[Cite as Fulton v. Ohio Dept. of Job & Family Servs., 2011-Ohio-5673.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96562




                                      JERRY FULTON
                                                           PLAINTIFF-APPELLANT

                                                     vs.

                           OHIO DEPARTMENT OF
                         JOB AND FAMILY SERVICES
                                                           DEFENDANT-APPELLEE




                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-684448

        BEFORE: Keough, J., Celebrezze, P.J., and Sweeney, J.

        RELEASED AND JOURNALIZED: November 3, 2011
ATTORNEY FOR APPELLANT

Sylvester Summers, Jr.
Sylvester Summers, Jr., Co., LPA
Lexington Village
7804 Linwood Avenue
Cleveland, OH 44103

ATTORNEYS FOR APPELLEE

Michael DeWine
Ohio Attorney General
Laurel Blum Mazorow
Assistant Attorney General
State Office Building, 11th Floor
615 W. Superior Avenue
Cleveland, OH 44113-1899



KATHLEEN ANN KEOUGH, J.:

       {¶ 1} Appellant, Jerry Fulton, appeals the decision of the common pleas court that

affirmed the decision of the Ohio Unemployment Review Commission (“commission”),

which found that Fulton was terminated for just cause and denied his claim for

unemployment compensation. We affirm the decision of the trial court.

                                                I

       {¶ 2} On June 27, 2008, Fulton was discharged from his position as maintenance

supervisor with MBA Realty Company, Inc. (“MBA Realty”). He filed an application

for unemployment benefits, which the director of Ohio’s Department of Job and Family

Services disallowed upon a determination that Fulton was discharged for just cause.

Fulton appealed; the director subsequently affirmed the initial determination.
       {¶ 3} Fulton filed an appeal from the redetermination and the director transferred

jurisdiction to the commission. After a hearing,1 the hearing officer issued a decision

affirming the denial of benefits and finding that Fulton was discharged for just cause.

The commission subsequently denied Fulton’s request for further review.

       {¶ 4} Fulton then appealed the commission’s decision to the common pleas court,

which affirmed the commission’s decision, finding that the decision was not unlawful,

unreasonable, or against the manifest weight of the evidence. Fulton now appeals from

the trial court’s order.

                                                  II

       {¶ 5} Reviewing courts (both trial and appellate) may reverse the commission’s

decision only if it is “unlawful, unreasonable, or against the manifest weight of the

evidence.” R.C. 4141.282(H); Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Servs.,

73 Ohio St.3d 694, 696, 1995-Ohio-206, 653 N.E.2d 1207. Reviewing courts cannot

make factual findings or determine the credibility of witnesses, but must determine

whether the commission’s decision is supported by evidence in the record. Id. at 697.

Every reasonable presumption should be made in favor of the commission’s decision and

findings of fact.      Banks v. Natural Essentials, Inc., Cuyahoga App. No. 95780,

2011-Ohio-3063, ¶23, citing Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 19, 526

N.E.2d 1350.

       {¶ 6} Under R.C. 4141.29(D)(2)(a), a claimant is ineligible for unemployment


        The hearing began on October 10, 2008 and concluded on November 18, 2008.
       1
compensation if he was discharged for “just cause in connection with the individual’s

work.” “Just cause” has been defined as “that which, to an ordinarily intelligent person,

is a justifiable reason for doing or not doing a particular act.” Irvine v. Unemployment

Comp. Bd. of Rev. (1985), 19 Ohio St.3d 15, 17, 482 N.E.2d 587. Whether just cause

exists is unique to the facts of each case. Id. The critical issue is whether the employee

by his actions demonstrated an unreasonable disregard for his employer’s best interest.

Piazza v. Ohio Bur. of Emp. Serv. (1991), 72 Ohio App.3d 353, 357, 594 N.E.2d 695,

citing Kiikka v. Ohio Bur. of Emp. Serv. (1985), 21 Ohio App.3d 168, 169, 486 N.E.2d

1233. As the Ohio Supreme Court stated in Tzangas, supra at 697-698:

       {¶ 7} “The [Unemployment Compensation] Act does not exist to protect

employees from themselves, but to protect them from economic forces over which they

have no control. When an employee is at fault, he is no longer the victim of fortune’s

whims, but is instead directly responsible for his own predicament.         Fault on the

employee’s part separates him from the Act’s intent and the Act’s protection. Thus, fault

is essential to the unique chemistry of a just cause termination.”

                                                 III

       {¶ 8} The record in this case establishes the following. Fulton worked for MBA

Realty as a maintenance supervisor at the Lexington Village apartment complex. His

immediate supervisor was Keysha Price.

       {¶ 9} Early in March 2008, Fulton was advised that he was to prepare five

apartment units at the complex for tenants who would be moving in on April 1, 2008.
But on March 26, 2008, Fulton told Mary Long, vice president of human resources at

MBA Realty, and Linda Veregin, vice president of MBA Realty’s northern Ohio region,

that he had not yet begun to get some of the units ready for the anticipated April 1, 2008

move-in date. As a result, a worker from another apartment complex owned by MBA

Realty had to help Fulton, which disrupted the work flow at the other complex. On

March 27, 2008, MBA Realty issued a written warning to Fulton regarding his

unsatisfactory work performance.

      {¶ 10} Despite the warning, Fulton assigned his staff to duties other than prepping

the five units. As a result, on March 31, 2008, MBA Realty incurred 18 hours of

overtime pay. As of April 1, 2008, Fulton had not completed the work to prepare the

apartments for occupancy, despite being advised of the high priority of getting the units

ready. Furthermore, as of April 3, 2008, he had not even walked through all of the

apartments to determine if they were ready to be occupied.

      {¶ 11} On April 4, 2008, MBA Realty issued another written warning to Fulton

regarding his poor work performance. The warning stated, in part, that “Jerry has once

again shown poor judgment and did not follow the directives given by the VP. * * *

This consistent poor performance will not be tolerated.        Should he not follow the

directives given and achieve the goals set forth, he may be subject to further disciplinary

action up to and including termination of employment.”

      {¶ 12} On April 26, 2008, Fulton had a work order to repair a leak in the roof of

one of the apartments. Instead of repairing the roof, Fulton worked on the pipes in the
apartment; as he worked on the pipes, the apartment caught on fire, which caused the

apartment to not be ready for occupancy on May 2, 2008, as scheduled. On May 16,

2008, another apartment was not ready for tenants as scheduled because there was a hole

in the closet, the faucets were leaking, and the apartment was not clean.

       {¶ 13} As part of his duties, Fulton was responsible for maintaining the swimming

pool at the Lexington Village apartment complex and was advised by Price that the pool

was to be ready to open for the 2008 Memorial Day weekend. The pool was not ready by

Memorial Day, however. It opened on June 6, 2008, even though there was a problem

with the pool pump. Several days later, when Price learned of the pump problem, the

pool was closed. As of June 27, 2008, the pool was still not ready to be opened.

       {¶ 14} On June 27, 2008, MBA Realty discharged Fulton due to his poor work

performance.

                                                IV

       {¶ 15} Fulton raises two assignments of error, both of which challenge the

commission’s finding that he was discharged for just cause. He first argues that his

discharge was without just cause because MBA Realty did not follow its progressive

discipline process before terminating his employment.           Fulton contends that an

employer’s failure to follow its progressive discipline policy before terminating an

employee renders the employee’s discharge without cause for unemployment purposes.

See, e.g., Interstate Brands Corp. v. Cogar (June 13, 1985), Cuyahoga App. No. 48704;

In re Claim of Frazee (Dec. 13, 1984), Franklin App. No. 84AP-284. He asserts that
MBA Realty failed to follow its progressive discipline policy before terminating him and,

therefore, his termination was without just cause.

       {¶ 16} But MBA Realty did not have a progressive discipline policy.            The

employee handbook, which prohibited such conduct as neglect of duty, insubordination,

poor job performance, and refusal to follow the instructions of the employee’s supervisor

or management, made clear that Fulton’s employment was at-will. It stated:

       {¶ 17} “Any infraction of these rules of personal conduct is considered grounds for

corrective and disciplinary action, ranging from verbal warning, written warning,

suspension or immediate termination of employment, depending on the seriousness of the

offense and at the Company’s sole discretion. However, nothing in this section shall be

construed to require levels of progressive discipline or to alter an employee’s employment

status from ‘at-will’ employment.”

       {¶ 18} Fulton acknowledged in writing that he had received the employee

handbook. The acknowledgement specifically stated that “either the Company or I may

terminate the employment relationship with or without cause at any time.”

       {¶ 19} Hence, Fulton’s assertion that his discharge was without just cause because

MBA Realty failed to follow its progressive discipline policy before terminating him is

without merit. Furthermore, even if there had been a progressive discipline policy, the

record reflects that Fulton received two written warnings prior to his discharge.

       {¶ 20} Fulton next contends that the commission made erroneous factual findings

in concluding that he was terminated for just cause. Fulton argues that the hearing
officer’s conclusion that he had neglected to do his job because the pool was not open for

the 2008 Memorial Day weekend was erroneous because he did not authorize the pool to

be opened, and management knew that the pool pump was not operating properly and the

pool could not be opened.

       {¶ 21} But whether Fulton authorized the opening of the pool in June 2008, or

whether management knew of the problem with the pump before that time, are not

dispositive of whether Fulton neglected his job duties. As the hearing officer concluded,

“the swimming pool was supposed to be ready for the 2008 Memorial Day weekend and

it was not. If [Fulton] was not able to personally repair the pool pump, he should have

diligently worked on getting an appropriate contractor to repair it. Weeks later, the

swimming pool was still not ready to be used.” Fulton neglected his job duties by not

ensuring that the pool was ready to be opened for the Memorial Day weekend, as

instructed.

       {¶ 22} Fulton next “vehemently denies” that he authorized any overtime. But any

argument about overtime is irrelevant; it was not mentioned in Fulton’s termination notice

and not referenced in the commission’s decision.

       {¶ 23} Last, Fulton argues that his discharge was without just cause because even

if his alleged acts of misconduct were unacceptable under the employee handbook, they

were not so serious as to warrant discharge, and MBA Realty should have issued a verbal

or written warning instead of discharging him. But as the employee handbook made

clear, it was within MBA Realty’s “sole discretion” to terminate Fulton’s employment for
his repeated faulty job performance, instead of giving him a verbal or written warning, or

suspending him.

       {¶ 24} The evidence in the record supports the commission’s conclusion that

Fulton was terminated through his own fault, i.e., for just cause, and is therefore ineligible

for unemployment compensation. The commission’s decision was neither unreasonable,

unlawful, nor against the manifest weight of the evidence.            Accordingly, Fulton’s

assignments of error are overruled and the decision of the trial court is affirmed.

       Affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
JAMES J. SWEENEY, J., CONCUR
