the Tenth District Court of Appeals. The Petitioner

was told no documents would be accepted by the

Judges and was advised to submit a Motion to

Supplement the Record and a é Notice’ of

Supplemental Authority (Unemployment Benefits

denied; however, the hearing officer’s decision letter

states the Petitioner was credible, not the accusers).

The Petitioner submitted the motions and requests

were denied.

The disgusted Petitioner had an attorney file her

appeal in the Ohio State Supreme Court. That court

denied Jurisdiction was dismissed her appeal. The

Petitioner submitted as much ‘additional’

information as possible by including facts in a Motion

for Reconsideration and another Motion Requesting

Fair Consideration filed in the Ohio Supreme Court.

Neither changed the decision.

The Petitioner had a serious accident in March,

2005. After surgery, she returned to work as quickly

as her doctor would allow, e.g., part time until June

26, 2005. The Petitioner continued taking

medication for pain, medication for anti depression

and sleeping medicine. Her injuries were covered by

Ohio Bureau of Workers Compensation and

medicine, as well as treatment, was required long

after the Petitioner was fired from her job in Ohio.

The Petitioner was treated by a pain management

specialist (Dr. Gupta at 162 Barnwood Drive

Edgewood, KY phone 859/331-4159) until May 2009.

There is no denial that the Petitioner’; management

approach was different from the methods of other

Bureau Chiefs in their areas. There were no good ol’

boy decisions made in her Bureau and her direct

management reports, including Section Chiefs, were

required to do their jobs.

A Deputy Director of Management Information

Systems in the largest agency in the State of Ohio,

e.g., Ohio Department of Job & Family Services,

responsible for a Computer Network Services

Division and a Computer Systems Development

Division (multi million dollar area within the

Agency) who did not know she could scan in a

document and email it to one, or everyone, fired a

Data Systems Administrator who knew that and had

over twenty years experience in computer

technology.

Relevant facts

1. The Administrative Law Judge presiding over the

Ohio State Personnel Board of Review hearings ruled

against the Petitioner. Testimonies and evidence

clearly vindicate the Petitioner. Transcripts, tape

recordings and other notes from the 3 days of

hearings support that statement.

2. The following information is missing in appellee’s

list of exhibits, number 2 item ‘ Employee History on

Computer for Appellant’, e.g., report ‘EHOC’ for

Employee SM280889C (Macon, Mary H): dated

January 26, 2006 presented to the Administrative

Law Judge at the Ohio State Personnel Board of

Review:

1. no record of the Petitioner's injuries in March

2005;

2. no subsequent approval records for dates

Petitioner was unable to work;

no approval records for dates working 2 day;

no approval records for one week worked %

day ending June 2005;

The report showed hire date information,

other notes and approval records for disability

ben(efits) for the Petitioner from May 15, 2004

through June 26, 2004. In 2004 the Petitioner

had an accident at home in Grove City, Ohio

and fractured her spine.

3. The Petitioner’s efforts to enter pertinent and

critical information into her court case records were

futile due to Judicial bias/deferral and support for

the appellee, the Ohio Department of Job & Family

Services.

4. The Petitioner was not questioned by her

supervisor, the Deputy Director, at any time about

any accusations made against her by the subordinate

employee (the Deputy Director/Petitioner’s supervisor

assigned that employee to work for the Petitioner).

Prior to being assigned to work for the Petitioner in

July, 2005 the subordinate employee had been on

medical leave because of an unusual mental

condition, e.g., she introduced herself to the

Petitioner the first day she reported for work in the

Petitioner’s Bureau and explained that she wanted to

tell the Petitioner before ‘someone else did’ that she

was a ‘cutter’. Because of the subordinate employee’s

possible mental instability potential, itt should have

been an urgent matter for the Petitioner’s supervisor

to quickly intervene after hearing there were any

complaints of mistreatment of the subordinate

employee. She should have met with the Petitioner,

detailed the allegations and it would have been

imperative that the subordinate employee be

reassigned immediately to another area while a full

investigation of the allegations made against the

Petitioner was conducted. What should have been

professional management procedures for dealing

with subordinate employee complaints/issues did not

happen, obviously. The Petitioner was told about the

subordinate employee’s allegations October 4, 2005.

The allegedly ‘abused’ employee was not reassigned

before the Petitioner was fired. The same allegedly

abused employee was designated as the appellee’s

representative of the Ohio Department of Job &

Family Services at the Ohio State Board of Review

hearings.

If the allegations had been true, by not taking the

immediate actions required in dealing with those

allegations, the Deputy Director would have caused

the State of Ohio to be at great risk as well as the

allegedly abused employee. The Deputy Director was

fully aware there was no risk to the State nor the

employee.

5. The Petitioner was subjected to discriminatory

treatment.

The other Bureau Chiefs reporting to the same

Deputy Director/supervisor were not ordered to

attend college level technical classes. Their job

descriptions were the same as the Petitioner’s.

Review of their personne! files, obtained through an

open records request, indicated none of the other

Bureau Chiefs had the technical experience and

background the Petitioner possessed, eg., the

Petitioner had been an [nternal Auditor/Computer

Specialist for a United States Defense Contractor for

seven years, a Systems Analyst Chief, Computer

Systems Engineer and Computer Applications

Development Branch Manager in Kentucky State

Government for a total of cleven years.

In March, 2005 the Petitioner was 59 years old when

she had a work related injury which required surgery

and several weeks of recovery The Petitioner

worked part time until the last week of June, 2005.

The Petitioner was sixty years old November 15,

2005 and fired November 21, 2005

The Petitioner’s job evaluation was due June 26,

2005 and conducted Friday July 15, 2005 by the MIS

Deputy Director. The monthly report, e.g.,

“Automated Performance Review System,

Performance Review Report, Management Info

Services 6/1/2005 to 6/30/2005 .” shows the

Petitioner’s evaluation was ‘timely’.

When Human Resources was told that was an error,

the response was “That was not an error, the MIS

Deputy Directors supervisor did not want

information on the report to ‘look bad’ on the Deputy

Director's record.”

REASONS FOR GRANTING THE WRIT

As demonstrated below, critical case information was

not provided at the State Personnel Board of Review

hearing, nor to the Court of Common Pleas Judge for

review. It was only after the Petitioner learned that

her witnesses were not going to be heard at any point

in the action that the Petitioner decided to retrieve

her files and provide this information

The Petitioner was a bureau chief for four years. As

demonstrated below, critical information was not

provided at the State Personnel Board of Review

hearing nor to the Court of Common Pleas judge for

review. It was only after Petitioner’s case was filed in

the Tenth District Court of Appeals that she learned

her witnesses were not going to be heard at any point

in the action. ‘he Petitioner retrieved her files and

endeavored to provide t his information to the court

pro se.

Judith McNabb worked in the Petitioner’s bureau for

4 months. ‘The Petitioner had witnesses at the

hearing who worked with her for two to three years

and were dismissed by the AI.J, Marcia Scholl,

without being allowed to testify on the Petitioner's

behalf. Judge Scholl gave the Petitioner the

subpoenas to have them appear at the hearings, then

instructed t the Petitioner’s attorney to dismiss them

to go back to work before the hearing was concluded.

All of the Petitioner’s case files were in her attorney’s

office in Columbus, Ohio until March 9, 2009, the day

she picked them up

Those files included the following note that the

Petitioner wrote on July 26, 2005:

July 26, 2005 first day Becki Singleton told me she

helped McNabb get supplies and ‘settle in’ in the

cubicle directly acvoss from Becki’s cubicle. McNabb

told Becki she was a ‘cutter’ and that was why she

was on disability leave. McNabb also added she had

heard that ‘they’ were trying to get rid of Mary

Macon and she was worried that she would not have

a job when “they” did.

Liston assigned McNabb to work for the Petitioner

before McNabb returned from the disability leave.

July 26, 2005, Judith McNabb also came into the

Petitioners office and introduced herself to the

Petitioner. She stated she had been on medical leave

for a obsessive compulsive disorder and was a

“cutter”, e.g., self mutilation. The Petitioner found it

disturbing to hear McNabb say that she made cuts to

her own body. McNabb showed the Petitioner her

arm, and asked the Petitioner whether she wanted to

see more. The Petitioner replied “No, thank you”.

McNabb came to the Petitioner’s office many times

There were days when McNabb appeared to have

tears in her eyes, seemed distraught and began

complaining about her family. After listening to her

for a few minutes, the Petitioner would try to

redirect McNabb’s dialogue to work related subjects.

Early one morning, McNabb came into the

Petitioner's office and announced that she had to

leave work to try to borrow bail money to get her

husband out of jail.

McNabb allepves that the Petitioner made statements

during staff meetings requesting the managers not to

give her work. The Petitioner does not recall ever

making any comments in staff meetings asking the

managers not to pive McNabb work. Assisting the

Petitioner and helping Petitioner’s section chiefs was

McNabb’s job. Approximately 40% of the Petitioner’s

work day was spent in meetings.

Also in the Petitioner’s files was a copy of the all the

pages/documents submitted September 26, 2005 to

the Department of Administrative Services for her

third level performance evaluation appeal. The

Petitioner's third level performance evaluation

appeal packet had only sixty-three pages including

the index

This evidence negates McNabb’s and Leckliter’s

outrageous claims of the ‘voluminous’ number of

copies made and renders McNabb’s claim that “she

worked on [the Petitioner's] appeals” for a vast

number of hours from the time she came to work for

the Petitioner until October 4”, 2005 totally

unreasonable and ridiculous. No reasonable person

would conclude that anyone else could contribute

anything of value to the Petitioner’s appeals nor

could anyone spend “hours and hours” copying sixty-

three pages.

After the third performance evaluation appeal had

been submitted to DAS September 26, 2005 — there

ras nothing left to do on the Petitioner’s appeal.

This invalidates McNabb’s allegation that she

worked on the Petitioner’s appeal until October 4,

2005.

2005 Dates and events: Performance

Evaluation, Appeals, Notes

July 15° - Kim Liston gave the Petitioner an

unsatisfactory rating on her annual performance

evaluation.

July 20" -The Petitioner filed a level one

performance evaluation appeal.

McNabb reported to work July 26,2005.

August 16" - first’ appeal denial was _ received.

ith

McNabb was on leave without pay August 17

August 18" - The Petitioner filed a level two

performance evaluation appeal. McNabb on leave

without pay August 19".

September 12" - second appeal denial was received

McNabb on leave without pay September 15",

September 21 partially out on sick leave

The Petitioner called McNabb Sunday September

18” and invited McNabb to her house. Earlier in the

week McNabb came to the Petitioner’s office and told

the Petitioner that her husband was having friends

over to their house that weekend and she and her son

would have to be out of the house while they were

-10-

there. She said she and her son would just be

“driving around” all day. ‘The Petitioner offered

cake and she and her son were welcome to stop by.

The Petitioner told McNabb that she was working on

her appeal. The Petitioner usually returned to her

home in Bedford, Kentucky on Fridays after work to

help take care of her Mother but the Petitioner was

working on her files at her home in Grove City, Ohio

that weekend.

September 23™ Macon out on vacation

September 26" - The Petitioner filed her third and

final appeal She left the air center a little after noon

for a mandatory training session for all contract

managers, since Liston had assigned her the

additional duty of being the Deloitte contract

manager. ‘The training lasted until at least 4:30

p.m., and the Petitioner did not have time to go back

to the office. The Petitioner called McNabb and

asked her to check with the Deputy’s office to see if

there were evaluations to drop off at the State Office

Tower and that the Petitioner needed McNabb to

bring the Petitioner her appeal documents. The

Petitioner told McNabb that she would meet. her in

the parking garage because the Petitioner needed to

deliver that documentation to DAS. When McNabb

arrived in the parking garage, she gave the

Petitioner the documentation and the Petitioner gave

McNabb two dollars for parking. The Petitioner did

not. ask McNabb if she had picked up evaluations

from Liston’s office and the Petitioner did not see

McNabb leave the garage, e.g., assumed she was

going into the SOT. The Petitioner gave McNabb the

two dollars because McNabb had mentioned in one of

her visits to the Petitioner's office that she did not

have much money.

November 21“ - Third appeal denial was delivered to

the Petitioner's office by the reviewer, William

Kaczmarek. It was dated October 28, 2005 and the

Petitioner was wrongfully terminated that day.

Upon remand, the Petitioner will offer as supporting

documentation, a chronology of events with badge

reader information showing the hours McNabb was

at the Air Center where the Petitioner and McNabb

worked during the time the Petitioner submitted her

appeals.

2005 Dates and events: Discipline

September 15" — the Petitioner was called to Liston’s

office for an investigatory interview — performance

evaluation goals

September 22™ — the Petitioner was told to attend

meeting with Liston and Phros at the State Office

for a verbal reprimand

The Petitioner’s response to the accusation that she

lied to Liston and Phros about coming to the meeting

with McNabb follows:

“When I asked McNabb if there was anything she

could do downtown while I was at the tower, she said

she could pick up some ‘things’. I did ask her to drop

me off. I did not tell McNabb that I was tired, as

she claimed. I had just left a meeting with one of our

sections in the bureau which ran later than expected.

I did not tell her that I told Liston and Phros she was

downtown on business.”

Phros wrote his version of what the Petitioner said

about going downtown with McNabb in an email to

Connolly (HR) but Liston’s statements in an email to

Connolly agreed with the Petitioner's explanation.

The Petitioner pointed that out to Leckliter while she

was on the stand. He “thanked” her.

Regardless of the evidence presented at that SPBR

hearing (using the appellee’s own _ evidence

documents), Leckliter continued his accusations that

the Petitioner lied. Ile made that accusation

repeatedly in spite of the fact the email from Liston

to Connolly supported what the Petitioner said, not

] p

what Phros said in his email to Connolly.

October 4“ — summoned back to the air center from a

meeting with bureau customer for an interrogation

by Larry Phros that lasted approximately three

hours and, when it was over, Phos gave the

Petitioner a reprimand letter from Liston to sign. It

stated that “it had come to their attention that I had

been using state time, state resources and other state

staff for personal work on a performance evaluation

appeal and the letter said that I was on notice not to

work on performance evaluation appeals on state

time and my actions in this matter may result in

discipline up to and including removal”.

October 4" - At no point prior to October 4", 2005

did Liston or McNabb say anything to the Petitioner

about problems McNabb_ reported in her

complaint/document to Human Resources dated

September 29, 2005 with an exaggerated and

inaccurate section dated October 4th.

November 7“ - Called by Human Resources and told

to pick up a predisciplinary meeting notice

November 16" - Predisciplinary meeting with

Connolly and Phros’ The Petitioner describes the

meeting as “bizarre; e.g, when the Petitioner asked

Connolly for a copy of the questions, Connolly said

the Petitioner could have those after the meeting but

that she did not have to ask the questions on the

sheets. Of course that meant the answers that the

Petitioner wrote down in her notes would not

necessarily be for her questions. The Petitioner

began to write the questions as well as her responses

and Connolly said, “OK, Ill just ask the questions on

the sheets”. The Petitioner agreed, but now realizes

that she should have Kept writing everything.

Connolly wrote her ‘version’ of the predisciplinary

meeting and sent it to the agency director, Riley; that

version, however, did not accurately reflect what had

occurred at the meeting. Connolly begins her

story/report by saying that the Petitioner attempted

to use a tape recorder in the meeting. Such is not the

case The Petitioner showed Connolly the tape

recorder and asked Connolly if she could record the

meeting since she had no one attending with her.

Connolly said, ‘No, that will not be allowed’.

As the Petitioner leaned over to put her tape recorder

in her purse, Connolly said, ‘And that means you

have to turn it off, too’. The Petitioner brought it

back up to the table, showed Connolly that the tape

recorder was already off and told her ‘Il do not do

things like that.’

At the end of the meeting, someone was yelling to

Phros on his cell phone that he had in his pocket. He

said ‘I don’t know how that happened’. The

Petitioner said ‘I do’. Phros had obviously called

someone and left the connection open in order for

them to hear everything said in the “private”

meeting.

Connolly intentionally omitted Phros broadcasting of

the meeting in her report to Riley. The Petitioner

was not permitted to record the meeting but

Connolly said nothing to Phros about the cell phone.

Evidence of other irregularities in the hearing, will

be presented upon remand..

t .

November 18" - Connolly sent her inaccurate report

on the predisciplinary meeting to Barbara Riley,

ODJFS Director.

November 21" The Petitioner was wrongfully

terminated. She was given a removal letter from

Riley and a guard escorted her out of the air center.

The statements in the Respondent’s brief below are

taken out of context, and are designed to create an

image of a supervisor, namely the Petitioner, out of

control and not performing her duties. At the SPBR

hearing, the Petitioner provided customer surveys

14-

which proved that her bureau and she individually

were doing good work. Those statements were

ignored. Although the ODJFS business manager

stated that the Petitioner’s work was good, she was

given an evaluation citing poor performance.

At the SPBR hearing of November 2, 2006, Leckliter

stated:

“Beginning in late july 2005, Macon discussed her

appeal with McNabb on a daily basis through october

4", 2005, when the agency issued Macon an

abatement letter regarding her not utilizing either

her own or McNabb’s state time in pursuit of her

appeal and warning her not to retaliate against Ms.

McNabb.”

Such is clearly not the case. There could be no reason

to issue “an abatement letter” dated October 4, 2005

regarding work on aé third level performance

evaluation appeal that had already been submitted

to DAS September 26, 2005.

Leckliter continued:

“Unfortunately, Macon ignored this directive and

just a few days later confronted McNabb with the

suggestion that maybe McNabb should go back out

on DISABILITY and threatened her with a transfer

to the SCOTI. program. ”

Contrary to Leckliter’s version of McNabb’s

statements, the Petitioner did not go see McNabb

“just a few days later”. McNabb correctly stated that

the Petitioner went to see her after the meeting, e.g.,

Phros’ interrogation. McNabb told the Petitioner

several times about her significant mental disability,

and the Petitioner was very concerned about

McNabb. The Petitioner did not confront McNabb

nor threaten to transfer her to the SCOTI section, as

Leckliter alleges.

As flawed as it was, the Petitioner saw no statement

in McNabb’s writeup’ for Human Resources that the

Petitioner “confronted’ her nor ‘threatened to transfer

ath.

her to the SCOTI section’ That was a deliberate

attempt by Leckliter to vilify Macon as aggressive,

belligerent, deceitful, retaliatory ete.

Very little of McNabb’s report on the “problems” is

accurate .

It ts true that the Petitioner asked McNabb to find

and print the policy on the intranet, but the

Petitioner testified that there was very little

conversation.

It is also true that the Petitioner went to see McNabb

after the meeting, e.g. Phros’ interrogation

It is also true, as McNabb said, that “After the

meeting Mary came upstairs and told me she was

sorry.” The Petitioner readily concedes that she did

so.

McNabb then continues:

“She stated she didn’t realize that I was under so

much stress.” Such is certainly the case, but at that

point, McNabb started crying, said that she was so

sorry for saying “those things”, that she would not

answer any more of “their” questions, and that the

Petitioner could trust her. McNabb said that “they”

would have to “put me on the stand before I’ll answer

any more of their questions.” While making these

statements, McNabb continued crying

uncontrollably. Instead of confronting her, the

Petitioner consoled McNabb and told her not to

worry, ¢.g., that everything would be ok.

Prior to October 4", McNabb had come to the

Petitioner's office, many times, had talked about her

family problems, and had appeared to have tears in

her eyes; however, on this occasion, she was

considerably more agitated. It was the Petitioner’s

responsibility to consider McNabb’s welfare and try

to assist her.

Sensing that this was a crisis and a_ potentially

disastrous situation the Petitioner immediately

called Wiiliam Kaczmarek, the attorney in DAS to

-16-

whom she had sent the level three evaluation appeal,

and explained the difficuit situation. Mr. Kaczmarek

advised the Petitioner to tell McNabb that she could

go back out on medical leave and that she would not

have a waiting period to get her next paycheck. The

Petitioner did so, since the was concerned that

McNabb might again attempt to injure hurt herself.

In order to support her statements describing that

event, i.e., before the first SPBR hearing, the

Petitioner requested and received a subpoena for

William Kaczmarek. Hewever, when the Petitioner

attempted to serve the subpoena before the June

hearing date, she was told by DAS staff that

Kaczmarek no longer worked in DAS, and they did

not know how to locate him.

The Petitioner eventually discovered Mr.

Kaczmarek’s new work address and phone number,

more than three years later, and the Petitioner called

him. Kaczmarek said he did not remember

specifically what was said in the October 4", 2005

phone call, which is reasonable, given the interim

involved.

Kaczmarek is now an Assistant Prosecuting Attorney

in the Cuyahoga County Prosecutor’s Office, phone

number 216/443-7800.

The only conversation the Petitioner had with

McNabb concerning any employee’s mental issues

involved the Petitioner’s secretary, who was going to

be assigned to work for McNabb at some point.

The matter of the Petitioner’s having asked for a

copy of McNabb’s position description is ' readily

explained. Whenever there is a change in

responsibilities, e.g., Petitioner’s secretary who had

reported to the Petitioner now would be reporting to

McNabb, a change to the employee’s position

description is necessary.

The Court should also note that even while the

Petitioner was being disciplined on a routine basis,

Liston assigned her to replace Doug Bright as the

«| Ja

Deloitte contract manager. Doug worked for Joe

Duda.

The 1* SPBR hearing was June 13, 2006 and the

hearing officer was ALJ Marcie Scholl.

At that time, it appeared there could be a settlement

agreement reached. While the attorneys were

discussing various terms the agreement should have,

the Petitioner was in the hearing room talking to

Judge Scholl.

During that conversation, Judge Scholl told the

Petitioner that she has a daughter who had a

learning disability. At that time, she was unaware

that many of the allegations and accusations made in

the Petitioner’s case were made by a subordinate

who had a serious psychological disability.

The following colloquy occurred at the hearing of

September 26, 2006:

Mr. Lillard: And perhaps you said that. Did we

address the issue of estoppel and bar or merger and

bar?Ms. Scholl: We haven’t yet because I don’t

actually at this point even know why it is that she’s

being removed. So for me to determine that that

document that you’ve brought up is merger and bar,

I can’t do that because I don’t have the facts at hand

to do that, so we will proceed. Your motion can be

kept in abeyance. I'll rule on it either at the end of

the hearing or in my report and recommendation.

Page 23 of the SPBR transcript dated September 26,

2006:

Included in the proposed settlement from ODJFS

was a stipulation that the Petitioner would never

apply/work at ODJFS, again. The agreement was

rejected, for that reason. The Petitioner felt that this

condition was an insult to her personal and

professional integrity.

The following colloquy took place at the SPBR

hearing of November 2, 2006:

Ms. Bird: Your honor, Mr. Morrobeto is no longer

employed by the agency. ms. singleton is an

administrative assistant to ms. macon or within the

same bureau, I believe. and both witnesses have

been identified as character witnesses.

Page 116, section 3 of the SPBR hearing November 2,

2006

The following colloquy was had at the same hearing:

mr. Lillard: mr. morrobeto was ms. macon’s acting

section chief during the time period at issue and—

Interrupted by

Ms. Bird: mr. morrobeto was removed from—left

employment of ODJFS _ before Ms. macon’s

performance evaluation.

Id., at 117, section 1

Ms. Bird was clearly mistaken, Mr. Morabito had

never been ‘removed from’ his job in any bureau. Ms

Bird’s testimony implies that Mr. Morabito was no

longer working, e.g., left employment’ at ODJFS.

In fact, Mr. Morabito had accepted a section chief

position in the Ohio Department of Taxation in

March 2005 and he is there currently, .e.,

approximately 4 years later. He has a Bachelor

Degree of Science and is clearly a well-qualified and

valuable employee.

Mrs. Singleton was never assigned to the Petitioner’s

bureau. She was a dedicated, hard working, efficient

State employee who worked near the Petitioner’s

office and directly across from Judith McNabb.

Singleton has since retired; but both Ms. Singleton

and and Mr. Morabito are persons of great integrity

who exemplify the qualities of civil servants.

The colloquy continues

Judge Scholl: “okay. well, i don’t see any other

purpose that they would have except for that of

-19-

disparate treatment and they don’t meet the

guidelines under our disparate treatment rule of

being similarly situated in that i did not hear that

either one of them were a bureau chief, so—

and if they are character witnesses our rules

specifically state that we don’t allow character

testimony, so I don’t see where their testimony would

be relevant, so if you want to proffer their testimony

you can do so.”

Id.

Judge Scholl ruled that ODJFS had failed to prove

the insubordination charge but ruled for ODJFS on

charges of neglect of duty - which the Petitioner

contends is disproven by the Record - dishonesty

which the Petitioner also disputes - and failure of

good behavior. As to the latter charge, the Petitioner

submits that she is a professional and never has

there been any question concerning her behavior or

demeanor

When Judge Scholl instructed Mr. Lillard to dismiss

the Petitioner's witnesses, the result was that the

court only heard the testimony of the Respondent’s

witnesses. Such a hearing clearly contravenes the

requirements of Due Process.

ODJFS evidently contends that the Petitioner was

incompetent, manipulative and lazy, who only

received good evaluations while working for Mr.

Wolfe because he was responsible for hiring the

Petitioner..

Such is simply not the case.

In Kentucky, the Petitioner was a Computer Systems

Engineer working for Scott Hampton and her last

performance evaluation was all “exceeds.”

In Kentucky, the Petitioner was a Computer Systems

Analyst Chief working for Judy Kail and her last

performance evaluation was all “exceeds.”

In Kentucky, the Petitioner was an Applications

-20-

Development Branch Manager working for David

Wolte and her last evaluation was all “exceeds.” This

was a newly established branch and the Petitioner

was the first branch manager. The Petitioner and

her associates worked on new development projects

and were recognized by the Kentucky State

Legislature for the work done on one of those

projects, e.g., a child adoption module. Specifically,

the Petitioner wrote the program specifications for

coding the routine matching the prospective adoptive

parents to potential adoptees.

When the Petitioner retired from Kentucky State

Government, she had tenure and a relatively

substantial salary. She accepted the job of bureau

chief managing a new bureau in Ohio with a

probationary period and a waiting period to become a

classified employee in Ohio.

The Petitioners starting salary at ODJFS was

approximately $72,000, e.g., step one in pay grade 18.

When her probationary evaluation was due (ODJFS),

the Petitioner was instructed by her supervisor,

David Wolfe, to write a self evaluation. The

Petitioner asked the individuals who reported to her

to do an assessment of her work as a bureau chief at

ODJFS. These documents were submitted as

evidence but werc held to be irrelevant.

From the Brief of Appellee - Statement of the Case,

page 7:

In its brief to the court below, the Respondent stated:

“Macon commenced employment as a Data Systems

Administrator with ODJFS on December 10, 2001.

Macon had a working title of Bureau Chief and was

being paid at the rate of $41.50 per hour, of

$86,320.00 annually, at the time of her removal on

November 21, 2005.”

The Court should note that there is no higher

classified exempt position within ODJFS, and

$86,000.00 is not an unusual salary for the type of

work the Petitioner performed.

As a bureau chief, the Petitioner worked long hours

and was available 24/7. She went to many off site

meetings and paid for parking herself and never

sought reimbursement. The only time she submitted

a travel expense for reimbursement was when she

(and a_ business/ODJFS employee) traveled to

Cleveland for a meeting.

Case background information:

The Petitioner had an accident in April 2005, had

surgery and was working part time during the latter

part of her recovery time. Her previous supervisor,

David Wolfe, was discharged in June prior to her

return to full time work. Subsequently Liston

became her supervisor. The Petitioner returned to

work full time on June 26" 2005, only three week:

prior to the performance evaluation meeting July

15" with Liston. The rating on her evaluation was

‘unsatisfactory’. Liston’s account was found to be

more credible simply because it was standard

practice in Human Resources to always support the

highest level of management involved, as an

examination of the Bureau’s files will show

Because Liston rated her job performance

unsatisfactory, the Petitioner asked her for

supporting documentation Liston delivered her

documentation to the Petitioner’s office at 11:30 a.m

on July 25". Upon tendering the documents to the

Petitioner, Liston said that she had been told told

both Wolfe and the Petitioner were “in the Kentucky

Mafia.” Liston then proceeded to tell the Petitioner

about her own assignment on her last job. Liston

stated that she had been sent by her previous

company to close down one of their offices. She said

that included employees who were disabled. She

added that one man had no arms, just ‘flippers’

because his mother took some kind of medication

before he was born. She said when she pave him the

papers, he began to shake. Continuing her story,

Liston said she got back on the plane, had a glass of

wine and tears came down her face

After Liston had left the Petitioner’s office, the

Petitioner wrote a narrative using the statements

that Liston had made about Wolfe and the Petitioner

being in the Kentucky Mafia and took the report to

ODJFS Human Resources the next morning. Human

Resources sent the Petitioner to Joe Silver (rkEO)

Silver escorted the Petitioner to the Chief Inspector's

office, and she gave them her report. The only

response the Petitioner received from them was an

email advising her that they had investigated and

had found that no one was afraid of her

CONCLUSION

lor all the foregoing reasons, Petitioner Mary Macon

respectfully requests that this Court reverse the

decision of the Common Pleas Court and restore Ms

Macon to her previous position with Appellee ODJFS

with full back pay and all other benefits to which she

is entitied

Kespectfully submitted

Krank Yates, J

4602 Southern Parkway

Louisville, KY 40214

502-361-8422

Counsel for Petitioner

APPENDIX

Al-

Ohio Revised Code 124.34 Reduction in pay or

position - suspension - removal.

(A) The tenure of every officer or employee in the

classified service of the state and the counties, civil

service townships, cities, city health districts,

general health districts, and city school districts of

the state, holding a position under this chapter, shall

be during good behavior and efficient service. No

officer or employee shall be reduced in pay or

position, fined, suspended, or removed, or have the

officer's or employee’s’ longevity reduced or

eliminated, except as provided in section 124.32 of

the Revised Code, and for incompetency, inefficiency,

dishonesty, drunkenness, immoral conduct,

insubordination, discourteous treatment of the

public, neglect of duty, violation of any policy or work

rule of the officer’s or employee’s appointing

authority, violation of this chapter or the rules of the

director of administrative services or the commission,

any other failure of good behavior, any other acts of

misfeasance, malfeasance, or nonfeasance in office,

or conviction of a felony. The denial of a one-time pay

supplement or a bonus to an officer or employee is

not a reduction in pay for purposes of this section.

This section does not apply to any modifications or

reductions in pay authorized by division (Q) of

section 124.181 or section 124.392 or 124.3938 of the

Revised Code.

An appointing authority may require an employee

who is suspended to report to work to serve the

suspension. An employee serving a suspension in

this manner shall continue to be compensated at the

employee’s regular rate of pay for hours worked. The

disciplinary action shall be recorded in the

employee’s personnel file in the same manner as

other disciplinary actions and has the same effect as

a suspension without pay for the purpose of

recording disciplinary actions.

A finding by the appropriate ethics commission,

based upon a preponderance of the evidence, that the

facts alleged in a complaint under section 102.06 of

the Revised Code constitute a violation of Chapter

102., section 2921.42, or section 2921.43 of the

Revised Code may constitute grounds for dismissal.

Failure to file a statement or falsely filing a

statement required by section 102.02 of the Revised

Code may also constitute grounds for dismissal. The

tenure of an employee in the career professional

service of the department of transportation is subject

to section 5501.20 of the Revised Code.

Conviction of a felony is a separate basis for reducing

in pay or position, Suspending, or removing an officer

or employee, even if the officer or employee has

already been reduced in pay or position, suspended,

or removed for the same conduct that is the basis of

the felony. An officer or employee may not appeal to

the state personnel board of review or the

commission any disciplinary action taken by an

appointing authority as a result of the officer's or

employee’s conviction of a felony. If an officer or

employee removed under this section is reinstated as

a result of an appeal of the removal, any conviction of

a felony that occurs during the pendency of the

appeal is a basis for further disciplinary action under

this section upon the officer’s or employee's

reinstatement.

A person convicted of a felony immediately torfcits

the person’s status as a classified employee in any

public employment on and after the date of the

conviction for the felony. If an officer or employee is

removed under this section as a result of being

convicted of a felony or is subsequently convicted of a

felony that involves the same conduct that was the

basis for the removal, the officer or employee is

barred from receiving any compensation after the

removal notwithstanding any modification = or

disaffirmance of the removal, unless the conviction

for the felony is subsequently reversed or annulled.

Any person removed for conviction of a felony is

entitled to a cash payment for any accrued but

unused sick, personal, and vacation leave as

authorized by law. If subsequently reemployed in the

public sector, the person shall qualify for and accrue

these forms of leave in the manner specified by law

for a newly appointed employee and shall not. be

credited with prior public service for the purpose of

receiving these forms of leave.

As used in this division, “felony” means any of the

following:

(1) A felony that is an offense of violence as defined

in section 2901.01 of the Revised Code;

(2) A felony that is a felony drug abuse offense as

defined in section 2925.01 of the Revised Code;

(3) A felony under the laws of this or any other state

or the United States that is a crime of moral

turpitude;

(4) A felony involving dishonesty, fraud, or theft;

(5) A felony that is a violation of section 2921.05,

2921.32, or 2921.42 of the Revised Code.

(B) In case of a reduction, a suspension of more than

forty work hours in the case of an employee exempt

from the payment of overtime compensation, a

suspension of more than twenty-four work hours in

the case of an employee required to be paid overtime

compensation, a fine of more than forty hours’ pay in

the case of an employee exempt from the payment of

overtime compensation, a fine of more than twenty-

four hours’ pay in the case of an employee required to

be paid overtime compensation, or removal, except

for the reduction or removal of a_ probationary

employee, the appointing authority shall serve the

employee with a copy of the order of reduction, fine,

-A4-

Suspension, or removal, which order shall state the

reasons for the action.

Within ten days following the date on which the

order is served or, in the case of an employce in the

career professional service of the department of

transportation, within ten days following the filing of

a removal order, the employee, except as otherwise

provided in this section, may file an appeal of the

order in writing with the state personnel board of

review or the commission. For purposes of this

section, the date on which an order is served is the

date of hand delivery of the order or the date of

delivery of the order by certified United States mail,

whichever occurs first. If an appeal is filed, the board

or commission shall forthwith notify the appointing

authority and shall hear, or appoint a trial board to

hear, the appeal within thirty days from and after its

filing with the board or commission. The board,

commission. or trial board may affirm, disaffirm, or

modify the judgment of the appointing authority.

Ilowever, in an appeal of a removal order based upon

a violation of a last chance agreement, the board,

commission, or trial board may only determine if the

employee violated the agreement and thus affirm or

disaffirm the judgment of the appointing authority.

In cases of removal or reduction in pay for

disciplinary reasons, either the appointing authority

or the officer or employee may appeal from the

decision of the state personnel board of review or the

commission, and any such appeal shall be to the

court of common pleas of the county in which the

appointing authority is located, or to the court of

common pleas of Franklin county, as provided by

section 119.12 of the Revised Code.

time, or a fine, demotion, or removal, of a chief of

police, a chief of a fire department, or any member of

the police or fire department of a city or civil service

-AS-

township, who is in the classified civil service, the

appointing authority shall furnish the chief or

member with a copy of the order of suspension, fine,

demotion, or removal, which order shall state the

reasons for the action. The order shall be filed with

the municipal or civil service township civil service

commission. Within ten days following the filing of

the order, the chief or member may file an appeal, in

writing, with the commission. If an appeal is filed,

the commission shall forthwith notify the appointing

authority and shall hear, or appoint a trial board to

hear, the appeal within thirty days from and after its

filing with the commission, and it may affirm,

disaffirm, or modify the judgment of the appointing

authority. An appeal on questions of law and fact

may be had from the decision of the commission to

the court of common pleas in the county in which the

city or civil service township is situated. The appeal

shall be taken within thirty days from the finding of

the commission.

(D) A violation of division (A)(7) of section 2907.03 of

the Revised Code is grounds for termination of

employment of a nonteaching employee under this

section.

(E) As used in this section, “last chance agreement”

means an agreement signed by both an appointing

authority and an _ officer or employee of the

appointing authority that describes the type of

behavior or circumstances that, if it occurs, will

automatically lead to removal of the officer or

employee without the right of appeal to the state

personnel board of review or the appropriate

commission.

-A6o-

THE SUPREME COURT OF OHIO

Mary H. Macon Case No. 2009-1487

Vv. ENTRY

Ohio Department of Job

and Family Services

Upon consideration of the jurisdictional

memoranda filed in this case, the Court declines

jurisdiction to hear the case and dismisses the appeal as

not involving any substantial constitutional question.

(Franklin County Court of Appeals; No. O8AP1036)

Thomas J. Moyer

Chief Justice

-A7-

THE SUPREME COURT OF OHIO

Mary H. Macon Case No. 2009-1487

v. ENTRY

Ohio Department of Job

and Family Services

It is ordered by the Court that the motion for

reconsideration in this case is denied.

(Franklin County Court of Appeals; No. O8AP1036)

Thomas J. Moyer

Chief Justice

-A8-

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Mary H. Macon

Appellant-Appellant

Vv. No. 08AP-1036

(C.P.C. No. O7CVF-10-

14526)

Ohio Department of Job

and Family Services

Appellee-Appellee

DECISION

Rendered on June 30, 2009

Mary H. Macon, pro se

Richard Cordrey, Attorney General,

Timothy A. Lechlider, and

Pooje Alag Bird, for appellee

Appeal from the Franklin County

Court of Common Pleas

McGRATH, J.

[1 1] Appellant, Mary H. Macon, appeals

from the judgment of the Franklin County Court of

Common Pleas affirming the order of the State

Personnel Board of Review(“SPBR”), which affirmed

appellant’s removal from her position with appellee,

Ohio Department of Jobs and Family Services

(“ODJFS”). For the following reasons, we affirm.

[{2] Appellant commenced employment with

ODJFS on December 10, 2001. At the time of her

-A9

removal on November 21, 2005, appellant was in a

classified civil service position as bureau chief and at

the highest classified exempt position with ODJFS.

On July 15, 2005, Deputy Director Kimberly Liston

(“Liston”) presented appcllant with her annual

performance evaluation. Pursuant to appellee’s

policy, employees are afforded three steps to appeal

an evaluation. Displeased with her evaluation,

appellant requested a step 1 review of her evaluation

on July 20, 2005, and sais request was denied on

August 16, 2005. Appellant then requested a step 2

review of the evaluation that again was denied.

Appellant filed a step 3 request for evaluation by the

Department of Administrative Services (“DAS”), and

was notified by letter dated October 28, 2005 that

DAS denied the same.

[q3]} On July 26, 2005, Judith McNabb

returned from disability leave and was assigned as

appellant’s administrative assistant. According to

McNabb, appellant discussed her performance

evaluation appeal (“hereafter “appeal”), and used

McNabb’s time to aid in pursuit of her appeal.

McNabb described that appellant had her proofread

memoranda, organize materials, and conduct

voluminous copying of documents, all in support of

appellant’s appeal. McNabb testified that, on one

occasion, appellant called her at home on a weekend

and asked McNabb to organize documents for the

appeal. Also, on September 22, 2005, appellant asked

McNabb to drive her downtown for a meeting with

appellant’s supervisors and had McNabb wait until

appellant called McNabb to pick her up after the

meeting.

[4] Concerned about the amount of time

being devoted to appellant’s appeal and about the

tasks to which she was being assigned, McNabb

contacted Liston, who suggested McNabb meet with

Liston’s administrative assistant, Susan Beamer. On

September 29, 2005, McNabb met with Ms. Beamer,

Assistant Deputy Director Keith Nichols (“Nichols”),

and Labor Relations Officer Deborah Connoly. As a

result of this meeting, McNabb submitted a written

-A10-

statement with respect to her concerns, and ODJFS

commenced an investigation.

[15] Subsequent to the investigation, Liston

requested that ODJFS Labor Relations proceed with

a pre-disciplinary meeting. Said meeting was held,

and appellant was removed effective November 21,

2005, for neglect of duty, dishonesty, failure of good

behavior, and insub“dination.

[16] Appellant appealed her removal to

SPBR. After a hearing, an Administrative Law Judge

(ALJ), issued a report and recommendation finding

that appellee did not prove insubordination but did

prove the allegations of neglect of duty, dishonesty,

and failure of good behavior. In so finding, the ALJ

recognized that the matter came down to the

testimony of appellant and McNabb and _ that

appellant was not credible. In her decision, the ALJ

stated the following:

*** Appellant Macon used the power of

her position to assign Ms. McNabb, a

subordinate, to spend the majority of

her time working on an issue personal

to Appellant Macon and _ not in

furtherance of the business of the

bureau. Appellant Macon was dishonest

in her motives, intimidated her

subordinate, neglected her duties and

exhibited a failure of good behavior by

trying to absolve herself of any wrong

doing by trying to case Ms. McNabb in a

bad light.

(ALJ Report and Recommendation at 18-19.)

[17] | The SPBR reviewed the matter along

with appellant’s objections to the ALJ’s report and

recommendation. After such review, the SBPR

adopted the ALJ’s recommendation that the

appellant’s removal be affirmed. Appellant appealed

to the common pleas court pursuant to R.C. 119.12.

On December 27, 2008, the trial court affirmed the

SBPR’s decision and found the ALJ’s report and

-All-

recommendation was not unlawful or unreasonable,

nor against the manifest weight of the evidence. The

trial court also concluded the SBPR’s decision was

supported by reliable, probative, and substantial

evidence and was in accordance with law.

{{8] This appeal followed, and the appellant

brings the following six assignments of error for our

review:

1. THE LOWER COURT ERRED IN

CONCLUDING THAT MS. MACON’S

TERMINATION WAS LAWFUL AS

THE UNCONTROVERTED

EVIDENCE AT HEARING

ESTABLISHED THAT THERE IS NO

STATE LAW, ADMINISTRATIVE

RULE, POLICY, DIRECTIVE, WORK

RULE OR OTHER PRACTICE THAT

PROHIBITS A STATE EMPLOYEE

FROM INGAGING IN THE

PERFORMANCE KVALUATION

REVIEW PROCESS DURING STATE

TIME AND, THEREFORE, A PERSON

MAY NOT BE PUNISHED FOR

VIOLATING A NON-EXISTENT LAW,

RULE OR POLICY.

2. THE LOWER COURT ERRED IN

CONCLUDING THAT THE OUTCOME

OF A PERFORMANCE EVALUATION

REVIEW SOLELY BENEFITS THE

INTEREST OF AN EMPLOYEE AS

THE HISTORY OF THE CIVIL

SERVICE SYSTEM IN OHIO

CLEARLY ESTABLISHES THAT A

PROPERLY FUNCTIONING AND

RELIABLE MERIT SYSTEM

BENEFITS ALL THE PEOPLE OF

THE STATE.

3. THE LOWER COURT ERRED IN

FINDING THAT MS. MACON

Al2

ABUSED HER AUTHORITY AND

SPENT EXCESSIVE STATE ‘TIME

AND RESOURCES ON THE

PERFORMANCE EVALUATION

REVIEW AS THE EVIDENCE

ELICITED AT £THE HEARING

ESTABLISHED THAT MS MACON

AND HER SUBORDINAI& SPENT

NEGLIGIBLE WORK TIME ON THE

PERFORMANCE EVALUATION

APPEAL AND NEITHER WAS EVER

ACCUSED OF FAILING TO

PERFORM THEIR JOB DUTIES.

4 THE LOWER COURT ERRED IN

CONCLUDING THAT THE

ADMINISTRATIVE LAW JUDGE'S

REPORT AND RECOMMENDATION

COMPORTED WITH THE LAW AS

THE FACTS CLEARLY

ESTABLISHED THAT PROGRESSIVE

DISCIPLINE WAS WARRANTED FOR

A FIRST TIME VIOLATION OF A

NON-EXISTENT AND NON-

ARTICULATED LAW, RULE OR

POLICY _— THAT IN NO WAY

AFFECTED MS. MACON IN

PERFORMING HER JOB DUTIES.

5. THE LOWER COURT ERRED IN

FAILING TO FIND THAT MS. MACON

WAS IMPROPERLY DISCIPLINED

TWICE FOR THE SAME OFFENSE

WHEN THE FACTS SHOW THAT SHE

RECEIVED A LETTER OF

REPRIMAND ON OCTOBER 4, 2005

THAT WAS PLACED IN HER

PERSONNEL FILE AND WAS THEN

SUBSEQUENTLY TERMINATED

BASED ON THE SAME FACTUAL

ALLEGATIONS CONTAINED IN THE

WRITTEN REPRIMAND.

6. THE LOWER COURT ERRED IN

CONCLUDING THAT MS. MACON

WAS AFFORDED ADEQUATE DUE

PROCESS UNDER THE LAW AS THE

ORDER OF REMOVAL CONTAINED

NOTHING MORI TILAN A

RECITATION OF R.C. § 124.34(A) AND

DID NOT PROPERLY PLACK MS

MACON ON NOTICE OF THE

SPECIFIC REASONS FOR HER

TERMINATION AS REQUIRED BY

LAW.

19] Prior to addressing these assigned

errors, we must first address appcllant’s motion to

supplement the record filed after oral arguments

were heard in this matter. Ths information with

which appellant seeks to supplement the record

consists of Bureau of Customer Services Customer

Surveys that, according to appellant, are “critically

relevant.” (Apr. 24, Z009 Motion at 1.) Aside from

this conclusory statement, however, appellant

provides no basis why this court should yvrant her

motion of why this issue was not timely raised

Further, to the extent this motion can be construed

as a suggestion that the ALJ wrongfully denied

admission of this evidence, we note that this issue

has not been previously been raised and, as such, is

waived. See, Leslie v. Ohio Dept. of Dev., 171 Ohio

App.3d 55, 2007-Ohio-1170. Accordingly, appellant's

motion to supplement the record is denied.

[410] We now address appellant’s assigned

errors. In an administrative appeal, pursuant to R.C

119.12, the common pleas court considers the entire

record and determines whether the agency’s order is

supported by reliable, probative and substantial

evidence and is in accordance with law. Univ. of

Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 110

11. The Supreme Court of Ohio has defined reliable,

probative, and substantial evidence as follows:

-A14-

***”Reliable” evidence is dependable;

that is, it can be confidently trusted. In

order to be reliable, there must be a’

reasonable probability that the evidence

is true. (2) “Probative” evidence is

evidence that tends to prove the issue in

question; it must be relevant in

determining the issue. (3) “Substantial”

evidence is evidence with some weight;

it must have importance and value.

(Footnotes omitted.) Our Place, Inc. v. Ohio Liquor

Control Comm. (1992), 63 Ohio St.3d 570-71.

(V11] The common pleas court’s “review of

the administrative record is neither a trial de novo

nor an appeal on questions of law only, but a hybrid

review in which the court ‘must appraise all the

evidence as to the credibility of the witnesses, the

probative character of the evidence, and the weight

thereof.’ ” Lies v. Ohio Veterinary Med. Bd. (1981), 2

Ohio App.3d 204, 207, quoting Andrews v. Bd. Of

Liquor Control (1955), 164 Ohio St. 265, 270. Though

the findings of the agency are not conclusive, the

common pleas court must give due deference to the

administrative agency’s resolution of evidentiary

conflicts. Maurer v. Franklin Cty. Treasurer, 10 Dist

No. 07-AP-1027, 2008-Ohio-3468, J 15, citing Univ.

of Cincinnati at 111; see also Jones v. Franklin Cty.

Sheriff (1990), 52 Ohio St.3d 40, 43, quoting

Graziano v. Amherst Exempted Village Bd. Of Edn.

(1987), 32 Ohio St.3d 289, 293 (stating “due

deference must be accorded to the findings and

recommendations of the [ALJ] who is best able to

observe the demeanor of the witnesses and weigh

their credibility”).

[712] On appeal to this court, the standard of

review is more limited. Unlike the common pleas

court, a court of appeals does not determine the

weight of the evidence. Rossford Exempted School

Dist. Bd of Edn. v. State Bd. Of Edn., (1992), 63 Ohio

St.3d 705, 707. In reviewing the common pleas

court's determination that the agency’s order was

supported by reliable, probative and substantial

evidence, this court’s role is limited to determining

whether the common pleas court abused its

discretion. Roy v. Ohio State Med. Bd. (1992), 80

Ohio App.3d 675, 680. The term “abuse of discretion”

connotes more than an error of law of judgment; it

implies that the court’s attitude is unreasonable,

arbitrary or unconscionable. Blakemore v.

Blakemore, (1983), 5 Ohio St.3d 217, 219. However,

on the question of whether the agency’s order was in

accordance with law, this court’s review is plenary.

Univ. Hosp., Univ. of Cincinnati College of Medicine

vu. State Emp. Relations Bd. (1992), 63 Ohio St.3d

339, 343.

[113] In her first assignment of error,

appellant contends it was error for the trial court to

conclude her termination was lawful because there is

no rule, policy or other directive that explicitly

prohibits a state employee from engaging in the

activities in which she did, v.e., working on her

performance evaluation appeal during work hours.

Hence, appellant does not dispute that she worked

on her appeal while at work but, rather, it is

appellant’s contention that, because there is no

directive disallowing such conduct, she was without

notice that such conduct was in any way prohibited.

[J 14] However, there is more involved with

appellant’s termination than appellant expecting a

nominal amount of work time on her appeal as she

asserts under the assigned error, and this matter

concerns more than a violation of a “non-existent”

work rule. Appellant’s removal was based not simply

on appellant pursuing her appeal during work hours,

but on expending excessive amounts of time that

resulted in a neglect of her duties. Appellant’s

removal was also based on her utilizing McNabb’s

time and intimidating McNabb in a manner deemed

to be an abuse of a subordinate. We recognize

appellant disagrees with McNabb’s version of events;

however, such disputes of fact are to be resolved by

the ALJ.

{{15] The primary witnesses to testify at the

-Al6-

hearing were appellant and McNabb. McNabb

testified that appellant and McNabb worked on

appellant’s appeal in some form or another on a daily

basis. According to McNabb, she was asked by

appellant to discuss the matter, to sort through e-

mails, to put files together, to print things, to

proofread materials, and to provide her opinion with

respect to the appeal.

[116] McNabb testified that on one occasion

appellant had a meeting to attend with her

supervisors at the state office tower. Appellant asked

McNabb to drop her off at. the downtown meeting and

to wait until appellant called to be picked up. After

the meeting, appellant described to McNabb that she

requested the meeting be timely because she had

ridden with McNabb who was also attending a

meeting downtown. This, according to McNabb, was

completely untrue, as McNabb had no reason to be

downtown at that time and was there only because of

appellant’s request.

({¥17] On another occasion, appellant asked

McNabb to go downtown to file appellant’s appeal. A

few minutes later, however, appellant called McNabb

again and said she did not feel comfortable with that

because appellant did not want anyone to see

McNabb doing that for her. So, instead, appellant

asked if McNabb would drive downtown and meet

appellant in the parking garage with the appeal.

[718] At another time, appellant called

McNabb at home on a Sunday and asked if McNabb

would help organize documents for appellant’s

appeal. Additionally, McNabb testified that appellant

began making comments to McNabb indicating that

McNabb’s supervisors were “watching” her. After

appellant because aware that McNabb had met with

supervisory personnel regarding the use of her time,

McNabb testified appellant came to her and said that

maybe McNabb returned from her disability leave

too soon and that maybe shw should think about

going back on disability leave.

[1191 Appellant testified to the contrary and

that the amount of time spent on her appeal was

-A17-

negligible. Appellant testified she did ride downtown

with McNabb, but it was because McNabb indicated

she could go downtown and pick something up for

her husband. According to appellant, though she did

call McNabb at home on a Sunday, it was to offer

McNabb a place to go because McNabb previously

indicated she and her son would just be driving

around that day. Appellant disputed McNabb’s

testimony that she asked McNabb to work on

anything during that phone conversation. Appellant

also testified McNabb must have misunderstood

many of the comments made by appellant because at

no time was she trying to be intimidating.

[[20] The ALJ simply found appellant’s

testimony to not be credible, a finding within the

ALJ’s province as trier of fact. Long v. Ohio Dept. of

Job & Family Servs., 10 Dist. No. O8AP-691, 2009-

Ohio-643, 48. In assessing credibility, the AI.J

noted several examples of the inconsistent nature of

appellant’s testimony. Based on the problems noted

by the ALJ, the ALJ was not arbitrary in her

credibility determinations. The ALJ examined the

record, discussed the testimony of the witnesses,

including appellant’s inconsistencies, and made a

credibility determination, all of which are within the

ALJ’ province as trier of fact. See Naurer, supra. At

(20. Though appellant reargues her version of the

facts to us, as she did to the trial court, such in not a

reason to reverse the trial court’s judgment.

Accordingly, we overrule appellant’s first assignment

of error.

[21] In her second assignment of error,

appellant contends the trial court’s statements that

“lconducting mandatory employee reviews is a

function that furthers the interest of the employer”

and “{aJn appeal of the outcome of such review by an

individual employee furthers the interest of the

employee” are in error. To support her argument,

appellant proceeds to direct us to a number of

potential and tangential employer benefits that may

result if an employee successfully overturns a poor

performance evaluation on appeal.

a ihe

[22] While an employer may arguable receive

some tangential benefit from an employee’s appeal of

a performance review, there can be no doubt that

pursuit of the same is voluntary and primarily

furthers the interest of the employee. Moreover,

regardless of these challenged statements, the

finding of the trial court was that appellant spent an

excessive amount of time on her appeal to the

detriment of appellee. The evidence also

demonstrated that not only did appellant utilize her

own time, but also that of McNabb, appellant’s

subordinate. Thus, even if the challenged statements

of the trial court were in error, reversal would not be

warranted. Accordingly, we overrule appellant’s

second assignment of error.

[J 23] In her third assignment of error,

appellant contends it was error for the trial court to

find appellant spent an excessive amount of state

time and resources on her appeal because the

evidence actually established appellant and McNabb

devoted “negligible’ work time on the appeal.

[24] The amount of time spent on

appellant’s appeal came from the testimony of two

persons — appellant and McNabb. As previously

stated, the testimony established that appellant had

McNabb work on appellant’s appeal for a number of

hours each day over the course of several weeks.

Though appellant attempts to direct us to the

inconsistencies within McNabb’s testimony, we

reiterate that it was within the province of the ALJ

as trier of fact to assess credibility and determine the

weight of the evidence. McNabb was subject to cross-

examination during the hearing on all the issues

appellant currently raises before us, and appellant

presented her version of facts to the ALJ as well. We

have already found the AL.J was not arbitrary in her

credibility determinations and, as a result, we

overrule appellant’s third assignment of error.

[25] In her fourth assignment of error,

appellant contends it was error for the trial court to

conclude the ALJ’s report and recommendation

comported with law, as the _ facts’ establish

A 19

progressive discipline rather than removal was

warranted. Under Ohio Adm. Code 124-1-02(U),

progressive discipline is defined as:

[T]he act of disciplining an employee in

graduated increments and progressing

through a logical sequence, such as a

written reprimand for a first offence, a

short suspension for the second offense,

and a longer suspension or removal for

the third offense. The severity of the

offense may negate the use of

progressive discipline.

[126] Appellant, however, never raised this

issue before the trial court. A party generally waives

the right to appeal an issue that could have been, but

was not, raised in earlier proceedings. Leslie, supra

(applying this tenet of law to administrative

proceedings), citing MacConnell v. Ohio Dept. of

Commerce, 10" Dist. No. 04AP-433, 2005-Ohio-1960.

See also, King v. Ohio Dept. of Job & Family Serus.,

9" Dits. No. 22576, 2005-Ohio-4939.

[127] Even if we were to address this issue,

we cold only conclude it is without merit. Nichols

testified at the hearing that the disciplinary grid

serves as a recommendation for discipline, but is not

mandatory. Secondly, it is clear that certain offenses

could warrant severe discipline such as removal,

even for a first offense. According to Nichols, there

may be mitigating or aggravating circumstances that

alter how the grid is followed. Nichols testified that

appellant was in a high position of trust as a bureau

chief and was _ responsible for more than 70

employees and three major M.S.C systems. As such,

in Nichols’ opinion, such a position calls for the

“highest ethical and professional standards” and

appellant’s actions constituted an “egregious

offense.” (Tr. 159.) Hence, even if we were to consider

this assigned error, we would overrule it because the

grid providing for progressive’ discipline _ is

discretionary, not mandatory, and there is evidence

of aggravating circumstances in the record. See

-A20-

Gaither-Thompson v. Ohio Civ. Rights Comm., 176

Ohio App.3d 493, 2008-Ohio-2559 (while R.D. 124.34

describes the procedures governing an agency’s

termination of an employee in the classified civil

service, it does not require the agency to follow the

rules of progressive discipline unless the agency

agrees otherwise in a_— collective-bargaining

agreement); Swigert b. Kent State Univ., 11 Dist.

No. 2004-P-0037, 2005-Ohio-2258; Carmichael ov.

State Personnel Bd. Of Review (June 10, 1993), 10%

dist. 92AP-1707.

[{28] For the foregoing reasons, appellant’s

fourth assignment of error is overruled.

[29] In her firth assignment of error,

appellant contends the trial court erred in failing to

find appellant was improperly disciplined twice for

the same offense.

430) According to appellant, a letter dated

October 14. 2005 constituted a written reprimand for

appellant “ ‘using state time, state resources and

other staff for personal work on a_ performance

evaluation appeal.’ ” (Appellant’s brief at 28.)

Therefore, according to appellant, her termination a

month later for the same offense is barred by the

merger and bar rule of Ohio Adm. Code 124-3-05,

which provides:

(A) All incidents which occurred prior to

the incident for which a_non-oral

disciplinary action is being imposed, of

which an appointing authority has

knowledge and for which an employee

would be disciplined, are merged into

the non-oral discipline imposed by the

appointing authority. Incidents

occurring after the incident for which a

non-oral disciplinary action is imposed,

but prior to the issuance of the non-oral

disciplinary order, are not merged and

may form the basis for subsequent

discipline.

-A21-

Kk ok

(2) For purposes of this rule, non-oral

discipline includes written reprimands

ans suspension orders. It does not

include a written memorandum of oral

counseling or written warnings.

(B) Except as provided in rules 124-3-01

and 124-9-04 of the Administrative

Code, once discipline is imposed for a

particular incident, that incident shall

not be used as the basis for subsequent

discipline.

an appointing authority may rescind

non-oral discipline. Recission of non-oral

discipline under this rule shall not be a

bar to issuing another _ non-oral

discipline based upon the same

allegations.

[132] Appellant contends her November 21,

2005 termination should have been merged into and

barred by the written reprimand received on October

4, 2005. Though the letter is not titled a written

reprimand, appellant contends it contains all the

indicia, and, therefore, should be considered the

same. The trial court reviewed the letter and found it

does not mention any sanctions and does not convey

any suggestion that it is disciplinary in nature, and,

thus, the merger and bar rule is inapplicable. We

agree.

[32] Nichols testifies at the hearing that

the letter was not discipline, and the letter itself

states:

It has come to our attention that you

have been using state time, state

resources and other state staff for

personal work on a_ performance

-A22-

evaluation appeal. This letter puts you

on notice that utilizing state employees

on state time for your personal business

is improper and such actions will not be

tolerated. Your actions in this matter

may result in discipline up to and

including removal.

Further, any retaliatory actions against

employees under your’ supervisory

authori8ty or inappropriate comments

regarding the Deputy Director or any

other management personnel will result

in disciplinary action, up to and

including removal.

(Oct. 4, 2005 letter at 1.)

[133] As evidenced, the letter contains

reference to possible future discipline, but is not

itself disciplinary in nature. Because the letter is not

a written reprimand or other disciplinary measure,

the merger and bar does not apply, and appellant’s

fifth assignment of error is overruled.

[134] In her sixth assignment of error,

appellant contends it was error for the trial court to

conclude that she was afforded adequate due process

when she was not properly placed on notice of the

specific reasons for her termination. As explained in

Emanuel v. Columbus Recreation & Parks Dept.

(1996), 115 Ohio App.3d 592, because classified state

civil servants can be removed only for cause, they

possess a property interest in continued employment,

which right is protected by the Due Process Clause of

the Fourteenth Amendment. To compiy with such

process requirements, “An appointing authority is

required to afford an employee certain protections

before appointing authority is required to afford an

employee certain protections before terminating

employment, including oral or written notice of the

charges against the employee, an explanation of the

WwW

employer’s evidence, and an opportunity to be heard

before being terminated.” Id at 597, citing Cleveland

Bd. Of Edn. V. Loudermill (19850, 470 U.S. 532, 546-

48, 105 S.CT. 1487, 1495-97; Seltzer v. Cuyahoga Cty.

Sept of Human Servs. (1987), 38 Ohio App.3d 121,

122.

(35) As the trial court found, the record

undisputable reflects appellant was given a pre-

disciplinary hearing notice containing not only notice

of the charges, but also a description of the evidence

underlying the same. Further, the _ record

undisputably reflects appellant was given an

opportunity to be heard, and that appellant was

aware of her post-termination administrative rights

and procedures. Finally, we point out that appellant

was given full opportunity to present evidence and

challenge her removal before the SPBR and the

common pleas court. Swigart 949, citing Loudermill,

470 U.S. at 547, 105 S.CT. At 1496, fn. 12 (“ ”the

existence of post termination procedures is relevant

to the necessary scope of predetermination

procedures.’ ”); Robert v. Springfield Loc. School Dist.

Bd. Of Edn. (20010, 144 Ohio App.3d 38, 44 (“a

minimal opportunity to be heard at a pretermination

hearing is sufficient where the employee is entitled

to a full evidentiary hearing post-termination”).

Based on the foregoing, we are unable to find

appellant was not afforded the requisite due process

prior to her termination, and we overrule appellant’s

sixth assignment of error.

{{36]Because the common pleas court did not

abuse its discretion in concluding substantial,

reliable, and probative evidence supports the SBPR’s

decision upholding appellant’s discharge from

employment, we overrule appellant’s six assignments

of error and affirm the judgment of the Franklin

County Court of Common Pleas.

Motion to supplement denied;

judgment affirmed.

BRYANT and BROWN, JJ., concur.

-A24-

IN THE COURT OF COMMON PLEAS,

FRANKLIN COUNTY, OHIO

CIVIL DIVISION

MARY H. MACON,

Appellant, CASE NO. 07CVF-

10-14520

-Vs-

JUDGE TIMOTHY S. HORTON

OHIO DEPARTMENT OF JOB

AND FAMILY SERVICES

Appellee

DECISION AND ENTRY

AFFIRMING THE STATE PERSONNEL BOARD

OF REVIEW"S ORDER TO ADOPT THE

REPORT AND

RECOMMENDATION

Dated this 27” day of October, 2008

This matter is before the Court Appellant’s

Notice of Appeal, of her removal from her position

with Appellee Ohio Department of Job and Family

Services. For the reasoning that follows, this Court

AFFIRMS the decision.

Factual and Procedural History

Appellant was terminated from her position as

a Bureau Chief for Appellee. She was as a classified

civil servant at the time of her termination.

Appellant contends that her removal from

employment was unjustified.

Appellant appealed her removal to the State

Personnel Board of Review (“Board”). An evidentiary

hearing was conducted on September 26 and

-A25-

November 2, 2006 before an Administrative Law

Judge (“ALJ”). After the hearing, the ALJ found that

Appellee met its burden of proof and therefore

Appellant’s termination was warranted. Appellant

filed objections to the ALJ’s Report § and

Recommendation and Appellee filed its responses to

the objections. On October 11, 2007, the Board

adopted the AL.J’s Report and Recommendation and

affirmed Appellant’s removal. On October 25, 2007,

Appellant filed a Notice of Appeal to this Court. The

appeal is now ripe for consideration.

As a Bureau Chief, Appellant was responsible

for the supervision of approximately seventy

employees and also oversaw a_ budget of

approximately $30 million dollars. (Tr. Vol.2 at 45-

47; ODJFS Ex.1). Appellant was compensated at an

annual salary of $86,320.00.

Deputy Director Kim Liston conduct ed an

annual evaluation of Appellant’s performance, which

was given to Appellant on or about July 15, 2005.

(Tr. Vol.3 at 134; Macon Ex. 15). Appellant’s request

was denied. Appellant filed the step 2 review

request, which was also denied on or about

September 12, 2005. (Tr. Vol.3 at 135). Appellant

then commenced her last step review on September

26, 2005 to request that the matter be evaluated by

the Department of Administrative Services

(DAS”).(Tr. Vol.2 at 187). On October 28, 2005, DAS

denied the appeal. (ODJFS Ex.7).

Appellant was provided with a R.C. § 124.34

Order removing her from employment effective on

November 21, 2005. Appellant thereafter filed an

appeal with the Board. An evidentiary hearing was

conducted over two days. Prior to the hearing,

Appellant filed a motion with the Board to request

that the removal be disaffirmed as a matter of law.

Appellant raised similar issues at the hearing.

At the hearing, testimony was elicited by

Appellee to demonstrate that Appellant abused her

authority b instructing her subordinates to work on

her appeals. (Tr. Vol.3 at 13-19 & 27-28). Evidence

was also presented that Appellant used State time to

A26

work on her appeals and Appellant admitted to

having a state employee assist her with the appcals

(T'r. Vol.3 at 187-190 & 201-206)

On September 7, 2007, the ALJ issued a

Report and Recommendation. The ALJ determined

that Appellant was terminated for using an

inordinate amount of State time to prepare the step

appeals of her negative job performance. The ALJ

found that Appellant ordered a subordinate state

employce to help with her step appeal. The ALJ held

that Appellee met its burden in regard to that issue.

The ALJ also determined that Appellant was

lawfully removed based on her abuse of her position

Appellant filed objections to the Report and

Recommendation and Appellee’ responded. On

October 11, 2007, the Board adopted the ALJ’s

Report and Recommendation and affirmed

Appellant’s removal.

Standard of Review

Appellant was removed from her position with

by Appellee pursuant to R.C. § 124.34. R.C. §

124.34(A) provides:

The tenure of every officer or employee

in the classified service of the state and

the counties, civil service townships,

cities, city health districts, general

health districts, and city school districts

of the state, holding a position under

this chapter, shall be during good

behavior and efficient service. No officer

or employee shall be reduced in pay or

position, fined, suspended, or removed,

or have the officer's or employee’s

longevity reduced or eliminated, except

as provided in section 124.32 of the

Revised Code, and for incompetency,

inefficiency, dishonesty, drunkenness,

immoral] conduct, insubordination,

discourteous treatment of the public,

A2]

neglect of duty, violation of any policy or

work rule of the officer’s or employce’s

appointing authority, violation of thi:

chapter or the rules of the director of

administrative services or the

commission any other failure of ood

behavior, any other acts of misfeasance,

malfeasance, or nonfeasance in office, o1

conviction of a fclony

Review by this Court of an administrative agency 1

governed by R.C. § 119.12 and the multitude of cases

addressing that section such as Univ. of Cincinnati v

Conrad (1980), 63 Ohio St.2d 108. The Conrad court

held that in an administrative appeal filed pursuant

to R.C. §& 119.12, a tmal court must review the

agency's order to determine whether it is supported

by reliable, probative and substantial evidence and is

in accordance with law. The Conrad court set forth at

pages 111] and 112 that

In undertaking this hybrid form of

review, the Court of Common Plea:

must vive t he due deference to the

administrative resolution of evidentiary

conflict = s Kor example, when the

evidence before the court consists of

conflicting testimony of approximately

equal weight, the court should defer to

the determination of the administrative

body, which, as the fact-finder, had the

opportunity to observe the demeanor of

the witnesses and weigh their

credibility. Ilowever, the findinys of the

agency are by no means conclusive

Where the court, in its appraisal of the

evidence, determines that there exist

legally sipnificant reasons for

discrediting certain evidence — relied

upon by the administrative body, and

necessary to its determination, the court

a a

and substantial evidence. Therefore, the Board’s

Decision to adopt the Report and Recommendation

and the resulting affirmation of Appellant’s removal

was appropriate.

In addition, Appellant argues that her

termination was inappropriate because’ she

previously received a written reprimand as her

sanction for wrongful conduct and therefore the

merger and bar rule should apply. Appellant reles

on a letter dated October 4, 2005 as evidence of her

contention. Ohio Admin. Code 124-3-05 provides:

(A) All incidents which occurred prior to

the incident for which a_non-oral

disciplinary action is being imposed, of

which an appointing authority has

knowledge and for which an employee

could be disciplined, are merged into the

non-oral discipline imposed by the

appointing authority. Incidents

occurring after the incident for which a

non-oral disciplinary action is being

imposed, but prior to the issuance of the

non-oral disciplinary order, are not

merged and may form the basis for

subsequent discipline.

(1) For purposes of this rule, knowledge

of an appointing authority will include

knowledge of those persons’ with

authority to impose non-oral discipline

for the appointing authority.

(2) For purposes of this rule, non-oral

discipline includes written reprimands

and suspension orders. It does not

include a written memorandum of oral

counseling or written warnings.

(B) Except as provided in rules 124-3-01

and 124-9-04 of the Administrative

Code, once discipline is imposed for a

particular incident, that incident shall

not be used as the basis for subsequent

discipline.

an appointing authority may rescind

non-oral discipline. Rescission of non-

oral discipline under this rule shall not

be a bar to issuing another non-oral

discipline based upon the’ same

allegations.

Appellant argues that the removal surrounded the

same allegations of wrongdoing as contained within

the October 4, 2005 letter. Appellant contends that

the October 4, 2005 letter was a formal written

reprimand and therefore pursuant to the merger and

bar rule, she could not be twice reprimanded for the

same conduct.

Appellant argues that the October 4, 2005

letter, though not titled as a written reprimand

should have been viewed as such. Appellant concedes

that there exists no formal definition for a written

reprimand but instead submits that the October 4,

2005 letter contained all of the necessary elements.

Appellee responds that the rule is inapplicable

as the letter was not a written reprimand nor

disciplinary in nature. Appellee argues that the

letter is not on standard IL.abor Relations form and

fails mention any reprimand. Appellee submits that

the letter was in the form of corrective counscling,

which specifically is not considered discipline.

(ODJFS Ex.4 at VI, Procedures, D. Corrective

Counseling at p.6). Appellee relies on the testimony

of Assistant Deputy Director Nichols who testified

that the letter was not discipline. (Tr.Vol2 at 197).

A complete review of the October 4, 2005 letter

confirms Appellee’s arguments. The letter does not

mention reprimand or any sanction. The letter

merely contains an inference of possible future

discipline. Please note the following from the body of

the letter:

This letter puts you on notice that

utilizing state employees on state time

of 32—

for your personal business is improper

and such actions will not be tolerated.

Your actions in this matter may result

in_ discipline up to and_ including

removal. (Emphasis sided.(ODJFS

Ex.4.)

This Court finds that the above-noted language does

not convey any suggestion that the letter was

discipline. Therefore, this Court finds that

Appellant’s arguments concerning the merger and

bar rule are unpersuasive.

Appellant argues that she denied due process

because the formal termination notice did not give

her adequate notice of the charges for which she was

being terminated. Appellant relies on R.C. § 14.34(B)

and Seltzer v. Cuyahoga Cty. Dept. of Human Serv.

(1987), 38 Ohio App.3d 121, to support her argument.

The syllabus of Se/tzer reads as follows:

1. A classified civil servant has a

property right in continued

employment, which right is protected by

the Due Process Clause of the

Fourteenth Amendment.

2. A classified civil servant who is about

to be discharged is entitled to oral or

written notice of the charges against

him, an explanation of the employer's

evidence, and an opportunity to be

heard before he is discharged, coupled

with post-termination administrative

procedures as provided by R.C. 124.34.

3. A public employer which intends to

discharge a classified civil servant must

provide the subject employee with

legally sufficient notice of an impending

loss of his property interest so as to

afford the employee an opportunity to

respond prior to termination.

Appellant’s due process claim requires that this

Court review the procedures used by Appellee that

led to Appellant’s termination. The evidence

demonstrates that Appellant does not deny the

A33

receipt of the termination notice. It ts also

undisputed that Appellant had an opportunity to be

heard before she was discharged and she has clearly

been aware of her post-termination administrative

rights and procedures. Appellant’s sole clai8m is that

the Order of Removal she received on Nobe3mber 21,

2005 was somehow deficient when it only listed:

“Violation of the Employer's Disciplinary Policy: F26

- Violation of ORC 124.34, to wit: Neglect of Duty,

Dishonesty, Failure of Good Behavior,

insubordination.”

In response. Appellee argues that Appellant

failed to exhaust her administrative remedies.

Appellee argues that if Appellant was confused, she

could have utilized Ohto Admin. Code 124-13-03 to

request a more definite statement. Appellee further

argues that Appellant received due _ process,

specifically referring to the November 7, 2005 notice

of a pre-disciplinary meeting. Having reviewed the

procedures followed by Appellee and the applicable

case law, this Court determines that Appellant was

afforded due process of law. Appellant’s arguments to

the contrary are without merit.

After an independent review of the record and

the law, this Court finds that the Order of the State

Personnel Board of Review to Affirm the Report and

Recommendation of the ALJ was appropriate. The

Al.J’s Report and Recommendation was not unlawful

or unreasonable, nor was it against the manifest

weight of the evidence and it was in accordance with

the law. Accordingly, the Court hereby AFFIRMS

the Decision of the Board. This is a final appealable

order.

ITIS SO ORDERED.

Timothy Horton,

Judge

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