[Cite as Zuccaro v. Dir., Dept. of Job & Family Servs., 2014-Ohio-404.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100372


                                 MICHAEL ZUCCARO

                                                            PLAINTIFF-APPELLANT

                                                     vs.

                DIRECTOR, DEPARTMENT OF JOB &
                    FAMILY SERVICES, ET AL.
                                                            DEFENDANTS-APPELLEES




                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CV-805388

        BEFORE: E.A. Gallagher, J., Boyle, A.J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                           February 6, 2014
ATTORNEY FOR APPELLANT

John Wood
281 Corning Drive
Bratenahl, OH 44108

ATTORNEYS FOR APPELLEES

Director, Department of Job &
Family Service

Mike Dewine
Attorney General of Ohio
30 East Broad Street
Columbus, OH 43215

Laurence R. Snyder
Assistant Attorney General
State Office Bldg.,11th Floor
615 West Superior Avenue
Cleveland, OH 44113

Cleveland Clinic Health System, Etc.

Michael M. Michetti
3050 Scenic Park Dr., AC-321
Beachwood, OH 44122
EILEEN A. GALLAGHER, J.:

      {¶1}   Plaintiff-appellant Michael Zuccaro appeals the judgment of the Cuyahoga

County Court of Common Pleas that had affirmed the decision by the Ohio

Unemployment Review Commission (“Review Commission”), denying his claim for

unemployment benefits. For the reasons set forth below, we affirm.

      {¶2} Zuccaro was employed as a plant specialist and carpenter for

defendant-appellee, Cleveland Clinic Health System-East Region, Inc. (“CCHS”) from

April 16, 2001 to October 24, 2012. According to CCHS, Zuccaro was discharged for

theft and removal of property belonging to Hillcrest Hospital.

      {¶3} Zuccaro filed an application for unemployment compensation benefits that

were allowed by the Ohio Department of Job and Family Services (“ODJFS”).         That

decision was appealed by CCHS and the matter proceeded to a hearing before the

Unemployment Compensation Review Commission.               Testimony was provided by

Zuccaro, his direct supervisor and a CCHS Protective Services police inspector.   The

Review Commission reversed the ODJFS’s redetermination and concluded that Zuccaro

was discharged by CCHS for just cause in connection with his work.

      {¶4} Zuccaro then filed an appeal in the Cuyahoga County Court of Common

Pleas. The trial court affirmed the decision of the Review Commission, concluding that

the Review Commission’s finding that Zuccaro was terminated for just cause was not

“unlawful, unreasonable or against the manifest weight of the evidence.”
       {¶5} Zuccaro now appeals, raising the following three assignments of error for

review:

                                  Assignment of Error I

       No evidence of theft of money was ever presented; it is therefore error for
       the court to have affirmed a ruling based on that unreasonable conclusion.

                                 Assignment of Error II

       When an employee is terminated for theft, as a matter of law there must be
       some proof a theft occurred, committed by the employee.

                                 Assignment of Error III

       Where a claimant has shown that he was not terminated for the only
       offense alleged by employer, and has stated he was terminated per a
       reduction in force, claimant has established eligibility.

       {¶6} Because Zuccaro’s assignments of error present interrelated issues of law

and fact, we address them together.

       {¶7} R.C. 4141.282(H) governs the standard of review for decisions made by

the Review Commission that applies to all appellate courts. Tzangas, Plakas & Mannos

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

The statute provides that the common pleas court shall reverse the commission’s

decision only if it finds “that the decision of the commission was unlawful,

unreasonable, or against the manifest weight of the evidence.”         R.C. 4141.282(H).

Appellate courts are not permitted to make factual findings or to determine the credibility

of witnesses, but they do have the duty to determine whether the Review Commission’s

decision is supported by the evidence in the record. Tzangas at 696, citing Irvine v.
Unemp. Comp. Bd. of Rev., 19 Ohio St.3d 15, 17-18, 19 Ohio B. 12, 482 N.E.2d 587

(1985).   “[A] reviewing court may not reverse the commission’s decision simply

because ‘reasonable minds might reach different conclusions.’” Williams v. Ohio Dept.

of Job & Family Servs., 129 Ohio St.3d 332, 2011-Ohio-2897, 951 N.E.2d 1031, ¶ 20,

quoting Irvine, 19 Ohio St.3d at 18.

       {¶8} In order to be eligible for unemployment compensation benefits, Zuccaro

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. Briggs v. Cleveland Clinic Health Sys., 8th Dist. Cuyahoga No.

99654, 2013-Ohio-4045, ¶ 9.       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.’” Id., quoting Peyton v. Sun T.V., 44 Ohio App.2d 10, 12, 335 N.E.2d 751 (10th

Dist.1975).

       {¶9} Whether just cause exists is unique to the facts of each case. Irvine, 19

Ohio St.3d 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. It, therefore, follows that

the lower court’s judgment will be affirmed if the evidence supports the claim that

Zuccaro was terminated through his own fault. Heller v. Ohio Dept. of Jobs & Family

Servs., 8th Dist. Cuyahoga No. 92965, 2010-Ohio-517, ¶ 37, citing Milyo v. Bd. of Rev.,

Ohio Bur. of Emp. Serv., 8th Dist. Cuyahoga No. 60841, 1992 Ohio App. LEXIS 3921

(July 30, 1992).
        {¶10} In the present case, CCHS maintained that Zuccaro was terminated due to

theft and removal of property belonging to Hillcrest Hospital.        Zuccaro argues that

CCHS failed to introduce evidence of a theft and that he was instead terminated due to a

reduction in the work force.

        {¶11}   Although Zuccaro argues that CCHS failed to present evidence to support

all the elements of a criminal theft offense, we note that our review in this case is not as

that of a criminal case where a defendant challenges the sufficiency of the evidence

presented to support a conviction. “The standard of proof necessary to support a finding

of dismissal for just cause is substantially less than that required for a criminal

conviction.”    Cross v. Jon-Jay Assocs., 5th Dist. Ashland No. 2005-COA-006,

2005-Ohio-3781, ¶ 11, citing Nordonia Hills City School v. Unemp. Comp. Bd., 11 Ohio

App.3d 189, 463 N.E.2d 1276 (9th Dist.1983). “The critical issue is not whether an

employee has technically violated some company rule, but * * * whether the employee,

by his actions, [has] demonstrated an unreasonable disregard for his employer’s best

interests.” Kiikka v. Ohio Bur. of Emp. Servs., 21 Ohio App.3d 168, 169, 486 N.E.2d

1233 (8th Dist.1985).

        {¶12}   “The determination of what constitutes just cause must be analyzed in

conjunction with the legislative purpose underlying the Unemployment Compensation

Act.”    Irvine, 19 Ohio St.3d at 18.      The Act was “intended to provide financial

assistance to an individual who had worked, was able and willing to work, but was

temporarily without employment through no fault or agreement of his own.” Id., quoting
Salzl v. Gibson Greeting Cards, 61 Ohio St.2d 35, 39, 399 N.E.2d 76 (1980); Case W.

Res. Univ. v. Statt, 8th Dist. Cuyahoga No. 97159, 2012-Ohio-1055, ¶ 8.        The record

herein contains reliable evidence that Zuccaro was terminated for just cause as a result of

his own actions.      Bob Kwiat, a police inspector with CCHS’ Protective Services

Department conducted an investigation into employee thefts of scrap from CCHS

dumpsters.     He testified that as a result of another employee implicating Zuccaro in a

theft of CCHS scrap materials, he interviewed Zuccaro.        Zuccaro admitted to Kwiat

that, along with another employee, he had taken scrap from CCHS and turned it in for

their own profit. Zuccaro provided Kwiat with a written statement consistent with this

on October 24, 2012.

       {¶13}    Zuccaro testified that he did not remove scrap from dumpsters designated

as off limits but only collected scrap from a dumpster that was designated as trash and

for which CCHS had no further use. His testimony, however, contradicted that of

Kwiat, who testified that the co-employee stated during the investigation that they would

take scrap that belonged to the Clinic. Kwiat testified that Zuccaro admitted this as

well during his interview with him.

       {¶14}      The documentary evidence supports Kwiat’s testimony.           Although

Zuccaro’s written statement does not explain the source of the scrap, it did provide the

following account:

       On or about 2009 myself and [the co-employee] would take scrap from
       Hillcrest Hospital to All City scrap yard on St. Clair Ave. for the purpose
       of getting cash for the hospital. There were a few times we would put a
       little aside for ourselfs [sic] and share the profits. To the best of my
          recollection I don’t think I was given any more than $250 — on the high
          side for my participation.

          {¶15} Furthermore, during the appeals process with CCHS, Zuccaro submitted a

letter in support of his efforts to get his job back. The letter included the following

statements:

          * * * I made a mistake which I deeply and sadly regret.

          I admit to my fault and would sincerely like to be given another chance. * *
          *

          {¶16}   Although conflicting testimony was presented regarding the source of the

scrap that was converted into funds and that Zuccaro admits that he retained,1 it is not

the place of this court to      make factual findings or to determine the credibility of

witnesses.

          {¶17}    Accordingly, we find that the trial court did not err in affirming the

commission’s decision.       The record contains competent, credible evidence to support a

conclusion that Zuccaro engaged in conduct detrimental to CCHS and was terminated for

just cause.2      Zuccaro is not entitled to unemployment compensation benefits.         His

three assignments of error are overruled.

      1
        We find no merit to Zuccaro’s attempt to distinguish theft of the scrap
material from theft of monies belonging to CCHS. The record reflected that as part
of Zuccaro’s job duties he was required to load scrap and transport it along with his
co-employee to the scrap yard where they received payment for the scrap. The
money received belonged to CCHS and whether the review commission found
Zuccaro engaged in a theft of scrap or money is a distinction without merit under
the circumstances.
      2
       We note that the record contains absolutely no evidence in support of
Zuccaro’s contention that he was terminated as a result of a reduction in force.
      {¶18}   The judgment of the trial court is affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said lower 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.



EILEEN A. GALLAGHER, JUDGE

MARY J. BOYLE, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR
