[Cite as Banks v. Natural Essentials, Inc., 2011-Ohio-3063.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95780
SAMUEL W. BANKS, III
PLAINTIFF-APPELLANT
vs.
NATURAL ESSENTIALS, INC., ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-725397
BEFORE: Rocco, J., Blackmon, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: June 23, 2011
FOR APPELLANT
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Samuel W. Banks, III, Pro Se
19024 Winslow Road
Shaker Heights, Ohio 44122
ATTORNEYS FOR APPELLEES
For Natural Essentials, Inc.
I. Bernard Trombetta
6590 Creekside Trail
Solon, Ohio 44139
For Director, Ohio Department of Job and Family Services
Michael DeWine
Attorney General of Ohio
BY: Patrick MacQueeney
Assistant Attorney General
615 West Superior Avenue, 11th Floor
Cleveland, Ohio 44113-1899
KENNETH A. ROCCO, J.:
{¶ 1} Appellant Samuel W. Banks, proceeding pro se, appeals from the
trial court’s order that affirmed the Unemployment Compensation Review
Commission’s (“the commission’s”) decision, which upheld the denial by the
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Ohio Department of Job and Family Services (“the agency”) of Banks’s
application for unemployment benefits.
{¶ 2} Banks presents a single assignment of error. Banks argues that
the trial court’s order should be reversed. He contends the record of the
administrative hearing fails to support the commission’s decision that
Natural Essentials, Inc. (“Natural”), his former employer, terminated him for
“just cause” and that he was afforded his right to due process in being
terminated from his employment.
{¶ 3} Upon a review of the record, however, this court disagrees.
Consequently, Banks’s assignment of error is overruled. The trial court’s
order is affirmed.
{¶ 4} According to the record, Natural hired Banks as a warehouse
worker in September 2007. Banks signed an acknowledgment at the time of
his hiring that he received a copy of Natural’s “Employee Policy Manual.”
{¶ 5} Natural required its employees to follow strict rules of conduct.
The manual indicated that “abusive or obscene language to fellow employees
or supervisors will not be tolerated.” Furthermore, the manual warned that
such language, along with “threatening [or] intimidating” behavior toward
other employees “will be cause for immediate disciplinary action and possible
dismissal.”
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{¶ 6} The manual provided that Natural used a progressive
disciplinary procedure for infractions of the employee rules of conduct.
Certain offenses were listed as ones that could incur more severe penalties;
included in these were “unsatisfactory performance” of the job and “abusive or
obscene language to fellow employees or supervisors.”
{¶ 7} With respect to such offenses, the manual outlined the procedure
as follows. For the first offense, Natural issued to the employee a written
warning and a two-day suspension without pay. For the second offense,
depending on its severity, Natural issued to the employee either a suspension
or a discharge.
{¶ 8} Moreover, the manual separately contained a note that informed
employees: 1) Natural placed written warnings in the employee’s personnel
file to serve as the basis for the progressive disciplinary procedure; 2) each
warning issued remained in the employee’s file for a period of twelve months;
and, 3) three warnings for infractions of “any combination of rules will be
cause for immediate discharge.”
{¶ 9} The record reflects Natural issued a written reprimand to Banks
on April 22, 2009. Therein, Natural cited Banks’s substandard work, i.e.,
failing to properly pack product into cartons.
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{¶ 10} On July 1, 2009, a female coworker complained that Banks used
obscene and abusive language toward her. After his supervisors conducted a
short investigation, one that included obtaining Banks’s written explanation
of the incident, Banks received another written reprimand.
{¶ 11} On July 10, 2009, Natural issued a third written warning to
Banks for the use of abusive language toward another coworker; Banks was
suspended from work. Effective July 17, 2009, Natural notified Banks his
employment was terminated. Natural informed Banks in writing that his
termination was based upon his violations of the employee rules of conduct
and his disciplinary record.
{¶ 12} On July 21, 2009, Banks filed a claim with the agency seeking
unemployment benefits. On August 13, 2009, the agency issued a denial on
the basis that Banks had been terminated for just cause pursuant to R.C.
4141.29(D)(2)(a).
{¶ 13} Banks appealed the decision. On September 3, 2009, the agency
reaffirmed its decision to deny Banks’s claim.
{¶ 14} Banks again appealed, causing the matter to be transferred to the
commission. On January 21, 2010, Banks’s case proceeded to a hearing
before a hearing officer (“HO”). Over a period of several days, the HO took
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testimony and evidence from Banks’s supervisors, a coworker, and Banks
himself.
{¶ 15} On March 16, 2010, the HO issued a decision that affirmed the
agency’s denial of Banks’s claim. The HO determined Banks had been
terminated for just cause. Although Banks requested further review of that
decision, the commission disallowed his request.
{¶ 16} Banks pursued the matter by filing an appeal in the trial court
pursuant to R.C. 4141.282. The trial court heard the matter on the
administrative record and on the briefs of the parties.
{¶ 17} In his brief, Banks argued that the commission’s decision should
be reversed for two reasons. Banks asserted: 1) Natural failed to prove
either that it had just cause to discharge him or that it had followed its
disciplinary procedures in doing so; and, 2) the HO improperly evaluated the
evidence presented at the hearing.
{¶ 18} Eventually, the trial court issued its order affirming the
commission’s decision. The trial court found that the commission’s decision
“was not unlawful, unreasonable or against the manifest weight of the
evidence.”
{¶ 19} Banks filed a timely notice of appeal in this court from the trial
court’s order. He presents one assignment of error.
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{¶ 20} “I. Procedures and decisions made by the [commission]
Hearing Officer are unlawful, unreasonable, and against the manifest
weight of the evidence, and in violation of Article IV, Section 3 of The
Ohio Constitution. These errors were not recognized by the
reviewing Court of Common Pleas in its Affirmation Decision, and
appeal is made herein.”
{¶ 21} As he did in the trial court, Banks argues that Natural failed to
prove at the administrative hearing that it either terminated him from
employment for just cause, or followed its own disciplinary procedures prior
to doing so; therefore, the HO improperly evaluated the evidence, and the
commission’s decision should be reversed. This court disagrees.
{¶ 22} A reviewing court may reverse the commission’s decision only if it
is “unlawful, unreasonable, or against the manifest weight of the evidence.”
R.C. 4141.282(H); see, also, Tzangas, Plakas & Mannos v. Ohio Bur. of Emp.
Servs., 73 Ohio St.3d 694, 696, 1995-Ohio-206, 653 N.E.2d 1207. That is, all
reviewing courts, from common pleas courts to the Supreme Court of Ohio,
are charged with making the foregoing determination. Alexander v. Lowe’s
Home Ctrs., Inc., Cuyahoga App. No. 95027, 2011-Ohio-113, ¶22, citing
Williamson v. Complete Healthcare for Women, Inc., Licking App. No.
10CA0044, 2010-Ohio-3693.
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{¶ 23} Thus, appellate courts have the duty to determine whether the
agency’s decision is supported by the evidence in the record. Irvine v.
Unemployment Comp. Bd. of Rev. (1985), 19 Ohio St.3d 15, 482 N.E.2d 587.
Nevertheless, the appellate court cannot either make factual findings or
determine the credibility of witnesses. Every reasonable presumption should
be made in favor of the commission’s decision and findings of fact. Karches v.
Cincinnati (1988), 38 Ohio St.3d 12, 19, 526 N.E.2d 1350.
{¶ 24} R.C. 4141.29 establishes the eligibility requirements for
unemployment benefits. A claimant is ineligible if he is discharged for “just
cause in connection with the individual’s work.” R.C. 4141.29(D)(2)(a).
{¶ 25} “Traditionally, just cause, in the statutory sense, is that which, to
an ordinarily intelligent person, is a justifiable reason for doing or not doing a
particular act.” Irvine at 17. An employer may require specific standards of
conduct and discharge employees who violate the standards. Piazza v. Ohio
Bur. of Emp. Serv. (1991), 72 Ohio App.3d 353, 357, 594 N.E.2d 695, citing
Williams v. Ohio Bur. of Emp. Serv. (Nov. 27, 1985), Cuyahoga App. No.
49759.
{¶ 26} The critical issue is whether the employee by his actions
demonstrated an unreasonable disregard for his employer’s best interest.
Piazza, citing Kiikka v. Ohio Bur. of Emp. Serv. (1985), 21 Ohio App.3d 168,
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169, 486 N.E.2d 1233. Whether just cause exists is unique to the facts of
each case, bearing in mind the principle that the claimant has the burden of
proving his or her entitlement to unemployment compensation benefits.
Irvine.
{¶ 27} The record in this case supports the commission’s decision.
Natural submitted a copy of Banks’s employment record, which included all
the times he committed an infraction. Banks’s record of infractions was
lengthy, and it demonstrates that for each infraction he received verbal
warnings before written ones were issued.
{¶ 28} Gary Pelligrino, Natural’s owner, described the process taken
with respect to the most serious allegations made against Banks. Pelligrino
showed the circumstances had been documented, statements were obtained
from the victims and from witnesses to the incidents, and Banks was
permitted to provide his versions of what occurred in each.
{¶ 29} Banks’s female coworker provided a written description of the
July 1, 2009 incident in which she indicated she felt intimidated and
frightened by Banks’s “yelling” and use of swear words when she approached
him with a request to repack some material. Similarly, with respect to the
July 10, 2009 incident, Banks’s male coworker submitted a written statement
indicating he felt insulted by ethnically-specific words Banks used in response
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to a request for assistance. Conduct that is intimidating to either the
employer or a coworker has been deemed just cause for termination. Saini v.
Cleveland Pneumatic Co. (May 14, 1987), Cuyahoga App. No. 51913. So, too,
has conduct that tends to create a hostile or offensive work environment.
Vitatoe v. Lawrence Industries Inc., 153 Ohio App.3d 609, 2003-Ohio-4187,
795 N.E.2d 125.
{¶ 30} In conjunction with the documents, the testimony of Natural’s
witnesses proved the company’s prescribed procedures were followed, and
Banks was allowed every opportunity to rebut allegations of inappropriate
behavior. Banks’s written explanations of what he did in each of the
incidents, on the other hand, did not ring true.
{¶ 31} His testimony at the hearing suffered from the same problem.
Banks’s responses to the HO’s questions tended to be fragmentary, evasive,
and occasionally argumentative. From the evidence presented, the HO
properly could conclude Banks did not prove his entitlement to
unemployment benefits. Barksdale v. State Unemp. Comp. Rev. Comm.,
Cuyahoga App. No. 93711, 2010-Ohio-267.
{¶ 32} Since this court, like the trial court, lacks authority to substitute
its judgment for that of the commission, and the commission’s decision is
supported in the record, Banks’s assignment of error is overruled.
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Massengale-Hasan v. Dir., Ohio Dept. of Job & Fam. Serv., Cuyahoga App.
No. 92981, 2010-Ohio-251; Harrison v. Penn Traffic Co., Franklin App. No.
04AP-728, 2005-Ohio-638.
Affirmed.
It is ordered that appellees 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 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.
________________________________
KENNETH A. ROCCO, JUDGE
PATRICIA ANN BLACKMON, P.J., and
SEAN C. GALLAGHER, J., CONCUR