[Cite as Chardon Local School Dist. v. Keller, 2014-Ohio-5623.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
CHARDON LOCAL SCHOOL DISTRICT : OPINION BOARD OF EDUCATION, : Appellee, CASE NO. 2013-G-3159 : - vs - : MICHAEL KELLER, ADMINISTRATOR OF THE ESTATE OF : PERRY T. YOWELL, DECEASED, : Appellant.
Civil Appeal from the Geauga County Court of Common Pleas, Case No. 12 A 001109.
Judgment: Affirmed.
Eric J. Johnson, Susan Keating Anderson, and Mark S. Fusco, Walter & Haverfield, LLP, The Tower at Erieview, 1301 East Ninth St., Suite 3500, Cleveland, OH 44114 (For Appellee).
Charles W. Oldfield and Ira J. Mirkin, Green, Haines & Sgambati Co., L.P.A., 100 Federal Plaza East, Suite 800, Youngstown, OH 44503 (For Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Michael Keller, administrator of the Estate of Perry T. Yowell, appeals the
judgment of the Geauga County Court of Common Pleas.1 In its decision, the trial court
reversed the decision of the Unemployment Compensation Review Commission (“the
1. While the appeal was pending, Yowell passed away. This court, therefore, granted the motion to substitute Michael Keller, Administrator of the Estate of Perry T. Yowell, Deceased, as appellant for Perry T. Yowell. Commission”), which affirmed the decision of the Hearing Officer. In its decision, the
Hearing Officer had determined Yowell was entitled to unemployment compensation
because his employer, Appellee Chardon Local School District Board of Education (“the
Board”), terminated him without just cause.
{¶2} Yowell was employed as a maintenance worker at the Chardon Local
School District. On the morning of February 27, 2012, a shooting occurred at Chardon
High School; three students died, and three others were injured. Yowell was called to
the crime scene because of a water leak. While at the scene, Yowell, without
permission, took a photograph of the bloody aftermath on his cellular telephone. Yowell
displayed this photograph to community members, co-workers, and a student. This
picture depicted evidence of blood and brain matter from the victims that resulted from
the tragic shooting.
{¶3} Upon learning of the existence of this photo, the Chardon Police
Department inquired of Yowell. Yowell was also interviewed by an Assistant Geauga
County Prosecutor. He indicated that he had shown this photograph to two of his co-
workers. This statement was confirmed in Yowell’s written statement. Additionally, two
individuals gave written statements to the prosecutor’s office noting that the picture
depicted two pools of blood on the floor of the cafeteria; one of the statements indicated
that Yowell informed her there was also brain matter on the cafeteria table.
{¶4} When the superintendent was notified, he conducted an investigation.
The superintendent noted that Yowell did not disclose that he had shown the
photograph to the co-workers or other district employees. Yowell also informed the
2 superintendent that the picture was low resolution and it just looked like “black spots” on
the floor.
{¶5} Yowell was placed on suspension during this investigation. Following a
pre-disciplinary hearing, the matter was considered by the Board. The Board voted to
terminate Yowell’s employment. The Board’s “Resolution of Termination” stated that
Yowell had engaged in misconduct by photographing the crime scene for improper
purposes. It further stated that Yowell had engaged in misconduct by showing the
picture to other staff members, a student, and community members. The Resolution
stated that Yowell had been dishonest and had violated Board Policy.
{¶6} Yowell filed an application for determination of benefit rights with Ohio
Department of Job and Family Services (“ODJFS”); the Director issued an initial
determination that Yowell was discharged from his employment with just cause and
disallowed his unemployment benefits.
{¶7} Yowell filed an appeal from this initial determination. The Director issued
a redetermination affirming its prior determination. Yowell appealed this
redetermination, and the case was transferred to the Commission. A hearing was held.
{¶8} The Hearing Officer for the Commission, in his decision, reversed the
Director’s redetermination which had disallowed Yowell’s application for unemployment
benefits. In reversing this decision, the Hearing Officer observed that Yowell’s
photograph taken at the scene of the tragic incident “showed a lack of respect for the
shooting victims and their families. [Yowell] used poor judgment in deciding to take the
picture without obtaining permission.” The Hearing Officer noted, however, that the
employer had no particular rule concerning photographing the school cafeteria, and “by
3 merely taking a picture and showing it to others, he did not engage in any particular act
of misconduct.” The Hearing Officer further reasoned that Yowell did not publish the
picture nor did any of the family members of the victims become aware of his actions.
He stated, “[t]he totality of the record before the Hearing Officer does not establish that
there was sufficient fault or misconduct attributable to the claimant to disqualify him from
receiving unemployment compensation benefits.”
{¶9} On September 12, 2012, appellee initiated a Request for Review by the
Commission. The Commission granted that request on September 26, 2012. After
review of the entire record, on October 10, 2012, the Commission concluded that the
Hearing Officer’s decision should be affirmed.
{¶10} Appellee filed an administrative appeal, pursuant to R.C. 4141.282(H).
After briefing by the parties, the trial court reversed the decision of the Commission. In
its judgment entry, the trial court found the following:
This Court does, however, find that the discharge was with just cause. Not because [Yowell] was dishonest or because he attained the last step on the disciplinary scale.
The reason this court finds that [Yowell] was at fault was because of his outrageous and egregious conduct.
The hearing officer found that [Yowell’s] photographing of the crime scene was ‘insensitive * * * it showed a lack of respect for shooting victims and their families. The claimant used poor judgment in deciding to take the picture without obtaining permission. Further, he demonstrated a lack of tact by showing it to other individuals.’
The foregoing conclusion reached by the hearing officer is not reasonable. To characterize what [Yowell] did in this case as exercising poor judgment, as insensitive, or not being tactful, is grossly disproportionate.
The employer need not have any particular rule concerning photographing the school cafeteria in order for an employee to be
4 discharged with just cause for photographing the aftermath of the incident that occurred here. * * * [Yowell] here went beyond the line of insensitivity or lack of tact. [Yowell’s] conduct was profoundly troubling. The photograph is inherently gruesome. It shocks the sensibilities of any reasonable person.
{¶11} Yowell filed an appeal with this court. On appeal, Yowell asserts the
following:
{¶12} “The trial court erred when it reversed the decision of the Unemployment
Compensation Review Commission.”
{¶13} Appellee filed a cross-assignment of error pursuant to App.R. 3(C)(2). A
cross-assignment of error may be filed pursuant to that rule or R.C. 2505.22 when a
party wishes to defend a judgment or order appealed by an appellant on a ground other
than that relied on by the trial court, while not seeking to change the judgment or order.
See 2013 Staff Note, App.R. 3(C)(2). In its cross-assignment of error, appellee asserts
the following:
{¶14} “The lower court erred by ignoring undisputed, relevant evidence of prior
misconduct and progressive discipline.”
{¶15} Before we address Yowell’s assigned error, we note that appellee argues
this court does not have jurisdiction to entertain Yowell’s appeal. Appellee, in both a
motion to dismiss and its appellate brief, maintains that this appeal should be dismissed
because a claim for unemployment benefits does not survive the death of the claimant.
In our March 26, 2014 judgment entry, this court distinguished Hodge v. Ohio Bur. of
Emp. Serv., 6th Dist. Lucas No. L-083-016, 1983 Ohio App. LEXIS 12415, whereby the
Sixth Appellate District held that an action to recover unemployment compensation is
grounded on a “personal right,” which is non-transferable.
5 {¶16} In our judgment entry, we noted that Yowell filed this appeal prior to his
death. This appeal seeks a reversal of the trial court’s judgment, which would preclude
the ODJFS from seeking repayment of the benefits from Yowell’s estate that were
received during his lifetime. No new or additional benefits are being sought. Finding we
have jurisdiction to entertain the instant appeal, we proceed to address the merits of
Yowell’s assigned error.
{¶17} A reviewing court may reverse a “just cause” determination by the
Commission “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
(1995), paragraph one of the syllabus. An appellate court’s obligation is to consider
whether the decision is based upon evidence in the record, without substituting its
judgment regarding witness credibility for those of the commission. Id. at 696. Thus,
“[t]he fact that reasonable minds might reach different conclusions is not a basis for the
reversal of the board’s decision. * * * ‘Where the board might reasonably decide either
way, the courts have no authority to upset the board’s decision.’” Irvine v. Unemp.
Comp. Bd. of Review, 19 Ohio St.3d 15, 18 (1985), quoting Charles Livingston & Sons,
Inc. v. Constance, 115 Ohio App. 437, 438 (7th Dist.1961).
{¶18} Essentially, the purpose of Ohio’s Unemployment Compensation Act is “‘to
enable unfortunate employees, who become and remain involuntarily unemployed by
adverse business and industrial conditions, to subsist on a reasonably decent level and
is in keeping with the humanitarian and enlightened concepts of this modern day.’”
Irvine, supra, at 17, quoting Leach v. Republic Steel Corp., 176 Ohio St. 221, 223
(1964).
6 The Act does not exist to protect employees from themselves, but to protect them from economic forces over which they have no control. 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, supra, at 697-698.
{¶19} In order to qualify for unemployment compensation benefits, a claimant
must satisfy the criteria set forth in R.C. 4141.29(D)(2)(a). That section provides: “[N]o
individual may * * * be paid benefits * * * [f]or the duration of the individual’s
unemployment if the director finds that [t]he individual quit work without just cause or
has been discharged for just cause in connection with the individual’s work * * *.” The
Ohio Supreme Court has defined “just cause” as “that which, to an ordinarily intelligent
person, is a justifiable reason for doing or not doing a particular act.” Irvine, supra, at
17; Tzangas, supra, at 697.
{¶20} We turn to the gravamen of appellant’s appeal—whether the trial court
erred in reversing the Commission’s decision granting unemployment benefits on the
basis that Yowell was discharged without just cause. Appellant contends the Hearing
Officer’s finding that Yowell was not guilty of wrongdoing and that he was fired without
just cause is supported by at least some competent, credible evidence. Appellant
maintains the Hearing Officer’s findings that Yowell neither violated any policies of the
school as cited by the Board nor engaged in any misconduct are supported by
competent, credible evidence.
{¶21} In its cross-assignment of error, appellee maintains that at the time Yowell
took the photograph at issue, his prior misconduct had placed him at Step 5 of the
7 Progressive Discipline provision, which identifies termination of employment as an
appropriate disciplinary measure. Appellee argues that the hearing officer and the trial
court failed to take into consideration that Yowell had three prior instances of
misconduct and that Yowell was aware any subsequent misconduct may lead to
termination. The trial court concluded that Yowell was fired for just cause, but not
because he was dishonest or because he attained the last step on the discipline scale.
{¶22} Where an employee demonstrates “‘unreasonable disregard for [the]
employer’s best interests,’” just cause for the employee’s termination is said to exist.
Kiikka v. Ohio Bur. of Emp. Servs., 21 Ohio App.3d 168, 169 (8th Dist.1985), quoting
Stephens v. Bd. of Rev., 8th Dist. Cuyahoga No. 41369, 1980 Ohio App. LEXIS 12234,
*4.
{¶23} While [the Ohio Supreme Court] did hold * * * that ‘the determination of whether just cause exists necessarily depends upon the unique factual considerations of the particular case,’ * * * that does not compel the appellate court’s abandonment of fault-based just cause analysis in favor of a ‘totality of the circumstances’ examination. Instead, * * * the question of fault cannot be rigidly defined, but, rather, can only be evaluated upon consideration of the particular facts of each case. If an employer has been reasonable in finding fault on behalf of an employee, then the employer may terminate the employee with just cause. Fault on behalf of the employee remains an essential component of a just cause termination.
Tzangas, supra, at 698.
{¶24} The record demonstrates that Yowell had been disciplined for numerous
instances of misconduct: (1) for being in possession of a district-owned piece of
equipment at his personal residence; (2) for showing pornographic material to a minor
who was working as seasonal help at the district; and (3) for “overt and excessive
personal use of a Board owned computer.” At the time of this incident, Yowell was at
8 the top level of discipline under a progressive discipline regime. The record
demonstrates that Yowell was aware that under the progressive discipline steps,
termination was a possibility. In fact, the letter to Yowell indicating the Board had
adopted a resolution to terminate his employment relied upon his pattern of misconduct,
including prior disciplinary infractions.
{¶25} In his decision, the Hearing Officer recognized that Yowell “had been
given several previous warnings and a suspension.” The Hearing Officer, however,
noted that “because appellee had not established that Yowell was at fault in the final
incident, the previous discipline [was] irrelevant to the determination as to the reason for
separation.” This conclusion is inherently inconsistent because the Hearing Officer also
acknowledged that Yowell was directly responsible for his predicament. “Photographing
the area in which the students were shot was insensitive. It showed a lack of respect
for the shooting victims and their families. The claimant used poor judgment in deciding
to take the picture without obtaining permission. Further, he demonstrated a lack of tact
by showing it to other individuals.”
{¶26} Further, it was not reasonable for the Hearing Officer to limit the just cause
determination to this particular incident, as the Board’s decision to terminate Yowell
relied upon his prior disciplinary infractions, as evidenced by the termination letter. The
trial court indicated in its ruling that Yowell’s “previous discipline [was] not relevant as to
the determination as to the reason given by the Board for separation of Appellee from
his employment.” Ostensibly, this is because the trial court found just cause for
Yowell’s termination without reference to his prior discipline. However, the prior
discipline was additional support for the Board’s decision to terminate Yowell and lends
9 weight to the decision in an examination of the totality of the circumstances. See
Village of Bellaire v. Unemp. Comp. Rev. Comm., 7th Dist. Belmont No. 11 BE 3, 2011-
Ohio-5167, ¶25 (discussing whether the Hearing Officer was reasonable to limit the
determination of just cause to actions that occurred prior to or after the employee’s
demotion). Therefore, the previous discipline was, to the extent indicated, relevant.
{¶27} Yowell demonstrated an unreasonable disregard for his employer’s best
interests. Yowell, whose only direction was to turn the water off in the cafeteria—the
scene of the incident—used his position as a school employee to voluntarily go beyond
the task at hand. Without permission, Yowell took a photograph depicting the bloody
aftermath of a tragic school shooting; Yowell did not take the photograph to aid in the
criminal investigation but for his own personal interest. In addition to taking the
photograph, Yowell showed it to co-workers, community members, and even a student.
Although the photograph itself is not contained in the record, the record does reflect
numerous depictions of the photograph. This photograph showed the pools of blood of
the students shot and killed during this tragedy—a tragedy that affected the Chardon
community and those associated with the school district. In fact, when showing the
picture to one co-worker, Yowell commented that the picture depicted “two pools of
blood on the floor and * * * brain matter on the table.”
{¶28} Yowell, not any outside economic factor, was responsible for his
dismissal. Prior to taking this photograph, Yowell was aware that based on his
instances of prior misconduct, termination was a possibility. Yet, Yowell proceeded to
not only take a photograph of the scene, but he showed and described it to others. If
Yowell had not taken the photograph and showed it to other individuals, he may not
10 have been terminated. Yowell was the “engine of his own termination.” City of
Ashtabula v. Rivas, 11th Dist. Ashtabula No. 2011-A-0020, 2012-Ohio-865, ¶24.
{¶29} The Hearing Officer noted that none of the victim’s family members
became aware of Yowell’s actions; if they became aware of the photograph, then
certainly “the district could suffer bad publicity and potential liability.” The Hearing
Officer stated that appellee was “unable to point to any particular harm that actually
occurred because of [Yowell’s] behavior” and “there is no evidence that his behavior
had a detrimental effect on the employer.” However, there is not a requirement of harm
when considering whether an employee’s actions demonstrated an unreasonable
disregard for his employer’s best interests. See Bonanno v. Ohio Dept. of Job & Family
Serv., 5th Dist. Tuscarawas No. 2012 AP 02 0011, 2012-Ohio-5167, ¶23 (noting that an
employee’s failure to comply with safety rules showed an “‘unreasonable disregard’ for
his employer’s best interests and subjected his employer to potential legal liability”)
(emphasis added).
{¶30} Upon a review of the record, we conclude that there was not competent,
credible evidence presented from which the Commission could have reasonably
determined that Yowell was terminated without just cause. The decision of the trial
court, reversing the decision of the Commission, was not unlawful, unreasonable, or
against the manifest weight of the evidence. It is our determination that the Court of
Common Pleas did not err in reversing the Commission’s Decision.
{¶31} Appellant’s assignment of error is without merit.
{¶32} Appellee’s cross-assignment of error is with merit to the extent indicated.
11 {¶33} For the reasons discussed above, the judgment of the Geauga County
Court of Common Pleas is hereby affirmed.
THOMAS R. WRIGHT, J., concurs,
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
____________________
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
{¶34} The majority holds that there was not competent, credible evidence
presented from which the Review Commission could have reasonably determined that
Yowell, now deceased, was terminated without just cause. The majority contends that
the decision of the trial court, reversing the decision of the Review Commission, was not
unlawful, unreasonable, or against the manifest weight of the evidence. The majority
determines that the trial court did not err in reversing the Review Commission’s
decision. Because I disagree with the majority’s position, I respectfully dissent.
{¶35} This case involves an administrative appeal. R.C. 4141.282, “Appeal to
court,” provides in part:
{¶36} “(H) REVIEW BY THE COURT OF COMMON PLEAS
{¶37} “The court shall hear the appeal on the certified record provided by the
commission. If the court finds that the decision of the commission was unlawful,
unreasonable, or against the manifest weight of the evidence, it shall reverse, vacate, or
modify the decision, or remand the matter to the commission. Otherwise, the court shall
affirm the decision of the commission.”
12 {¶38} 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. 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.”
Durgan v. Ohio Bur. of Emp. Servs., 110 Ohio App.3d 545, 551 (9th Dist.1996), citing
Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Servs., 73 Ohio St.3d 694, 696-697
(1995). 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. Lorain No. 02CA008012, 2002-Ohio-5425, ¶6, citing Tenny v.
Oberlin College, 9th Dist. Lorain No. 00CA007661, 2000 Ohio App. LEXIS 6169, *5
(Dec. 27, 2000).
{¶39} The investigation into just cause is a factual inquiry. Irvine v.
Unemployment Comp. Bd. of Review, 19 Ohio St.3d 15, 17 (1985). This court is not to
make factual findings or determine the credibility of the witnesses. Id. at 18. Rather,
this court and all reviewing courts from the first level of review through the final appeal
share a duty to determine whether the Review Commission’s decision is supported by
some competent, credible evidence. Id.; Tzangas, supra, at 696. The fact that
reasonable minds might reach different conclusions is not a basis for reversing the
Review Commission’s decision. Irvine, supra, at 18.
{¶40} In this case, Yowell, a maintenance repairman for the School Board, was
terminated because he used his cell phone, in this digital age in which we live, to take a
low resolution picture of the cafeteria following the February 2012 Chardon High School
13 shooting. Yowell took the photo after the victims had been removed from the cafeteria.
The photo was described as showing a black spot on the floor. Yowell showed the
photo to his nephew and a few others. However, Yowell never printed, published, or
circulated the picture.
{¶41} Yowell was never told that he could not take any pictures in the cafeteria.
Nothing in the record indicates the photo provided any personal or identifying
information as to any student. The picture was taken from outside the crime scene area
and from behind the police tape marking the crime scene. The photo, when displayed
on Yowell’s cell phone, was about one and a quarter inches by two inches. There is no
evidence that the photo was shocking or gruesome. In fact, the photo was never
introduced into evidence and is not in the record.
{¶42} Although Yowell was fired for his actions, another employee who also had
taken a photo was not. That employee had taken a picture from a short distance and at
a high resolution of a spent bullet he found at the crime scene. That employee showed
Yowell and others the photo he had taken. The School Board neither disciplined nor
fired that employee. This writer is both puzzled and disturbed by the School Board’s
disparate treatment involving these two employees.
{¶43} The School Board based its decision to fire Yowell on the grounds that he
violated policy (regarding the confidentiality of student information) and that he was
dishonest. This writer stresses, however, that there is no evidence in the record that
Yowell disclosed any confidential student information. As stated, no students were in
the picture and nothing identifiable to any particular student was contained in the photo.
Yowell did not violate any particular work rule, policy, or engage in any misconduct.
14 Also, there was no evidence that the photo, which was never published, caused any
harm to the school district or to any student.
{¶44} Because Yowell was terminated, he filed an application for unemployment
benefits. However, his application was disallowed. Yowell appealed and a hearing was
held before a hearing officer. After hearing all the evidence, the hearing officer
determined the School Board lacked just cause to terminate Yowell. The School Board
filed a request for review claiming that the hearing officer imposed the wrong standard.
However, the hearing officer correctly articulated the applicable just cause standard as,
“fault or misconduct attributable to the claimant.”
{¶45} After reviewing the entire record, the Review Commission affirmed the
hearing officer’s decision. Nevertheless, the School Board appealed to the trial court,
essentially asking it to disregard the Review Commission’s factual determination and
make its own factual determination. Without even looking at the photo, the trial court
second-guessed the hearing officer and reversed the Review Commission’s decision.
Yowell filed a timely appeal to this court, where the majority holds the trial court
committed no error.
{¶46} This writer agrees with appellant that competent, credible evidence
supports the Review Commission’s decision. The hearing officer found Yowell was not
guilty of any wrongdoing. The hearing officer also found that Yowell was fired without
just cause. The trial court went well beyond its limited role by disregarding the Review
Commission’s factual determinations and substituting its judgment for that of the Review
Commission. The trial court determined the photograph was inherently gruesome and
that it shocks the sensibilities of any reasonable person. However, the court made that
15 factual determination without ever seeing the photograph because it is not in the record!
Not only do the facts not show the violation of any policy, the trial court wrongfully
substituted its judgment for that of the Review Commission.
{¶47} For the foregoing reasons, I respectfully dissent.