[Cite as de la Calle v. Meijer Group, Inc., 2014-Ohio-1070.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Mariela de la Calle,                                  :

                 Appellant-Appellant,                 :
                                                                    No. 13AP-710
v.                                                    :         (C.P.C. No. 13CVF-4904)

Meijer Group, Inc. &                                  :        (REGULAR CALENDAR)
Ohio Dept. of [Job and] Family Services,
                                                      :
                 Appellees-Appellees.
                                                      :


                                          D E C I S I O N

                                      Rendered on March 20, 2014


                 Mariela de la Calle, pro se.

                 Michael DeWine, Attorney General, and Patria V. Hoskins,
                 for appellee Ohio Department of Job and Family Services.

                   APPEAL from the Franklin County Court of Common Pleas

DORRIAN, J.
        {¶ 1} Appellant, Mariela de la Calle ("appellant"), appeals pro se from a judgment
of the Franklin County Court of Common Pleas affirming the decision of the Ohio
Unemployment Compensation Review Commission ("the Commission") disallowing her
request for review of a hearing officer's decision. Because we conclude that competent,
credible evidence supported the hearing officer's determination that appellant was
terminated for just cause, we affirm.
        {¶ 2} Appellant was employed by Meijer Group, Inc. ("Meijer") from February 7,
1996, to December 22, 2012. At the time of her termination, she was employed as a
specialty clerk. On December 22, 2012, appellant was terminated due to accumulation of
excessive work performance violations. Following her termination, appellant applied to
No. 13AP-710                                                                                            2


appellee, Ohio Department of Job and Family Services ("ODJFS"), for unemployment
benefits. ODJFS initially allowed appellant's application for unemployment benefits.
ODJFS subsequently modified its initial determination, concluding that Meijer
discharged appellant for just cause and that appellant was not entitled to unemployment
benefits. Appellant was ordered to repay benefits she received following the initial
allowance of her claim.
        {¶ 3} Appellant appealed ODJFS's redetermination of her eligibility for
unemployment benefits, and the appeal was transferred to the Commission. A hearing
officer conducted a hearing on the matter on April 15, 2013. In a decision mailed on
April 17, 2013, the hearing officer affirmed ODJFS's determination that appellant was
discharged from employment for just cause and that appellant was required to repay
benefits that she received in the amount of $1,491. Appellant requested a review of the
hearing officer's decision by the Commission, but the Commission disallowed the request
for review.
        {¶ 4} Appellant appealed the Commission's decision disallowing her request for
review to the Franklin County Court of Common Pleas. The lower court concluded that
the record included evidence demonstrating that appellant was unsuited for her position
based on an inability to perform as required and that this constituted fault sufficient to
support a just-cause termination. Therefore, the common pleas court affirmed the hearing
officer's decision.
        {¶ 5} Appellant appeals from the common pleas court's judgment, assigning three
errors for this court's review:1
                FIRST ASSIGNMENT OF ERROR

                The first error that the office of Judge Cain incurred was to
                ignore that at the time I was employed at Meijer, I was a
                member of the Union of Food and Commercial Workers Local
                1059, for that reason all the faults that Meijer Inc. created to

1Appellant, acting pro se in this appeal, moved this court for appointment of a Spanish-language interpreter
for purposes of oral argument. Pursuant to Sup.R. 88(D)(1), this court appointed Charles Goodburn, a
Spanish-language interpreter certified by the Supreme Court of Ohio. The court administered an oath to Mr.
Goodburn, as required under Sup.R. 88(I), and he provided consecutive English-language interpretation of
appellant's oral argument and responses to the court's questions, as well as consecutive Spanish-language
interpretation for appellant of the court's questions and appellee's oral argument and responses to the
court's questions.
No. 13AP-710                                                                                             3


                 terminate my job at Meijer should comply with the Just Cause
                 Test Portrait by the President of the Union of Food and
                 Commercial workers Local 1059 in the Edition of January-
                 February 2013 and with "The Seven Reasons for Just Cause
                 Discipline" portrait by the same author Randy Quickel when
                 he was Service Director of the Union Local 1059. Those
                 documents are in the Director's File of Ohio Jobs and Family
                 Services and were provide for me again in my Administrative
                 Appeal to the office of Judge Cain, any of the faults that Meijer
                 created to terminate my job in Meijer comply with the Just
                 Cause Test.

                 SECOND ASSIGNMENT OF ERROR

                 The second error that the office of Judge incurred was to
                 affirm that my unemployment compensation was denied in
                 the first place, the fact is that it was approved from
                 January 26 2013 to March 9 2013 when Meijer appealed the
                 decision of Ohio Jobs and Family Services to provide me with
                 unemployment compensation as a result of this appeal my
                 unemployment compensation was denied, in March 18 2013
                 and the office of Ohio Jobs and Family Services is claiming
                 restitution of $1491 in overpaid benefits.2

                 THIRD ASSIGNMENT OF ERROR

                 The third error that the office of Judge Cain incurred is to
                 affirm that my job in Meijer terminated because I was
                 unsuitable to do the job, the reality is that Meijer fabricate the
                 faults to finish my job at Meijer as a consequence of two
                 accidents at work suffer for another employee and the
                 subsequent involvement of OSHA in the situation.

(Sic. Passim.)
        {¶ 6} Appellant's three assignments of error are interrelated, each ultimately
objecting to the determination that she was terminated for just cause. Therefore, we will
address all three assignments of error together.



2Both appellee's brief and the judgment of the common pleas court indicate that appellant's initial claim for
unemployment benefits was disallowed. However, as indicated in our discussion of the facts and in the
hearing officer's decision, ODJFS initially allowed appellant's claim before issuing a redetermination
decision that modified the initial determination and concluded that she was not entitled to unemployment
benefits.
No. 13AP-710                                                                               4


       {¶ 7} 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. R.C. 4141.282(H); Tzangas, Plackas & Mannos v. Bur. of Emp. Servs., 73 Ohio
St.3d 694 (1995), paragraph one of the syllabus. The reviewing court may not make
factual findings or determine a witness's credibility. 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 some competent, credible evidence in the record supports it." Id.
       {¶ 8} In relevant part, Ohio law provides that an individual is not entitled to
unemployment benefits if he or she "has been discharged for just cause in connection with
the individual's work." R.C. 4141.29(D)(2)(a). The Supreme Court of Ohio has held that
" '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
Review, 19 Ohio St.3d 15, 17 (1985), quoting Peyton v. Sun T.V. & Appliances, 44 Ohio
App.2d 10, 12 (10th Dist.1975). Determination of whether just cause exists depends on the
facts of each particular case. Irvine at 17. Fault on the part of an employee is an essential
component of a just-cause termination. Tzangas at paragraph two of the syllabus.
Unsuitability for a position constitutes "fault" for purposes of a just-cause termination.
Id. at paragraph three of the syllabus. "An employer may properly find an employee
unsuitable for the required work, and thus to be at fault, when: (1) the employee does not
perform the required work, (2) the employer made known its expectations of the
employee at the time of hiring, (3) the expectations were reasonable, and (4) the
requirements of the job did not change substantially since the date of the original hiring
for that particular position." Id. at paragraph four of the syllabus. This court has
previously held that, with respect to violating employer policies, the critical issue is not
whether an employee technically violated a company rule but whether the employee's
actions demonstrated an unreasonable disregard for the employer's interests. See Gregg
v. SBC Ameritech, 10th Dist. No. 03AP-429, 2004-Ohio-1061, ¶ 39.
       {¶ 9} In this case, the hearing officer found that Meijer used a points-based
system to track employee attendance and work-performance violations. Under this
system, an employee would be discharged for accruing more than 12 points for attendance
or work-performance violations or for accruing more than 18 points combined in both
No. 13AP-710                                                                             5


categories. Meijer treated customer complaints as work-performance issues. The hearing
officer found that appellant received numerous warnings related to customer complaints.
The hearing officer also found that appellant committed a work-performance violation by
misusing company time on December 15, 2012, when she clocked in at work and then
immediately left the store to park her car, which she had left parked in a fire lane. The
hearing officer found that, as a result of these incidents, appellant exceeded 12 points for
work-performance violations and was discharged. Based on these factual findings, the
hearing officer concluded that appellant acted in a manner that was contrary to her
employer's interests. The hearing officer concluded that the repeated customer
complaints and misuse of company time to park her car constituted sufficient fault to
justify appellant's discharge and that she was terminated for just cause in connection with
her work. The hearing officer further concluded that appellant had been overpaid benefits
based on the initial allowance of her benefit claim and that she was required to repay the
overpaid benefits.
       {¶ 10} We review the hearing officer's decision to determine whether there was
competent, credible evidence supporting her conclusion that appellant was discharged for
just cause. Meijer presented copies of its work rules and guidelines, indicating that certain
conduct was unacceptable and could lead to discipline or termination. These work rules
specifically cited rudeness or any other conduct that demonstrates a disregard for
customers and misuse of company time as unacceptable conduct. Meijer presented a copy
of appellant's signed acknowledgment indicating her receipt of the company's handbook
and agreement to follow the company's policies. Meijer also presented documentation
relating to the customer complaints, failure to perform requested tasks, and to the
parking incident in which appellant was charged with misusing company time.
       {¶ 11} In addition to the written documentation, Weston Brubaker, the store
director of the Meijer store where appellant worked, testified before the hearing officer.
Brubaker provided specific testimony regarding the final customer complaint, filed on
December 9, 2012, and the misuse of company time incident that occurred on
December 15, 2012. Brubaker also testified generally about the history of customer
complaints regarding appellant's conduct. Furthermore, while appellant alleges non-
compliance with the standards for just-cause determinations involving union employees,
No. 13AP-710                                                                          6


we note the hearing officer also heard testimony from Kenneth Cherry, an employee and
union steward at the Meijer store where appellant worked. Cherry testified that appellant
had multiple customer complaints that resulted in severe disciplinary situations. He
explained that, as union steward, he attempted to assist appellant in dealing with the
disciplinary actions resulting from several of these customer complaints. Cherry further
testified that, with respect to the misuse of company time incident, appellant admitted to
clocking in and then leaving work to park her car but disputed the amount of time it took
before she returned to work. Appellant also testified before the hearing officer. She
generally disputed the customer complaints, suggesting that the store managers were
looking for a way to terminate her. Appellant admitted that she parked her car on
company time on December 15, 2012, but testified that she did not know this constituted a
misuse of company time.
       {¶ 12} After reviewing the evidence and testimony presented to the hearing officer,
we conclude that there was competent, credible evidence to support her conclusion that
appellant was terminated for just cause. The repeated customer complaints contained in
the record demonstrate an unreasonable disregard for Meijer's interests in keeping
customers satisfied. See Gregg at ¶ 39. As other courts have noted, rudeness toward
customers can contribute to a just-cause determination. See Bulatko v. Dept. of Job &
Family Servs., 7th Dist. No. 07 MA 124, 2008-Ohio-1061, ¶ 35. Similarly, appellant
admitted that, on December 15, 2012, she left the store to park her car after clocking in,
which constituted a misuse of company time and violation of Meijer's policies. Although
appellant's third assignment of error appears to assert that she was terminated in
retaliation for filing complaints with federal authorities, there was no evidence to
substantiate this claim. Some of the documents indicate that, in response to disciplinary
matters, appellant stated she would contact federal authorities. However, there was no
evidence in the record to suggest that the termination was based on those comments or
that the work-performance violations were a mere pretext for the termination.
       {¶ 13} Accordingly, we find that competent and credible evidence supported the
hearing officer's just-cause determination. Therefore, appellant's three assignments of
error are not well-taken.
No. 13AP-710                                                                     7


      {¶ 14} For the foregoing reasons, we overrule appellant's three assignments of
error and affirm the judgment of the Franklin County Court of Common Pleas.
                                                                  Judgment affirmed.
                         BROWN and O'GRADY, JJ., concur.
                                _______________
