Cuyahoga Metro. Hous. Auth. v. Dir., Ohio Dept. of Jobs & Family Servs. ( 2016 )

[Cite as Cuyahoga Metro. Hous. Auth. v. Dir., Ohio Dept. of Jobs & Family Servs., 2016-Ohio-3457.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103399
CUYAHOGA METROPOLITAN HOUSING
AUTHORITY
PLAINTIFF-APPELLANT
vs.
DIRECTOR, OHIO DEPARTMENT OF
JOBS AND FAMILY SERVICES, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-14-827330
BEFORE: Kilbane, J., Keough, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: June 16, 2016
ATTORNEY FOR APPELLANT
Harold C. Reeder
Managing Associate General Counsel
Cuyahoga Metropolitan Housing Authority
Office of Legal Affairs
8120 Kinsman Road
Cleveland, Ohio 44104
ATTORNEYS FOR APPELLEE
Michael DeWine
Ohio Attorney General
Laurence R. Snyder
Assistant Attorney General
Unemployment Compensation Unit
615 West Superior Avenue - 11th Floor
Cleveland, Ohio 44113
Also Listed
Donald Reeves
12555 Bellaire Road #314
Cleveland, Ohio 44135
MARY EILEEN KILBANE, J.:
{¶1} Plaintiff-appellant, Cleveland Metropolitan Housing Authority (“CMHA”),
appeals the trial court’s judgment affirming the decision of the Ohio Department of Job
and Family Services (“ODJFS”), allowing former CMHA employee Donald Reeves’s
(“Reeves”) claim for unemployment benefits. For the reasons set forth below, we affirm.
{¶2} CMHA hired Reeves as a custodian at Lakeview Towers on July 7, 1999.
On October 8, 2013, Reeves became involved in a dispute over an envelope that was
reportedly removed from the Lakeview Towers Site Management Office. CMHA held a
pretermination hearing in the matter on November 7, 2013. At the hearing, Reeves
acknowledged being in the Site Manager’s office. He stated that he took an envelope of
medical leave slips that he needed because he was on a leave of absence, but he denied
taking the envelope intended for the Site Manager. Reeves was terminated on November
22, 2013.
{¶3} On December 3, 2013, Reeves applied for unemployment compensation,
asserting that he was not terminated for just cause. On December 13, 2013, the ODJFS
disallowed the claim and concluded, “[a]fter a review of the facts, this agency finds that
the claimant was discharged with just cause under Section 4141.29(D)(2)(a), of the Ohio
Revised Code.” Reeves appealed this decision to the Director, but it was affirmed on
January 3, 2014. The Director’s Redetermination concluded that “[a] review of the
original facts plus those submitted on appeal does [sic] not support a change in the initial
determination.”
{¶4} Reeves filed a further appeal to the ODJFS Review Commission. The
Review Commission held a hearing on January 28, 2014. Ariel Flores (“Flores”), a
human resources officer with CMHA, testified that a CMHA resident, Bobby Barnes
(“Barnes”), dropped off a housing application intended for Site Manager Pamela Harvey
(“Harvey”). Harvey was not available so Barnes left it with another Site Manager,
Kimberly Holt (“Holt”). Administrative Assistant Sherrie Levy (“Levy”) reviewed the
contents of the envelope and then placed it on Harvey’s desk. Levy and Holt then left
the Site Manager’s office and proceeded to the copy machine area. Levy subsequently
received a call from Harvey about the envelope, asking that Reeves get the envelope and
bring it to her. Video surveillance indicated that at approximately 8:49 a.m., Reeves
went into the management office and then left with an envelope. Flores testified that
because Reeves has keys to all apartment units, dishonesty cannot be tolerated.
{¶5} Reeves testified that he took medical leave slips, and not the housing
application left by Barnes. Reeves explained that at the time of the incident, he was on a
leave of absence, so he needed leave slips for medical appointments.
{¶6} Harvey testified that she learned that an envelope had been left for her, so
she called Reeves, her friend, and asked him to pick it up for her. She then learned that
Reeves had forgotten to get the envelope and, instead, obtained medical leave slips. The
missing envelope was never recovered, however.
{¶7} On January 31, 2014, the Review Commission reversed the redetermination
decision. The Review Commission concluded that Reeves had been terminated without
just cause and remanded the matter for a determination of “monetary entitlement.” In
relevant part, the Review Commission reasoned:
Claimant provided credible sworn testimony denying that he took the
envelope from the desk. The employer alleges that it is in possession of
video evidence disputing claimant’s testimony, but failed to submit such
evidence for the hearing. The employer failed to provide sufficient
evidence to rebut the claimant’s credible sworn testimony. The Hearing
Officer finds that claimant did not take an envelope from the desk as
alleged by the employer.
{¶8} CMHA filed a further appeal to the Review Commission. A hearing was
held on April 4, 2014. CMHA supplied a video and still photos from its surveillance
system that showed Reeves leaving the Site Manager’s office with an envelope. CMHA
also submitted a written statement from resident Phyllis Frelix, who indicated that she
observed Reeves enter the office, then return with an envelope, and submitted a letter
from Harvey indicating that Reeves was “acting on her behalf” when he entered the office
to retrieve the envelope. Additionally, Levy testified that Reeves picked up the envelope
for Harvey, who is his girlfriend. Levy complained to Harvey that it was not proper for
Reeves to go into the office when no one was present. CMHA supervisor Ronald King
testified that because Reeves was on leave of absence, he had no authority to enter the
office and take paperwork. In opposition, Reeves again testified that he entered the
office for medical leave slips, which he then put in an envelope before leaving. He
denied taking the missing rental application.
{¶9} On April 24, 2014, the Review Commission affirmed the determination that
Reeves was terminated without just cause and was entitled to unemployment
compensation. In relevant part, the review officer found:
Mrs. Frelix observed claimant with an envelope but did not know the
contents of the envelope. She did not know if this was the same envelope
she saw earlier at the front lobby desk before she gave it to Mr. Barnes who
took it to the management office.
***
[T]he evidence is uncontroverted with respect to the claimant having
permission to recover the envelope on behalf of its owner [Harvey, but
CMHA maintains that he] did not have permission to take the envelope
from the office. The claimant contends that he did take an envelope from
the office, but not the envelope the employer claims he took.
{¶10} The review officer concluded:
The employer did not present reliable, substantial and probative evidence to
support a finding that claimant in fact took the envelope in question. The
facts indicate that claimant may have violated policies and procedures
concerning his presence in the office when he is on a leave of absence [but]
a lesser form of discipline may have been more appropriate. * * *
[T]here was not sufficient fault of misconduct on the part of claimant that
arose to the level of a justifiable discharge.
{¶11} CMHA filed an appeal in the Cuyahoga County Common Pleas Court,
challenging the Review Commission’s decision. On July 15, 2015, the trial court
affirmed the decision, concluding that the Review Commission’s finding that Reeves was
terminated without just cause was not “unlawful, unreasonable or against the manifest
weight of the evidence.” The court explained:
The issues in this case are whether claimant took an envelope from the
management office without authorization, and whether CMHA was justified
in terminating his employment based upon this action. The hearing officer
assessed the credibility of witnesses and weighed the evidence presented,
and determined that claimant Reeves did not remove the envelope. In
turn, claimant was not dishonest when he denied taking the envelope. At
most, he was guilty of entering the management office while on leave from
employment. However, the hearing officer noted that claimant had only
minor prior infractions during his fifteen years of employment and a lesser
form of discipline would have been more appropriate.
The findings by the Hearing Officer turn largely on credibility * * *. The
officer was in the best position to assess the veracity of the witnesses. The
trial court should not usurp the factfinder’s role to make factual findings or
determine the credibility of the witnesses.
{¶12} CMHA now appeals, assigning the following three interrelated errors for
our review:
Assignment of Error One
The Common Pleas Court erred in affirming the Unemployment
Compensation Review Commission’s decision because it was unlawful,
unreasonable and against the manifest weight of the evidence.
Assignment of Error Two
The Common Pleas Court erred in affirming where the Unemployment
Compensation Review Commission accepted a claimant’s self-serving
contention over competent, credible evidence.
Assignment of Error Three
The Common Pleas Court erred because it did not apply the proper
manifest-weight-of-the-evidence standard of review in reviewing the
Unemployment Compensation Review Commission’s decision.
{¶13} Within these assignments of error, CMHA argues that the decision of the
Review Commission was not supported by the manifest weight of the evidence, because
Reeves’s testimony was self-serving and refuted by the photos and testimony presented by
CMHA. CMHA also complains that the trial court did not apply the correct standard of
review to this matter.
Standard of Review
{¶14} R.C. 4141.282 sets forth the standard of review of Review Commission
decisions. R.C. 4141.282(H) provides that the common pleas court shall reverse the
Review Commission’s decision only if it finds “that the decision of the commission was
unlawful, unreasonable, or against the manifest weight of the evidence.” Appellate
courts are also to apply the same standard of review as the trial court and may reverse the
Review Commission’s “just cause” determination only if it is unlawful, unreasonable or
against the manifest weight of the evidence. Tzangas, Plakas & Mannos v. Ohio Bur. of
Emp. Serv., 73 Ohio St.3d 694, 697, 1995-Ohio-206, 653 N.E.2d 1207.
{¶15} In Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d
517, the Ohio Supreme Court concluded that the standard for evaluating a challenge to
the manifest weight of the evidence supporting a criminal conviction also applies to civil
cases. Id. at ¶ 17. Applying the standard set forth in State v. Thompkins, 78 Ohio St.3d
380, 1997-Ohio-52, 678 N.E.2d 541, the Eastley court held that in evaluating a challenge
to the manifest weight of the evidence supporting a civil judgment, the reviewing court
weighs the evidence and all reasonable inferences, considers witness credibility, and
determines whether, in resolving conflicts in the evidence, the finder of fact clearly lost
its way and created such a manifest miscarriage of justice that the judgment must be
reversed and a new trial ordered. Id. at ¶ 20. Additionally, the Eastley court also
stressed that “[i]n weighing the evidence, the court of appeals must always be mindful of
the presumption in favor of the finder of fact.” Id. at ¶ 21. The Eastley court
explained:
[I]n determining whether the judgment below is manifestly against the
weight of the evidence, every reasonable intendment and every reasonable
presumption must be made in favor of the judgment and the finding of
facts. * * *
If the evidence is susceptible of more than one construction, the reviewing
court is bound to give it that interpretation which is consistent with the
verdict and judgment, most favorable to sustaining the verdict and
judgment.
Id., quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273(1984), fn. 3.
R.C. 4141.29
{¶16} R.C. 4141.29 establishes the eligibility requirements for unemployment
benefits. A claimant is ineligible if he is discharged for “just cause in connection with
the individual’s work.” R.C. 4141.29(D)(2)(a). “Traditionally, just cause, in the
statutory sense, is that which, to an ordinarily intelligent person, is a justifiable reason for
doing or not doing a particular act.” Irvine v. Unemp. Comp. Bd. of Rev., 19 Ohio St.3d
15, 18, 482 N.E.2d 587 (1985). Whether just cause exists is unique to the facts of each
case. Id. at 17.
{¶17} In order to be eligible for unemployment compensation benefits, Reeves
must satisfy the criteria in R.C. 4141.29(D)(2)(a), which provides that no individual may
be paid benefits if the individual has been discharged for just cause in connection with the
individual’s work. Reeves has the burden of proving his entitlement to unemployment
compensation benefits under R.C. 4141.29(D)(2)(a). Irvine at 17, citing Shannon v. Bur.
of Unemp. Comp., 155 Ohio St. 53, 97 N.E.2d 425 (1951); Canton Malleable Iron Co. v.
Green, 75 Ohio App. 526, 62 N.E.2d 756 (5th Dist.1944); 54 Ohio Jurisprudence 2d,
Unemployment Compensation, Section 35 (1962). “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, quoting Peyton v. Sun T.V., 44 Ohio App.2d 10, 12, 335
N.E.2d 751 (10th Dist.1975).
{¶18} Whether just cause exists is unique to the facts of each case. Irvine at 18.
The factual questions are primarily within the province of the referee and the board, and
this court has limited power of review. Id. Therefore, the lower court’s judgment will
be affirmed if the evidence supports the claim that the employee was terminated through
his or her own fault. Heller v. Ohio Dept. of Jobs & Family Servs., 8th Dist. Cuyahoga
No. 92965, 2010-Ohio-517, ¶ 38, citing Milyo v. Bd. of Rev., Ohio Bur. of Emp. Serv., 8th
Dist. Cuyahoga No. 60841, 1992 Ohio App. LEXIS 3921 (July 30, 1992).
{¶19} In this case, the Review Commission’s decision was not unlawful,
unreasonable, or against the manifest weight of the evidence, because the record supports
the Review Commission’s decision that Reeves was terminated without just cause.
Although CMHA presented evidence that a housing application was left in an envelope
for Harvey, and that Reeves entered the office and left with an envelope, Harvey testified
that she gave Reeves permission to go into her office. She also stated that he did not take
the missing envelope. In addition, Reeves testified that he took medical leave slips, and
not the housing application. He explained that he had been on a leave of absence and
needed medical leave slips to submit to his doctor. It is undisputed in the record that
Reeves had an envelope. This evidence, however, could be interpreted to demonstrate
that Reeves had the envelope intended for the housing office, or that he had an envelope
containing medical leave slips. Either interpretation is equally plausible. Therefore, we
find that the record contains competent, credible evidence to support the Review
Commission’s determination that Reeves was terminated without just cause. Based on
the foregoing, we cannot conclude that the Review Commission’s decision is unlawful,
unreasonable, or against the manifest weight of the evidence. Additionally, the record
supports the Review Commission’s decision that a lesser punishment may have been
more appropriate under the circumstances. Moreover, the record demonstrates that the
trial court applied the correct standard set forth in R.C. 4141.282.
{¶20} Accordingly, the assignments of error are overruled.
{¶21} Judgment is affirmed.
It is ordered that appellees recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas 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.
MARY EILEEN KILBANE, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
SEAN C. GALLAGHER, J., CONCUR