[Cite as Chardon Local School Dist. v. Keller, 2014-Ohio-5623.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


CHARDON LOCAL SCHOOL DISTRICT                           :         OPINION
BOARD OF EDUCATION,
                                                        :
                 Appellee,                                        CASE NO. 2013-G-3159
                                                        :
        - vs -
                                                        :
MICHAEL KELLER,
ADMINISTRATOR OF THE ESTATE OF                          :
PERRY T. YOWELL, DECEASED,
                                                        :
                 Appellant.


Civil Appeal from the Geauga County Court of Common Pleas, Case No. 12 A 001109.

Judgment: Affirmed.


Eric J. Johnson, Susan Keating Anderson, and Mark S. Fusco, Walter & Haverfield,
LLP, The Tower at Erieview, 1301 East Ninth St., Suite 3500, Cleveland, OH 44114
(For Appellee).

Charles W. Oldfield and Ira J. Mirkin, Green, Haines & Sgambati Co., L.P.A., 100
Federal Plaza East, Suite 800, Youngstown, OH 44503 (For Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Michael Keller, administrator of the Estate of Perry T. Yowell, appeals the

judgment of the Geauga County Court of Common Pleas.1 In its decision, the trial court

reversed the decision of the Unemployment Compensation Review Commission (“the


1. While the appeal was pending, Yowell passed away. This court, therefore, granted the motion to
substitute Michael Keller, Administrator of the Estate of Perry T. Yowell, Deceased, as appellant for Perry
T. Yowell.
Commission”), which affirmed the decision of the Hearing Officer. In its decision, the

Hearing Officer had determined Yowell was entitled to unemployment compensation

because his employer, Appellee Chardon Local School District Board of Education (“the

Board”), terminated him without just cause.

       {¶2}   Yowell was employed as a maintenance worker at the Chardon Local

School District. On the morning of February 27, 2012, a shooting occurred at Chardon

High School; three students died, and three others were injured. Yowell was called to

the crime scene because of a water leak.          While at the scene, Yowell, without

permission, took a photograph of the bloody aftermath on his cellular telephone. Yowell

displayed this photograph to community members, co-workers, and a student. This

picture depicted evidence of blood and brain matter from the victims that resulted from

the tragic shooting.

       {¶3}   Upon learning of the existence of this photo, the Chardon Police

Department inquired of Yowell. Yowell was also interviewed by an Assistant Geauga

County Prosecutor. He indicated that he had shown this photograph to two of his co-

workers. This statement was confirmed in Yowell’s written statement. Additionally, two

individuals gave written statements to the prosecutor’s office noting that the picture

depicted two pools of blood on the floor of the cafeteria; one of the statements indicated

that Yowell informed her there was also brain matter on the cafeteria table.

       {¶4}   When the superintendent was notified, he conducted an investigation.

The superintendent noted that Yowell did not disclose that he had shown the

photograph to the co-workers or other district employees. Yowell also informed the




                                              2
superintendent that the picture was low resolution and it just looked like “black spots” on

the floor.

       {¶5}    Yowell was placed on suspension during this investigation. Following a

pre-disciplinary hearing, the matter was considered by the Board. The Board voted to

terminate Yowell’s employment. The Board’s “Resolution of Termination” stated that

Yowell had engaged in misconduct by photographing the crime scene for improper

purposes. It further stated that Yowell had engaged in misconduct by showing the

picture to other staff members, a student, and community members. The Resolution

stated that Yowell had been dishonest and had violated Board Policy.

       {¶6}    Yowell filed an application for determination of benefit rights with Ohio

Department of Job and Family Services (“ODJFS”); the Director issued an initial

determination that Yowell was discharged from his employment with just cause and

disallowed his unemployment benefits.

       {¶7}    Yowell filed an appeal from this initial determination. The Director issued

a   redetermination    affirming   its   prior   determination.   Yowell   appealed    this

redetermination, and the case was transferred to the Commission. A hearing was held.

       {¶8}    The Hearing Officer for the Commission, in his decision, reversed the

Director’s redetermination which had disallowed Yowell’s application for unemployment

benefits.     In reversing this decision, the Hearing Officer observed that Yowell’s

photograph taken at the scene of the tragic incident “showed a lack of respect for the

shooting victims and their families. [Yowell] used poor judgment in deciding to take the

picture without obtaining permission.” The Hearing Officer noted, however, that the

employer had no particular rule concerning photographing the school cafeteria, and “by




                                                 3
merely taking a picture and showing it to others, he did not engage in any particular act

of misconduct.” The Hearing Officer further reasoned that Yowell did not publish the

picture nor did any of the family members of the victims become aware of his actions.

He stated, “[t]he totality of the record before the Hearing Officer does not establish that

there was sufficient fault or misconduct attributable to the claimant to disqualify him from

receiving unemployment compensation benefits.”

       {¶9}   On September 12, 2012, appellee initiated a Request for Review by the

Commission. The Commission granted that request on September 26, 2012. After

review of the entire record, on October 10, 2012, the Commission concluded that the

Hearing Officer’s decision should be affirmed.

       {¶10} Appellee filed an administrative appeal, pursuant to R.C. 4141.282(H).

After briefing by the parties, the trial court reversed the decision of the Commission. In

its judgment entry, the trial court found the following:

              This Court does, however, find that the discharge was with just
              cause. Not because [Yowell] was dishonest or because he attained
              the last step on the disciplinary scale.

              The reason this court finds that [Yowell] was at fault was because
              of his outrageous and egregious conduct.

              The hearing officer found that [Yowell’s] photographing of the crime
              scene was ‘insensitive * * * it showed a lack of respect for shooting
              victims and their families. The claimant used poor judgment in
              deciding to take the picture without obtaining permission. Further,
              he demonstrated a lack of tact by showing it to other individuals.’

              The foregoing conclusion reached by the hearing officer is not
              reasonable. To characterize what [Yowell] did in this case as
              exercising poor judgment, as insensitive, or not being tactful, is
              grossly disproportionate.

              The employer need not have any particular rule concerning
              photographing the school cafeteria in order for an employee to be



                                              4
                 discharged with just cause for photographing the aftermath of the
                 incident that occurred here. * * * [Yowell] here went beyond the line
                 of insensitivity or lack of tact. [Yowell’s] conduct was profoundly
                 troubling. The photograph is inherently gruesome. It shocks the
                 sensibilities of any reasonable person.

       {¶11} Yowell filed an appeal with this court.        On appeal, Yowell asserts the

following:

       {¶12} “The trial court erred when it reversed the decision of the Unemployment

Compensation Review Commission.”

       {¶13} Appellee filed a cross-assignment of error pursuant to App.R. 3(C)(2). A

cross-assignment of error may be filed pursuant to that rule or R.C. 2505.22 when a

party wishes to defend a judgment or order appealed by an appellant on a ground other

than that relied on by the trial court, while not seeking to change the judgment or order.

See 2013 Staff Note, App.R. 3(C)(2). In its cross-assignment of error, appellee asserts

the following:

       {¶14} “The lower court erred by ignoring undisputed, relevant evidence of prior

misconduct and progressive discipline.”

       {¶15} Before we address Yowell’s assigned error, we note that appellee argues

this court does not have jurisdiction to entertain Yowell’s appeal. Appellee, in both a

motion to dismiss and its appellate brief, maintains that this appeal should be dismissed

because a claim for unemployment benefits does not survive the death of the claimant.

In our March 26, 2014 judgment entry, this court distinguished Hodge v. Ohio Bur. of

Emp. Serv., 6th Dist. Lucas No. L-083-016, 1983 Ohio App. LEXIS 12415, whereby the

Sixth Appellate District held that an action to recover unemployment compensation is

grounded on a “personal right,” which is non-transferable.




                                               5
      {¶16} In our judgment entry, we noted that Yowell filed this appeal prior to his

death. This appeal seeks a reversal of the trial court’s judgment, which would preclude

the ODJFS from seeking repayment of the benefits from Yowell’s estate that were

received during his lifetime. No new or additional benefits are being sought. Finding we

have jurisdiction to entertain the instant appeal, we proceed to address the merits of

Yowell’s assigned error.

      {¶17} A reviewing court may reverse a “just cause” determination by the

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

evidence.” Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Serv., 73 Ohio St.3d 694

(1995), paragraph one of the syllabus. An appellate court’s obligation is to consider

whether the decision is based upon evidence in the record, without substituting its

judgment regarding witness credibility for those of the commission. Id. at 696. Thus,

“[t]he fact that reasonable minds might reach different conclusions is not a basis for the

reversal of the board’s decision. * * * ‘Where the board might reasonably decide either

way, the courts have no authority to upset the board’s decision.’” Irvine v. Unemp.

Comp. Bd. of Review, 19 Ohio St.3d 15, 18 (1985), quoting Charles Livingston & Sons,

Inc. v. Constance, 115 Ohio App. 437, 438 (7th Dist.1961).

      {¶18} Essentially, the purpose of Ohio’s Unemployment Compensation Act is “‘to

enable unfortunate employees, who become 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.’”

Irvine, supra, at 17, quoting Leach v. Republic Steel Corp., 176 Ohio St. 221, 223

(1964).




                                            6
              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.

Tzangas, supra, at 697-698.

       {¶19} In order to qualify for unemployment compensation benefits, a claimant

must satisfy the criteria set forth in R.C. 4141.29(D)(2)(a). That section provides: “[N]o

individual may * * * be paid benefits * * * [f]or the duration of the individual’s

unemployment if the director finds that [t]he individual quit work without just cause or

has been discharged for just cause in connection with the individual’s work * * *.” The

Ohio Supreme Court has defined “just cause” as “that which, to an ordinarily intelligent

person, is a justifiable reason for doing or not doing a particular act.” Irvine, supra, at

17; Tzangas, supra, at 697.

       {¶20} We turn to the gravamen of appellant’s appeal—whether the trial court

erred in reversing the Commission’s decision granting unemployment benefits on the

basis that Yowell was discharged without just cause. Appellant contends the Hearing

Officer’s finding that Yowell was not guilty of wrongdoing and that he was fired without

just cause is supported by at least some competent, credible evidence.           Appellant

maintains the Hearing Officer’s findings that Yowell neither violated any policies of the

school as cited by the Board nor engaged in any misconduct are supported by

competent, credible evidence.

       {¶21} In its cross-assignment of error, appellee maintains that at the time Yowell

took the photograph at issue, his prior misconduct had placed him at Step 5 of the




                                            7
Progressive Discipline provision, which identifies termination of employment as an

appropriate disciplinary measure. Appellee argues that the hearing officer and the trial

court failed to take into consideration that Yowell had three prior instances of

misconduct and that Yowell was aware any subsequent misconduct may lead to

termination. The trial court concluded that Yowell was fired for just cause, but not

because he was dishonest or because he attained the last step on the discipline scale.

      {¶22} Where an employee demonstrates “‘unreasonable disregard for [the]

employer’s best interests,’” just cause for the employee’s termination is said to exist.

Kiikka v. Ohio Bur. of Emp. Servs., 21 Ohio App.3d 168, 169 (8th Dist.1985), quoting

Stephens v. Bd. of Rev., 8th Dist. Cuyahoga No. 41369, 1980 Ohio App. LEXIS 12234,

*4.

      {¶23} While [the Ohio Supreme Court] did hold * * * that ‘the
      determination of whether just cause exists necessarily depends upon the
      unique factual considerations of the particular case,’ * * * that does not
      compel the appellate court’s abandonment of fault-based just cause
      analysis in favor of a ‘totality of the circumstances’ examination. Instead, *
      * * the question of fault cannot be rigidly defined, but, rather, can only be
      evaluated upon consideration of the particular facts of each case. If an
      employer has been reasonable in finding fault on behalf of an employee,
      then the employer may terminate the employee with just cause. Fault on
      behalf of the employee remains an essential component of a just cause
      termination.

Tzangas, supra, at 698.

      {¶24} The record demonstrates that Yowell had been disciplined for numerous

instances of misconduct: (1) for being in possession of a district-owned piece of

equipment at his personal residence; (2) for showing pornographic material to a minor

who was working as seasonal help at the district; and (3) for “overt and excessive

personal use of a Board owned computer.” At the time of this incident, Yowell was at




                                            8
the top level of discipline under a progressive discipline regime.                The record

demonstrates that Yowell was aware that under the progressive discipline steps,

termination was a possibility.     In fact, the letter to Yowell indicating the Board had

adopted a resolution to terminate his employment relied upon his pattern of misconduct,

including prior disciplinary infractions.

       {¶25} In his decision, the Hearing Officer recognized that Yowell “had been

given several previous warnings and a suspension.” The Hearing Officer, however,

noted that “because appellee had not established that Yowell was at fault in the final

incident, the previous discipline [was] irrelevant to the determination as to the reason for

separation.” This conclusion is inherently inconsistent because the Hearing Officer also

acknowledged that Yowell was directly responsible for his predicament. “Photographing

the area in which the students were shot was insensitive. It showed a lack of respect

for the shooting victims and their families. The claimant used poor judgment in deciding

to take the picture without obtaining permission. Further, he demonstrated a lack of tact

by showing it to other individuals.”

       {¶26} Further, it was not reasonable for the Hearing Officer to limit the just cause

determination to this particular incident, as the Board’s decision to terminate Yowell

relied upon his prior disciplinary infractions, as evidenced by the termination letter. The

trial court indicated in its ruling that Yowell’s “previous discipline [was] not relevant as to

the determination as to the reason given by the Board for separation of Appellee from

his employment.”      Ostensibly, this is because the trial court found just cause for

Yowell’s termination without reference to his prior discipline.          However, the prior

discipline was additional support for the Board’s decision to terminate Yowell and lends




                                              9
weight to the decision in an examination of the totality of the circumstances.          See

Village of Bellaire v. Unemp. Comp. Rev. Comm., 7th Dist. Belmont No. 11 BE 3, 2011-

Ohio-5167, ¶25 (discussing whether the Hearing Officer was reasonable to limit the

determination of just cause to actions that occurred prior to or after the employee’s

demotion). Therefore, the previous discipline was, to the extent indicated, relevant.

       {¶27} Yowell demonstrated an unreasonable disregard for his employer’s best

interests. Yowell, whose only direction was to turn the water off in the cafeteria—the

scene of the incident—used his position as a school employee to voluntarily go beyond

the task at hand. Without permission, Yowell took a photograph depicting the bloody

aftermath of a tragic school shooting; Yowell did not take the photograph to aid in the

criminal investigation but for his own personal interest.      In addition to taking the

photograph, Yowell showed it to co-workers, community members, and even a student.

Although the photograph itself is not contained in the record, the record does reflect

numerous depictions of the photograph. This photograph showed the pools of blood of

the students shot and killed during this tragedy—a tragedy that affected the Chardon

community and those associated with the school district. In fact, when showing the

picture to one co-worker, Yowell commented that the picture depicted “two pools of

blood on the floor and * * * brain matter on the table.”

       {¶28} Yowell, not any outside economic factor, was responsible for his

dismissal.   Prior to taking this photograph, Yowell was aware that based on his

instances of prior misconduct, termination was a possibility. Yet, Yowell proceeded to

not only take a photograph of the scene, but he showed and described it to others. If

Yowell had not taken the photograph and showed it to other individuals, he may not




                                             10
have been terminated.      Yowell was the “engine of his own termination.”         City of

Ashtabula v. Rivas, 11th Dist. Ashtabula No. 2011-A-0020, 2012-Ohio-865, ¶24.

       {¶29} The Hearing Officer noted that none of the victim’s family members

became aware of Yowell’s actions; if they became aware of the photograph, then

certainly “the district could suffer bad publicity and potential liability.”   The Hearing

Officer stated that appellee was “unable to point to any particular harm that actually

occurred because of [Yowell’s] behavior” and “there is no evidence that his behavior

had a detrimental effect on the employer.” However, there is not a requirement of harm

when considering whether an employee’s actions demonstrated an unreasonable

disregard for his employer’s best interests. See Bonanno v. Ohio Dept. of Job & Family

Serv., 5th Dist. Tuscarawas No. 2012 AP 02 0011, 2012-Ohio-5167, ¶23 (noting that an

employee’s failure to comply with safety rules showed an “‘unreasonable disregard’ for

his employer’s best interests and subjected his employer to potential legal liability”)

(emphasis added).

       {¶30} Upon a review of the record, we conclude that there was not competent,

credible evidence presented from which the Commission could have reasonably

determined that Yowell was terminated without just cause. The decision of the trial

court, reversing the decision of the Commission, was not unlawful, unreasonable, or

against the manifest weight of the evidence. It is our determination that the Court of

Common Pleas did not err in reversing the Commission’s Decision.

       {¶31} Appellant’s assignment of error is without merit.

       {¶32} Appellee’s cross-assignment of error is with merit to the extent indicated.




                                            11
       {¶33} For the reasons discussed above, the judgment of the Geauga County

Court of Common Pleas is hereby affirmed.



THOMAS R. WRIGHT, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.


                                ____________________


COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

       {¶34} The majority holds that there was not competent, credible evidence

presented from which the Review Commission could have reasonably determined that

Yowell, now deceased, was terminated without just cause. The majority contends that

the decision of the trial court, reversing the decision of the Review Commission, was not

unlawful, unreasonable, or against the manifest weight of the evidence. The majority

determines that the trial court did not err in reversing the Review Commission’s

decision. Because I disagree with the majority’s position, I respectfully dissent.

       {¶35} This case involves an administrative appeal. R.C. 4141.282, “Appeal to

court,” provides in part:

       {¶36} “(H) REVIEW BY THE COURT OF COMMON PLEAS

       {¶37} “The court shall hear the appeal on the certified record provided by the

commission.     If the court finds that the decision of the commission 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 commission. Otherwise, the court shall

affirm the decision of the commission.”




                                            12
      {¶38} R.C. Chapter 4141 does not distinguish between the scope of review of a

common pleas court and that of an appellate court with respect to Review Commission

decisions. Additionally, the Supreme Court of Ohio has confirmed that “there is no

distinction between the scope of review of common pleas and appellate courts

regarding ‘just cause’ determinations under the unemployment compensation law.”

Durgan v. Ohio Bur. of Emp. Servs., 110 Ohio App.3d 545, 551 (9th Dist.1996), citing

Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Servs., 73 Ohio St.3d 694, 696-697

(1995). This Court is required to focus on the decision of the Review Commission,

rather than that of the common pleas court, in such cases. Barilla v. Ohio Dept. of Job

& Family Servs., 9th Dist. Lorain No. 02CA008012, 2002-Ohio-5425, ¶6, citing Tenny v.

Oberlin College, 9th Dist. Lorain No. 00CA007661, 2000 Ohio App. LEXIS 6169, *5

(Dec. 27, 2000).

      {¶39} The investigation into just cause is a factual inquiry.              Irvine v.

Unemployment Comp. Bd. of Review, 19 Ohio St.3d 15, 17 (1985). This court is not to

make factual findings or determine the credibility of the witnesses. Id. at 18. Rather,

this court and all reviewing courts from the first level of review through the final appeal

share a duty to determine whether the Review Commission’s decision is supported by

some competent, credible evidence.        Id.; Tzangas, supra, at 696.      The fact that

reasonable minds might reach different conclusions is not a basis for reversing the

Review Commission’s decision. Irvine, supra, at 18.

      {¶40} In this case, Yowell, a maintenance repairman for the School Board, was

terminated because he used his cell phone, in this digital age in which we live, to take a

low resolution picture of the cafeteria following the February 2012 Chardon High School




                                            13
shooting. Yowell took the photo after the victims had been removed from the cafeteria.

The photo was described as showing a black spot on the floor. Yowell showed the

photo to his nephew and a few others. However, Yowell never printed, published, or

circulated the picture.

       {¶41} Yowell was never told that he could not take any pictures in the cafeteria.

Nothing in the record indicates the photo provided any personal or identifying

information as to any student. The picture was taken from outside the crime scene area

and from behind the police tape marking the crime scene. The photo, when displayed

on Yowell’s cell phone, was about one and a quarter inches by two inches. There is no

evidence that the photo was shocking or gruesome.         In fact, the photo was never

introduced into evidence and is not in the record.

       {¶42} Although Yowell was fired for his actions, another employee who also had

taken a photo was not. That employee had taken a picture from a short distance and at

a high resolution of a spent bullet he found at the crime scene. That employee showed

Yowell and others the photo he had taken. The School Board neither disciplined nor

fired that employee. This writer is both puzzled and disturbed by the School Board’s

disparate treatment involving these two employees.

       {¶43} The School Board based its decision to fire Yowell on the grounds that he

violated policy (regarding the confidentiality of student information) and that he was

dishonest. This writer stresses, however, that there is no evidence in the record that

Yowell disclosed any confidential student information. As stated, no students were in

the picture and nothing identifiable to any particular student was contained in the photo.

Yowell did not violate any particular work rule, policy, or engage in any misconduct.




                                           14
Also, there was no evidence that the photo, which was never published, caused any

harm to the school district or to any student.

       {¶44} Because Yowell was terminated, he filed an application for unemployment

benefits. However, his application was disallowed. Yowell appealed and a hearing was

held before a hearing officer.      After hearing all the evidence, the hearing officer

determined the School Board lacked just cause to terminate Yowell. The School Board

filed a request for review claiming that the hearing officer imposed the wrong standard.

However, the hearing officer correctly articulated the applicable just cause standard as,

“fault or misconduct attributable to the claimant.”

       {¶45} After reviewing the entire record, the Review Commission affirmed the

hearing officer’s decision. Nevertheless, the School Board appealed to the trial court,

essentially asking it to disregard the Review Commission’s factual determination and

make its own factual determination. Without even looking at the photo, the trial court

second-guessed the hearing officer and reversed the Review Commission’s decision.

Yowell filed a timely appeal to this court, where the majority holds the trial court

committed no error.

       {¶46} This writer agrees with appellant that competent, credible evidence

supports the Review Commission’s decision. The hearing officer found Yowell was not

guilty of any wrongdoing. The hearing officer also found that Yowell was fired without

just cause. The trial court went well beyond its limited role by disregarding the Review

Commission’s factual determinations and substituting its judgment for that of the Review

Commission. The trial court determined the photograph was inherently gruesome and

that it shocks the sensibilities of any reasonable person. However, the court made that




                                             15
factual determination without ever seeing the photograph because it is not in the record!

Not only do the facts not show the violation of any policy, the trial court wrongfully

substituted its judgment for that of the Review Commission.

      {¶47} For the foregoing reasons, I respectfully dissent.




                                           16
