Stephen
W. Watling,
Appellant-Appellant,
vs.
The Kroger Company et al.,
Appellees-Appellees.
No. 94APE05-718
COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN
COUNTY
1994 Ohio App. LEXIS 4642
October 13, 1994, Rendered
APPEAL from the Franklin County Court
of Common Pleas.
COUNSEL
Handelman & Kilroy, Robert K. Handelman and Cathy J. Levine,
for appellant.
Porter, Wright, Morris & Arthur, and Christopher C. Russell,
for appellee The Kroger Company.
Lee Fisher, Attorney General, and Christopher King, for appellee
Administrator, Ohio Bureau of Employment Services.
JUDGES
TYACK, J., YOUNG and PETREE, JJ., concur.
AUTHOR: TYACK
OPINION
TYACK, J.
On July 28, 1992, Stephen W. Watling entered a plea of no
contest in the Licking County Municipal Court to a misdemeanor
charge of telephone harassment. The charge stemmed from numerous
phone calls made to the home of Dennis Osborne, the general manager
of Tamarack Farms Dairy, a subsidiary of The Kroger Company
("Tamarack"), where Mr. Watling had been employed since 1980.
As a result of his no contest plea, Mr. Watling was fined $ 100,
ordered to pay court costs, and ordered to serve ten days in jail.
The jail term was suspended, and he was placed on probation for one
year. A term of his probation required Mr. Watling to avoid any
contact with Mr. Osborne outside of work.
After Mr. Watling's sentencing, Tamarack terminated his
employment, deeming his "gross misconduct" violative of company
policy. Further pertinent facts are set forth below in our
discussion of Mr. Watling's asserted error.
On August 20, 1992, Mr. Watling filed an application for
unemployment compensation benefits. The administrator of the Ohio
Bureau of Employment Services initially determined that Mr. Watling
was fired for just cause in connection with work and, accordingly,
disallowed his claim. The administrator's initial determination was
affirmed upon Mr. Watling's request for reconsideration.
On November 16, 1992, Mr. Watling filed an appeal with the Ohio
Unemployment Compensation Board of Review. Following a hearing, a
referee affirmed the administrator's decision disallowing Mr.
Watling's claim. Mr. Watling then filed an application to institute
a further appeal pursuant to R.C. 4141.28(L). The board disallowed
Mr. Watling's application, thus affirming the decision of the
referee.
Pursuant to R.C. 4141.28(O), Mr. Watling brought an
administrative appeal in the Franklin County Court of Common Pleas,
which ultimately affirmed the decision of the board. Mr. Watling
(hereinafter "appellant") has timely appealed to this court,
assigning a single error for our consideration:
"THE TRIAL COURT ERRED IN AFFIRMING THE DECISION OF THE BOARD OF
REVIEW DENYING UNEMPLOYMENT COMPENSATION BENEFITS WHERE THE RECORD
CONTAINS NO EVIDENCE THAT THE OFF-DUTY CONDUCT HAD ANY CONNECTION
WITH THE WORKPLACE OR ANY EFFECT ON THE EMPLOYER AND WHERE THE
EMPLOYER TESTIFIED THAT THE DISCHARGE WAS BASED ON
MISINTERPRETATION OF THE SENTENCING ORDER IN CLAIMANT'S CRIMINAL
CASE."
The transcript of the hearing before the board reveals the
following additional facts related to appellant's termination. In
February of 1992, Mr. Osborne notified the Heath Police Department
that he had received numerous harassing phone calls, up to seven
per day, at his home during the early morning hours over a
three-week period. A tracer installed on Mr. Osborne's telephone
indicated that the calls originated from appellant's home, and Mr.
Osborne had no idea why appellant made the calls. Mr. Osborne
testified that appellant was discharged for violating company
policy regarding "gross misconduct."
Mr. Osborne acknowledged that appellant continued to work at
Tamarack subsequent to his arrest and was not discharged nor even
disciplined until after his conviction. He further acknowledged
that appellant received a favorable annual work performance
evaluation following his arrest. Appellant had been a good,
hard-working employee during his thirteen-year tenure with
Tamarack. Mr. Osborne was of the opinion that one reason for
appellant's termination was language in the court's sentencing
entry requiring appellant to have no contact with Mr. Osborne for a
one-year period. Mr. Osborne did not check with the sentencing
judge to clarify whether this no-contact provision meant only
non-work related contact.
"Claimant's Exhibit #5" was identified as a letter from the
judge explaining that the provision required appellant to avoid
contact with Mr. Osborne outside of work; the provision was not
intended to interfere with nor preclude appellant's continued
employment with Tamarack.
Appellant denied making the harassing phone calls. He testified
that financial difficulties compelled him to change his plea from
not guilty to no contest when he could not afford to pay additional
attorney's fees. Appellant had paid $ 5,000 to his attorney
already, and the attorney demanded $ 10,000 more to try the
misdemeanor case. Appellant introduced into evidence copies of
correspondence from the attorney which verified this financial
situation.
Appellant's claim for unemployment compensation benefits was
denied based upon a finding that he was discharged from employment
"for just cause in connection with work." R.C. 4141.29(D)(2)(a). In
affirming the administrator's decision, the referee concluded that
appellant was discharged for just cause in connection with work
because he was convicted of harassing Tamarack's general manager, a
violation of Tamarack's policy regarding gross misconduct.
The standard of review to be employed by a court of common pleas
in administrative appeals from the board is set forth in R.C.
4141.28(O) as follows:
"*** If the court finds that the decision was unlawful,
unreasonable, or against the manifest weight of the evidence, it
shall reverse and vacate such decision or it may modify such
decision and enter final judgment in accordance with such
modification; otherwise, such court shall affirm such decision. ***
"
Recognizing its very limited scope of review, the court of
common pleas also affirmed, finding that the referee's decision was
not unlawful, unreasonable, or against the manifest weight of the
evidence. The court reasoned that "it seems obvious that this
criminal off-duty conduct could impair Appellant's relations with
his employer." (Decision at 2.)
Appellant continues to maintain that he was not guilty of
telephone harassment, notwithstanding the judicial determination of
guilt made following his no contest plea. However, he essentially
argues that even if he were actually guilty of such conduct, he was
discharged without just cause because such off-duty, off-premises
conduct had no "connection with work." He emphasizes the apparent
lack of any actual negative impact upon the workplace atmosphere in
general or his own work performance.
As was the court of common pleas, we are limited to a very
narrow scope of review in this matter. We may reverse the lower
court only upon a showing that it abused its discretion in finding
that the board's decision was not unlawful, unreasonable or against
the manifest weight of the evidence.
Angelkovski v. Buckeye Potato Chips
Co. (1983), 11 Ohio App.3d 159, 161, 463 N.E.2d 1280,
citing Rohde v. Farmer (1970), 23 Ohio St.2d 82,
262 N.E.2d 685. "'Abuse of discretion' connotes more than an error
of judgment; it implies a decision without a reasonable basis, one
which is clearly wrong." Angelkovski at 161-162.
Further, absent such an abuse of discretion, we may not substitute
our judgment for that of the board or the trial court. "[A]
reviewing court will not reverse on the manifest weight of the
evidence where reasonable minds could weigh the evidence and arrive
at contrary conclusions." Id. at 161. Nor will a
reviewing court reverse on manifest weight of the evidence where
the board's decision is supported by some competent, credible
evidence going to all the essential elements at issue. See
C.E. Morris Co. v. Foley Construction Co. (1978),
54 Ohio St.2d 279, 376 N.E.2d 578.
We cannot say that the trial court abused its discretion in
finding the board's decision to be supported by some competent,
credible evidence that appellant's conduct constituted sufficient
just cause in connection with work to warrant denial of benefits.
Appellant was found guilty of telephone harassment, the victim of
which was his employer's general manager. It is not within our
authority nor our duty to relitigate the merits of the underlying
criminal conviction. While we might have interpreted the evidence
somewhat differently than did the board, the record before us does
not satisfy the requisite abuse of discretion standard by which we
are bound.
The assignment of error is overruled. Therefore, the judgment of
the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
YOUNG and PETREE, JJ., concur.
DISPOSITION
Judgment
affirmed.