[Cite as Quartz Scientific, Inc. v. Ohio Bur. of Unemp. Comp., 2013-Ohio-1100.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


QUARTZ SCIENTIFIC, INC.,                                :           OPINION

                 Appellant,                             :
                                                                    CASE NO. 2012-L-090
        - vs -                                          :

DIRECTOR, STATE OF OHIO BUREAU :
OF UNEMPLOYMENT COMPENSATION,
et al.,                        :

                 Appellees.                             :


Administrative Appeal from the Lake County Court of Common Pleas, Case No.
12CV000442.

Judgment: Affirmed.


Paul H. Hentemann, Northmark Office Building, 35000 Kaiser Court, Suite 305,
Willoughby, OH 44094-4280 (For Appellant).

Mike DeWine, Ohio Attorney General, State Office Tower, 30 East Broad Street,
Columbus, OH 43215, and Laurel Blum Mazorow, Assistant Attorney General, State
Office Building, 11th Floor, 615 West Superior Avenue, Cleveland, OH 44113-1899
(For Appellees).



THOMAS R. WRIGHT, J.

        {¶1}     This case is an administrative appeal from the Ohio Unemployment

Compensation Review Commission (“Review Commission”) pursuant to R.C. 4141.282,

which governs appeals to the court of common pleas from decisions of the Review

Commission. Appellant, Quartz Scientific, Inc., appeals from the judgment of the trial
court affirming the decision of the Review Commission.        The Review Commission

determined that Claimant, Cynthia Manley (“Claimant”), was discharged from her

employment without just cause. Appellant maintains that the trial court’s decision

affirming the Review Commission’s determination was unlawful, unreasonable, and

against the manifest weight of the evidence. We disagree.

      {¶2}     Claimant was employed by appellant from May 23, 1992 through October

25, 2011.      She last served as a plant manager.     In late October, 2011, some of

Claimant’s co-workers reported to the Human Resources Manager, Paula Webber, that

Claimant was “punching in” her son, Michael Gray, at appellant’s time clock even

though he was not actually at work. Mr. Gray worked for appellant as a janitor.

      {¶3}     Claimant was terminated from her position by Ms. Webber on October 25,

2011, for dishonesty in connection with her work based on her belief that Claimant was

falsifying her son’s time records. In support of her decision, Ms. Webber emphasized

that Claimant was fully aware of appellant’s “Standards and Rules,” which provide that

falsification of time-keeping records is an example of an infraction that may result in

termination.

      {¶4}     Claimant filed a claim for unemployment benefits, which was disallowed

upon a finding that Claimant was discharged from employment for just cause. Following

Claimant’s request for redetermination, appellee affirmed its determination disallowing

benefits. Claimant filed a timely appeal from that redetermination, and jurisdiction of

appellant’s case was then transferred to the Review Commission.

      {¶5}     On January 23, 2012, a hearing took place before a hearing officer at the

Review Commission. Both Claimant and appellant appeared and offered testimony.




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Following consideration of the testimony, the Review Commission issued a decision

reversing appellee’s determination, finding that Claimant was discharged without just

cause. Appellant filed a timely request for review from the hearing officer’s decision, but

that request was disallowed. Appellant then appealed to the Lake County Court of

Common Pleas, which affirmed the decision of the Review Commission that Claimant

was discharged without just cause. Appellant timely appealed and raises the following

assignment of error for our review:

       {¶6}   “The decision of the Unemployment Compensation Review Commission of

February 3rd, 2012, reversing the Director’s re-determination issued December 2nd,

2011, was against the manifest weight of the evidence.”

       {¶7}   Appellant argues that the Review Commission improperly reversed

appellee’s redetermination disallowing Claimant’s request for benefits because

appellant had just cause to discharge Claimant for falsifying her son’s time cards, and

that the Review Commission failed to consider testimony offered by Ms. Webber about

an admission by Claimant that she falsely clocked in her son.

       {¶8}   As this court has previously recognized, the Supreme Court of Ohio has

established that the standard of review in unemployment compensation appeals of just

cause decisions rendered by the Review Commission is the same for an appellate court

as it is for the common pleas court. Kovacic v. Higbee Dept. Stores, 11th Dist. No.

2004-L-150, 2005-Ohio-5872, ¶13, citing Tzangas, Plakas & Mannos v. Ohio Bur. Of

Emp. Services, 73 Ohio St.3d 694, 696 (1995). That is, “[a]n appellate court may

reverse the Unemployment Compensation Board of Review’s ‘just cause’ determination

only if it is unlawful, unreasonable or against the manifest weight of the evidence.” Id.;




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see also R.C. 4141.282(H). The Supreme Court of Ohio recently reaffirmed its opinion

regarding this standard of review in Williams v. ODJFS, 129 Ohio St.3d 332, 2011-Ohio-

2897.

        {¶9}   “Under the foregoing standard, reviewing courts are not permitted to make

factual findings or determine the credibility of witnesses, which are instead reserved for

decision by the Review Commission.          Irvine v. Unemployment Comp. Bd. of Rev.,

(1985), 19 Ohio St.3d 15, 17 * * *. The decision of the Review Commission may not be

reversed simply because reasonable minds might reach different conclusions from the

same evidence. Tzangas, supra, at 697, citing Irvine at 18.” Kovacic at ¶14.

        {¶10} In order to qualify for unemployment benefits, a claimant must satisfy the

statutory requirements of R.C. 4141.29(D)(2)(a), which provides:

        {¶11} “(D) Notwithstanding division (A) of this section, no individual may serve a

waiting period or be paid benefits under the following conditions:

        {¶12} “ * * *

        {¶13} “(2) For the duration of the individual’s unemployment if the director finds

that:

        {¶14} “(a) The individual quit work without just cause or has been discharged for

just cause in connection with the individual’s work, * * *.”

        {¶15} “Just cause” within the meaning of R.C. 4141.29(D)(2)(a) “is that which, to

an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular

act.” Kovacic at ¶23, quoting Irvine at 17.       A discharge is considered for just cause

when an employee demonstrates an unreasonable disregard for the employer’s best

interests. Kiikka v. Ohio Bur. Of Emp. Serv., 21 Ohio App.3d 168 (8th Dist.1985). This




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does not mean that an employee’s behavior must consist of misconduct, but it does

require some degree of fault on the part of the employee. Sellers v. Bd. of Rev., 1 Ohio

App.3d 161 (10th Dist.1981).

       {¶16} Appellant alleges that it had “just cause” under its own “Standards and

Rules,” noted above, but also under R.C. 4141.29(D)(2)(e), which provides that benefits

will not be paid if “[t]he individual became unemployed because of dishonesty in

connection with the individual’s most recent or any base period work.” “Dishonesty” for

purposes of this section means “the commission of substantive theft, fraud, or deceitful

acts.” Id.

       {¶17} During the hearing, Ms. Webber and Mr. Christopher Atwell testified on

behalf of appellant. Mr. Atwell works for appellant in sales. Ms. Webber testified that

she terminated Claimant based on the allegations of two other factory employees that

Claimant was punching in her son when he was not actually at work. Specifically, she

testified that “I had people telling me [Claimant] was punching in her son.” However,

neither of those two employees were present to testify at the hearing. The hearing

officer questioned Ms. Webber on that point. Ms. Webber claimed that prior to the

hearing, she faxed to ODJFS the written statements of the two employees as evidence

that could be placed in the case file and presented at the hearing regarding those

employees’ observations of Claimant’s conduct. The hearing officer noted that those

documents were not part of the Review Commission’s file because once the matter was

transferred to the Review Commission, ODJFS no longer had jurisdiction over the case

and was not the proper entity to receive the documents.




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      {¶18} Also, Ms. Webber testified that she did not personally witness Claimant

punching in her son. Ms. Webber further testified that when she called Claimant in to

discuss the matter on the day of her discharge, Claimant admitted doing so and

promised to pay back any monies that appellant overpaid.

      {¶19} Mr. Atwell testified that he observed Claimant punching in twice, and that

Mr. Gray was not present in the building at the time he was punched in. However, Mr.

Atwell also testified that he did not know Mr. Gray’s schedule, which varied, and that

due to Mr. Gray’s duties as a janitor, Mr. Gray could be anywhere in the building and

Mr. Atwell would not be aware of it. Furthermore, Mr. Atwell testified that he arrived at

work at 7:30 a.m., and that if Mr. Gray arrived prior to 7:30 a.m., he would not have

observed Mr. Gray clock in.

      {¶20} Claimant testified on her own behalf and denied punching in another

employee on the time clock. She provided the explanation that she and her son often

rode into work together, and thus, punched in at the same time on many occasions.

Claimant also denied making any statements to Ms. Webber that she admitted to

punching in her son.

      {¶21} As noted by both the Review Commission and the trial court, the

testimony and evidence presented in this case was conflicting.           The trial court

concluded as follows:

      {¶22} “The record reveals that there was testimony by one side that Ms. Manley

admitted punching in her son at the employer’s time clock although he was not at work.

However, there was also testimony by [Ms.] Manley at the hearing that she did not

admit that she clocked in her son.        The hearing officer in this case made a




                                           6
determination regarding the veracity of the witnesses and chose to believe [Ms.]

Manley. It is not for this Court to determine the credibility of the witnesses and to

conclude that the hearing officer’s determination is incorrect. The Court finds that the

hearing   officer’s   final   determination   that   [Claimant]   was   eligible   to   receive

unemployment benefits pursuant to R.C. 4141.29(G) is supported by the manifest

weight of the evidence and is not contrary to law or unreasonable.”

      {¶23} We agree. This court has reviewed the testimony presented at the

hearing, the Review Commission’s decision, and the judgment of the trial court. In

consideration of the standard of appellate review, which prevents reviewing courts from

substituting their own judgment for that of the Review Commission, we cannot say that

the judgment of the trial court affirming the decision of the Review Commission was

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

      {¶24} Last, regarding appellant’s argument that the Review Commission ignored

Ms. Webber’s testimony about the admission made by Claimant, we note that the

decision of the Review Commission, as well as the trial court, specifically mention that

allegation by Ms. Webber. Thus, the record does not support appellant’s contention.

      {¶25} Accordingly, appellant’s sole assignment of error is without merit, and it is

the judgment and order of this court that the judgment of the Lake County Court of

Common Pleas is affirmed.



DIANE V. GRENDELL, J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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