[Cite as Marano v. Duramax Marine L.L.C., 2011-Ohio-6147.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JOHN MARANO, : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellant, : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
v. :
: Case No. 2011CA00081
DURAMAX MARINE, L.L.C., et al., :
:
:
Defendants-Appellees. : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2010CV04446
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: November 21, 2011
APPEARANCES:
For Appellant: For Appellees:
DAVID A. VAN GAASBEEK WM. MICHAEL HANNA
1303 W. Maple St. KATHLEEN M. PORTMAN
Suite 104 127 Public Square
North Canton, OH 44720 4900 Key Tower
Cleveland, OH 44114
SUSAN SHEFFIELD
Assistant Attorney General
20 W. Federal St., 3rd Floor
Youngstown, OH 44503
[Cite as Marano v. Duramax Marine L.L.C., 2011-Ohio-6147.]
Delaney, J.
{¶ 1} Plaintiff-Appellant John Marano appeals the April 1, 2011 judgment entry
of the Stark County Court of Common Pleas affirming the decision of the Ohio
Department of Job and Family Services which found Appellant was terminated from his
employment for just cause and was not eligible for unemployment benefits.
STATEMENT OF THE FACTS AND CASE
{¶ 2} Appellant was hired by Defendant-Appellee Duramax Marine, L.L.C. on
March 5, 2001 as a Facilities Engineer and Manager, a salaried position. Duramax
provided all employees with an employee handbook. Appellant received and signed a
declaration acknowledging he read and understood the provisions in the handbook.
{¶ 3} Section II.11 of the employee handbook regulates the use of company
property. It states in pertinent part:
{¶ 4} “Telephones, voice mail, fax machines, computer software, E-mail, and
other related systems are available for use by company employees solely for job-related
purposes unless your Manager specifically gives approval. All of these resources and
the information contained in them are property of the company. The company reserves
the right to monitor, retrieve, recreate, and review any information contained in them.
Consequently[,] any employee using these resources understands that they have no
expectation or right to privacy in their information. Use of these systems constitutes
consent to monitoring for these purposes. Any employee who improperly uses these
resources is subject to discipline up to and including termination of employment.”
{¶ 5} Prior to October 2009, Duramax had no specific policy as to internet
access through computer workstations. Two employees were disciplined for
Stark County, Case No. 2011CA00081 3
downloading music and visiting a gaming website that contained viruses. The
employees were reprimanded and a letter placed in their personnel file.
{¶ 6} Due to these infractions, in October 2009 Duramax installed a proxy
server on its computer network system to reduce excessive bandwidth usage and to
prevent anyone from going to destructive websites. Duramax sent its employees,
including Appellant, notification of the company’s use of the proxy server. The
notification stated, “all desktop users will be blocked from websites that have been
deemed to be infected and websites that fit the category called destructive. This
category includes criminal activity, hacking, illegal drugs, intolerant and hate sites,
phishing and fraud, tasteless and offensive, terrorism, violence, weapons, spam, porn,
peer to peer, spyware, gambling, and others like these.”
{¶ 7} Shortly after the proxy server was installed, the IT Manager received an
alert that an employee was continuously trying to access websites containing
pornography. An investigation determined it was Appellant’s computer station. The IT
Manager downloaded Appellant’s internet history and found multiple instances of
pornography websites accessed during work hours. The IT Manager discovered
numerous pornographic pictures downloaded onto Appellant’s computer.
{¶ 8} After the proxy server was installed, the IT Manager did not observe
further violations of the internet policy with the exception of Appellant’s computer usage.
{¶ 9} On October 23, 2009, the HR Director approached Appellant about the
misuse of the company computer. The HR Director presented Appellant with
pornographic images found on Appellant’s computer. Appellant admitted he recognized
a picture and accessed pornography on the company computer. Appellant’s computer
Stark County, Case No. 2011CA00081 4
was password protected and Appellant did not allege misuse of his password or that he
had given another employee his password. Based on Appellant’s inappropriate use of
his computer to access pornographic websites during work hours, Duramax terminated
Appellant’s employment pursuant to Section II.11 of the employee handbook.
{¶ 10} Appellant filed an Application for Determination of Benefit Rights on
October 27, 2009. Defendant-Appellee, the Ohio Department of Job and Family
Services issued an initial determination disallowing unemployment benefits on
December 3, 2009. Appellant filed an untimely appeal and after subsequent appeals on
the issue of timeliness, the Unemployment Compensation Review Commission heard
the appeal of the denial of benefits on October 26, 2010.
{¶ 11} The Hearing Officer affirmed the initial determination of December 3, 2009
to find that Duramax terminated Appellant’s employment for just cause in connection
with work; therefore, Appellant was not eligible for unemployment benefits. Appellant
appealed the decision to the Stark County Court of Common Pleas.
{¶ 12} On March 14, 2011, the trial court entered a judgment entry affirming the
decision of the Unemployment Compensation Review Commission. The trial court
issued a judgment entry on April 1, 2011 in accordance with Local Rule 18.01(A)
affirming the decision of the Unemployment Compensation Review Commission. It is
from this decision Appellant now appeals.
{¶ 13} Appellant raises one Assignment of Error:
{¶ 14} “THE COMMON PLEAS COURT ERRED AND ITS DECISION SHOULD
BE REVERSED BECAUSE THE REASONING OF THE DECISION IS
Stark County, Case No. 2011CA00081 5
UNREASONABLE, UNLAWFUL, AND AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.”
STANDARD OF REVIEW
{¶ 15} An appellate court's standard of review in unemployment compensation
cases is limited. An appellate court may reverse a board's decision only if the decision
is unlawful, unreasonable, or against the manifest weight of the evidence. See,
Tzangas, Plakas & Mannos v. Administrator, Ohio Bureau of Employment Services, 73
Ohio St.3d 694, 696, 1995-Ohio-206, 653 N.E.2d 1207, citing Irvine v. Unemp. Comp.
Bd. Of Review (1985), 19 Ohio St.3d 15, 17-18, 482 N.E.2d 587. An appellate court
may not make factual findings or determine the credibility of the witnesses, but rather, is
required to make a determination as to whether the board's decision is supported by
evidence on the record. Id. The hearing officer is in the best position to judge the
credibility of the witnesses as the fact finder. Shaffer-Goggin v. Unemployment
Compensation Review Commission, Richland App. No. 03-CA-2, 2003-Ohio-6907,
citing, Hall v. American Brake Shoe Co. (1968), 13 Ohio St.2d 11, 233 N.E.2d 582;
Brown-Brockmeyer Co. v. Roach, (1947), 148 Ohio St. 511, 76 N.E.2d 79.
{¶ 16} A reviewing court is not permitted to make factual findings, determine the
credibility of witnesses, or substitute its judgment for that of the commission; where the
commission might reasonably decide either way, the courts have no authority to upset
the commission's decision. Irvine, supra at 17–18. “ ‘Every reasonable presumption
must be made in favor of the [decision] and the findings of facts [of the Review
Commission].’ “ Ro–Mai Industries, Inc. v. Weinberg, 176 Ohio App.3d 151, 2008-Ohio-
Stark County, Case No. 2011CA00081 6
301, 891 N.E.2d 348 at ¶ 7, quoting Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 19,
526 N.E.2d 1350.
I.
{¶ 17} 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:
{¶ 18} “* * *
{¶ 19} “(D)* * * [N]o individual may * * * be paid benefits * * *:
{¶ 20} “(2) For the duration of the individual's unemployment if the director finds
that:
{¶ 21} “(a) The individual quit his work without just cause or has been discharged
for just cause in connection with the individual's work, * * *.”
{¶ 22} 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. The determination of whether just cause
exists for an employee's dismissal under R.C. 4141.29 is based upon whether there
was some fault on the part of the employee that led to the dismissal. Tzangas, supra at
paragraph two of the syllabus. Furthermore, 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. (1985), 21
Ohio App.3d 168, 169, 486 N.E.2d 1233, quoting Stephens v. Bd. of Rev., Cuyahoga
App. No. 41369, 1980 WL 355009. See, also, Binger v. Whirlpool Corp. (1996), 110
Ohio App.3d 583, 590, 674 N.E.2d 1232.
Stark County, Case No. 2011CA00081 7
{¶ 23} Appellant argues Duramax was without just cause to discharge him from
his employment because he was not the only employee to engage in inappropriate
usage of the company’s internet. Appellant refers to the two employees who
downloaded computer viruses to the company’s computer network, but Duramax did not
dismiss the employees. Appellant states that his actions in viewing pornographic
websites during work hours cannot demonstrate “an unreasonable disregard for the
employer’s best interests” when Duramax failed to dismiss the other employees for their
inappropriate internet usage.
{¶ 24} Appellant’s argument raises the issue of fault, an essential component of
a just cause termination for purposes of unemployment compensation eligibility.
Tzangas, supra. “The [Unemployment Compensation] Act exists ‘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 at 17, 19 OBR at 14,
482 N.E.2d at 589, citing Leach v. Republic Steel Corp. (1964), 176 Ohio St. 221, 223,
27 O.O.2d 122, 123, 199 N.E.2d 3, 5. ‘The [A]ct 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.’ Irvine at 17,
19 OBR at 14, 482 N.E.2d at 589, citing Salzl v. Gibson Greeting Cards (1980), 61 Ohio
St.2d 35, 39, 15 O.O.3d 49, 52, 399 N.E.2d 76, 79.” Id. “The [Unemployment
Compensation] 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 instead directly responsible for
Stark County, Case No. 2011CA00081 8
his own predicament. Fault on the employee’s part separates him from the Act’s intent
and the Act’s protection.” Id.
{¶ 25} “A just cause determination requires an analysis of the employee’s fault in
the situation leading for his termination.” Autozone, Inc. v. Herring, Summit App. No.
22824, 2006-Ohio-1039. Appellant argues that in this case, he could not have been at
fault when other employees inappropriately used the company’s internet and their
actions did not result in termination. The Act does not utilize a comparative fault
analysis in determining just cause. “Under the Unemployment Compensation Act, just
cause is predicated on the individual employee’s fault – not the employee’s fault as
compared to another employee’s fault.” Id. “Nowhere in our precedent or that of the
Ohio Supreme Court is it indicated that an employee is unjustly terminated simply
because his conduct is less egregious than another employee’s.” Id.
{¶ 26} Accordingly, the Unemployment Compensation Board of Review and the
reviewing courts must only consider Appellant’s fault in the situation leading to his
termination to determine whether Duramax had just cause for Appellant’s termination.
The Hearing Commissioner cannot engage in a comparison of other employees’
behaviors to determine if Appellant was at fault.
{¶ 27} Appellant next argues the evidence presented by Duramax at the
administrative hearing was insufficient to substantiate its claims that Appellant viewed
multiple pornographic website. Duramax’s HR Director testified at the administrative
hearing as to the pornographic websites allegedly visited by Appellant, but did not
provide any documentary evidence of those websites. Appellant states that without the
documentary evidence, Duramax could not show just cause.
Stark County, Case No. 2011CA00081 9
{¶ 28} Appellant has the burden of proving his entitlement to unemployment
compensation benefits. Irvine, supra, at 17. To show he is entitled to unemployment
compensation, the employee must provide evidence that his discharge was without just
cause by demonstrating he was without fault in the incident resulting in his termination.
Westphal v. Cracker Barrell Old Country Store, Inc., Lorain App. No. 09CA009602,
2010-Ohio-190, ¶12.
{¶ 29} The Ohio Revised Code establishes the evidentiary requirements at
Unemployment Compensation Review Commission hearings. R.C 4141.281(C)(2)
states in pertinent part:
{¶ 30} “The principles of due process in administrative hearings shall be applied
to all hearings conducted under the authority of the commission. In conducting
hearings, all hearing officers shall control the conduct of the hearing, exclude irrelevant
or cumulative evidence, and give weight to the kind of evidence on which reasonably
prudent persons are accustomed to rely in the conduct of serious affairs. Hearing
officers have an affirmative duty to question parties and witnesses in order to ascertain
the relevant facts and to fully and fairly develop the record. Hearing officers are not
bound by common law or statutory rules of evidence or by technical or formal rules of
procedure. No person shall impose upon the claimant or the employer any burden of
proof as is required in a court of law.”
{¶ 31} The Ohio Administrative Code also regulates hearings before the
Unemployment Compensation Review Commission. O.A.C. 4146-7-02 states:
{¶ 32} “(C) Rights of parties
Stark County, Case No. 2011CA00081 10
{¶ 33} “The review commission or hearing officer conducting a proceeding may
examine the interested parties and other witnesses, and each interested party and the
interested party's representative shall have all rights of fair hearing, including:
{¶ 34} “(1) The right of examination and cross-examination of witnesses,
{¶ 35} “(2) The right to present testimony and other evidence,
{¶ 36} “(3) The right to inspect and examine documents, files, reports and
records received in evidence,
{¶ 37} “(4) The right to present testimony and other evidence in explanation and
rebuttal,
{¶ 38} “(5) The right to subpoenas for witnesses and documentary evidence and
the right to present argument.”
{¶ 39} Finally, the Hearing Officer is the ultimate fact finder in an unemployment
compensation review hearing and a reviewing court may not substitute its own findings
of fact. It is the Hearing Officer’s duty to determine the credibility of the witnesses. In
this case, the Hearing Officer found Duramax to be more credible than Appellant. The
Hearing Officer determined Appellant was at fault “for visiting inappropriate internet
websites using his company computer on company time. * * * [Appellant’s] actions were
not those an employer could reasonably expect from an employee.” (Unemployment
Compensation Review Commission Decision, Nov. 10, 2010).
{¶ 40} Our review of the transcript shows the Hearing Officer’s decision was
lawful, reasonable, and supported by sufficient and credible evidence. After Duramax
installed the proxy server, it sent notices to its employees that websites containing
pornography were considered destructive and would be blocked. Duramax’s HR
Stark County, Case No. 2011CA00081 11
Director testified they discovered Appellant viewed numerous pornographic websites
during working hours. Appellant admitted that he viewed pornographic websites on the
company computer during working hours. The employee handbook states that an
employee who improperly uses the company computer is subject to discipline up to and
including termination of employment.
{¶ 41} Appellant’s sole Assignment of Error is overruled.
The judgment of the Stark County Court of Common Pleas is affirmed.
By: Delaney, J.
Hoffman, P.J., and Wise, J., concur.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. JOHN W. WISE
[Cite as Marano v. Duramax Marine L.L.C., 2011-Ohio-6147.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JOHN MARANO, :
:
:
Plaintiff-Appellan,t :
:
-vs- : JUDGMENT ENTRY
:
DURAMAX MARINE, L.L.C., et al., :
:
: Case No. 2011CA000081
Defendants-Appellees. :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. JOHN W. WISE