OPINION AND ORDER OF THREE-COMMISSIONER PANEL.
This cause came to be heard before this panel of three commissioners on February 4, 1993 at 10:00 a.m. upon the applicant's August 11, 1992 objection and notice of appeal to the July 31, 1992 decision of the single commissioner. The single commissioner had denied the applicant's claim for additional work loss pursuant to R.C. 2743.52(A) because the commissioner found the applicant failed to prove she incurred this loss by a preponderance of the evidence. The applicant, Robyne Gardner, counsel for the applicant, and the Attorney General attended the hearing and presented the applicant's testimony and oral argument for this panel's review and consideration.
R.C. 2743.52(A) places the burden of proof upon the applicant to satisfy the Court of Claims Commissioners that the requirements for an award of reparations have been met by a preponderance of the evidence. In re Rios (1983), 8 Ohio Misc.2d 4, 8 OBR 63, 455 N.E.2d 1374, paragraph one of the syllabus. Black's Law Dictionary defines "preponderance of evidence" as follows:
"Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; That is, evidence which as a whole shows that the fact sought to be proved is more probable than not. Braud v. Kinchen, La App, 310 So.2d 657, 659. With respect to burden of proof in civil actions, means greater weight of evidence, or evidence which is more credible and convincing to the mind. That which best accords with reason and probability. The word `preponderance' means something more than `weight'; it denotes a superiority of weight, or outweighing. The words are not synonymous, but substantially different. There is generally a `weight' of evidence on each side in case of contested facts. But juries cannot properly act upon the weight of evidence, in favor of the one having the onus, unless it overbear, in some degree, the weight upon the other side." (Emphasis added.) Black's Law Dictionary (5 Ed. 1979) 1064.
Ordinarily, a prima facie claim is made when the applicant files an application in accordance with R.C. 2743.56 and submits such additional material, information, and evidence as required by R.C. 2743.59. In re Williams (Mar. 26, 1979), Ct. of Cl. No. V77-0739jud, unreported.
At the hearing the applicant testified that, prior to the criminally injurious conduct that gave rise to the claim, she had become involved in a romantic relationship with the offender, who was a co-worker at Defense Construction Supply Center ("D.C.S.C.") with whom she worked closely. Gardner explained that the criminally injurious conduct occurred as a result of her breaking off the relationship. After the break-up, the offender began harassing Gardner and, on March 25, 1990, assaulted and raped her. Gardner missed one day of work — for which she has already received an award of reparations — before returning on March 27, 1990. At that time, the applicant informed her supervisor and the employee assistance director about the assault and rape in hopes of getting a new work assignment either for herself, or the offender; however, D.C.S.C. took no action. Meanwhile, the offender continued to harass Gardner and vandalized her patio furniture and car.
The applicant stated she filed criminal charges against the offender, but was advised to mediate the charges because the crime involved a "date-rape" and would be difficult to prove. Gardner added that the mediation resulted in a "no-contact" order, which did eventually end the harassment. However, the damage had already been done.
The applicant testified that she quit her job at D.C.S.C. on April 28, 1990 as a result of the rape and assault, the offender's continual harassment, and D.C.S.C.'s failure to take disciplinary action or even acknowledge her complaints in any meaningful way. When cross-examined by the Attorney General as to her efforts to find substitute employment, Gardner related that she was very confused and traumatized by the incident, indeed by the whole scenario, but did begin scanning the classified ads prior to quitting her job. The applicant also testified that, after quitting her job, she registered with a recruitment service and began sending resumes and making inquiries on her own. Upon further examination, Gardner indicated that she had applied for approximately five hundred jobs in sales, marketing, and inventory control. The applicant did not find substitute employment until February 1991, when she accepted a sales representative position, albeit at a lower salary, with Pitney-Bowes, Inc.
As a result of the criminal incident and resulting trauma, the applicant began treating with psychiatrist John M. Hamill, M.D. Dr. Hamill completed a medical information report, indicating he treated Gardner on April 26, 1990, May 10, 1990, May 25, 1990 and June 12, 1990. Dr. Hamill further related that, although the applicant had incurred a disability as a result of her injury, "she is able to work despite emotional sequelae." However, Dr. Hamill also prepared a letter for Gardner to give to her landlord (so she could break her lease), indicating the offender's harassment represented a continuing threat to her emotional health and safety. Gardner also treated with another psychiatrist, Edmund Gould, M.D., on August 29, 1990 and September 15, 1990. Dr. Gould, too, completed a medical information report in which he related that the applicant was totally disabled from working as a result of the criminally injurious conduct as of her last appointment on September 15, 1990.
The applicant stated that both Dr. Hamill and Dr. Gould, as well as police, prosecutors, and private attorneys with whom she had consulted, advised her that she should move away from the area for her own health and safety, as it would be exceedingly difficult to successfully prosecute the offender or prevail in a civil action. Still, the applicant remained in Columbus, looking for a new job until August 1990. In August 1990, the applicant moved in with her parents in Tiffin, Ohio, while she continued looking for work. Finally, Gardner found the position with Pitney-Bowes in February 1991.
Counsel for the applicant argued applicant should be reimbursed for work loss from the date she quit her job at D.C.S.C. (April 28, 1990), up to the date she found substitute employment (February 1991). Counsel further argued that Gardner should be reimbursed the difference between her salary at D.C.S.C. and her salary at Pitney-Bowes, Inc., as well as the work loss she incurred from subsequently being laid off by Pitney-Bowes.
The Attorney General, upon final argument, conceded that the applicant's testimony was sufficient to establish, by a preponderance of the evidence, that the applicant "was compelled to remove herself from her then existing employment position and seek alternate employment." The Attorney General added that the applicant's voluntary resignation from D.C.S.C. was reasonable — even though the applicant was not totally disabled from working — in light of the evidence that applicant did seek to have the harassment stopped by the employer and did seek available appropriate substitute work. Accordingly, the Attorney General acquiesced in the applicant's request that the claim be referred to the Attorney General for calculation of work loss.
From review of the file, with full consideration given to the applicant's testimony and oral argument presented at the hearing, this panel finds the applicant has sustained her burden of proving, by a preponderance of the evidence, that she incurred additional work loss as a result of the criminally injurious conduct that gave rise to the claim. In light of the unique circumstances that obtain in the present claim, it appears, at least to these commissioners, that the applicant's decision to terminate her employment with D.C.S.C. was eminently reasonable. First, the applicant was assaulted and raped by a co-worker with whom she came in constant contact. Second, the offender, a former boyfriend, continued to harass the applicant even after she had reported his conduct to superiors at D.C.S.C. and filed criminal charges against him. Third, the applicant's employer was unwilling to take any action to defuse the unbearably hostile work environment created by the offender and was, apparently, totally bereft of any compassion whatsoever for the applicant's plight. And finally, both law enforcement authorities and her treating psychiatrists advised the applicant that the best way to resolve the situation was to move away. In view of these facts, it is our considered opinion that the applicant, as a result of the criminally injurious conduct, was forced to extricate herself from an intolerable working environment and hazardous living condition in the best interests of her emotional well-being, health, and safety. Therefore, we find the applicant's objection and notice of appeal is well taken, and the July 31, 1992 decision of the single commissioner must be reversed.
IT IS ORDERED THAT:
1. The July 31, 1992 order of the single commissioner is REVERSED;
2. This claim is referred to the Attorney General for calculation of additional work loss and remanded to the single commissioner for further determination not inconsistent with the foregoing opinion;
3. The Attorney General shall file his amended finding of fact and recommendation on or before August 30, 1993;
4. The applicant may respond to the new finding of fact and recommendation within twenty-one days after it is filed by the Attorney General; and
5. Costs be assumed by the reparations fund.
So ordered.
ROBERT B. BELZ, DALE A. THOMPSON and WILLIAM A. CARROLL, Commissioners, concur.