COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
COUNTY OF CUYAHOGA
NO. 86898
MARIKA ROBERTSON
Plaintiff-appellant
-vs- :
DIR., OHIO DEPT. JOB & FAMILY :
SERVICES, ET AL. :
Defendants-appellees :
DATE OF ANNOUNCEMENT
OF DECISION: JUNE 29, 2006
CHARACTER OF PROCEEDING: Civil appeal from the
Court of Common Pleas
Case No. CV-550802
JUDGMENT: Affirmed.
DATE OF JOURNALIZATION:
ANN DYKE, A.J.:
{¶ 1} Plaintiff-Appellant, Marika Robertson (“Plaintiff”),
appeals the trial court’s affirmance of the Ohio Unemployment
Compensation Review Commission’s decision denying her unemployment
benefits. For the following reasons, we affirm.
{¶ 2} Appellant was employed as a security officer by Inter-Con
Security Systems Holding Corporation (“ICSS”) from May 15, 2003
until April 19, 2004. At the time she was hired, she was aware
that she needed to obtain a security officer license in order to
continue her employment with ICSS.
{¶ 3} On January 16, 2004, the Ohio Department of Commerce
(“ODC”) sent ICSS a letter stating in part:
{¶ 4} “The Division of Real Estate and Professional Licensing
has begun its review of the registration application submitted by
Marika Robertson. The Division has obtained a report from the Ohio
Bureau of Criminal Identification and Investigation (“BCII”) which
states that the registration applicant was discharged with
felonious assault, Arrest number(s) 200321078, Ohio Revised Code
Chapter(s) 2903.11, on June 12, 2003, in Cuyahoga County, Ohio.
The BCII report, however, does not indicate the final disposition
of the charge(s). In order to complete its review of the
registration application, the Division must determine whether or
not the registration applicant has been convicted on a felony
charge within the last twenty (20) years.
{¶ 5} “The Division requires that final dispositions not stated
on the rap sheets must be on the record. The Division also
requires final disposition for all misdemeanor charges. Please
make note that misdemeanor charges can be heard in both Courts,
Municipal and Common Pleas. Felony charges are only heard in
Common Pleas Court. At least one charge listed above is a felony
charge.
{¶ 6} “A copy of the official Certified Journal Entry from the
Clerk of Courts Office of the county in which the charge(s) was
filed with the final disposition stated, along with the signature
of the presiding Judge is required. Any other document from the
Court with the signature of the Judge and final disposition of the
charge(s) in question stated on it will also be acceptable. If the
documents is not signed by a Judge, it is not acceptable.”
(Emphasis in original.)
{¶ 7} Appellant provided ICSS with the following documents: a
case Disposition Request Form from the Cleveland Municipal Clerk of
Courts dated February 12, 2004 that indicated that there was no
information on file regarding the June 13, 2004 arrest for
felonious assault; a Cleveland Division of Police General Records
Division form dated February 12, 2004 indicating “6-12-2003 -
Released - Felonious assault”; and two Cleveland Municipal Court
Journals showing the final disposition of two criminal cases, none
of which dealt with Appellant’s alleged felonious assault charge.
Appellant, however, did not provide ICSS with documents from the
Cuyahoga County Court of Common Pleas. ICSS, nevertheless,
forwarded the documents provided by Appellant to the ODC.
{¶ 8} On March 5, 2004, the ODC sent another letter to ICSS
stating that the documents provided were insufficient. The letter
stated in part:
{¶ 9} “* * * We still need the following information:
{¶ 10} “A copy of the official Certified Journal Entry for the
felonious assault charge dated June 12, 2003 in Cleveland, Ohio.
The documentation you submitted is not sufficient.
{¶ 11} “In cases where you are unable to locate any record of
the stated charge(s), you must provide a letter from the clerk of
courts office that specifically states ‘no record found’.”
(Emphasis in original).
{¶ 12} The letter further provided that failure to provide such
documentation within ten days would result in the ODC denying the
Appellant’s registration for the security license.
{¶ 13} ICSS informed Appellant of the letter and indicated that
she should go to the Common Pleas Court to obtain the necessary
documentation regarding the alleged felony charge. Appellant
failed to comply with ICSS’s and ODC’s request to provide
documentation for the Common Pleas Court, and instead, provided
another letter dated March 18, 2004 from the Cleveland Municipal
Clerk of Courts indicating that Appellant had no record of a charge
for felonious assault in that court, as well as a document from the
Cleveland Police Department not mentioning any charges of felonious
assault being filed against Appellant. As a result, Appellant was
discharged when the ODC denied her application for a security
officer license as a result of her inability to produce the
requested documents.
{¶ 14} Following her discharge, Appellant filed an application
for unemployment compensation benefits on April 19, 2004. The
Director of the Ohio Department of Jobs and Family Services
(“Director”) determined Appellant was discharged from ICSS without
just cause in connection with work and allowed her claim for
unemployment compensation for the week ending April 24, 2004.
{¶ 15} ICSS timely appealed the Director’s determination and on
June 10, 2004, the Director issued a Redetermination which affirmed
the original determination.
{¶ 16} ICSS appealed the Redetermination on July 1, 2004 and the
case was transferred to the Ohio Unemployment Compensation Review
Commission (“the Commission”). On September 27, 2004, a telephone
hearing was held and Appellant failed to appear, claiming
difficulties with her telephone service. The Commission reversed
the Director’s Redetermination on October 22, 2004 and determined
that, as a result of Appellant’s failure to provide the requested
documentation from the Common Pleas Court, she was terminated with
just cause and not entitled to unemployment compensation benefits.
{¶ 17} Appellant timely appealed the Commission’s decision. In
her appeal, Appellant explained the steps she took to comply with
ICSS’s and ODC’s request for documentation regarding her felony
record, as well as provided her reasons for her absence at the
September 27, 2004 telephone hearing. The Commission issued its
Decision Disallowing Request for Review on December 2, 2004.
{¶ 18} Appellant timely appealed to the Cuyahoga County Court of
Common Pleas, which affirmed the Commission’s Decision. Appellant
now appeals to this court, asserting only one assignment of error
for our review. Her sole assignment of error states:
{¶ 19} “The court of common pleas erred in affirming the
decision of the Unemployment Compensation Review Commission whose
decision to reverse the Ohio Department of Job and Family Services
Director’s allowance of unemployment compensation benefits to
Marika Robertson, was unlawful, unreasonable and against the
manifest weight of the evidence pursuant to R.C. 4141.282(H).
(Judgment Entry filed July 22, 2005).”
{¶ 20} Appellant appeals the trial court’s affirmance of the
Commission’s decision denying her unemployment benefits. Finding
no merit to this appeal, we affirm.
{¶ 21} A reviewing court may only reverse a decision of the
unemployment compensation board of review if the decision is
unlawful, unreasonable or against the manifest weight of the
evidence. R.C. 4141.282(H); Tzangas, Plakas & Mannos v. Ohio Bur.
of Emp. Serv., 73 Ohio St.3d 694, 1995-Ohio-206, 653 N.E.2d 1207,
paragraph one of syllabus; Irvine v. Unemp. Comp. Bd. of Rev.
(1985), 19 Ohio St.3d 15, 482 N.E.2d 587. Thus, this court is not
permitted to make factual findings or determine the credibility of
witnesses. Tzangas, supra; Irvine, supra. We may only determine
whether the Commission’s decision is supported by the evidence in
the record. Id. “The fact that reasonable minds might reach
different conclusions is not a basis for the reversal of the
board’s decision. * * * Where the board might reasonably decide
either way, the courts have no authority to upset the board’s
decision.” Irvine, supra at 18. Consequently, if the evidence is
supported by competent, credible evidence, we must affirm the
Commission’s decision. MacMillan v. Flow Polymers, Inc., Cuyahoga
App. Nos. 83197, 83203, 2004-Ohio-1252.
{¶ 22} Pursuant to R.C. 4141.29(D)(2)(a), a claimant is not
eligible for unemployment compensation benefits if the claimant
quit without just cause, or if the claimant was discharged for just
cause. “Just cause” means “that which, to an ordinary intelligent
person, is a justifiable reason for doing or not doing a particular
act.” Irvine, supra at 17. Just cause determinations must be
consistent with the legislative purpose of the Unemployment
Compensation Act, to provide financial assistance to individuals
who become unemployed through no fault of their own. Id.
{¶ 23} In the instant action, a review of the record reveals
that there existed competent, credible evidence from which the
Commission could determine that Appellant was discharged for just
cause. In making its determination, the Commission found that
Appellant failed to provide her employer with the requested and
necessary documentation regarding her reported felony charge. The
Commission noted that Appellant had provided her employer with
documentation from the Municipal Court stating that the court had
no record of any felony charges associated with Appellant. She,
however, had failed to present the documentation from the Common
Pleas court even after her employer had indicated to Appellant to
go to the Common Pleas Court, not the Municipal Court, to get the
necessary documentation regarding the reported felony charge.
Therefore, since Appellant admittedly has failed to acquire
documentation from the Common Pleas Court stating that it had no
record of any felony charges associated with Appellant after her
employer informed her to do so, Appellant was at fault for not
obtaining her security license that she knew she needed to continue
her employment with ICSS. Accordingly, we find that there was
competent, credible evidence to support the Commission’s conclusion
that Appellant was discharged for just cause. Appellant’s sole
assignment of error is without merit.
Judgment affirmed.
: CONCURRING
Plaintiff-appellant : OPINION
vs. :
DIR., OHIO DEPT. JOB & FAMILY :
SERVICES, ET AL. :
Defendants-appellees :
DATE: JUNE 29, 2006
SEAN C. GALLAGHER, J., CONCURRING:
{¶ 24} I concur with the majority analysis and opinion. I am
sensitive to the views expressed by Judge Kilbane in her thoughtful
dissent outlining the good faith effort of Robertson to obtain a
simple public document. Robertson’s efforts, unfortunately, do not
invalidate the trial court’s finding that she was discharged for
just cause.
{¶ 25} The trial court’s determination was predicated on
Robertson’s failure to secure a license. It was not based on the
failure of various administrative agencies to provide Robertson the
record she requested. The license was a prerequisite to her
further employment.
{¶ 26} An appellate court cannot substitute its judgment for
that of the common pleas court except within its limited statutory
scope of review and is to determine only if the common pleas court
abused its discretion. Henley v. Youngstown Bd. of Zoning Appeals,
90 Ohio St.3d 142, 147, 2000-Ohio-493, quoting Kisil v. Sandusky
(1984), 12 Ohio St.3d. 30, 34.
{¶ 27} Where administrative appeals are concerned, an appellate
court must affirm the decision of the common pleas court unless it
finds, as a matter of law, that the decision is not supported by a
preponderance of reliable, probative, and substantial evidence. In
this instance, Robertson did not have a license and, thus, she was
discharged for good cause.
{¶ 28} This action is not a review of the failure of certain
public agencies to provide Robertson with the appropriate
documentation relating to her arrest. Had this been a mandamus
action to compel the governmental agencies to act, the result might
well have been different.
D I S S E N T I N G O P I N I O N
DATE: JUNE 29, 2006
MARY EILEEN KILBANE, J., DISSENTING:
{¶ 29} I respectfully dissent from the majority’s opinion as to
the single assignment of error as I believe the decision of the
Unemployment Compensation Review Commission (“UCRC”) disallowing
unemployment compensation benefits to Marika Robertson
(“Robertson”) was unlawful, unreasonable, and against the manifest
weight of the evidence pursuant to R.C. 4141.282(H).
{¶ 30} As the majority opinion correctly states, “[p]ursuant to
R.C. 4141.29(D)(2)(a), a claimant is not eligible for unemployment
compensation benefits if the claimant quit without just cause, or
if the claimant was discharged for just cause. ‘Just cause’ means
‘that which, to an ordinary intelligent person, is a justifiable
reason for doing or not doing a particular act.’” Irvine, supra;
Tzangas, Plakas & Mannos, v. Administrator, Ohio Bureau of
Employment Servs., 73 Ohio St.3d 694, 1995-Ohio-206; Warrensville
Heights v. Jennings, (1991), 58 Ohio St.3d 206; Shephard v. Dir.,
Ohio Dep’t of Job & Family Servs. (May 11, 2006), Cuyahoga App. No.
86518, 2006-Ohio-2313. In the present case, I find that no
competent, credible evidence exists to support the UCRC’s decision
that Robertson was fired for just cause.
{¶ 31} The evidence in the record contained numerous statements
from Robertson as well as numerous court documents from the
Cleveland Municipal Clerk of Court’s office, the Cleveland Police
Department, and the Cuyahoga County Sheriff’s Office, all stating
that no felony record exists. Robertson clearly enunciated in her
letters contained in the record, that she attempted to locate the
required certified journal entry in both the Cleveland Municipal
Court Clerk’s office as well as the Cuyahoga County Clerk of
Court’s office. Robertson explained that when she attempted to get
the required documents from the Common Pleas Clerk of Court’s
office she was informed that she was not in their system and that
there was nothing they could give her to prove this.
{¶ 32} Accordingly, Robertson made an extreme good faith effort
to comply with the demands of her employer, Inter-Con Security
Systems Holding Corporation, as well as the requirements of the
Ohio Department of Commerce. Robertson cannot be expected to prove
something that does not exist.
{¶ 33} Cleveland Police arrested Robertson on June 12, 2003 for
contempt of court and felonious assault. However, no charges were
ever filed concerning the arrest for felonious assault. As stated
by Robertson in her appellate brief, even if a complaint for
felonious assault has been filed by the arresting officer, her
initial appearance would have occurred in Cleveland Municipal
Court, not the Court of Common Pleas. Moreover, no Cleveland
Municipal Court conducted a preliminary hearing, Robertson never
waived a preliminary hearing, and no court ever bound Robertson
over to Cuyahgoa County Court of Common Pleas. Accordingly, the
court with proper jurisdiction over the felonious assault arrest
was the Cleveland Municipal Court. Therefore, Robertson complied
with the Ohio Department of Commerce’s request when she provided a
letter from the Clerk of Court’s office stating “no record found.”
{¶ 34} Moreover, when this matter was initially heard by the
Department of Job and Family Services, the hearing officer
determined that there was not enough fault on Robertson’s part and
found in her favor. The employer appealed but the Director’s
Redetermination affirmed the original determination in Robertson’s
favor.
{¶ 35} I find the Ohio Department of Commerce’s instructions
regarding where felony and misdemeanor records are located to be
misleading. Though true on their face, as illustrated above, when
an individual is arrested for a felony but never charged, no record
will exist in the Common Pleas Clerk of Courts as that individual
would never have been bound over to the Court of Common Pleas.
{¶ 36} Based on the above, I find that Robertson made a good
faith effort to comply with requirements of her employer and the
Ohio Department of Commerce. Robertson made numerous attempts to
acquire a document that did not exist and all the while, provided
the parties with documentation showing that she does not have a
felony conviction. An ordinary, intelligent person in the same
situation as Robertson would be justified in conducting himself or
herself in the same manner. Therefore, Robertson should not be to
blame for the Ohio Department of Commerce’s failure to issue her a
private security license. Because Robertson should not be blamed
for failing to obtain a license, I believe that her employer had no
just cause for her termination. Accordingly, I find that the
UCRC’s decision to disallow Robertson’s unemployment compensation
benefits is unlawful, unreasonable and against the manifest weight
of the evidence.
{¶ 37} For the abovementioned reasons, I would reverse the
decision of the trial court and remand for actions consistent with
this opinion.