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State ex rel. Haywood v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

June 25, 2013

State of Ohio ex rel. Jewel Haywood, Relator,
v.
Industrial Commission of Ohio and ABM Janitorial Midwest, Inc., Respondents.

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

Philip J. Fulton Law Office, and Chelsea J. Fulton; Law Offices of William M. Wohl, and Judith R. Swirsky, for relator.

Michael DeWine, Attorney General, and LaTawnda N. Moore, for respondent Industrial Commission of Ohio.

Willacy, Lopresti & Marcovy, and Thomas P. Marotta, for respondent ABM Janitorial Midwest, Inc.

DECISION

McCORMAC, J.

{¶ 1} Relator, Jewel Haywood, commenced this original action requesting a writ of mandamus that orders respondent Industrial Commission of Ohio to vacate its June 7, 2011 order denying her temporary total disability compensation beginning October 27, 2010 on eligibility grounds, and to enter an order granting the compensation.

I. History

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth Appellate District Court of Appeals, this matter was referred to a magistrate who issued the appended decision, including findings of fact and conclusions of law. In his decision, the magistrate determined this court should deny relator's request for a writ of mandamus on the basis that she voluntarily departed from her employment, precluding her receipt of temporary total disability compensation.

{¶ 3} As the magistrate explained, here the issue was whether relator actually violated a company rule that prohibits an employee from using a cell phone while on duty or from taking a cell phone into the work area. The commission, in its June 7, 2011 order, determined that relator violated the work rule by taking the cell phone into the work area, even before she received a call from her daughter in what can be described only as exigent circumstances. As the magistrate aptly noted, "the exigent circumstances arose after relator had violated the rule, as the commission's order finds. The exigent circumstances did not prompt or compel relator to take her cell phone with her to her work area at the start of her shift on July 6, 2010." (Appendix, Magistrate's decision, at ¶ 40.)

{¶ 4} Accordingly, the magistrate determined the commission did not abuse its discretion in finding a violation of the rule and that the subsequent emergency circumstances did not excuse the rule violation. Although relator challenges the language of the rule that suggests this violation can result in reprimand, suspension, or discharge, the magistrate properly noted the rule cannot be viewed in isolation from the three disciplinary warnings relator received on August 28, and December 30, 2009, and June 24, 2010. The latest of the three suspended relator for three work days for, in part, having her cell phone charging on the wall in the work area. The August 28, 2009 notice warned that further incidents would be cause for suspension or termination. The December 30, 2009 notice warned of suspension. As the magistrate concluded, "the work rule and the three warnings, the last of which resulted in a three-day work suspension, made it clear that 'depending [o]n the severity' meant that discharge was the likely next step in the event of another cell phone violation." (Appendix, Magistrate's decision, at ¶ 48.)

{¶ 5} Finding the rule, coupled with the prior violations, not to be ambiguous and concluding relator violated the work rule before ever receiving a phone call from her daughter, the magistrate determined the requested writ should be denied.

II. Objections

{¶ 6} Relator filed two objections to the magistrate's conclusions of law:

[I]The Magistrate Erred As a Matter of Law by Finding that Employer's Work Rule Was Sufficiently Clear.
[II]The Magistrate Reweighed Evidence in Contravention of State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203, 248-249.

Because relator's two objections are interrelated, we address them jointly.

{¶ 7} Relator violated her employer's work rule. The rule prohibited her having her cell phone in the work area and she, despite three cited violations of that rule, continued to take her cell phone into her work area. Rather, relator contests the clarity of the rule, suggesting she did not understand the "severity" of the punishment that could ensue from a violation.

{¶ 8} The magistrate adequately addressed relator's contentions, noting, as did the commission, that relator was well aware of the consequences, especially in light of the results of her prior violations of the same rule. Accordingly, relator knew, as a result of prior violations, that a subsequent violation could result in her being discharged from employment.

{¶ 9} Relator alternatively contends that the work rule here is unreasonable in light of the circumstances. On the evening at issue, relator received a phone call from her daughter whose babysitter had expired from a heart attack. Relator's daughter, in her teens, was understandably distraught and sought to speak with her mother. Failing to contact anyone at the main desk, relator's daughter called relator, and relator accepted the call. Relator suggests her actions can be deemed nothing but reasonable, and to allow her employer to terminate her employment under such circumstances falls outside the parameters of the voluntary abandonment doctrine. As the magistrate properly noted, however, relator's violation occurred when she took her cell phone into her work area, not when she subsequently accepted the call from her daughter.

{¶ 10} Here, relator knew she violated a work rule, the rule was clear and, coupled with her previous violations, advised her of her potential for discharge from employment. Moreover, the reasonableness of taking the phone call is not the issue in the work rule violation; rather, her having taken her cell phone into her work area in the first place was the violation. Accordingly, the commission did not abuse its discretion in failing to address whether the work rule was reasonable in light of the emergency circumstances posed. Although we recognize the compelling nature of relator's receiving the phone call from her daughter, the violation of the work rule occurred prior to that phone call and after relator had violated the same work rule on three prior occasions. Relator's objections are overruled.

III. Disposition

{¶ 11} Following independent review, we find the magistrate has properly determined the pertinent facts and applied the salient law. Accordingly, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law. In accordance with the magistrate's decision, we deny the requested writ of mandamus.

Objections overruled; writ denied.

KLATT, P.J, and CONNOR, J, concur

McCORMAC, J., retired, formerly of the Tenth Appellate District, assigned to active duty under the authority of the Ohio Constitution, Article IV, Section 6(C).

APPENDIX

Rendered on January 10, 2013

IN MANDAMUS

MAGISTRATE'S DECISION

KENNETH W. MACKE

{¶ 12} In this original action, relator, Jewel Haywood, requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission"), to vacate its June 7, 2011 order denying her temporary total disability ("TTD") compensation beginning October 27, 2010 on eligibility grounds, ...


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