Fulton v. Ohio Dept. of Job & Family Servs. , 2011 Ohio 5673 ( 2011 )

[Cite as Fulton v. Ohio Dept. of Job & Family Servs., 2011-Ohio-5673.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96562
JERRY FULTON
PLAINTIFF-APPELLANT
vs.
OHIO DEPARTMENT OF
JOB AND FAMILY SERVICES
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-684448
BEFORE: Keough, J., Celebrezze, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: November 3, 2011
ATTORNEY FOR APPELLANT
Sylvester Summers, Jr.
Sylvester Summers, Jr., Co., LPA
Lexington Village
7804 Linwood Avenue
Cleveland, OH 44103
ATTORNEYS FOR APPELLEE
Michael DeWine
Ohio Attorney General
Laurel Blum Mazorow
Assistant Attorney General
State Office Building, 11th Floor
615 W. Superior Avenue
Cleveland, OH 44113-1899
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Appellant, Jerry Fulton, appeals the decision of the common pleas court that
affirmed the decision of the Ohio Unemployment Review Commission (“commission”),
which found that Fulton was terminated for just cause and denied his claim for
unemployment compensation. We affirm the decision of the trial court.
I
{¶ 2} On June 27, 2008, Fulton was discharged from his position as maintenance
supervisor with MBA Realty Company, Inc. (“MBA Realty”). He filed an application
for unemployment benefits, which the director of Ohio’s Department of Job and Family
Services disallowed upon a determination that Fulton was discharged for just cause.
Fulton appealed; the director subsequently affirmed the initial determination.
{¶ 3} Fulton filed an appeal from the redetermination and the director transferred
jurisdiction to the commission. After a hearing,1 the hearing officer issued a decision
affirming the denial of benefits and finding that Fulton was discharged for just cause.
The commission subsequently denied Fulton’s request for further review.
{¶ 4} Fulton then appealed the commission’s decision to the common pleas court,
which affirmed the commission’s decision, finding that the decision was not unlawful,
unreasonable, or against the manifest weight of the evidence. Fulton now appeals from
the trial court’s order.
II
{¶ 5} Reviewing courts (both trial and appellate) may reverse the commission’s
decision only if it is “unlawful, unreasonable, or against the manifest weight of the
evidence.” R.C. 4141.282(H); Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Servs.,
73 Ohio St.3d 694, 696, 1995-Ohio-206, 653 N.E.2d 1207. Reviewing courts cannot
make factual findings or determine the credibility of witnesses, but must determine
whether the commission’s decision is supported by evidence in the record. Id. at 697.
Every reasonable presumption should be made in favor of the commission’s decision and
findings of fact. Banks v. Natural Essentials, Inc., Cuyahoga App. No. 95780,
2011-Ohio-3063, ¶23, citing Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 19, 526
N.E.2d 1350.
{¶ 6} Under R.C. 4141.29(D)(2)(a), a claimant is ineligible for unemployment
The hearing began on October 10, 2008 and concluded on November 18, 2008.
1
compensation if he was discharged for “just cause in connection with the individual’s
work.” “Just cause” has been defined as “that which, to an ordinarily intelligent person,
is a justifiable reason for doing or not doing a particular act.” Irvine v. Unemployment
Comp. Bd. of Rev. (1985), 19 Ohio St.3d 15, 17, 482 N.E.2d 587. Whether just cause
exists is unique to the facts of each case. Id. The critical issue is whether the employee
by his actions demonstrated an unreasonable disregard for his employer’s best interest.
Piazza v. Ohio Bur. of Emp. Serv. (1991), 72 Ohio App.3d 353, 357, 594 N.E.2d 695,
citing Kiikka v. Ohio Bur. of Emp. Serv. (1985), 21 Ohio App.3d 168, 169, 486 N.E.2d
1233. As the Ohio Supreme Court stated in Tzangas, supra at 697-698:
{¶ 7} “The [Unemployment Compensation] Act does not exist to protect
employees from themselves, but to protect them from economic forces over which they
have no control. When an employee is at fault, he is no longer the victim of fortune’s
whims, but is instead directly responsible for his own predicament. Fault on the
employee’s part separates him from the Act’s intent and the Act’s protection. Thus, fault
is essential to the unique chemistry of a just cause termination.”
III
{¶ 8} The record in this case establishes the following. Fulton worked for MBA
Realty as a maintenance supervisor at the Lexington Village apartment complex. His
immediate supervisor was Keysha Price.
{¶ 9} Early in March 2008, Fulton was advised that he was to prepare five
apartment units at the complex for tenants who would be moving in on April 1, 2008.
But on March 26, 2008, Fulton told Mary Long, vice president of human resources at
MBA Realty, and Linda Veregin, vice president of MBA Realty’s northern Ohio region,
that he had not yet begun to get some of the units ready for the anticipated April 1, 2008
move-in date. As a result, a worker from another apartment complex owned by MBA
Realty had to help Fulton, which disrupted the work flow at the other complex. On
March 27, 2008, MBA Realty issued a written warning to Fulton regarding his
unsatisfactory work performance.
{¶ 10} Despite the warning, Fulton assigned his staff to duties other than prepping
the five units. As a result, on March 31, 2008, MBA Realty incurred 18 hours of
overtime pay. As of April 1, 2008, Fulton had not completed the work to prepare the
apartments for occupancy, despite being advised of the high priority of getting the units
ready. Furthermore, as of April 3, 2008, he had not even walked through all of the
apartments to determine if they were ready to be occupied.
{¶ 11} On April 4, 2008, MBA Realty issued another written warning to Fulton
regarding his poor work performance. The warning stated, in part, that “Jerry has once
again shown poor judgment and did not follow the directives given by the VP. * * *
This consistent poor performance will not be tolerated. Should he not follow the
directives given and achieve the goals set forth, he may be subject to further disciplinary
action up to and including termination of employment.”
{¶ 12} On April 26, 2008, Fulton had a work order to repair a leak in the roof of
one of the apartments. Instead of repairing the roof, Fulton worked on the pipes in the
apartment; as he worked on the pipes, the apartment caught on fire, which caused the
apartment to not be ready for occupancy on May 2, 2008, as scheduled. On May 16,
2008, another apartment was not ready for tenants as scheduled because there was a hole
in the closet, the faucets were leaking, and the apartment was not clean.
{¶ 13} As part of his duties, Fulton was responsible for maintaining the swimming
pool at the Lexington Village apartment complex and was advised by Price that the pool
was to be ready to open for the 2008 Memorial Day weekend. The pool was not ready by
Memorial Day, however. It opened on June 6, 2008, even though there was a problem
with the pool pump. Several days later, when Price learned of the pump problem, the
pool was closed. As of June 27, 2008, the pool was still not ready to be opened.
{¶ 14} On June 27, 2008, MBA Realty discharged Fulton due to his poor work
performance.
IV
{¶ 15} Fulton raises two assignments of error, both of which challenge the
commission’s finding that he was discharged for just cause. He first argues that his
discharge was without just cause because MBA Realty did not follow its progressive
discipline process before terminating his employment. Fulton contends that an
employer’s failure to follow its progressive discipline policy before terminating an
employee renders the employee’s discharge without cause for unemployment purposes.
See, e.g., Interstate Brands Corp. v. Cogar (June 13, 1985), Cuyahoga App. No. 48704;
In re Claim of Frazee (Dec. 13, 1984), Franklin App. No. 84AP-284. He asserts that
MBA Realty failed to follow its progressive discipline policy before terminating him and,
therefore, his termination was without just cause.
{¶ 16} But MBA Realty did not have a progressive discipline policy. The
employee handbook, which prohibited such conduct as neglect of duty, insubordination,
poor job performance, and refusal to follow the instructions of the employee’s supervisor
or management, made clear that Fulton’s employment was at-will. It stated:
{¶ 17} “Any infraction of these rules of personal conduct is considered grounds for
corrective and disciplinary action, ranging from verbal warning, written warning,
suspension or immediate termination of employment, depending on the seriousness of the
offense and at the Company’s sole discretion. However, nothing in this section shall be
construed to require levels of progressive discipline or to alter an employee’s employment
status from ‘at-will’ employment.”
{¶ 18} Fulton acknowledged in writing that he had received the employee
handbook. The acknowledgement specifically stated that “either the Company or I may
terminate the employment relationship with or without cause at any time.”
{¶ 19} Hence, Fulton’s assertion that his discharge was without just cause because
MBA Realty failed to follow its progressive discipline policy before terminating him is
without merit. Furthermore, even if there had been a progressive discipline policy, the
record reflects that Fulton received two written warnings prior to his discharge.
{¶ 20} Fulton next contends that the commission made erroneous factual findings
in concluding that he was terminated for just cause. Fulton argues that the hearing
officer’s conclusion that he had neglected to do his job because the pool was not open for
the 2008 Memorial Day weekend was erroneous because he did not authorize the pool to
be opened, and management knew that the pool pump was not operating properly and the
pool could not be opened.
{¶ 21} But whether Fulton authorized the opening of the pool in June 2008, or
whether management knew of the problem with the pump before that time, are not
dispositive of whether Fulton neglected his job duties. As the hearing officer concluded,
“the swimming pool was supposed to be ready for the 2008 Memorial Day weekend and
it was not. If [Fulton] was not able to personally repair the pool pump, he should have
diligently worked on getting an appropriate contractor to repair it. Weeks later, the
swimming pool was still not ready to be used.” Fulton neglected his job duties by not
ensuring that the pool was ready to be opened for the Memorial Day weekend, as
instructed.
{¶ 22} Fulton next “vehemently denies” that he authorized any overtime. But any
argument about overtime is irrelevant; it was not mentioned in Fulton’s termination notice
and not referenced in the commission’s decision.
{¶ 23} Last, Fulton argues that his discharge was without just cause because even
if his alleged acts of misconduct were unacceptable under the employee handbook, they
were not so serious as to warrant discharge, and MBA Realty should have issued a verbal
or written warning instead of discharging him. But as the employee handbook made
clear, it was within MBA Realty’s “sole discretion” to terminate Fulton’s employment for
his repeated faulty job performance, instead of giving him a verbal or written warning, or
suspending him.
{¶ 24} The evidence in the record supports the commission’s conclusion that
Fulton was terminated through his own fault, i.e., for just cause, and is therefore ineligible
for unemployment compensation. The commission’s decision was neither unreasonable,
unlawful, nor against the manifest weight of the evidence. Accordingly, Fulton’s
assignments of error are overruled and the decision of the trial court is affirmed.
Affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
JAMES J. SWEENEY, J., CONCUR