Re Claim of: Thomas J.
Sheeran, Plaintiff-Appellant,
vs.
State
of Ohio, Bureau of
Employment Services et al.,
Defendants-Appellees
NO. 84AP-324
COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT
Slip Opinion
August 9, 1984
APPEAL from the Franklin County Court
of Common Pleas.
COUNSEL
MR. RUSSELL P. HERROLD, III, for appellant.
MR. ANTHONY J. CELEBREZZE, JR., Attorney General, and MR. HOWARD M.
SANDERS, for appellee State of Ohio, Bureau of Employment
Services.
MR. MICHAEL MILLER, Prosecuting Attorney, and MS. JOAN G. ROBINSON,
for appellee Franklin County Engineer.
JUDGES
REILLY and VICTOR, JJ., concur.
VICTOR, J., retired, of the Ninth Appellate District, was assigned
to active duty under authority of Section 6(C), Article IV,
Constitution.
AUTHOR: MCCORMAC
OPINION
Thomas J. Sheeran, plaintiff-appellant, was discharged from his
employment as an engineer intern with the Franklin County Engineer,
defendant-appellee. He applied for unemployment compensation. The
administrator of the bureau denied the claim on the basis that
Sheeran had been discharged for just cause for failure of good
behavior and conduct unbecoming a professional employee.
Sheeran appealed the administrator's decision to the
Unemployment Compensation Board of Review ("board"). An evidentiary
hearing was conducted before a referee who affirmed the decision of
the administrator. The referee's decision was affirmed by the
board.
Sheeran then appealed to the Franklin County Court of Common
Pleas, where the decision of the board was affirmed as being
supported by the evidence and neither unreasonable nor
arbitrary.
Sheeran has appealed to this court, asserting the following
assignments of error:
1. "The report of the referee adopted by the Board of Review, is
not supported by the manifest weight of the evidence and the trial
court erred when it found the Board's order to be so
supported."
2. "The Trial Court applied the wrong standard of law in
determining requisite cause for discharge ipso facto constitutes
just cause to deny unemployment benefits."
3. "The Trial Court should have reached a finding of no just
cause in connection with work exists because claimant was given no
final warning as required by law."
Appellant first asserts that there are factual errors in the
findings of the referee which are not supported by the manifest
weight of the evidence. Appellant claims that the referee's finding
that "claimant sought out three employees with whom he had
grievances and intentionally poured beer on them" is not supported
by the record, as the record only supports that his actions were
accidental in this respect.
Appellant admitted that he spilled beer on three fellow
employees of the engineering office at a Christmas party held for
employees and families. In each case, beer was spilled on a fellow
employee with whom appellant had had previous problems. While
appellant testified that it was all accidental, clearly the direct
testimony and reasonable inferences therefrom strongly support a
contrary holding, as noted by the referee in his observation that
the claim that appellant happened to spill beer on three employees
with whom he had grievances accidentally, but no others, stretched
credulity past its breaking point. Bock, the personnel officer of
the engineer's office, testified that appellant poured beer on his
back as appellant walked by him, and then sarcastically said,
"Excuse me, Stevie-poo". McGinty, the fiscal officer for the
engineer's office, testified that appellant belligerently accosted
him, invited him to go outside, and shoved him a couple of times,
and that he poured beer over his jacket sleeve. He said that
appellant had a beer can in his hand and poured it on his sleeve
and said, "Now, send me the bill for it". Mack, the chief deputy
engineer, testified that he was talking to another person, felt a
bump, and turned around and it was appellant, and that as appellant
walked away he noticed beer on his coat. Mack also stated that he
saw appellant pour beer on McGinty.
Appellant also contends that the referee's finding that he
invited several employees to step outside to settle their
differences was not sufficient to support a finding that these
matters were an "invitation to fisticuffs". McGinty testified that
he was invited outside. Mack testified that appellant offered to
step outside with several people, including him, to "Have at it".
It was reasonable for the referee to conclude that the invitation
to step outside was to engage in physical combat such as
fisticuffs.
Appellant further contends that the referee erred in finding
that appellant referred to several employees and their spouses in
abusive language. That finding is clearly supported by the record.
Appellant testified that he had had previous problems with Diane
Rohletter, a secretary, for using rude and extremely impolite
language. In fact, he had been suspended for one day that week for
telling her to shut up. In regard to this incident at the party,
appellant said, "I think I called her a Bitch". His justification
was, "Hey, this is a free country and when somebody deliberately
lies then I'm gonna give 'em a piece of my mind, * * * I didn't
dare approach her on the job. I mean, you know, if I breathed heavy
even I'd probably get suspended. I figured at a Christmas party,
you know? I knew I couldn't go over there and uh, beat on her or
nothin' but I didn't think it was a crime to call her a 'Bitch'.
Hell, they say that on T.V. now." There was also testimony that
appellant told McGinty's wife to "f--- off". When asked about
whether he said that, appellant replied, "I certainly did", and
then tried to justify his conduct.
The record overwhelmingly supports the factual findings of the
referee in all of the respects of which appellant complains.
Appellant's first assignment of error is overruled.
Appellant secondly contends that his discharge was not with just
cause, as defined by R.C. 4141.29(D)(2)(a), which disqualifies an
employee discharged for just cause from receiving unemployment
benefits, because the behavior for which he was discharged was not
related to his employment.
Appellant had been disciplined on several occasions prior to
being discharged because of his activity at the office Christmas
party. All of the discipline involved problems with fellow
employees rather than appellant's technical ability to perform
engineering duties. The county engineer testified that he had
talked to appellant many, many times about his conduct and his need
to get along with fellow employees.
It is obvious that appellant's conduct at the office Christmas
party was intimately connected to the persons and problems that
stemmed from his employment. Appellant poured beer on persons whom
he did not like and invited them outside. He used rude and
insulting language to an employee with whom he had had two previous
altercations, and he insulted the wife of an employee with whom he
had had problems. His justification appeared to be that he knew he
would get fired if he did this during working hours but that he
could not be disciplined if he did it at the Christmas party.
Appellant's conduct was closely related to his work and,
although it occurred at an office Christmas party rather than
during formal working hours, it was conduct that did not have to be
tolerated by the employer. If appellant had sought out his fellow
employees at their homes and engaged in this type of conduct, it
would be conduct connected with his employment and conduct for
which he could be justifiably discharged. In short, there was
sufficient nexus with his employment to regard it as conduct for
which there was discharge for just cause in connection with his
work as required by R.C. 4141.29(D)(2)(a). See In re
Chase (1976), 50 Ohio App. 2d 393, where the off-duty
conduct of a state highway patrolman was held to be sufficiently
related to his employment to constitute grounds for discharge for
just cause in connection therewith because persons who witnessed
his conduct knew him to be a highway patrolman. To constitute just
cause for discharge in connection with work, the conduct is not
restricted solely to what happens during formal hours of work as
long as the conduct is related to the actor's work.
Appellant's second assignment of error is overruled.
Appellant finally contends that he was improperly discharged
because he was not given a final warning prior to discharge. He
contends that he should have been warned that he would be
discharged if he misbehaved at the Christmas party, or warned at
the Christmas party, and that he could not be discharged with just
cause if that warning was not given. There is no validity to that
contention. Additionally, appellant did persist in additional
obnoxious conduct after being warned, both by the engineer and at
the party.
Appellant also contends that the engineer's employee handbook
states that progressive discipline shall be applied and that his
"rude behavior," at most, should have resulted in a three or five
day suspension rather than discharge. This issue was not raised at
the court of common pleas, nor is there any substance to it.
Appellant was warned that he may be given more severe discipline
after his previous suspension if he persisted in his rude behavior.
The handbook permits immediate discharge in appropriate cases.
Appellant's conduct at the Christmas party could be found to have
so finally disrupted any possibility of amicable work relations
with those with whom he had to work at the engineer's office to
render further employment of him untenable. Thus, there was ample
basis for immediate discharge for just cause in connection with his
work following the series of events at the Christmas party.
Appellant's third assignment of error is overruled.
Appellant's assignments of error are overruled and the judgment
of the trial court is affirmed.
DISPOSITION
Judgment
affirmed.