[Cite as Sturgeon v. Lucas Plumbing & Heating, Inc., 2012-Ohio-2240.]


STATE OF OHIO                    )                        IN THE COURT OF APPEALS
                                 )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

VICTORIA Y. STURGEON                                      C.A. No.      11CA010010

        Appellant

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
LUCAS PLUMBING AND HEATING INC.,                          COURT OF COMMON PLEAS
et al.                                                    COUNTY OF LORAIN, OHIO
                                                          CASE No.   10CV168211
        Appellees

                                DECISION AND JOURNAL ENTRY

Dated: May 21, 2012



        BELFANCE, Judge.

        {¶1}    Appellant Victoria Sturgeon appeals from the decision of the Lorain County

Court of Common Pleas affirming the decision of the Ohio Unemployment Compensation

Review Commission (“UCRC”) which denied Ms. Sturgeon’s claim. For the reasons set forth

below, we affirm.

                                                     I.

        {¶2}    Ms. Sturgeon began working for Appellee Lucas Plumbing and Heating, Inc.

(“Lucas Plumbing”) as a secretary in August 1993. Lucas Plumbing terminated Ms. Sturgeon’s

employment in September 2009. Ms. Sturgeon filed an application for the determination of

unemployment compensation benefit rights. In December 2009, Appellee the Director of the

Office of Unemployment Compensation for the Ohio Department of Job and Family Services

(“the Director”), reversed its initial determination and concluded that Ms. Sturgeon was entitled

to unemployment compensation benefits as she was terminated without just cause.            Lucas
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Plumbing appealed the redetermination and the appeal was transferred to the UCRC. A hearing

officer subsequently held a telephonic hearing. The hearing officer issued a decision denying

Ms. Sturgeon’s claim and concluding she was terminated for just cause and ordered the

repayment of benefits received. Ms. Sturgeon requested that UCRC review the hearing officer’s

determination and the UCRC declined review. Ms. Sturgeon then filed an appeal in the Lorain

County Court of Common Pleas. Ultimately, the lower court affirmed the decision, and Ms.

Sturgeon has sought review by this Court, raising three assignments of error for our review.

                                               II.

                                 ASSIGNMENT OF ERROR I

       THE UCRC’S DECISION THAT STURGEON WAS INSUBORDINATE BY
       REFUSING TO ANSWER QUESTIONS REGARDING WHETHER SHE HAD
       DIRECTED WORK TO A FORMER EMPLOYEE IS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE.

                                 ASSIGNMENT OF ERROR II

       UCRC’S CONCLUSION THAT STURGEON REFUSED TO ANSWER ANY
       QUESTIONS AND THUS WAS INSUBORDINATE IS LIKEWISE AGAINST
       THE MANIFEST WEIGHT OF THE EVIDENCE.

                                ASSIGNMENT OF ERROR III

       THE UCRC ERRED BY FINDING THAT STURGEON WAS TERMINATED
       FOR “INSUBORDINATION.”

       {¶3}    Ms. Sturgeon asserts in her first assignment of error that the UCRC’s finding that

she was insubordinate by failing to answer questions concerning directing work to a former

employee is against the manifest weight of the evidence. Ms. Sturgeon asserts in her second

assignment of error that the UCRC’s finding that she failed to answer any questions and, thus,

was insubordinate is against the manifest weight of the evidence. Ms. Sturgeon asserts in her

third assignment of error that the UCRC erred by finding that she was terminated for
                                                 3


insubordination. As Ms. Sturgeon’s assignments of error are related, they will be addressed

together.

       {¶4}    The UCRC determined that Ms. Sturgeon was not entitled to benefits because she

was terminated for just cause in connection with her work. R.C. 4141.29(D)(2)(a) states that

“no individual may serve a waiting period or be paid benefits under the following conditions: *

* * [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 * * * .” See also Williams v. Ohio Dept. of Job & Family Servs., 129 Ohio

St.3d 332, 2011-Ohio-2897, ¶ 14-19. “The claimant has the burden of proving [his or] her

entitlement to unemployment compensation benefits * * * .” Irvine v. State Unemp. Comp. Bd.

of Rev., 19 Ohio St.3d 15, 17 (1985).

       {¶5}     “This Court is required to focus on the decision of the Review Commission,

rather than that of the common pleas court, in unemployment compensation cases.” Moore v.

Comparison Market, Inc., 9th Dist. No. 23255, 2006-Ohio-6382, ¶ 8. “[W]hile 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 the evidence in the

record.” Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Serv., 73 Ohio St.3d 694, 696 (1995).

       The Unemployment Compensation Review Commission’s determination of
       whether a claimant was discharged with just cause is appealable to the court of
       common pleas: “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.” R.C.
       4141.282(H). This limited standard of review applies to all appellate courts.

Williams at ¶ 20.
                                                  4


       {¶6}    In the instant matter, the trial court affirmed the decision of UCRC, concluding

that Ms. Sturgeon was terminated for just cause. Ms. Sturgeon asserts that the UCRC’s decision

is against the manifest weight of the evidence.

       {¶7}    Although not defined by statute, the Ohio Supreme Court has stated that “just

cause is that which, to an ordinarily intelligent person, is a justifiable reason for doing or not

doing a particular act.” (Internal quotations and citation omitted.) Williams, 2011-Ohio-2897, at

¶ 22. “Fault on an employee’s part is an essential component of a just-cause termination.” Id. at

¶ 24. “[C]ourts have repeatedly held that a discharge is considered for just cause where an

employee’s conduct demonstrates some degree of fault, such as behavior that displays an

unreasonable disregard for his employer’s best interests.” Clucas v. RT 80 Express, Inc., 9th

Dist. No. 11CA009989, 2012-Ohio-1259, ¶ 6. This Court has noted that “even a single incident

of misconduct can create just cause for termination.” Moore, 2006-Ohio-6382, at ¶ 25. “The

employee must provide evidence his [or her] discharge was without just cause by demonstrating

he [or she] was without fault in the incident resulting in his [or her] termination to show he [or

she] is entitled to unemployment compensation.” Clucas at ¶ 7.

       {¶8}    “In determining whether a UCRC decision is or is not supported by the manifest

weight of the evidence, this Court applies the civil manifest weight of the evidence standard * *

* .” Id. at ¶ 9. Thus, “‘[j]udgments 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.’” Id., quoting C.E. Morris Co. v. Foley Const. Co., 54 Ohio

St.2d 279 (1978), syllabus. “[W]hen reviewing a judgment under a manifest-weight-of-the-

evidence standard, a court has an obligation to presume that the findings of the trier of fact are

correct.” (Internal quotations and citation omitted.) Clucas at ¶ 9.
                                                5


       {¶9}    Collectively, Ms. Sturgeon asserts in her assignments of error that the UCRC’s

findings that she refused to answer questions concerning the possible direction of work to a

former employee, that she was insubordinate, and that she was terminated for insubordination are

against the manifest weight of the evidence.

       {¶10} We begin by noting that the UCRC decision does not mention the words

insubordinate or insubordination, despite the fact that that is how Joseph Lucas, the president of

Lucas Plumbing, characterized Ms. Sturgeon’s behavior during his testimony.

       {¶11} The UCRC’s findings of fact are as follows:

       The claimant worked for [Lucas Plumbing] from August 16, 1993 through
       September 29, 2009. Claimant worked as a secretary for the employer.

       On September 29, 2009, claimant was called into a meeting with the company
       president, Joseph Lucas, and the company attorney, Anthony Giardini. Claimant
       was informed that she was going to be asked questions about the activities of
       Larry Roberts, an employee who had been discharged a few days earlier.
       Claimant lived with Mr. Roberts. Mr. Roberts had been discharged because the
       employer believed he was performing work outside of his work hours that should
       have been performed by the employer. The employer intended to question
       claimant concerning possible direction of work to Mr. Roberts instead of the work
       being scheduled for the employer.

       The claimant informed the company president that she would answer no questions
       concerning Mr. Roberts’ activities. The claimant was informed at that time that
       she was being discharged. The company president indicated he did not feel
       comfortable with claimant continuing to work for the company.

       The claimant has reported at the hearing on this matter that she had informed the
       employer that she would answer questions concerning the direction of work to
       Mr. Roberts. The employer has reported that claimant did not state that at the
       time of her discharge.

       {¶12} Based on the above findings, the UCRC concluded that:

       The claimant was discharged by [Lucas Plumbing] when she refused to answer
       questions from the company president concerning the possible direction of work
       to a former employee. Claimant was in a position to direct work to the former
       employee when she worked as a secretary. The claimant, at the hearing on this
       matter, denied taking such action. When questioned by the employer, claimant
       refused to answer any questions. The employer had a right to question claimant
                                               6


       concerning activities which may damage the employer. The testimony of the
       company president, Joseph Lucas, is credible that claimant simply refused to
       answer any questions regarding the former employee. The claimant’s actions
       were not those an employer could reasonably expect from an employee. The
       claimant was discharged by [Lucas Plumbing] for just cause in connection with
       work.

       {¶13} We conclude that UCRC’s decision and challenged findings are not against the

manifest weight of the evidence.

       {¶14} Mr. Lucas, the president of Lucas Plumbing testified that Ms. Sturgeon was

terminated because she refused to cooperate in the company’s investigation concerning another

former employee. Mr. Lucas averred that the former employee, Mr. Roberts, who lived with Ms.

Sturgeon, was “doing side work[.]” Mr. Lucas thus wanted to determine whether Ms. Sturgeon

knew of Mr. Roberts’ violations and whether she was also violating company policy by directing

customers to Mr. Roberts. Mr. Lucas stated that “we called Ms. Sturgeon in [] via my counsel

and we wanted to talk to her about her knowledge of his doing side work since she held a

sensitive position in the company and she refused repeatedly to answer any questions.” Mr.

Lucas testified that, because Ms. Sturgeon answered all the incoming calls, she was in a position

to be able to direct customers to Mr. Roberts instead of the company. Mr. Lucas indicated that

“[w]e tried to tell her that you know, this is involving him and we were trying to get to the

bottom of it and she refused to answer any questions.”

       {¶15} Ms. Sturgeon also testified at the telephonic hearing. She indicated that Mr.

Lucas wanted to question her about Mr. Roberts’ “work activities[.]” She testified that she told

Mr. Lucas before the meeting with him and his attorney that she “had no knowledge” of them,

but she would be happy to answer questions about her own work activities. She stated that she

was terminated because Mr. Lucas “didn’t feel comfortable with [her] being around.” She also
                                               7


stated the Mr. Roberts was fired for filing a grievance and an action with the NLRB and that Mr.

Lucas never questioned her about her possibly directing work to Mr. Roberts.

       {¶16} Thus, the UCRC was presented with conflicting testimony. The UCRC found Mr.

Lucas’ testimony to be more credible; a determination that this Court cannot question. See

Clucas, 2012-Ohio-1259, at ¶ 9. After reviewing the certified record, we cannot say that the

decision or challenged findings of the UCRC are against the manifest weight of the evidence in

light of the UCRC’s credibility determinations.      There was testimony that Ms. Sturgeon

completely refused to answer any questions posed to her, that she was in a position to direct

work to Mr. Roberts, that she lived with Mr. Roberts, and that Mr. Roberts was doing side work.

Ms. Sturgeon even acknowledged during her testimony that Lucas Plumbing had the right to ask

her questions about whether she was directing work to Mr. Roberts. Notably, Ms. Sturgeon does

not argue that, if she had refused to answer questions about whether she was directing customers

to Mr. Roberts that Lucas Plumbing would not have had just cause to terminate her; her

argument instead is that she did not refuse to answer questions about that because those specific

questions were not posed to her and, thus, she was not insubordinate. Her argument ignores Mr.

Lucas’ testimony that she repeatedly refused to answer any questions. Thus, it does not appear

that Mr. Lucas was presented with the opportunity to specifically ask Ms. Sturgeon about her

involvement, if any, in the side-work issue. Absent some indication from Ms. Sturgeon at the

meeting that there was a particular category of questions she would answer, we cannot say that

Mr. Lucas’ failure to ask that specific question renders the UCRC’s decision that Ms. Sturgeon

was terminated for cause against the manifest weight of the evidence. While it is true that her

testimony supports her argument, Mr. Lucas’ testimony, along with the reasonable inferences

that can be drawn from it, do not. The hearing officer ultimately found Mr. Lucas’ version of
                                                 8


events to be more credible than Ms. Sturgeon’s version. As there was credible evidence to

support the UCRC’s decision, we are bound to affirm it.           Accordingly, we overrule Ms.

Sturgeon’s assignments of error.

                                                III.

       {¶17} In light of the foregoing, we affirm the judgment of the Lorain County Court of

Common Pleas affirming the decision of the UCRC.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       EVE V. BELFANCE
                                                       FOR THE COURT
                                          9


WHITMORE, P. J.
CARR, J.
CONCUR.


APPEARANCES:

BRENT ENGLISH, Attorney at Law, for Appellant.

ANTHONY GIARDINI, Attorney at Law, for Appellee.

MICHAEL DEWINE, Ohio Attorney General, and PATRICK MACQUEENEY, Assistant
Attorney Genernal, for Appellee.
