[Cite as Midwest Terminals of Toledo, Internatl., Inc. v. Dir., Ohio Dept. of Job & Family Servs., 2016-Ohio- 328.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Midwest Terminals of Toledo Court of Appeals No. L-15-1019 International, Inc. Trial Court No. CI0201402229 Appellant
v.
Director, Ohio Department of Job & Family Services, et al. DECISION AND JUDGMENT
Appellee Decided: January 29, 2016
*****
Ronald L. Mason and Aaron T. Tulencik, for appellant.
Mike DeWine, Ohio Attorney General, and Eric A. Baum, Managing Attorney, for appellee.
JENSEN, P.J.
I. Introduction
{¶ 1} In this appeal, appellant Midwest Terminals of Toledo International, Inc.
seeks reversal of a decision by the Lucas County Court of Common Pleas. The lower court affirmed the Unemployment Compensation Review Commission’s finding that
appellant’s termination of the claimant, Otis K. Brown, was without just cause and
therefore that claimant was entitled to unemployment compensation benefits.
{¶ 2} For the reasons that follow, we affirm.
II. Facts and Procedural History
{¶ 3} Appellant operates a full-service port at the mouth of the Maumee River in
Lucas County, Ohio. Claimant worked for appellant as a skilled laborer from October of
2001 until October 1, 2013. On that day, appellant terminated claimant for violating the
company’s equipment abuse and misuse policy.
{¶ 4} Appellant alleged that claimant, while driving an end loader, “improperly
and, most likely purposefully, rode the brakes throughout his 12 hour shift.” Appellant’s
equipment abuse and misuse policy provides for immediate termination in the event an
employee causes damage exceeding $500. In this case, the cost to repair the end loader
exceeded $24,000.
{¶ 5} Claimant filed for unemployment benefits, and a hearing was held before a
UCRC hearing officer on February 3, 2014. Three witnesses testified at the hearing: the
director of operations and the human resources director, both of whom testified for
appellant, and the claimant.
III. The UCRC Decision
{¶ 6} In awarding unemployment compensation benefits to claimant, the UCRC
found,
2. The claimant provided the more credible firsthand, sworn testimony
in which he denies riding the brakes, denies engaging the parking brake for
an extended period of time, and denies causing damage to the brakes at all.
He testified credibly that, as soon as he saw the warning light at the end of
his shift, he reported it to his supervisor and took the equipment to the shop,
as instructed. The Hearing Officer finds that there is insufficient evidence
in the record to demonstrate fault or wrongdoing by the claimant that
justified his discharge. It is held that claimant was discharged by
[appellant] without just cause in connection with work.
{¶ 7} Pursuant to R.C. 4141.282, appellant appealed the UCRC’s decision into the
Lucas County Court of Common Pleas. On December 31, 2014, the lower court affirmed
the administrative decision to award claimant unemployment compensation.
{¶ 8} Appellant filed a notice of appeal on January 27, 2015. Appellee, the Ohio
Department of Job and Family Services (“ODJFS”), filed a brief in support of the lower
court’s decision.1 Claimant did not file a brief, or otherwise participate in the appeal.
1 In its brief, the ODJFS refers to its own “counter-assignment of error.” It did not, however, file a notice of cross-appeal, nor does it urge anything other than affirmance of the lower court’s decision. Therefore, we treat the agency’s “counter-assignment of error” as arguments in support of the UCRC decision.
3. IV. Appellant’s Assignment of Error
The underlying administrative decision is unlawful, unreasonable
and/or against the manifest weight of the evidence because the record
evidence establishes that Mr. Brown was discharged for just cause.
V. Law and Analysis
{¶ 9} As a reviewing court, we may only reverse the UCRC if its decision is
unlawful, unreasonable, or against the manifest weight of the evidence. Tzangas, Plakas
& Mannos v. Ohio Bur. of Emp. Servs., 73 Ohio St.3d 694, 653 N.E.2d 1207 (1995),
paragraph one of the syllabus. Moreover, the UCRC is vested with the sole authority to
make factual findings and determine the credibility of witnesses. Neither the lower court
nor this court is permitted to weigh the evidence or substitute our judgment for the
UCRC. Elliott v. Bedsole Transp., Inc., 6th Dist. Lucas No. L-11-1004, 2011-Ohio-3232,
¶ 12-13, citing Simon v. Lake Geauga Printing Co., 69 Ohio St.2d 41, 45, 430 N.E.2d
468 (1982). Rather, our role is limited to determining whether the UCRC’s decision is
supported by the evidence in the record. Tzangas at 696. The same standard of review is
shared by all reviewing courts, from the common pleas court through the Ohio Supreme
Court. Id. R.C. 4141.282(H).
{¶ 10} Pursuant to R.C. 4141.29(D)(2)(a), no individual may receive benefits if
that individual “has been discharged for just cause in connection with the individual’s
work.” The Ohio Supreme Court defined “just cause” as “that which, to an ordinarily
intelligent person, is a justifiable reason for doing or not doing a particular act.” Irvine v.
4. State of Ohio Unemp. Comp. Bd. of Rev., 19 Ohio St.3d 15, 17, 482 N.E.2d 587 (1985).
“Fault on behalf of the employee remains an essential component of a just cause
termination.” Tzangas at 698. Thus, the issue before us focuses on whether appellant’s
decision to terminate claimant was justified under such a standard.
{¶ 11} In support of its argument that the UCRC’s decision was unlawful,
unreasonable and against the manifest weight of the evidence, appellant complains that
the hearing officer disregarded evidence that claimant was “riding the brakes” and
“instead only focused on” evidence pertaining to claimant’s alleged misuse of an
emergency brake.
{¶ 12} We disagree. Nearly all of the evidence in the record indicates that
appellant terminated claimant for “riding the brakes,” meaning that he operated the end
loader in gear, while simultaneously using the brakes. The director of operations testified
to this effect; a memo from appellant to claimant’s union states as much; and a transcript
from a meeting two days after claimant’s termination indicates that he was fired for
“[r]iding the brakes.”
{¶ 13} One document in the file states that claimant misused “the parking brake of
the [end loader] at some point for an extended period of time * * *.” However, all sides
seem to agree that this reference to a parking brake was made in error. Indeed, claimant
and the operations manager both testified at hearing that when the parking brake was
engaged, the end loader was immovable. In other words, operating the end loader while
the parking brake was engaged—intentionally or otherwise—was simply not possible.
5. Thus, appellant did not allege, and did not terminate claimant for, misusing the parking
brake. Further, we do not read the UCRC opinion as saying otherwise. Instead, the
hearing officer merely noted that the employer’s witness “denied” that claimant misused
the parking brake.
{¶ 14} Moreover, it is simply incorrect to say that the hearing officer “only
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[Cite as Midwest Terminals of Toledo, Internatl., Inc. v. Dir., Ohio Dept. of Job & Family Servs., 2016-Ohio- 328.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Midwest Terminals of Toledo Court of Appeals No. L-15-1019 International, Inc. Trial Court No. CI0201402229 Appellant
v.
Director, Ohio Department of Job & Family Services, et al. DECISION AND JUDGMENT
Appellee Decided: January 29, 2016
*****
Ronald L. Mason and Aaron T. Tulencik, for appellant.
Mike DeWine, Ohio Attorney General, and Eric A. Baum, Managing Attorney, for appellee.
JENSEN, P.J.
I. Introduction
{¶ 1} In this appeal, appellant Midwest Terminals of Toledo International, Inc.
seeks reversal of a decision by the Lucas County Court of Common Pleas. The lower court affirmed the Unemployment Compensation Review Commission’s finding that
appellant’s termination of the claimant, Otis K. Brown, was without just cause and
therefore that claimant was entitled to unemployment compensation benefits.
{¶ 2} For the reasons that follow, we affirm.
II. Facts and Procedural History
{¶ 3} Appellant operates a full-service port at the mouth of the Maumee River in
Lucas County, Ohio. Claimant worked for appellant as a skilled laborer from October of
2001 until October 1, 2013. On that day, appellant terminated claimant for violating the
company’s equipment abuse and misuse policy.
{¶ 4} Appellant alleged that claimant, while driving an end loader, “improperly
and, most likely purposefully, rode the brakes throughout his 12 hour shift.” Appellant’s
equipment abuse and misuse policy provides for immediate termination in the event an
employee causes damage exceeding $500. In this case, the cost to repair the end loader
exceeded $24,000.
{¶ 5} Claimant filed for unemployment benefits, and a hearing was held before a
UCRC hearing officer on February 3, 2014. Three witnesses testified at the hearing: the
director of operations and the human resources director, both of whom testified for
appellant, and the claimant.
III. The UCRC Decision
{¶ 6} In awarding unemployment compensation benefits to claimant, the UCRC
found,
2. The claimant provided the more credible firsthand, sworn testimony
in which he denies riding the brakes, denies engaging the parking brake for
an extended period of time, and denies causing damage to the brakes at all.
He testified credibly that, as soon as he saw the warning light at the end of
his shift, he reported it to his supervisor and took the equipment to the shop,
as instructed. The Hearing Officer finds that there is insufficient evidence
in the record to demonstrate fault or wrongdoing by the claimant that
justified his discharge. It is held that claimant was discharged by
[appellant] without just cause in connection with work.
{¶ 7} Pursuant to R.C. 4141.282, appellant appealed the UCRC’s decision into the
Lucas County Court of Common Pleas. On December 31, 2014, the lower court affirmed
the administrative decision to award claimant unemployment compensation.
{¶ 8} Appellant filed a notice of appeal on January 27, 2015. Appellee, the Ohio
Department of Job and Family Services (“ODJFS”), filed a brief in support of the lower
court’s decision.1 Claimant did not file a brief, or otherwise participate in the appeal.
1 In its brief, the ODJFS refers to its own “counter-assignment of error.” It did not, however, file a notice of cross-appeal, nor does it urge anything other than affirmance of the lower court’s decision. Therefore, we treat the agency’s “counter-assignment of error” as arguments in support of the UCRC decision.
3. IV. Appellant’s Assignment of Error
The underlying administrative decision is unlawful, unreasonable
and/or against the manifest weight of the evidence because the record
evidence establishes that Mr. Brown was discharged for just cause.
V. Law and Analysis
{¶ 9} As a reviewing court, we may only reverse the UCRC if its decision is
unlawful, unreasonable, or against the manifest weight of the evidence. Tzangas, Plakas
& Mannos v. Ohio Bur. of Emp. Servs., 73 Ohio St.3d 694, 653 N.E.2d 1207 (1995),
paragraph one of the syllabus. Moreover, the UCRC is vested with the sole authority to
make factual findings and determine the credibility of witnesses. Neither the lower court
nor this court is permitted to weigh the evidence or substitute our judgment for the
UCRC. Elliott v. Bedsole Transp., Inc., 6th Dist. Lucas No. L-11-1004, 2011-Ohio-3232,
¶ 12-13, citing Simon v. Lake Geauga Printing Co., 69 Ohio St.2d 41, 45, 430 N.E.2d
468 (1982). Rather, our role is limited to determining whether the UCRC’s decision is
supported by the evidence in the record. Tzangas at 696. The same standard of review is
shared by all reviewing courts, from the common pleas court through the Ohio Supreme
Court. Id. R.C. 4141.282(H).
{¶ 10} Pursuant to R.C. 4141.29(D)(2)(a), no individual may receive benefits if
that individual “has been discharged for just cause in connection with the individual’s
work.” The Ohio Supreme Court defined “just cause” as “that which, to an ordinarily
intelligent person, is a justifiable reason for doing or not doing a particular act.” Irvine v.
4. State of Ohio Unemp. Comp. Bd. of Rev., 19 Ohio St.3d 15, 17, 482 N.E.2d 587 (1985).
“Fault on behalf of the employee remains an essential component of a just cause
termination.” Tzangas at 698. Thus, the issue before us focuses on whether appellant’s
decision to terminate claimant was justified under such a standard.
{¶ 11} In support of its argument that the UCRC’s decision was unlawful,
unreasonable and against the manifest weight of the evidence, appellant complains that
the hearing officer disregarded evidence that claimant was “riding the brakes” and
“instead only focused on” evidence pertaining to claimant’s alleged misuse of an
emergency brake.
{¶ 12} We disagree. Nearly all of the evidence in the record indicates that
appellant terminated claimant for “riding the brakes,” meaning that he operated the end
loader in gear, while simultaneously using the brakes. The director of operations testified
to this effect; a memo from appellant to claimant’s union states as much; and a transcript
from a meeting two days after claimant’s termination indicates that he was fired for
“[r]iding the brakes.”
{¶ 13} One document in the file states that claimant misused “the parking brake of
the [end loader] at some point for an extended period of time * * *.” However, all sides
seem to agree that this reference to a parking brake was made in error. Indeed, claimant
and the operations manager both testified at hearing that when the parking brake was
engaged, the end loader was immovable. In other words, operating the end loader while
the parking brake was engaged—intentionally or otherwise—was simply not possible.
5. Thus, appellant did not allege, and did not terminate claimant for, misusing the parking
brake. Further, we do not read the UCRC opinion as saying otherwise. Instead, the
hearing officer merely noted that the employer’s witness “denied” that claimant misused
the parking brake.
{¶ 14} Moreover, it is simply incorrect to say that the hearing officer “only
focused on” the parking brake. The crux of this case is the UCRC’s conclusion that
claimant “provided the more credible firsthand, sworn testimony” that appellant did not
damage the brakes, whether by riding the brakes or misusing the parking brake.
Likewise, the hearing officer favored claimant’s testimony over appellant’s that “as soon
as [claimant] saw the warning light at the end of his shift, he reported it to his
supervisor.” Appellant had alleged that claimant failed to report the warning light “until
the end of his shift.”
{¶ 15} Finally, appellant complains that the hearing officer “failed to give the
proper weight” to a work order prepared by a service technician who repaired the brakes.
The work order indicates that, on the day of the incident, the brakes were dangerously hot
and the “the [p]roblem was due to operator not using machine properly.” This evidence
was introduced at hearing, but the service technician was not called as a witness. We will
not disrupt the hearing officer’s decision to accord more weight to claimant’s live
testimony over the appellant’s hearsay evidence.
{¶ 16} We have reviewed the record. Like the trial court, we find that the
UCRC’s conclusion that claimant was terminated from his employment without just
6. cause was supported by competent, credible evidence and was not against the weight of
the evidence. As such, the decision must be affirmed. Appellant’s assignment of error is
not well-taken.
{¶ 17} The judgment of the Lucas County Court of Common Pleas is affirmed.
Costs of this appeal are assessed to appellant pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. _______________________________ JUDGE Stephen A. Yarbrough, J. _______________________________ James D. Jensen, P.J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.
7.