[Cite as Johnson v. Cleveland, 2012-Ohio-5744.]




          Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                    No. 98312



                                SANDRA JOHNSON
                                                        PLAINTIFF-APPELLANT

                                                  vs.

                     CITY OF CLEVELAND, ET AL.
                                                        DEFENDANTS-APPELLEES




                                          JUDGMENT:
                                           AFFIRMED


                                   Civil Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CV-767173
      BEFORE: Boyle, P.J., Celebrezze, J., and E. Gallagher, J.

      RELEASED AND JOURNALIZED: December 6, 2012

FOR APPELLANT

Sandra Johnson, pro se
19200 Monterey Avenue
Euclid, Ohio 44119

ATTORNEYS FOR APPELLEES

For city of Cleveland

Barbara A. Langhenry
Director of Law
Doston B. Jones
Assistant Director of Law
City of Cleveland
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114

For Director, Ohio Department of Job and Family Services

Michael DeWine
Ohio Attorney General
Patrick MacQueeney
Assistant Attorney General
615 West Superior Avenue, 11th Floor
Cleveland, Ohio 44113-1899




MARY J. BOYLE, P.J.:
       {¶1} Appellant Sandra Johnson appeals from the trial court’s decision affirming a

judgment of the Ohio Unemployment Compensation Review Commission (“UCRC”) that

denied her claim for unemployment benefits.      Finding no merit to the appeal, we affirm.

                                  Procedural History and Facts

       {¶2} Appellee city of Cleveland (“the City”) hired Johnson in June 1998 and

subsequently discharged her in March 2011 for inadequate job performance.           At the time of

her discharge Johnson was working as a building inspector.          The City terminated Johnson

following her third incident of violating the City’s civil service rules within a one-year period.

       {¶3} The three incidents leading to Johnson’s ultimate discharge are as follows.        The

City first disciplined Johnson for insubordination on April 21, 2010, imposing a five-day

suspension, as a result of her refusal to follow the direct order of her chief.   Next, on January

6, 2011, the City disciplined Johnson with a ten-day suspension after finding that she submitted

false paperwork claiming that she worked on two days that she did not.       Finally, on March 17,

2011, the City terminated Johnson as part of its progressive discipline policy after finding that

she inspected a property on January 6, 2011, without legal authority to do so.            The City

determined that Johnson’s incompetence in this instance, along with her previous violations of

the City’s policies and procedures, warranted her termination.

       {¶4} The day following her termination, Johnson applied for unemployment benefits

with appellee Ohio Department of Job and Family Services.             The agency disallowed the
application, determining that Johnson had been discharged with just cause.        On appeal, the

director’s redetermination affirmed the denial of benefits.   A second appeal followed, and the

matter was transferred to the UCRC for an evidentiary hearing.

       {¶5} On August 15, 2011, a telephone hearing was held on Johnson’s appeal.            The

hearing officer heard from all parties present, including Johnson and her union representative.

Johnson admitted that she did search a property that was not listed on the search warrant but

argued that her chief told her to search it and that the property belonged to the City.   Johnson

further admitted that she did not work on the two days that she had submitted paperwork

claiming to have worked.        She stated, however, that she submitted the paperwork only to

“compare records.”    With respect to the other disciplinary action taken against her, Johnson

stated that she refused to sign-off approving a final inspection because she believed that the

building had code violations.

       {¶6} Conversely, the City presented the testimony of its labor relations manager,

Nycole West, who testified that Johnson was discharged for her violation of civil service rules.

 Contrary to Johnson’s testimony, West testified that Johnson’s chief instructed her to enter the

property that was subject to the search warrant — “not the other property.”      With respect to

the five-day suspension, Johnson was issued the disciplinary sanction after the City’s chief and

the chief building official evaluated the building based on Johnson’s stated concern, informed

her that the building was code compliant, and then directed her to sign-off, which she refused.

Finally, West testified that Johnson submitted fraudulent paperwork indicating that she was at
work on April 20, 2010 and June 23, 2010, when she was not there on those days — a fact that

the City confirmed by running her parking records, her swipe card, and checking her computer.

       {¶7} The hearing officer subsequently issued a decision affirming the director’s

redetermination that Johnson was discharged for just cause.      In support of his decision, the

hearing officer reasoned the following:

       Claimant was discharged by the City of Cleveland due to inappropriate conduct.

        The evidence and testimony presented establishes that, while executing a search

       warrant, claimant exceeded her authority and entered a property for which she

       did not have authorization to enter.    Given this situation and given claimant’s

       prior disciplinary actions, claimant engaged in fault sufficient to suspend her

       unemployment compensation benefit rights.        Claimant was discharged by the

       City of Cleveland for just cause in connection with work.           As claimant’s

       separation was disqualifying, her Application for Determination of Benefit

       Rights is disallowed.

       {¶8} Johnson subsequently filed a request for review, and on October 5, 2011, the full

UCRC issued a decision disallowing Johnson’s request.         Johnson appealed to the common

pleas court.   In her brief, Johnson appeared to be attacking the factual findings of the hearing

officer, arguing that her inspection of the property not listed on the search warrant was

permissible.   She further contended that the City’s stated reasons for discharge were false.

According to Johnson, the City initiated all three disciplinary actions against her as retaliation
for her being a union representative and having filed grievances against the department of

building and housing.

       {¶9} The City responded, countering that the UCRC’s decision was supported by the

record because Johnson “engaged in fault sufficient to deem her ineligible to receive

unemployment compensation benefits.”

       {¶10} The trial court affirmed the decision of the UCRC, “finding the decision was not

unlawful, unreasonable, nor against the manifest weight of the evidence.”

       {¶11} Johnson now appeals to this court.

                               Manifest Weight of the Evidence

       {¶12} Although it is not entirely clear from her brief, Johnson appears to be attacking

the trial court’s judgment as being against the manifest weight of the evidence.   In support of

this argument, Johnson argues in her two assignments of error that (1) the trial court

erroneously decided the case despite the existence of issues of fact and the absence of motions

for summary judgment; and (2) the trial court’s ruling ignored the evidence presented by

Johnson contradicting the City’s evidence.   These arguments have no merit.

       {¶13} First, contrary to Johnson’s insinuation, Johnson was not entitled to a new trial

on the issues raised before the UCRC.        Indeed, R.C. 4141.282(H) limits the trial court’s

authority “to hear the appeal on the certified record provided by the commission.”       Further,

the scope of the trial court’s review is as follows: “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.”    Id.

       {¶14} Here, the trial court specifically set forth a briefing schedule and then properly

decided the appeal after the parties filed their briefs.   Johnson’s argument disputing this is

simply wrong and not supported by the record.

       {¶15} Next, we turn to the gravamen of Johnson’s appeal — whether the trial court

erred in affirming the commission’s decision denying unemployment benefits on the basis that

she was discharged with “just cause.”

       {¶16} R.C. 4141.29 sets forth the eligibility and qualifications for unemployment

benefits:

       (D)* * * [N]o individual may serve a waiting period or be paid benefits under
       the following conditions:

       ***

       (2) For the duration of the individual’s unemployment if the director finds that:

       (a) The individual quit work without just cause or has been discharged for just

       cause in connection with the individual’s work * * *.

       {¶17} “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.”      Irvine v.

Unemp. Comp. Bd. of Rev., 19 Ohio St.3d 15, 17, 482 N.E.2d 587 (1985).         An employer may

require specific standards of conduct and discharge employees who violate the standards.
Piazza v. Ohio Bur. of Emp. Servs., 72 Ohio App.3d 353, 357, 594 N.E.2d 695 (8th Dist.1991),

citing Williams v. Ohio Bur. of Emp. Servs., 8th Dist. No. 49759, 1985 Ohio App. LEXIS 9562

(Nov. 27, 1985).

       {¶18} In reviewing a “just cause” determination, our standard of review is the same as

the trial court’s — i.e., an appellate court may reverse a board’s decision only if the decision is

unlawful, unreasonable, or against the manifest weight of the evidence. Williams v. Ohio

Dept. of Job & Family Servs., 129 Ohio St.3d 332, 2011-Ohio-2897, 951 N.E.2d 1031, ¶ 20,

citing R.C. 4141.282(H).    With respect to the standard of review, this court recently stated:

       While 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

       board’s decision is supported by the evidence in the record.    This duty is shared

       by all reviewing courts, from the first level of review in the common pleas court

       through the final appeal. Therefore, the focus of an appellate court when

       reviewing an unemployment compensation appeal is upon the commission’s —

       not the trial court’s —decision.

(Citations omitted.) Hertelendy v. Great Lakes Architectural Serv. Sys., 8th Dist. No. 97782,

2012-Ohio-4157, ¶ 16.

       {¶19} Here, the record overwhelmingly demonstrates that the commission’s decision is

supported by the evidence in the record.     Indeed, just cause for discharge may be established

by proof that the employee violated a specific company rule or policy. Sharif v. Children’s
Hunger Alliance, Inc., 10th Dist. No. 10AP-796, 2011-Ohio-2049, ¶ 7.               Additionally,

willfully refusing to follow a direct order of superiors has been deemed insubordination and

sufficient justification for termination. See Watson v. Ohio Home Health Care, 2d Dist. No.

22837, 2009-Ohio-537.

       {¶20} Aside from the testimony offered at the hearing by the City’s representative, the

City produced documentation that Johnson violated its civil service rules leading to three

disciplinary actions taken against her during the last year of her employment — the last

disciplinary action resulting in Johnson’s discharge.   At the hearing, Johnson even conceded

the facts leading to her ten-day suspension, i.e., that she submitted paperwork indicating that

she had worked on two days despite the fact that she did not work on those days.     And while

Johnson claimed the other two disciplinary actions were retaliatory and not warranted, she

nonetheless acknowledged that she did in fact (1) search a property that was not covered by a

search warrant, and (2) defy a direct order of her supervisor.     As for her “excuses” and

“justification” for her actions in each instance, the hearing officer obviously found her

testimony not credible — a determination that rests within the hearing officer’s discretion —

and not one for a reviewing court to second-guess. See Scali v. CSA HS UHHS Canton, Inc.,

5th Dist. No. 2011-CA-00165, 2012-Ohio-577.

       { ¶ 21} Accordingly, we find that the trial court did not err in affirming the

commission’s decision.     The record contains competent, credible evidence to support a

conclusion that Johnson violated the City’s civil service rules on three separate occasions
during her last year of employment.     These violations constituted just cause for termination.

Johnson is not entitled to unemployment compensation benefits.       Her two assignments of error

are overruled.

       {¶22} Judgment affirmed.

       It is ordered that appellees recover of 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.




MARY J. BOYLE, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
EILEEN A. GALLAGHER, J., CONCUR
