[Cite as Cassaro v. Ohio Dept. of Job & Family Servs., 2016-Ohio-7643.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                             CRAWFORD COUNTY



SEAN CASSARO,

        PLAINTIFF-APPELLANT,                                       CASE NO. 3-16-08

        v.

OHIO DEPARTMENT OF JOB AND
FAMILY SERVICES, ET AL.,                                           OPINION

        DEFENDANTS-APPELLEES.



               Appeal from Crawford County Common Pleas Court
                          Trial Court No. 15-CV-0136

                                     Judgment Affirmed

                          Date of Decision: November 7, 2016




APPEARANCES:

        Daniel H. Klos for Appellant

        Eric A. Baum for Appellees
Case No. 3-16-08


PRESTON, J.

      {¶1} Claimant-appellant, Sean Cassaro (“Cassaro”), appeals the judgment of

the Crawford County Court of Common Pleas affirming the Unemployment

Compensation Review Commission’s (“Commission”) determination disallowing

Cassaro’s request for unemployment compensation benefits. For the reasons that

follow, we affirm.

      {¶2} Cassaro’s employment as an engineering technician with the City of

Bucyrus, Ohio (“City”) was terminated on October 6, 2014. (Doc. No. 23); (Doc.

No. 12, Ex. A).      After his employment was terminated, Cassaro filed for

unemployment compensation benefits. (Doc. No. 12, Ex. A).

      {¶3} On October 27, 2014, the Ohio Department of Job & Family Services

(“ODJFS”) approved Cassaro’s application for unemployment compensation

benefits after concluding that, based on that application, Cassaro “was discharged

without just cause under [R.C.] 4141.29(D)(2)(a).” (Id.). On November 12, 2014,

the City appealed ODJFS’s decision approving Cassaro’s application for

unemployment compensation benefits. (Id.). On December 5, 2015, ODJFS issued

its redetermination affirming its October 27, 2014 determination. (Id.). The City

appealed ODJFS’s December 5, 2015 redetermination on December 22, 2014. (Id.).

      {¶4} On December 23, 2014, the City’s appeal was transferred to the

Commission for review. (Doc. No. 12, Ex. B). After telephone hearings on January


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13, 2015 and February 9, 2015, the Commission issued its decision on March 5,

2015 reversing ODJFS’s determination.                     (Id.).    On March 24, 2015, Cassaro

requested that the Commission review its March 5, 2015 decision. (Id.). On April

15, 2015, the Commission denied Cassaro’s request for review. (Id.).

           {¶5} On May 12, 2015, Cassaro, pro se,1 appealed to the Crawford County

Court of Common Pleas the Commission’s denial of his request for review of its

March 5, 2015 decision denying Cassaro’s application for unemployment

compensation benefits. (Doc. No. 1). Cassaro’s appeal named as parties ODJFS,

the Commission, Gregory Gantt, Sylvester Patton, Ed Good, Cynthia C. Dungey,

and Joyce M. Schifer (collectively “appellees”). (Id.). On May 26, 2015, the

Director of ODJFS requested that the trial court remove the Commission and its

individual commissioners and members—Gregory Gantt, Sylvester Patton, and Ed

Good—as parties to Cassaro’s appeal, which was granted on July 23, 2015. (Doc.

Nos. 11, 14).

           {¶6} Appellees filed the administrative file on June 1, 2015. (Doc. No. 12).

Cassaro filed his brief on August 27, 2015. (Doc. No. 17). Appellees filed their

brief on October 7, 2015. (Doc. No. 19). Cassaro filed his reply brief on October

30, 2015. (Doc. No. 21).




1
    Cassaro obtained legal counsel on May 26, 2015. (Doc. No. 9).

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       {¶7} The trial court denied Cassaro’s appeal on May 9, 2016. (Doc. No. 23).

On May 19, 2016, the trial court issued a detailed entry denying Cassaro’s appeal

and affirming the March 5, 2015 decision of the Commission. (Doc. No. 24).

       {¶8} Cassaro filed his notice of appeal on June 3, 2016. (Doc. No. 25). He

raises one assignment of error for our review.

                              Assignment of Error

       The Common Pleas Court committed reversible error when it
       affirmed the decision of the Unemployment Compensation Board
       of Review that found Mr. Cassaro was terminated with good
       cause.

       {¶9} In his assignment of error, Cassaro argues that the trial court erred by

affirming the Commission’s decision denying his application for unemployment

compensation benefits because there is no “reliable, probative, and substantial

evidence” supporting the Commission’s determination that Cassaro was terminated

from his employment for “good cause.” (Appellant’s Brief at 13).

       {¶10} R.C. 4141.29 governs the eligibility for unemployment compensation

benefits. Clark v. Ohio Dept. of Job & Family Servs., 2d Dist. Montgomery No.

25257, 2012-Ohio-5311, ¶ 7.         A claimant is ineligible for unemployment

compensation benefits if he or she is discharged from his or her employment for

“just cause.” Id., citing R.C. 4141.29(D)(2)(a).

       {¶11} “A just-cause determination must be consistent with the legislative

purpose underlying the Unemployment Compensation Act: to provide financial

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assistance to individuals who are involuntarily unemployed through no fault or

agreement of their own.” Hicks v. Ohio Dept. of Job & Family Servs., 10th Dist.

Franklin No. 13AP-902, 2014-Ohio-2735, ¶ 33, citing Tzangas, Plakas & Mannos

v. Ohio Bur. of Emp. Servs., 73 Ohio St.3d 694, 697 (1995). “‘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.’” Id., quoting Tzangas, Plakas &

Mannos at 697-698.        “Accordingly, just cause under the Unemployment

Compensation Act is predicated upon employee fault.” Id., citing Tzangas, Plakas

& Mannos at 698.

      {¶12} “Our appellate review of a denial of unemployment benefits is

limited.” Clark at ¶ 6, citing Johnson v. SK Tech., Inc., 2d Dist. Montgomery No.

23522, 2010-Ohio-3449, ¶ 18, citing Silkert v. Ohio Dept. of Job & Family Servs.,

184 Ohio App.3d 78, 2009-Ohio-4399, ¶ 26 (2d Dist.). “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.” Hicks at ¶ 13, citing

R.C. 4141.282(H) and Tzangas, Plakas & Mannos at paragraph one of the syllabus.

“The reviewing court may not make factual findings or determine a witness’s

credibility.” Id., citing Williams v. Dept. of Job & Family Servs., 129 Ohio St.3d

332, 2011-Ohio-2897, ¶ 20. “The court ‘must affirm the commission’s finding if


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some competent, credible evidence in the record supports it.’” Id., quoting Williams

at ¶ 20. “‘The focus of an appellate court when reviewing an unemployment

compensation appeal is upon the commission’s decision, not the trial court’s

decision.’” Id., quoting Mustafa v. St. Vincent Family Ctrs., Inc., 10th Dist. Franklin

No. 12AP-305, 2012-Ohio-5775, ¶ 6.

       {¶13} Accordingly, the issue before us is whether the Commission’s

determination that the City discharged Cassaro for just cause is supported by some

competent, credible evidence, or, conversely, whether it is unlawful, unreasonable,

or against the manifest weight of the evidence. See Clark at ¶ 7. The Commission

issued its decision on March 5, 2015 denying Cassaro’s application for

unemployment compensation benefits after concluding that Cassaro was discharged

from his employment for just cause. (Doc. No. 12, Ex. B). The Commission found

that Cassaro

       advised a local contractor to fill a manhole with concrete without first

       conducting an inspection and reviewing city records. If [Cassaro] had

       exercised the due diligence required, he would have realized that the

       manhole was actually used for drainage and not an old coal bin.

       [Cassaro] was not truthful when the [City] questioned him about what

       he told the contractor. His failure to conduct the necessary inspection

       and untruthfulness cost the [City] $5,000.00.


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(Id.). The Commission further found that Cassaro “accused a local business person

of receiving stolen property [and that Cassaro] made the accusation in front of

another employee.” (Id.). Based on those findings, the Commission concluded that

Cassaro’s “conduct constitutes cause sufficient to justify his discharge [and] the City

of Bucyrus discharged [Cassaro] for just cause in connection with work.” (Id.).

       {¶14} After reviewing the record, we conclude that there is some competent,

credible evidence supporting the Commission’s determination that Cassaro was

discharged from his employment for just cause. See Hicks, 2014-Ohio-2735, at ¶

34. That is, the Commission’s determination that Cassaro was terminated from his

employment for just cause was neither unlawful, unreasonable, nor against the

manifest weight of the evidence. See id. at ¶ 36.

       {¶15} “Just cause is conduct that would lead a person of ordinary intelligence

to conclude the surrounding circumstances justified the employee’s discharge.” Id.

at ¶ 33, citing Chambers v. Ohio Dept. of Job & Family Servs., 10th Dist. Franklin

No. 06AP-1043, 2007-Ohio-1493, ¶ 7. “‘Traditionally, just cause, in the statutory

sense, is that which, to an ordinarily intelligent person, is a justifiable reason for

doing or not doing a particular act.’” Clark at ¶ 7, quoting Irvine v. Unemp. Comp.

Bd. of Review, 19 Ohio St.3d 15, 17 (1985). “Just cause for discharge exists where

‘“the employee, by his actions, demonstrated an unreasonable disregard for his

employer’s best interests.”’” Hicks at ¶ 33, quoting Mayes v. Bd. of Review, Ohio


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Bur. of Emp. Servs., 32 Ohio App.3d 68 (10th Dist.1986), quoting Kiikka v. Ohio

Bur. of Unemp. Servs., 21 Ohio App.3d 168, 169 (8th Dist.1985).

       {¶16} “[N]umerous courts have found that lying to an employer or falsifying

work-related records * * * may constitute just cause under R.C. 4141.29(D)(2)(a).”

Caserta v. Ohio Dept. of Job & Family Servs., 2d Dist. Greene No. 2011-CA-63,

2012-Ohio-5097, ¶ 23, citing Hunt v. Ohio Dept. of Job & Family Servs., 5th Dist.

Delaware No. 12CAH40024, 2012-Ohio-4359, Sharif v. Children’s Hunger

Alliance, Inc., 10th Dist. Franklin No. 10AP-796, 2011-Ohio-2049, and Oriana

House v. Terrell, 9th Dist. Summit No. 19550, 2000 WL 277906 (Mar. 15, 2000).

Likewise, “courts have repeatedly held that a discharge is considered for just cause

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

that displays an unreasonable disregard for his employer’s best interests.”

Markovich v. Employers Unity, Inc., 9th Dist. Summit No. 21826, 2004-Ohio-4193,

¶ 8, citing Tzangas, Plakas & Mannos, 73 Ohio St.3d 694, at paragraph two of the

syllabus, Kiikka at paragraph two of the syllabus, and Sellers v. Bd. of Rev., 1 Ohio

App.3d 161 (10th Dist.1981), paragraph two of the syllabus.

       {¶17} The Commission conducted two telephone hearings on January 13,

2015 and February 9, 2015.       At the January 13, 2015 hearing, Jeff Wagner

(“Wagner”), the Service Safety Director for the City testified on behalf of the City.

(Jan. 13, 2015 Tr. at 5, 8). He testified that he manages the employees of the City,


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including Cassaro. (Id. at 8). Wagner testified that Cassaro was discharged from

his employment with the City “because he gave out false information. He basically

lied.” (Id. at 9). Specifically, Cassaro provided false information regarding work

that he was charged with overseeing for the City, and Cassaro denied an accusation

that he slandered a local business leader. (Id.).

       {¶18} First, Wagner testified that Cassaro was sent to inspect a sidewalk,

which was being repaired by a local contractor. (Id. at 10). According to Wagner,

Cassaro and the contractor discussed a manhole located on the sidewalk being

repaired by the contractor. (Id.). Wagner testified that Cassaro and the contractor

looked in the manhole, and, without checking any records, Cassaro indicated to the

contractor that the manhole was “an old coal bin” and instructed the contractor to

fill in the manhole with concrete and stone. (Id. at 10-11, 12). After a rainstorm, it

was discovered that the manhole was actually a sewer because “sewer and water”

from the rainstorm backed up into the basement of the building adjacent to the

sidewalk that was being repaired. (Id. at 11-14). To correct the issue, the contractor

had to “jackhammer” the concrete out of the sewer line and the City “had to dig up

the street to fix the problem.” (Id. at 14-15). According to Wagner, fixing the sewer

line cost the City “roughly around $5000.” (Id. at 18).

       {¶19} Wagner testified that he “asked for a statement of what happened”

from Cassaro. (Id.). The City also obtained statements from the contractor and the


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owner of the building indicating that Cassaro told them that the manhole was an old

coal bin and that it could be filled with concrete. (Id. at 20-21). Indeed, the

contractor’s statement, which is included as an exhibit in the administrative file,

indicates that Cassaro told him that the manhole was “an old coal chute,” that “the

city preferred that they were filled up because they were a hazard,” and “to pour any

extra concrete in that hole to [sic] and then top it off with stone so we could remove

cover [sic] and replace walk concrete.” (Doc. No. 12, Exs. A, B). The contractor’s

statement further indicates, “We looked into the manhole in front of [the adjacent

business] with [Cassaro], it had a small square hole in the bottom that we assumed

was an auger for coal.” (Id.). The adjacent business owner’s statement indicates

that the contractor told him that “Cassaro said the manhole covered an old coal chute

and could be filled.” (Id.).

       {¶20} While the City was repairing the sewer line, the City became aware of

“a second incident after that, on another matter” involving Cassaro. (Jan. 13, 2015

Tr. at 18-19). Regarding the second incident, Cassaro, while in the City’s zoning

and engineering office after a city planning meeting,—in the presence of the City’s

zoning administrator, John Rostash (“Rostash”)—accused the owner of Central

Ohio Recycling and Salvage, Clay Korner (“Korner”), of buying stolen property.

(Id. at 21-22). Wagner testified that Korner sent a letter to the City stating his

intention to sue the city based on Cassaro’s statements. (Id. at 23). According to


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Wagner, when asked about the statements he made about Korner, Cassaro “denied

or had no response to” those questions. (Id.). Wagner testified that Cassaro wrote

in his planner that Korner accused him of slandering him. (Id.). Cassaro’s planner

was provided to the Commission for review. (Doc. No. 12, Exs. A, B). Wagner

further testified that Cassaro never admitted that he made the statements about

Korner. (Jan. 13, 2015 Tr. at 23).

       {¶21} As a result of Cassaro’s conduct underlying both incidents, he was

suspended pending investigation. (Id. at 24). After a meeting “to go over the

allegations” “through the union,” Cassaro was terminated for “providing false

information and lying [] in the investigation.” (Id.).

       {¶22} At the February 9, 2015 hearing, Wagner offered further testimony on

behalf of the City. (Feb. 9, 2015 Tr. at 4). Wagner testified that Cassaro was

dishonest in his written statement regarding the sewer-line incident. (Id. at 6).

Indeed, in the written statement provided to Wagner by Cassaro, which is included

as an exhibit in the administrative file, Cassaro explained that, regarding the sewer-

line incident, the contractor “asked me what exactly the manhole was. I told him I

did not know, but historically they have been cisterns, coal bins, or other unknown

structures.” (Doc. No. 12, Exs. A, B). The remainder of Cassaro’s written statement

indicates that he told the contractor to verify that the manhole was an old coal bin

or cistern before proceeding, and also indicates that he discussed with the contractor


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the City’s previous actions regarding abandoned coal bins and cisterns. (Id.).

Cassaro also indicates in his written statement that the contractor told him that “he

screwed up” by filling the manhole with concrete. (Id.). Cassaro further indicates

in his written statement that the contractor told him that “when he looked in the pit

it had water in it. He said it did not smell and it appeared to be just water in the

bottom of the pit. Since he had concrete left[,] they decided to fill the area with

concrete. He said he made the statement to his men ‘gee I hope we never have to

dig this up.’” (Id.). Cassaro reiterates in his written statement that the contractor

asked him what the manhole was in front of the adjacent building and that Cassaro

responded that he did not know “probably a cistern or a coal bin”; however, Cassaro

asserts that “[n]o decision was made during this discussion since no one knew what

was below.” (Id.).

       {¶23} Wagner further testified that Cassaro denied accusing Korner of

buying stolen items. (Feb. 9, 2015 Tr. at 7). Wagner testified that Cassaro was

terminated from his employment after the City determined that Cassaro falsified his

reports regarding those incidents. (Id.).

       {¶24} Rostash testified that Cassaro said—in Rostash’s presence—that

Korner “was buying stolen copper from you know nefarious people in the city[.]”

(Id. at 44-45). He further testified that Korner was “very offended” by Cassaro’s

accusation. (Id. at 46). According to Rostash, Cassaro later acknowledged to him


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that Korner was “really upset” by Cassaro’s accusation. (Id. at 47). Rostash filed

an incident report detailing Cassaro’s statements regarding Korner. (Doc. No. 12,

Ex. A). Korner’s attorney sent a letter to the City confirming that Rostash’s incident

report “is true and accurate.” (Id.).

       {¶25} Cassaro testified on his own behalf and maintained that he did not tell

the contractor that the manhole was a coal bin or that he could fill it with concrete.

(Feb. 9, 2015 Tr. at 16, 19-22). Cassaro testified that, because the contractor did

not obtain a permit or conduct “underground utility locates,” “the contractor [is]

solely responsible for any damage that he caused with [] negligence of his work.”

(Id. at 22-23).

       {¶26} Cassaro also maintained that he did not accuse Korner of buying stolen

copper. (Id. at 30-31). Indeed, when directly asked whether he stated that Korner

was buying stolen copper, Cassaro testified, “No I did not.” (Id. at 31-32). Rather,

Cassaro minimized the statement he made about Korner. (See id. at 30-32). He

testified, in part, “It says that I accused somebody of doing something, but in the

city’s investigation from their letter September 17 that clearly states yes, Mr. Davis

stole scrap copper. Yes Mr. [K]orner bought the copper and it says [] that the [sic]

Mr. [K]orner received a restitution check so as far as any slander, I’m not sure you

know what happened there.” (Id. at 31).




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       {¶27} On appeal, Cassaro argues that his version of events is more credible

than the City’s version of events. As such, he argues that the Commission’s decision

is against the manifest weight of the evidence and that the Commission’s decision

“is supported by no evidence at all.” (Appellant’s Brief at 17). As we stated above,

it is not the function of this court to reweigh the evidence. See Hicks, 2014-Ohio-

2735, at ¶ 13. “Moreover, even where evidence exists to support the arguments of

both an employer and an employee as to the cause for termination, it is our duty to

determine only whether the commission’s determination of just cause for

termination was unlawful, unreasonable or against the manifest weight of the

evidence. Id. at ¶ 35, citing Bennett v. Dept. of Job & Family Servs., 10th Dist.

Franklin No. 11AP-1029, 2012-Ohio-2327, ¶ 19. “This is so even in cases where a

determination by the commission in favor of either party could have been lawful,

reasonable, and based upon sufficient weight.” Id., citing Bennett at ¶ 19. “That is,

‘[w]here the commission might reasonably decide either way, the courts have no

authority to upset the commission’s decision.’” Id., quoting Chambers, 2007-Ohio-

1493, at ¶ 10, citing Irvine, 19 Ohio St.3d 15.

       {¶28} Cassaro    also   argues   on     appeal   that   his   termination   was

unconstitutional under Ohio’s civil service system because his termination was

“extra discipline.” (Appellant’s Brief at 15). Cassaro’s argument is meritless

because whether he was properly terminated under Ohio’s civil service laws has no


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bearing on the determination of his eligibility for unemployment compensation. See

Guy v. Steubenville, 147 Ohio App.3d 142, 2002-Ohio-849, ¶ 29 (7th Dist.)

(concluding that “the two proceedings are completely separate and distinct, and a

ruling in the disciplinary appeal is not binding” on a determination of eligibility for

unemployment compensation), citing Adams v. Harding Mach. Co., Inc., 56 Ohio

App.3d 150 (3d Dist.1989). See also Johnson v. Edgewood City Sch. Dist. Bd. of

Edn., 12th Dist. Butler No. CA2008-11-278, 2010-Ohio-3135, ¶ 19 (“Specifically,

unemployment compensation and termination of a civil service employee have

separate procedures, legal considerations and remedies.”), citing James v. Ohio

State Unemp. Rev. Comm., 10th Dist. Franklin No. 08AP-976, 2009-Ohio-5120, ¶

16; In re Claim of Guy, 146 Ohio App.3d 20, 26-27 (7th Dist.2001) (“Essentially,

the civil service commission determines whether the employee should remain

employed by a municipality, whereas the [Commission] determines whether the

decision to terminate an employee was based upon just cause.                Thus, the

[Commissions] need only accept the civil service commission determination as

evidence and place upon it whatever weight it chooses as the trier of fact.”).

       {¶29} Based on our review of the record, there is some competent, credible

evidence supporting the Commission’s determination that Cassaro was discharged

from his employment with the City for just cause—namely, there is some

competent, credible evidence that Cassaro lied to the City or falsified work-related


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records and that Cassaro’s behavior displayed an unreasonable disregard for the

City’s best interests.   As such, the Commission’s decision is not unlawful,

unreasonable, or against the manifest weight of the evidence.

       {¶30} Cassaro’s assignment of error is overruled.

       {¶31} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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