[Cite as Cittadini v. Dir., Ohio Dept. of Job & Family Servs., 2011-Ohio-6625.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96370
LYNDA CITTADINI
PLAINTIFF-APPELLANT
vs.
DIRECTOR, OHIO DEPARTMENT OF
JOB & FAMILY SERVICES, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-720137
BEFORE: Jones, J., Boyle, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: December 22, 2011
ATTORNEY FOR APPELLANT
Denise J. Knecht
4415 Euclid Avenue
Suite 310
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEES
For Ohio Department of Job & Family Services
Mike DeWine
Ohio Attorney General
BY: Patrick MacQueeney
Assistant Attorney General
615 West Superior Avenue
11th Floor
Cleveland, Ohio 44113
For Southwest General Health Center, Inc.
Izoduwa E. Ebose-Holt
Susan C. Hastings
Squire, Sanders & Dempsey
4900 Key Tower
127 Public Square
Cleveland, Ohio 44114
LARRY A. JONES, J.:
{¶ 1} Plaintiff-appellant, Lynda Cittadini, appeals the trial court’s judgment
affirming the decision of the unemployment compensation review commission denying her
application for unemployment compensation. We reverse and remand.
I. Procedural History and Facts
{¶ 2} In July 2009, Cittadini filed a claim for unemployment compensation
benefits with defendant-appellee, Ohio Department of Job and Family Services
(“ODJFS”). ODJFS issued an initial determination of benefits denying the claim on the
basis that Cittadini was discharged by her employer, Southwest General Hospital, for just
cause under R.C. 4141.29(D)(2)(a). Cittadini appealed.
{¶ 3} ODJFS issued a redetermination of benefits affirming its initial
determination. Cittadini appealed again and the matter was transferred to the
unemployment compensation review commission. After a hearing, the commission
issued a decision affirming the redetermination of benefits and denying Cittadini’s claim
on the basis that she was discharged for just cause. Cittadini’s request for review was
denied. She then filed an appeal in the trial court. The trial court affirmed the
commission’s decision.
{¶ 4} Cittadini worked for six years at Southwest General Hospital as a
telecommunications operator. On the day of the underlying incident, she was working
the 4:00 p.m. to 7:00 p.m. shift. Cittadini testified that she was sick that day but came to
work anyway because she knew the department was shorthanded. Additionally, that was
a very busy time of day for the operators because the physicians’ offices would generally
close during that time period and would call to “check out” and tell the operators who was
“on call.”
{¶ 5} The hearing testimony demonstrated that the operators routinely kept ice at
their desks because their throats often became dry from talking on the phone. One of
Cittadini’s coworkers, Heidi Boone, testified that they “chopped” the ice with “plastic
forks, knives, spoons, all that stuff from the cafeteria and different places * * *.” Other
knives from the employees’ kitchen were available for the operators’ use and according to
the hospital’s employment manager, they would bring the knives from the kitchen to their
work stations.
{¶ 6} Cittadini testified that on the day of the incident, a coworker had put a cup of
water in the freezer for her and when the coworker retrieved it for Cittadini, it was “frozen
solid.” According to Cittadini, it was very busy and she did not want to leave her desk,
so she “fished around” in her purse for something to break the ice with and found a knife
that she was unaware she even had. The knife was in its original packaging. The
hospital described the knife as a “switchblade knife,” and Cittadini described it as a
“pocket knife” with a “lever that you have to push in to release it.” A picture of the knife
shows that it was approximately four inches long when closed and over seven inches long
when opened.
{¶ 7} Boone testified that she and other coworkers had been trying to get Cittadini
to go home because she was sick and they were concerned about getting sick too. Later,
Boone saw Cittadini opening and closing the knife and told Cittadini that having the knife
was illegal, but Cittadini was dismissive. Boone testified that she told Cittadini she
“really needed to go home and shouldn’t come in when she was sick * * *.” Cittadini
responded by throwing an ice chip at Boone. Boone testified that Cittadini saw that she
was upset and was “trying to lighten the mood.” Cittadini testified that she threw the ice
chip at Boone because they were “friends and [she] was just fooling around.”
{¶ 8} After Cittadini threw the ice chip at Boone, Cittadini was clocking out to go
home and Boone told her again that she should not have come to work so Cittadini
“flipped a cough drop at her” and said “here have a cough drop.”
{¶ 9} After thinking overnight about Cittadini having a knife at work, Boone
decided that she “had to report it because of policy.” She testified that she was “afraid if
[she] didn’t report it [she] would be fired if it was found out.” Boone did report the
incident and Cittadini was fired for possessing a deadly weapon in violation of the
hospital’s policy.
{¶ 10} Cittadini’s husband testified that the knife belonged to him. According to
the husband, he and his wife had been shopping and when they arrived home he retrieved
the grocery store bags and she took the bag with the knife. The husband testified that he
bought the knife because they go to cheese houses in Amish country and never had
anything in the car to cut the cheese with.
{¶ 11} The hospital’s firearm and deadly weapon policy defines a deadly weapon as
“[a]ny instrument, device, or thing capable of inflicting death, and designed or specifically
adapted for use a weapon, or possessed, carried, or used as a weapon. Deadly weapons
include such things as knives, clubs, hammers, batons and other edged weapons.”
{¶ 12} The hospital’s “guidelines for determining levels of discipline”
“recommends” discharge upon the first infraction for “unauthorized possession of
firearms, weapons or dangerous substances while performing job duties on the premises.”
The guidelines state that they “are not inclusive but can be used to ensure uniformity in the
application of corrective action by management. Each case must be considered on
pertinent facts and the measure of discipline imposed accordingly.”
{¶ 13} In denying Cittadini’s claim, the Commission focused on the competing
testimony about what kind of knife it was, and citing the dictionary definition of a
switchblade, found that the knife “clearly fits the definition of a switch blade knife.” The
Commission, therefore, concluded that Cittadini’s conduct was a “clear violation of the
Firearm/Deadly Weapons Policy and provides just cause for discharge.” The trial court
affirmed the finding without elaboration.
{¶ 14} Cittadini’s sole assigned error reads:
“The lower court erred in upholding the decision of the review commission
of the Ohio Department of Job and Family Services that was unreasonable,
arbitrary, and against the manifest of evidence.”
II. Law and Analysis
{¶ 15} R.C. 4141.282 governs appeals to the court of common pleas challenging the
denial of unemployment compensation benefits by the commission, and provides:
{¶ 16} “The court shall hear the appeal on the certified record provided by the
commission. If the court finds that the decision of the commission was unlawful,
unreasonable, or against the manifest weight of the evidence, it shall reverse, vacate, or
modify the decision, or remand the matter to the commission. Otherwise, the court shall
affirm the decision of the commission.” R.C. 4141.282(H).
{¶ 17} This is the standard of review for unemployment compensation appeals,
regardless of the level of appellate review. Tzangas, Plakas & Mannos v. Ohio Bur. of
Emp. Servs., 73 Ohio St.3d 694, 696, 1995-Ohio-206, 653 N.E.2d 1207. In reviewing
commission decisions, a court is not permitted to make factual findings or reach credibility
determinations. Id., citing Irvine v. Unemployment Comp. Bd. of Review (1985), 19 Ohio
St.3d 15, 18, 482 N.E.2d 587. Similarly, it may not substitute its judgment on such issues
for that of the commission. McCarthy v. Connectronics Corp., 183 Ohio App.3d 248,
2009-Ohio-3392, 916 N.E.2d 871, ¶16, citing Irvine at id. Instead, a court must
“determine whether the [commission’s] decision is supported by the evidence in the
record.” Id. Therefore, the focus of the analysis is on the commission’s decision, “rather
than that of the common pleas court.” Carter v. Univ. of Toledo, Lucas App. No.
L-07-1260, 2008-Ohio-1958, ¶12, citing Markovich v. Employers Unity, Inc., Summit
App. No. 21826, 2004-Ohio-4193, ¶10, citing Barilla v. Dir., Ohio Dept. of Job & Family
Servs., Lorain App. No. 02CA008012, 2002-Ohio-5425, ¶6. Judgments supported by
some competent, credible evidence on the essential elements of the controversy may not be
reversed as being against the manifest weight of the evidence. Carter at id., citing C.E.
Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, syllabus.
{¶ 18} Upon review, we find that the commission’s finding that Cittadini was
terminated for just cause was unreasonable and against the manifest weight of the
evidence. Having reviewed the pictures of the knife, there is no doubt it could be
classified as a deadly weapon, whether it was a “switchblade” or a “pocket knife” with a
“lever that you have to push in to release it.” But the review should not have stopped at
that determination, which is where it did for the commission. Discharge was the
recommended, not mandatory, level of discipline for a violation of the hospital’s deadly
weapons policy.1 The hospital’s guidelines stated that “[e]ach case must be considered
on pertinent facts and the measure of discipline imposed accordingly.”
{¶ 19} The Ohio Supreme Court has stated that “just cause” is “‘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 (1975), 44 Ohio App.2d 10, 12,
335 N.E.2d 751. The determination whether there is just cause for discharge depends
upon the factual circumstances of each case. Warrensville Hts. v. Jennings (1991), 58
Ohio St.3d 206, 207, 569 N.E.2d 489.
{¶ 20} On the facts of this case, we do not find just cause for Cittadini’s
termination. Cittadini only used the knife to chip frozen ice, as even acknowledged by
the hospital’s employment manager. She got the knife out of her purse so that she would
not have to leave her work station during a particularly busy time. There was no
evidence that she threatened anyone, used the knife in a threatening manner, or even
knowingly brought the knife into the hospital. The gist of Boone’s testimony was that
1
In a letter from the hospital’s employment manager to the redetermination unit
requesting that Cittadini’s claim be disallowed, the manager stated that “[a]nyone who violates
this policy is terminated on the first offense.” The letter also states that Cittadini disregarded
the “warnings” from Boone that she was in violation of the policy. There is no indication in
the record, however, that Boone was an employee qualified to “warn” Cittadini of infractions of
the policy.
she was upset that Cittadini came to work sick, not that she felt threatened by her. And,
in fact, Boone also violated the hospital’s policy requiring that employees “should not
confront any individual suspected of carrying a [deadly weapon], but rather they are to
immediately contact Protection Services.”
{¶ 21} In Williams v. Ohio Dept. of Job & Family Services, 129 Ohio St.3d 332,
2011-Ohio-2897, 951 N.E.2d 1031, the Ohio Supreme Court declined to adopt a standard
that reviews whether the employer’s policy was fairly applied to everyone. Specifically,
the court found that it was not necessary to adopt such a standard because the case could
be, and was, decided on the employer’s express condition of employment, rather than on
company policy. Thus, the Ohio Supreme Court did not reject such a standard. This
court has previously adopted the “fairly applied policy.” See Shaffer v. Am. Sickle Cell
Anemia Assn. (June 12, 1986), Cuyahoga App. No. 50127 (“termination pursuant to
company policy will constitute just cause only if the policy is fair, and fairly applied.”).
{¶ 22} Here, although both Cittadini and Boone violated the hospital’s policy, only
Cittadini suffered consequences.2 Moreover, the record reflects that the operators often
brought knives from the kitchen to their desks. Although the employment manager
testified that the knives were “utensil butter knives,” a picture of some of the knives in the
kitchen3 shows that they were butcher knives, which could be considered deadly weapons
as well.
2
The hospital’s guidelines for determining levels of discipline recommend discipline for
“failure to follow hospital or departmental policies procedures or instructions.”
{¶ 23} On this record, we find the commission’s decision finding just cause for
Cittadini’s termination, and the trial court’s judgment affirming the decision, unreasonable
and against the manifest weight of the evidence. The trial court’s judgment is, therefore,
reversed and the case is remanded.
It is ordered that appellant recover of appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas 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.
LARRY A. JONES, JUDGE
MARY J. BOYLE, P.J., CONCURS;
KENNETH A. ROCCO, J., DISSENTS
WITHOUT OPINION
3
See exhibit D of Director’s file.