[Cite as RLB, Inc. v. Byrd, 2016-Ohio-1181.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
RLB INC., d.b.a. BLUE ASH : APPEAL NO. C-150529 EDUCATIONAL BUILDING, TRIAL NO. A-1101393 : Plaintiff-Appellee, O P I N I O N. : vs. : JHARELL M. BYRD : and : DIRECTOR, OHIO DEPT. OF JOB AND FAMILY SERVICES, :
Defendants-Appellants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed
Date of Judgment Entry on Appeal: March 23, 2016
R.L. Kent Bucciere, for Plaintiff-Appellee,
Michael DeWine, Ohio Attorney General, and Robin A. Jarvis, Assistant Attorney General, for Defendant-Appellant Ohio Department of Job and Family Services.
Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} This is an appeal from a trial court’s judgment reversing a decision of the
Unemployment Compensation Review Commission. The commission had found that an
employee was not fired for just cause and was therefore entitled to collect
unemployment benefits. That decision was reversed by the Hamilton County Court of
Common Pleas. The question before us is whether the commission’s determination was
against the manifest weight of the evidence. We conclude that it was not. Therefore, we
reverse the judgment of the trial court and reinstate the commission’s decision.
I. Background
{¶2} From September 2009 through June 2010, Jharell Byrd was a teacher’s
aide at a preschool operated by RLB, Inc. On June 29, 2010, RLB fired her for failing to
perform her required duties—specifically, failing to clean her assigned room.
{¶3} Ms. Byrd filed a claim for unemployment compensation, which was
initially allowed and then, following an appeal by RLB, disallowed by the Ohio
Department of Job and Family Services (“ODJFS”). From there, Ms. Byrd appealed to
the Ohio Unemployment Compensation Review Commission (“the commission”).
{¶4} A hearing was held before a commission hearing officer. Ms. Byrd
acknowledged that cleaning her room—including sweeping and mopping the floor—was
part of her duties at the preschool. Until June 16, she had never been criticized for the
way she cleaned. On that day, she received a written warning on which she
acknowledged that she had not swept the “Woodpecker steps” and that failing to do so
was cause for termination. Ms. Byrd explained during the hearing that the “Woodpecker
steps” referred to in the warning were not on her cleaning checklist before June 16, but
2 OHIO FIRST DISTRICT COURT OF APPEALS
were added after the reprimand. According to Byrd, she did the cleaning that was
required by RLB and was told by other employees that her room looked clean enough.
{¶5} RLB did not attend the hearing, but did submit the affidavits of Mary
Lynne Shulok, the assistant director of the preschool, and Katy Haverland, who was
Byrd’s direct supervisor. According to Haverland’s affidavit, “[o]n numerous occasions
[she] had witnessed the fact that [Byrd] had not performed her job duties. Specifically,
[Byrd] failed to clean the room prior to closing the room in the evening.” Ms. Haverland
claimed she had discussed the matter with Byrd on two occasions. For her part, Ms.
Shulok stated that she had been told by Haverland that Byrd hadn’t cleaned, that she
had given Byrd verbal and written warnings, and that, despite the warnings, Byrd
“continued to refuse to perform her required job duties.” RLB also submitted the
written warnings—the June 16 warning and one from June 29—in which Byrd
acknowledged not completing her cleaning duties.
{¶6} Following the hearing, the hearing officer issued a decision reversing
ODJFS’s determination and allowing Byrd’s claim. The hearing officer reasoned that
Byrd “had testified credibly that she always completed every item on her cleaning
checklist before leaving the classroom at the end of the day.” He also found that RLB’s
allegations about Byrd neglecting her duties were unsupported. Thus, the hearing
officer concluded that Byrd had been terminated without just cause.
{¶7} When the commission denied RLB’s appeal of the hearing officer’s
decision, RLB filed an appeal in the common pleas court. After reviewing the file, the
magistrate reversed the commission’s decision, finding “that the manifest weight of the
evidence clearly demonstrates that [Byrd] failed on numerous occasions to complete the
daily closeout checklist” and that Byrd was terminated for cause for failing to perform
3 OHIO FIRST DISTRICT COURT OF APPEALS
her required job duties. The trial court overruled ODJFS’s objections and adopted the
magistrate’s decision.
II. The Commission’s Decision Wasn’t Against the Weight of the Evidence
{¶8} In its sole assignment of error, ODJFS asserts that the trial court erred
when it concluded that the commission’s decision that Byrd was terminated without just
cause was against the manifest weight of the evidence.1
{¶9} The unemployment compensation system provides benefits to workers
who are involuntarily unemployed. See R.C. Chapter 4141. But a worker is not eligible
for benefits if the “individual quit work without just cause or has been discharged for just
cause in connection with the individual’s work.” R.C. 4141.29(D)(2)(a). An employer
has just cause to terminate an employee where (1) the employee doesn’t perform
required work, (2) the employer’s expectations were made known at the time of hiring,
and (3) the expectations were reasonable and (4) did not change substantially since the
time of hiring. Tzangas, Plakas & Mannos v. Ohio Bur. Emp. Servs., 73 Ohio St.3d 694,
643 N.E.2d 1207 (1995), paragraph four of the syllabus. In this case, there is no question
that Byrd knew about RLB’s expectations with respect to cleaning and that those
expectations were reasonable. The issue is whether Byrd performed as required. The
hearing officer found that she did, and the commission upheld that determination. The
trial court, however, concluded that the finding was against the manifest weight of the
evidence.
{¶10} “We may reverse the commission’s decision of ‘just cause’ only if we
conclude that the decision was ‘unlawful, unreasonable, or against the manifest weight
of the evidence.’ ” Mason v. Admr., Ohio Bur. of Emp. Servs., 1st Dist. Hamilton No. C-
1 ODJFS’s assignment states that the court found the commission’s decision to be unlawful, unreasonable and against the manifest weight of the evidence, but it is clear from the magistrate’s decision and from ODJFS’s brief that the sole basis of the decision was the weight of the evidence.
4 OHIO FIRST DISTRICT COURT OF APPEALS
990573, 2000 Ohio App. LEXIS 1524 (Apr. 7, 2000), quoting Tzangas at paragraph one
of the syllabus. We are “not permitted to make factual findings or to determine the
credibility of witnesses,” but we must “determine whether the [commission’s] decision is
supported by the evidence in the record.” Tzangas at 696. Our review is not affected by
the trial court’s conclusions; both the appellate court and the common pleas court use
the same standard of review. Id. See Lutz v. Admr., Ohio Bur. Emp. Servs., 1st Dist.
Hamilton Nos. C-990162 and C-990228, 1999 Ohio App. LEXIS 5366 (Nov. 12, 1999).
{¶11} Here, the hearing officer did not clearly lose his way and create a
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[Cite as RLB, Inc. v. Byrd, 2016-Ohio-1181.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
RLB INC., d.b.a. BLUE ASH : APPEAL NO. C-150529 EDUCATIONAL BUILDING, TRIAL NO. A-1101393 : Plaintiff-Appellee, O P I N I O N. : vs. : JHARELL M. BYRD : and : DIRECTOR, OHIO DEPT. OF JOB AND FAMILY SERVICES, :
Defendants-Appellants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed
Date of Judgment Entry on Appeal: March 23, 2016
R.L. Kent Bucciere, for Plaintiff-Appellee,
Michael DeWine, Ohio Attorney General, and Robin A. Jarvis, Assistant Attorney General, for Defendant-Appellant Ohio Department of Job and Family Services.
Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} This is an appeal from a trial court’s judgment reversing a decision of the
Unemployment Compensation Review Commission. The commission had found that an
employee was not fired for just cause and was therefore entitled to collect
unemployment benefits. That decision was reversed by the Hamilton County Court of
Common Pleas. The question before us is whether the commission’s determination was
against the manifest weight of the evidence. We conclude that it was not. Therefore, we
reverse the judgment of the trial court and reinstate the commission’s decision.
I. Background
{¶2} From September 2009 through June 2010, Jharell Byrd was a teacher’s
aide at a preschool operated by RLB, Inc. On June 29, 2010, RLB fired her for failing to
perform her required duties—specifically, failing to clean her assigned room.
{¶3} Ms. Byrd filed a claim for unemployment compensation, which was
initially allowed and then, following an appeal by RLB, disallowed by the Ohio
Department of Job and Family Services (“ODJFS”). From there, Ms. Byrd appealed to
the Ohio Unemployment Compensation Review Commission (“the commission”).
{¶4} A hearing was held before a commission hearing officer. Ms. Byrd
acknowledged that cleaning her room—including sweeping and mopping the floor—was
part of her duties at the preschool. Until June 16, she had never been criticized for the
way she cleaned. On that day, she received a written warning on which she
acknowledged that she had not swept the “Woodpecker steps” and that failing to do so
was cause for termination. Ms. Byrd explained during the hearing that the “Woodpecker
steps” referred to in the warning were not on her cleaning checklist before June 16, but
2 OHIO FIRST DISTRICT COURT OF APPEALS
were added after the reprimand. According to Byrd, she did the cleaning that was
required by RLB and was told by other employees that her room looked clean enough.
{¶5} RLB did not attend the hearing, but did submit the affidavits of Mary
Lynne Shulok, the assistant director of the preschool, and Katy Haverland, who was
Byrd’s direct supervisor. According to Haverland’s affidavit, “[o]n numerous occasions
[she] had witnessed the fact that [Byrd] had not performed her job duties. Specifically,
[Byrd] failed to clean the room prior to closing the room in the evening.” Ms. Haverland
claimed she had discussed the matter with Byrd on two occasions. For her part, Ms.
Shulok stated that she had been told by Haverland that Byrd hadn’t cleaned, that she
had given Byrd verbal and written warnings, and that, despite the warnings, Byrd
“continued to refuse to perform her required job duties.” RLB also submitted the
written warnings—the June 16 warning and one from June 29—in which Byrd
acknowledged not completing her cleaning duties.
{¶6} Following the hearing, the hearing officer issued a decision reversing
ODJFS’s determination and allowing Byrd’s claim. The hearing officer reasoned that
Byrd “had testified credibly that she always completed every item on her cleaning
checklist before leaving the classroom at the end of the day.” He also found that RLB’s
allegations about Byrd neglecting her duties were unsupported. Thus, the hearing
officer concluded that Byrd had been terminated without just cause.
{¶7} When the commission denied RLB’s appeal of the hearing officer’s
decision, RLB filed an appeal in the common pleas court. After reviewing the file, the
magistrate reversed the commission’s decision, finding “that the manifest weight of the
evidence clearly demonstrates that [Byrd] failed on numerous occasions to complete the
daily closeout checklist” and that Byrd was terminated for cause for failing to perform
3 OHIO FIRST DISTRICT COURT OF APPEALS
her required job duties. The trial court overruled ODJFS’s objections and adopted the
magistrate’s decision.
II. The Commission’s Decision Wasn’t Against the Weight of the Evidence
{¶8} In its sole assignment of error, ODJFS asserts that the trial court erred
when it concluded that the commission’s decision that Byrd was terminated without just
cause was against the manifest weight of the evidence.1
{¶9} The unemployment compensation system provides benefits to workers
who are involuntarily unemployed. See R.C. Chapter 4141. But a worker is not eligible
for benefits if the “individual quit work without just cause or has been discharged for just
cause in connection with the individual’s work.” R.C. 4141.29(D)(2)(a). An employer
has just cause to terminate an employee where (1) the employee doesn’t perform
required work, (2) the employer’s expectations were made known at the time of hiring,
and (3) the expectations were reasonable and (4) did not change substantially since the
time of hiring. Tzangas, Plakas & Mannos v. Ohio Bur. Emp. Servs., 73 Ohio St.3d 694,
643 N.E.2d 1207 (1995), paragraph four of the syllabus. In this case, there is no question
that Byrd knew about RLB’s expectations with respect to cleaning and that those
expectations were reasonable. The issue is whether Byrd performed as required. The
hearing officer found that she did, and the commission upheld that determination. The
trial court, however, concluded that the finding was against the manifest weight of the
evidence.
{¶10} “We may reverse the commission’s decision of ‘just cause’ only if we
conclude that the decision was ‘unlawful, unreasonable, or against the manifest weight
of the evidence.’ ” Mason v. Admr., Ohio Bur. of Emp. Servs., 1st Dist. Hamilton No. C-
1 ODJFS’s assignment states that the court found the commission’s decision to be unlawful, unreasonable and against the manifest weight of the evidence, but it is clear from the magistrate’s decision and from ODJFS’s brief that the sole basis of the decision was the weight of the evidence.
4 OHIO FIRST DISTRICT COURT OF APPEALS
990573, 2000 Ohio App. LEXIS 1524 (Apr. 7, 2000), quoting Tzangas at paragraph one
of the syllabus. We are “not permitted to make factual findings or to determine the
credibility of witnesses,” but we must “determine whether the [commission’s] decision is
supported by the evidence in the record.” Tzangas at 696. Our review is not affected by
the trial court’s conclusions; both the appellate court and the common pleas court use
the same standard of review. Id. See Lutz v. Admr., Ohio Bur. Emp. Servs., 1st Dist.
Hamilton Nos. C-990162 and C-990228, 1999 Ohio App. LEXIS 5366 (Nov. 12, 1999).
{¶11} Here, the hearing officer did not clearly lose his way and create a
manifest miscarriage of justice. See Eastley v. Volkman, 132 Ohio St.3d 328, 333, 2012-
Ohio-2179, 972 N.E.2d 517, ¶ 17-21; State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d
541 (1997). Ms. Byrd testified that she had followed the cleaning checklist, including
sweeping and mopping floors, at the end of every day and had never refused to clean.
RLB argues that Byrd admitted to not performing her required work when she signed
the written warnings. But the hearing officer, when confronted with a conflict between
the testimony provided by Byrd and the affidavits and warnings submitted by RLB,
chose to believe Byrd’s testimony that she had done all that was required of her. It is
quite possible that another hearing officer may have seen it differently, but “the fact that
reasonable minds might reach different conclusions is not basis for the reversal of the
[hearing officer’s] decision.” Irvine v. Unemp. Comp. Bd. of Rev., 19 Ohio St.3d 15, 18,
482 N.E.2d 587 (1985). We conclude that the decision was not against the manifest
weight of the evidence, nor was it unlawful or unreasonable. The trial court erred in
reversing the decision. The assignment of error is sustained.
{¶12} We therefore reverse the judgment of the trial court and reinstate the
commission’s decision.
Judgment accordingly.
5 OHIO FIRST DISTRICT COURT OF APPEALS
H ENDON , P.J., and S TAUTBERG , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.