[Cite as Maiorca-Notman v. Dir. Job & Family Servs., 2016-Ohio-4599.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STEPHANIE A. MAIORCA-NOTMAN, : OPINION
Appellee, :
CASE NO. 2015-T-0122
- vs - :
DIRECTOR OF JOB AND FAMILY :
SERVICES, et al.,
:
Appellant.
:
Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CV 01071.
Judgment: Affirmed.
Michael D. Rossi, Guarnieri & Secrest, P.L.L., 151 East Market Street, P.O. Box 4270,
Warren, OH 44482 (For Appellee).
Mike DeWine, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th
Floor, Columbus, OH 43215-3428, and Susan M. Sheffield, Associate Assistant
Attorney General, 20 West Federal Street, Third Floor, Youngstown, OH 44503. (For
Appellant).
CYNTHIA WESTCOTT RICE, P.J.
{¶1} Appellant, Director of Job and Family Services, appeals the judgment of
the Trumbull County Court of Common Pleas reversing the decision of the Ohio
Unemployment Compensation Review Commission, which denied unemployment
compensation benefits to appellee, Stephanie A. Maiorca-Notman. At issue is whether
the trial court’s decision was unlawful, unreasonable, or against the manifest weight of
the evidence. For the reasons that follow, we affirm.
{¶2} The statement of facts that follows is based on the evidence presented at
the hearing before the hearing officer. Miranda Commons, Chief Financial Officer of
Akeso Home Health Care, Inc. (“the employer”), testified that Stephanie A. Maiorca-
Notman (“the claimant”) was employed by Akeso as a registered nurse. Ms. Commons
said that on December 30, 2014, during Akeso’s monthly interdisciplinary meeting with
its nurses and therapists, physical therapist Jeff Jay said he was concerned about
whether one of their patients was safe at home and receiving proper care. The patient
was in her 80s; had recently been released from the hospital; was taking several
medications; was living alone; and had a few falls in her home. He said she was left
home alone for hours at a time and was unable to stand without assistance. He felt that
she should have in-home nursing care and that, if they could not resolve the matter,
they might have to contact Adult Protective Services. As a result, Ms. Commons said
the claimant was asked to talk to the patient’s daughter about having nursing come to
the home.
{¶3} Rebecca Hughes, Akeso’s Director of Nursing, testified that, based on Mr.
Jay’s concerns, she asked the claimant to go to the patient’s home to conduct a nursing
assessment and to talk to the patient’s daughter about in-home nursing for her mother.
Ms. Hughes instructed the claimant to do this because she had done the initial work
with the patient and because the claimant personally knew the patient’s daughter.
{¶4} The claimant was not represented by counsel. Instead, her testimony was
elicited through questioning by the Commission’s hearing officer. Rather than have the
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claimant recite the events as they unfolded as generally happens on direct examination,
at times his questions to her were specific or accusatory, more nearly resembling cross
examination. At other times, his questions were completely open-ended without any
direction. Thus, the claimant’s testimony is sometimes unclear and contains several
gaps. That being said, the claimant testified that, later that day, December 30, 2014,
pursuant to the employer’s instructions, she called the patient’s daughter. The claimant
told her that Mr. Jay was concerned about her mother’s condition and said she might
need in-home nursing care. The patient’s daughter said it was not necessary because
the patient’s doctor had told her he did not believe her mother needed in-home nursing.
The patient’s daughter asked the claimant what possible repercussions might occur if
she declined nursing care for her mother. The claimant said that, according to Mr. Jay,
they might have to call Adult Protective Services.
{¶5} The claimant testified it was appropriate for her to advise the patient’s
daughter, who was her mother’s authorized contact, about the possible need for in-
home nursing because such care would be a change in the patient’s plan of care and,
according to federal regulations, the patient has the right to be informed in advance
about any changes in her plan of care. The claimant also testified that if a referral to
Adult Protective Services is necessary, the agency can tell the patient about a possible
referral to give the patient the opportunity to make the changes necessary to avoid a
referral.
{¶6} Ms. Commons testified that after talking to the claimant, the patient’s
daughter became very upset and irate. She then called Mr. Jay. The patient’s daughter
told him her mother did not need nursing care. She was upset about him saying her
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mother was not safe at home and that Adult Protective Services might be needed. She
said if he called that agency, she would sue the company.
{¶7} Ms. Commons said that during the week following December 30, 2014,
the claimant was off work due to a medically-excused illness. Ms. Commons had Ms.
Hughes call the claimant at home to tell her to come into the office. On January 5,
2015, Ms. Hughes told her she was terminated for violating the company’s
confidentiality policy by telling the patient’s daughter about Mr. Jay’s concern about her
mother’s safety and that they might have to call Adult Protective Services. The reason
provided for her termination in her notice of discharge was that she violated
“organization confidentiality by disclosing to a patient’s family member items that were
discussed about the patient in a closed meeting.” During the hearing before the hearing
officer, Ms. Commons testified she discharged the claimant due to her alleged violation
of the company’s confidentiality policy.
{¶8} The claimant testified that, according to the company’s confidentiality
policy, the company’s employees cannot disclose information about the company’s
patients, company pricing, agency administration, company projects, investigations of
the agency, and agency personnel. She said she did not disclose any such information
and thus did not violate the company’s policy. Moreover, the claimant testified she was
not given any specifics as to what she could or could not discuss with the patient’s
daughter.
{¶9} The claimant filed an application with Job and Family Services for
determination of unemployment compensation benefits beginning January 11, 2015.
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{¶10} On February 4, 2015, Job and Family Services disallowed the claimant’s
application for unemployment compensation. On March 10, 2015, appellant affirmed
the disallowance of the claimant’s application, finding she was terminated by the
employer for just cause.
{¶11} On March 25, 2015, the claimant appealed the decision. Job and Family
Services transferred the case to the Unemployment Compensation Review
Commission. On April 23, 2015, a hearing was held before the hearing officer.
Following the hearing, he found that the claimant did not violate the company’s
confidentiality policy, but nevertheless found she was discharged for just cause because
her actions were in “willful disregard of the employer’s interest.” As a result, the hearing
officer affirmed appellant’s March 10, 2015 disallowance of the claimant’s application for
unemployment compensation.
{¶12} The claimant filed a request to review the hearing officer’s decision with
the Review Commission, and the Commission disallowed the request.
{¶13} The claimant filed an administrative appeal with the trial court pursuant to
R.C. 4141.282. On review of the record, the trial court reversed the Review
Commission’s decision, finding it was unlawful, unreasonable, and/or against the
manifest weight of the evidence. Appellant appeals the trial court’s judgment, asserting
the following for his sole assignment of error:
{¶14} “The Review Commission’s decision is not unlawful, unreasonable, or
against the manifest weight of the evidence and is supported by the evidence of record,
and therefore this court must reverse the common pleas court’s decision.”
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{¶15} As this court has previously recognized, the Supreme Court of Ohio has
held that the standard of review in unemployment compensation appeals of just cause
decisions issued by the Review Commission is the same for an appellate court as it is
for the common pleas court. Kovacic v. Higbee Dept. Stores, 11th Dist. Lake No. 2004-
L-150, 2005-Ohio-5872, ¶13, citing Tzangas, Plakas & Mannos v. Ohio Bur. Of Emp.
Services, 73 Ohio St.3d 694, 696 (1995). That is, “[a]n appellate court may reverse the
Unemployment Compensation Board of Review’s ‘just cause’ determination only if it is
unlawful, unreasonable or against the manifest weight of the evidence.” Id. at paragraph
one of the syllabus; see also R.C. 4141.282(H). The Supreme Court of Ohio recently
reaffirmed its opinion regarding this standard of review in Williams v. Ohio Dep’t of Job
& Family Servs., 129 Ohio St.3d 332, 2011-Ohio-2897, ¶20.
{¶16} “Under the foregoing standard, reviewing courts are not permitted to make
factual findings or determine the credibility of witnesses, which are instead reserved for
decision by the Review Commission. Irvine v. Unemployment Comp. Bd. of Rev., 19
Ohio St.3d 15, 17 (1985). The decision of the Review Commission may not be reversed
simply because reasonable minds might reach different conclusions from the same
evidence. Tzangas, supra, at 697, citing Irvine at 18.” Kovacic at ¶14. Rather,
reviewing courts are required to determine whether the commission’s decision is
supported by evidence in the record. Tzangas, supra, at 696.
{¶17} Pursuant to R.C. 4141.29(D)(2)(a), an individual is not eligible for
unemployment compensation benefits if the individual has been “discharged for just
cause in connection with the individual’s work.” “Traditionally, just cause, in the
statutory sense, is that which, to an ordinarily intelligent person, is a justifiable reason
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for doing or not doing a particular act.” Irvine, supra. In determining the existence of just
cause to discharge, the employee’s “conduct need not constitute misconduct, but there
must be a showing of some fault on the part of the employee.” Reddick v. Sheet Metal
Prods. Co., 11th Dist. Lake No. 2009-L-092, 2010-Ohio-1160, ¶22. “‘If an employer has
been reasonable in finding fault on behalf of an employee, the employer may terminate
the employee with just cause. Fault on behalf of the employee remains an essential
component of a just cause termination.’” Id., quoting Tzangas, supra, at 698.
{¶18} Appellant argues the trial court erred in finding that just cause for the
claimant’s termination must be warranted by the reason stated in the notice of
termination alone and that the hearing officer improperly changed the reason for the
claimant’s termination from the employer’s stated reason (a violation of the
confidentiality policy) to another reason (willful disregard of the employer’s interest).
{¶19} The facts in this case are quite similar to those presented in a case
decided by the Seventh District. In Bellaire v. State Unemployment Comp. Review
Comm’n, 7th Dist. Belmont No. 11 BE 3, 2011-Ohio-5167, the employer-village
discharged the claimant, a heavy equipment operator, via a letter in which the employer
cited issues related to the claimant’s performance of his final construction project as the
reason for his discharge. However, during the administrative hearing, the employer
cited problems in the employee’s performance in two other projects as well. The
hearing officer found there was no just cause for discharge and granted the employee’s
request for unemployment compensation. The trial court concluded that the
administrative decision was not contrary to law or irrational. In affirming the decision of
the trial court, the Seventh District stated:
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{¶20} “The Hearing Officer limited review to the reasons given in the July
9, 2009 termination letter, a letter which was devoid of any
reference to past problems. ‘Where a party gives a reason for his
conduct and decision touching anything involved in a controversy,
he cannot, after litigation has begun, change his ground, and put
his conduct upon another and a different consideration. He is not
permitted thus to mend his hold. He is estopped from doing it by * *
* settled principle[s of] law.’ Grand Trunk Western. R. Co. v. H.W.
Nelson Co., 116 F.2d 823, 840 (6th Cir.1941). Because the
termination letter cited only matters arising during the claimant's
performance of his final job, the termination must be warranted
when examined in light of those cited matters alone.” (Emphasis
added.) Id. at ¶13.
{¶21} Significantly, while the trial court relied heavily on Bellaire, supra, and
Grand Trunk Western, supra, appellant does not attempt to distinguish or even mention
these cases.
{¶22} Here, the only reason provided by the employer in its notice of termination
was that the claimant allegedly violated the company’s confidentiality policy by
discussing with the patient’s daughter the therapist’s concern for her mother’s safety
and the fact that Adult Protective Services might be called. The employer never cited
the purported reason found by the hearing officer in support of his decision, i.e., that the
claimant’s actions were in willful disregard of the employer’s interest. Because the
termination notice cited only the claimant’s alleged violation of the company’s
confidentiality policy in support of her termination, the discharge could only be justified
in light of the reason advanced by the employer. Once the hearing officer decided that
the claimant did not violate the company’s confidentiality policy, the employer (and the
hearing officer) were estopped from asserting another reason to support a finding of just
cause.
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{¶23} Appellant argues the hearing officer did not change the employer’s reason
for the claimant’s termination, but, rather, merely analyzed the claimant’s conduct under
the standard of willful disregard of the employer’s interest. However, the hearing officer
did change the employer’s reason for the discharge because the hearing officer’s
finding of willful disregard was based on conduct of the claimant that was different from
that which supported the claimant’s alleged violation of the confidentiality policy.
Appellant argued at oral argument that the hearing officer’s finding of willful disregard
was based on the claimant’s telephoning the patient’s daughter and threatening to call
Adult Protective Services, instead of going to the patient’s home to conduct a nursing
assessment. This conduct has nothing to do with the claimant’s alleged violation of the
confidentiality policy and thus could not be used to support the hearing officer’s finding
of willful disregard.
{¶24} It is worth noting that, even if appellant could rely on this different conduct,
the record does not support appellant’s version of events. First, nothing in the record
suggests the claimant called the patient’s daughter in lieu of making an assessment at
the patient’s home. Rather, the claimant telephoned the patient’s daughter to discuss
the physical therapist’s concerns for the patient’s safety and her need for in-home
nursing care, just as her employer instructed her to do. Further, the record does not
support appellant’s argument that the claimant threatened to call Adult Protective
Services. Rather, the patient’s daughter asked the claimant a direct question about the
possible repercussions of her declining nursing care. In response, the claimant simply
said that Adult Protective Services might be called. Moreover, after the daughter
emphatically told both the claimant and the physical therapist that her mother did not
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need in-home nursing, any further attempt by the claimant to conduct a nursing
assessment would have been futile and counter-productive.
{¶25} In any event, even if the hearing officer was entitled to find another reason
to support the employer’s decision to discharge the claimant, the hearing officer did not
reference any evidence in his decision supporting his finding of willful disregard of the
employer’s interest; the record does not support such finding; and appellant cites no
case law holding that facts similar to those presented here support such finding.
{¶26} Appellant’s reliance on Chardon Local School District Board of Education
v. Keller, Admr. of the Estate of Perry T. Yowell, Deceased, 11th Dist. Geauga No.
2013-G-3159, 2014-Ohio-5623, to support the hearing officer’s finding of willful
disregard is misplaced. In fact, not only does Yowell not support this finding, Yowell
actually supports the trial court’s reversal of the hearing officer’s decision. In Yowell,
the employee was a janitor at Chardon High School. Following the tragic shooting of
several students at the school, Yowell was called to attend to a maintenance problem in
the cafeteria, where the crimes had taken place. Based on certain actions taken by
Yowell at that time, he was discharged, but his request for unemployment compensation
benefits was granted by the hearing officer and affirmed by the Review Commission.
The trial court reversed, denying the benefits. On appeal, this court affirmed, stating:
{¶27} Yowell demonstrated an unreasonable disregard for his employer’s
best interests. Yowell, whose only direction was to turn the water
off in the cafeteria—the scene of the incident—used his position as
a school employee to voluntarily go beyond the task at hand.
Without permission, Yowell took a photograph depicting the bloody
aftermath of a tragic school shooting; Yowell did not take the
photograph to aid in the criminal investigation but for his own
personal interest. In addition to taking the photograph, Yowell
showed it to co-workers, community members, and even a student.
* * * This photograph showed the pools of blood of the students
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shot and killed during this tragedy—a tragedy that affected the
Chardon community and those associated with the school district.”
(Emphasis added.) Id. at ¶27.
{¶28} Thus, in Yowell, the finding of willful disregard of the employer’s interest
was based on the employee’s exceeding his authority and engaging in outrageous
conduct for his own personal interests. In an effort to apply Yowell here, appellant
argues that the claimant’s authority was limited to conducting “a nursing assessment,
period,” and that she had no authority to reveal to the daughter anything that was
discussed at the company meeting. However, that is not accurate. Both Ms.
Commons, the employer’s Chief Financial Officer, and Ms. Hughes, the employer’s
Director of Nursing, testified at the hearing that the claimant was instructed to conduct a
nursing assessment and to talk to the patient’s daughter about the need to have nurses
come to the patient’s home. Ms. Commons said the claimant was instructed to have
this conversation with the patient’s daughter and to perform the assessment because
she had done the initial work with the patient and personally knew the patient’s
daughter. When the daughter asked the claimant about the likely repercussions of her
declining in-home nursing care, the claimant correctly told her that Mr. Jay said that
Adult Protective Services might be called.
{¶29} Unlike Yowell, the claimant’s conduct here was clearly within the scope of
her authority. She was instructed to discuss the patient’s condition with her mother,
including the need for in-home nursing care. Moreover, the claimant’s discussion with
the patient’s daughter was performed for the benefit of the employer and the patient, not
for any personal interests of the claimant. Further, as the claimant testified, the patient
had the right to be informed in advance of the need for in-home nursing care and the
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agency could refer the matter to Adult Protective Services if the patient’s daughter did
not agree to such care. Also, there was no evidence that the claimant’s conduct was
willful. Thus, there was no evidence that the claimant’s actions were in willful disregard
of the employer’s interest. Further, by instructing the claimant to speak with the
patient’s daughter without providing her with any specific parameters for the discussion,
the blame for any unintended lapse fell on the employer, not the claimant.
{¶30} Appellant argues that, even if the hearing officer improperly changed the
employer’s reason for the claimant’s termination, it is well settled that where a judgment
is correct, a reviewing court is not authorized to reverse the judgment merely because
erroneous reasons were given by the trial court. While an appellate court can assert
different reasons to affirm a judgment that is otherwise correct, Geneva v. Fende, 11th
Dist. Ashtabula No. 2009-A-0023, 2009-Ohio-6380, ¶33, this principle does not apply
here because the hearing officer was not acting as an appellate court. Rather, since his
decision (as upheld by the Commission) is the subject of this appeal, the hearing officer
was acting as a trial court. As such, he was not permitted to reference a reason for the
claimant’s discharge other than the reason stated by the employer. Bellaire, supra.
{¶31} Upon review of the record, there was no competent, credible evidence
presented from which the Review Commission could have reasonably determined the
claimant was terminated for just cause. Thus, the decision of the trial court, reversing
the Commission’s decision, was not unlawful, unreasonable, or against the manifest
weight of the evidence.
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{¶32} For the reasons stated in this opinion, the assignment of error is overruled.
It is the order and judgment of this court that the judgment of the Trumbull County Court
of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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