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Pavement Technology, Inc. v. Fugate

Court of Appeals of Ohio, Eighth District

July 3, 2013

PAVEMENT TECHNOLOGY, INC. PLAINTIFF-APPELLANT
v.
RODNEY M. FUGATE, ET AL. DEFENDANTS-APPELLEES

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-778581

ATTORNEYS FOR APPELLANT Andrew M. Szilagyi Kelly S. Lawrence Frantz Ward, L.L.P.

ATTORNEYS FOR APPELLEES For Rodney M. Fugate, et al. Jeffrey M. Silver stein Jason P. Matthews Jeffrey M. Silverstein & Assoc.

For Director, O.D.J.F.S. Mike DeWine State Attorney General

BY Laurence R. Snyder Assistant Attorney General

BEFORE: Jones, J., Stewart, A.J., and Celebrezze, J.

JOURNAL ENTRY AND OPINION

LARRY A. JONES, SR., J.

{¶ 1} Plaintiff-appellant Pavement Technology, Inc. appeals the trial court's judgment affirming the decision of the Unemployment Compensation Review Commission finding that defendant-appellee Rodney Fugate was terminated from his employment with Pavement Technology without just cause. We affirm.

I. Procedural History

{¶ 2} In July 2011, Fugate filed an application for determination of unemployment benefits. In August 2011, the application was granted on the finding that Fugate was discharged from his employment with Pavement Technology without just cause. However, the review commission vacated the finding, finding instead that Fugate had been discharged with just cause. Fugate appealed the initial determination of benefits; the determination was affirmed by defendant-appellee, the Director, Ohio Department of Job and Family Services, Office of Unemployment Compensation.

{¶ 3} In September 2011, Fugate filed an appeal from the director's redetermination. The director transferred jurisdiction of the matter to the review commission, which held a hearing in October 2011. Fugate testified at the hearing as well as Pavement Technology's human resources and safety risk manager, Larry Maderia. The hearing officer affirmed the director's redetermination.

{¶ 4} Fugate filed a request for review, which was allowed. In December 2011, the review commission ordered that a new decision be issued. The decision was issued in February 2012, and it found that Fugate was discharged without just cause. Pavement Technology appealed the decision to the court of common pleas. The matter was briefed, and in October 2012, the trial court issued its judgment affirming the review commission's determination that Fugate was discharged without just cause.

II. Facts

{¶ 5} Fugate was employed by Pavement Technology as a laborer and driver. On Friday, July 1, 2011, while on duty and driving a Pavement Technology vehicle, Fugate was involved in two separate accidents. The first accident occurred at approximately 12:00 p.m. There were no reported injuries, but Fugate was cited for failure to use caution while changing lanes.

{¶ 6} The second accident occurred early in the 3:00 p.m. hour. Fugate was not cited and there were no reported injuries, but the vehicle that collided with the vehicle Fugate was driving was "totaled."

{¶ 7} Following the second accident, at approximately 3:19 p.m., Fugate called Maderia, Pavement Technology's safety and risk manager, to inform him of the accident. Maderia told Fugate to call the police, which Fugate did. Moments later, Fugate called Maderia back. According to Maderia, he told Fugate that after he finished with the police, he needed to get a drug screen at a specific facility located near Pavement Technology.

{¶ 8} The two spoke again at approximately 4:45 p.m. and, according to Maderia, he told Fugate that Fugate needed to follow-up with him after the drug screen. Maderia testified that the facility he referred Fugate to for the drug screen was the same facility where Fugate had taken his pre-employment drug screen. According to Maderia, after leaving the scene of the second accident, Fugate drove past the facility to park his vehicle at Pavement Technology.

{¶ 9} Fugate's version of the events differed. According to Fugate, he was informed for the first time during the 4:45 p.m. conversation with Maderia, not the 3:19 p.m. conversation, that he needed to "immediately" take a drug screen. According to Fugate, Maderia did not direct him to any specific facility, because he "didn't care where [he] went, " he just wanted him to "go take one."

{ΒΆ 10} Fugate testified that he drove the vehicle to Pavement Technology, but did not pass the drug screening facility. At Pavement Technology, he called his boss (not Maderia) and told him his hours worked and gas used. He then drove in his own vehicle to the drug screening facility, but it was after 5:00 p.m. when he arrived and it was closed. Fugate ...


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