Maldonado v. Ohio Dept. of Jobs & Family Servs.

[Cite as Maldonado v. Ohio Dept. of Jobs & Family Servs., 2012-Ohio-4555.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT

IVAN MALDONADO ) CASE NO. 10 MA 190
)
APPELLANT )
)
VS. ) OPINION
)
DIRECTOR, OHIO DEPARTMENT OF )
JOB AND FAMILY SERVICES, et al. )
)
APPELLEES )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Mahoning County, Ohio
Case No. 10 CV 397

JUDGMENT: Affirmed.

APPEARANCES:
For Appellant: Atty. Ira J. Mirkin
Atty. Charles Oldfield
Green, Haines, Sgambati Co., LPA
16 Wick Avenue, Suite 400
P.O. Box 849
Youngstown, Ohio 44501-0849

For Appellee, Director, ODJFS: Atty. Mike DeWine
Attorney General of Ohio
Atty. Susan M. Sheffield
Assistant Ohio Attorney General
20 West Federal Street, 3rd Floor
Youngstown, Ohio 44503

Special Counsel For Appellee, YSU: Atty. George S. Crisci
Zashin & Rich Co., LPA
55 Public Square, 4th Floor
Cleveland, Ohio 44113

JUDGES:
Hon. Cheryl L. Waite
Hon. Cynthia Rice, of the Eleventh District Court of Appeals, sitting by assignment.
Hon. Mary Jane Trapp, of the Eleventh District Court of Appeals, sitting by
assignment.
Dated: September 28, 2012
[Cite as Maldonado v. Ohio Dept. of Jobs & Family Servs., 2012-Ohio-4555.]
WAITE, P.J.

Summary

{¶1} Appellant Ivan Maldonado was a payroll specialist at Youngstown State

University and president of one of its unions. As union president he was party to a

letter of agreement that secured employment for the outgoing union president without

complying with the advertising requirements of the collective bargaining agreement.

Although this agreement was intended to be kept secret, it was released and was

circulating among the members of the bargaining unit. When Appellant learned who

was circulating the agreement, he called her and told her that continuing to circulate

the document would be “bad for her health.” When another member of the unit called

to ask him about the contents of the letter, Appellant announced his intention to slice

the throats of the three people he thought originally circulated the letter of agreement.

As the conversation continued, Appellant referred to other female employees by

using extremely crude and derogatory language. Both incidents were reported to the

campus police. Appellant was placed on administrative leave. The matter was

investigated and a disciplinary hearing was held. In addition to the more recent

incidents, a prior incident was introduced at hearing where Appellant, whose position

was being audited for a pay increase, threatened the woman conducting the audit

that if she did not quickly approve the increase it would make him very angry and she

did not want him to get angry. During Appellant’s administrative leave various

incidents of mistake, intentional omission and/or inaccuracy were discovered in his

work. After the disciplinary hearing, Appellant was terminated for making threats

against other employees, the use of lewd or indecent language and nonperformance
 -2-

of duties. Appellant applied for unemployment benefits and was denied. Appellant

appealed the denial of benefits, which was affirmed twice at the administrative level

and again in the trial court. Appellant now appeals the trial court’s judgment

confirming the review commission’s decision to deny his unemployment benefits.

Appellant’s single assignment of error, that the trial court erred in affirming the denial

of benefits, is without merit and is overruled.

Factual and Procedural History

{¶2} Appellant, Ivan Maldonado, was employed by Appellee, Youngstown

State University (“YSU”), from 1989 until his discharge on July 6, 2009. At the time of

separation he was employed as a payroll specialist II and also served as the

president of the Association of Classified Employees at YSU, which is the union

representing approximately 400 of the university’s eligible, non-supervisory, classified

employees.

{¶3} In 2007 Appellant, then an administrative assistant, requested that his

position and responsibilities be audited for reclassification as a level II administrative

assistant. If the audit resulted in reclassification, Appellant would be awarded an

increase in pay. Carol Trube was the internal auditor assigned to evaluate

Appellant’s position. Appellant contacted Ms. Trube prior to the deadline for

completion of the audit and demanded that the audit of his position be completed

within two weeks and that the increase in pay be approved. Appellant warned Ms.

Trube that if she failed to reclassify him, it would make him very angry, and she

“[would] not want to make him very angry.” (11/9/09 Review Commission Hearing, p.

8.) He said he would begin by making a series of public records requests, but that

the requests would only be the first step in a series of unpleasant actions. Ms. Trube
 -3-

was so shaken by the incident that she reported it to her supervisor, who suggested

that she report it to campus police. She asked for more time to consider whether to

inform the police, but instead proceeded to write two memos, one to her supervisor

and one to human resources, requesting that she be removed from Appellant’s audit

and that an outside firm be brought in to complete the process. Ms. Trube was not

removed from the audit, completed it on time, and recommended approval of the

reclassification. Appellant was verbally reprimanded for his conduct but, by

agreement, no notice of the reprimand was included in his disciplinary file.

{¶4} In late 2008 or early 2009 Appellant, in his capacity as president of the

union, negotiated a letter of agreement with YSU which allowed the outgoing union

president to be hired to a university position without first advertising the position.

This agreement was in violation of the terms of the collective bargaining agreement,

and the parties to the letter of agreement apparently agreed to destroy their copies.

Despite attempts to conceal the agreement, copies of which were required to be

provided to YSU’s governing board, the letter was released and was being circulated

among the bargaining unit in early March of 2009. Appellant believed that Kay

Helschel was responsible for circulating the letter, although another party would have

had to release it to her. Appellant called Ms. Helschel, in the presence of the former

president who had been hired as a result of the agreement, and told her that

circulating the letter would be “bad for her health.” (11/9/09 Review Commission

Hearing, pp. 39-41.) Ms. Helschel reported the threat to campus police.

{¶5} On March 11, 2009, Charlene Yusko, a union member, telephoned

Appellant to ask him about the letter of agreement that was being circulated. During

the conversation, Appellant identified by name the people he believed were
 -4-

responsible for releasing the letter and said he would “slice their fucking throats.”

(11/9/09 Review Commission Hearing, p. 21.) He then referred to two other

employees, both women, as a “cunt bitch” and a “dried up old bitch.” (11/9/09

Review Commission Hearing, p. 22.) It is unclear why these comments were made;

the two women do not seem to be connected to any of the people Appellant blamed

for releasing and circulating the letter of agreement. Ms. Yusko was shocked by

Appellant’s threat to slice the throats of those he blamed for the letter, and began to

take notes of the conversation. She made a note of Appellant’s threats and the

profane statements as well as where she was told to direct a public records request

to get the information surrounding the letter of agreement. Others working near her

could hear Appellant shouting through the phone, but could not make out specific

words and were told the contents of the conversation by Ms. Yusko when the call

ended. Ms. Yusko also reported the statements to her supervisor and to those she

met at lunch. When she returned to her desk after lunch she was instructed by her

supervisor to give a statement as to what had happened to the campus police officers

who were waiting for her in a nearby office.

{¶6} Appellant was placed on administrative leave on March 13, 2009. On

July 8, 2009, Appellant filed an application for unemployment benefits with the Ohio

Department of Job and Family Services (“ODJFS”). YSU responded to Appellant’s

application for benefits and explained that he had been discharged for making

threatening, lewd and indecent statements, which were violations of board policy, the

employee code of conduct and his union contract, in addition to errors in the

performance of his duties. In support of its response YSU provided copies of

Appellant’s termination notices which incorporated a pre-disciplinary hearing report
 -5-

signed by Eugene P. Grilli, YSU’s vice president for finance and administration. YSU

also submitted copies of a supplemental investigatory report, prepared at the request

of Mr. Grilli, who acted as the hearing officer during Appellant’s disciplinary hearing,

and two memos from Carol Trube concerning the earlier incident of Appellant’s

misconduct.

{¶7} Appellant’s initial application for unemployment benefits was denied on

July 28, 2009. He appealed the decision on July 31, 2009. In support of his appeal,

Appellant denied making profane statements and engaging in conduct “which

constituted just cause for my termination.” (7/31/09 Appeal Letter to ODJFS.)

Appellant explained that he was the president of YSU’s employee union and argued

that his termination was due to his union activities and that YSU’s progressive

discipline policy was not followed in his case. He claimed to be the second

consecutive union president YSU had attempted to terminate. ODJFS affirmed the

original denial of benefits on August 24, 2009, stating that a review of the original

facts and the additional information provided in the appeal did not support a change

in the initial determination. Appellant appealed the redetermination and the matter

was transferred to the Unemployment Compensation Review Commission (“review

commission”) on September 17, 2009. (The administrative review body was called

“review board” until 1996 when H.B. 670, effective December 2, 1996 changed the

entity to the “review commission” and the two are used interchangeably in opinions

on unemployment compensation). Appellant requested and received an in-person

rather than a telephonic hearing.

{¶8} The hearing was held on November 9, 2009. YSU presented testimony

from Carol Trube and Charlene Yusko. YSU also entered Appellant’s termination
 -6-

letter, pre-disciplinary hearing report, the supplemental investigatory report, memos

and responses to ODJFS and review commission questionnaires. YSU presented a

copy of Ms. Yusko’s personal notes taken during her conversation with Appellant on

March 11, 2009. Appellant offered his own testimony as well as testimony and

affidavits of various people who were either in the room or within earshot of the

telephone calls in question, who stated generally that they had not heard Appellant

make any of the offending statements, and probably would have been in a position to

hear them had they been made. YSU also offered testimony concerning the

allegations of non-performance of Appellant’s duties, but the hearing officer

concluded that the threats and profanity were given as the primary reason for

termination and declined to hear evidence of dereliction of duty.

Argument and Law

Assignment of Error

THE TRIAL COURT ERRED WHEN IT AFFIRMED THE

UNEMPLOYMENT COMPENSATION BOARD OF REVIEW ORDER

DENYING APPELLANT’S APPLICATION FOR UNEMPLOYMENT

BENEFITS.

{¶9} An appellate court applies the same standard of review as the

commission when evaluating a review commission’s determination denying

unemployment benefits due to a termination for just cause. Tzangas, Plakas &

Mannos v. Ohio Bur. of Emp. Serv., 73 Ohio St.3d 694, 653 N.E.2d 1207 (1995),

paragraph one of the syllabus. Ohio Revised Code section 4141.282(H) limits a

court’s review of the commission’s decision as to whether the decision was “unlawful,
 -7-

unreasonable, or against the manifest weight of the evidence.” Upon a finding that

the commission’s decision is unlawful, unreasonable, or against the manifest weight

of the evidence, the court “shall reverse, vacate, or modify the decision, or remand

the matter to the commission.” R.C. 4141.282(H).

{¶10} If the reviewing court does not find that the decision was unlawful,

unreasonable, or against the manifest weight of the evidence, the court “shall affirm

the decision of the commission.” R.C. 4141.282(H). “Determination of purely factual

questions is primarily within the province of the referee and the board. * * *

[Appellate] courts are not permitted to make factual findings or to determine the

credibility of witnesses.” Irvine v. Unemployment Comp. Bd. of Review, 19 Ohio

St.3d 15, 17-18, 482 N.E.2d 587 (1985) (this court, when following the standard for

review and other holdings in Irvine, noted in Struthers v. Morell, 146 Ohio App.3d

709, 2005-Ohio-6594, 843 N.E.2d 1231, that unlike the burden of proof placed on the

employee in Irvine, the Morell court was bound by R.C. 4141.281(C)(2) to ascribe no

burden of proof in the proceeding). “The fact that reasonable minds might reach

different conclusions is not a basis for the reversal of the board’s decision” Irvine at

18. “Where the board might reasonably decide either way, the courts have no

authority to upset the board’s decision.” Id. citing Charles Livingston & Sons, Inc. v.

Constance, 115 Ohio App. 437, 438, 185 N.E.2d 655 (1961).

{¶11} The validity of the employer’s decision to terminate Appellant is not

before us for review. Our review is limited to determining whether the commission

had sufficient evidence to support its decision that the employee was terminated for

just cause. Benefits must be denied if it appears, based on the information that was

provided to the commission as it appears in the record, that just cause for termination
 -8-

existed. What constitutes “just cause” with regard to eligibility for unemployment

benefits is separate and distinct from what may or may not be just cause for

termination under the terms of an individual’s contract, a company’s internal policies,

or other areas of employment law. A just cause determination for the purpose of

unemployment benefits focuses the inquiry on the concept of fault. “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.” Williams v. Ohio Dept. of Job and Family Servs., 129 Ohio St.3d 332,

336, 2011-Ohio-2897, 951 N.E.2d 1031, ¶22-23, citing Tzangas, supra, at 697-698.

“Fault, however, is not limited to willful or heedless disregard of a duty or a violation

of an employer's instructions” and includes a variety of behaviors such as

unsuitability for the position. Id. at ¶24.

{¶12} Although it is not defined by statute, just cause is described by the

Supreme Court as “that which, to an ordinarily intelligent person, is a justifiable

reason for doing or not doing a particular act.” Irvine at 17 quoting Peyton v. Sun

T.V. & Appliances, 44 Ohio App.2d 10, 12, 335 N.E.2d 751 (1975). The

determination as to whether there is just cause for discharge depends upon the

factual circumstances of each case. Warrensville Hts. v. Jennings, 58 Ohio St.3d

206, 207, 569 N.E.2d 489 (1991). “[W]hat constitutes just cause must be analyzed in

conjunction with the legislative purpose underlying the Unemployment Compensation

Act. Essentially, the Act's purpose is ‘to enable unfortunate employees, who become
 -9-

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.’ (Emphasis sic.)” Irvine at 17, quoting

Leach v. Republic Steel Corp., 176 Ohio St. 221, 223, 199 N.E.2d 3 (1964).

{¶13} Appellant urges us to conduct a de novo review and to adopt his

conclusions concerning the underlying facts because he alleges that the question of

whether there was just cause for termination is one of law, not fact. (Appellant’s Brf.,

p. 4.) This Court, however, has already determined that “[w]hat constitutes just

cause for termination is a question of fact, and determination of purely factual

questions is primarily within the province of the Board of Review.” Guy v. City of

Steubenville, 147 Ohio App.3d 142, 2002-Ohio-920, 768 N.E.2d 1243, ¶21 citing

Irvine at 17. Our review of a commission’s decision is therefore limited to

determining “whether the board’s decision is supported by evidence in the record.”

Guy at ¶24. We will not reverse a commission’s decision simply because

“reasonable minds might reach different conclusions,” nor will we reverse if the

decision is “supported by some evidence in the record.” Id. at ¶21-22. In fact,

“[w]here the board of review might reasonably decide either way, the courts have no

authority to upset that decision.” Id. at ¶22 citing Irvine, supra.

{¶14} Appellant divides the argument that there was no just cause for his

termination into four parts: (1) his conversation with Carol Trube was not threatening

and was not identified as a basis for termination; (2) his comment to Kay Helschel

was not a threat and could not be perceived as a threat; (3) he never told Charlene

Yusko he would slit anyone’s throat, but even if he had, the statements were not

actionable because they were not made directly to the individuals threatened and the
 -10-

existence of a threat depends on the perception of the listener, who did not

immediately perceive them as bona fide threats; and (4) Appellant never used lewd,

indecent, or obscene language concerning other female employees, but if he had,

the alleged statements do not establish just cause for termination. Appellant also

argues generally that the only evidence that he received a verbal reprimand in 2007

is hearsay and cannot, under Taylor v. Bd. of Review, 20 Ohio App.3d 297, 485

N.E.2d 827 (1984), be given greater credibility than his own sworn testimony at the

hearing. “[W]here the sworn testimony of a witness is contradicted only by hearsay

evidence, to give credibility to the hearsay statement and to deny credibility to the

claimant testifying in person is unreasonable. Thus, any weight to be given to the

employer’s hearsay is clearly outweighed by appellant’s sworn testimony at the

hearing before the referee.” (Internal citations omitted.) Id. at 299. Appellant makes

the same hearsay argument concerning the statements made to Ms. Helschel and

Ms. Yusko, all of which he also denies making. He argues that his direct testimony

and the affidavits of his supervisor and subordinates should be given greater weight

than the testimony and documents provided by his employer. He concludes that the

hearing officer gave inappropriate weight to the testimony and documentary evidence

provided by his employer because the officer’s stated basis for the determination

suggests that he found the employer’s evidence, which included hearsay, more

credible than Appellant’s.

{¶15} Proceedings at both the hearing officer and the review commission

level are governed by R.C. 4141.281 which provides in pertinent part:

In conducting hearings, all hearing officers shall control the conduct of

the hearing, exclude irrelevant or cumulative evidence, and give weight
 -11-

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.

R.C. 4141.281(C)(2). As the Ohio Supreme Court emphasized Simon v. Lake

Geauga Printing Co., 69 Ohio St.2d 41, 430 N.E.2d 468 (1982), the aim of the

procedural provision “is to avoid the rigid formality imposed by technical rules of

evidence, while constructing an efficient method for ascertaining a claimant’s

entitlement to unemployment compensation benefits * * * its meaning is apparent: the

Board of Review and the referee need not apply stringent rules in determining the

admissibility of evidence in the record.” Id. at 43. The procedural provision then in

force, R.C. 4141.28(J), provided “the board and the referees are not bound by

common law or statutory rules of evidence or by technical or formal rules of

procedure,” which is substantively identical to the current version.

{¶16} According to the Court, if evidence is placed in the record by the review

commission it must be weighed and considered by the commission when making a

decision and recognized by the trial or appellate court reviewing the commission’s

decision. Simon at 43. The Simon Court concluded: “evidence which might

constitute inadmissible hearsay where stringent rules of evidence are followed must

be taken into account in proceedings [before a review board] where relaxed rules of

evidence are applied;” it is the referee’s function “as the trier of fact, to consider the

evidence listed above, along with the credibility of the individuals giving testimony
 -12-

before the board” in reaching a decision. Id. at 44. “A reviewing court can not usurp

the function of the triers of fact by substituting its judgment for theirs. ‘The decision of

purely factual questions is primarily within the province of the referee and the board

of review.’ ” Id. at 45, citing Brown-Brockmeyer Co. v. Roach, 148 Ohio St. 511, 518,

76 N.E.2d 79 (1947).

{¶17} Appellant contends that we should ignore the Ohio Supreme Court’s

description of the fact finding role of the review commission and instead rely on the

more stringent prohibition against hearsay testimony utilized by the Eighth District in

Taylor, supra. The Taylor Court held that direct testimony should always outweigh

hearsay in review hearings. When comparing the conclusion reached by the

Supreme Court in Simon to Taylor, courts in the Fourth, Fifth, Sixth, Ninth, Tenth,

Eleventh, Twelfth and now even the Eighth, have found the Taylor rule too rigid for

application or inappropriate under the facts. When distinguishing Taylor, many courts

have found, like the Twelfth District in Hansman v. Ohio Dept. of Job & Family Serv.,

12th Dist. No. CA2003-09-224, 2004-Ohio-505, that the rule would destroy the

factfinder’s ability to function as the law intends:

[R]igid application of a rule automatically crediting sworn testimony over

hearsay evidence is inconsistent with the duty of the fact-finder to weigh

and consider the evidence. The Ohio Supreme Court found that the

logical corollary of allowing evidence in unemployment hearings that

would be otherwise inadmissible is that such evidence must be weighed

and considered, not only at the hearing itself, but also on appellate

review. A rigid rule would remove this duty from the fact-finder.

Furthermore * * * a fact-finder is not required to accept the testimony of
 -13-

a witness simply because no contrary evidence is presented. (Internal

citation omitted.)

Id. at ¶12. The Hansman court concluded: “we find no merit to appellant’s argument

that the hearing officer was automatically required to credit his testimony above any

hearsay evidence. Furthermore, after examining the type of hearsay evidence at

issue in this case, we find no error in the hearing officer’s decision to give weight to

such evidence.” Id. at ¶13. The evidence at issue in Hansman included letters

written by USF Holland to the appellant warning him that he violated company policy

for absenteeism or tardiness. The Hansman court observed that the documents

“appear to have been created as part of a company policy, and not in contemplation

of appellant’s request for unemployment benefits and we find nothing inherently

unreliable in the letters themselves.” Id. at 13. Similarly, the evidence at issue

against Appellant includes two internal memos prepared by a witness who testified, a

pre-disciplinary hearing report which appears to have been prepared pursuant to an

internal or a union policy, and the letter terminating Appellant, which he requested in

lieu of a verbal separation. This is exactly the type of evidence that a majority of

Ohio Appellate districts and the Ohio Supreme Court find reasonable when used as a

basis for a hearing officer’s decision, even when contradicted by a party’s direct

testimony. We decline to adopt a rule that would negate a fact-finder’s ability to

make credibility determinations and do not find Taylor persuasive on this issue.

{¶18} Appellant also argues that Ms. Trube’s hearsay testimony was the only

evidence that he was disciplined in 2007 and that this hearsay should be negated by

his direct testimony. He overlooks the fact that the hearing officer at his disciplinary

hearing, Mr. Grilli, YSU’s vice president for finance and administration, verified that
 -14-

he, himself, gave Appellant a verbal reprimand for the Trube incident in the present

pre-disciplinary report. Appellant’s argument that his threatening behavior in 2007

was irrelevant to his termination because it is not mentioned in the termination letter

is inaccurate. It was described in the pre-disciplinary report attached to and

referenced in the termination letter. Appellant also overlooks the fact that, unlike the

circumstances in Taylor, where a third-hand statement made by an individual

identified only as George to an investigator from ODJFS was the sole basis for a

finding that the claimant did not have a legitimate fear of physical violence at work,

the hearing officer in this instance had a variety of evidence before him. In Taylor the

hearing officer denied benefits on the strength of the investigator’s memory of

George’s statement alone; no testimony or direct evidence of any kind was presented

by the employer. In contrast, the hearing officer in this matter had the hearsay

declarant, whose credibility he could judge, as well as the pre-disciplinary report, the

memos, the termination letter, and the testimony of other witnesses to evaluate and

weigh. The pre-disciplinary report appears to have been prepared in accordance

with an internal policy or the collective bargaining agreement in preparation for a

disciplinary hearing. Although it is hearsay in the strict sense, it may nevertheless be

admissible under a hearsay exception and is certainly well within the flexible

parameters of what a hearing officer may consider. The report appears to be “the

kind of evidence on which reasonably prudent persons are accustomed to rely in the

conduct of serious affairs,” contemplated by R.C. 4141.281(C)(2). The Taylor rule

does not prevent the hearing officer from relying on the documents provided by YSU

or Ms. Trube’s testimony. Both provide reasonable basis for the hearing officer’s

decision.
 -15-

{¶19} Appellant directly testified that he told Ms. Helschel that circulating the

letter of agreement would be bad for her health. He disputes the characterization of

this statement as a threat and argues that there was no competent, credible evidence

on which the hearing officer could rely to conclude that the statement was a threat.

Appellant contends that his explanation of the statement as a warning concerning the

effects of stress that would be brought on by the litigation that would ensue if

circulation continued was the only accurate characterization to be made from this

statement. Appellant overlooks the fact that it was well within the hearing officer’s

purview to find that the statement, which was not disputed, had been made and that

Appellant’s explanation was disingenuous. As the trier of fact, it is the referee's job to

resolve conflicts in the evidence and to assess the credibility of a claimant’s or a

witness’s testimony. See, Irvine v. Unemployment Comp. Bd. of Review, 19 Ohio

St.3d 15, 482 N.E.2d 587 (1985). The hearing officer in this instance did precisely

that, and this Court on review is not entitled to second guess the hearing officer’s

determination of fact or of witness credibility. Id. at 18.

{¶20} Neither Appellant’s self-serving attempt to whitewash a statement that

could be reasonably interpreted as a threat nor the testimony of his witness, who was

the beneficiary of the secret agreement, prevail over evidence to the contrary. The

testimony provided by Appellant and his witness was subject to a credibility

determination by the trier of fact. The trier of fact also had before him evidence that

Appellant had previously threatened a co-worker, and had been reprimanded for that

threat, and evidence that both Appellant’s employer and Ms. Herschel treated the

statement to her as a threat. The fact that Appellant believes the review commission
 -16-

should have weighed the testimony differently is not the type of unlawful or

unreasonable determination necessary to reverse the commission’s decision.

{¶21} With regard to the statements Appellant was alleged to have made

during his conversation with Ms. Yusko, that he would “slit the f----g throats” of those

he believed to be responsible for releasing the letter of agreement and referring to his

co-workers in extremely crude, gender-specific, and derogatory terms, Appellant both

denies making the statements and argues that even if he had made the statements

they do not constitute just cause. In support of his argument that the statements do

not rise to the level of just cause for termination, he cites one court case and two

review commission decisions: Thompson v. Aeroquip Inaoc Co., 6th Dist. No. S-02-

022, 2003-Ohio-1859, In re Claim of Barbara R. Harding, Unemp. Comp. Bd. of Rev.,

No. 641760-BR, August 4, 1986, and In re Claim of Mark A. Williams, Unemp. Comp.

Bd. of Rev., No. 92-03392-0000, March 26, 1993. The precedential effect of review

commission decisions is limited by R.C. 4141.28(H) to “claimants similarly situated.”

And while we may find the decisions of other districts persuasive, we are in no way

bound by them. None of the decisions identified by Appellant, however, present

similarly situated claimants.

{¶22} In both Thompson and In re Williams, the threats made by the

claimants were conditional and the outbursts were isolated instances. In Thompson

the court found that the claimant’s single, hyperbolic statement was provoked by

another employee’s long-standing and repeated interference with his ability to do his

work coupled with the continued failure of management, who was aware of the

problem, to take action. The threat the claimant made in that instance was expressly

predicated on continued supervisory inaction and continued interference with his
 -17-

work: if the supervisor didn’t take action and if the other employee interfered with his

work again, he would stab him with a screw driver. The board in Thompson

determined that while the statement was certainly intemperate and threatening, it was

an expression of the employee’s frustration over a long-standing problem and an

attempt to obtain a solution from his employer, rather than the type of misconduct

that merits termination.

{¶23} In Williams an employee, who had been reprimanded for using his

employer’s phone to make 900-number calls and incurring charges, discovered that

the cost of the calls had been deducted from his paycheck and angrily asked a

receptionist if the company president was on the premises. Learning that the

president was in close proximity, the claimant responded “I’m so mad that if I don’t

leave now, I’ll shoot [him].” Id. at pp. 4-5. The claimant then voluntarily left. The

review commission determined that there was no showing that a genuine threat had

been made in Williams, and instead found the claimant’s statement “merely

expressed his anger over the situation and should not reasonably have been

considered to be threatening in nature.” Id. at p. 6.

{¶24} The situation in In re Harding, the second review decision Appellant

relies on to support his claim, is somewhat similar to Thompson. The claimant in

Harding had a long-standing antagonistic relationship with a co-worker, in which the

review panel found both parties to be at fault. The claimant had a daily working

relationship with the individual she was alleged to have threatened. Shortly before

the claimant told her co-worker she would “blow (his) brains out,” she reported a

problem with water quality to their supervisor which the other employee then

disputed. As the claimant proceeded to re-test water quality the other employee
 -18-

bumped into her, prompting the statement. Id. at p. 5. The claimant was not armed

at the time, did not own a gun, and took no action to carry out this single threat. The

two completed their shift without further incident and the employee did not report the

incident that day.

{¶25} On returning to work before his next shift, the employee reported the

threat to their supervisor, specifically stating that he was not afraid of the claimant

and did not believe she would carry out the threat, but that he was afraid of her adult

son. Both individuals were called in to discuss the incident with the supervisor, which

was unproductive, and both were discharged. At hearing, the factfinder learned that

on previous occasions the other employee had telephoned the supervisor during their

shared shifts to complain that the claimant had banged her hard hat and a clipboard

too heavily on a desk and that she had left a door open while the air conditioning was

on. The hearing officer found that the employee’s failure to report what he later

maintained amounted to a death threat, while he immediately reported incidents of

hard hat and clipboard banging and leaving office doors open, indicated that the

claimant’s statement was, in fact, not taken as a threat and that at the time it was

made it was understood to be an intemperate comment made in the heat of the

moment.

{¶26} In each of the examples provided by Appellant, even where there was

ongoing antagonism between employees, one single threat was identified as the

basis for termination. None of the statements were recognized by the hearing officer,

the review panel, or the court as bona fide threats. In contrast, Appellant’s behavior

here appears to reflect an escalating pattern of threatening, intimidating and verbally

abusive behavior toward his female colleagues. YSU identifies four separate
 -19-

instances of inappropriate behavior, the first of which establishes that Appellant

knew, or should have known, that YSU would not tolerate threats against co-workers

at the time he issued the later threats. The fact that YSU took the behavior seriously

is reflected by the decision to place Appellant on leave and investigate the various

claims.

{¶27} In an attempt to characterize his dismissal as an improper breach of

policy, Appellant relies on In re Claim of Stephanie L. Meinke, Unemp. Comp. Bd. of

Rev., No. C2007-267-0014, April 23, 2008, to discredit the documentary evidence

provided by YSU. In In re Meinke, the owner of a day care had a policy that any

employee would be terminated after three parental complaints. The discharge of Ms.

Meinke was based on a father’s phone call to the employer in which he said that his

wife observed Meinke pick up one child by his arm and yelled in the face of a second

child. As a result of these alleged incidents, the father told the day care owner that

he would no longer be using her services. The employer then terminated Meinke via

telephone, due to the complaints and the loss of a customer, that same day. After

Meinke’s termination, the day care owner obtained an affidavit from the caller’s wife

in which she stated that Meinke forced a pacifier into the mouth of one child, yelled at

another child, shoved both, and roughly seated a different child in a high chair.

{¶28} On review, the hearing officer found Meinke’s direct testimony that she

had never mistreated a child in the seven years she worked at the day care more

credible than the affidavit submitted by her former employer. No testimony was

offered by the employer at the hearing. Although the stated reason for termination

was the loss of a customer coupled with her two complaints, the employer apparently

later stated that the termination was due to a violation of the three complaint rule
 -20-

because there were three complaints in the affidavit. Unlike the situation in In re

Meinke, where documents were produced after the fact that contained substantively

different information and the employer changed her reason for termination, in the

matter before us the documents and statements offered by YSU are the product of an

actual investigation, discipline and hearing procedure. The documents are coupled

with testimony from some of the individuals concerned. Additional testimony was

also offered but declined by the hearing officer. Hence, unlike the record in Meinke,

nothing in this record suggests that the evidence provided to the hearing officer was

improperly or belatedly produced solely to support a predetermined decision to fire

Appellant. Appellant’s attempt to use Meinke to discredit YSU’s documentary

evidence is misplaced.

{¶29} In addition to his hearsay argument, Appellant asserts that threats are

to be determined by the perception of the listener and that he could not be

discharged for making a statement the listener did not perceive as a threat. He also

states that his allegedly lewd, indecent or obscene remarks cannot establish just

cause. Appellant cites In re claim of Robert B. Basham, Unemp. Comp. Bd. of Rev.,

No. B93-04349-000, November 15, 1994, and Brown v. Sysco Food Serv. of

Cincinnati, L.L.C., 4th Dist. No. 09CA2175, 2009-Ohio-5536 for his contention that

the perception of the listener is determinative as to whether a statement is a threat.

Again, Appellant’s reliance is misplaced. The quote Appellant cites from In re

Basham for the principle that the listener determines whether a statement is a threat

actually refers to the “well settled” principle that “misguided jokes, horse-play, or

other disruptive or harmful attempts at levity may be the basis for disciplinary action,”

and even where “the teller of such jokes need not intend them to be taken seriously,
 -21-

it is the perception of the person hearing such statements that determines if the

statement is actionable.” Id. at p. 6. The reverse is not necessarily true. In a variety

of other cases, hearing officers, review commissions, and courts have found

statements were not threats, despite the stated perception of the listener. See, e.g.

Thompson v. Aeroquip Inaoc Co., 6th Dist. No. S-02-022, 2003-Ohio-1859, In re

Claim of Barbara R. Harding, Unemp. Comp. Bd. of Rev., No. 641760-BR, August 4,

1986, and In re Claim of Mark A. Williams, Unemp. Comp. Bd. of Rev., No. 92-

03392-0000, March 26, 1993.

{¶30} The Basham case cited by Appellant involved a newspaper article

about workplace shootings that had “jokingly” been altered to indicate that vending

machine related frustration resulted in workplace shootings. The altered document

was posted on a workplace vending machine. When the machine attendant saw the

article, he initially laughed and asked workers nearby if it was a joke, and Basham

initially denied responsibility. After a brief conversation, Basham, who had altered

and posted the article, removed it and placed it in the trash. Although the machine

attendant initially joked about the article, he later retrieved it from the trash and

reported the incident to his supervisor. Unknown to the attendant, Basham had

made separate statements and had separate interactions with the supervisor about

his frustration with vending machine pricing. Those statements and actions provided

a backdrop that made the article appear to be a threat to the supervisor. Basham

was discharged due to the incident and his subsequent appeal of the denial of his

unemployment benefits was denied. Although the attendant had initially taken the

posting as a (bad) joke, it was actually the more-informed concerns of the supervisor

that drove the termination. In this instance, the “perception of the person hearing
 -22-

such statements” extended to the perception of the supervisor receiving information

about the statement after the fact and placing it in the context of prior statements.

{¶31} Similarly, when Appellant told Ms. Yusko he would slit the throats of

those he believed responsible for releasing the letter of agreement she did not

perceive a threat to herself, and did not know the people he named particularly well.

She was nevertheless shocked and unsettled by the statements and later reported

them. When her supervisor heard them, he immediately perceived them as a threat,

called campus police, and told Ms. Yusko to report what Appellant had said to the

officers who responded. When those statements are placed in the context of

Appellant’s other behavior, including the fact that Appellant, in his capacity as the

president of the bargaining unit, may have made a deal that violated the terms of the

collective bargaining agreement to secure a position for a former president and was

facing a union no-confidence vote and the individuals against whom he made threats

were those he believed responsible for releasing damaging information, it is clear

how Ms. Yusko’s supervisor, YSU, and the hearing officer could have concluded the

statements were, in fact, threats. The record also reflects that this remark was not

the first time Appellant had made threatening statements to a co-worker. What the

decision in Basham, as well as other threat-related terminations reveal, is that the

perception of the person who hears the statement at the time it is made is only one

factor for the hearing officer to consider. In addition, he may consider how the

statement is perceived by others and the context in which the statement is made

when determining whether the statement amounts to just cause. Determinations are

heavily fact-driven and there is nothing to suggest in this instance that the conclusion
 -23-

reached by the review commission was unlawful, unreasonable, or against the

manifest weight of the evidence.

{¶32} Finally, although Appellant tries to describe his obscene or lewd

references to two other female employees as the type of unfortunate but incidentally

profane expressions of frustration generally tolerated in the modern workplace, the

intense, gender-specific and derogatory nature of the comments as well as the fact

that they were apparently unrelated to the subject matter of the conversation

suggests otherwise. Both the review commission and YSU argue that language this

severe and fundamentally inappropriate is the type of language that “can be so

disruptive and provocative that the employer’s ability to maintain a productive

environment is severely compromised.” The hearing officer agreed. Opara v.

Carngie Textile Co., 26 Ohio App.3d 103, 106, 498 N.E.2d 485 (1985). YSU

identifies an escalating pattern of threats, intimidation, and profane language that

suggests Appellant was unable to interact appropriately with women who disagreed

with or opposed him. The university argues that the type of language Appellant used

revealed his “fundamental prejudices which jeopardize[d] continuing work

relationships.” Due to these behaviors, YSU terminated Appellant. Id. at 106. The

hearing officer found this determination was reasonable. “If an employer has been

reasonable in finding fault on behalf of an employee, then the employer may

terminate the employee with just cause.” Tzangas, supra, at 698.

{¶33} Appellant argues that his case is unlike Opara, which involved

extremely inflammatory anti-Semitic comments, and that the hearing officer should

instead have applied the four factors suggested in Lombardo v. Ohio Bur. of Emp.

Serv., 119 Ohio App.3d 217, 695 N.E.2d 11 (1997). Each unemployment
 -24-

determination is fact driven. Hearing officers are not constrained to follow the

suggestions of a court when making their determinations. Rather, they are charged

by statute to give full and fair consideration to the information in the record. While the

hearing officer was not required to apply the factors suggested in Lombardo, it is not

clear from this record that it would have altered the outcome. In fact, the Lombardo

court specifically noted that there is a large body of decisions finding the use of

profanity to amount to just cause for termination, but that Lombardo’s situation was

unique because a single instance of the use of profanity was the sole cause of his

discharge. Id. at 222. The Lombardo court derived and applied four principles from

two other cases as the basis for its decision: the language in question was not

directed at a person and was of no more intensity than language used by the

claimant and the manager in non-work related conversations; that there was no

evidence or finding that the words used by the claimant were part of a pattern; that

only one other person was present; and that the outburst, according to the lower

court, was an understandable reaction to an earlier occurrence. The claimant in

Lombardo had requested that his shift be moved up two hours to accommodate a

civil court hearing. He was told that the request would not be approved and that if he

left early it would be considered as an infraction and he would lose his attendance

bonus for the month. In front of his direct supervisor and the plant manager, who had

denied the request, the claimant said “that’s bullshit, * * * that’s fucking bullshit” and

walked out of the office and returned to work. Id. at 219. He was then instructed to

return to the office, was given a five-day suspension by the manager, but

subsequently terminated. Under these circumstances, applying the four factors, the

Lombardo court concluded the outburst was not just cause for termination.
 -25-

{¶34} In the instant matter the language was unprovoked, specifically directed

at two other employees, was fairly intense or extreme, and appeared to be part of a

pattern of inappropriate behavior. The fact that the comment was initially made to

one person is not dispositive, it is merely a factor to consider. Appellant’s profane

statements were not the sole cause of termination but one of several incidents.

“None of the reviewing courts can reverse a commission decision as being against

the manifest weight of the evidence when there is some evidence in the record to

support the commission's decision.” Struthers v. Morell, 164 Ohio App.3d 709, 715,

843 N.E.2d 1231 (2005). The evidence reflected in this record supports the hearing

officer’s conclusion that YSU had just cause to terminate Appellant and accordingly

the denial of unemployment benefits is affirmed.

Conclusion

{¶35} The trial court did not err in affirming the Unemployment Compensation

Board of Commission order denying Appellant’s application for unemployment

benefits. The review commission’s decision is supported by the evidence in the

record and is not unreasonable or unlawful. Appellant’s sole assignment of error is

overruled and the judgment of the trial court is affirmed.

Rice, J., concurs.

Trapp, J., concurs.