IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Chris Maurer,
:
Appellant-Appellant,
:
No. 07AP-1027
v.
:
(C.P.C. No. 07CVF-04-5469)
Franklin County Treasurer,
:
(REGULAR CALENDAR)
Appellee-Appellee.
:
O P I N I O N
Rendered on July 10, 2008
Michael A. Moses,
for appellant.
Ron O'Brien,
Prosecuting Attorney,
Amy L. Hiers
and
Denise L. Hanson,
for appellee.
APPEAL from the Franklin County Court of Common Pleas.
BRYANT, J.
{¶1}
Appellant, Chris Maurer, appeals from a judgment of the Franklin County
Court of Common Pleas affirming the order of the State Personnel Board of Review
("board") that upheld the decision of appellee, Franklin County Treasurer, to terminate
appellant's employment. Appellant assigns a single error:
WHETHER THE DECISION OF THE LOWER COURT
AFFIRMING THE ORDER OF THE STATE PERSONNEL
BOARD OF REVIEW WAS AN ABUSE OF DISCRETION
INSOFAR AS THE ORDER OF THE BOARD UPHOLDING
No. 07AP-1027
2
THE REMOVAL OF CHRIS MAURER FROM HIS POSITION
WAS NOT SUPPORTED BY RELIABLE, PROBATIVE AND
SUBSTANTIAL EVIDENCE AND WAS NOT IN ACCOR-
DANCE WITH LAW.
Because reliable, probative, and substantial evidence supports the board's order, and the
order is in accordance with law, we affirm.
{¶2}
According to the evidence presented at the hearing before the board's
Administrative Law Judge ("ALJ"), appellant began employment with appellee in
December 1999, working in public relations and special products, but at the time of the
incident subject of this appeal he served as a tax collector in the Delinquent Tax Division
of appellee's office.
{¶3}
On September 8, 2005, pursuant to his employment with appellee,
appellant was assigned to work at appellee's "booth" at the Reynoldsburg Tomato
Festival from 4:00 p.m. to 9:00 p.m. Although designated a "booth," in reality the set-up
included a long table with two chairs behind it, separated by approximately 18 inches from
tables to the right and left of appellee's table. To appellee's right was the Catalyst Church
booth; a middle-aged man and woman began working at the church booth after appellant
arrived at appellee's booth.
{¶4}
At approximately 7:00 p.m., Faith and Jennifer Thoms arrived to staff the
Catalyst Church booth. Both in their early 20s, they were at the festival not only to speak
with persons who came to the booth but to interact with children through some of the
games at their booth. After introductions and brief conversation with appellant and his co-
worker, Billie Grier, Faith and Jennifer turned their focus to their booth.
No. 07AP-1027
3
{¶5}
While Faith was engaged in play with some children, appellant came to the
church booth and sat in one of the chairs. Appellant began playing with the bubble gun
that was there for children's entertainment and, as a result, the liquid or bubbles from the
gun spilled onto his hands and a map he had. Appellant went to Faith and wiped them on
her thigh. After calling Faith's sister-in-law Jennifer to him, he wiped the map on Jennifer's
thigh and on her skirt; she told him to stop. The two women attempted to resume their
activities, but appellant again called Jennifer over to him. He put his hand up the side of
her above-the-knee skirt and then wiped his soapy hands down her thigh and her calf.
Faith intervened, standing between them while she answered a phone call, and told him
to stop. Meanwhile, the woman Jennifer had been speaking with walked away after
witnessing appellant's actions. During his time at their booth, appellant repeatedly talked
about wanting a massage and inquired who would give him one.
{¶6}
Ultimately, appellant got up from the chair in the church's booth to put
candy wrappers in the trash, and both women sat in the chairs so appellant could no
longer occupy them. Appellant's co-worker, Billie Grier, was not present during the
incident, as appellant had sent her out of the booth area for various reasons. When Grier
returned, Jennifer and Faith told her to tell appellant they were underage so he would
leave them alone. Grier advised that supplying appellant with such information probably
would not help, as women in the office did not trust him with their teenage daughters.
{¶7}
Later that evening, Faith told a friend who came to help at the booth what
had occurred. She then told her parents and Jennifer's husband. Following a suggestion
that she advise the treasurer's office of the incident, Jennifer reported it the following
morning. Susan Hamilton investigated the incident on behalf of appellee and obtained
No. 07AP-1027
4
formal statements from both Faith and Jennifer Thoms. On completing her investigation,
she wrote a summary that recommended appellant's immediate termination. After
discussions with the treasurer, Hamilton mailed appellant a notice of pre-disciplinary
hearing, advising "it has been alleged that you acted and spoke inappropriately and thus
sexually harassed two women at the Reynoldsburg Tomato Festival on Thursday,
September 8, 2005 between the hours of 7:00 p.m. and 9:00 p.m." The letter further
informed appellant that his conduct violated R.C. 124.34(A) because "it constitutes
immoral conduct, discourteous treatment of the public, mistreatment of the public and
sexual harassment * * *." Appellant was placed on paid administrative leave.
{¶8}
Following a September 15 hearing, the treasurer issued an order of
removal, terminating appellant's employment with appellee, effective September 23. The
order pointed out both that appellee was paying appellant, at the time of the incident, to
work at appellee's booth at the festival and that appellant previously was disciplined for
engaging in inappropriate behavior. Finally, the order stated appellant's conduct at the
festival constituted "immoral conduct, discourteous treatment of the public, mistreatment
of the public and sexual harassment in violation of R.C. 124.34 and also in violation of
Office policies."
{¶9}
Appellant appealed to the board, where an ALJ conducted a hearing and
issued a report and recommendation. The ALJ accepted the testimony of Faith and
Jennifer Thoms, found appellant's testimony on his own behalf to lack credibility, and
concluded appellee sustained its burden of proving the pertinent allegations in the
removal order. Accordingly, the ALJ determined appellee did not abuse its discretion in
separating appellant from employment with that office. Following consideration of
No. 07AP-1027
5
appellant's objections, the board adopted the ALJ's report and recommendation and
affirmed the removal that terminated appellant's employment with appellee.
{¶10}
Appellant appealed to the Franklin County Court of Common Pleas,
contending: (1) reliable, probative, and substantial evidence does not support the board's
decision adopting the findings of fact and conclusions of law of the ALJ concerning
appellant's actions toward the public, and the decision is not in accordance with law, (2)
reliable, probative, and substantial evidence does not support the board's decision
adopting the ALJ's conclusion that appellant's actions warranted termination because of
his prior sexual harassment training, and the decision is not in accordance with law, and
(3) the board wrongly adopted the ALJ's decision to deny appellant's motion to exclude
evidence.
{¶11}
In affirming the board's order, the common pleas court observed that
appellant's argument about the lack of reliable, probative, and substantial evidence to
support the board's order in effect urged the court to overturn the credibility
determinations the ALJ made, as the evidence before the ALJ supported each of the
findings and conclusions in her report. The common pleas court, however, did not find
any reason to disagree with the ALJ's credibility determinations. Moreover, because
appellant's mistreatment of the public was a major offense in appellee's progressive
discipline policy that permitted appellant's immediate discharge from employment, the
court concluded appellant's conduct toward Jennifer and Faith Thoms warranted
termination of his employment with appellee.
{¶12}
Appellant appeals, assigning a single error. Within that assignment of error,
appellant asserts three issues: (1) whether reliable, probative, and substantial evidence
No. 07AP-1027
6
supports the board's order; (2) whether the common pleas court erred in affirming the
board's order and concluding that appellant's conduct warranted immediate termination;
and (3) whether the common pleas court erred in affirming the board's order that
overruled appellant's motion to exclude evidence prior to the record hearing.
{¶13}
The General Assembly granted adjudicatory power to the board under R.C.
124.03 and 124.34. Pursuant to those statutes, the board is authorized to hear an
employee's appeal from an appointing authority's removal order and to "affirm, disaffirm,
or modify" the order. In enacting the statutes, the General Assembly granted the board
broad powers to review an appointing authority's decision and to disaffirm an employee's
discharge not only where the appointing authority acted arbitrarily, unreasonably, or
unlawfully, but also where the board finds in an independent review that the decision
regarding discharge is improper or unnecessary.
State ex rel. Ogan v. Teater
(1978), 54
Ohio St.2d 235, 245, reaffirmed,
Jones v. Franklin Cty. Sheriff
(1990), 52 Ohio St.3d 40,
43;
Ohio State Univ. v. Kyle,
Franklin App. No. 06AP-168, 2006-Ohio-5517, at ¶23. See,
also,
Beeler v. Franklin Cty. Sheriff
(1990), 67 Ohio App.3d 748, 752 (stating "[c]ourts
have interpreted R.C. 124.03 to provide great latitude to the [board] to alter decisions of
appointing authorities").
{¶14}
In cases of removal for disciplinary reasons, R.C. 124.34 permits an
employee or an appointing authority to appeal a decision of the board to the court of
common pleas; R.C. 119.12 sets forth the procedure to be followed in such an appeal.
According to R.C. 119.12, the common pleas court may affirm the board's decision if,
upon its consideration of the entire record and any additional evidence the court admits,
the court finds not only that reliable, probative, and substantial evidence supports the
No. 07AP-1027
7
board's decision, but that the decision is in accordance with law. R.C. 119.12;
Univ. of
Cincinnati v. Conrad
(1980), 63 Ohio St.2d 108, 110-111;
Andrews v. Bd. of Liquor
Control
(1955), 164 Ohio St. 275, 280;
Gallagher v. Ross Cty. Sheriff,
Franklin App. No.
06AP-942, 2007-Ohio-847, at ¶13. "Reliable" evidence is dependable evidence that has a
reasonable probability of being true; "probative" evidence is relevant evidence that tends
to prove the issue in question; "substantial" evidence is evidence with some weight,
having importance and value. Id., citing
Our Place, Inc. v. Ohio Liquor Control Comm.
(1992), 63 Ohio St.3d 570, 571.
{¶15}
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. Veterinary Med. Bd.
(1981), 2
Ohio App.3d 204, 207, quoting
Andrews,
at 280;
Kyle,
at ¶26. The findings of the agency
are not conclusive, but the common pleas court must give due deference to the
administrative agency's resolution of evidentiary conflicts.
Conrad,
at 111;
Gallagher,
at
¶14;
Kyle,
at ¶27. See, also,
Jones,
at 43, citing
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 recommendation of the [ALJ] * * * because it is the [ALJ] who is best able
to observe the demeanor of the witnesses and weigh their credibility").
{¶16}
The determination of whether reliable, probative, and substantial evidence
supports the board's decision is primarily a question of the absence or presence of the
requisite quantum of evidence.
Beeler,
at 753, citing
Andrews.
See, also,
Gallagher,
at
¶16, citing
Dudukovich v. Lorain Metro Housing Auth.
(1979), 58 Ohio St.2d 202, 207. If
No. 07AP-1027
8
the common pleas court finds after its appraisal of all the evidence that reliable, probative,
and substantial evidence does not support the board's decision, or the decision is not in
accordance with law, the court may reverse, vacate, or modify the board's decision. R.C.
119.12;
Conrad,
at 110;
Andrews,
paragraph one of the syllabus. Where the evidence
supports the board's decision, the common pleas court must affirm the board's decision
and has no authority to modify the penalty.
Ogan,
supra;
Henry's Café, Inc. v. Bd. of
Liquor Control
(1959), 170 Ohio St. 233;
Kyle,
at ¶27. Under such circumstances, the
common pleas court may not substitute its judgment for that of the board. Id., citing
Steinbacher v. Louis
(1987), 36 Ohio App.3d 68, citing
Ogan,
supra;
Traub v. Warren Cty.
Bd. of Commrs.
(1996), 114 Ohio App.3d 486, 491.
{¶17}
An appellate court's review is more limited than that of the common pleas
court.
Pons v. Ohio State Med. Bd.
(1993), 66 Ohio St.3d 619, 621. In reviewing the
common pleas court's determination of whether reliable probative, and substantial
evidence supports the board's order, the appellate court's role is limited to determining
whether the common pleas court abused its discretion. Id.;
Gallagher,
at ¶15, citing
Lorain
City Bd. of Edn. v. State Emp. Relations Bd.
(1988), 40 Ohio St.3d 257, 261. On the
question of whether the board's order is in accordance with the law, the appellate court's
review is plenary. Id. If the common pleas court abused its discretion or committed legal
error, the appellate court may reverse, vacate or modify the judgment of the common
pleas court. R.C. 119.12.
No. 07AP-1027
9
I. Application of R.C. 119.12 Factors
{¶18}
Appellant initially contends the board's order lacks the requisite evidence to
support it. Contrary to appellant's contentions, the evidence supports the ALJ's findings of
fact that the board subsequently adopted.
{¶19}
Without question, appellant testified contrary to the testimony Jennifer and
Faith Thoms presented. According to appellant, he was no more than friendly to either of
them. Appellant testified he mentioned to the two women something about his chair at
appellee's booth being uncomfortable, so "one of the two" said to try one of their chairs.
Accepting the offer of either Faith or Jennifer to try the bubble gun, appellant sat in one of
their chairs and "squirted bubbles." (Tr. 168.) As a result of using the gun, he had some of
the soapy substance on his hand, as did one of the women who handed the gun to him.
According to appellant, Jennifer brushed her hand off on his shorts, and he wiped his
hand on her pants leg. Appellant stated the two women were laughing and smiling
throughout his interaction with them.
{¶20}
In assessing appellant's credibility the ALJ noted inconsistencies in
appellant's testimony. Specifically, the ALJ observed that although appellant first testified
the Thomses asked him if he wanted to try the bubble gun, he later testified he asked if
he could try it. Similarly, appellant first testified he wiped his hands on Jennifer's pants,
but later testified she was wearing a skirt. He further denied telling Susan Hamilton that
he never left the booth, but Hamilton's report indicates that he so stated. Based on the
problems the ALJ noted in appellant's testimony, the ALJ was not arbitrary in her
credibility determinations. She conscientiously examined the evidence, noted the
No. 07AP-1027
10
inconsistencies in appellant's testimony and based her credibility determination
accordingly.
{¶21}
Appellant also asserts his conduct does not constitute sexual harassment.
The ALJ, however, specifically addressed that issue, stating that, even without the
allegations of sexual harassment, appellant's actions "can certainly be characterized as
discourteous and mistreatment of the public since the Thoms[es] are members of the
public." (Report and Recommendation, 9.) In response, appellant disagrees, contending
his conduct, even if it were as the Thomses presented it, does not rise to the level of
mistreatment of the public.
{¶22}
Appellant's contention is unpersuasive. According to the evidence,
appellant wiped his hand on the underneath side of Jennifer Thoms' short skirt and then
finished wiping his hands down her thigh and leg. Both women testified they neither
invited nor condoned appellant's actions. Were appellant at the festival on his own behalf,
his uninvited actions would be sufficiently distasteful. When, however, his actions are
viewed in the context of his representing a county office, we can only agree with the ALJ
that his conduct constituted mistreatment of the public.
{¶23}
Appellee's employee handbook set forth a progressive discipline policy that
could be short-circuited for a major offense and could result in immediate discharge.
Among the major offenses listed was mistreatment of the public. Because the ALJ
properly concluded appellant's conduct could be deemed mistreatment of the public, the
ALJ also properly concluded immediate discharge comported with appellee's discipline
policy. Although appellant contends such a severe sanction was unwarranted in light of
No. 07AP-1027
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the length of his service with appellee, appellee's policy specifically states immediate
discharge may be warranted "without regard to their length of service or prior record."
{¶24}
Accordingly, appellant's first issue lacks merit.
II. Appellant's prior suspension and sexual harassment training
{¶25}
Appellant next contends the ALJ wrongly considered his prior suspension
and the resulting harassment training he underwent as part of his employment with
appellee. In particular, appellant points out that the sexual harassment training dealt with
fellow employees, not the public.
{¶26}
In February 2004, appellant was found to have presented to an employee of
appellee's office a small piece of heart-shaped Valentine's Day candy bearing the words
"big boobs." At the hearing concerning his actions at the festival, appellant disputed the
underlying facts of the candy incident. Appellant, however, did not pursue an available
informal appeal at the time of the incident; he undisputedly was subject to a one-day
suspension and underwent sexual harassment training as a result of it. The ALJ's report
and recommendation alluded to the prior discipline, stating that since "Appellant Maurer
was previously suspended for one day for sexual harassment and mandated to attend
sexual harassment training, the Appellee was well within its discretionary authority to
remove Appellant Maurer for his actions of September 8, 2005." (Report and
Recommendation, 9.) Appellant contends the materials he received in the harassment
training had no relevance to his actions toward a non-employee, and the ALJ's order thus
is not in accordance with law.
{¶27}
Initially, under the relaxed evidentiary standards applied in administrative
hearings, the ALJ, within her discretion, arguably could allow the evidence.
1609 Gilsey
No. 07AP-1027
12
Investments, Inc. v. Liquor Control Comm.
, Franklin App. No. 07AP-1069, 2008-Ohio-
2795, at ¶12. At the least, the fact appellant was subject to prior discipline, regardless of
the cause, placed into context appellee's decision to terminate appellant's employment
rather than impose a lesser sanction. Most significant, however, is that the ALJ did not
rely on appellant's prior misconduct to conclude appellant's actions amounted to sexual
harassment, but concluded appellant mistreated the public in his actions toward the
Thoms. With that premise, appellee's office disciplinary policies provided independent
support for appellant's termination, as the ALJ noted. Accordingly, appellant's second
issue is unpersuasive.
III. Exclusion of evidence
{¶28}
Prior to the hearing before the board, appellant requested that the ALJ
exclude appellee's witnesses and documents for failure to provide them on a timely basis,
but the ALJ denied the motion.
{¶29}
The ALJ pointed out, as appellant contends, that Ohio Adm.Code 124-13-
01 provides deadlines for filing a request for a witness and document list, and appellee
did not comply with the rule. Although acknowledging the rules have a purpose, the ALJ
observed that appellant suffered no prejudice from appellee's deviation from the rules
"because the witnesses have remained the same from the predisciplinary hearing through
to this hearing that there isn't any surprise. I don't think anybody's being unfairly
prejudiced, so I am denying the motion." (Tr. 9.)
{¶30}
We cannot disagree with the ALJ's rationale. Although appellee did not
comply with the rule in producing the documented evidence, all of the evidence remained
the same from the pre-termination hearing to the hearing before the board. Appellant
No. 07AP-1027
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produced nothing to suggest appellee's failure to earlier turn over the document or
witness list prejudiced him; nor did he request a continuance of the hearing to review the
materials that were untimely produced. In light of those factors, the ALJ did not abuse her
discretion in denying appellant's motion.
{¶31}
Appellant's third issue is unpersuasive.
{¶32}
Because the arguments appellant posits in support of his single assignment
of error lack merit, we overrule the assignment of error and affirm the judgment of the
Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and FRENCH, JJ., concur.
_______________