STATE OF OHIO ) IN THE COURT OF APPEALS 
)ss: NINTH JUDICIAL DISTRICT 
COUNTY OF SUMMIT ) 
AUTOZONE, INC. 
Appellee 
v. 
STEVEN J. HERRING, et al. 
Appellants 
C. A. No. 22824 

APPEAL FROM JUDGMENT 
ENTERED IN THE 
COURT OF COMMON PLEAS 
COUNTY OF SUMMIT, OHIO 
CASE No. CV 05 01 0268 
DECISION AND JOURNAL ENTRY 
Dated: March 8, 2006 

This cause was heard upon the record in the trial court. Each error assigned 
has been reviewed and the following disposition is made: 
WHITMORE, Presiding Judge. 

I

{¶1} Defendant-Appellant Steven J. Herring has appealed from the 
judgment of the Summit County Court of Common Pleas that reversed the ruling 
of the Unemployment Compensation Review Commission (“Review 
Commission”) which had found that he had been terminated without just cause 
from his employment with Plaintiff-Appellee Autozone, Inc. This Court reverses. 
 
{¶2} Defendant-Appellant Steven J. Herring filed a claim for 
unemployment benefits for the week ending January 24, 2004. Initially, the 
Director of the Ohio Department of Job and Family Services found that Appellant 
was discharged by his employer, Autozone, for just cause. Accordingly, 
Appellant’s claim for benefits for the week ending January 24, 2004 was rejected. 
Appellant then filed an appeal of the initial determination. On March 15, 2004, 
the Director affirmed the original determination. 

{¶3} Appellant appealed the re-determination and the Director transferred 
jurisdiction to the Review Commission. A hearing was held before a hearing 
officer on September 17, 2004. The hearing officer reversed the Director’s redetermination 
and found that Appellant was terminated without just cause. On 
January 13, 2005, Autozone appealed to the Summit County Court of Common 
Pleas. 

{¶4} On July 8, 2005, the trial court issued its final appealable order. The 
trial court found that the hearing officer failed to consider all the undisputed facts 
on the record and as a result the hearing officer’s decision was arbitrary, 
unreasonable and against the manifest weight of the evidence. Accordingly, the 
trial court determined that the Appellant was terminated for just cause and 
reversed the Review Commission’s decision. 

{¶5} Appellant has timely appealed, asserting one assignment of error. 

II 
Assignment of Error 

“THE TRIAL COURT ERRED IN REVERSING THE DECISION 
OF THE UNEMPLOYMENT COMPENSATION REVIEW 
COMMISSION WHERE THAT DECISION WAS NOT 
UNLAWFUL, UNREASONABLE, OR AGAINST THE 
MANIFEST WEIGHT OF THE EVIDENCE.” 

{¶6} In his sole assignment of error, Appellant has argued that the trial 
court erred in reversing the Review Commission’s decision because it was 
supported by competent, credible evidence and therefore was not against the 
manifest weight of the evidence. Further, Appellant has argued that the trial court 
violated the standard of review, disregarded its limited function in reviewing the 
Review Commission’s decision, and substituted its own judgment for that of the 
Review Commission. We agree. 

{¶7} We begin with a discussion of the applicable standard of review. 
This Court “may only reverse an unemployment compensation eligibility decision 
by the Review Commission if the decision is unlawful, unreasonable, or against 
the manifest weight of the evidence.” (Quotations omitted). Markovich v. 
Employers Unity, Inc., 9th Dist. No. 21826, 2004-Ohio-4193, at ¶10. When an 
appellate court reviews the common pleas court’s review, it applies the same 
standard. Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Serv. (1995), 73 Ohio 
St.3d 694, 696-97. In such cases, this Court is “required to focus on the decision 
of the Review Commission, rather than that of the common pleas court[.]” 
Markovich at ¶10, citing Barilla v. Ohio Dept. of Job & Family Serv., 9th Dist. 
No. 02CA008012, 2002-Ohio-5425, at ¶6. 

{¶8} Under an appellate court’s limited scope of review of Review 
Commission decisions, we cannot make factual findings or determine the 
credibility of witnesses. Lorain Cty Auditor v. Unemployment Comp. Rev. Comm., 
9th Dist. No. 03CA008412, 2004-Ohio-5175, at ¶8, citing Tzangas, 73 Ohio St.3d 
at 696. However, we do “have a duty to determine whether the Review 
Commission’s decision is supported by the evidence in the record.” Id. If the 
decision is supported by evidence in the record, this Court cannot substitute its 
judgment for that of the Review Commission. Id. Furthermore, “‘[e]very 
reasonable presumption must be made in favor of the [decision] and the findings 
of facts [of the Review Commission].’” Upton v. Rapid Mailing Serv., 9th Dist. 
No. 21714, 2004-Ohio-966, at ¶11, quoting Karches v. Cincinnati (1988), 38 Ohio 
St.3d 12, 19. 

{¶9} A party is entitled to unemployment benefits if he or she quits with 
just cause or is terminated without just cause. R.C. 4141.29(D)(2)(a); Upton at 
¶13. Traditionally, in the statutory sense, “just cause” has been defined as “that 
which, to an ordinarily intelligent person, is a justifiable reason for doing or not 
doing a particular act.” (Quotations omitted). Irvine v. Unemployment Comp. Bd. 
of Review (1985), 19 Ohio St.3d 15, 17. The determination of whether an 
employer had just cause to terminate an employee is a factual question primarily 
within the province of the Review Commission, and one which reviewing courts 
are precluded from inquiring into during these administrative appeals. Roberts v. 
Hayes, 9th Dist. No. 21550, 2003-Ohio-5903, at ¶20, citing Durgan v. Ohio Bur. 
of Emp. Serv. (1996), 110 Ohio App.3d 545, 551. 

{¶10} The hearing officer made the following findings of fact. Appellant 
was discharged from employment as a direct result of an incident occurring on 
January 2, 2004. On this date, a regular customer left a large bag of apples and 
oranges for Autozone employees. The bag was left in the store break room. 
Lynette Brown, an assistant manager, stated that she was taking the fruit home and 
placed a majority of the fruit (approximately ten pounds) into another bag. 
Appellant attempted to reach for a piece of fruit from the bag, whereupon Ms. 
Brown grabbed Appellant’s hand and stabbed it repeatedly with a ballpoint pen. 
After the altercation, Appellant and Ms. Brown continued to work the remainder 
of their shift. During this time, the two again exchanged words concerning the 
altercation. 

{¶11} The hearing officer found that while Appellant’s actions were 
imprudent, they in no way justified Ms. Brown’s violent response. The hearing 
officer also found that despite Appellant’s talk concerning his utility knife, he 
never directly threatened Ms. Brown and that his statement regarding using the 
knife if Ms. Brown attacked him again did not indicate a present intent to commit 
harm. The hearing officer reasoned that Appellant’s justifiable anger towards Ms. 
Brown due to the attack mitigated the statements made subsequent to the 
altercation. Furthermore, the hearing officer reasoned that Appellant worked the 
remainder of his shift without any attempt to retaliate or injure Ms. Brown. 

{¶12} We begin our analysis by reiterating that under our standard of 
review, we are to focus on the Review Commission’s decision, not the decision of 
the trial court. Accordingly, we must first turn our attention to the hearing 
officer’s reasoning and determination that no just cause existed for Appellant’s 
termination by Autozone. 

{¶13} While we cannot make our own determination concerning the 
existence of just cause, we can review the hearing officer’s reasoning. In the 
instant matter, we find that the hearing officer employed improper reasoning as a 
matter of law in his just cause determination. From the record, it is apparent that 
the hearing officer based his decision on a standard of comparative fault. The 
hearing officer stated in his reasoning: 

“While [Appellant’s] attempt at self-help to obtain a portion of the 
fruit was imprudent, [Appellant’s] actions in no way justified Ms. 
Brown’s response. *** While the employer concluded that both 
employees were guilty of misconduct, it is apparent that Ms. 
Brown’s actions were far more egregious than [Appellant’s]. The 
fact that he had been injured by Ms. Brown’s unjustified attack 
somewhat mitigates [Appellant’s] statements made following the 
incident.” 

It is clear that the hearing officer believed that Appellant was justified in his 
actions and that while not blameless, Appellant’s conduct was far less egregious 
than Ms. Brown’s. This analysis was improper because under the Unemployment 
Compensation Act, just cause is predicated on the individual employee’s fault – 
not the employee’s fault as compared to another employee’s fault. See Markovich, 
at ¶7. 

{¶14} This court has held that “[t]he determination of what constitutes ‘just 
cause’ within the context of unemployment compensation *** involves a 
concurrent analysis of the legislative purpose of the Unemployment Compensation 
Act[.]” Roberts at ¶17, citing Irvine, 19 Ohio St.3d at 17. The purpose of the Act 
is to “provide financial assistance to an individual who had worked, was able and 
willing to work, but was temporarily without employment through no fault or 
agreement of his own.” (Quotations omitted). Irvine, 19 Ohio St.3d at 17. 
Consistent with the purpose of the Act, “a discharge is considered for just cause 
where an employee’s conduct demonstrates some degree of fault[.]” Markovich at 
¶8. See also Tzangas, 73 Ohio St.3d at paragraph two of the syllabus (holding that 
fault on behalf of the employee is an essential component of a just cause 
termination). Furthermore, we have agreed with other Ohio courts that fault 
includes behavior that displays a disregard for the best interests of the employer. 
Markovich at ¶8. 

{¶15} Ohio precedent is clear on the matter: a just cause determination 
requires an analysis of the employee’s fault in the situation leading to his 
termination. Nowhere in our precedent or that of the Ohio Supreme Court is it 
indicated that an employee is unjustly terminated simply because his misconduct 
is less egregious than another employee’s. The standard is just the opposite. The 
Ohio Supreme Court has clearly explained the standard: 

“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.” (Emphasis added). 
Tzangas, 73 Ohio St.3d at 697-698. 

{¶16} Nowhere in its decision did the Review Commission find that 
Appellant was blameless regarding the altercation at Autozone. Instead, the 
hearing officer based his decision on the reasoning that Appellant’s behavior was 
imprudent and that his misconduct was less egregious than Ms. Brown’s. This 
comparative fault analysis flies in the face of traditional just cause determination 
and is therefore improper. 

{¶17} We repeat we are not making any findings of fact nor making a just 
cause determination. We are precluded from doing so by the applicable standard 
of review. We are simply stating that the Review Commission decided that no just 
cause existed for Appellant’s termination based on the comparative fault of the 
two participants in the altercation when Ohio precedent clearly states that an 
employee’s individual fault is the essential component of a just cause 
determination. See Markovich at ¶9 (holding an “employee must provide evidence 
his discharge was without just cause by demonstrating he was without fault in the 
incident resulting in his termination to show he is entitled to unemployment 
compensation.”). 

{¶18} With regard to the trial court’s reversal of the Review Commission’s 
decision, we find that trial court did overstep its boundaries as a reviewing court.1 
We find that the trial court’s conclusions that the hearing officer did not take into 
account all of the facts and did not consider whether Appellant’s conduct was still 
detrimental to Autozone were presumptuous. Additionally, we agree with 
Appellant that the trial court improperly made inferences and findings of fact 
when it decided that Appellant’s conduct was indeed detrimental to Autozone. 
Most importantly, however, we find that the trial court erred when it determined 
that Appellant was terminated for just cause. As discussed supra, neither this 
Court, nor the trial court may make a just cause determination on administrative 
appeal. See Roberts and Durgan, supra. 

{¶19} Based on the foregoing, Appellant’s sole assignment of error has 
merit. 

III 

{¶20} The judgment of the trial court is reversed and the cause remanded. 
The trial court is instructed to remand the matter to the Review Commission for 
rehearing consistent with this opinion. 

Judgment reversed 
and cause remanded.