[Cite as Clucas v. RT 80 Express, Inc., 2012-Ohio-1259.]


STATE OF OHIO                     )                        IN THE COURT OF APPEALS
                                  )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

MARK T. CLUCAS, SR.                                        C.A. No.   11CA009989

        Appellant

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
RT 80 EXPRESS, INC.                                        COURT OF COMMON PLEAS
                                                           COUNTY OF LORAIN, OHIO
        and                                                CASE No.   10CV169073

DIRECTOR, OHIO DEPARTMENT OF
JOB AND FAMILY SERVICES

        Appellees

                                 DECISION AND JOURNAL ENTRY

Dated: March 26, 2012



        CARR, Presiding Judge.

        {¶1}     Appellant, Mark Clucas, appeals the judgment of the Lorain County Court of

Common Pleas which affirmed the decision of the Unemployment Compensation Review

Commission (“UCRC”) which denied Mr. Clucas’ application for unemployment benefits. This

Court affirms.

                                                      I.

        {¶2}     Mr. Clucas was an interstate truck driver for Rt. 80 Express, Inc. from February

21, 2008, until his termination from employment on August 8, 2009. He filed an application for

unemployment benefits with appellee, Ohio Department of Jobs and Family Services

(“ODJFS”), which disallowed his request for unemployment benefits based on its finding that Rt.

80 terminated him for just cause.           Mr. Clucas requested a redetermination.   The Director
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affirmed the initial determination to deny unemployment compensation benefits to Mr. Clucas.

Mr. Clucas then appealed to the UCRC.

         {¶3}   The matter proceeded to hearing before the UCRC on the following issue: “Was

claimant discharged by Rt. 80 Express, Inc. for just cause in connection with work?” On July

14, 2010, the hearing officer found that Rt. 80 has a company policy which indicates that an

employee who tests positive for drug use will be discharged. The hearing officer further found

that Mr. Clucas tested positive for marijuana use when he knew or should have known that such

results would result in his discharge. The hearing officer concluded that Mr. Clucas’ positive

drug test established fault on the part of the employee so that Rt. 80 terminated him for just

cause.

                                                 II.

                                   ASSIGNMENT OF ERROR

                   THE APPELLANT WAS NOT FIRED FOR JUST CAUSE.

         {¶4}   Mr. Clucas argues that the trial court erred by affirming the decision of the UCRC

because that decision is unreasonable, unlawful, and against the manifest weight of the evidence.

This Court disagrees.

         {¶5}   R.C. 4141.29(D)(2)(a) prohibits the payment of unemployment compensation if

the employee “has been discharged for just cause in connection with the individual’s work[.]”

This Court has defined just cause and the role it plays in R.C. 4141.29 determinations as follows:

         “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.” (Emphasis
         added.) Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Serv., 73 Ohio St.3d
         694, 697 (1995), quoting Irvine v. State, Unemployment Comp. Bd. of Rev., 19
         Ohio St.3d 15, 17 (1985). It is important to distinguish between just cause for
         discharge in the context of unemployment compensation and in other contexts.
         An employer may justifiably discharge an employee without incurring liability for
         wrongful discharge, but that same employee may be entitled to unemployment
                                               3


       compensation benefits. See Adams v. Harding Machine Co., 56 Ohio App.3d
       150, 155 (3d Dist.1989). This is so because just cause, under the Unemployment
       Compensation Act, is predicated upon employee fault. Tzangas, 73 Ohio St.3d at
       698; Adams, 56 Ohio App.3d at 155. We are, therefore, unconcerned with the
       motivation or correctness of the decision to discharge. Friedman v. Physicians
       and Surgeons Ambulance Serv., 9th Dist. No. 10287, 1982 WL 2867 (Jan. 6,
       1982). The Act protects those employees who cannot control the situation that
       leads to their separation from employment. See Tzangas, 73 Ohio St.3d at 697.

Durgan v. Ohio Bur. of Emp. Serv., 110 Ohio App.3d 545, 549-550 (9th Dist.1996).

       {¶6}   Consistent with that purpose, courts have repeatedly held that a discharge is

considered for just cause where an employee’s conduct demonstrates some degree of fault, such

as behavior that displays an unreasonable disregard for his employer’s best interests. Tzangas,

73 Ohio St.3d at paragraph two of the syllabus; Kiikka v. Admr., Ohio Bur. of Emp. Serv., 21

Ohio App.3d 168, 169 (8th Dist.1985); Sellers v. Bd. of Rev., 1 Ohio App.3d 161, 164 (10th

Dist.1981). The Ohio Supreme Court has specifically held:

       When an employee is at fault, he is no longer the victim of fortune’s whims, but is
       instead directly responsible for his own predicament. Fault on the employee’s
       part separates him from the Act’s intent and the Act’s protection. Thus, fault is
       essential to the unique chemistry of a just cause termination.

Tzangas, 73 Ohio St.3d at 697-698.

       {¶7}   The Ohio Supreme Court has further stated that the employee has the burden to

prove his entitlement to unemployment compensation benefits under R.C. 4141.29(D)(2)(a).

Irvine v. State, Unemployment Comp. Bd. of Rev., 19 Ohio St.3d 15, 17 (1985). The employee

must provide evidence his discharge was without just cause by demonstrating he was without

fault in the incident resulting in his termination to show he is entitled to unemployment

compensation. Id. If the employee is unhappy with the UCRC’s decision concerning his

entitlement to unemployment compensation, he may appeal that decision before a common pleas

court, which would hear the case upon the record as certified and provided by the UCRC. R.C.

4141.282(H). Only if the court finds the UCRC’s decision was “unlawful, unreasonable, or
                                                 4


against the manifest weight of the evidence” is it required to reverse, vacate, modify, or remand

such decision. Id. Absent such a finding, the reviewing court must affirm the UCRC’s decision

as it is the UCRC’s function to make factual findings and determine the credibility of witnesses

in unemployment compensation cases. Irvine at 18. If the record reveals evidence to support the

UCRC’s findings, the reviewing court cannot substitute its own findings of fact for those of the

UCRC. Wilson v. Unemployment Comp. Bd. of Rev., 14 Ohio App.3d 309, 310 (8th Dist.1984).

Nonetheless, the reviewing court’s function involves determining whether the UCRC’s decision

is supported by evidence in the record. Id. at 311.

       {¶8}    This Court has discussed its duty to review a UCRC decision under the same

scope of review:

       R.C. Chapter 4141 does not distinguish between the scope of review of a common
       pleas court and that of an appellate court with respect to Review Commission
       decisions. See R.C. 4141.282(H)-(I). Additionally, the Supreme Court of Ohio
       has confirmed that “there is no distinction between the scope of review of
       common pleas and appellate courts regarding ‘just cause’ determinations under
       the unemployment compensation law.” See Durgan v. Ohio Bur. of Emp. Servs.,
       110 Ohio App.3d 545, 551 (9th Dist.1996), citing Tzangas v. Administrator, Ohio
       Bur. of Emp. Serv. (1995), 73 Ohio St.3d 694, 696-697 (1995).

       Thus, in a review of a decision by the Review Commission regarding eligibility
       for unemployment compensation benefits, an appellate court is bound by the same
       limited scope of review as that required of the common pleas courts. Irvine, 19
       Ohio St.3d at 18. Therefore, an appellate court may only reverse an
       unemployment compensation eligibility decision by the Review Commission if
       the decision is unlawful, unreasonable, or against the manifest weight of the
       evidence. Tzangas, 73 Ohio St.3d at 696. Also, this Court is required to focus on
       the decision of the Review Commission, rather than that of the common pleas
       court, in such cases. Barilla v. Ohio Dept. of Job & Family Servs., 9th Dist. No.
       02CA008012, 2002-Ohio-5425, ¶ 6, citing Tenny v. Oberlin College, 9th Dist.
       No. 00CA007661, 2000 WL 1875394 (Dec. 27, 2000).

Upton v. Rapid Mailing Servs., 9th Dist. No. 21714, 2004-Ohio-966, ¶ 8-9.

       {¶9}    In determining whether a UCRC decision is or is not supported by the

manifest weight of the evidence, this Court applies the civil manifest weight of the
                                                5


evidence standard set forth in C.E. Morris Co. v. Foley Const. Co., 54 Ohio St.2d 279

(1978), syllabus, which holds: “Judgments supported by some competent, credible

evidence going to all the essential elements of the case will not be reversed by a

reviewing court as being against the manifest weight of the evidence.”          The Ohio

Supreme Court has clarified that:


       [W]hen reviewing a judgment under a manifest-weight-of-the-evidence standard,
       a court has an obligation to presume that the findings of the trier of fact are
       correct. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80-81 (1984).
       This presumption arises because the trial judge had the opportunity “to view the
       witnesses and observe their demeanor, gestures and voice inflections, and use
       these observations in weighing the credibility of the proffered testimony.” Id. at
       80. “A reviewing court should not reverse a decision simply because it holds a
       different opinion concerning the credibility of the witnesses and evidence
       submitted before the trial court. A finding of an error in law is a legitimate
       ground for reversal, but a difference of opinion on credibility of witnesses and
       evidence is not.” Id. at 81.

State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 24.

       {¶10} In the instant matter, the UCRC found that a post-accident drug test indicated that

Mr. Clucas’ urine tested positive for marijuana and that the urine specimen had been diluted.

The UCRC further found that Rt. 80 has a policy that employees who test positive for drug use

will be terminated and that Mr. Clucas knew or should have known about the company’s policy.

The commission, therefore, concluded that Rt. 80 terminated Mr. Clucas’ employment for just

cause based on his positive drug test.

       {¶11} At the hearing, only Mr. Clucas testified. He testified that he began working for

Rt. 80 on February 21, 2008. He admitted that he had been involved in a minor accident and that

he submitted to post-accident drug testing pursuant to the company’s request. He admitted that

the medical review officer deemed the results of his test to be positive for marijuana and that the

results were in fact accurate in showing that he had used marijuana. Moreover, Mr. Clucas
                                                   6


testified that he told the medical review officer who administered his drug test that he had used

marijuana.

       {¶12} Although Mr. Clucas denied having ever received a written copy of Rt. 80’s drug

testing policies, the record transferred to the UCRC for review contains a copy of a “DRUG

AND ALCOHOL HANDBOOK CERTIFICATE OF RECEIPT” which bears Mr. Clucas’

printed name, a handwritten date of “2-21-08,” and Mr. Clucas’ signature. Per this document,

Mr. Clucas certified that he had received a copy of the company’s drug testing policies and

procedures.

       {¶13} The record further contains Rt. 80’s responses to ODJFS’ request for information

regarding the termination. Christine Chrustic, an office manager for Rt. 80, informed the agency

that Rt. 80 has a written company policy which requires employees involved in any accident with

company equipment to submit to a post-accident drug test. Ms. Chrustic further wrote that the

company has a “Zero Tolerance” policy for drug use and Mr. Clucas was notified of that policy

both verbally and in writing by way of the company’s handbook. Ms. Chrustic concluded that,

not only did Mr. Clucas test positive for drug use, but he notified company dispatch before the

results were received that they may be positive.

       {¶14} Mr. Clucas argues that there was no legal requirement that he submit to a drug test

after his involvement in a minor accident. He references the Federal Motor Carrier Safety

Administration’s regulations and the Motor Carrier Safety Rules Handbook of the Public

Utilities Commission of Ohio. He ignores the fact that the company reported that it required him

to submit to a post-accident drug test pursuant to its own internal company policies. Mr. Clucas

does not argue that the company was prohibited from establishing such company policies. His

argument in this regard is not persuasive.
                                                7


       {¶15} He further argues that he never received a copy of the company’s written drug

testing policies. Rt. 80 submitted a copy of Mr. Clucas’ signed certification that he had in fact

received the company drug testing policies and procedures handbook on the date he was hired.

As the hearing officer was in the best position to gauge Mr. Clucas’ credibility in light of the

information provided by Rt. 80, we must presume that the hearing officer’s findings are correct.

See Seasons Coal, 10 Ohio St.3d at 80.

       {¶16} Mr. Clucas next argues that he did not in fact fail his drug test notwithstanding the

result evidencing 24 ng/ml1 of THC (marijuana) in his urine. He does not dispute the accuracy

of the measurement; instead, he argues that any result less than 50 ng/ml must be deemed a

negative result pursuant to 49 C.F.R. 40.87(a). Section 40 of the Code of Federal Regulations

distinguishes between Department of Transportation drug and alcohol testing and non-

Department of Transportation drug and alcohol testing. This Court cannot find any provision in

the regulations prohibiting an employer from adopting a zero tolerance drug policy which

proscribes illegal drug use evidenced by any amount of the drug in an employee’s system.

Moreover, Mr. Clucas does not argue that such a regulation exists. Accordingly, we are not

persuaded that his drug test results indicating 24 ng/ml of marijuana in his urine must only be

construed as 0 ng/ml.

       {¶17} Bearing in mind that Mr. Clucas has the burden of proving his entitlement to

unemployment compensation benefits, this Court concludes that the UCRC’s decision that Mr.

Clucas was terminated for just cause by Rt. 80 is neither unlawful, unreasonable, nor against the

manifest weight of the evidence. As a reviewing court, we must defer to the UCRC’s credibility

assessment and factual determinations in this case. Rt. 80 demonstrated, based on information

1
 Although he testified at the hearing in terms of milligrams of marijuana, his drug test results
and the regulation he cites discuss results in terms of nanograms.
                                                 8


submitted to ODJFS and transferred as part of the record considered by commission, that it had

an internal company policy requiring employees to submit to post-accident drug tests. Mr.

Clucas submitted to the test, informed his employer that he may test positive, and in fact tested

positive for some amount of marijuana in his urine. Although Mr. Clucas denied ever having

received a written copy of the company’s drug and alcohol testing policies and procedures, a

copy of his certification to the contrary is contained in the record. Ms. Chrustic informed ODJFS

pursuant to the agency’s request for information that Rt. 80 has a zero tolerance policy for illegal

drug use. Mr. Clucas admitted to having used marijuana prior to the company’s receipt of his

drug test results. Accordingly, the UCRC’s findings that Mr. Clucas was at fault and that Rt. 80

terminated his employment for just cause are not unlawful, unreasonable, or against the manifest

weight of the evidence. Mr. Clucas’ assignment of error is overruled.

                                                III.

       {¶18} Mr. Clucas’ sole assignment of error is overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
                                                9


period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    DONNA J. CARR
                                                    FOR THE COURT



WHITMORE, J.
DICKINSON, J.
CONCUR.


APPEARANCES:

WILLIAM DERKIN, Attorney at Law, for Appellant.

MICHAEL DEWINE, Attorney General, and PATRICK MACQUEENEY, Assistant Attorney
General, for Appellee.

JAMES J. WAGNER, Attorney at Law, for Appellee.
