Franklin County Court of Appeals Denies Unemployment Compensation to Non-Profit Employee for Failing to Properly Supervise Client While on Cell Phone.

Last week, the Franklin County Court of Appeals affirmed the denial of unemployment compensation to the former employee of a non-profit organization after the employee disregarded the employer’s interests by taking a personal cell phone call while on duty and while a client youth sitting next to the employee then injected himself with an epipen. Brooks v. Ohio Dept. of Job & Family Servs., 2009-Ohio-817. The court rejected the employee’s arguments that other employees engaged in similar misconduct without being disciplined or terminated, that he had not violated any established policy and that he was treated more harshly than the new employee who was responsible for the epipen being unsecured.

According to the court’s decision, the employee had taken a number of youth clients to a camp when one of the youths returned to the van and sat in the front passenger seat. The employee joined him, chatted a while and then took a brief personal cell phone call. Another, new employee was responsible for the epipen being left out on the front seat console. The youth apparently opened the epipen and injected himself, requiring a trip to the hospital. Only the employee was fired. The ODJFS initially granted his application for benefits, but the hearing referee and, on appeal, the trial court, denied benefits:

“While claimant testified that he was not formally trained by UMCH [the employer] on the use of an EpiPen, he admitted that he knew that an EpiPen contains a spring-loaded needle to quickly deliver a dose of medication to someone who goes into shock as a result of severe allergies. He admitted that he knew that an EpiPen had been left resting on a console within the youth's reach. He admitted that he knew that he was not permitted to take personal cell phone calls while on duty, yet still turned his head for approximately thirty seconds to speak on his personal cell phone while he was supervising this youth. He admitted that the youth opened the EpiPen and injected it into finger while claimant was talking on his personal cell phone.”

The employee had argued that the Referee’s “just cause determination is unreasonable because the employer did not have a rule or policy prohibiting staff members from accepting or initiating personal calls while supervising youths.” However, the Court noted that the employee’s “own testimony belies his assertion, as he acknowledged that the employer had such a policy and that he knowingly violated it. Moreover, Ms. Roper testified that the employer ‘[has] a policy that the staff should not actively be supervising the kids while they're on their personal cell phone.’ Furthermore, ‘the critical issue is not whether the employee has technically violated some company policy or rule, but whether the employee by his actions [or inactions] demonstrated an unreasonable disregard for his employer's interests.' Here, the employer's best interests were served by appellant performing his duty to adequately supervise the youths in his charge and shield them from danger.” The employee “admitted that he was aware that an EpiPen containing potent and potentially harmful medication lay within reach of the youth; nonetheless, he did not confiscate the EpiPen and averted his attention from the youth to answer a personal telephone call. Appellant's actions and inactions potentially subjected the employer to liability had the youth suffered serious injury stemming from the injection of the medication. Thus, the [Referee] reasonably could view appellant's actions and inactions as detrimental to the employer's interests.”

The Court also rejected the claimant’s arguments that he was treated more harshly than the new employee who was responsible for the medications in the van and who was given only a written warning instead of being terminated. However, the Court agreed with the employer that he was treated differently because he had not received as much training as the claimaint and was not present to directly supervise the client youth at the time of the incident. As the most senior employee, the claimant also could have directed the newer employee to remove the epipen from the console, but he did not.

Finally, the court rejected the claimant’s testimony that other employees who had injured or placed client youths in danger were treated less harshly because he offered no evidence to support the other incidents aside from his own testimony.

Insomniacs may read the full court decision at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-817.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.