[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
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[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