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Love v. Ohio State University

Court of Appeals of Ohio, Tenth District

June 18, 2013

Phillip Love, Appellant-Appellant,
v.
Ohio State University, Appellee-Appellee.

APPEAL from the Franklin County Court of Common Pleas. C.P.C. No. 10CVF07-11221

Phillip Love, pro se.

Michael DeWine, Attorney General, and Drew C. Piersall, for appellee.

DECISION

BROWN, J.

{¶1} This is an appeal by appellant, Phillip Love, from a judgment of the Franklin County Court of Common Pleas affirming an order of the State Personnel Board of Review ("SPBR") in which the SPBR overruled objections to a report and recommendation of an administrative law judge and affirmed an order of removal issued by appellee, The Ohio State University.

{¶2} The following factual background is drawn primarily from the report and recommendation of the administrative law judge, as well as from the trial court's decision. Appellant was employed by appellee from February 2004 to August 2009 as an office manager for the Office of Student and Alumni Services ("OSAS"), within appellee's School of Physical Activity and Educational Services ("PAES").

{¶3} Appellant's duties included sitting at the front desk and handling requests of undergraduate students for information or appointments, assisting in answering phone calls, providing clerical support to the director of OSAS, and managing and updating the computerized office calendar.

{¶4} Appellee has a written progressive discipline policy. The steps for progressive discipline involve: (1) a documented verbal counseling, (2) a written reprimand, (3) a minor suspension, (4) a major suspension, (5) a second major suspension (depending on years of service), and (6) termination.

{¶5} On August 13, 2007, appellant's supervisor, Jennifer Collis, provided appellant a written performance review for the period from March 2006 t0 May 2007. In the review, appellant was criticized with respect to "task completion, timeliness, punctual attendance, and supervision of student workers." (State's Exhibit, 14.) On November 19, 2007, appellant received a three-day suspension for insubordination and/or neglect of duty based upon his (1) being tardy on at least 18 occasions, (2) failing to take lunch at the time specified by his supervisor, and (3) difficulty in following through with assignments.

{¶6} On June 23, 2008, Collis provided appellant a written review for the period from May 2007 to May 2008. In that review, appellant was criticized for difficulty in following tasks such as "turning in leave forms in a timely manner, keeping track of time, maintaining appropriate coverage at the front desk, sending 'sign in' emails upon arrival to work in the morning, returning from lunch within a reasonable time period, and maintaining the office calendar." (State's Exhibit, 13.)

{¶7} In July 0f 2008, Amy Lahmers replaced Collis as appellant's supervisor. Lahmers soon determined there were discrepancies in appellant's reported arrival and departure times as compared to Lahmers' observation of his arrival and departure times. Lahmers determined that an objective method of tracking and documentation would be for appellant to email his arrival and departure times to her. On August 5, 2008, Lahmers sent an email to appellant "requesting that you send me an email to document the times when you come and go from the office." On August 7, 2008, Lahmers sent appellant another email reminding him of the obligation to email his arrival and departure times. On August 8, 2008, appellant received a written reprimand for reporting to work late, and Lahmers again reminded appellant of his obligation to email his arrival and departure times. Appellant never complied with Lahmers' directive to email his arrival and departure times during the 13 months in which Lahmers was appellant's supervisor.

{¶8} On October 22, 2008, Dr. Chris Zirkle, a faculty member of the PAES, complained to Lahmers that he and one other faculty member had received poor service while interacting with appellant. Lahmers relayed that information to appellant during a verbal counseling session. On October 30, 2008, appellant received a four-day suspension for excessive tardiness, neglect of duty, and insubordination.

{¶9} In November 2008, Lahmers determined appellant had used an excessive amount of sick leave, and that he had taken more sick leave than he had actually earned. On November 21, 2008, Lahmers provided appellant a letter of scrutiny, requiring that he submit medical documentation with requests for sick leave. In that letter, Lahmers again repeated her directive to appellant to email his arrival and departure times. On March 11, 2009, David Hamann, the Human Resources Administrator for PAES, sent an email to appellant reminding him to follow his supervisor's directive to document his time-keeping by emailing his arrival and departure times. On May 21, 2009, Lahmers held a meeting with appellant and discussed several issues, including his attendance, his inefficiency in the performance of tasks, and his refusal to document his time-keeping by email.

{¶10} In June 2009, Lahmers observed appellant at the front desk downloading software programs onto his personal laptop computer during work hours. Lahmers instructed appellant not to use his personal computer at work, nor to utilize the Internet at the front desk. In an email sent by appellant to Lahmers on June 10, 2009, appellant stated that the computer at the front desk was slow. Lahmers reported the matter to a technical staff. On June 15, 2009, Lahmers ordered additional RAM for the front desk computer, which was installed within one week of appellant reporting the problem.

{¶11} In an email dated June 10, 2009, Hamann reminded appellant to submit medical documentation to support his requests for sick leave. Some of appellant's sick leave was subsequently disapproved for failure to provide required documentation.

{¶12} On June 15, 2009, Lahmers sent an email to appellant reminding him that he was required to wear a name badge at the front desk. Several days later, Lahmers mentioned wearing the name badge to appellant; on June 22, 2009, Lahmers again noted appellant was not wearing the name badge. According to Lahmers, appellant never followed the directive to wear the badge at work.

{¶13} On June 30, 2009, Lahmers provided appellant a written performance review for the period of June 2008 to May 2009. In that review, appellant was criticized for excessive tardiness, insubordination, failure to complete his timesheets accurately or in a timely manner, failure to maintain staff calendars, conducting personal business at the front desk, and refusing to submit leave request forms for days in which he was late reporting to work.

{¶14} By letter to the Office of Human Resources, dated July 3, 2009, Hamann requested that appellee terminate appellant's employment. Hamann submitted the letter at the request of appellant's supervisor, Lahmers. On July 16, 2009, appellee notified appellant that the department had requested corrective action against him. On August 21, 2009, appellee served appellant with an order of removal, pursuant to R.C. 124.34, on the grounds of inefficiency, insubordination, and neglect of duty.

{¶15} On August 28, 2009, appellant appealed his removal to the SPBR, alleging he was "disparately treated." By order issued on October 14, 2009, an administrative law judge issued an order for appellant to provide appellee with certain discovery information with respect to whether he intended to offer evidence of disparate treatment. Appellant, however, did not notify either appellee or the administrative law judge of his intent to offer evidence of disparate treatment.

{¶16} On February 9, 2010, the administrative law judge conducted a hearing on appellant's appeal. The administrative law judge issued a report on June 2, 2010, recommending that the order of removal be affirmed. Appellant filed objections to the report and recommendation. On July 15, 2010, the SPBR issued an order adopting the recommendation of the administrative law judge and affirming appellant's removal from his employment. Appellant filed an appeal with the trial court ...


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