[Cite as Maiorca-Notman v. Dir. Job & Family Servs., 2016-Ohio-4599.]


                                  IN THE COURT OF APPEALS

                              ELEVENTH APPELLATE DISTRICT

                                   TRUMBULL COUNTY, OHIO


STEPHANIE A. MAIORCA-NOTMAN,                          :           OPINION

                 Appellee,                            :
                                                                  CASE NO. 2015-T-0122
        - vs -                                        :

DIRECTOR OF JOB AND FAMILY                            :
SERVICES, et al.,
                                                      :
                 Appellant.
                                                      :


Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CV 01071.

Judgment: Affirmed.


Michael D. Rossi, Guarnieri & Secrest, P.L.L., 151 East Market Street, P.O. Box 4270,
Warren, OH 44482 (For Appellee).

Mike DeWine, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th
Floor, Columbus, OH 43215-3428, and Susan M. Sheffield, Associate Assistant
Attorney General, 20 West Federal Street, Third Floor, Youngstown, OH 44503. (For
Appellant).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, Director of Job and Family Services, appeals the judgment of

the Trumbull County Court of Common Pleas reversing the decision of the Ohio

Unemployment Compensation Review Commission, which denied unemployment

compensation benefits to appellee, Stephanie A. Maiorca-Notman. At issue is whether
the trial court’s decision was unlawful, unreasonable, or against the manifest weight of

the evidence. For the reasons that follow, we affirm.

      {¶2}   The statement of facts that follows is based on the evidence presented at

the hearing before the hearing officer. Miranda Commons, Chief Financial Officer of

Akeso Home Health Care, Inc. (“the employer”), testified that Stephanie A. Maiorca-

Notman (“the claimant”) was employed by Akeso as a registered nurse. Ms. Commons

said that on December 30, 2014, during Akeso’s monthly interdisciplinary meeting with

its nurses and therapists, physical therapist Jeff Jay said he was concerned about

whether one of their patients was safe at home and receiving proper care. The patient

was in her 80s; had recently been released from the hospital; was taking several

medications; was living alone; and had a few falls in her home. He said she was left

home alone for hours at a time and was unable to stand without assistance. He felt that

she should have in-home nursing care and that, if they could not resolve the matter,

they might have to contact Adult Protective Services. As a result, Ms. Commons said

the claimant was asked to talk to the patient’s daughter about having nursing come to

the home.

      {¶3}   Rebecca Hughes, Akeso’s Director of Nursing, testified that, based on Mr.

Jay’s concerns, she asked the claimant to go to the patient’s home to conduct a nursing

assessment and to talk to the patient’s daughter about in-home nursing for her mother.

Ms. Hughes instructed the claimant to do this because she had done the initial work

with the patient and because the claimant personally knew the patient’s daughter.

      {¶4}   The claimant was not represented by counsel. Instead, her testimony was

elicited through questioning by the Commission’s hearing officer. Rather than have the




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claimant recite the events as they unfolded as generally happens on direct examination,

at times his questions to her were specific or accusatory, more nearly resembling cross

examination. At other times, his questions were completely open-ended without any

direction. Thus, the claimant’s testimony is sometimes unclear and contains several

gaps. That being said, the claimant testified that, later that day, December 30, 2014,

pursuant to the employer’s instructions, she called the patient’s daughter. The claimant

told her that Mr. Jay was concerned about her mother’s condition and said she might

need in-home nursing care. The patient’s daughter said it was not necessary because

the patient’s doctor had told her he did not believe her mother needed in-home nursing.

The patient’s daughter asked the claimant what possible repercussions might occur if

she declined nursing care for her mother. The claimant said that, according to Mr. Jay,

they might have to call Adult Protective Services.

       {¶5}   The claimant testified it was appropriate for her to advise the patient’s

daughter, who was her mother’s authorized contact, about the possible need for in-

home nursing because such care would be a change in the patient’s plan of care and,

according to federal regulations, the patient has the right to be informed in advance

about any changes in her plan of care. The claimant also testified that if a referral to

Adult Protective Services is necessary, the agency can tell the patient about a possible

referral to give the patient the opportunity to make the changes necessary to avoid a

referral.

       {¶6}   Ms. Commons testified that after talking to the claimant, the patient’s

daughter became very upset and irate. She then called Mr. Jay. The patient’s daughter

told him her mother did not need nursing care. She was upset about him saying her




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mother was not safe at home and that Adult Protective Services might be needed. She

said if he called that agency, she would sue the company.

       {¶7}   Ms. Commons said that during the week following December 30, 2014,

the claimant was off work due to a medically-excused illness. Ms. Commons had Ms.

Hughes call the claimant at home to tell her to come into the office. On January 5,

2015, Ms. Hughes told her she was terminated for violating the company’s

confidentiality policy by telling the patient’s daughter about Mr. Jay’s concern about her

mother’s safety and that they might have to call Adult Protective Services. The reason

provided for her termination in her notice of discharge was that she violated

“organization confidentiality by disclosing to a patient’s family member items that were

discussed about the patient in a closed meeting.” During the hearing before the hearing

officer, Ms. Commons testified she discharged the claimant due to her alleged violation

of the company’s confidentiality policy.

       {¶8}   The claimant testified that, according to the company’s confidentiality

policy, the company’s employees cannot disclose information about the company’s

patients, company pricing, agency administration, company projects, investigations of

the agency, and agency personnel. She said she did not disclose any such information

and thus did not violate the company’s policy. Moreover, the claimant testified she was

not given any specifics as to what she could or could not discuss with the patient’s

daughter.

       {¶9}   The claimant filed an application with Job and Family Services for

determination of unemployment compensation benefits beginning January 11, 2015.




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       {¶10} On February 4, 2015, Job and Family Services disallowed the claimant’s

application for unemployment compensation. On March 10, 2015, appellant affirmed

the disallowance of the claimant’s application, finding she was terminated by the

employer for just cause.

       {¶11} On March 25, 2015, the claimant appealed the decision. Job and Family

Services   transferred     the   case   to   the   Unemployment   Compensation      Review

Commission.     On April 23, 2015, a hearing was held before the hearing officer.

Following the hearing, he found that the claimant did not violate the company’s

confidentiality policy, but nevertheless found she was discharged for just cause because

her actions were in “willful disregard of the employer’s interest.” As a result, the hearing

officer affirmed appellant’s March 10, 2015 disallowance of the claimant’s application for

unemployment compensation.

       {¶12} The claimant filed a request to review the hearing officer’s decision with

the Review Commission, and the Commission disallowed the request.

       {¶13} The claimant filed an administrative appeal with the trial court pursuant to

R.C. 4141.282.      On review of the record, the trial court reversed the Review

Commission’s decision, finding it was unlawful, unreasonable, and/or against the

manifest weight of the evidence. Appellant appeals the trial court’s judgment, asserting

the following for his sole assignment of error:

       {¶14} “The Review Commission’s decision is not unlawful, unreasonable, or

against the manifest weight of the evidence and is supported by the evidence of record,

and therefore this court must reverse the common pleas court’s decision.”




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

held that the standard of review in unemployment compensation appeals of just cause

decisions issued 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. Lake 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. at paragraph

one of the syllabus; see also R.C. 4141.282(H). The Supreme Court of Ohio recently

reaffirmed its opinion regarding this standard of review in Williams v. Ohio Dep’t of Job

& Family Servs., 129 Ohio St.3d 332, 2011-Ohio-2897, ¶20.

       {¶16} “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., 19

Ohio St.3d 15, 17 (1985). 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.      Rather,

reviewing courts are required to determine whether the commission’s decision is

supported by evidence in the record. Tzangas, supra, at 696.

       {¶17} Pursuant to R.C. 4141.29(D)(2)(a), an individual is not eligible for

unemployment compensation benefits if the individual has been “discharged for just

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

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




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for doing or not doing a particular act.” Irvine, supra. In determining the existence of just

cause to discharge, the employee’s “conduct need not constitute misconduct, but there

must be a showing of some fault on the part of the employee.” Reddick v. Sheet Metal

Prods. Co., 11th Dist. Lake No. 2009-L-092, 2010-Ohio-1160, ¶22. “‘If an employer has

been reasonable in finding fault on behalf of an employee, the employer may terminate

the employee with just cause. Fault on behalf of the employee remains an essential

component of a just cause termination.’” Id., quoting Tzangas, supra, at 698.

       {¶18} Appellant argues the trial court erred in finding that just cause for the

claimant’s termination must be warranted by the reason stated in the notice of

termination alone and that the hearing officer improperly changed the reason for the

claimant’s termination from the employer’s stated reason (a violation of the

confidentiality policy) to another reason (willful disregard of the employer’s interest).

       {¶19} The facts in this case are quite similar to those presented in a case

decided by the Seventh District. In Bellaire v. State Unemployment Comp. Review

Comm’n, 7th Dist. Belmont No. 11 BE 3, 2011-Ohio-5167, the employer-village

discharged the claimant, a heavy equipment operator, via a letter in which the employer

cited issues related to the claimant’s performance of his final construction project as the

reason for his discharge. However, during the administrative hearing, the employer

cited problems in the employee’s performance in two other projects as well.                 The

hearing officer found there was no just cause for discharge and granted the employee’s

request for unemployment compensation.              The trial court concluded that the

administrative decision was not contrary to law or irrational. In affirming the decision of

the trial court, the Seventh District stated:




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         {¶20} “The Hearing Officer limited review to the reasons given in the July
               9, 2009 termination letter, a letter which was devoid of any
               reference to past problems. ‘Where a party gives a reason for his
               conduct and decision touching anything involved in a controversy,
               he cannot, after litigation has begun, change his ground, and put
               his conduct upon another and a different consideration. He is not
               permitted thus to mend his hold. He is estopped from doing it by * *
               * settled principle[s of] law.’ Grand Trunk Western. R. Co. v. H.W.
               Nelson Co., 116 F.2d 823, 840 (6th Cir.1941). Because the
               termination letter cited only matters arising during the claimant's
               performance of his final job, the termination must be warranted
               when examined in light of those cited matters alone.” (Emphasis
               added.) Id. at ¶13.

         {¶21} Significantly, while the trial court relied heavily on Bellaire, supra, and

Grand Trunk Western, supra, appellant does not attempt to distinguish or even mention

these cases.

         {¶22} Here, the only reason provided by the employer in its notice of termination

was that the claimant allegedly violated the company’s confidentiality policy by

discussing with the patient’s daughter the therapist’s concern for her mother’s safety

and the fact that Adult Protective Services might be called. The employer never cited

the purported reason found by the hearing officer in support of his decision, i.e., that the

claimant’s actions were in willful disregard of the employer’s interest. Because the

termination notice cited only the claimant’s alleged violation of the company’s

confidentiality policy in support of her termination, the discharge could only be justified

in light of the reason advanced by the employer. Once the hearing officer decided that

the claimant did not violate the company’s confidentiality policy, the employer (and the

hearing officer) were estopped from asserting another reason to support a finding of just

cause.




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       {¶23} Appellant argues the hearing officer did not change the employer’s reason

for the claimant’s termination, but, rather, merely analyzed the claimant’s conduct under

the standard of willful disregard of the employer’s interest. However, the hearing officer

did change the employer’s reason for the discharge because the hearing officer’s

finding of willful disregard was based on conduct of the claimant that was different from

that which supported the claimant’s alleged violation of the confidentiality policy.

Appellant argued at oral argument that the hearing officer’s finding of willful disregard

was based on the claimant’s telephoning the patient’s daughter and threatening to call

Adult Protective Services, instead of going to the patient’s home to conduct a nursing

assessment. This conduct has nothing to do with the claimant’s alleged violation of the

confidentiality policy and thus could not be used to support the hearing officer’s finding

of willful disregard.

       {¶24} It is worth noting that, even if appellant could rely on this different conduct,

the record does not support appellant’s version of events. First, nothing in the record

suggests the claimant called the patient’s daughter in lieu of making an assessment at

the patient’s home. Rather, the claimant telephoned the patient’s daughter to discuss

the physical therapist’s concerns for the patient’s safety and her need for in-home

nursing care, just as her employer instructed her to do. Further, the record does not

support appellant’s argument that the claimant threatened to call Adult Protective

Services. Rather, the patient’s daughter asked the claimant a direct question about the

possible repercussions of her declining nursing care. In response, the claimant simply

said that Adult Protective Services might be called.        Moreover, after the daughter

emphatically told both the claimant and the physical therapist that her mother did not




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need in-home nursing, any further attempt by the claimant to conduct a nursing

assessment would have been futile and counter-productive.

       {¶25} In any event, even if the hearing officer was entitled to find another reason

to support the employer’s decision to discharge the claimant, the hearing officer did not

reference any evidence in his decision supporting his finding of willful disregard of the

employer’s interest; the record does not support such finding; and appellant cites no

case law holding that facts similar to those presented here support such finding.

       {¶26} Appellant’s reliance on Chardon Local School District Board of Education

v. Keller, Admr. of the Estate of Perry T. Yowell, Deceased, 11th Dist. Geauga No.

2013-G-3159, 2014-Ohio-5623, to support the hearing officer’s finding of willful

disregard is misplaced. In fact, not only does Yowell not support this finding, Yowell

actually supports the trial court’s reversal of the hearing officer’s decision. In Yowell,

the employee was a janitor at Chardon High School. Following the tragic shooting of

several students at the school, Yowell was called to attend to a maintenance problem in

the cafeteria, where the crimes had taken place. Based on certain actions taken by

Yowell at that time, he was discharged, but his request for unemployment compensation

benefits was granted by the hearing officer and affirmed by the Review Commission.

The trial court reversed, denying the benefits. On appeal, this court affirmed, stating:

       {¶27} Yowell demonstrated an unreasonable disregard for his employer’s
             best interests. Yowell, whose only direction was to turn the water
             off in the cafeteria—the scene of the incident—used his position as
             a school employee to voluntarily go beyond the task at hand.
             Without permission, Yowell took a photograph depicting the bloody
             aftermath of a tragic school shooting; Yowell did not take the
             photograph to aid in the criminal investigation but for his own
             personal interest. In addition to taking the photograph, Yowell
             showed it to co-workers, community members, and even a student.
             * * * This photograph showed the pools of blood of the students



                                            10
             shot and killed during this tragedy—a tragedy that affected the
             Chardon community and those associated with the school district.”
             (Emphasis added.) Id. at ¶27.

      {¶28} Thus, in Yowell, the finding of willful disregard of the employer’s interest

was based on the employee’s exceeding his authority and engaging in outrageous

conduct for his own personal interests. In an effort to apply Yowell here, appellant

argues that the claimant’s authority was limited to conducting “a nursing assessment,

period,” and that she had no authority to reveal to the daughter anything that was

discussed at the company meeting.            However, that is not accurate.     Both Ms.

Commons, the employer’s Chief Financial Officer, and Ms. Hughes, the employer’s

Director of Nursing, testified at the hearing that the claimant was instructed to conduct a

nursing assessment and to talk to the patient’s daughter about the need to have nurses

come to the patient’s home. Ms. Commons said the claimant was instructed to have

this conversation with the patient’s daughter and to perform the assessment because

she had done the initial work with the patient and personally knew the patient’s

daughter. When the daughter asked the claimant about the likely repercussions of her

declining in-home nursing care, the claimant correctly told her that Mr. Jay said that

Adult Protective Services might be called.

      {¶29} Unlike Yowell, the claimant’s conduct here was clearly within the scope of

her authority. She was instructed to discuss the patient’s condition with her mother,

including the need for in-home nursing care. Moreover, the claimant’s discussion with

the patient’s daughter was performed for the benefit of the employer and the patient, not

for any personal interests of the claimant. Further, as the claimant testified, the patient

had the right to be informed in advance of the need for in-home nursing care and the




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agency could refer the matter to Adult Protective Services if the patient’s daughter did

not agree to such care. Also, there was no evidence that the claimant’s conduct was

willful. Thus, there was no evidence that the claimant’s actions were in willful disregard

of the employer’s interest.    Further, by instructing the claimant to speak with the

patient’s daughter without providing her with any specific parameters for the discussion,

the blame for any unintended lapse fell on the employer, not the claimant.

      {¶30} Appellant argues that, even if the hearing officer improperly changed the

employer’s reason for the claimant’s termination, it is well settled that where a judgment

is correct, a reviewing court is not authorized to reverse the judgment merely because

erroneous reasons were given by the trial court. While an appellate court can assert

different reasons to affirm a judgment that is otherwise correct, Geneva v. Fende, 11th

Dist. Ashtabula No. 2009-A-0023, 2009-Ohio-6380, ¶33, this principle does not apply

here because the hearing officer was not acting as an appellate court. Rather, since his

decision (as upheld by the Commission) is the subject of this appeal, the hearing officer

was acting as a trial court. As such, he was not permitted to reference a reason for the

claimant’s discharge other than the reason stated by the employer. Bellaire, supra.

      {¶31} Upon review of the record, there was no competent, credible evidence

presented from which the Review Commission could have reasonably determined the

claimant was terminated for just cause. Thus, the decision of the trial court, reversing

the Commission’s decision, was not unlawful, unreasonable, or against the manifest

weight of the evidence.




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      {¶32} For the reasons stated in this opinion, the assignment of error is overruled.

It is the order and judgment of this court that the judgment of the Trumbull County Court

of Common Pleas is affirmed.



DIANE V. GRENDELL, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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