Mason v. Dir., Ohio Dept. of Job & Family Servs.

[Cite as Mason v. Dir., Ohio Dept. of Job & Family Servs., 2022-Ohio-1067.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
MICHELLE MASON, :
Plaintiff-Appellant, :
No. 110672
v. :
DIRECTOR, OHIO DEPARTMENT :
OF JOB AND FAMILY SERVICES,
ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: March 31, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-20-937442
Appearances:
Civil Litigation Clinic, Cleveland Marshall-College of Law,
Cleveland State University, Kenneth J. Kowalski, for
appellant.
Dave Yost, Ohio Attorney General, and Laurence R.
Snyder, Senior Assistant Attorney General, for appellee
The Ohio Department of Job and Family Services.
Jackson Lewis P.C. and Vincent J. Tersigni, for appellee
Plain Dealer Publishing Co., Inc.
LISA B. FORBES, J.:
Michelle Mason (“Mason”) appeals from the common pleas court’s
judgment affirming the Unemployment Compensation Review Commission’s
(“UCRC”) determination that she was ineligible for unemployment compensation
benefits. After reviewing the facts of the case and pertinent law, we reverse the lower
court’s judgment.
I. Facts and Procedural History
Mason began working part time at the Plain Dealer Publishing
Company (the “Plain Dealer”) on July 17, 2018. Ultimately, Mason was promoted
to a full-time district manager. The Plain Dealer terminated her employment on
November 11, 2019, “for leaving the depot delivery area without authorization in a
company vehicle.” Mason filed for unemployment benefits, claiming that she was
terminated without just cause because she was unaware of this “policy” and that the
violation may result in termination of employment.
In December 2019, the Ohio Department of Job and Family Services
(“ODJFS”) allowed Mason’s unemployment compensation claim finding that she
was discharged without just cause. Specifically, ODJFS determined that Mason
“was terminated for violating a company policy however the employer has not
provided the agency with any details/supporting documentation regarding the final
incident. Just cause not established.” In April 2020, the Plain Dealer appealed to
the UCRC.
On July 21, 2020, the UCRC held a telephone hearing on the merits
of the Plain Dealer’s appeal. The UCRC issued a decision reversing ODJFS’s
determination and disallowing Mason’s claim. Mason appealed the UCRC’s
decision to the common pleas court, and on June 17, 2021, the court affirmed the
UCRC’s decision.
It is from this order that Mason appeals raising the following
assignment of error: “The trial court erred in affirming the hearing officer’s decision
because the hearing officer’s factual findings are not supported by the record,
rendering her decision unreasonable, unlawful, and against the manifest weight of
the evidence.”
II. UCRC Hearing Testimony
A. Catherine McBride
Catherine McBride (“McBride”) testified that she is a circulation
operations director at the Plain Dealer, and Mason was employed as a district
manager. According to McBride, Mason’s “basic job duties are to make * * * sure
that papers get delivered every single day.” McBride testified that this is an
“overnight” job with hours starting from 9:00 p.m. and running through 11:00 a.m.
Mason was assigned to the “Westlake depot,” and she was “discharged for leaving
the territory during working hours without permission.” The territories are “defined
by zip codes,” and Mason’s home was not in the territory that Mason was assigned
to work. According to McBride, violation of this policy is an “egregious offense” and
“you [are] terminated.”
McBride testified that “normally” employees “get permission to go,
when to take their break * * *. But they can go anywhere and do anything they like
within that territory.” If an employee wants to go outside their territory, they should
“ask the manager. Or at least make the manager aware that you’re leaving the area.”
According to McBride, this policy is to keep employees in the territory if needed as
well as being “a safety issue.”
McBride testified that this is “not a written policy. It’s just one of
those understood policies that has been around since forever.” According to
McBride, this policy is “reviewed with [employees] at the time of hire.”
McBride testified that because there were “grumblings” about Mason
“going home and leaving the territory and being gone for extended periods of time
and not being around to help with stuff,” McBride asked that someone “review the
policy with everybody in the depot, make sure they all understand it so that if it is
happening it comes to a stop.”
According to McBride, Terry Franklin (“Franklin”), who was Mason’s
depot manager, “met with everyone * * * to reiterate the policy just to make sure
everyone’s on the same page. But this is long-standing policy at the Plain Dealer.
It’s not a gray area.” Asked if, to her knowledge, Franklin reviewed the policy with
Mason, McBride answered, “He did.” According to McBride, she knew this because
Franklin sent an email confirming that he “talked to everybody.”
This email, which was admitted as evidence at the UCRC hearing, was
sent from Franklin to another Plain Dealer employee at 4:52 a.m. on October 17,
2019, who then forwarded Franklin’s email to McBride on October 31, 2019.
Franklin’s email states as follows:
I spoke with Michelle Mason this morning and reiterated company
policy regarding bargaining unit employees leaving the depot delivery
area without authorization in a company vehicle. I stressed that lunch
breaks were included in the policy. I told her if she had any questions
or concerns, now was the time to ask. She replied that she understands
the policy and did not have any questions. I followed up by saying
disciplinary [sic] could include termination of employment.
McBride testified that Mason’s conduct came to the Plain Dealer’s
attention again as follows: “Someone had * * * anonymously sent a video and a
picture of her car at her home, in her home driveway to us.” To verify that this was
not “a one-time thing,” McBride sent Franklin to Mason’s home on November 2,
2019, and November 9, 2019, “and he observed her car both times, our Plain Dealer
vehicle, both times in her driveway during working hours.”
Franklin did not testify at the UCRC hearing.
McBride testified that Mason was a member of Teamsters Local 473
union. According to McBride, John Gill (“the Union Rep”), who is the Teamsters
Local 473 union representative, was part of the phone call when McBride terminated
Mason’s employment. Paul Cavanaugh (“Cavanaugh”), who is the director of labor
and employee relations for the Plain Dealer, was also on the line.
McBride testified that she told Mason that Mason “broke this policy.
This is not, there’s no gray area here with this one. You know, it’s too well
documented and too many people know about it. You, this is, you just went too far.”
According to McBride, Mason “genuinely seemed shocked that I was letting her go.”
Mason did not ask any questions about the reason for the discharge, including what
dates the violations allegedly occurred, and she did not explain why she left the
territory without permission.
B. Paul Cavanaugh
Cavanaugh testified that he was “brought into” the Plain Dealer’s
“investigation” of Mason on October 31, 2019, as a result of the “email with a photo
and a video of what turned out to be the car that * * * Mason had for the day in her
driveway on October 25th.”
Cavanaugh testified that Kevin Hanna, a field operations manager
with the Plain Dealer, drove by Mason’s house on November 2, 2019, and November
7, 2019, and “both times he went there * * * the car was there.” Cavanaugh testified
that he was not on the phone call when Mason was terminated.1 Cavanaugh further
testified that he was the Plain Dealer representative at Mason’s union grievance
meeting, during which Mason admitted going home on the days in question.
Cavanaugh testified that “eight days before the first video and picture
were taken of * * * the car in her driveway, * * * Franklin had sat down with all,
individually with each of the * * * district managers and reiterated the policy that
you can’t leave without permission, including lunch breaks.” Cavanaugh further
testified that, at the union grievance meeting, Mason admitted that Franklin spoke
1 We note that there are inconsistencies between McBride’s testimony and
Cavanaugh’s testimony regarding minor issues such as who drove by Mason’s house, the
dates this person drove by Mason’s house, and whether Cavanaugh was part of the phone
call during which Mason was terminated. However, we are not tasked with determining
the credibility of witnesses in an unemployment compensation benefit appeal.
with “her and the others * * * but denied that he ever said anything about * * * being
discharged for leaving.”
According to Cavanaugh, “this is a long-standing, well-communicated
policy that, in circulation, * * * employees are not allowed to leave their delivery area
during their work shift without permission and it includes lunch breaks.” Mason’s
was the ninth violation of this policy since 1995 “and all have been discharged.”
Cavanaugh further testified that “we routinely, in other cases, have brought those
employees back on Last Change Agreements that simply state they violated it, * * *
it’s a long-standing policy and * * * if they ever do it again they’ll be discharged and
that will be the end of it.” Cavanaugh further testified that the Plain Dealer did not
bring Mason back because “Mason was extremely evasive, * * * had shown no
remorse, * * * didn’t say she was sorry, didn’t say it would never happen again.”
C. Michelle Mason
Mason testified that the Plain Dealer told her she was fired for
“leaving the territory during your shift without permission.” Asked when she first
learned of this policy, Mason answered,
I never learned of the policy, ever. Basically, * * * until they said, * * *
on the termination call I had no clue what they were talking about
because we do get a 45-minute unpaid break and that can be taken
anywhere in that shift time. And I did check with the union rep * * *
and asked him early on if it was okay if we went home on lunch and he
said, “Yes. The company cannot tell you where you can and can’t go on
breaks.”
Asked if Franklin discussed the policy with her, Mason answered, “He
did not. * * * He literally just said, ‘Something happened. I don’t know what
happened. Just lay low and be answering your phone.’ I always answer my phone,
so it’s no big deal. Literally, end of discussion. * * * So I was never aware of any
policy. I have no idea what they’re talking about.”
Asked if Franklin talked about any specific policies, Mason testified
as follows:
No. There is no policy. That’s the thing. That’s why I submitted
everything that I was given by HR initially. There’s no policy. They
said it’s a long-standing rule. And these people have been there 20, 30
years. And maybe for them, but * * * it’s not communicated to any of
the new hires, we didn’t know about it. We didn’t know anything. * * *
But, again, if you don’t communicate that, how am I supposed to know?
I’m not a mind reader. It was never communicated.
Mason testified that she admitted at the union grievance meeting to
going home on more than one occasion because she did not know about the Plain
Dealer policy against this. According to Mason, she asked the Union Rep, “Is it okay
if I go home?” and the Union Rep said, “Yes. The company can’t tell you where to
go.” Mason did not dispute that she went home twice in November during her shift.
Asked if her house, which is in Parma, was within her Plain Dealer
territory, Mason answered, “Yes” and gave the following explanation:
Well, it’s between the two depots. We were getting routes from Van
Epps which is the original place I started, and routes were being moved
to Westlake because the Plain Dealer is newspaper industry and they’re
losing hundreds of customers per year. So I know they went from
having, I believe 30-some depots * * * down to four. * * I know that I
did routes from Van Epps over at Westlake. * * * So if you actually
Mapquest the two depots, you’ll see that they’re only approximately 15,
16 minutes apart. So my house is in between them. So, to really say
that I’m out of delivery area * * * I mean, it’s really splitting hairs * * *.
D. The Recording
Mason testified that she recorded her union grievance meeting and
conversations she had with the Union Rep prior to the meeting. These recordings
were admitted as evidence at the UCRC hearing. In the recording, Cavanaugh read
Mason the email from Franklin where Franklin stated that he met with Mason and
reiterated the company policy to her. Mason’s response was, “He did not say
anything about termination.” At the UCRC hearing, Mason was asked why she did
not deny anything in the recording. Mason testified as follows: “He did not explain
a policy, he did not explain a rule and he did not say anything about termination.”
In the recording, the Union Rep stated the following prior to the
grievance meeting: “[T]he fact that they didn’t give you an ultimatum about,
Michelle, we catch you off your district again, you can be fired. The fact that they
didn’t do that, or nobody said anything to me, we got something to argue.” The
Union Rep further stated at Mason’s grievance meeting that he did not “think she
was fully aware” of the policy and the ramifications of violating.
Mason stated the following in the recording prior to the grievance
meeting:
I always did my job, whatever was asked of me, trained new employees,
made people feel welcome. Fast forward to now, and Franklin said, “I
don’t know, something must have happened but when you guys go on
break, stay within your delivery area and keep a low profile.” And he
was real vague, general. And I walked away thinking someone must
have taken their company car and drove it to the east side or something
serious. I had no idea he was talking about me.
III. UCRC’s July 27, 2020 Decision
Under a section entitled REASONING, the UCRC decision stated the
following in part pertinent to this appeal:
[Mason] was discharged from her employment with the Plain Dealer
* * * on November 11, 2019, for leaving the depot delivery area without
authorization in a company vehicle. [Mason] has presented numerous
arguments in support of her position that she was discharged without
just cause in connection with work. [Mason] first argued that she was
not aware of the policy. Although it was not a written policy, [Mason]
admitted at the hearing that less than three weeks before her final two
violations, * * * Franklin reminded her about the policy and told her to
make sure she stayed in the delivery area when she went on break.
[Mason] argued that she was not told that this was a dischargeable
offense. However, she was not told that a lesser discipline would apply,
and she did not ask for clarification of the penalty for violations.
[Mason] argued that while she was technically away from the district,
she was only a few streets away. However, the rule is based upon
delivery area, not distance. [Mason] argued that she was often called
upon to deliver things from the delivery area that covered her house, so
she should not technically have been considered to be away from her
delivery area. However, she concedes that she was out of the delivery
area for her assigned depot. [Mason] argued that she was on her
unpaid lunch break when she went to her home. However, she admits
that * * * Franklin told her to stay in the delivery area when she went
on break. [Mason] argued that * * * Franklin spoke to all the employees
about the rule on the same day, so she did not consider their discussion
to be a disciplinary meeting. However, it is clear that the point of the
meeting was not to discipline [Mason] but rather to be sure she was
informed of the policy in case she violated it again.
IV. Common Pleas Court June 17, 2021 Decision
The common pleas court issued the following journal entry: “The
court affirms the final decision of the [UCRC] that * * * Mason was discharged for
just cause in connection with work. The [UCRC’s] decision was supported by the
evidence in the certified record and, therefore, it was not unreasonable, unlawful or
against the manifest weight of the evidence.”
V. Law and Analysis
A. Standard of Review
The standard of review for common pleas and appellate courts
regarding unemployment compensation benefits is as follows: “If the court finds
that the decision of the [UCRC] was unlawful, unreasonable, or against the manifest
weight of the evidence, it shall reverse, vacate, or modify the decision, or remand the
matter to the [UCRC]. Otherwise, the court shall affirm the decision of the [UCRC].”
R.C. 4141.282(H). See also Cuyahoga Metro. Hous. Auth. v. ODJFS, 8th Dist.
Cuyahoga No. 103399, 2016-Ohio-3457, ¶ 14 (“Appellate courts are * * * to apply the
same standard of review as the trial court and may reverse the [UCRC’s] ‘just cause’
determination only if it is unlawful, unreasonable or against the manifest weight of
the evidence.”).
The Ohio Supreme Court has held that “while appellate courts are not
permitted to make factual findings or to determine the credibility of witnesses, they
do have the duty to determine whether the [UCRC’s] decision is supported by
evidence in the record.” Tzangas, Plakas & Mannos v. UCRC, 73 Ohio St.3d 694,
696, 653 N.E.2d 1207 (1995).
B. Unemployment Compensation Benefits
Pursuant to R.C. 4141.29(D)(2)(a), “no individual may * * * be paid
[unemployment] benefits * * * if [ODJFS] finds that * * * [t]he individual * * * has
been discharged for just cause in connection with the individual’s work.” Although
there is “not a slide-rule definition of just cause,” Ohio courts have held that the term
means “that which, to an ordinarily intelligent person, is a justifiable reason for
doing or not doing a particular act.” Peyton v. Sun T.C. & Appliances, 44 Ohio
App.2d 10, 12, 335 N.E.2d 751 (10th Dist.1975). “The determination [of] whether
there is just cause for discharge depends upon the factual circumstances of each
case.” Williams v. Ohio Dept. of Job & Family Servs., 129 Ohio St.3d 332, 2011-
Ohio-2897, 951 N.E.2d 1031, ¶ 22.
A just-cause determination must be consistent with the legislative
purpose underlying the Unemployment Compensation Act: to provide
financial assistance to individuals who are involuntarily unemployed
through no fault or agreement of their own. Tzangas [at 697]. “When
an employee is at fault, he [or she] is no longer the victim of fortune’s
whims, but is instead directly responsible for his [or her] own
predicament. Fault on the employee’s part separates him [or her] from
the Act’s intent and the Act’s protection.” Id. at 697-698. Hence, just
cause, under the Unemployment Compensation Act, is predicated
upon employee fault. Id. at 698.
N. Olmsted v. Fox, 8th Dist. Cuyahoga No. 107519, 2019-Ohio-1776, ¶ 12.
C. Analysis
The salient issue in the case at hand is whether Mason knew or should
have known about the Plain Dealer’s policy that employees are not allowed to leave
their assigned areas during their shifts. The evidence in the record shows that
Mason adamantly and consistently denied knowing about this policy at the UCRC
hearing. Testimony given at this hearing established that the policy is unwritten and
just “understood” by Plain Dealer employees.
The UCRC’s decision stated in part that Mason “admitted at the
hearing that less than three weeks before her final two violations, * * * Franklin
reminded her about the policy and told her to make sure she stayed in the delivery
area when she went on break.” This is not supported by any evidence in presented
at the UCRC hearing. The decision further stated that Mason “admits that * * *
Franklin told her to stay in the delivery area when she went on break.” Again, this
is not supported by any evidence presented at the UCRC hearing. Simply put, there
is no evidence that Mason “admitted” that she was aware of the policy at issue.
In Apex Paper Box Co. v. Admr., Ohio Bur. of Emp. Servs., 8th Dist.
Cuyahoga No. 77423, 2000 Ohio App. LEXIS 2038 (May 11, 2000), this court held
that a “mere violation of a company work rule does not always rise to the level of
fault required on the part of the employee to justify a denial of unemployment
benefits.” In Apex, the employee (“Brickey”) was terminated for failing to “punch
out” when going to lunch. Brickey “testified she did not know it was an established
work rule to punch out before leaving for lunch.” Despite this being a written
company rule, evidence in the record showed that Apex “did not know whether
employees were given a copy of the work rules * * * when [Brickey] was hired.”
Brickey “testified that she was never given a copy of the work rules.” Id.The Apex Court opined that “[w]hen the reason for discharge is a
policy violation, the reason can only constitute just cause if the policy was fair * * *.
To be ‘fair’ a policy must be communicated to the employee.” Id. The court
continued:
The record contained competent credible evidence that the time clock
policy was not fair. Brickey testified that she was never given a copy of
the work rules. Bricky’s statement on her application that the policy
had never been enforced was not an admission that she was aware of
the policy before she violated it. Brickey denied she told the personnel
manager that she forgot to punch out. There was no evidence Brickey
attended the two meetings where the employees were told to punch out
if they leave for lunch.
Id. See also Piazza v. Admr., Ohio Bur. of Emp. Servs., 72 Ohio App.3d 353, 357,
594 N.E.2d 695 (8th Dist.1991) (in determining whether an employee has been
discharged for just cause “[t]he critical issue is not whether the employee has
technically violated some company rule, but whether the employee by his actions
demonstrated an unreasonable disregard for his employer’s best interest”).
Upon review, we find that this case is similar to Apex. The weight of
the evidence at the UCRC hearing showed that Mason did not know about the policy
for which she was fired. The UCRC’s findings that Mason admitted knowing about
the policy, and thus that Mason “was discharged from her employment with [the]
Plain Dealer * * * for just cause in connection with work” are against the manifest
weight of the evidence.
Mason’s sole assignment of error is sustained. The trial court’s
judgment is reversed, and this case is remanded to the trial court to enter judgment
in favor of Mason.
It is ordered that appellant recover from appellees 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.
LISA B. FORBES, JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
FRANK DANIEL CELEBREZZE, III, P.J., DISSENTS (WITH SEPARATE
OPINION)
FRANK DANIEL CELEBREZZE, III, P.J., DISSENTING:
I respectfully dissent from the majority opinion. In my view, the
UCRC’s decision is supported by competent and credible evidence in the record.
Accordingly, I would affirm the trial court’s judgment.
As the majority clearly recognizes, this court is precluded from
making factual determinations or determining the credibility of the witnesses in
unemployment compensation cases. It is the function of the commission, as the
trier of fact, to make factual findings and determine the credibility of witnesses. The
case law is clear, this court must defer to the commission on factual issues regarding
the credibility of witnesses and weighing conflicting evidence. Irvine v. Unemp.
Comp. Bd. of Rev., 19 Ohio St.3d at 18, 482 N.E.2d 587 (1985); Tzangas, 73 Ohio
St.3d at 696, 653 N.E.2d 1207.
This court cannot substitute its own factual findings for the findings
of fact made by the commission if there is competent, credible evidence in the record
supporting the commission’s decision. Lorain Cty. Aud. v. Unemp. Comp. Rev.
Comm., 9th Dist. Lorain No. 03CA008412, 2004-Ohio-5175, ¶ 8. Furthermore,
“[e]very reasonable presumption should be made in favor of the commission’s
decision and findings of fact.” (Emphasis added.) Banks v. Natural Essentials,
Inc., 8th Dist. Cuyahoga No. 95780, 2011-Ohio-3063, ¶ 23, citing Karches v.
Cincinnati, 38 Ohio St.3d 12, 19, 526 N.E.2d 1350 (1988).
The fact that reasonable minds might reach different conclusions is not
a basis for the reversal of the board’s decision. Craig v. Bur. of Unemp.
Comp. (1948), 83 Ohio App. 247, 260 [38 O.O. 356]. Moreover, “[o]ur
statutes on appeals from such decisions [of the board] are so designed
and worded as to leave undisturbed the board’s decisions on close
questions. Where the board might reasonably decide either way, the
courts have no authority to upset the board’s decision.” Charles
Livingston & Sons, Inc. v.. Constance (1961), 115 Ohio App. 437, 438
[21 O.O.2d 65].
Irvine at 18.
In the instant matter, it is undisputed that the Plain Dealer’s policy
prohibiting employees from leaving their assigned areas during a shift without
permission is not a written policy. However, in my view, the record contains
competent, credible evidence that Mason knew, or should have known, about the
policy and failed to abide by it.
Catherine McBride asserted that the manager of the Westlake depot,
Tracy Franklin, warned all drivers not to leave their district during a shift and that
Franklin specifically reviewed the company policy in detail with Mason. (Tr. 13.)
Although the policy is not in writing, McBride testified that “[i]t is just one of those
understood policies that has been around since forever,” and that the policy is
reviewed with employees at the time of hire.
McBride asked her assistant manager, Kevin Hanna, to address the
policy with everyone in the Westlake depot and make sure they all understood that
employees had to stop leaving the area without permission. Franklin also met with
everyone to reiterate this policy. On October 17, 2019, Franklin sent an email to
Hanna confirming that he reviewed the policy with everyone. The email was
forwarded to McBride and Cavanaugh. Franklin’s email provided:
I spoke with Michelle Mason this morning and reiterated the company
policy regarding bargaining unit employees leaving the depot delivery
area without authorization in a company vehicle. I stressed that lunch
breaks were included in the policy. I told her if she had any questions
or concerns, now was the time to ask. She replied that she understands
the policy and did not have any questions. I followed up by saying
disciplinary action could include termination of employment.
This email was admitted at the hearing as company’s exhibit A.
McBride confirmed that the policy prohibiting employees from
leaving a delivery area in a company vehicle without permission is “a long-standing
policy at the Plain Dealer. It’s not a gray area.” McBride testified that Franklin
specifically reviewed the policy with Mason.
McBride told Mason during the termination phone call that there was
no gray area regarding enforcement of the policy, and that the policy was “too well-
documented and too many people know about it.”
McBride explained that when employees were reminded about the
company policy in October 2019, Hanna and Franklin did not address the
anonymous video and picture they received regarding Mason’s company vehicle
parked in the driveway of her home during a shift. Rather, the company focused on
reminding employees about the policy.
Paul Cavanaugh testified, under oath, that the company policy
prohibiting employees from leaving their assigned areas during a shift is a “long-
standing, well-communicated policy” that dates back to 1995. Approximately eight
days before Mason’s company vehicle was observed in her driveway during a shift
on November 2, 2019, Franklin sat down with the district managers, including
Mason, individually, and reiterated the policy that employees cannot leave their
assigned area during a shift without permission.
As the majority recognizes, Mason’s recordings of her union
grievance meeting and conversations she had before and after the meeting were
admitted into evidence at the UCRC hearing. Based on these recordings, Cavanaugh
opined that Mason was, in fact, clearly aware of the company policy as of October
17, 2019.
Mason testified at the UCRC hearing that she had no knowledge of
the company policy. She maintained that she first learned about the policy on the
telephone call during which her employment was terminated.
In my view, the testimony of McBride and Cavanaugh, Franklin’s
October 17, 2019 email, and Mason’s recordings constitute competent, credible
evidence that Mason either was or should have been aware of the policy. In
concluding that Mason was discharged with just cause, it is evident that the hearing
officer found the testimony of McBride and Cavanaugh — that the policy is
“understood,” “long-standing,” “well-communicated,” and that Mason was
specifically reminded about the policy in October 2019 — to be more credible than
Mason’s testimony that she had no knowledge about the policy until her
employment was terminated on November 11, 2019. The hearing officer was in the
best position to make these credibility determinations, and this court must defer to
the hearing officer’s resolution of the conflicting evidence.
Finally, as the majority recognizes, the determination of whether just
cause existed to terminate an employee is unique to the facts of each case. Williams,
129 Ohio St.3d 332, 2011-Ohio-2897, 951 N.E.2d 1031, at ¶ 22; Tzangas, 73 Ohio
St.3d at 697-698, 653 N.E.2d 1207; Irvine, 19 Ohio St.3d at 17, 482 N.E.2d 587.
Based on the unique facts of this case and the totality of the circumstances, I would
find that there is competent and credible evidence in the record supporting the
UCRC’s determination that just cause existed to justify discharging Mason.
For all of the foregoing reasons, I respectfully dissent.