[Cite as Taralla v. Union Hosp. Assn., Inc., 2011-Ohio-4006.] COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
TALLY TARALLA : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellant : Hon. Julie A. Edwards, J. : Hon. Patricia A. Delaney, J. -vs- : : UNION HOSPITAL ASSOCIATION, : Case No. 10AP110045 INC., ET AL. : : Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2009AA121321
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 11, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
MICHAEL C. JOHNSON HARRY C. E. TOLHURST, III P.O. Box 1007 405 Chauncy Avenue, NW New Philadelphia, OH 44663 P.O. Box 668 New Philadelphia, OH 44663
SUSAN M. SHEFFIELD 20 West Federal Street 3rd Floor Youngstown, OH 44503 Tuscarawas County, Case No. 10AP110045 2
Farmer, P.J.
{¶1} On November 11, 2002, appellant, Tally Taralla, became employed with
appellee, Union Hospital Association, Inc., as a first-assist surgical scrub technician.
Appellant was discharged on December 5, 2008.
{¶2} Thereafter, appellant filed for unemployment compensation. On January
5, 2008, appellant was granted unemployment compensation benefits. An employer's
appeal hearing was held by the review commission on November 2, 2009. By decision
dated November 18, 2009, the hearing officer reversed the award of unemployment
compensation benefits, found a $10,140.00 overpayment, and ordered repayment.
Appellant filed a request for review which was denied on December 9, 2009.
{¶3} On December 18, 2009, appellant filed an appeal with the Court of
Common Pleas of Tuscarawas County. A hearing was held on April 12, 2010. By
judgment entry filed October 29, 2010, the trial court affirmed the commission's
decision.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT DECISION TO UPHOLD THE COMMISSION'S
DECISION WAS UNLAWFUL, UNREASONABLE OR AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE." Tuscarawas County, Case No. 10AP110045 3
{¶6} Appellant claims the trial court erred in finding the commission's decision
was not unlawful, unreasonable or against the manifest weight of the evidence. We
disagree.
{¶7} R.C. 4141.282 governs unemployment compensation appeals to the court
of common pleas. Subsection (H) states the following:
{¶8} "The court shall hear the appeal on the certified record provided by the
commission. If the court finds that the decision of the commission was unlawful,
unreasonable, or against the manifest weight of the evidence, it shall reverse, vacate, or
modify the decision, or remand the matter to the commission. Otherwise, the court shall
affirm the decision of the commission."
{¶9} Our role in reviewing the trial court's decision is to determine whether the
trial court appropriately applied the standard of unlawful, unreasonable or against the
manifest weight of the evidence. Tzangas, Plakas & Mannos v. Ohio Bureau of
Employment Services, 73 Ohio St.3d 694, 1995-Ohio-206. While we are not permitted
to make factual findings or determine the credibility of witnesses, we have the duty to
determine whether the commission's decision is supported by the evidence in the
record. Hall v. American Brake Shoe Co. (1968), 13 Ohio St.2d 11; Kilgore v. Board of
Review (1965), 2 Ohio App.2d 69. This same standard of review is shared by all
reviewing courts, from common pleas courts to the Supreme Court of Ohio. We are to
review the commission's decision sub judice and determine whether it is unlawful,
unreasonable, or against the manifest weight of the evidence. We note a judgment
supported by some competent, credible evidence will not be reversed as against the Tuscarawas County, Case No. 10AP110045 4
manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54
Ohio St.2d 279.
{¶10} Unemployment compensation can be denied if the claimant quit his/her
job without just cause or was discharged for just cause. R.C. 4141.29(D)(2)(a). "Just
cause" is defined as "that which, to an ordinarily intelligent person, is a justifiable reason
for doing or not doing a particular act." Irvine v. Unemployment Compensation Board
(1985), 19 Ohio St.3d 15, 17, quoting Peyton v. Sun T.V. (1975), 44 Ohio App.2d 10,
12. The Irvine court at 17 further stated "each case must be considered upon its
particular merits." In reviewing such a determination, we are not permitted to reinterpret
the facts or put our "spin" to the facts.
{¶11} The commission determined appellant was discharged for just cause.
Appellant argues there was "zero" direct testimony as to the issue of just cause, and the
only evidence presented was hearsay. We note in the informal setting of the
Unemployment Compensation Review Commission, otherwise inadmissible testimony is
permitted:
{¶12} "To restate the above, evidence which might constitute inadmissible
hearsay where stringent rules of evidence are followed must be taken into account in
proceedings such as this where relaxed rules of evidence are applied. Consequently, it
was the referee's function, as the trier of fact, to consider the evidence listed above,
along with the credibility of the individuals giving testimony before the board (in this
case, the claimant), in reaching his decision." Simon v. Lake Geauga Printing Co.,
(1982), 69 Ohio St.2d 41, 44.
{¶13} R.C. 4141.281(C)(2) provides in pertinent part: Tuscarawas County, Case No. 10AP110045 5
{¶14} "The principles of due process in administrative hearings shall be applied
to all hearings conducted under the authority of the commission. In conducting
hearings, all hearing officers shall control the conduct of the hearing, exclude irrelevant
or cumulative evidence, and give weight to the kind of evidence on which reasonably
prudent persons are accustomed to rely in the conduct of serious affairs. Hearing
officers have an affirmative duty to question parties and witnesses in order to ascertain
the relevant facts and to fully and fairly develop the record. Hearing officers are not
bound by common law or statutory rules of evidence or by technical or formal rules of
procedure. No person shall impose upon the claimant or the employer any burden of
proof as is required in a court of law."
{¶15} Appellant argues the only evidence offered to establish the alleged
violations was hearsay via an email sent to appellee's RN Director of Medical Services,
Carma Clarke, and it was directly contradicted by her own sworn testimony; therefore,
her testimony should have been given greater weight than Ms. Clarke's.
{¶16} The hearing officer's decision dated November 18, 2009 denying appellant
unemployment compensation benefits was based upon the following reasoning:
{¶17} "Claimant was discharged by Union Hospital Association, Inc. due to
inappropriate conduct. The evidence and testimony presented establishes that claimant
came to the emergency department of the hospital where she worked looking for her
nineteen-year-old son, used hospital employees to gain access to patient areas of the
emergency department without waiting in any patient lines and without explaining her
purpose for visiting the emergency department, and then shouted and acted
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[Cite as Taralla v. Union Hosp. Assn., Inc., 2011-Ohio-4006.] COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
TALLY TARALLA : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellant : Hon. Julie A. Edwards, J. : Hon. Patricia A. Delaney, J. -vs- : : UNION HOSPITAL ASSOCIATION, : Case No. 10AP110045 INC., ET AL. : : Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2009AA121321
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 11, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
MICHAEL C. JOHNSON HARRY C. E. TOLHURST, III P.O. Box 1007 405 Chauncy Avenue, NW New Philadelphia, OH 44663 P.O. Box 668 New Philadelphia, OH 44663
SUSAN M. SHEFFIELD 20 West Federal Street 3rd Floor Youngstown, OH 44503 Tuscarawas County, Case No. 10AP110045 2
Farmer, P.J.
{¶1} On November 11, 2002, appellant, Tally Taralla, became employed with
appellee, Union Hospital Association, Inc., as a first-assist surgical scrub technician.
Appellant was discharged on December 5, 2008.
{¶2} Thereafter, appellant filed for unemployment compensation. On January
5, 2008, appellant was granted unemployment compensation benefits. An employer's
appeal hearing was held by the review commission on November 2, 2009. By decision
dated November 18, 2009, the hearing officer reversed the award of unemployment
compensation benefits, found a $10,140.00 overpayment, and ordered repayment.
Appellant filed a request for review which was denied on December 9, 2009.
{¶3} On December 18, 2009, appellant filed an appeal with the Court of
Common Pleas of Tuscarawas County. A hearing was held on April 12, 2010. By
judgment entry filed October 29, 2010, the trial court affirmed the commission's
decision.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT DECISION TO UPHOLD THE COMMISSION'S
DECISION WAS UNLAWFUL, UNREASONABLE OR AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE." Tuscarawas County, Case No. 10AP110045 3
{¶6} Appellant claims the trial court erred in finding the commission's decision
was not unlawful, unreasonable or against the manifest weight of the evidence. We
disagree.
{¶7} R.C. 4141.282 governs unemployment compensation appeals to the court
of common pleas. Subsection (H) states the following:
{¶8} "The court shall hear the appeal on the certified record provided by the
commission. If the court finds that the decision of the commission was unlawful,
unreasonable, or against the manifest weight of the evidence, it shall reverse, vacate, or
modify the decision, or remand the matter to the commission. Otherwise, the court shall
affirm the decision of the commission."
{¶9} Our role in reviewing the trial court's decision is to determine whether the
trial court appropriately applied the standard of unlawful, unreasonable or against the
manifest weight of the evidence. Tzangas, Plakas & Mannos v. Ohio Bureau of
Employment Services, 73 Ohio St.3d 694, 1995-Ohio-206. While we are not permitted
to make factual findings or determine the credibility of witnesses, we have the duty to
determine whether the commission's decision is supported by the evidence in the
record. Hall v. American Brake Shoe Co. (1968), 13 Ohio St.2d 11; Kilgore v. Board of
Review (1965), 2 Ohio App.2d 69. This same standard of review is shared by all
reviewing courts, from common pleas courts to the Supreme Court of Ohio. We are to
review the commission's decision sub judice and determine whether it is unlawful,
unreasonable, or against the manifest weight of the evidence. We note a judgment
supported by some competent, credible evidence will not be reversed as against the Tuscarawas County, Case No. 10AP110045 4
manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54
Ohio St.2d 279.
{¶10} Unemployment compensation can be denied if the claimant quit his/her
job without just cause or was discharged for just cause. R.C. 4141.29(D)(2)(a). "Just
cause" is defined as "that which, to an ordinarily intelligent person, is a justifiable reason
for doing or not doing a particular act." Irvine v. Unemployment Compensation Board
(1985), 19 Ohio St.3d 15, 17, quoting Peyton v. Sun T.V. (1975), 44 Ohio App.2d 10,
12. The Irvine court at 17 further stated "each case must be considered upon its
particular merits." In reviewing such a determination, we are not permitted to reinterpret
the facts or put our "spin" to the facts.
{¶11} The commission determined appellant was discharged for just cause.
Appellant argues there was "zero" direct testimony as to the issue of just cause, and the
only evidence presented was hearsay. We note in the informal setting of the
Unemployment Compensation Review Commission, otherwise inadmissible testimony is
permitted:
{¶12} "To restate the above, evidence which might constitute inadmissible
hearsay where stringent rules of evidence are followed must be taken into account in
proceedings such as this where relaxed rules of evidence are applied. Consequently, it
was the referee's function, as the trier of fact, to consider the evidence listed above,
along with the credibility of the individuals giving testimony before the board (in this
case, the claimant), in reaching his decision." Simon v. Lake Geauga Printing Co.,
(1982), 69 Ohio St.2d 41, 44.
{¶13} R.C. 4141.281(C)(2) provides in pertinent part: Tuscarawas County, Case No. 10AP110045 5
{¶14} "The principles of due process in administrative hearings shall be applied
to all hearings conducted under the authority of the commission. In conducting
hearings, all hearing officers shall control the conduct of the hearing, exclude irrelevant
or cumulative evidence, and give weight to the kind of evidence on which reasonably
prudent persons are accustomed to rely in the conduct of serious affairs. Hearing
officers have an affirmative duty to question parties and witnesses in order to ascertain
the relevant facts and to fully and fairly develop the record. Hearing officers are not
bound by common law or statutory rules of evidence or by technical or formal rules of
procedure. No person shall impose upon the claimant or the employer any burden of
proof as is required in a court of law."
{¶15} Appellant argues the only evidence offered to establish the alleged
violations was hearsay via an email sent to appellee's RN Director of Medical Services,
Carma Clarke, and it was directly contradicted by her own sworn testimony; therefore,
her testimony should have been given greater weight than Ms. Clarke's.
{¶16} The hearing officer's decision dated November 18, 2009 denying appellant
unemployment compensation benefits was based upon the following reasoning:
{¶17} "Claimant was discharged by Union Hospital Association, Inc. due to
inappropriate conduct. The evidence and testimony presented establishes that claimant
came to the emergency department of the hospital where she worked looking for her
nineteen-year-old son, used hospital employees to gain access to patient areas of the
emergency department without waiting in any patient lines and without explaining her
purpose for visiting the emergency department, and then shouted and acted
inappropriately in the patient areas of the emergency department. Claimant knew or Tuscarawas County, Case No. 10AP110045 6
should have known that her conduct was highly inappropriate and would not be
tolerated. Claimant's actions constitute misconduct that will serve to suspend her
unemployment compensation benefits. Claimant was discharged by Union Hospital
Association, Inc. for just cause in connection with work. As claimant's separation was
disqualifying, her Application for Determination of Benefit Rights is disallowed. Based
upon this decision, claimant received unemployment compensation benefits to which
she was not entitled and she will be ordered to repay those benefits to the Ohio
Department of Job and Family Services."
{¶18} As stated supra, this court is not permitted to make factual findings or
determine the credibility of witnesses. Our duty is to determine whether the decision of
the hearing officer and the commission is supported by the evidence in the record.
{¶19} In support of its argument that appellant was discharged for just cause,
appellee presented Employer's Exhibit 1, an e-mail made contemporaneously to the
incident:
{¶20} "I just wanted to let you know about an incident we had tonight at 2030. At
2030, a surgical scrub tech Tally Taralla came into the ER registration window and
states 'surgery'. We assumed she ment (sic) that she had a surgery case and needed
to be buzzed through. She came into the ER side doors and walked into the nurses
station and was stating to the unit clerk Ryann Wells that she needed to find her son,
that he had called and said he was somewhere in the hospital and he was crying. The
unit clerk told her that her son was not here on the big board and she stormed out to
registration and demanding angrily to know where her son was and stating 'why can't
you people find my son' 'what's wrong with you people in this hospital'. This event was Tuscarawas County, Case No. 10AP110045 7
witnessed by many ER staff members and all were appalled by her behavior. Becky
Britton, Tiffanie Grimm, Deb Toth, Ryann Wells and Dr. Pleshinger. This employee was
very inappropritate (sic) barging into the nurses station where many patient records are
kept, she was yelling at the main ER registration where many patients heard her. I
hope none of them have a surgical procedure and recognize her when she's in surgery,
as this does not reflect well for our hospital. Thank you for your time. I hope this matter
is looked into."
{¶21} Ms. Clarke testified she received the e-mail and investigated the incident
with the parties named therein. November 2, 2009 T. at 10-11. Through her
investigation, she found their statements to be consistent with each other's and the
statements made in the email. Id. at 11.
{¶22} Appellant consistently denied that she used her status to gain access to
the ER over a line of waiting public patients. However, appellant stated the following on
direct:
{¶23} "Q. Alright. Now, when you first got there, what did, and they saw you,
how did you get beeped in?
{¶24} "A. There was a line (inaudible) so I looked at the lady, the registered
nurse and said, 'Will you beep me in please?' and she beeped me in and I went around
back and there was nobody there but somebody (inaudible)." Id. at 22.
{¶25} Appellant denied she was out of control, aggressive, and made
inappropriate statements concerning the hospital, but conceded she was not calm and
was upset and frustrated. Id. at 18. After being told her son could not be located in the
hospital computer, appellant asked the receptionist to look at least two more times. Id. Tuscarawas County, Case No. 10AP110045 8
at 21. Appellant denied yelling or screaming, but admitted to "ongoing" concerns about
her attitude as intimidating and scary to fellow employees. T. at 19-20.
{¶26} Upon review, we find given the testimony of appellant and Ms. Clarke,
there was sufficient credible evidence in the record to substantiate the trial court's
affirmance of the commission's decision.
{¶27} The sole assignment of error is denied.
{¶28} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio
is hereby affirmed.
By Farmer, P.J.
Edwards, J. and
Delaney, J. concur.
_s/ Sheila G. Farmer__________________
_s/ Julie A. Edwards__________________
_s/ Patricia A. Delaney________________
JUDGES
SGF/sg705 Tuscarawas County, Case No. 10AP110045 9
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
TALLY TARALLA : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : UNION HOSPITAL ASSOCIATION, : INC., ET AL. : : Defendants-Appellees : CASE NO. 10AP110045
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Tuscarawas County, Ohio is affirmed.
Costs to appellant.