[Cite as Schneider v. United Parcel Serv., Inc., 2013-Ohio-1032.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98504




                                  ALAN J. SCHNEIDER
                                                            PLAINTIFF-APPELLANT

                                                      vs.

               UNITED PARCEL SERVICE INC., ET AL.
                                                            DEFENDANTS-APPELLEES




                                            JUDGMENT:
                                             AFFIRMED



                                 Administrative Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-705217

        BEFORE: S. Gallagher, J., Boyle, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: March 21, 2013
ATTORNEY FOR APPELLANT

Mary Jo Hanson
Mary Jo Hanson, L.L.C.
55 Public Square
Suite 1055
Cleveland, OH 44113

ATTORNEYS FOR APPELLEES

For United Parcel Service

John M. Stephen
Jamie A. LaPlante
Porter Wright Morris & Arthur, L.L.P.
Huntington Center
41 South High Street, Suite 3200
Columbus, OH 43215

For Ohio Department of Job & Family Services

Mike DeWine
Ohio Attorney General
By: Laurence R. Snyder
       Lori J. Weisman
Assistant Attorneys General
State Office Building, 11th Floor
615 West Superior Avenue
Cleveland, OH 44113-1899
SEAN C. GALLAGHER, J.:

          {¶1} In this administrative appeal, appellant, Alan J. Schneider, appeals the

judgment of the Cuyahoga County Court of Common Pleas that affirmed the decision of

the Ohio Unemployment Compensation Review Commission (“Review Commission”),

which denied his claim for unemployment benefits. For the reasons stated herein, we

affirm.

          {¶2} Schneider worked for United Parcel Service, Inc. (“UPS”), from April 24,

1989 until January 19, 2009. According to UPS, Schneider was discharged for violating

the company’s honesty policy because he falsified his time cards.

          {¶3} On March 5, 2009, Schneider filed an application for unemployment

compensation benefits. The Ohio Department of Job and Family Services disallowed the

application upon finding that Schneider had been terminated for violating a company rule

and was terminated for just cause. The director’s redetermination affirmed the initial

determination that Schneider had been discharged by UPS for just cause.

          {¶4} Schneider appealed the director’s redetermination, and the matter proceeded

to a hearing before the Review Commission, which began on June 18, 2009, and

following continuances, concluded on July 16, 2009. On or about August 4, 2009, the

Review Commission affirmed the director’s redetermination and concluded that

Schneider was discharged by UPS for just cause in connection with work.

          {¶5} Thereafter, on or about September 2, 2009, the Review Commission

disallowed Schneider’s request for further review. Schneider then filed an appeal in the
Cuyahoga County Court of Common Pleas. The lower court affirmed the decision of the

Review Commission upon concluding that the “decision was not unlawful, unreasonable

or against the manifest weight of the evidence provided.”

          {¶6} Schneider timely filed this appeal. He raises one assignment of error for our

review, which provides as follows:

          The trial court erred in its decision to rule in favor of UPS and the
          Unemployment Compensation Review Commission, as the evidence was
          against the manifest weight of the evidence.

          {¶7} Pursuant to R.C. 4141.29(D)(2)(a), an individual is ineligible for

unemployment benefits if he “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 v. Unemp. Comp. Bd. of Rev., 19 Ohio St.3d 15, 17, 482 N.E.2d 587 (1985),

quoting Peyton v. Sun T.V., 44 Ohio App.2d 10, 12, 335 N.E.2d 751 (10th Dist.1975). A

determination of just cause necessarily depends upon the factual circumstances of the

particular case. Irvine at 17.

          {¶8} R.C. 4141.282(H) sets forth a limited standard of review for a decision made

by the Unemployment Compensation Review Commission that applies to all appellate

courts:

          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.
Lang v. Dir., Ohio Dept. of Job & Family Servs., 134 Ohio St.3d 296, 2012-Ohio-5366,

982 N.E.2d 636, ¶ 11. When applying this standard, “a reviewing court may not make

factual findings or determine a witness’s credibility and must affirm the commission’s

finding if some competent, credible evidence in the record supports it.” Williams v. Ohio

Dept. of Job & Family Servs., 129 Ohio St.3d 332, 2011-Ohio-2897, 951 N.E.2d 1031, ¶

20, citing Irvine at 18. Furthermore, the Review Commission’s decision cannot be

reversed simply because reasonable minds might reach different conclusions. Lang at

¶ 11.

        {¶9} In this case, UPS claimed it discharged Schneider for violating the company’s

honesty policy because he falsified his time cards. The Review Commission found that

Schneider was discharged for just cause. We have previously recognized that just cause

for discharge may be established by proof that the employee violated a specific company

rule or policy.   Johnson v. Cleveland, 8th Dist. No. 98312, 2012-Ohio-5744, ¶ 19.

Furthermore, just cause has been found to exist where an employee demonstrates an

unreasonable disregard for the employer’s best interests. Bonanno v. Ohio Dept. of Job

& Family Servs., 5th Dist. No. 2012 AP 02 0011, 2012-Ohio-5167, ¶ 21, citing Kiikka v.

Ohio Bur. of Emp. Servs., 21 Ohio App.3d 168, 169, 486 N.E.2d 1233, (8th Dist.1985).

        {¶10} The record in this case supports the Review Commission’s determination.

The testimony and evidence reflects that Schneider’s job as a feed driver required him to

drive tractor-trailers from one destination to another. He was required to input certain

codes into the “IVIS” system to account for his daily activity, such as his arrivals,
departures, central sort time while waiting at a UPS facility, meals and breaks, and

breakdowns. After finding discrepancies on Schneider’s time cards, UPS management

investigated Schneider’s activities from mid-December 2008 through mid-January 2009.

In pertinent part, the Review Commission made the following factual findings:

              After claimant received the warning regarding recording his daily
      activities, claimant’s supervisors decided to closely review his recorded
      daily activities. * * * When the review was complete, claimant’s
      supervisors felt that claimant frequently artificially lengthened his workday
      by inputting incorrect or inappropriate codes to cover periods of time during
      his workdays. Claimant’s supervisors determined that claimant frequently
      noted codes for breakdowns of equipment even when there was no record
      of claimant reporting a breakdown to the employer’s maintenance staff,
      inappropriately recorded a central sort code even when there was no record
      of claimant reporting a breakdown to the employer’s maintenance staff,
      inappropriately recorded a central sort code even when claimant was having
      his loads sorted at one of the employer’s facilities, unnecessarily added
      equipment handling codes that added time to his workday even when that
      information had already been indicated, and failed to promptly record his
      arrival times at [UPS] facilities.

      {¶11} The trial court’s factual findings are supported by the record. Karl Martin,

a district labor relations manager for UPS, testified that Schneider represented himself on

his time cards doing a work activity when he really was not. He stated that Schneider

would “show breakdowns of his equipment on a daily basis” but that UPS “had no record

of those breakdowns.” Martin also indicated that when there is a breakdown, UPS

procedure is to call in the breakdown, but Schneider did not call anyone. Aside from the

excessive breakdown representations, UPS found other discrepancies on Schneider’s time

cards. Upon observing Schneider, UPS found he was using inappropriate codes and

“represented himself as working when actually he wasn’t working, he was at a stop
resting * * *, taking lunch, doing various activities.” Martin testified that he spoke to

Schneider about his time cards on December 11, 2009.

       {¶12} Michael Borkowski, a transportation supervisor at UPS, testified that he

spoke with Schneider about the discrepancies on his time cards, but the irregularities

continued.    Aside from using the code for a breakdown without reporting any

breakdown, Schneider also had excessive idle time, and there were discrepancies

reflected with the arrival times noted on Schneider’s time cards when compared to the

actual arrival times. Also, there was evidence of delays from his arrival time when he

finished work at the completion of the workday until he clocked out. Borkowski testified

to another example when Schneider, who was driving a single trailer, entered a code for

coupling an additional trailer, which gave him an additional allowance for work that was

not performed. Borkowski proceeded to review other inconsistencies found with the

time cards.   He testified that in early January 2009, he and another supervisor had

followed Schneider to Indiana. He observed that Schneider drove 10 miles an hour

under the speed limit on the way to Indiana and also found Schneider was being dishonest

with the codes that were used compared to his actual activities.

       {¶13} Schneider conceded that he had been warned to watch his meals and breaks

and to start using central sort. He denied ever reporting a breakdown code when he did

not have an actual breakdown. He indicated he reported all breakdowns except for minor

breakdowns that he could repair himself. He claimed his use of the central sort code was

in accordance with the instructions provided by Charlie McDaniel, a UPS supervisor.
Schneider maintained that he accurately recorded his arrival time at UPS facilities and

indicated that upon arriving at a gate, he would have to check in with the guard and that

he also would check on the availability of overtime before finishing work. He denied

that he ever falsified his time cards and denied that anyone ever spoke to him about the

falsification of time cards. He also testified he was told in training to drive safely —

weather, roads, and traffic permitting.

       {¶14} While Schneider argued that UPS erroneously compared six time cards with

a tachometer record from a different vehicle, UPS introduced approximately 21 time

cards into evidence, and the Review Commission recognized that UPS’s records for four

of the days appeared inconsistent. Further, while Schneider claimed he was misled into

using the central sorting code, the Review Commission recognized this evidence, but

found there was evidence of other inappropriate and dishonest conduct.          Moreover,

although McDaniel was unavailable at the third hearing date, no continuance was

requested, and in view of the entire record, it cannot be said that his absence prejudiced

Schneider.

       {¶15} The Review Commission found the evidence and testimony presented

established Schneider had “falsified his time records by using inappropriate and

inaccurate codes to artificially lengthen his workday.” Such dishonest conduct not only

was inappropriate, but evinces an unreasonable disregard for his employer’s best interests.

 Insofar as Schneider claimed he was never warned about his time cards, denied

falsifying his time cards, and asserted that the testimony offered by UPS was not credible,
it was within the province of the Review Commission to assess the credibility of the

witnesses. The Review Commission determined that “[c]laimant’s actions constitute

misconduct that will serve to suspend his unemployment compensation benefits.

Claimant was discharged by [UPS] for just cause in connection with work.”

       {¶16} Upon our review, we find that the record contains competent, credible

evidence to support the Review Commission’s determination that Schneider was

terminated for just cause. Moreover, we conclude the Review Commission’s decision is

not unlawful, unreasonable, or against the manifest weight of the evidence. Accordingly,

we affirm the determination that Schneider is not entitled to unemployment compensation

benefits and overrule his sole assignment of error.

       {¶17} Judgment affirmed.

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas 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.



SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
