[Cite as Cuyahoga Metro. Hous. Auth. v. Dir., Ohio Dept. of Jobs & Family Servs., 2016-Ohio-3457.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 103399


             CUYAHOGA METROPOLITAN HOUSING
                      AUTHORITY
                                                          PLAINTIFF-APPELLANT

                                                    vs.


                 DIRECTOR, OHIO DEPARTMENT OF
                JOBS AND FAMILY SERVICES, ET AL.
                                                          DEFENDANTS-APPELLEES



                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-14-827330

        BEFORE: Kilbane, J., Keough, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                         June 16, 2016
ATTORNEY FOR APPELLANT

Harold C. Reeder
Managing Associate General Counsel
Cuyahoga Metropolitan Housing Authority
Office of Legal Affairs
8120 Kinsman Road
Cleveland, Ohio 44104

ATTORNEYS FOR APPELLEE

Michael DeWine
Ohio Attorney General
Laurence R. Snyder
Assistant Attorney General
Unemployment Compensation Unit
615 West Superior Avenue - 11th Floor
Cleveland, Ohio 44113


Also Listed

Donald Reeves
12555 Bellaire Road #314
Cleveland, Ohio 44135
MARY EILEEN KILBANE, J.:

      {¶1} Plaintiff-appellant, Cleveland Metropolitan Housing Authority (“CMHA”),

appeals the trial court’s judgment affirming the decision of the Ohio Department of Job

and Family Services (“ODJFS”), allowing former CMHA employee Donald Reeves’s

(“Reeves”) claim for unemployment benefits. For the reasons set forth below, we affirm.

      {¶2} CMHA hired Reeves as a custodian at Lakeview Towers on July 7, 1999.

On October 8, 2013, Reeves became involved in a dispute over an envelope that was

reportedly removed from the Lakeview Towers Site Management Office. CMHA held a

pretermination hearing in the matter on November 7, 2013. At the hearing, Reeves

acknowledged being in the Site Manager’s office. He stated that he took an envelope of

medical leave slips that he needed because he was on a leave of absence, but he denied

taking the envelope intended for the Site Manager. Reeves was terminated on November

22, 2013.

      {¶3} On December 3, 2013, Reeves applied for unemployment compensation,

asserting that he was not terminated for just cause. On December 13, 2013, the ODJFS

disallowed the claim and concluded, “[a]fter a review of the facts, this agency finds that

the claimant was discharged with just cause under Section 4141.29(D)(2)(a), of the Ohio

Revised Code.” Reeves appealed this decision to the Director, but it was affirmed on

January 3, 2014. The Director’s Redetermination concluded that “[a] review of the
original facts plus those submitted on appeal does [sic] not support a change in the initial

determination.”

       {¶4} Reeves filed a further appeal to the ODJFS Review Commission. The

Review Commission held a hearing on January 28, 2014. Ariel Flores (“Flores”), a

human resources officer with CMHA, testified that a CMHA resident, Bobby Barnes

(“Barnes”), dropped off a housing application intended for Site Manager Pamela Harvey

(“Harvey”). Harvey was not available so Barnes left it with another Site Manager,

Kimberly Holt (“Holt”). Administrative Assistant Sherrie Levy (“Levy”) reviewed the

contents of the envelope and then placed it on Harvey’s desk. Levy and Holt then left

the Site Manager’s office and proceeded to the copy machine area. Levy subsequently

received a call from Harvey about the envelope, asking that Reeves get the envelope and

bring it to her. Video surveillance indicated that at approximately 8:49 a.m., Reeves

went into the management office and then left with an envelope. Flores testified that

because Reeves has keys to all apartment units, dishonesty cannot be tolerated.

       {¶5} Reeves testified that he took medical leave slips, and not the housing

application left by Barnes. Reeves explained that at the time of the incident, he was on a

leave of absence, so he needed leave slips for medical appointments.

       {¶6} Harvey testified that she learned that an envelope had been left for her, so

she called Reeves, her friend, and asked him to pick it up for her. She then learned that

Reeves had forgotten to get the envelope and, instead, obtained medical leave slips. The

missing envelope was never recovered, however.
       {¶7} On January 31, 2014, the Review Commission reversed the redetermination

decision. The Review Commission concluded that Reeves had been terminated without

just cause and remanded the matter for a determination of “monetary entitlement.” In

relevant part, the Review Commission reasoned:

       Claimant provided credible sworn testimony denying that he took the
       envelope from the desk. The employer alleges that it is in possession of
       video evidence disputing claimant’s testimony, but failed to submit such
       evidence for the hearing. The employer failed to provide sufficient
       evidence to rebut the claimant’s credible sworn testimony. The Hearing
       Officer finds that claimant did not take an envelope from the desk as
       alleged by the employer.

       {¶8} CMHA filed a further appeal to the Review Commission. A hearing was

held on April 4, 2014. CMHA supplied a video and still photos from its surveillance

system that showed Reeves leaving the Site Manager’s office with an envelope. CMHA

also submitted a written statement from resident Phyllis Frelix, who indicated that she

observed Reeves enter the office, then return with an envelope, and submitted a letter

from Harvey indicating that Reeves was “acting on her behalf” when he entered the office

to retrieve the envelope. Additionally, Levy testified that Reeves picked up the envelope

for Harvey, who is his girlfriend. Levy complained to Harvey that it was not proper for

Reeves to go into the office when no one was present. CMHA supervisor Ronald King

testified that because Reeves was on leave of absence, he had no authority to enter the

office and take paperwork. In opposition, Reeves again testified that he entered the

office for medical leave slips, which he then put in an envelope before leaving. He

denied taking the missing rental application.
      {¶9} On April 24, 2014, the Review Commission affirmed the determination that

Reeves was terminated without just cause and was entitled to unemployment

compensation. In relevant part, the review officer found:

      Mrs. Frelix observed claimant with an envelope but did not know the
      contents of the envelope. She did not know if this was the same envelope
      she saw earlier at the front lobby desk before she gave it to Mr. Barnes who
      took it to the management office.

      ***

      [T]he evidence is uncontroverted with respect to the claimant having

      permission to recover the envelope on behalf of its owner [Harvey, but

      CMHA maintains that he] did not have permission to take the envelope

      from the office. The claimant contends that he did take an envelope from

      the office, but not the envelope the employer claims he took.

      {¶10} The review officer concluded:

      The employer did not present reliable, substantial and probative evidence to
      support a finding that claimant in fact took the envelope in question. The
      facts indicate that claimant may have violated policies and procedures
      concerning his presence in the office when he is on a leave of absence [but]
      a lesser form of discipline may have been more appropriate. * * *

      [T]here was not sufficient fault of misconduct on the part of claimant that
      arose to the level of a justifiable discharge.

      {¶11} CMHA filed an appeal in the Cuyahoga County Common Pleas Court,

challenging the Review Commission’s decision.        On July 15, 2015, the trial court

affirmed the decision, concluding that the Review Commission’s finding that Reeves was
terminated without just cause was not “unlawful, unreasonable or against the manifest

weight of the evidence.”   The court explained:

      The issues in this case are whether claimant took an envelope from the
      management office without authorization, and whether CMHA was justified
      in terminating his employment based upon this action. The hearing officer
      assessed the credibility of witnesses and weighed the evidence presented,
      and determined that claimant Reeves did not remove the envelope. In
      turn, claimant was not dishonest when he denied taking the envelope. At
      most, he was guilty of entering the management office while on leave from
      employment. However, the hearing officer noted that claimant had only
      minor prior infractions during his fifteen years of employment and a lesser
      form of discipline would have been more appropriate.

      The findings by the Hearing Officer turn largely on credibility * * *. The
      officer was in the best position to assess the veracity of the witnesses. The
      trial court should not usurp the factfinder’s role to make factual findings or
      determine the credibility of the witnesses.

      {¶12} CMHA now appeals, assigning the following three interrelated errors for

our review:

                                Assignment of Error One

      The Common Pleas Court erred in affirming the Unemployment
      Compensation Review Commission’s decision because it was unlawful,
      unreasonable and against the manifest weight of the evidence.

                                Assignment of Error Two

      The Common Pleas Court erred in affirming where the Unemployment
      Compensation Review Commission accepted a claimant’s self-serving
      contention over competent, credible evidence.

                               Assignment of Error Three
         The Common Pleas Court erred because it did not apply the proper

         manifest-weight-of-the-evidence standard of review in reviewing the

         Unemployment Compensation Review Commission’s decision.

         {¶13} Within these assignments of error, CMHA argues that the decision of the

Review Commission was not supported by the manifest weight of the evidence, because

Reeves’s testimony was self-serving and refuted by the photos and testimony presented by

CMHA. CMHA also complains that the trial court did not apply the correct standard of

review to this matter.

                                    Standard of Review

         {¶14} R.C. 4141.282 sets forth the standard of review of Review Commission

decisions. R.C. 4141.282(H) provides that the common pleas court shall reverse the

Review Commission’s decision only if it finds “that the decision of the commission was

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

courts are also to apply the same standard of review as the trial court and may reverse the

Review Commission’s “just cause” determination only if it is unlawful, unreasonable or

against the manifest weight of the evidence.   Tzangas, Plakas & Mannos v. Ohio Bur. of

Emp. Serv., 73 Ohio St.3d 694, 697, 1995-Ohio-206, 653 N.E.2d 1207.

         {¶15} In Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d

517, the Ohio Supreme Court concluded that the standard for evaluating a challenge to

the manifest weight of the evidence supporting a criminal conviction also applies to civil

cases.    Id. at ¶ 17. Applying the standard set forth in State v. Thompkins, 78 Ohio St.3d
380, 1997-Ohio-52, 678 N.E.2d 541, the Eastley court held that in evaluating a challenge

to the manifest weight of the evidence supporting a civil judgment, the reviewing court

weighs the evidence and all reasonable inferences, considers witness credibility, and

determines whether, in resolving conflicts in the evidence, the finder of fact clearly lost

its way and created such a manifest miscarriage of justice that the judgment must be

reversed and a new trial ordered. Id. at ¶ 20. Additionally, the Eastley court also

stressed that “[i]n weighing the evidence, the court of appeals must always be mindful of

the presumption in favor of the finder of fact.”       Id. at ¶ 21.    The Eastley court

explained:

       [I]n determining whether the judgment below is manifestly against the
       weight of the evidence, every reasonable intendment and every reasonable
       presumption must be made in favor of the judgment and the finding of
       facts. * * *

       If the evidence is susceptible of more than one construction, the reviewing

       court is bound to give it that interpretation which is consistent with the

       verdict and judgment, most favorable to sustaining the verdict and

       judgment.

Id., quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273

(1984), fn. 3.

                                      R.C. 4141.29

       {¶16} R.C. 4141.29 establishes the eligibility requirements for unemployment

benefits. A claimant is ineligible if he is discharged for “just cause in connection with

the individual’s work.”     R.C. 4141.29(D)(2)(a).     “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, 18, 482 N.E.2d 587 (1985). Whether just cause exists is unique to the facts of each

case.   Id. at 17.

        {¶17} In order to be eligible for unemployment compensation benefits, Reeves

must satisfy the criteria in R.C. 4141.29(D)(2)(a), which provides that no individual may

be paid benefits if the individual has been discharged for just cause in connection with the

individual’s work. Reeves has the burden of proving his entitlement to unemployment

compensation benefits under R.C. 4141.29(D)(2)(a). Irvine at 17, citing Shannon v. Bur.

of Unemp. Comp., 155 Ohio St. 53, 97 N.E.2d 425 (1951); Canton Malleable Iron Co. v.

Green, 75 Ohio App. 526, 62 N.E.2d 756 (5th Dist.1944); 54 Ohio Jurisprudence 2d,

Unemployment Compensation, Section 35 (1962). “Just cause” has been defined as

“‘that which, to an ordinarily intelligent person, is a justifiable reason for doing or not

doing a particular act.’” Irvine, quoting Peyton v. Sun T.V., 44 Ohio App.2d 10, 12, 335

N.E.2d 751 (10th Dist.1975).

        {¶18} Whether just cause exists is unique to the facts of each case. Irvine at 18.

The factual questions are primarily within the province of the referee and the board, and

this court has limited power of review.     Id. Therefore, the lower court’s judgment will

be affirmed if the evidence supports the claim that the employee was terminated through

his or her own fault. Heller v. Ohio Dept. of Jobs & Family Servs., 8th Dist. Cuyahoga
No. 92965, 2010-Ohio-517, ¶ 38, citing Milyo v. Bd. of Rev., Ohio Bur. of Emp. Serv., 8th

Dist. Cuyahoga No. 60841, 1992 Ohio App. LEXIS 3921 (July 30, 1992).

       {¶19} In this case, the Review Commission’s decision was not unlawful,

unreasonable, or against the manifest weight of the evidence, because the record supports

the Review Commission’s decision that Reeves was terminated without just cause.

Although CMHA presented evidence that a housing application was left in an envelope

for Harvey, and that Reeves entered the office and left with an envelope, Harvey testified

that she gave Reeves permission to go into her office. She also stated that he did not take

the missing envelope. In addition, Reeves testified that he took medical leave slips, and

not the housing application. He explained that he had been on a leave of absence and

needed medical leave slips to submit to his doctor. It is undisputed in the record that

Reeves had an envelope. This evidence, however, could be interpreted to demonstrate

that Reeves had the envelope intended for the housing office, or that he had an envelope

containing medical leave slips. Either interpretation is equally plausible. Therefore, we

find that the record contains competent, credible evidence to support the Review

Commission’s determination that Reeves was terminated without just cause. Based on

the foregoing, we cannot conclude that the Review Commission’s decision is unlawful,

unreasonable, or against the manifest weight of the evidence. Additionally, the record

supports the Review Commission’s decision that a lesser punishment may have been

more appropriate under the circumstances.      Moreover, the record demonstrates that the

trial court applied the correct standard set forth in R.C. 4141.282.
       {¶20} Accordingly, the assignments of error are overruled.

       {¶21} Judgment is 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 EILEEN KILBANE, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
SEAN C. GALLAGHER, J., CONCUR
