ANGELKOVSKI,
APPELLANT,
vs.
BUCKEYE POTATO CHIPS COMPANY, INC. ET AL.,
APPELLEES
No. 83AP-166
COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT,
FRANKLIN COUNTY
11 Ohio App.3d 159, 11 Ohio B. Rep. 242, 463 N.E.2d
1280
September 27, 1983, Decided
APPEAL: Court of Appeals for Franklin County.
HEADNOTE
Unemployment compensation -- Resolution of factual issues within
jurisdiction of board of review -- Appellate procedure -- Appeal to
common pleas court -- Court's jurisdiction limited -- Board of
review's decision affirmed, when -- "Abuse of discretion,"
construed -- R.C. 4141.29(D)(2)(a) -- "Just cause,"
construed.
SYLLABUS
1. The resolution of purely factual questions is for the
Unemployment Compensation Board of Review and its referees as
triers of fact.
2. The role of the court of common pleas upon appeal from the
Unemployment Compensation Board of Review based upon factual
grounds is limited to determining whether the board's decision is
supported by evidence in the record. A decision supported by some
competent, credible evidence going to all the essential elements of
the dispute will not be reversed as being against the manifest
weight of the evidence.
3. An appellate court, in reviewing a determination of a court of
common pleas on manifest weight of the evidence on appeal from the
board of review, may reverse only upon a showing that the trial
court abused its discretion. In this context, abuse of discretion
connotes more than an error of judgment; it implies a decision
which is without a reasonable basis, one which is clearly
wrong.
4. "Just cause" within the meaning of R.C. 4141.29(D)(2)(a) is that
kind of conduct which an ordinarily intelligent person would regard
as a justifiable reason for discharging an employee. The conduct
need not reach the level of misconduct, but there must be some
fault on the part of the employee.
COUNSEL
Ms. Marcia E. Palof and Legal Aid Society of Columbus, for
appellant.
Mr. William R. Neal, for appellee Buckeye Potato Chips Co.
Mr. Anthony J. Celebrezze, Jr., attorney general, and Mr. Marquette
Evans, for appellee Ohio Bureau of Employment Services.
JUDGES
NORRIS, J. REILLY and MCCORMAC, JJ., concur.
AUTHOR: NORRIS
OPINION
{*160} Claimant-appellant, Riste Angelkovski, appeals from an order
of the trial court affirming a decision of the Unemployment
Compensation Board of Review that he had been discharged from his
employment for just cause and, therefore, was not entitled to
unemployment compensation benefits.
Claimant's application for benefits was denied by the
administrator. Upon appeal to the board of review, a hearing was
held before a referee at which claimant was the sole witness.
Relying upon the administrator's file and claimant's testimony, the
referee affirmed the administrator's decision. The board of review
disallowed a further appeal. Claimant then appealed to the court of
common pleas, which reversed the board on the basis that its
referee should not have relied upon a memorandum of the employer,
appearing in the administrator's file, as evidence. Upon remand,
the board of review allowed a further appeal, and another hearing
was conducted, at which claimant and three representatives of the
employer appeared.
In affirming the earlier decision of its referee (which had in turn
upheld the administrator), the board of review made these findings
of fact:
"* * * On the claimant's last day of employment, he had
specifically been directed by his supervisor to pile all cardboard
removed from skids in a specific area. During the workday, the
claimant's supervisor questioned him on at least three occasions
concerning whether or not the claimant was following this
directive. On the last occasion, the claimant and the supervisor
exchanged heated words and at the conclusion of the discussion the
claimant used the term 'bitch.'"
The board then stated the legal basis for its decision:
"The claimant was discharged by Buckeye Potato Chips Company, Inc.,
on the basis of his interactions with his fellow employees and his
supervisor. Claimant had been warned concerning arguments with
fellow employees prior to the last incident which occurred between
the claimant and his immediate supervisor who was a female. A
supervisor has the authority to question a subordinate concerning
the subordinate's work output and whether or not the subordinate is
properly following directives. The claimant's actions of engaging
the supervisor in a heated exchange of words and then directing a
profanity to her clearly constitutes insubordination. The
supervisor was within her rights to question the claimant's work
and the claimant was unjustified in his reaction. From a careful
review of the entire record, it is the finding of the Board of
Review that the claimant's actions clearly constituted
insubordination and it will be held that the resulting discharge
constituted a discharge for just cause in connection with the
work."
Claimant again appealed, and the court of common pleas affirmed
finding that the board's order was "not unlawful, unreasonable, or
against the manifest weight of the evidence, and is supported by
reliable, substantial and probative evidence, and is not an abuse
of discretion * * *."
{*161} Claimant raises two assignments of error:
"I. The court of common pleas erred in finding that the board of
review's conclusions was [ sic ] not unreasonable and against the
manifest weight of the evidence and that it [ sic ] was supported
by reliable, substantive, and probative evidence; the evidence
presented did not support a conclusion that appellant's actions
constituted insubordination.
"II. The court of common pleas erred in finding that the board of
review's decision was not unlawful; the evidence presented did not
show that there was 'just cause' for discharge."
In his first assignment of error, claimant argues that the evidence
before the board did not support its decision and that the court of
common pleas therefore erred in not finding that the decision was
against the manifest weight of the evidence.
The standard of review to be applied by the court of common pleas
in appeals from decisions of the board of review is prescribed by
statute. R.C. 4141.28(O) provides, in pertinent part:
"* * * 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. * *
*"
Contrary to claimant's assertion, the board of review was permitted
to take note of the "Memorandum For The Record" prepared by the
employer's distribution manager on October 1, 1980, which
summarized the background and basis of claimant's termination. The
memorandum was a part of the administrator's file and was therefore
to be considered by the board and its referees. R.C. 4141.28(J);
Simon v. . Lake Geauga Printing Co. (1982), 69 Ohio St.2d 41 [23
O.O.3d 57].
The resolution of purely factual questions is for the board of
review and its referees as triers of the facts. Brown-Brockmeyer
Co. v. . Roach (1947), 148 Ohio St. 511, 518 [36 O.O. 167]. The
role of the court of common pleas, upon an appeal based on factual
grounds, is limited to determining whether the board's decision is
supported by evidence in the record. Kilgore v. . Bd. of Review
(1965), 2 Ohio App.2d 69, 71 [31 O.O.2d 108]. The court may not
substitute its judgment for that of the board; it may not reverse
simply because it interprets the evidence differently than did the
board. Fahl v. . Bd. of Review (1965), 2 Ohio App.2d 286 [31 O.O.2d
426]; Kilgore v. . Bd. of Review, supra. Because the statutory
standard of review is couched in terms of manifest weight of the
evidence, a decision of the board supported by some competent,
credible evidence going to all the essential elements of the
controversy will not be reversed by a reviewing court as being
against the manifest weight of the evidence. See C. E. Morris Co.
v. . Foley Construction Co. (1978), 54 Ohio St.2d 279 [8 O.O.3d
261]. Stated another way, 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. In re Parker v. .
Anheuser-Busch (Jan. 28, 1983), Franklin App. No. 81AP-718,
unreported.
The role of an appellate court, in reviewing a determination of a
court of common pleas on manifest weight of the evidence on appeal
from the board, is different. The function of the court of common
pleas, in determining whether the board's decision is against the
manifest weight of the evidence, necessarily involves the exercise
of sound discretion. Accordingly, an order of the court of common
pleas based upon a determination of the manifest weight of the
evidence, may be reversed only upon a showing that the court abused
its discretion. See Rohde v. . Farmer (1970), 23 Ohio St.2d 82 [52
O.O.2d 376]. In this context, the meaning of the term "abuse of
discretion" connotes {*162} more than an error of judgment; it
implies a decision without a reasonable basis, one which is clearly
wrong.
From our review of the record, we conclude that the court of common
pleas reasonably determined that the board's order was not against
the manifest weight of the evidence; the board's factual finding
that claimant had been directed by his supervisor to place
cardboard in a specific area, that she questioned claimant
concerning his compliance with the directive, and that he argued
with her and called her a "bitch," were supported by competent,
credible evidence.
Claimant argues that the evidence does not support a finding of
insubordination in view of it not having been established that the
person to whom he was allegedly insubordinate, Wanda Stevens, was
his supervisor. We disagree. The distribution manager's memorandum
referred to Wanda Stevens as claimant's supervisor. Claimant
himself admitted that Ms. Stevens was his "boss" and "was in
charge." A co-worker, Terry Anderson, testified that Stevens "was
either a lead person or supervisor" and that she directed claimant
and his fellow workers.
Anderson also testified that Stevens had told claimant to clean up
cardboard from the floor and he ignored her; that claimant called
her a "bitch" when she admonished him; and that the workers in the
area stopped working when claimant and Stevens argued over the
incident. Fellow worker Ron Chaffin was unsure of Stevens' title,
but said she relayed orders for management and that he followed her
orders; that he and Stevens watched claimant throw cardboard on the
floor after Stevens had told him not to; that claimant told Stevens
he would not follow her directive; and that he overheard the
argument and claimant called Stevens a "bitch." Although the
referee and board could have disbelieved this evidence and believed
instead claimant's denials, as triers of the facts they were
entitled to resolve the conflict in the evidence against
claimant.
The first assignment of error is overruled.
The second assignment of error is not well-taken in view of our
conclusion that the circumstances related above do constitute "just
cause" for discharge within the meaning of R.C. 4141.29(D):
"* * * [N]o individual may * * * be paid benefits under the
following conditions:
"* * *
"(2) * * * if the administrator finds that:
"(a) He quit his work without just cause or has been discharged for
just cause in connection with his work * * *;"
We have previously held that "just cause" is that kind of conduct
which an ordinarily intelligent person would regard as a
justifiable reason for discharging an employee. Peyton v. . Sun
T.V. (1975), 44 Ohio App.2d 10, at 12 [73 O.O.2d 8]. The conduct
need not rise to the stature of misconduct, but there must be some
fault on the part of the employee. Sellers v. . Bd. of Review
(1981), 1 Ohio App.3d 161, at 164. Here, based upon the findings of
the trier of the facts, there not only was fault, there was patent
misconduct.
The assignments of error are overruled, and the judgment of the
trial court is affirmed.
Judgment affirmed.
DISPOSITION
Judgment affirmed.