[Cite as Marano v. Duramax Marine L.L.C., 2011-Ohio-6147.]


                                     COURT OF APPEALS
                                    STARK COUNTY, OHIO
                                 FIFTH APPELLATE DISTRICT


JOHN MARANO,                                       :     JUDGES:
                                                   :
                                                   :     Hon. William B. Hoffman, P.J.
                   Plaintiff-Appellant,            :     Hon. John W. Wise, J.
                                                   :     Hon. Patricia A. Delaney, J.
v.                                                 :
                                                   :     Case No. 2011CA00081
DURAMAX MARINE, L.L.C., et al.,                    :
                                                   :
                                                   :
                   Defendants-Appellees.           :     OPINION



CHARACTER OF PROCEEDING:                               Appeal from the Stark County Court of
                                                       Common Pleas, Case No. 2010CV04446


JUDGMENT:                                              AFFIRMED



DATE OF JUDGMENT ENTRY:                                November 21, 2011



APPEARANCES:

For Appellant:                                           For Appellees:

DAVID A. VAN GAASBEEK                                    WM. MICHAEL HANNA
1303 W. Maple St.                                        KATHLEEN M. PORTMAN
Suite 104                                                127 Public Square
North Canton, OH 44720                                   4900 Key Tower
                                                         Cleveland, OH 44114

                                                         SUSAN SHEFFIELD
                                                         Assistant Attorney General
                                                         20 W. Federal St., 3rd Floor
                                                         Youngstown, OH 44503
[Cite as Marano v. Duramax Marine L.L.C., 2011-Ohio-6147.]


Delaney, J.

        {¶ 1} Plaintiff-Appellant John Marano appeals the April 1, 2011 judgment entry

of the Stark County Court of Common Pleas affirming the decision of the Ohio

Department of Job and Family Services which found Appellant was terminated from his

employment for just cause and was not eligible for unemployment benefits.

                          STATEMENT OF THE FACTS AND CASE

        {¶ 2} Appellant was hired by Defendant-Appellee Duramax Marine, L.L.C. on

March 5, 2001 as a Facilities Engineer and Manager, a salaried position. Duramax

provided all employees with an employee handbook. Appellant received and signed a

declaration acknowledging he read and understood the provisions in the handbook.

        {¶ 3} Section II.11 of the employee handbook regulates the use of company

property. It states in pertinent part:

        {¶ 4} “Telephones, voice mail, fax machines, computer software, E-mail, and

other related systems are available for use by company employees solely for job-related

purposes unless your Manager specifically gives approval. All of these resources and

the information contained in them are property of the company. The company reserves

the right to monitor, retrieve, recreate, and review any information contained in them.

Consequently[,] any employee using these resources understands that they have no

expectation or right to privacy in their information. Use of these systems constitutes

consent to monitoring for these purposes. Any employee who improperly uses these

resources is subject to discipline up to and including termination of employment.”

        {¶ 5} Prior to October 2009, Duramax had no specific policy as to internet

access through computer workstations.                  Two employees were disciplined for
Stark County, Case No. 2011CA00081                                                        3


downloading music and visiting a gaming website that contained viruses.                The

employees were reprimanded and a letter placed in their personnel file.

       {¶ 6} Due to these infractions, in October 2009 Duramax installed a proxy

server on its computer network system to reduce excessive bandwidth usage and to

prevent anyone from going to destructive websites.         Duramax sent its employees,

including Appellant, notification of the company’s use of the proxy server.            The

notification stated, “all desktop users will be blocked from websites that have been

deemed to be infected and websites that fit the category called destructive.          This

category includes criminal activity, hacking, illegal drugs, intolerant and hate sites,

phishing and fraud, tasteless and offensive, terrorism, violence, weapons, spam, porn,

peer to peer, spyware, gambling, and others like these.”

       {¶ 7} Shortly after the proxy server was installed, the IT Manager received an

alert that an employee was continuously trying to access websites containing

pornography. An investigation determined it was Appellant’s computer station. The IT

Manager downloaded Appellant’s internet history and found multiple instances of

pornography websites accessed during work hours.            The IT Manager discovered

numerous pornographic pictures downloaded onto Appellant’s computer.

       {¶ 8} After the proxy server was installed, the IT Manager did not observe

further violations of the internet policy with the exception of Appellant’s computer usage.

       {¶ 9} On October 23, 2009, the HR Director approached Appellant about the

misuse of the company computer.           The HR Director presented Appellant with

pornographic images found on Appellant’s computer. Appellant admitted he recognized

a picture and accessed pornography on the company computer. Appellant’s computer
Stark County, Case No. 2011CA00081                                                   4


was password protected and Appellant did not allege misuse of his password or that he

had given another employee his password. Based on Appellant’s inappropriate use of

his computer to access pornographic websites during work hours, Duramax terminated

Appellant’s employment pursuant to Section II.11 of the employee handbook.

      {¶ 10} Appellant filed an Application for Determination of Benefit Rights on

October 27, 2009.     Defendant-Appellee, the Ohio Department of Job and Family

Services issued an initial determination disallowing unemployment benefits on

December 3, 2009. Appellant filed an untimely appeal and after subsequent appeals on

the issue of timeliness, the Unemployment Compensation Review Commission heard

the appeal of the denial of benefits on October 26, 2010.

      {¶ 11} The Hearing Officer affirmed the initial determination of December 3, 2009

to find that Duramax terminated Appellant’s employment for just cause in connection

with work; therefore, Appellant was not eligible for unemployment benefits. Appellant

appealed the decision to the Stark County Court of Common Pleas.

      {¶ 12} On March 14, 2011, the trial court entered a judgment entry affirming the

decision of the Unemployment Compensation Review Commission.            The trial court

issued a judgment entry on April 1, 2011 in accordance with Local Rule 18.01(A)

affirming the decision of the Unemployment Compensation Review Commission. It is

from this decision Appellant now appeals.

      {¶ 13} Appellant raises one Assignment of Error:

      {¶ 14} “THE COMMON PLEAS COURT ERRED AND ITS DECISION SHOULD

BE   REVERSED        BECAUSE       THE      REASONING       OF   THE   DECISION     IS
Stark County, Case No. 2011CA00081                                                       5


UNREASONABLE, UNLAWFUL, AND AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.”

                                STANDARD OF REVIEW

       {¶ 15} An appellate court's standard of review in unemployment compensation

cases is limited. An appellate court may reverse a board's decision only if the decision

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

Tzangas, Plakas & Mannos v. Administrator, Ohio Bureau of Employment Services, 73

Ohio St.3d 694, 696, 1995-Ohio-206, 653 N.E.2d 1207, citing Irvine v. Unemp. Comp.

Bd. Of Review (1985), 19 Ohio St.3d 15, 17-18, 482 N.E.2d 587. An appellate court

may not make factual findings or determine the credibility of the witnesses, but rather, is

required to make a determination as to whether the board's decision is supported by

evidence on the record. Id. The hearing officer is in the best position to judge the

credibility of the witnesses as the fact finder.      Shaffer-Goggin v. Unemployment

Compensation Review Commission, Richland App. No. 03-CA-2, 2003-Ohio-6907,

citing, Hall v. American Brake Shoe Co. (1968), 13 Ohio St.2d 11, 233 N.E.2d 582;

Brown-Brockmeyer Co. v. Roach, (1947), 148 Ohio St. 511, 76 N.E.2d 79.

       {¶ 16} A reviewing court is not permitted to make factual findings, determine the

credibility of witnesses, or substitute its judgment for that of the commission; where the

commission might reasonably decide either way, the courts have no authority to upset

the commission's decision. Irvine, supra at 17–18. “ ‘Every reasonable presumption

must be made in favor of the [decision] and the findings of facts [of the Review

Commission].’ “ Ro–Mai Industries, Inc. v. Weinberg, 176 Ohio App.3d 151, 2008-Ohio-
Stark County, Case No. 2011CA00081                                                           6

301, 891 N.E.2d 348 at ¶ 7, quoting Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 19,

526 N.E.2d 1350.

                                                   I.

        {¶ 17} 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:

        {¶ 18} “* * *

        {¶ 19} “(D)* * * [N]o individual may * * * be paid benefits * * *:

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

that:

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

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

        {¶ 22} 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. The determination of whether just cause

exists for an employee's dismissal under R.C. 4141.29 is based upon whether there

was some fault on the part of the employee that led to the dismissal. Tzangas, supra at

paragraph two of the syllabus.          Furthermore, 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. (1985), 21

Ohio App.3d 168, 169, 486 N.E.2d 1233, quoting Stephens v. Bd. of Rev., Cuyahoga

App. No. 41369, 1980 WL 355009. See, also, Binger v. Whirlpool Corp. (1996), 110

Ohio App.3d 583, 590, 674 N.E.2d 1232.
Stark County, Case No. 2011CA00081                                                      7


       {¶ 23} Appellant argues Duramax was without just cause to discharge him from

his employment because he was not the only employee to engage in inappropriate

usage of the company’s internet.        Appellant refers to the two employees who

downloaded computer viruses to the company’s computer network, but Duramax did not

dismiss the employees.     Appellant states that his actions in viewing pornographic

websites during work hours cannot demonstrate “an unreasonable disregard for the

employer’s best interests” when Duramax failed to dismiss the other employees for their

inappropriate internet usage.

       {¶ 24} Appellant’s argument raises the issue of fault, an essential component of

a just cause termination for purposes of unemployment compensation eligibility.

Tzangas, supra. “The [Unemployment Compensation] Act exists ‘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 at 17, 19 OBR at 14,

482 N.E.2d at 589, citing Leach v. Republic Steel Corp. (1964), 176 Ohio St. 221, 223,

27 O.O.2d 122, 123, 199 N.E.2d 3, 5. ‘The [A]ct was intended to provide financial

assistance to an individual who had worked, was able and willing to work, but was

temporarily without employment through no fault or agreement of his own.’ Irvine at 17,

19 OBR at 14, 482 N.E.2d at 589, citing Salzl v. Gibson Greeting Cards (1980), 61 Ohio

St.2d 35, 39, 15 O.O.3d 49, 52, 399 N.E.2d 76, 79.”           Id.   “The [Unemployment

Compensation] 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 instead directly responsible for
Stark County, Case No. 2011CA00081                                                     8


his own predicament. Fault on the employee’s part separates him from the Act’s intent

and the Act’s protection.” Id.

       {¶ 25} “A just cause determination requires an analysis of the employee’s fault in

the situation leading for his termination.” Autozone, Inc. v. Herring, Summit App. No.

22824, 2006-Ohio-1039. Appellant argues that in this case, he could not have been at

fault when other employees inappropriately used the company’s internet and their

actions did not result in termination.    The Act does not utilize a comparative fault

analysis in determining just cause. “Under the Unemployment Compensation Act, just

cause is predicated on the individual employee’s fault – not the employee’s fault as

compared to another employee’s fault.” Id. “Nowhere in our precedent or that of the

Ohio Supreme Court is it indicated that an employee is unjustly terminated simply

because his conduct is less egregious than another employee’s.” Id.

       {¶ 26} Accordingly, the Unemployment Compensation Board of Review and the

reviewing courts must only consider Appellant’s fault in the situation leading to his

termination to determine whether Duramax had just cause for Appellant’s termination.

The Hearing Commissioner cannot engage in a comparison of other employees’

behaviors to determine if Appellant was at fault.

       {¶ 27} Appellant next argues the evidence presented by Duramax at the

administrative hearing was insufficient to substantiate its claims that Appellant viewed

multiple pornographic website. Duramax’s HR Director testified at the administrative

hearing as to the pornographic websites allegedly visited by Appellant, but did not

provide any documentary evidence of those websites. Appellant states that without the

documentary evidence, Duramax could not show just cause.
Stark County, Case No. 2011CA00081                                                       9


       {¶ 28} Appellant has the burden of proving his entitlement to unemployment

compensation benefits. Irvine, supra, at 17. To show he is entitled to unemployment

compensation, the employee must provide evidence that his discharge was without just

cause by demonstrating he was without fault in the incident resulting in his termination.

Westphal v. Cracker Barrell Old Country Store, Inc., Lorain App. No. 09CA009602,

2010-Ohio-190, ¶12.

       {¶ 29} The Ohio Revised Code establishes the evidentiary requirements at

Unemployment Compensation Review Commission hearings.                R.C 4141.281(C)(2)

states in pertinent part:

       {¶ 30} “The principles of due process in administrative hearings shall be applied

to all hearings conducted under the authority of the commission.            In conducting

hearings, all hearing officers shall control the conduct of the hearing, exclude irrelevant

or cumulative evidence, and give weight to the kind of evidence on which reasonably

prudent persons are accustomed to rely in the conduct of serious affairs.         Hearing

officers have an affirmative duty to question parties and witnesses in order to ascertain

the relevant facts and to fully and fairly develop the record. Hearing officers are not

bound by common law or statutory rules of evidence or by technical or formal rules of

procedure. No person shall impose upon the claimant or the employer any burden of

proof as is required in a court of law.”

       {¶ 31} The Ohio Administrative Code also regulates hearings before the

Unemployment Compensation Review Commission. O.A.C. 4146-7-02 states:

       {¶ 32} “(C) Rights of parties
Stark County, Case No. 2011CA00081                                                      10


       {¶ 33} “The review commission or hearing officer conducting a proceeding may

examine the interested parties and other witnesses, and each interested party and the

interested party's representative shall have all rights of fair hearing, including:

       {¶ 34} “(1) The right of examination and cross-examination of witnesses,

       {¶ 35} “(2) The right to present testimony and other evidence,

       {¶ 36} “(3) The right to inspect and examine documents, files, reports and

records received in evidence,

       {¶ 37} “(4) The right to present testimony and other evidence in explanation and

rebuttal,

       {¶ 38} “(5) The right to subpoenas for witnesses and documentary evidence and

the right to present argument.”

       {¶ 39} Finally, the Hearing Officer is the ultimate fact finder in an unemployment

compensation review hearing and a reviewing court may not substitute its own findings

of fact. It is the Hearing Officer’s duty to determine the credibility of the witnesses. In

this case, the Hearing Officer found Duramax to be more credible than Appellant. The

Hearing Officer determined Appellant was at fault “for visiting inappropriate internet

websites using his company computer on company time. * * * [Appellant’s] actions were

not those an employer could reasonably expect from an employee.” (Unemployment

Compensation Review Commission Decision, Nov. 10, 2010).

       {¶ 40} Our review of the transcript shows the Hearing Officer’s decision was

lawful, reasonable, and supported by sufficient and credible evidence. After Duramax

installed the proxy server, it sent notices to its employees that websites containing

pornography were considered destructive and would be blocked.                 Duramax’s HR
Stark County, Case No. 2011CA00081                                                11


Director testified they discovered Appellant viewed numerous pornographic websites

during working hours. Appellant admitted that he viewed pornographic websites on the

company computer during working hours.       The employee handbook states that an

employee who improperly uses the company computer is subject to discipline up to and

including termination of employment.

      {¶ 41} Appellant’s sole Assignment of Error is overruled.



                  The judgment of the Stark County Court of Common Pleas is affirmed.

By: Delaney, J.

Hoffman, P.J., and Wise, J., concur.




                                       HON. PATRICIA A. DELANEY



                                       HON. WILLIAM B. HOFFMAN



                                       HON. JOHN W. WISE
[Cite as Marano v. Duramax Marine L.L.C., 2011-Ohio-6147.]


               IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                 FIFTH APPELLATE DISTRICT

JOHN MARANO,                                       :
                                                   :
                                                   :
                    Plaintiff-Appellan,t           :
                                                   :
-vs-                                               :   JUDGMENT ENTRY
                                                   :
DURAMAX MARINE, L.L.C., et al.,                    :
                                                   :
                                                   :   Case No. 2011CA000081
                   Defendants-Appellees.           :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                               HON. PATRICIA A. DELANEY



                                               HON. WILLIAM B. HOFFMAN



                                               HON. JOHN W. WISE
