Maldonado v. Ohio Dept. of Jobs & Family Servs.

[Cite as Maldonado v. Ohio Dept. of Jobs & Family Servs., 2012-Ohio-4555.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IVAN MALDONADO ) CASE NO. 10 MA 190
)
APPELLANT )
)
VS. ) OPINION
)
DIRECTOR, OHIO DEPARTMENT OF )
JOB AND FAMILY SERVICES, et al. )
)
APPELLEES )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Mahoning County, Ohio
Case No. 10 CV 397
JUDGMENT: Affirmed.
APPEARANCES:
For Appellant: Atty. Ira J. Mirkin
Atty. Charles Oldfield
Green, Haines, Sgambati Co., LPA
16 Wick Avenue, Suite 400
P.O. Box 849
Youngstown, Ohio 44501-0849
For Appellee, Director, ODJFS: Atty. Mike DeWine
Attorney General of Ohio
Atty. Susan M. Sheffield
Assistant Ohio Attorney General
20 West Federal Street, 3rd Floor
Youngstown, Ohio 44503
Special Counsel For Appellee, YSU: Atty. George S. Crisci
Zashin & Rich Co., LPA
55 Public Square, 4th Floor
Cleveland, Ohio 44113
JUDGES:
Hon. Cheryl L. Waite
Hon. Cynthia Rice, of the Eleventh District Court of Appeals, sitting by assignment.
Hon. Mary Jane Trapp, of the Eleventh District Court of Appeals, sitting by
assignment.
Dated: September 28, 2012
[Cite as Maldonado v. Ohio Dept. of Jobs & Family Servs., 2012-Ohio-4555.]
WAITE, P.J.
Summary
{¶1} Appellant Ivan Maldonado was a payroll specialist at Youngstown State
University and president of one of its unions. As union president he was party to a
letter of agreement that secured employment for the outgoing union president without
complying with the advertising requirements of the collective bargaining agreement.
Although this agreement was intended to be kept secret, it was released and was
circulating among the members of the bargaining unit. When Appellant learned who
was circulating the agreement, he called her and told her that continuing to circulate
the document would be “bad for her health.” When another member of the unit called
to ask him about the contents of the letter, Appellant announced his intention to slice
the throats of the three people he thought originally circulated the letter of agreement.
As the conversation continued, Appellant referred to other female employees by
using extremely crude and derogatory language. Both incidents were reported to the
campus police. Appellant was placed on administrative leave. The matter was
investigated and a disciplinary hearing was held. In addition to the more recent
incidents, a prior incident was introduced at hearing where Appellant, whose position
was being audited for a pay increase, threatened the woman conducting the audit
that if she did not quickly approve the increase it would make him very angry and she
did not want him to get angry. During Appellant’s administrative leave various
incidents of mistake, intentional omission and/or inaccuracy were discovered in his
work. After the disciplinary hearing, Appellant was terminated for making threats
against other employees, the use of lewd or indecent language and nonperformance
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of duties. Appellant applied for unemployment benefits and was denied. Appellant
appealed the denial of benefits, which was affirmed twice at the administrative level
and again in the trial court. Appellant now appeals the trial court’s judgment
confirming the review commission’s decision to deny his unemployment benefits.
Appellant’s single assignment of error, that the trial court erred in affirming the denial
of benefits, is without merit and is overruled.
Factual and Procedural History
{¶2} Appellant, Ivan Maldonado, was employed by Appellee, Youngstown
State University (“YSU”), from 1989 until his discharge on July 6, 2009. At the time of
separation he was employed as a payroll specialist II and also served as the
president of the Association of Classified Employees at YSU, which is the union
representing approximately 400 of the university’s eligible, non-supervisory, classified
employees.
{¶3} In 2007 Appellant, then an administrative assistant, requested that his
position and responsibilities be audited for reclassification as a level II administrative
assistant. If the audit resulted in reclassification, Appellant would be awarded an
increase in pay. Carol Trube was the internal auditor assigned to evaluate
Appellant’s position. Appellant contacted Ms. Trube prior to the deadline for
completion of the audit and demanded that the audit of his position be completed
within two weeks and that the increase in pay be approved. Appellant warned Ms.
Trube that if she failed to reclassify him, it would make him very angry, and she
“[would] not want to make him very angry.” (11/9/09 Review Commission Hearing, p.
8.) He said he would begin by making a series of public records requests, but that
the requests would only be the first step in a series of unpleasant actions. Ms. Trube
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was so shaken by the incident that she reported it to her supervisor, who suggested
that she report it to campus police. She asked for more time to consider whether to
inform the police, but instead proceeded to write two memos, one to her supervisor
and one to human resources, requesting that she be removed from Appellant’s audit
and that an outside firm be brought in to complete the process. Ms. Trube was not
removed from the audit, completed it on time, and recommended approval of the
reclassification. Appellant was verbally reprimanded for his conduct but, by
agreement, no notice of the reprimand was included in his disciplinary file.
{¶4} In late 2008 or early 2009 Appellant, in his capacity as president of the
union, negotiated a letter of agreement with YSU which allowed the outgoing union
president to be hired to a university position without first advertising the position.
This agreement was in violation of the terms of the collective bargaining agreement,
and the parties to the letter of agreement apparently agreed to destroy their copies.
Despite attempts to conceal the agreement, copies of which were required to be
provided to YSU’s governing board, the letter was released and was being circulated
among the bargaining unit in early March of 2009. Appellant believed that Kay
Helschel was responsible for circulating the letter, although another party would have
had to release it to her. Appellant called Ms. Helschel, in the presence of the former
president who had been hired as a result of the agreement, and told her that
circulating the letter would be “bad for her health.” (11/9/09 Review Commission
Hearing, pp. 39-41.) Ms. Helschel reported the threat to campus police.
{¶5} On March 11, 2009, Charlene Yusko, a union member, telephoned
Appellant to ask him about the letter of agreement that was being circulated. During
the conversation, Appellant identified by name the people he believed were
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responsible for releasing the letter and said he would “slice their fucking throats.”
(11/9/09 Review Commission Hearing, p. 21.) He then referred to two other
employees, both women, as a “cunt bitch” and a “dried up old bitch.” (11/9/09
Review Commission Hearing, p. 22.) It is unclear why these comments were made;
the two women do not seem to be connected to any of the people Appellant blamed
for releasing and circulating the letter of agreement. Ms. Yusko was shocked by
Appellant’s threat to slice the throats of those he blamed for the letter, and began to
take notes of the conversation. She made a note of Appellant’s threats and the
profane statements as well as where she was told to direct a public records request
to get the information surrounding the letter of agreement. Others working near her
could hear Appellant shouting through the phone, but could not make out specific
words and were told the contents of the conversation by Ms. Yusko when the call
ended. Ms. Yusko also reported the statements to her supervisor and to those she
met at lunch. When she returned to her desk after lunch she was instructed by her
supervisor to give a statement as to what had happened to the campus police officers
who were waiting for her in a nearby office.
{¶6} Appellant was placed on administrative leave on March 13, 2009. On
July 8, 2009, Appellant filed an application for unemployment benefits with the Ohio
Department of Job and Family Services (“ODJFS”). YSU responded to Appellant’s
application for benefits and explained that he had been discharged for making
threatening, lewd and indecent statements, which were violations of board policy, the
employee code of conduct and his union contract, in addition to errors in the
performance of his duties. In support of its response YSU provided copies of
Appellant’s termination notices which incorporated a pre-disciplinary hearing report
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signed by Eugene P. Grilli, YSU’s vice president for finance and administration. YSU
also submitted copies of a supplemental investigatory report, prepared at the request
of Mr. Grilli, who acted as the hearing officer during Appellant’s disciplinary hearing,
and two memos from Carol Trube concerning the earlier incident of Appellant’s
misconduct.
{¶7} Appellant’s initial application for unemployment benefits was denied on
July 28, 2009. He appealed the decision on July 31, 2009. In support of his appeal,
Appellant denied making profane statements and engaging in conduct “which
constituted just cause for my termination.” (7/31/09 Appeal Letter to ODJFS.)
Appellant explained that he was the president of YSU’s employee union and argued
that his termination was due to his union activities and that YSU’s progressive
discipline policy was not followed in his case. He claimed to be the second
consecutive union president YSU had attempted to terminate. ODJFS affirmed the
original denial of benefits on August 24, 2009, stating that a review of the original
facts and the additional information provided in the appeal did not support a change
in the initial determination. Appellant appealed the redetermination and the matter
was transferred to the Unemployment Compensation Review Commission (“review
commission”) on September 17, 2009. (The administrative review body was called
“review board” until 1996 when H.B. 670, effective December 2, 1996 changed the
entity to the “review commission” and the two are used interchangeably in opinions
on unemployment compensation). Appellant requested and received an in-person
rather than a telephonic hearing.
{¶8} The hearing was held on November 9, 2009. YSU presented testimony
from Carol Trube and Charlene Yusko. YSU also entered Appellant’s termination
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letter, pre-disciplinary hearing report, the supplemental investigatory report, memos
and responses to ODJFS and review commission questionnaires. YSU presented a
copy of Ms. Yusko’s personal notes taken during her conversation with Appellant on
March 11, 2009. Appellant offered his own testimony as well as testimony and
affidavits of various people who were either in the room or within earshot of the
telephone calls in question, who stated generally that they had not heard Appellant
make any of the offending statements, and probably would have been in a position to
hear them had they been made. YSU also offered testimony concerning the
allegations of non-performance of Appellant’s duties, but the hearing officer
concluded that the threats and profanity were given as the primary reason for
termination and declined to hear evidence of dereliction of duty.
Argument and Law
Assignment of Error
THE TRIAL COURT ERRED WHEN IT AFFIRMED THE
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW ORDER
DENYING APPELLANT’S APPLICATION FOR UNEMPLOYMENT
BENEFITS.
{¶9} An appellate court applies the same standard of review as the
commission when evaluating a review commission’s determination denying
unemployment benefits due to a termination for just cause. Tzangas, Plakas &
Mannos v. Ohio Bur. of Emp. Serv., 73 Ohio St. 3d 694, 653 N.E.2d 1207 (1995),
paragraph one of the syllabus. Ohio Revised Code section 4141.282(H) limits a
court’s review of the commission’s decision as to whether the decision was “unlawful,
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unreasonable, or against the manifest weight of the evidence.” Upon a finding that
the commission’s decision is unlawful, unreasonable, or against the manifest weight
of the evidence, the court “shall reverse, vacate, or modify the decision, or remand
the matter to the commission.” R.C. 4141.282(H).
{¶10} If the reviewing court does not find that the decision was unlawful,
unreasonable, or against the manifest weight of the evidence, the court “shall affirm
the decision of the commission.” R.C. 4141.282(H). “Determination of purely factual
questions is primarily within the province of the referee and the board. * * *
[Appellate] courts are not permitted to make factual findings or to determine the
credibility of witnesses.” Irvine v. Unemployment Comp. Bd. of Review, 19 Ohio
St.3d 15, 17-18, 482 N.E.2d 587 (1985) (this court, when following the standard for
review and other holdings in Irvine, noted in Struthers v. Morell, 146 Ohio App. 3d
709, 2005-Ohio-6594, 843 N.E.2d 1231, that unlike the burden of proof placed on the
employee in Irvine, the Morell court was bound by R.C. 4141.281(C)(2) to ascribe no
burden of proof in the proceeding). “The fact that reasonable minds might reach
different conclusions is not a basis for the reversal of the board’s decision” Irvine at
18. “Where the board might reasonably decide either way, the courts have no
authority to upset the board’s decision.” Id. citing Charles Livingston & Sons, Inc. v.
Constance, 115 Ohio App. 437, 438, 185 N.E.2d 655 (1961).
{¶11} The validity of the employer’s decision to terminate Appellant is not
before us for review. Our review is limited to determining whether the commission
had sufficient evidence to support its decision that the employee was terminated for
just cause. Benefits must be denied if it appears, based on the information that was
provided to the commission as it appears in the record, that just cause for termination
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existed. What constitutes “just cause” with regard to eligibility for unemployment
benefits is separate and distinct from what may or may not be just cause for
termination under the terms of an individual’s contract, a company’s internal policies,
or other areas of employment law. A just cause determination for the purpose of
unemployment benefits focuses the inquiry on the concept of fault. “The 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.” Williams v. Ohio Dept. of Job and Family Servs., 129 Ohio St. 3d 332,
336, 2011-Ohio-2897, 951 N.E.2d 1031, ¶22-23, citing Tzangas, supra, at 697-698.
“Fault, however, is not limited to willful or heedless disregard of a duty or a violation
of an employer's instructions” and includes a variety of behaviors such as
unsuitability for the position. Id. at ¶24.
{¶12} Although it is not defined by statute, just cause is described by the
Supreme Court as “that which, to an ordinarily intelligent person, is a justifiable
reason for doing or not doing a particular act.” Irvine at 17 quoting Peyton v. Sun
T.V. & Appliances, 44 Ohio App. 2d 10, 12, 335 N.E.2d 751 (1975). The
determination as to whether there is just cause for discharge depends upon the
factual circumstances of each case. Warrensville Hts. v. Jennings, 58 Ohio St. 3d
206, 207, 569 N.E.2d 489 (1991). “[W]hat constitutes just cause must be analyzed in
conjunction with the legislative purpose underlying the Unemployment Compensation
Act. Essentially, the Act's purpose is ‘to enable unfortunate employees, who become
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and remain involuntarily unemployed by adverse business and industrial conditions,
to subsist on a reasonably decent level and is in keeping with the humanitarian and
enlightened concepts of this modern day.’ (Emphasis sic.)” Irvine at 17, quoting
Leach v. Republic Steel Corp., 176 Ohio St. 221, 223, 199 N.E.2d 3 (1964).
{¶13} Appellant urges us to conduct a de novo review and to adopt his
conclusions concerning the underlying facts because he alleges that the question of
whether there was just cause for termination is one of law, not fact. (Appellant’s Brf.,
p. 4.) This Court, however, has already determined that “[w]hat constitutes just
cause for termination is a question of fact, and determination of purely factual
questions is primarily within the province of the Board of Review.” Guy v. City of
Steubenville, 147 Ohio App. 3d 142, 2002-Ohio-920, 768 N.E.2d 1243, ¶21 citing
Irvine at 17. Our review of a commission’s decision is therefore limited to
determining “whether the board’s decision is supported by evidence in the record.”
Guy at ¶24. We will not reverse a commission’s decision simply because
“reasonable minds might reach different conclusions,” nor will we reverse if the
decision is “supported by some evidence in the record.” Id. at ¶21-22. In fact,
“[w]here the board of review might reasonably decide either way, the courts have no
authority to upset that decision.” Id. at ¶22 citing Irvine, supra.
{¶14} Appellant divides the argument that there was no just cause for his
termination into four parts: (1) his conversation with Carol Trube was not threatening
and was not identified as a basis for termination; (2) his comment to Kay Helschel
was not a threat and could not be perceived as a threat; (3) he never told Charlene
Yusko he would slit anyone’s throat, but even if he had, the statements were not
actionable because they were not made directly to the individuals threatened and the
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existence of a threat depends on the perception of the listener, who did not
immediately perceive them as bona fide threats; and (4) Appellant never used lewd,
indecent, or obscene language concerning other female employees, but if he had,
the alleged statements do not establish just cause for termination. Appellant also
argues generally that the only evidence that he received a verbal reprimand in 2007
is hearsay and cannot, under Taylor v. Bd. of Review, 20 Ohio App. 3d 297, 485
N.E.2d 827 (1984), be given greater credibility than his own sworn testimony at the
hearing. “[W]here the sworn testimony of a witness is contradicted only by hearsay
evidence, to give credibility to the hearsay statement and to deny credibility to the
claimant testifying in person is unreasonable. Thus, any weight to be given to the
employer’s hearsay is clearly outweighed by appellant’s sworn testimony at the
hearing before the referee.” (Internal citations omitted.) Id. at 299. Appellant makes
the same hearsay argument concerning the statements made to Ms. Helschel and
Ms. Yusko, all of which he also denies making. He argues that his direct testimony
and the affidavits of his supervisor and subordinates should be given greater weight
than the testimony and documents provided by his employer. He concludes that the
hearing officer gave inappropriate weight to the testimony and documentary evidence
provided by his employer because the officer’s stated basis for the determination
suggests that he found the employer’s evidence, which included hearsay, more
credible than Appellant’s.
{¶15} Proceedings at both the hearing officer and the review commission
level are governed by R.C. 4141.281 which provides in pertinent part:
In conducting hearings, all hearing officers shall control the conduct of
the hearing, exclude irrelevant or cumulative evidence, and give weight
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to the kind of evidence on which reasonably prudent persons are
accustomed to rely in the conduct of serious affairs. Hearing officers
have an affirmative duty to question parties and witnesses in order to
ascertain the relevant facts and to fully and fairly develop the record.
Hearing officers are not bound by common law or statutory rules of
evidence or by technical or formal rules of procedure.
R.C. 4141.281(C)(2). As the Ohio Supreme Court emphasized Simon v. Lake
Geauga Printing Co., 69 Ohio St. 2d 41, 430 N.E.2d 468 (1982), the aim of the
procedural provision “is to avoid the rigid formality imposed by technical rules of
evidence, while constructing an efficient method for ascertaining a claimant’s
entitlement to unemployment compensation benefits * * * its meaning is apparent: the
Board of Review and the referee need not apply stringent rules in determining the
admissibility of evidence in the record.” Id. at 43. The procedural provision then in
force, R.C. 4141.28(J), provided “the board and the referees are not bound by
common law or statutory rules of evidence or by technical or formal rules of
procedure,” which is substantively identical to the current version.
{¶16} According to the Court, if evidence is placed in the record by the review
commission it must be weighed and considered by the commission when making a
decision and recognized by the trial or appellate court reviewing the commission’s
decision. Simon at 43. The Simon Court concluded: “evidence which might
constitute inadmissible hearsay where stringent rules of evidence are followed must
be taken into account in proceedings [before a review board] where relaxed rules of
evidence are applied;” it is the referee’s function “as the trier of fact, to consider the
evidence listed above, along with the credibility of the individuals giving testimony
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before the board” in reaching a decision. Id. at 44. “A reviewing court can not usurp
the function of the triers of fact by substituting its judgment for theirs. ‘The decision of
purely factual questions is primarily within the province of the referee and the board
of review.’ ” Id. at 45, citing Brown-Brockmeyer Co. v. Roach, 148 Ohio St. 511, 518,
76 N.E.2d 79 (1947).
{¶17} Appellant contends that we should ignore the Ohio Supreme Court’s
description of the fact finding role of the review commission and instead rely on the
more stringent prohibition against hearsay testimony utilized by the Eighth District in
Taylor, supra. The Taylor Court held that direct testimony should always outweigh
hearsay in review hearings. When comparing the conclusion reached by the
Supreme Court in Simon to Taylor, courts in the Fourth, Fifth, Sixth, Ninth, Tenth,
Eleventh, Twelfth and now even the Eighth, have found the Taylor rule too rigid for
application or inappropriate under the facts. When distinguishing Taylor, many courts
have found, like the Twelfth District in Hansman v. Ohio Dept. of Job & Family Serv.,
12th Dist. No. CA2003-09-224, 2004-Ohio-505, that the rule would destroy the
factfinder’s ability to function as the law intends:
[R]igid application of a rule automatically crediting sworn testimony over
hearsay evidence is inconsistent with the duty of the fact-finder to weigh
and consider the evidence. The Ohio Supreme Court found that the
logical corollary of allowing evidence in unemployment hearings that
would be otherwise inadmissible is that such evidence must be weighed
and considered, not only at the hearing itself, but also on appellate
review. A rigid rule would remove this duty from the fact-finder.
Furthermore * * * a fact-finder is not required to accept the testimony of
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a witness simply because no contrary evidence is presented. (Internal
citation omitted.)
Id. at ¶12. The Hansman court concluded: “we find no merit to appellant’s argument
that the hearing officer was automatically required to credit his testimony above any
hearsay evidence. Furthermore, after examining the type of hearsay evidence at
issue in this case, we find no error in the hearing officer’s decision to give weight to
such evidence.” Id. at ¶13. The evidence at issue in Hansman included letters
written by USF Holland to the appellant warning him that he violated company policy
for absenteeism or tardiness. The Hansman court observed that the documents
“appear to have been created as part of a company policy, and not in contemplation
of appellant’s request for unemployment benefits and we find nothing inherently
unreliable in the letters themselves.” Id. at 13. Similarly, the evidence at issue
against Appellant includes two internal memos prepared by a witness who testified, a
pre-disciplinary hearing report which appears to have been prepared pursuant to an
internal or a union policy, and the letter terminating Appellant, which he requested in
lieu of a verbal separation. This is exactly the type of evidence that a majority of
Ohio Appellate districts and the Ohio Supreme Court find reasonable when used as a
basis for a hearing officer’s decision, even when contradicted by a party’s direct
testimony. We decline to adopt a rule that would negate a fact-finder’s ability to
make credibility determinations and do not find Taylor persuasive on this issue.
{¶18} Appellant also argues that Ms. Trube’s hearsay testimony was the only
evidence that he was disciplined in 2007 and that this hearsay should be negated by
his direct testimony. He overlooks the fact that the hearing officer at his disciplinary
hearing, Mr. Grilli, YSU’s vice president for finance and administration, verified that
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he, himself, gave Appellant a verbal reprimand for the Trube incident in the present
pre-disciplinary report. Appellant’s argument that his threatening behavior in 2007
was irrelevant to his termination because it is not mentioned in the termination letter
is inaccurate. It was described in the pre-disciplinary report attached to and
referenced in the termination letter. Appellant also overlooks the fact that, unlike the
circumstances in Taylor, where a third-hand statement made by an individual
identified only as George to an investigator from ODJFS was the sole basis for a
finding that the claimant did not have a legitimate fear of physical violence at work,
the hearing officer in this instance had a variety of evidence before him. In Taylor the
hearing officer denied benefits on the strength of the investigator’s memory of
George’s statement alone; no testimony or direct evidence of any kind was presented
by the employer. In contrast, the hearing officer in this matter had the hearsay
declarant, whose credibility he could judge, as well as the pre-disciplinary report, the
memos, the termination letter, and the testimony of other witnesses to evaluate and
weigh. The pre-disciplinary report appears to have been prepared in accordance
with an internal policy or the collective bargaining agreement in preparation for a
disciplinary hearing. Although it is hearsay in the strict sense, it may nevertheless be
admissible under a hearsay exception and is certainly well within the flexible
parameters of what a hearing officer may consider. The report appears to be “the
kind of evidence on which reasonably prudent persons are accustomed to rely in the
conduct of serious affairs,” contemplated by R.C. 4141.281(C)(2). The Taylor rule
does not prevent the hearing officer from relying on the documents provided by YSU
or Ms. Trube’s testimony. Both provide reasonable basis for the hearing officer’s
decision.
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{¶19} Appellant directly testified that he told Ms. Helschel that circulating the
letter of agreement would be bad for her health. He disputes the characterization of
this statement as a threat and argues that there was no competent, credible evidence
on which the hearing officer could rely to conclude that the statement was a threat.
Appellant contends that his explanation of the statement as a warning concerning the
effects of stress that would be brought on by the litigation that would ensue if
circulation continued was the only accurate characterization to be made from this
statement. Appellant overlooks the fact that it was well within the hearing officer’s
purview to find that the statement, which was not disputed, had been made and that
Appellant’s explanation was disingenuous. As the trier of fact, it is the referee's job to
resolve conflicts in the evidence and to assess the credibility of a claimant’s or a
witness’s testimony. See, Irvine v. Unemployment Comp. Bd. of Review, 19 Ohio
St.3d 15, 482 N.E.2d 587 (1985). The hearing officer in this instance did precisely
that, and this Court on review is not entitled to second guess the hearing officer’s
determination of fact or of witness credibility. Id. at 18.
{¶20} Neither Appellant’s self-serving attempt to whitewash a statement that
could be reasonably interpreted as a threat nor the testimony of his witness, who was
the beneficiary of the secret agreement, prevail over evidence to the contrary. The
testimony provided by Appellant and his witness was subject to a credibility
determination by the trier of fact. The trier of fact also had before him evidence that
Appellant had previously threatened a co-worker, and had been reprimanded for that
threat, and evidence that both Appellant’s employer and Ms. Herschel treated the
statement to her as a threat. The fact that Appellant believes the review commission
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should have weighed the testimony differently is not the type of unlawful or
unreasonable determination necessary to reverse the commission’s decision.
{¶21} With regard to the statements Appellant was alleged to have made
during his conversation with Ms. Yusko, that he would “slit the f----g throats” of those
he believed to be responsible for releasing the letter of agreement and referring to his
co-workers in extremely crude, gender-specific, and derogatory terms, Appellant both
denies making the statements and argues that even if he had made the statements
they do not constitute just cause. In support of his argument that the statements do
not rise to the level of just cause for termination, he cites one court case and two
review commission decisions: Thompson v. Aeroquip Inaoc Co., 6th Dist. No. S-02-
022, 2003-Ohio-1859, In re Claim of Barbara R. Harding, Unemp. Comp. Bd. of Rev.,
No. 641760-BR, August 4, 1986, and In re Claim of Mark A. Williams, Unemp. Comp.
Bd. of Rev., No. 92-03392-0000, March 26, 1993. The precedential effect of review
commission decisions is limited by R.C. 4141.28(H) to “claimants similarly situated.”
And while we may find the decisions of other districts persuasive, we are in no way
bound by them. None of the decisions identified by Appellant, however, present
similarly situated claimants.
{¶22} In both Thompson and In re Williams, the threats made by the
claimants were conditional and the outbursts were isolated instances. In Thompson
the court found that the claimant’s single, hyperbolic statement was provoked by
another employee’s long-standing and repeated interference with his ability to do his
work coupled with the continued failure of management, who was aware of the
problem, to take action. The threat the claimant made in that instance was expressly
predicated on continued supervisory inaction and continued interference with his
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work: if the supervisor didn’t take action and if the other employee interfered with his
work again, he would stab him with a screw driver. The board in Thompson
determined that while the statement was certainly intemperate and threatening, it was
an expression of the employee’s frustration over a long-standing problem and an
attempt to obtain a solution from his employer, rather than the type of misconduct
that merits termination.
{¶23} In Williams an employee, who had been reprimanded for using his
employer’s phone to make 900-number calls and incurring charges, discovered that
the cost of the calls had been deducted from his paycheck and angrily asked a
receptionist if the company president was on the premises. Learning that the
president was in close proximity, the claimant responded “I’m so mad that if I don’t
leave now, I’ll shoot [him].” Id. at pp. 4-5. The claimant then voluntarily left. The
review commission determined that there was no showing that a genuine threat had
been made in Williams, and instead found the claimant’s statement “merely
expressed his anger over the situation and should not reasonably have been
considered to be threatening in nature.” Id. at p. 6.
{¶24} The situation in In re Harding, the second review decision Appellant
relies on to support his claim, is somewhat similar to Thompson. The claimant in
Harding had a long-standing antagonistic relationship with a co-worker, in which the
review panel found both parties to be at fault. The claimant had a daily working
relationship with the individual she was alleged to have threatened. Shortly before
the claimant told her co-worker she would “blow (his) brains out,” she reported a
problem with water quality to their supervisor which the other employee then
disputed. As the claimant proceeded to re-test water quality the other employee
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bumped into her, prompting the statement. Id. at p. 5. The claimant was not armed
at the time, did not own a gun, and took no action to carry out this single threat. The
two completed their shift without further incident and the employee did not report the
incident that day.
{¶25} On returning to work before his next shift, the employee reported the
threat to their supervisor, specifically stating that he was not afraid of the claimant
and did not believe she would carry out the threat, but that he was afraid of her adult
son. Both individuals were called in to discuss the incident with the supervisor, which
was unproductive, and both were discharged. At hearing, the factfinder learned that
on previous occasions the other employee had telephoned the supervisor during their
shared shifts to complain that the claimant had banged her hard hat and a clipboard
too heavily on a desk and that she had left a door open while the air conditioning was
on. The hearing officer found that the employee’s failure to report what he later
maintained amounted to a death threat, while he immediately reported incidents of
hard hat and clipboard banging and leaving office doors open, indicated that the
claimant’s statement was, in fact, not taken as a threat and that at the time it was
made it was understood to be an intemperate comment made in the heat of the
moment.
{¶26} In each of the examples provided by Appellant, even where there was
ongoing antagonism between employees, one single threat was identified as the
basis for termination. None of the statements were recognized by the hearing officer,
the review panel, or the court as bona fide threats. In contrast, Appellant’s behavior
here appears to reflect an escalating pattern of threatening, intimidating and verbally
abusive behavior toward his female colleagues. YSU identifies four separate
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instances of inappropriate behavior, the first of which establishes that Appellant
knew, or should have known, that YSU would not tolerate threats against co-workers
at the time he issued the later threats. The fact that YSU took the behavior seriously
is reflected by the decision to place Appellant on leave and investigate the various
claims.
{¶27} In an attempt to characterize his dismissal as an improper breach of
policy, Appellant relies on In re Claim of Stephanie L. Meinke, Unemp. Comp. Bd. of
Rev., No. C2007-267-0014, April 23, 2008, to discredit the documentary evidence
provided by YSU. In In re Meinke, the owner of a day care had a policy that any
employee would be terminated after three parental complaints. The discharge of Ms.
Meinke was based on a father’s phone call to the employer in which he said that his
wife observed Meinke pick up one child by his arm and yelled in the face of a second
child. As a result of these alleged incidents, the father told the day care owner that
he would no longer be using her services. The employer then terminated Meinke via
telephone, due to the complaints and the loss of a customer, that same day. After
Meinke’s termination, the day care owner obtained an affidavit from the caller’s wife
in which she stated that Meinke forced a pacifier into the mouth of one child, yelled at
another child, shoved both, and roughly seated a different child in a high chair.
{¶28} On review, the hearing officer found Meinke’s direct testimony that she
had never mistreated a child in the seven years she worked at the day care more
credible than the affidavit submitted by her former employer. No testimony was
offered by the employer at the hearing. Although the stated reason for termination
was the loss of a customer coupled with her two complaints, the employer apparently
later stated that the termination was due to a violation of the three complaint rule
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because there were three complaints in the affidavit. Unlike the situation in In re
Meinke, where documents were produced after the fact that contained substantively
different information and the employer changed her reason for termination, in the
matter before us the documents and statements offered by YSU are the product of an
actual investigation, discipline and hearing procedure. The documents are coupled
with testimony from some of the individuals concerned. Additional testimony was
also offered but declined by the hearing officer. Hence, unlike the record in Meinke,
nothing in this record suggests that the evidence provided to the hearing officer was
improperly or belatedly produced solely to support a predetermined decision to fire
Appellant. Appellant’s attempt to use Meinke to discredit YSU’s documentary
evidence is misplaced.
{¶29} In addition to his hearsay argument, Appellant asserts that threats are
to be determined by the perception of the listener and that he could not be
discharged for making a statement the listener did not perceive as a threat. He also
states that his allegedly lewd, indecent or obscene remarks cannot establish just
cause. Appellant cites In re claim of Robert B. Basham, Unemp. Comp. Bd. of Rev.,
No. B93-04349-000, November 15, 1994, and Brown v. Sysco Food Serv. of
Cincinnati, L.L.C., 4th Dist. No. 09CA2175, 2009-Ohio-5536 for his contention that
the perception of the listener is determinative as to whether a statement is a threat.
Again, Appellant’s reliance is misplaced. The quote Appellant cites from In re
Basham for the principle that the listener determines whether a statement is a threat
actually refers to the “well settled” principle that “misguided jokes, horse-play, or
other disruptive or harmful attempts at levity may be the basis for disciplinary action,”
and even where “the teller of such jokes need not intend them to be taken seriously,
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it is the perception of the person hearing such statements that determines if the
statement is actionable.” Id. at p. 6. The reverse is not necessarily true. In a variety
of other cases, hearing officers, review commissions, and courts have found
statements were not threats, despite the stated perception of the listener. See, e.g.
Thompson v. Aeroquip Inaoc Co., 6th Dist. No. S-02-022, 2003-Ohio-1859, In re
Claim of Barbara R. Harding, Unemp. Comp. Bd. of Rev., No. 641760-BR, August 4,
1986, and In re Claim of Mark A. Williams, Unemp. Comp. Bd. of Rev., No. 92-
03392-0000, March 26, 1993.
{¶30} The Basham case cited by Appellant involved a newspaper article
about workplace shootings that had “jokingly” been altered to indicate that vending
machine related frustration resulted in workplace shootings. The altered document
was posted on a workplace vending machine. When the machine attendant saw the
article, he initially laughed and asked workers nearby if it was a joke, and Basham
initially denied responsibility. After a brief conversation, Basham, who had altered
and posted the article, removed it and placed it in the trash. Although the machine
attendant initially joked about the article, he later retrieved it from the trash and
reported the incident to his supervisor. Unknown to the attendant, Basham had
made separate statements and had separate interactions with the supervisor about
his frustration with vending machine pricing. Those statements and actions provided
a backdrop that made the article appear to be a threat to the supervisor. Basham
was discharged due to the incident and his subsequent appeal of the denial of his
unemployment benefits was denied. Although the attendant had initially taken the
posting as a (bad) joke, it was actually the more-informed concerns of the supervisor
that drove the termination. In this instance, the “perception of the person hearing
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such statements” extended to the perception of the supervisor receiving information
about the statement after the fact and placing it in the context of prior statements.
{¶31} Similarly, when Appellant told Ms. Yusko he would slit the throats of
those he believed responsible for releasing the letter of agreement she did not
perceive a threat to herself, and did not know the people he named particularly well.
She was nevertheless shocked and unsettled by the statements and later reported
them. When her supervisor heard them, he immediately perceived them as a threat,
called campus police, and told Ms. Yusko to report what Appellant had said to the
officers who responded. When those statements are placed in the context of
Appellant’s other behavior, including the fact that Appellant, in his capacity as the
president of the bargaining unit, may have made a deal that violated the terms of the
collective bargaining agreement to secure a position for a former president and was
facing a union no-confidence vote and the individuals against whom he made threats
were those he believed responsible for releasing damaging information, it is clear
how Ms. Yusko’s supervisor, YSU, and the hearing officer could have concluded the
statements were, in fact, threats. The record also reflects that this remark was not
the first time Appellant had made threatening statements to a co-worker. What the
decision in Basham, as well as other threat-related terminations reveal, is that the
perception of the person who hears the statement at the time it is made is only one
factor for the hearing officer to consider. In addition, he may consider how the
statement is perceived by others and the context in which the statement is made
when determining whether the statement amounts to just cause. Determinations are
heavily fact-driven and there is nothing to suggest in this instance that the conclusion
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reached by the review commission was unlawful, unreasonable, or against the
manifest weight of the evidence.
{¶32} Finally, although Appellant tries to describe his obscene or lewd
references to two other female employees as the type of unfortunate but incidentally
profane expressions of frustration generally tolerated in the modern workplace, the
intense, gender-specific and derogatory nature of the comments as well as the fact
that they were apparently unrelated to the subject matter of the conversation
suggests otherwise. Both the review commission and YSU argue that language this
severe and fundamentally inappropriate is the type of language that “can be so
disruptive and provocative that the employer’s ability to maintain a productive
environment is severely compromised.” The hearing officer agreed. Opara v.
Carngie Textile Co., 26 Ohio App. 3d 103, 106, 498 N.E.2d 485 (1985). YSU
identifies an escalating pattern of threats, intimidation, and profane language that
suggests Appellant was unable to interact appropriately with women who disagreed
with or opposed him. The university argues that the type of language Appellant used
revealed his “fundamental prejudices which jeopardize[d] continuing work
relationships.” Due to these behaviors, YSU terminated Appellant. Id. at 106. The
hearing officer found this determination was reasonable. “If an employer has been
reasonable in finding fault on behalf of an employee, then the employer may
terminate the employee with just cause.” Tzangas, supra, at 698.
{¶33} Appellant argues that his case is unlike Opara, which involved
extremely inflammatory anti-Semitic comments, and that the hearing officer should
instead have applied the four factors suggested in Lombardo v. Ohio Bur. of Emp.
Serv., 119 Ohio App. 3d 217, 695 N.E.2d 11 (1997). Each unemployment
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determination is fact driven. Hearing officers are not constrained to follow the
suggestions of a court when making their determinations. Rather, they are charged
by statute to give full and fair consideration to the information in the record. While the
hearing officer was not required to apply the factors suggested in Lombardo, it is not
clear from this record that it would have altered the outcome. In fact, the Lombardo
court specifically noted that there is a large body of decisions finding the use of
profanity to amount to just cause for termination, but that Lombardo’s situation was
unique because a single instance of the use of profanity was the sole cause of his
discharge. Id. at 222. The Lombardo court derived and applied four principles from
two other cases as the basis for its decision: the language in question was not
directed at a person and was of no more intensity than language used by the
claimant and the manager in non-work related conversations; that there was no
evidence or finding that the words used by the claimant were part of a pattern; that
only one other person was present; and that the outburst, according to the lower
court, was an understandable reaction to an earlier occurrence. The claimant in
Lombardo had requested that his shift be moved up two hours to accommodate a
civil court hearing. He was told that the request would not be approved and that if he
left early it would be considered as an infraction and he would lose his attendance
bonus for the month. In front of his direct supervisor and the plant manager, who had
denied the request, the claimant said “that’s bullshit, * * * that’s fucking bullshit” and
walked out of the office and returned to work. Id. at 219. He was then instructed to
return to the office, was given a five-day suspension by the manager, but
subsequently terminated. Under these circumstances, applying the four factors, the
Lombardo court concluded the outburst was not just cause for termination.
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{¶34} In the instant matter the language was unprovoked, specifically directed
at two other employees, was fairly intense or extreme, and appeared to be part of a
pattern of inappropriate behavior. The fact that the comment was initially made to
one person is not dispositive, it is merely a factor to consider. Appellant’s profane
statements were not the sole cause of termination but one of several incidents.
“None of the reviewing courts can reverse a commission decision as being against
the manifest weight of the evidence when there is some evidence in the record to
support the commission's decision.” Struthers v. Morell, 164 Ohio App. 3d 709, 715,
843 N.E.2d 1231 (2005). The evidence reflected in this record supports the hearing
officer’s conclusion that YSU had just cause to terminate Appellant and accordingly
the denial of unemployment benefits is affirmed.
Conclusion
{¶35} The trial court did not err in affirming the Unemployment Compensation
Board of Commission order denying Appellant’s application for unemployment
benefits. The review commission’s decision is supported by the evidence in the
record and is not unreasonable or unlawful. Appellant’s sole assignment of error is
overruled and the judgment of the trial court is affirmed.
Rice, J., concurs.
Trapp, J., concurs.