[Cite as State ex rel. Galligan v. Indus. Comm., 124 Ohio St.3d 233, 2010-Ohio-3.]
THE STATE EX REL. GALLIGAN, APPELLEE, v. INDUSTRIAL COMMISSION OF
OHIO; TENABLE PROTECTIVE SERVICES, INC., APPELLANT.
[Cite as State ex rel. Galligan v. Indus. Comm.,
124 Ohio St.3d 233, 2010-Ohio-3.]
Workers’ compensation — Temporary total disability — Claimant terminated for
violating work rules — Voluntary abandonment of employment —
Employer’s failure to include employee handbook in record — Absence of
handbook not fatal to voluntary-abandonment defense when other
evidence in record establishes that infraction for which claimant was
terminated was a known company policy.
(No. 2009-0141 — Submitted November 3, 2009 — Decided January 6, 2010.)
APPEAL from the Court of Appeals for Franklin County, No. 08AP-36,
2008-Ohio-6426.
__________________
Per Curiam.
{¶ 1} At issue is appellee Betty J. Galligan’s eligibility for temporary
total disability compensation after she was fired by appellant Tenable Protective
Services, Inc. Galligan was hired as a security officer in February 2006 and was
fired a year later after accumulating approximately two dozen citations — oral
and written — for violating work rules. These violations included inappropriate
sexual remarks, breach of confidentiality protocol, time-sheet irregularities,
failure to remain at her post, and multiple incidents of tardiness/absenteeism,
insubordination, and sleeping at her post. At least seven violations occurred
before her August 2006 industrial injury, and the rest occurred after.
{¶ 2} On at least four occasions, Tenable warned Galligan that further
violations would lead to disciplinary action. On November 9, 2006, she was cited
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for insubordination and warned by memo that “[a]ny future violations of any
company policy will result in immediate termination of employment.” (Emphasis
added.) Less than three weeks later, a supervisor found Galligan asleep at her
post and warned her that disciplinary action would follow another occurrence. A
second violation for sleeping on the job six days later generated the same
response. A third violation on February 23, 2007, finally resulted in Galligan’s
dismissal.
{¶ 3} About a month after she was fired, Galligan filed a motion for
temporary total disability compensation with the Industrial Commission of Ohio.
The commission denied compensation after finding that Galligan’s discharge
constituted a voluntary abandonment of employment under State ex rel.
Louisiana-Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401, 650 N.E.2d
469.
{¶ 4} Galligan filed a complaint in mandamus in the Court of Appeals
for Franklin County. Litigation centered on Louisiana-Pacific, in which we held
that to constitute a voluntary abandonment, a firing must arise from an
employee’s “violation of a written work rule or policy that (1) clearly defined the
prohibited conduct, (2) had been previously identified by the employer as a
dischargeable offense, and (3) was known or should have been known to the
employee.” Id. at 403, 650 N.E.2d 469. The court of appeals magistrate
concluded that meaningful review was foreclosed by Tenable’s failure to submit
its employee handbook into the record:
{¶ 5} “Obviously, if the language of the written work rule is unknown to
the commission and to this court, it is impossible for the commission or this court
to determine whether the rule clearly defines the prohibited conduct that resulted
in the termination.”
{¶ 6} The magistrate rejected Tenable’s assertion that the absence of the
handbook was harmless because Galligan’s disciplinary write-ups, i.e.,
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“Employee Consultations,” that were in the record sufficiently set forth the
policies that were violated:
{¶ 7} “The concern is that the “Employee Consultations” do not produce
the very language of the written rules that allegedly underlie the warnings.
Moreover, in the absence of the employee handbook, the context of the specific
written rule at issue cannot be known even if the language of the written rule itself
be known.
{¶ 8} “In short, Tenable’s failure to submit the employee handbook
prevents judicial review of the discharge on the question of whether the written
work rules clearly define the prohibited conduct. On that basis, this magistrate
must conclude that Tenable’s failure to submit the employee handbook was fatal
to its voluntary abandonment claim.”
{¶ 9} The court of appeals adopted the magistrate’s report, also
suggesting that, with or without the handbook, the violations were too
insignificant to merit foreclosure of temporary total disability compensation.
Indeed, the opinion described the issue as “whether these various infractions were
so serious as to constitute a voluntary abandonment of employment.” The court
answered that question in the negative and granted the writ.
{¶ 10} Tenable now appeals to this court as of right.
{¶ 11} Voluntary departure from employment can bar temporary total
disability compensation. State ex rel. Rockwell Internatl. v. Indus. Comm. (1988),
40 Ohio St.3d 44, 45-46, 531 N.E.2d 678. Employment discharge can be
considered a voluntary abandonment if it originates from behavior that the
claimant willingly undertook. State ex rel. Watts v. Schottenstein Stores Corp. v.
Indus. Comm. (1993), 68 Ohio St.3d 118, 121, 623 N.E.2d 1202. This rule arises
from “the principle that an individual ‘may be presumed to tacitly accept the
consequences of his voluntary acts.’ ” State ex rel. Valley Interior Sys., Inc. v.
Indus. Comm., 118 Ohio St.3d 418, 2008-Ohio-2703, 889 N.E.2d 993, ¶ 9,
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quoting State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 44, 517
N.E.2d 533. But the consequence must be “one of which the claimant was, or
should have been, aware.” Valley Interior, id.
{¶ 12} Louisiana-Pacific incorporates these tenets. To be considered a
voluntary abandonment under Louisiana-Pacific, a firing must arise from an
employee’s “violation of a written work rule or policy that (1) clearly defined the
prohibited conduct, (2) had been previously identified by the employer as a
dischargeable offense, and (3) was known or should have been known to the
employee.” 72 Ohio St.3d at 403, 650 N.E.2d 469.
{¶ 13} Louisiana-Pacific first demands that the rule must be in writing.
We elaborated on this requirement in State ex rel. McKnabb v. Indus. Comm.
(2001), 92 Ohio St.3d 559, 561, 752 N.E.2d 254:
{¶ 14} “Written rules do more than just define prohibited conduct. They
set forth a standard of enforcement as well. Verbal rules can be selectively
enforced. Written policies help prevent arbitrary sanctions and are particularly
important when dealing with employment terminations that may block eligibility
for certain benefits.”
{¶ 15} Employers typically incorporate their work rules into a written
manual or handbook that is distributed to all employees. No one disputes that
Tenable had a handbook. To the contrary, Galligan acknowledged that she was
given one when hired. The handbook, however, is not in the record, and its
absence gives rise to the issue now before us: does an employer’s failure to enter
its employee handbook into the record automatically defeat a claim of voluntary
abandonment?
{¶ 16} The key term here is automatically. Because the commission has
exclusive authority to weigh and evaluate the evidence, a per se rule is
inappropriate. In State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d
18, 31 OBR 70, 508 N.E.2d 936, the seminal case on the commission’s
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evidentiary authority, we were asked to review an evidentiary precept known as
the “Anderson doctrine,” first announced in State ex rel. Anderson v. Indus.
Comm. (1980), 62 Ohio St.2d 166, 16 O.O.3d 199, 404 N.E.2d 153. Anderson
held that when considering the extent of disability in claims having both physical
and psychological conditions, the commission was precluded from relying on
medical reports that did not evaluate the combined effects of all allowed
conditions.
{¶ 17} While well-intentioned, Anderson had the unfortunate effect of
automatically disqualifying innumerable relevant medical reports from
commission consideration. In overturning that decision in Burley, we wrote:
{¶ 18} “To begin with, the Anderson decision effectively prevents the
commission from ever considering the weight and credibility of any evidence
which does not comport with the requisites of Anderson. This rule applies
without regard to the relevancy * * * which a particular medical report may have
toward one of the claimant’s impairments. Not only does this rule deny the
commission the benefit of considering what could be some of the most persuasive
and credible evidence before it as to one aspect of the claimant’s impairments, but
it also dissuades the parties from tendering all the relevant evidence in the
matter.” Id., 31 Ohio St.3d at 20, 31 OBR 70, 508 N.E.2d 936.
{¶ 19} A per se rule foreclosing voluntary abandonment as a defense
when the employee handbook is not in the record would have the same effect. It
would deprive the commission of the ability to consider any of the other evidence
presented in situations where the handbook is absent, regardless of the relevancy
of the other evidence that may be in the record.
{¶ 20} In this case, in lieu of the employee handbook, Tenable submitted
Galligan’s disciplinary file into evidence. This evidence establishes that Galligan
was on written notice from a prior “Employee Consultation” sheet that sleeping at
her security post — the offense for which she was eventually fired — was a
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violation of company policy. This documentation satisfies Louisiana-Pacific’s
requirements that the prohibited conduct be both clearly defined and known to
Galligan.
{¶ 21} Louisiana-Pacific’s remaining requirement is that the offense was
one that the employer had previously identified as dischargeable. 72 Ohio St.3d
at 403, 650 N.E.2d 469. It is not known whether sleeping on duty, in isolation,
was a dischargeable offense because the employee handbook is not in the record.
Under these facts, however, that absence is not dispositive. Galligan’s
disciplinary write-up on November 9, 2006, specifically stated that any further
violation of any work rule would result in dismissal. Galligan then was
effectively on notice that if she was caught sleeping at her post again, she would
be fired.
{¶ 22} The commission did not abuse its discretion in finding that
Galligan’s discharge constituted a voluntary abandonment of her job. The
judgment of the court of appeals is hereby reversed.
Judgment reversed.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Gregg A. Austin, for appellee.
Calfee, Halter & Griswold, L.L.P., William L. S. Ross, and William B.
McKinley, for appellant.
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