Rocky Lombardo,
Appellee
vs.
Administrator, Ohio
Bureau of Employment Services, et al.,
Appellant
Court of Appeals No. WD-96-048
COURT OF APPEALS OF OHIO, SIXTH APPELLATE DISTRICT, WOOD
COUNTY
1997 Ohio App. LEXIS 1499
April 18, 1997, Decided
Trial Court No. 96-CV-008.
COUNSEL
Veronica L. Hobbs, for appellee.
Betty D. Montgomery, Attorney General, and Mark S. Barnes, for
appellant.
JUDGES
George M. Glasser, J., James R. Sherck, J., Richard W. Knepper, J.,
CONCUR.
AUTHOR: SHERCK
OPINION
OPINION AND JUDGMENT ENTRY
SHERCK, J. This appeal comes to us from the Wood County Court of
Common Pleas which reversed an administrative agency's decision
denying appellant unemployment compensation. The common pleas court
determined that the agency acted unreasonably when it concluded
that appellant was justly discharged for using profanity. We agree
with the common pleas court and affirm its decision.
For approximately two and one-half years, appellee, Rocky
Lombardo, operated a crane at Processing Technology, Inc., in
Perrysburg, Ohio. In July 1995, appellee asked his immediate
supervisor, Tim Keefer, for permission to set his work hours ahead
two hours on July 17 so that he could attend a 2:00 p.m. civil
court appearance in which he was the plaintiff. Appellee normally
worked from 7:00 a.m. until 3:00 p.m. He proposed to work from 5:00
a.m. until 1:00 p.m. Keefer approved the request.
On July 14, 1995, the Friday prior to appellee's Monday court
appearance, Keefer informed appellee that he consulted with plant
manager, Chris Molnar, and the Monday time change would not be
approved. Furthermore, Keefer told appellee that if he left early
he would incur an attendance infraction which would result in the
loss of his monthly attendance bonus. Appellee then went to
Molnar's office. Molnar, in the presence of Keefer, confirmed the
decision. At that point, according to Molnar, appellee stated,
"that's bullshit *** that's fucking bullshit," and left the
office.
Molnar then asked appellee to return to the office. Appellee
complied and Molnar issued him a five day "suspension pending
investigation" for using profanity in violation of company policy.
Appellee was discharged from his employment at the conclusion of
the suspension period.
Following the discharge, appellee applied to appellant,
Administrator, Ohio Bureau of Employment Services, for unemployment
compensation benefits. Processing Technology, Inc., contested the
application, arguing that appellee was discharged for just cause.1
An initial determination concluded that appellee was discharged for
just cause; this determination was affirmed on reconsideration.
Appellee then appealed to the Unemployment Compensation Board of
Review. A hearing was held before a board of review hearing officer
who issued findings of fact and concluded that based on those facts
appellee's discharge was for just cause. The full board of review
affirmed that decision.
Appellee then appealed to the Wood County Court of Common Pleas
which, on the record submitted, reversed the determination of the
state agency. Appellant now brings this appeal asserting that the
common pleas court decision was erroneous.
Appellant raises the following two assignments of error.
"Assignment of Error No. 1: The Wood County Common Pleas Court
erred by exceeding its scope of review under R.C. 4141.28(O)(1) and
substituting its judgment for that of the Unemployment Compensation
Board of Review.
"Assignment of Error No. 2: The Wood County
Common Pleas Court erred by failing to affirm the Unemployment
Compensation Board of Review's determination, which was not
unlawful, unreasonable, or against the manifest weight of the
evidence.
I Appellant, in its first assignment of error, asserts that the
common pleas court exceeded its statutory authority when it
reversed the determination of the board of review.
A party dissatisfied with the decision of the Unemployment
Compensation Board of Review may appeal that determination to the
appropriate court of common pleas which shall hear the appeal
solely on the record certified by the board of review. R.C.
4141.28(O)(1). The common pleas court may reverse the board's
decision only if it was, " *** unlawful, unreasonable, or against
the manifest weight of the evidence *** ." Absent one of these
findings, the court must affirm the board's decision.
Id.
Factual determinations are the exclusive province of the board
of review. Hall v. American Brake Shoe Co. (1968), 13 Ohio St. 2d
11, 14, 233 N.E.2d 582. The common pleas court may not weigh the
evidence or substitute its judgment for the administrative hearing
officer in factual determinations. Simon v. Lake Geauga
Printing Co. (1982), 69 Ohio St. 2d 41, 45, 430 N.E.2d
468. Findings supported by some competent credible evidence will
not be reversed as against the manifest weight of the evidence.
C.E. Morris v. Foley Const. Co. (1987), 54 Ohio
St. 2d 279, 376 N.E.2d 578, syllabus. A reviewing court applies the
same standard as the common pleas court. Tzangas Plakas v.
Administrator, OBES (1995), 73 Ohio St. 3d 694, 653 N.E.2d
1207, paragraph one of the syllabus.
R.C. 4141.29(D)(2)(a) provides that a terminated employee is
entitled to receive unemployment compensation benefits unless his
or her discharge was for "just cause." "Just cause" is the type of
conduct, " *** which an ordinarily intelligent person would regard
as a justifiable reason for discharging an employee."
Angelkovski v. Buckeye Potato Chips Co. (1983), 11
Ohio App. 3d 159, 463 N.E.2d 1280, paragraph four of the syllabus.
Although the conclusions of the board of review as to the legal
import of an essentially undisputed set of facts is entitled to
some deference, the question is one of law and the reviewing court
has a duty to reverse the board's decision if it is contrary to
law. Opara v. Carnegie Textile Co. (1985), 26 Ohio
App. 3d 103, 106, 498 N.E.2d 485; R.C. 4141.28(O)(1). Whether,
considering all circumstances, a reason for terminating a
claimant's employment constitutes "just cause" is a question of
law.
In this matter, although the common pleas court's analysis of
the facts varied from that of appellant's hearing officer, the
recitation of facts in the hearing officer's report and the common
pleas court's judgment entry are materially identical.
Consequently, it cannot be said that the common pleas court usurped
the fact finding function of the board or substituted its judgment
for that of the board on factual issues. Accordingly, appellant's
first assignment of error is found not well-taken.
II Appellant's second assignment of error goes to the merits of
the "just cause" question. The hearing officer concluded that the
use of profanity "a couple of times in response to Molnar's
decision *** is inappropriate for the work situation" and
constituted just cause for appellee's discharge.
The common pleas court's analysis was much more detailed. The
court, citing principles derived from Hepner v. Board of
Review (July 20, 1978), Cuyahoga App. No. 37592, 11 Ohio
Op. 3d 144, and Wilson v. Unemply.
Comp. Bd. of Review (1984), 14 Ohio
App. 3d 309, 471 N.E.2d 168, determined that when analyzing a
discharge for profanity courts have looked to four factors: 1) the
severity of the language used, 2) whether the language was an
isolated incident or part of a pattern of behavior, 3) whether
other employees were present, and 4) whether there was provocation
for the outburst.
Examining the facts in light of these considerations, the common
pleas court noted that the language in question did not appear
directed at a person and was of no more intensity than that used by
appellee and manager Molnar in non-work related conversations.
There was no evidence of or finding that the words used by appellee
were part of a pattern. Only another manager was present when the
words were spoken. Finally, the common pleas court noted that
appellant's " *** reaction was understandable." Upon these
considerations, the court concluded that appellee's discharge was
without just cause.
There exists a large body of case law concerning profanity as
just cause for the termination of employment. Appellant cites
fourteen cases in support of its proposition that profanity in the
work place can provide just cause for discharge.2 Nevertheless,
this case is unique in that appellee's use of profanity was the
sole cause of his discharge. There was no finding that appellee's
use of profanity was directed toward anyone, was inflammatory, or
used in the presence of co-workers or customers. Appellant's
hearing officer specifically found that appellee would not have
been subject to any disciplinary consequences for an attendance
violation. Appellee did not walk off the job, threaten anyone,
damage company property, or do any other act save the bare use of
the profane phrase.3 We conclude that appellant's words alone under
these circumstances, unconnected to any other act of disobedience
or insubordination, do not constitute just cause for discharge so
as to deprive him of his unemployment compensation benefits. Our
analysis of the cases cited by appellant in support of its position
reveals not a single Ohio case in which an employee was discharged
for just cause solely on the basis of his or her use of profanity.4
This is also generally true of reported cases outside Ohio. See,
Annotation, Use of Vulgar Language as a Bar to Claim for
Unemployment Compensation (1979), 72 A.L.R.3d 106, et
seq. Consequently, whether we employ the analysis used by
the trial court or apply Ohio precedents, we conclude that
appellee's single use of profanity in this instance cannot provide
just cause for termination.
We also note that appellant maintains that appellee's use of
profanity violated a work rule. This might be persuasive had
appellee's position on appellant's progressive discipline ladder
been near the point where severe discipline was warranted. Here,
however, the employer's Director of Human Resources testified that
appellee had a relatively unblemished record and was nowhere near
discharge on the progressive disciplinary scale.
Therefore, considering the totality of the circumstances, we
concur with the common pleas court's conclusion that the board of
review's action was unreasonable and unlawful. Accordingly,
appellant's second assignment of error is found not well-taken.
Upon consideration whereof, the court finds substantial justice
has been done the party complaining and the judgment of the Wood
County Court of Common Pleas is affirmed. It is ordered that
appellant pay court costs of this appeal.
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate
pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended
7192.
George M. Glasser, J.
James R. Sherck, J.
Richard W. Knepper, J.
CONCUR.
DISPOSITION
JUDGMENT
AFFIRMED.
OPINION
FOOTNOTES
1 Appellee asserted the real reason for his discharge was in
retaliation for his part in a failed union organizing effort at the
plant. Neither the board of review hearing officer nor the common
pleas court addressed this question.
2 Hepner, Wilson, and
Opara, supra, Evans v.
Cannon (Oct. 17, 1979), Licking App. No. CA2632,
unreported, Sandridge v. Midland Steel Products
Co. (Aug. 21, 1980), Cuyahoga App. Nos. 41167 & 41185,
unreported, Thomas v. Board of Review (July 29,
1981), Richland App. No. CA1951, unreported, Pence v.
Beck-Talbert Pontiac (Mar. 16, 1982), Montgomery App. No.
7537, unreported, Angelkovski v. Buckeye Potato Chips
Co. (1983), 11 Ohio App. 3d 159, 463 N.E.2d 1280,
Hoffacker v. Pace Engineering (Dec. 18, 1987),
Geauga App. No. 1373, unreported, Allender v. Huls Printing
Co. (Apr. 25, 1988), 1988 Ohio App. LEXIS 1438, Hocking
App. No. 87CA14, unreported, Koltiska v.
Form-A-Tool (Dec. 14, 1989), Cuyahoga App. No. 56389,
unreported, Schadeck v. Administrator, OBES (June
15, 1990), Montgomery App. No. 11569, unreported, Cochran
v. Board of Review (Sept. 25, 1995), 1995 Ohio App. LEXIS
4179, Mahoning App. No. 94CA125, unreported, Schneidar v.
Administrator, OBES (Sept. 27, 1995), Athens App. No.
95CA1655.
3 Appellee denies using any adjective to modify his use of the
word "bullshit."
4 Hepner, Wilson (no just
cause), Opara (just cause; profanity coupled with
antisemitic "fighting words" likely to cause breach of peace),
Evans (profanity coupled with walking off the
job), Sandridge (no just cause),
Thomas (profanity used while threatening physical
harm to supervisor), Pence (profanity directed
toward supervisor during argument), Angelkovski
(pattern of conduct, refusal to comply with legitimate order of a
supervisor), Hoffacker (refusal to perform
legitimate order of supervisor, profanity directed to president of
company in presence of co-workers), Allender
(profanity directed toward president of company in presence of
co-workers), Koltiska (walked off the job),
Schadeck (use of profanity in disparaging employer
in presence of retail customers, walked off the job),
Cochran (profanity directed toward supervisor in
the presence of employees and customers),
Schneidar (no just cause even though remark
directed to supervisor.)