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.