[Cite as Gregory v. Cuyahoga Cty., 2020-Ohio-2714.]


                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


RAQUEL GREGORY,                                       :

                Plaintiff-Appellee,                   :

        v.                                            :      No. 108192

CUYAHOGA COUNTY,                                      :

                Defendant-Appellant.                  :

                _________________________________

                              JOURNAL ENTRY AND OPINION

                JUDGMENT: REVERSED AND REMANDED
                RELEASED AND JOURNALIZED: April 30, 2020
                _______________________________________

             Civil Appeal from the Cuyahoga County Court of Common Pleas
                                 Case No. CV-17-882718
                 _______________________________________

                                           Appearances:

                Mansour Gavin L.P.A., and James A. Budzik, for
                appellee.

                Nora Hurley, Interim Cuyahoga County Director of Law,
                and Amy E. Marquit Renwald, Assistant Director of Law,
                for appellant.

SEAN C. GALLAGHER, P.J.:

                  Cuyahoga County appeals the trial court’s conclusion that there was a

lack of substantial, reliable, and probative evidence supporting Raquel Gregory’s
termination from her position as a supervisor within the county fiscal office. The

crux of Gregory’s removal focused on two particular claims: (1) that Gregory

mismanaged, and failed to adequately execute, her duties to supervise the

processing and updating of data within the dog license database (under the parlance

of the county’s policy, this mismanagement supported Gregory’s removal for

egregious, flagrant, or willful neglect in the performance of assigned duties and

failing to complete legitimate job assignments); and (2) that Gregory failed to follow

the required call-in procedures on two consecutive days. The first was considered a

“removable infraction,” while the second was considered a “major infraction”

according to the unambiguous terms of the county’s policy and procedures manual.

The removal was also, in part, supported by the fact of Gregory’s consistent failure

to read communications sent through the county email system, which according to

the hearing officer’s conclusion, supported the charge of egregious, flagrant, or

willful neglect of legitimate job assignments. The Cuyahoga County Personnel

Review Commission (the “Commission”) affirmed the employer’s termination

decision through the adoption of the thorough report and recommendation

prepared by the hearing officer.

      Hearing Officer’s Findings of Fact

              Gregory worked for the county in various capacities for 23 years. In

January 2008, she was promoted to director of General Services. Following the

change in the county’s governmental structure in 2009, through voter-approved

amendments to the county’s charter, Gregory was reclassified into her most recent
position of Fiscal Office supervisor. Her direct supervisor was Bonnie Innis. One of

Gregory’s primary areas of responsibility was to manage employees in the

maintenance and processing of the annual dog licensing program for Cuyahoga

County. The dog licensing program issues and renews the most licenses and

generates the highest cash proceeds of all the licenses over which the Fiscal Office

has responsibility.

              The dog license registration process occurs every year between

December 1 and January 31. The Fiscal Office handles anywhere between 63,000

and 74,000 license applications and renewals. A license costs $20, and there is a

$20 late fee for belated renewals. A majority of the applications come in the form of

paper applications sent in by residents. The registration process is preceded by a

targeted mailing sent to all existing dog license holders. Gregory’s department is

charged with processing the mountain of paperwork each year and ensuring that an

electronic database is maintained for the Fiscal Office and other departments within

the county. The county maintains an animal shelter that depends on the dog license

database for both revenue and to assist the citizens of the county.

              After the registration period closes, the animal shelter, in conjunction

with General Services, conducts a nonrenewal campaign based on the previous

year’s records. Essentially, the nonrenewal campaign is looking for registration

information on dog licenses issued the previous year that were not renewed in the

current year’s registration process. The animal shelter stands to lose significant

revenue through the inability to conduct the nonrenewal campaign from both the
lost fee for the dog license itself and also from the $20 late-registration penalty that

accompanies the belated registration. Further, the lack of renewals impedes the

animal shelter’s enforcement obligations and its ability to assist county residents.

In 2016, there were over 15,000 nonrenewed registrations from the 2015 licensing

year.

               When Gregory took charge of the dog license program and database,

the animal shelter was able to conduct a nonrenewal campaign for the first couple

of years. However, starting in 2010, the dog license database was not updated in

sufficient time for the nonrenewal campaign to be processed before the next year’s

registration process began.1

               Although Gregory’s performance evaluations were largely mediocre

(generally indicating the need for improvement but also demonstrating that she met

expectations in some categories), Gregory faced no disciplinary actions throughout

her tenure with the county until January and February 2016, when Gregory received

two formal reprimands.       The first involved a dispute between her and Innis

regarding one of Gregory’s employees, who was dissatisfied with the manner in

which certain jobs were divvied up by Gregory. Gregory told Innis something to the

effect of “no one is going to tell me how to run General Services,” and Innis initiated

a reprimand for insubordination. There is a dispute as to whether Gregory was




1Why the county has not implemented an online registration process for dog owners is
unclear to this panel. In any event, the lack of an automated renewal system has no
bearing on this case.
directing that commentary at Innis or at the employee who first lodged a complaint

against Gregory.

              The second reprimand resulted from Gregory’s not responding to

emails, in a few of which Innis requested that Gregory provide weekly reports or

updates. Gregory claimed that a switch in the county’s Outlook email application

resulted in her not receiving notices of new emails. The specific email request for

the weekly reports was sent on January 5, 2016, however, and Gregory had not

responded or provided the requested information as of January 25th when the

reprimand was issued. In addition, the second reprimand noted that Gregory had

approved four refund vouchers totaling $80 in January 2016. Although Gregory

had been authorized to approve the vouchers in the past, the policy had changed in

the previous September and memoranda explaining the policy decision were

emailed in September and November 2015.             In the prehearing disciplinary

conference, Gregory admitted that she was unaware of the policy because she had

merely skimmed the relevant emails. At the hearing, it was noted that Gregory

claimed that she did not believe the policy applied to her.

              The second reprimand for inappropriately approving the vouchers

led to a five-day suspension that was enforced on nonconsecutive workdays in April

2016 — April 12 (Tuesday), 13 (Wednesday), 14 (Thursday), 19 (Tuesday), and 20

(Wednesday). The suspension letter unambiguously delineated the days for which

Gregory was suspended. The county uses the nonconsecutive suspension for

suspensions carrying over a weekend so that the employee does not obtain an
extended period of time off when serving the sanction. Gregory did not show up for

work or call in her absence on April 15 (Friday) or 18 (Monday), although she called

in on April 19 and 20. By the time she called in on days that she was suspended,

Gregory had already violated the call-in procedure on two consecutive work days —

a major infraction. In her defense, Gregory claimed that she must have misread the

suspension letter or merely presumed her suspension was imposed on consecutive

work days starting on April 12.

              On February 18, 2016, Gregory took a preplanned and approved leave

of absence, in part explaining why the suspension for the second reprimand was

served in April. While she was on leave, Innis took over the dog license registration

process. The following day, Innis discovered 15,000 dog license applications in a

back room of the General Services department. The checks totaling $318,420 were

deposited, but the information on the applications had not been entered into the

system. No one had made Innis aware of the applications, but upon discovery, Innis

recruited additional volunteers to enter the information into the database — Gregory

generally recruited some volunteers to help with the data processing obligations, but

not as many as Innis used to clear the backlog. Gregory claimed that those 15,000

applications would be processed later in time, per the procedures typically followed

by the department; however, Innis was not made aware of the backlog of

applications that required entry into the database. Innis’s processing of the 2016

backlog resulted in the animal shelter being able to conduct the nonrenewal

campaign for the first time since 2010.
              The manager of the animal shelter, Mindy Naticchioni, discovered a

problem in attempting to process the nonrenewal campaign.            In May 2016,

Naticchioni reviewed 15,470 records in the dog license database last updated during

the 2015 registration process and that had not been renewed in the 2016 registration

campaign. Naticchioni discovered that well over half of the nonrenewed licenses

had a response of “null” or “blank” in the field where the name of the city should

have been entered for the address of the dog owner. This meant that the renewal

notices sent out ahead of the 2016 registration drive did not reach the intended

destinations. Naticchioni spearheaded an effort to correct the deficiencies by

inputting the appropriate city into the address field — demonstrating that the

database could be updated with information within the county’s possession.

Gregory admitted that she instructed her employees to enter “unknown” into the

city field during the data-entry phase of the registration process during the time-

sensitive period of the initial application season, but claimed that the erroneous

entries would be corrected during the summer months after the dog license

registration process tapers off. Gregory’s predecessor confirmed that was supposed

to be the process.

              Nevertheless, Gregory maintained that the issues with the data entry

that Naticchioni discovered were a product of Innis’s employing untrained

volunteers to input the applications received during the 2016 registration process.

The hearing officer discounted Gregory’s argument because it is undisputed that

Gregory was in charge of the 2015 registration process at which time the entries at
issue would have been created and that Gregory was responsible for updating the

database during the 2015 calendar year. Gregory also conceded that it was her

responsibility to correct the database, when possible, if applications supplied

incorrect or missing information.

      Commission’s Conclusion

               The hearing officer concluded that the two grounds for Gregory’s

removal from her position were egregious, flagrant, or willful neglect in the

performance of assigned duties and the failure to complete legitimate job

assignments.    Although the dog license registration process and updating the

database had remained the same over the relevant time period, Gregory (for the first

two years she held the position) and her predecessor were able to update the dog

license database after the December-January registration process in a timely

manner that permitted the animal shelter to conduct a nonrenewal campaign in the

summer months to ensure that all dog owners were in compliance with the law.

Innis, albeit through the recruitment of additional volunteers to clear the backlog of

the 15,000 applications discovered in the storage closet, also used the same

procedures and was able to complete the initial data entry to permit the nonrenewal

campaign.

               As an additional explanation of the egregious finding, the hearing

officer cited Gregory’s failure to adequately update the 2015 dog license database

and her consistent failure to read and respond to emails. Of the over 15,000

nonrenewals from the 2015 registration process, over half of the entries lacked an
actual city in the address field. Gregory admitted that she instructed her staff to

enter “unknown” as a temporary measure; however, in light of the undisputed fact

that half of the 15,000 entries were never updated, the hearing officer concluded

that Gregory failed to institute a process to ensure that the temporary measure was

corrected. And further, Gregory’s systemic issues with responding or reading emails

was largely undisputed — Gregory’s only defense to her failure to respond to emails

for over three weeks was that the county updated its email system and she no longer

received notice of the new emails.

              And finally, the hearing officer concluded that Gregory violated the

county policy with respect to the call-in procedure on two consecutive work days

based on the undisputed evidence. Gregory did not contest the underlying fact; she

only offered an excuse as to how the failure occurred.

              In light of those findings substantiating the removable and major

infractions, the hearing officer recommended that Gregory’s termination from her

position be upheld. The Commission adopted the hearing officer’s report and

recommendation. Gregory appealed the Commission’s decision to the trial court

under R.C. Chapter 2506.

      Trial Court’s Standard of Review

              “A common pleas court has jurisdiction to review final orders issued

by ‘any officer, tribunal, authority, board, bureau, commission, department, or other

division of any political subdivision of the state.’” Shelly Materials, Inc. v.
Streetsboro Planning & Zoning Comm., Slip Opinion No. 2019-Ohio-4499, ¶ 12,2

quoting R.C. 2506.01(A). The trial court, under this review process, essentially acts

as an appellate court, and “‘may find that the order, adjudication, or decision is

unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the

preponderance of substantial, reliable, and probative evidence on the whole

record.’” Id., quoting R.C. 2506.04. Each ground of the disjunctive list must be read

to have a distinct meaning. Id., citing Freedom Rd. Found. v. Ohio Dept. of Liquor

Control, 80 Ohio St.3d 202, 205, 1997-Ohio-346, 685 N.E.2d 522.

               Under the trial court’s standard of review, the “‘court weighs the

evidence to determine whether a preponderance of reliable, probative, and

substantial evidence supports the administrative decision, and if it does, the court

may not substitute its judgment for that of’ the administrative agency.” Id. at ¶ 13,

quoting Independence v. Office of the Cuyahoga Cty. Executive, 142 Ohio St.3d 125,

2014-Ohio-4650, 28 N.E.3d 1182, ¶ 13. However, the trial court “may not ‘blatantly

substitute its judgment for that of the agency, especially in areas of administrative

expertise.’” Dudukovich v. Lorain Metro. Hous. Auth., 58 Ohio St.2d 202, 207, 389

N.E.2d 1113 (1979).


2 Although  Shelly Materials is a plurality decision with no binding authority, none of the
dissenting justices took issue with the black letter standard of review as announced in the
lead opinion. The issue driving the split decision was focused on the particularities of the
administrative appeal in that case, which included a clear and convincing standard that
is not applicable in this case. Justice Stewart authored the plurality decision, joined by
Justices Kennedy and Donnelly. Justice Fischer concurred in judgment only with Justice
Stewart’s decision. Justice DeWine authored the dissent, joined by Chief Justice
O’Connor and Judge William Zimmerman, of the Third District Court of Appeals, who
was sitting by assignment for Justice French.
                 Before addressing the trial court’s conclusions, it bears noting that the

incorrect standard of review was cited below, and that standard carried into the

appellate briefing. The trial court favorably quoted Univ. of Cincinnati v. Conrad,

63 Ohio St.2d 108, 111, 407 N.E.2d 1265 (1980), for the proposition of law that

         In R.C. Chapter 2506 appeals, determining whether the
         [Commission’s] Final Order is supported by reliable, probative, and
         substantial evidence essentially is a question of the absence or presence
         of the requisite quantum of evidence.

         “Although this in essence is a legal question, inevitably it involves a
         consideration of the evidence, and to a limited extent would permit a
         substitution of judgment by the reviewing Common Pleas Court. In
         undertaking this hybrid form of review, the Court of Common Pleas
         must give due deference to the administrative resolution of evidentiary
         conflicts; [sic] however, the findings of the agency are by no means
         conclusive.”

Id.3 Conrad involves an R.C. Chapter 119 appeal to the trial court, in which “the

common pleas court must give deference to the agency’s resolution of evidentiary

conflicts.” Bartchy v. State Bd. of Edn., 120 Ohio St.3d 205, 2008-Ohio-4826, 897



3   The quotation contained an undesignated omission. The full quotation is as follows:

         Although this in essence is a legal question, inevitably it involves a
         consideration of the evidence, and to a limited extent would permit a
         substitution of judgment by the reviewing Common Pleas Court.

         In undertaking this hybrid form of review, the Court of Common Pleas must
         give due deference to the administrative resolution of evidentiary conflicts.
         For example, when the evidence before the court consists of conflicting
         testimony of approximately equal weight, the court should defer to the
         determination of the administrative body, which, as the fact-finder, had
         the opportunity to observe the demeanor of the witnesses and weigh their
         credibility. However, the findings of the agency are by no means conclusive.

(Emphasis added.) Id.
N.E.2d 1096, ¶ 37, citing Conrad.4 Unlike R.C. Chapter 119 appeals, in reviewing

R.C. Chapter 2506 appeals, the trial court “weighs the evidence to determine

whether a preponderance of reliable, probative, and substantial evidence supports

the administrative decision.” Shelly Materials, Inc., Slip Opinion No. 2019-Ohio-

4499, at ¶ 13. The court does not presumptively give deference to the agency’s

resolution of the evidentiary conflicts.

               Thus, although both sections of the Revised Code provide similar

standards of review, the starting bases of the inquiries differ. For this reason, the

trial court’s reliance on Conrad as the standard of review for an R.C. Chapter 2506

appeal was misplaced. Nonetheless, and in light of the trial court’s conclusion to

independently weigh the evidence, any error in misstating the standard of review

would be harmless.

      Trial Court’s Decision

               The trial court, upon conducting its review of the administrative

record, concluded that (1) Gregory followed the same procedure for the annual

registration program as had been in place by her predecessor; (2) that the animal

shelter’s ability to conduct the renewal campaign based on the untimely entry of

information was “not the proper benchmark” because the animal shelter and the

general services department used the database for different purposes; (3) that there

was a “complete failure on the part of management” to communicate deadlines and


4 As noted with respect to Shelly Materials, although Bartchy is a plurality decision with
no binding authority, none of the dissenting justices took issue with the black letter
standard of review as announced in the lead opinion.
job requirements to Gregory; (4) that Naticchioni was not an “expert in databases”

for the basis of her conclusion that half of the over 15,000 2015 dog license entries

lacked a city information in the address field; (5) that not all entries could be

corrected and that it was impossible to determine where the errors came from; (6)

that Gregory was not provided training, progressive discipline, or a meeting to

discuss “the best way to handle the issue of timely updating” the database; and (7)

that because there was no evidence that Gregory intended to miss work, there was

no pattern of disregarding the call-in procedures.

               According to the trial court, those conclusions demonstrated that the

Commission’s order affirming Gregory’s termination from employment was

unsupported by the preponderance of substantial, reliable, and probative evidence.

               The county timely appealed the trial court’s decision.

      Discussion

               Our review of the trial court’s decision is more limited than the trial

court’s standard of review. Shelly Materials, Inc., Slip Opinion No. 2019-Ohio-

4499, at ¶ 17, quoting Kisil v. Sandusky, 12 Ohio St.3d 30, 34, 465 N.E.2d 848

(1984). “A party who disagrees with a decision of a court of common pleas in an R.C.

Chapter 2506 administrative appeal may appeal that decision to the court of appeals

but only on ‘questions of law.’” Id. In addition, we can review whether the trial court

“abused its discretion in deciding that an administrative order was or was not

supported by reliable, probative, and substantial evidence.” Id., citing Boice v.

Ottawa Hills, 137 Ohio St.3d 412, 2013-Ohio-4769, 999 N.E.2d 649, ¶ 17, and Kisil
at 34. “In this context, a reversal ‘as a matter of law’ can occur only when, having

viewed the evidence most favorably to the decision, there are no facts to support the

common pleas court decision.”      Kurutz v. Cleveland, 8th Dist. Cuyahoga No.

105899, 2018-Ohio-2398, ¶ 8.

              It must be briefly noted that the plurality decision in Shelly Materials

has no precedential value in light of the fact that only three justices joined in the

conclusion that “the court of appeals [in Shelly Materials] had no authority to

second-guess the decision of the court of common pleas on questions going to the

weight of the evidence supporting the commission’s findings.” Id. at ¶ 21. The

plurality concluded that the court of appeals incorrectly weighed the evidence

contrary the limitations imposed under R.C. 2506.04. It was expressly recognized

that the appellate court in Shelly Materials had acknowledged that the case hinged

on the credibility of the expert’s testimony at the hearing level — a matter almost

entirely reserved to the trial court within the framework of R.C. Chapter 2506. Id.

at ¶ 23.

              The plurality, however, also recognized that an appeal from the trial

court’s review of an administrative decision under R.C. 2506.04 goes beyond the

weight-of-the-evidence review (through which the court of appeals can determine

whether the court of common pleas abused its discretion in deciding that an

administrative order was or was not supported by the requisite evidence); it also

includes reviewing questions of law. Id. at ¶ 17. It is equally noteworthy that the

dissent in Shelly Materials would have concluded that the trial court applied the
incorrect standard of review, but the court of appeals nonetheless erred by

reinstating the commission’s (agency’s) decision.          Id. at ¶ 39 (DeWine, J.,

dissenting.). According to the dissent, the matter should have been remanded to the

trial court to apply the correct standard of review in the first instance. Id.

               In reading Shelly Materials to its fullest extent, while at the same time

acknowledging that it was a fractured decision, we must review whether the trial

court applied the correct standard of review to the administrative agency’s decision.

If there is any takeaway from Shelly Materials, it is this: the one legal conclusion

agreed upon by a majority of the justices in Shelly Materials is that a party aggrieved

by a decision of a trial court in an R.C. Chapter 2506 administrative appeal may

appeal that decision to the court of appeals on questions of law. Shelly Materials at

¶ 17, 39. Six justices agreed with that proposition of black letter law. See id. The

question before us does not address the weight of the evidence, which we would be

reviewing for an abuse of discretion, but instead, the county posits that the trial court

applied the incorrect standard of review — a question of law and an issue well

beyond the scope of the plurality opinion in Shelly Materials. See id. at ¶ 21

(recognizing that the only issue preserved was limited to the weight of the evidence

in support of the agency’s and the trial court’s conclusions).

      The Trial Court’s Review Exceeded the Scope of Its Review

               The trial court exceeded the scope of its review in several respects and

thereby erred in reversing the Commission’s decision. For example, the hearing

officer concluded, based on Section 13.08 of the county’s personnel policies and
procedures manual, that Gregory committed a “major infraction” by failing to follow

call-in procedures on two consecutive work days. The trial court fundamentally

disagreed with that policy, claiming that Gregory’s failure to follow the call-in

procedures was a “mistake” and that there was “certainly not a pattern of

disregarding call-in procedures” such that Gregory’s infraction should not have

resulted in or formed the support of her removal.

               The trial court has no authority to determine the severity of the

county’s infraction system that is set forth in the personnel policies and procedures

manual. The policies and procedures manual created a policy that escalated the

severity of the failure to follow call-in procedures — one day was a minor infraction,

two days was a major infraction, and three days was a removable infraction. Nothing

in that procedure requires the county to prove that the employee willfully

disregarded the procedures or demonstrated a pattern of failures to follow the

procedures. It is for this reason that the court was able to find an absence of evidence

demonstrating Gregory’s intent or pattern of misconduct — the employer bore no

burden to produce any such evidence because the standard for failing to follow the

call-in procedures was, for all intents and purposes, a strict liability standard.

               The sole question before the trial court was whether a preponderance

of the evidence demonstrated that Gregory’s conduct amounted to a “major

infraction,” and the evidence was undisputed on that point — Gregory conceded that

she failed to follow the call-in procedure for two consecutive work days. In essence,

the trial court made a policy decision limiting the severity of the call-in infractions
contrary to the employer’s own policies and procedures manual. This is beyond the

scope of the administrative review process, which is limited to determining whether

a preponderance of the evidence supports the conclusion — in this case that the

employee violated the call-in procedure on two consecutive days.

               Along those lines, the trial court also concluded that the county was

required to progressively discipline Gregory before taking steps to remove her for

the conduct that constituted the basis of the “removable infractions.” The hearing

officer did not address this aspect of the policies and procedures manual, and in fact,

the employer’s policies and procedures manual expressly establishes that the

“progressive discipline program” does not apply to an offense deemed “removable,”

such as the offense for which Gregory was terminated. There is no evidence in the

record demonstrating that Gregory was subject to progressive discipline because

Gregory was not entitled to invoke the progressive discipline policy based on the

severity of alleged infractions.

               The trial court’s conclusion, that the county failed to progressively

discipline Gregory before her removal, exceeded the trial court’s scope of review —

it again insinuated that the county require a policy or procedure that was contrary

to the employer’s own policies and procedures manual. See Kurutz, 8th Dist.

Cuyahoga No. 105899, 2018-Ohio-2398, at ¶ 19. The only issue before the trial court

was whether the two major infractions and one removable infraction — the basis of

Gregory’s removal — were supported by a preponderance of the evidence in the
record. The trial court lacked authority to conclude that the county was required to

implement progressive disciplinary procedures for a “removable infraction.”

               With respect to the trial court’s conclusion that the county did not

produce a preponderance of evidence supporting the “removable infraction” of

egregious, flagrant, or willful neglect in the performance of assigned duties, the trial

court found that the failure to maintain the database and failure to timely conclude

the data-entry process did not rise to this level. On this issue, the trial court

concluded that Gregory had followed the same procedures as her predecessor, that

the animal shelter’s inability to conduct a renewal campaign was “not the proper

benchmark,” that there was a complete failure to communicate deadlines and

requirements to Gregory by management, and that Naticchioni was not an “expert

in databases” so that her testimony of finding half of the 2015 dog license entries

that were not renewed in 2016 to be lacking a “city” in the address field was

unreliable.

               None of the trial court’s conclusions address the weight of underlying

evidence in support of the Commission’s decision. It is unclear why the animal

shelter’s inability to conduct a nonrenewal campaign was not the “proper

benchmark” for Gregory’s performance standards. According to the trial court, the

animal shelter’s primary objectives are dependent on an up-to-date database that

was managed by Gregory.

               The hearing officer concluded that Gregory failed to update the 2015

dog license database during the 2015 calendar year, based on Naticchioni’s
testimony that she reviewed over 15,000 nonrenewed dog license entries after the

initial 2016 campaign. Of those 15,000 entries, over half lacked a “city” in the

address field. It is undisputed that Gregory was responsible for ensuring that the

2015 dog license application information was entered into the database, and

Gregory conceded that she was responsible for updating the database information

after the initial period of data entry ended, the procedure used by her predecessor.

Naticchioni reviewed the 2015 information and found a systematic failure to input

the basic address information. Despite this evidence, the trial court concluded that

“there is insufficient evidence in the record before the Court to fault Gregory for

neglect of duty based on the testimony of a layperson such as Naticchioni” because

Naticchioni could not “pinpoint” the one person or department that erroneously

entered the information due to her lack of expertise in databases.

                It is not at all apparent why the employer would need an expert to

ascertain whether a “city” is included in the address field in the database its

employees maintain and use as part of their day-to-day employment obligations.

Most important, Naticchioni’s status as a fact witness was not challenged at the

agency level.    Thus, the trial court’s conclusion that the employer failed to

demonstrate that Naticchioni was an expert in the database went beyond the court’s

scope of review. There was no evidence demonstrating Naticchioni to be an expert

in the database solely because Gregory failed to challenge her testimony at the

agency level on such grounds. Since her testimony was not challenged, the employer

bore no burden in proving her to be an expert.
              Further, the trial court heavily relied on the fact that the county failed

to demonstrate which employee specifically inputted the address into the database

without a complete address.       According to the hearing officer’s report and

recommendation, however, the reason for the omission was irrelevant — there was

never an attempt to prove that Gregory herself was the cause of, or to otherwise

“pinpoint” the persons responsible for, the errors. The hearing officer’s conclusion

was that Gregory failed to establish procedures for her employees to ever update the

2015 information. Thus, the trial court interjected a factual issue — which particular

employee was responsible for each of the erroneous entries — that was not

considered or resolved by the Commission and that did not form the basis of the

Commission’s final decision.

              Gregory admitted that she instructed her employees to enter

“unknown” into the city field during the time-sensitive period of the initial data-

entry process. Gregory also acknowledged that the erroneous entries should be

corrected during the summer months after the initial dog license registration

process tapers off. According to Naticchioni’s testimony, the 2015 information was

never updated, but Naticchioni was able to update the information through

information readily available to county employees. The trial court did not address

whether the preponderance of the evidence supported the Commission’s decision to

uphold Gregory’s termination from employment, but rather, the trial court inserted

factual issues that were not reviewed at the agency level. At the risk of belaboring

the point, there was no evidence of which employee actually incorrectly inputted the
“null” or “blank” city in the address field because that was not the issue; the issue

was Gregory’s failure to ensure that the database was corrected during the 2015

calendar year.

                 And most importantly, the trial court did not address the second

finding by the hearing officer, as adopted by the Commission, that Gregory’s

repeated failure to read and respond to emails reflected on her attention to details

and the consistent disregard of the emails constituted an egregious, flagrant, or

willful neglect of Gregory’s duties that would also support Gregory’s removal from

her position. In other words, the trial court failed to conduct a complete review of

the administrative agency’s decision — the second finding also substantiated the

conclusion to uphold Gregory’s termination.

      Conclusion

                 Although trial courts must weigh the evidence to determine whether

a preponderance of reliable, probative, and substantial evidence supports the

administrative decision, a trial court may not substitute its judgment for that of the

administrative agency.     In light of the foregoing, the trial court crossed that

boundary and its decision substituted its judgment for that of the Commission. In

this case, the trial court instituted policy requirements contrary to the express

provisions of the county’s policies and procedures manual and discussed factual

issues beyond what was considered by the Commission in reversing the

Commission’s decision to uphold Gregory’s termination. Accordingly, the court

exceeded the standard of its review, and thereby erred as a matter of law.
Notwithstanding the error, our review does not include the ability to review the

evidence in reaching a conclusion as to the validity of the Commission’s decision.

Our review is limited to considering the trial court’s decision, and as pertinent to our

discussion, whether the trial court applied the correct standard of review.

               Accordingly, we reverse the decision of the trial court and remand for

further proceedings in which the trial court must review the Commission’s decision

under the standard of review as concisely presented in Shelly Materials, Inc., Slip

Opinion No. 2019-Ohio-4499, at ¶ 13. Reversed and remanded.

      It is ordered that appellant recover of said appellee 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.



____________________________________
SEAN C. GALLAGHER, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., CONCURS;
MICHELLE J. SHEEHAN, J., DISSENTS WITH SEPARATE OPINION

MICHELLE J. SHEEHAN, J., DISSENTING:

               Respectfully, I dissent.    In my view, whether Gregory’s conduct

relating to her management of the dog license database rose to the level of egregious,

flagrant, or willful neglect in performing her duties warranting a removal is a
question concerning the weight of the evidence. As the Supreme Court of Ohio

recently reminded us in Shelly Materials, Slip Opinion No. 2019-Ohio-4499, an

appellate court plays a different role than the court of common pleas in an

administrative appeal pursuant to R.C. Chapter 2506. While the trial court is

authorized to examine and weigh the evidence, our role is limited to reviewing

whether the lower court abused its discretion in deciding an administrative order

was (or was not) supported by reliable, probative, and substantial evidence. Mindful

of our limited role, I find the trial court applied the proper standard of review and

acted within its discretion in finding the county’s removal of Gregory, a 23-year

employee, was not supported by reliable, probative, and substantial evidence.

              It is undisputed the standard of review governing this appeal is set

forth in the recent Supreme Court of Ohio decision, Shelly Materials. Regarding the

trial court’s review of an administrative appeal pursuant to R.C. Chapter 2506, the

Court noted that, while such a review is not de novo, it resembles a de novo

proceeding. Shelly Materials at ¶ 13, citing Kisil v. Sandusky, 12 Ohio St.3d 30, 34,

465 N.E.2d 848 (1984). This means that the trial court “‘weighs the evidence to

determine whether a preponderance of reliable, probative, and substantial evidence

supports the administrative decision, and if it does, the court may not substitute its

judgment for that of’ the administrative agency.” Id., quoting Independence v. Office

of the Cuyahoga Cty. Executive, 142 Ohio St.3d 125, 2014-Ohio-4650, 28 N.E.3d

1182, ¶ 13. This standard of review, however, also means the trial court has “‘the

power to examine the whole record, make factual and legal determinations, and
reverse the [administrative agency’s] decision if it is not supported by a

preponderance of substantial, reliable, and probative evidence.’” Id., quoting

Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals, 141 Ohio St.3d 318,

2014-Ohio-4809, 23 N.E.3d 1161, ¶ 24.

              Preponderance of the evidence means the greater weight of the

evidence. Dawson v. Anderson, 121 Ohio App.3d 9, 13, 698 N.E.2d 1014 (10th

Dist.1997); Weishaar v. Strimbu, 76 Ohio App.3d 276, 283, 601 N.E.2d 587 (8th

Dist.1991). In Hale v. Bd. of Edn., 13 Ohio St.2d 92, 96-97, 234 N.E.2d 583 (1968),

the Supreme Court of Ohio noted that when adopting R.C. 2506.04 in 1957, the

General Assembly employed the words “preponderance of * * * evidence” to signal

its intent that the common pleas court is to weigh evidence in administrative

appeals.

              “‘[D]etermining whether an agency order is supported by reliable,

probative and substantial evidence is essentially a question of the absence or

presence of the requisite quantum of evidence.’” Kisil at 35, quoting Univ. of

Cincinnati v. Conrad, 63 Ohio St.2d 108, 111, 407 N.E.2d 1265 (1980). “‘Although

this in essence is a legal question, inevitably it involves a consideration of the

evidence, and to a limited extent would permit a substitution of judgment by the

reviewing Common Pleas Court.’” Id., quoting Conrad at 111.

              While the trial court’s review resembles a de novo proceeding, the

review to be undertaken by the court of appeals is much more limited in scope. Kisil,

12 Ohio St.3d at 34, 465 N.E.2d 848. R.C. 2506.04 gives the common pleas court
power to weigh the evidence and to reverse the administrative body where its

decision is not supported by the preponderance of substantial, reliable, and

probative evidence, but grants “a more limited power to the court of appeals to

review the judgment of the common pleas court only on ‘questions of law,’ which

does not include the same extensive power to weigh ‘the preponderance of

substantial, reliable, and probative evidence,’ as is granted to the common pleas

court.” Kisil at 34, fn.4.

               Summarizing its precedents, the Supreme Court of Ohio in Shelly

Materials, Slip Opinion No. 2019-Ohio-4499, again cautions us of the limited role

played by the court of appeals in an administrative appeal pursuant to R.C. Chapter

2506.

        A party who disagrees with a decision of a court of common pleas in
        an R.C. Chapter 2506 administrative appeal may appeal that decision
        to the court of appeals but only on “questions of law.” R.C. 2506.04.
        For this reason, we have stated that under R.C. 2506.04, an appeal to
        the court of appeals is “more limited in scope” than was the appeal to
        the court of common pleas. While the court of common pleas is
        required to examine the evidence, the court of appeals may not weigh
        the evidence. Apart from deciding purely legal issues, the court of
        appeals can determine whether the court of common pleas abused its
        discretion, which in this context means reviewing whether the lower
        court abused its discretion in deciding that an administrative order
        was or was not supported by reliable, probative, and substantial
        evidence.
(Citations omitted.) Shelly Materials at ¶ 17.

               The trial court in Shelly Materials found the Planning and Zoning

Commission’s decision was not supported by a preponderance of substantial,

reliable, and probative evidence. The court of appeals reversed the trial court’s
decision. Emphasizing that the trial court acted within the scope of review under

R.C. Chapter 2506 when it weighed the evidence differently than the Commission,

id. at ¶ 21, the Supreme Court of Ohio reversed the court of appeals.

               In this case, there were three infractions cited for Gregory’s removal

pursuant to Section 13.08 of the county’s Employee Conduct Policy (“Inappropriate

Conduct/Grounds for Discipline”). The hearing officer concluded that all three

infractions were proven. The first infraction was “egregious, flagrant or willful

neglect in the performance of assigned duties” (a conduct relating to “neglect of

duty, insufficiency, and incompetence” and constituting a removable infraction); the

second infraction was a “failure to complete a legitimate job assignment” (a conduct

also relating to “neglect of duty, insufficiency, and incompetence” and constituting

a major offense); and the third infraction was her failing to follow the call-in

procedures for two consecutive days (a conduct also relating to “neglect of duty,

insufficiency, and incompetency” and constituting a major infraction).

               Although the hearing officer found the county proved all three

infractions, he acknowledged that the first infraction and the second infraction were

both predicated on Gregory’s mismanagement of the dog license database. (Hearing

Officer’s Report, p. 29.)

               The trial court issued a detailed decision to support its reversal of the

order of the county’s Personnel Review Commission removing Gregory. After a

careful review of the evidence, it concluded the Commission’s order affirming

Gregory’s removal was not supported by the preponderance of substantial, reliable,
and probative evidence. Specifically, the trial court found an absence of reliable

evidence in support of the hearing officer’s conclusions that Gregory was removed

for just cause for mismanaging the dog license database and for failing to follow call-

in procedures for two consecutive days.

               Regarding the dog registration program, the trial court found that the

preponderance of the evidence showed that Gregory followed the same process and

procedure for the annual dog registration and data entry work put into place by her

predecessor, pre-Charter Director Lula Hamilton.         The trial court specifically

referred to the testimony from Hamilton, Innis, and General Services employees

Sarah Watkins and Louis Bucci to support this finding. Because of the high volume

of applications received each year, additional county workers were always needed to

work on the applications even when the department had eight employees.

Hamilton’s policy was always “Process first, data entry second.” Because the dog

license number is on the application, the information about a lost dog can be

manually looked up even if the information has not been entered into the database

yet.

                Regarding the County Kennel’s inability to run a nonrenewal

campaign due to the lack of an up-to-date database, the trial court reasoned that

Gregory alone cannot be faulted for General Services’ inability to timely update the

database. Gregory was following the same process put in place by Hamilton and had

never been directed by a supervisor to follow a different procedure. The trial court

found that the fact that the County Kennel could not conduct a nonrenewal
campaign did not equate to Gregory not performing her job or mishandling the

database because General Services is focused on its statutory duty to process the dog

license applications before updating the database. The trial court reasoned that, if

having an up-to-date database was such an important part of Gregory’s duty, Innis

would have the responsibility to direct her and provide her with necessary human

resources to complete the task timely. The court determined that there was “a

complete failure on the part of management to communicate any deadlines or

requirements for Gregory to fulfill her job duties regarding managing” the dog

license database.

               The trial court noted that the hearing officer relied heavily on the

testimony of Naticchioni, the County Kennel Manager. She testified to the errors in

the database based on her personal review of the database and concluded Gregory

mishandled the database. The trial court observed that Naticchioni is not an expert

in computer database and she never reviewed the applications to determine the

cause of the errors in the database. The trial court pointed to Hamilton’s remark of

“garbage in, garbage out” in reference to the possibility that the errors may be

created by people inputting the data, including other county employees and the dog

owners who register online. The trial court concluded Naticchioni’s testimony did

not constitute sufficient reliable evidence to support Gregory’s alleged neglect of

duty.

              The trial court also noted that, while Naticchioni had raised the issue

of the necessity of an up-to-date database with Eric Richter and had also
communicated her dissatisfaction with the database to Innis, Naticchioni never

raised her concerns directly with Gregory. The trial court noted that “[t]here was no

training, progressive discipline, or even a meeting with Gregory to discuss the best

way to handle the issue of timely updating [the dog license database].”

               Citing these reasons, the trial court concluded that any deficiency

regarding Gregory’s management of the dog license database “could not be an

egregious failure or willful neglect of assigned job duties on Gregory’s part.” In other

words, after weighing the evidence, which was within the trial court’s scope of

review, the trial court determined there was a lack of preponderance of reliable

evidence showing Gregory’s performance of her job relating to the management of

the dog license database rose to the level of egregious or willful conduct warranting

a “removable infraction” designation.

               Regarding the second basis for Gregory’s removal — her failure to

follow the call-in procedures after being suspended — the trial court stated that non-

consecutive suspension, while permissible, was not “intuitive.”             The court

characterized Gregory’s failure to call in or show up for work on the two non-

suspended days as nothing more than a mistake. The trial court determined that

there was no evidence that Gregory, a 23-year county employee without any prior

discipline regarding call-in procedures, intentionally disregarded the procedures.

               Although Gregory’s failure in following the call-in procedure for two

consecutive days was deemed a “major” infraction pursuant to section 13.08 of the

county’s Employee Conduct Policy (and it appears the Conduct Policy does not allow
for a consideration of any mitigating circumstances), Innis testified that

Naticchioni’s April 26, 2016 letter to Fiscal Officer Dennis Kennedy complaining of

Gregory’s management of the dog license database was the catalyst for Gregory’s

removal. (Hearing Officer’s Report, p.11.)

               Thus, whether the county proved Gregory committed a “major”

infraction in falling to call in for two consecutive days is not relevant. The only issue

in this case is whether the trial court abused its discretion in finding Gregory’s

removal was not supported by the preponderance of substantial, reliable, and

probative evidence. The trial court was permitted to weigh all the evidence cited in

support of her removal and was within its discretion in assigning less weight to

Gregory’s failure of following the call-in procedure for two consecutive days — albeit

its classification as a “major” infraction — in reversing the Commission’s order

removing Gregory.

               Here, the record shows that, after a thorough examination of the

evidence, the trial court found an absence of the requisite quantum of evidence

showing Gregory was removed for just cause. Gregory followed the procedure and

policy set forth by her predecessor in managing the dog license database. While it

was undisputed that the County Kennel relied on an up-to-date and accurate

database to perform its work and that the Kennel was unable to use the database to

run the nonrenewal campaign, the trial court found there was a lack of

preponderance of reliable, probative, and substantial evidence — other than the

County’s assertion — establishing that Gregory, rather than her supervisor(s), was
responsible for instituting an improved procedure regarding the data entry work

and the database.

               Instead, the trial court found the evidence showed Gregory had not

received directives or guidance from a supervisor requiring her to alter the existing

policy or procedure; neither had Gregory been given specific deadlines for the data

entry work for purposes of facilitating the County Kennel’s nonrenewal campaign.

After the Kennel Manager Naticchioni raised her concerns with the Fiscal Officer in

April 2016, Gregory was soon placed on administrative leave in May 2016 and

terminated in June 2016.       The trial court noted that there was “no training,

progressive discipline, or even a meeting with Gregory” to discuss the best way to

handle the issue of timely updating the dog license database. While progressive

discipline is applicable only to infractions that are less severe than those categorized

as “removable” (such as “egregious, flagrant or willful neglect in the performance of

assigned duties”), the trial court found Gregory’s conduct did not rise to the level of

“egregious, fragrant or willful neglect” and therefore not a “removable” infraction.

Progressive discipline would also be applicable as to her second infraction, which

was “failing to complete a legitimate job assignment,” not a “removable” offense.

               This appeal concerns the weight of the evidence. The trial court acted

within its scope of review in weighing the evidence differently than the Commission.

While the common pleas court is required to examine and weigh the evidence, the

court of appeals “may not weigh the evidence.” Shelly Materials at ¶ 17. Our role in

the instant administrative appeal is different from that of the trial court. Within the
ambit of “questions” for appellate review, we are limited to determining whether the

trial court abuses its discretion in deciding that an administrative order is not

supported by reliable, probative, and substantial evidence. Under this limited and

narrow scope of review, I would affirm the trial court’s decision because the trial

court did not abuse its discretion in reviewing the evidence and finding the

Commission’s removal of Gregory from her employment with the Fiscal Office was

not supported by reliable, probative, and substantial evidence. For these reasons, I

respectfully dissent.
