[Cite as Williams v. Ohio Dept. of Job & Family Servs., 2013-Ohio-4159.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Michael Williams,                                      :

                Appellant-Appellant,                   :
                                                                       No. 13AP-312
v.                                                     :           (C.P.C. No. 12CV-14486)

Ohio Department of Job & Family                        :     (ACCELERATED CALENDAR)
Services et al.,
                                                       :
                Appellees-Appellees.
                                                       :




                                         D E C I S I O N

                                  Rendered on September 24, 2013


                Saia & Piatt, Inc., and Lisa A. Wafer, for appellant.

                Michael DeWine, Attorney General, and Yvonne Tertel, for
                appellee Ohio Department of Job & Family Services.

                Fisher & Phillips LLP, Daniel P. O'Brien, James D. Kurek, and
                Nicole H. Farley, for appellee Bob Caldwell Dodge Country,
                Inc.

                  APPEAL from the Franklin County Court of Common Pleas.

BROWN, J.
        {¶ 1} Michael Williams, appellant, has filed an appeal from the judgment of the
Franklin County Court of Common Pleas, in which the court affirmed the decision of the
Unemployment Compensation Review Commission ("commission"), a division of the
Ohio Department of Job & Family Services ("ODJFS"), appellee. In its decision, the
commission found appellant was not entitled to receive unemployment benefits.
No. 13AP-312                                                                                 2


       {¶ 2} The underlying facts will be discussed in more detail in our discussion of the
assignments of error. On March 12, 2012, appellant was terminated from his position as a
sales associate with Bob Caldwell Dodge Country, Inc. ("Caldwell"), appellee. The
termination was based upon three grounds: (1) lying to Caldwell regarding the reason he
requested leave on March 6 and 9, 2012, which Caldwell claimed appellant said was to
care for a sick uncle but was actually to go on a trip to Las Vegas, (2) insubordination,
which arose from appellant's failure to leave the building upon the request of Jon Eplin,
the finance manager, after a March 10, 2012 confrontation with Eplin regarding the
March 6 and 9, 2012 leave, and (3) appellant's failure to properly maintain his "green
book," which is a book that sales associates use to log their sales contacts.
       {¶ 3} On April 5, 2012, appellant filed an application for unemployment
compensation benefits. On April 16, 2012, ODJFS denied the application. On May 29,
2012, ODJFS's decision was reversed upon redetermination. Caldwell appealed. On
July 3, 2012, the director of ODJFS affirmed the reversal and granted appellant
unemployment compensation benefits. Caldwell appealed the director's determination,
and a hearing was held by a commission hearing officer. On August 7, 2012, the hearing
officer reversed the award of unemployment benefits, finding appellant had been
discharged for just cause.
       {¶ 4} Appellant appealed the hearing officer's decision to the commission. The
commission granted appellant's request for review and held a hearing before a hearing
officer. On November 8, 2012, the hearing officer affirmed the August 7, 2012 decision to
deny benefits to appellant, finding that Caldwell had discharged appellant for just cause.
       {¶ 5} Appellant appealed the commission's decision to the common pleas court.
On March 14, 2013, the court issued a decision affirming the commission's decision to
deny benefits to appellant. Appellant appeals the judgment of the common pleas court,
asserting the following assignment of error:
               The review commission's decision that Appellant was fired for
               just cause was unlawful, unreasonable and against the
               manifest weight of the evidence and the lower court's
               affirmance of the same should be reversed.
No. 13AP-312                                                                              3


       {¶ 6} In appellant's sole assignment of error, appellant contests the trial court's
affirmance of the commission's decision. A trial court and an appellate court employ the
same, well-established standard of review in unemployment compensation appeals: "[A]
reviewing court may reverse the board's determination only if it is unlawful,
unreasonable, or against the manifest weight of the evidence." Tzangas, Plakas & Mannos
v. Ohio Bur. of Emp. Servs., 73 Ohio St.3d 694, 697 (1995); R.C. 4141.282(H). When a
reviewing court (whether a trial or appellate court) applies this standard, it may not make
factual findings or determine witness credibility. Irvine v. State Unemployment Comp.
Bd. of Rev., 19 Ohio St.3d 15, 18 (1985). Factual questions remain solely within the
commission's province. Tzangas at 696. Thus, a reviewing court may not reverse the
commission's decision simply because "reasonable minds might reach different
conclusions." Irvine at 18. The focus of an appellate court when reviewing an
unemployment compensation appeal is upon the commission's decision, not the trial
court's decision. Moore v. Comparison Mkt., Inc., 9th Dist. No. 23255, 2006-Ohio-6382,
¶ 8. In determining whether a commission's decision is or is not supported by the
manifest weight of the evidence, this court applies the civil manifest weight of the
evidence standard set forth in C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279
(1978), syllabus, which holds: "Judgments supported by some competent, credible
evidence going to all the essential elements of the case will not be reversed by a reviewing
court as being against the manifest weight of the evidence."
       {¶ 7} R.C. 4141.29 establishes the eligibility requirements for unemployment
benefits. Pursuant to R.C. 4141.29(D)(2)(a), an individual is not eligible for
unemployment compensation benefits if he or she has been "discharged for just cause in
connection with the individual's work." The term "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 at 17, quoting Peyton v. Sun T.V., 44 Ohio App.2d 10, 12 (10th
Dist.1975). Further, "[f]ault on an employee's part is an essential component of a just-
cause determination." Williams v. Ohio Dept. of Job & Family Servs., 129 Ohio St.3d 332,
2011-Ohio-2897, ¶ 24. " '[T]he critical issue is not whether the employee has technically
violated some company rule, but whether the employee by his actions [or inactions]
demonstrated an unreasonable disregard for his employer's interests.' " Gregg v. SBC
No. 13AP-312                                                                                 4


Ameritech, 10th Dist. No. 03AP-429, 2004-Ohio-1061, ¶ 39, quoting Piazza v. Ohio Bur.
of Emp. Servs., 72 Ohio App.3d 353, 357 (8th Dist.1991).
       {¶ 8} Several witnesses presented testimony at one or both of the two hearings
before the commission. Appellant testified that he called off work on March 5, 2012
because he had a doctor's appointment for pain associated with a February 2012 car
accident. He did not give the doctor's excuse to anyone at Caldwell because no one asked
for it, although Joe Reichley, the sales manager, told him to bring it in when he returned
to work. He had prior approval to miss work on March 6 and 9, 2012, and he left for Las
Vegas on March 6, 2012. When he returned to work on March 10, 2012, Eplin called him
into his office. Appellant testified that the first thing Eplin said to him was, "[N]igger, who
in the hell do you think you are? Who gave you that special schedule and who told you you
could go to Vegas?" He denied he told Eplin that Eplin did not have the authority to
discipline him. Instead, appellant testified that he immediately went to Reichley and told
him that Eplin had attacked him. Reichley told him to go outside and get some air for 30
minutes. After doing so, appellant came back and told Eplin that he had specifically told
Duane Dumas, the general manager, and the owner, Karen Caldwell, that he was going to
Las Vegas, and everybody knew he was going to Las Vegas. He said he did not say
anything to Eplin or anyone else about Eplin's use of a racial epithet because he was afraid
of losing his job. Eplin then asked him if he had his green book, the use of which had been
instituted about one month prior to keep track of sale contacts. He then retrieved the
green book for Eplin. He denied Caldwell's claim that he had entered into the green book
that he was "too busy" to record anything. Eplin said his completion of the green book was
not good enough, he should leave, and Eplin would have to talk to Dumas about the
situation later. Appellant asked Reichley, who was with them at the time, what he should
do so Reichley telephoned Dumas who said appellant should leave. Appellant left work
and returned two days later. On March 12, 2012, he met with Dumas, who told appellant
that they had to let him go. Appellant tried to explain that he was granted leave for Las
Vegas, everybody knew he was going to Las Vegas, and he had the doctor's excuse for
March 5, 2012, but Dumas said he would still have to let him go. Appellant testified that
he could not remember if he had told anyone that Eplin used the racial epithet prior to the
hearing before the second hearing officer.
No. 13AP-312                                                                               5


       {¶ 9} Dumas, the general manager, testified that, prior to March 10, 2012,
appellant had never discussed with him that he would be in Las Vegas on March 6 and 9,
2012. Dumas testified that Las Vegas was never mentioned, and appellant was granted the
time off because he said he had to care for a sick uncle. When he met with appellant on
March 12, 2012, appellant never claimed he had permission to go to Las Vegas and offered
nothing in his defense. He said giving false reasons for requesting time off would be
grounds for a written warning. Dumas said appellant was terminated because his green
book was not up to date, he falsely called in sick the day before his leave was to begin, his
leave was supposed to be to care for a sick uncle and not to go to Las Vegas, and his
insubordination with Eplin in not leaving when ordered.
       {¶ 10} Eplin testified that appellant had asked for a schedule change for March 6
and 9, 2012 to take care of his sick uncle. Eplin said that a schedule change like this is
significant because it can leave them short-staffed without enough salespeople to handle
customers. Eplin discovered via Facebook that appellant went to Las Vegas on those days
instead. Eplin also saw on Facebook that appellant was getting a haircut and preparing for
his Las Vegas trip on March 5, 2012, when he had called off sick. When appellant returned
to work March 10, 2012, Eplin confronted him about the misrepresentations. Eplin was
going to issue appellant a single written warning for misrepresenting why he needed time
off between March 6 and 9, 2012, and misrepresenting that he was sick with back pain on
March 5, 2012. After he called appellant into his office, appellant told him he had no
authority to discuss the matter with him and walked out of Eplin's office. Eplin called
appellant back to his office again 20 minutes later and told him he was going to issue him
a written warning. Appellant told him the matter was none of his business and went to
Reichley's office. Reichley told him to go on a walk to clear his head for 20 or 30 minutes.
On his way out, Eplin told him not to return until the following Monday unless he could
show him his green book. Appellant returned 60 to 90 minutes later with his green book.
His green book indicated on every page that he was too busy to fill it out because he was
talking to customers, except the last two pages, on which he had written that Eplin was
making his job difficult. Eplin believed appellant had just filled in the book during the
time he was gone from the building. He told appellant to leave the premises and return
Monday to talk to Dumas. Appellant refused to leave. After Dumas was contacted via the
No. 13AP-312                                                                              6


phone, Dumas told appellant to leave the premises and come back on March 12, 2012.
Eplin said that the employee handbook provides that insubordination is a dischargeable
offense, and there were four times appellant was insubordinate on March 10, 2012.
        {¶ 11} Lori LaWarre, the human resources manager, testified that she was not at
the business on March 10, 2012, and did not witness any events on that day. As of the date
she submitted her statement to the commission, she had no personal knowledge as to
whether protocol was followed in appellant's green book because she did not see the green
book.
        {¶ 12} Appellant first asserts that Caldwell acknowledged it did not intend to
discharge him for missing work on March 5, 2012, but only to issue a written warning
based upon appellant's alleged false reasons for taking time off from work; thus, it had no
just cause to terminate him. With respect to his leave request on March 6 and 9, 2012,
appellant contends that (1) Caldwell was aware of and approved his time off on March 6
and 9, 2012, (2) despite the fact that Caldwell maintained that they believed appellant
requested the time off to care for a sick uncle, which appellant denies, Caldwell was not
harmed by appellant's absence on these days, (3) there was no evidence that there was a
company policy that employees had to tell Caldwell what they intended to do during their
personal leave, and (4) the incident did not rise to the level that would support a finding
that he acted in contravention of his employer's best interest.
        {¶ 13} While we agree that Eplin said he was originally only going to give appellant
a written warning, the other incidents of insubordination and misrepresentation that
occurred after Eplin tried to discuss the matter with appellant gave Caldwell just cause to
terminate him. Although appellant also urges that Caldwell was aware that he requested
the time off work so he could go to Las Vegas, there is no evidence in the record to support
appellant's claim. Eplin and Dumas both testified that appellant never told them that he
was requesting the schedule change so he could go to Las Vegas and both agreed that
appellant had told them that he needed the schedule change in order to care for a sick
relative. This is an issue of credibility for the commission, which we cannot disturb upon
review. The commission obviously believed the witnesses for Caldwell, and appellant gives
us no reason to question that determination.
No. 13AP-312                                                                               7


       {¶ 14} Appellant's argument that Caldwell was not harmed by his absence on
March 6 and 9, 2012 is also unpersuasive. Eplin testified that a schedule change, like that
accommodated here, can result in being short-staffed, leaving customers without
adequate service. Furthermore, although we agree that there was no evidence that there
existed any company policy that employees had to inform Caldwell of what they intended
to do during their personal leave, the problem here stems not particularly from
appellant's activities during vacation but from the fact that appellant had to request a
schedule change, and Caldwell accommodated that schedule change based upon the
misrepresentation that appellant needed the change to care for his sick uncle. That
appellant actively lied to his employer differentiates this case from one in which an
employee merely desires to keep his personal vacation plans private, as appellant seeks to
characterize the present case. Therefore, we find evidence supported the commission's
determination with respect to appellant's misrepresentation of the reason for his vacation
leave request. See, e.g,. Oriana House, Inc. v. Terrell, 9th Dist. No. 19550 (Mar. 15, 2000)
(employee's lying regarding a work-related matter constituted just cause for her
termination).
       {¶ 15} Appellant next argues that Caldwell's complaints regarding his failure to
properly maintain his green book were not supported by the evidence. Appellant asserts
that he testified that he entered all of his sales contacts into the computer system, and the
green book was only a backup system. He contests LaWarre's written statement that his
green book did not meet company protocol because she admitted at trial that she had
never seen his entire green book but had only seen the last two pages. Appellant also
asserts that Caldwell never entered the green book into evidence to substantiate its claims
that he had written "too busy to detail" instead of customer information. There was no
physical evidence of these green book pages themselves, and LaWarre testified that she
had no personal knowledge of the green book entries. However, the commission was free
to believe the testimony of Dumas, who said one of the grounds for termination was that
appellant's green book was not updated, and Eplin, who testified that appellant had
written on every page of his green book that he was too busy to fill it out because he was
talking to customers, except the last two pages, on which appellant had written that Eplin
was making his job difficult. Eplin thought appellant had filled out the green book during
No. 13AP-312                                                                              8


the 90 minutes he had left the building. Also, regardless of whether the green book was
only a backup system to the computer log, the testimony revealed that appellant was
required to complete both the green book and the computer log and failed to do so
honestly and accurately. Falsifying work-related records contrary to the employer's policy
may constitute just cause. See, e.g., Hunt v. Ohio Dept. of Job & Family Servs., 5th Dist.
No. 12CAH040024, 2012-Ohio-4359 (falsifying driver logs contrary to employer's policy
and law constituted just cause for discharge). We find the record provided sufficient
evidence to demonstrate appellant failed to complete the green book as required.
       {¶ 16} Appellant next argues that Caldwell's contention that his insubordination
toward Eplin was the basis for his firing and provided just cause was not supported by the
record. Appellant contends that Dumas testified that the insubordination occurred when
appellant failed to follow Eplin's order that he leave the premises. However, after his
direct supervisor suggested that he call Dumas, and Dumas subsequently told him that he
should leave work for the day, he complied. Appellant contends his failure to exit the
building immediately did not rise to the level that would support a finding he was acting
in contravention of his employer's best interest.
       {¶ 17} Appellant's testimony and the testimony of Eplin differed as to how the
events of March 10, 2012 unfolded. Appellant's testimony shifts the source of acrimony
and the blame for the conflict to Eplin. Appellant claimed that Eplin called him a racial
name, denied that he ever told Eplin he did not have the authority to discipline him, never
mentioned that he twice walked out of the meeting with Eplin, told Reichley that Eplin
attacked him, and denied that he wrote in the green book that he was too busy to make
any entries in it. Eplin's testimony, however, portrays appellant as angry and defensive
when confronted about the vacation, and appellant's behavior worsened from that point.
Eplin testified that on two separate occasions, appellant said his vacation was none of
Eplin's business, that Eplin had no authority to discipline him, and walked out of Eplin's
office. Eplin also said that when appellant brought him his green book after having been
out of the building for 60 to 90 minutes, Eplin found it was not properly filled out and
told appellant to leave, but he refused. Therefore, Eplin's testimony shows that his request
for appellant to leave the premises was the culmination of other acts of insubordination
and appellant's hostile behavior. Although appellant does not believe his failure to follow
No. 13AP-312                                                                             9


the order of Eplin to leave the premises rose to the level of being in contravention of the
employer's best interest, Eplin testified that the employee handbook provides that
insubordination is a dischargeable offense, and Eplin believed this act of insubordination
was only one of four incidents of insubordination that day. Willfully refusing to follow a
direct order of superiors has been deemed insubordination and sufficient justification for
termination. Watson v. Ohio Home Health Care, 2d Dist. No. 22837, 2009-Ohio-537.
Furthermore, refusing to leave work after being instructed to do so has been found to
support a finding that the employee's conduct disrupted work and constituted
insubordination. See Davis v. Original DiCarlo's Pizza Crust Co., 7th Dist No. 04-JE-39,
2005-Ohio-2535, ¶ 21. The commission here obviously believed appellant's act of
insubordination was sufficient for termination for just cause and, especially when coupled
with appellant's bad behavior and insubordination prior to his final act of
insubordination, we find there was evidence from Eplin's testimony to support the
commission's conclusion. See Summitville Tiles, Inc. v. Dir., Ohio Dept. of Job & Family
Servs., 7th Dist. No. 01-CO-17, 2002-Ohio-3004, ¶ 17, citing Irvine at 17 (finding what
constitutes just cause is a question of fact exclusively the province of the commission; a
reviewing court must ascertain only whether it is supported by the record). For the above
reasons, appellant's assignment of error is overruled.
       {¶ 18} Accordingly, appellant's single assignment of error is overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
                                                                      Judgment affirmed.

                          SADLER and T. BRYANT, JJ., concur.

               T. BRYANT, J., retired of the Third Appellate District,
               assigned to active duty under authority of the Ohio
               Constitution, Article IV, Section 6(C).

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