[Cite as Caserta v. Ohio Job & Family Servs.,

.]

IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO

CHRISTINA M. CASERTA :

Plaintiff-Appellant : C.A. CASE NO. 2011-CA-63

vs. : T.C. CASE NO. 2011-CV-517

DIRECTOR OHIO JOB & FAMILY : (Civil appeal from the SERVICES, ET AL. Common Pleas Court) : Defendant-Appellee

.........

OPINION

Rendered on the 2nd day of November , 2012.

.........

WILBURN L. BAKER, Atty. Reg. No. 0076844, 1423 Research Park Drive, Beavercreek, Ohio 45432 Attorney for Plaintiff-Appellant

YVONNE TERTEL, Atty. Reg. No. 0019033, 30 East Broad Street, 26th Floor, Columbus, Ohio 43215 Attorney for Defendant-Appellee Ohio Job & Family Services

DOUGLAS D. BRANNON, Atty. Reg. No. 0076603, 130 West Second Street, Suite 900, Dayton, Ohio 45402 Attorney for Defendant-Appellee Brannon & Associates

......... FROELICH, J.

{¶ 1} Christina M. Caserta appeals from a judgment of the Greene County Court

of Common Pleas, which affirmed the decision of the Unemployment Compensation Review

Commission denying her unemployment compensation benefits because she had been

terminated by her employer for just cause. For the following reasons, the trial court’s

judgment will be affirmed.

I.

{¶ 2} The testimony and exhibits before the Unemployment Compensation

Review Commission hearing officer reveal the following facts.

{¶ 3} From January 23, 2004 until August 20, 2010, Caserta was employed by

Dwight D. Brannon’s law firm, Brannon & Associates, as a legal secretary. On Thursday,

August 12, 2010, James Parsons, a client of the firm, came to the office and paid $750 as a

retainer. Caserta accepted the payment from Parsons and wrote him a receipt for $750 on

firm letterhead. Caserta testified that Parsons provided the payment in an envelope and that

she did not look inside the envelope before writing the receipt. Caserta indicated that she

was very busy that day and that she relied on the representations of a firm attorney (who

found Caserta in the copy room and asked her to write Parsons a receipt) and of Parsons that

there was a check for $750. Caserta stated that, “on a normal day, [she] would have opened

[the envelope], checked it.” Caserta stated that she made a copy of the receipt, clipped it to

the envelope, and placed them in her desk. Attorney Douglas Brannon testified that it was

office policy to verify that the check was “an acceptable form of payment” (i.e, properly

prepared and dated) before it was accepted, make a copy of the check, place the copy in the

client’s file, and give the check to the office manager. 3

{¶ 4} In contrast to Caserta’s testimony, Parsons testified that he gave Caserta

$750 in cash and that he did not use an envelope. Parsons did not recall at the hearing

whether Caserta counted the money before giving him a receipt, but his prior affidavit

reflected that she had. Dwight Brannon testified that it was the firm’s policy that any cash

received would be given to an attorney in the law firm or the office manager.

{¶ 5} Later that day, Caserta informed Douglas Brannon that Parsons had paid the

retainer. Douglas Brannon testified that he questioned Caserta about the payment and she

“sort of dodged the questions a few times.” Caserta eventually told him that Parsons had

paid in cash and that the money had been given to Dwight Brannon. Douglas Brannon

testified that he spoke with his father, Dwight, later that evening and Dwight Brannon stated

that he had not received the cash. Dwight Brannon indicated to Douglas Brannon that he

would ask Caserta what happened to the retainer. In her testimony, Caserta agreed that she

told Douglas Brannon that Parsons had paid the retainer; however, she denied telling him

that she had given cash to Dwight Brannon.

{¶ 6} The following day, Dwight Brannon questioned Caserta about Parson’s

payment. Caserta assured him that Parsons had paid with a check. She told him that the

check was in her desk in an envelope. Caserta testified that she still assumed the payment

was in the form of a check; she had not yet looked inside the envelope.

{¶ 7} Three days later, on Monday, August 16, 2010, Caserta reported to Douglas

Brannon that Parsons had come to the office and exchanged the check for $750 in cash.

Caserta acknowledged at the hearing that this statement to Douglas Brannon was not 4

truthful. According to Caserta, she discovered that morning that the envelope in her desk

contained cash rather than a check. She believed that she would be criticized and yelled at

by Dwight Brannon if she reported the truth. It is undisputed that Caserta provided the

$750 in cash to Douglas Brannon that morning.

{¶ 8} Dwight Brannon subsequently contacted Parsons regarding his payment.

Parsons told Brannon that he gave cash to Caserta and that she counted the cash before

giving him a receipt. Dwight Brannon then confronted Caserta concerning Parsons’s

statements. Caserta admitted to Dwight Brannon that she had not been truthful with

Douglas Brannon when she indicated that Parsons had exchanged his check for cash.

Caserta was discharged by Dwight Brannon because he suspected that she was attempting to

steal money and for not being truthful when questioned about her actions. Caserta

acknowledged at the hearing that her job required “strict honesty,” that it was important that

she be able to handle cash, and that office policy required her to turn cash over to an attorney

or the office manager when it was received.

{¶ 9} Caserta applied for and was granted unemployment compensation benefits

from the Ohio Department of Job and Family Services. Dwight Brannon appealed, and the

Director’s Redetermination affirmed the initial decision. Brannon appealed the Director’s

Redetermination, and the matter was transferred to the Unemployment Compensation

Review Commission.

{¶ 10} A hearing was held on March 11, 2011. In a written decision, the hearing

officer concluded that Dwight Brannon did not establish that Caserta stole money or 5

attempted to steal money from the law firm. He found, however, that Caserta had lied on

Monday, August 16, 2010, when she “reported to Douglas Brannon that Parsons had come to

the office and exchanged the check for $750 in cash.” The hearing officer did not make

explicit factual findings regarding the credibility of the witnesses or, specifically, whether

Parsons had used an envelope when making his payment, whether Caserta had counted the

cash when it was received, or whether Caserta knowingly misrepresented that she had

received a check when she was questioned about the payment by the Brannons on August 12

and 13.

{¶ 11} The hearing officer concluded that the evidence established that Caserta

“was not truthful when informing an attorney of the situation that had not occurred.” He

wrote that Caserta’s employer “had a right to expect an individual working in a law firm to

be truthful regarding the payment of fees by clients,” and that Caserta’s failure to do so

constituted misconduct. The hearing officer thus concluded that Caserta’s discharge was

for just cause in connection with her work. The Director’s Redetermination was reversed,

and Caserta was ordered to repay the unemployment compensation benefits that she had

received.

{¶ 12} Caserta requested a review of the hearing officer’s decision before the

Unemployment Compensation Review Commission. Caserta’s Request for Review was

disallowed. Caserta subsequently appealed to the Greene County Court of Common Pleas.

The court reviewed the administrative record, accepted briefs from the parties, and heard

oral argument on the issues. The trial court concluded that the Review Commission’s 6

decision was “not unlawful, unreasonable or against the manifest weight of the evidence,”

and that based on the administrative record, the Review Commission properly found that

Caserta had been dismissed for just cause.

{¶ 13} The trial court provided a detailed explanation of its findings at the

conclusion of the oral hearing held on September 30, 2011. First, the court went through

the hearing officer’s findings and identified the support for those findings by referencing

specific portions of the transcript of the administrative hearing. Second, the trial court

rejected Caserta’s claim that Dwight Brannon had not appealed the granting of

unemployment benefits due to alleged untruthfulness by Caserta, noting that Brannon had

mentioned untruthfulness in his September 2010 appeal. Third, the trial court explained

that the hearing officer’s finding of just cause was not unlawful, unreasonable, or against the

manifest weight of the evidence, because Caserta had not told “one white lie.” The court

stated that it “counted” multiple lies by Caserta, including (1) on August 12, Caserta told

Douglas Brannon that Parsons had paid $750 with a check, (2) Caserta told Douglas

Brannon that she had received cash and had given it to Dwight Brannon, (3) on August 13,

Caserta said that she received a check, and (4) Caserta told her employer that the check was

exchanged for $750 in cash. The trial court explained that there was “not just one little

white lie here. There’s a whole series of lies over a period of three business days.” It

continued:

A law firm by its nature operates to uphold the law. Honesty and

integrity are important norms in the operation of a law firm. And Ms. 7

Caserta admits this on page 49 of her transcript she says: “Would you say that

the job involves strict honesty?” That’s line 25 and line 26 she says:

“Correct.”

But there’s more, the relationship between an attorney and his or her

staff is one of trust and confidence. I practiced law for twenty-seven years,

privately. I’m aware of what goes on in a law office and what the nature of

that trust is. Once that relationship is broken by a staff member being

untruthful continued employment is not in the best interest of the law firm.

Knowledge that the claimant’s dishonesty in this case violated law office

norms, but it also put the firm’s attorney client relations at risk by dragging

Mr. Parsons into this situation. Claimant, by her actions, demonstrated an

unreasonable disregard for her employer’s best interest. The employer was

reasonable in finding fault on the behalf of the claimant and accordingly

terminated her with just cause.

After reviewing the certified record provided by the commission and

considering all the arguments I do not find that the decision of the

commission was unlawful, unreasonable, or against the manifest weight of

the evidence. * * *

(Emphasis sic.)

{¶ 14} Caserta appeals from the trial court’s affirmance of the Unemployment

Compensation Review Commission’s denial of unemployment benefits. 8

II.

{¶ 15} Caserta raises two assignments of error. In her first assignment of error,

Caserta claims that the trial court’s decision was “unlawful, unreasonable and against the

manifest weight of evidence,” because the court made factual findings beyond those found

by the hearing officer, namely that Caserta told multiple untruthful statements over the

course of several business days. Caserta’s second assignment of error contends that the

hearing officer’s decision was unlawful, unreasonable, and against the manifest weight of

the evidence because her actions did not constitute “just cause” for her dismissal. We will

address Caserta’s claims in reverse order.

{¶ 16} R.C. 4141.29 establishes the requirements for eligibility for unemployment

compensation benefits. Under that statute, a claimant is not eligible for benefits if he or she

is discharged for “just cause in connection with the individual’s work.” R.C.

4141.29(D)(2)(a). “Traditionally, just cause, in the statutory sense, is that which, to an

ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act.”

Irvine v. Unemp. Comp. Bd. of Review,

,

(1985);

Williams v. Ohio Dept. of Job & Family Servs.,

,

,

, ¶ 22. “Just cause for discharge may be established by proof that the employee

violated a specific company rule or policy, * * * so long as the policy was fair and fairly

applied.” Jones v. Bd. of Review, 10th Dist. Franklin No. 93AP-430 (Sept. 28, 1993).

{¶ 17} The “just cause” determination must be made in light of the legislative

purpose underlying the Unemployment Compensation Act. Williams at ¶ 22. [Cite as Caserta v. Ohio Job & Family Servs.,

.]

“The [A]ct was intended to provide financial assistance to an

individual who had worked, was able and willing to work, but was

temporarily without employment through no fault or agreement of his own.”

***

The Act does not exist to protect employees from themselves, but to

protect them from economic forces over which they have no control. When

an employee is at fault, he is no longer the victim of fortune’s whims, but is

instead directly responsible for his own predicament. Fault on the

employee’s part separates him from the Act’s intent and the Act’s protection.

Thus, fault is essential to the unique chemistry of a just cause termination.

(Citations omitted.) Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Serv.,

,

(1995). Nevertheless, we keep in mind that the

unemployment compensation statute must be liberally construed in favor of awarding

benefits to the applicant. Clark Cty. Bd. of Mental Retardation & Dev. Disabilities v.

Griffin, 2d Dist. Clark No. 2006-CA-32,

; R.C. 4141.46.

{¶ 18} “Each unemployment compensation case must be considered upon its

particular merits in determining whether there was just cause for discharge.” Johnson v.

Edgewood City School Dist. Bd. of Edn., 12th Dist. Butler No. CA2008-11-278,

, ¶ 14, citing Warrensville Heights v. Jennings,

,

(1991). The discharged employee bears the burden of persuasion to prove that

he or she is entitled to unemployment compensation. Silkert v. Ohio Dept. of Job & Family

Servs.,

,

,

(2d Dist.). [Cite as Caserta v. Ohio Job & Family Servs.,

.]

{¶ 19} An appellate court’s scope of review in employment compensation appeals

is quite limited. Silkert at ¶ 26. An appellate court may reverse the Unemployment

Compensation Review Commission’s determination of “just cause” only if it is “unlawful,

unreasonable or against the manifest weight of the evidence.” Tzangas at paragraph one of

the syllabus. “All reviewing courts, including common pleas, courts of appeal, and the

Supreme Court of Ohio, have the same review power and cannot make factual findings or

determine witness credibility.” Silkert at ¶ 26; see also Williams at ¶ 20. The reviewing

court must affirm the Review Commission’s decision if it is supported by some competent,

credible evidence. Williams at ¶ 20.

{¶ 20} Caserta claims that the Review Commission’s finding of just cause was

unlawful, unreasonable, and against the manifest weight of the evidence. She states that she

was discharged for dishonesty, which is addressed by R.C. 4141.29(D)(2)(e), and that she

did not commit “substantive” acts of dishonesty, as required by the statute.

{¶ 21} R.C. 4141.29(D)(2)(e) provides that no individual may be paid

unemployment benefits, for the duration of his or her unemployment, if:

The individual became unemployed because of dishonesty in connection with

the individual’s most recent or any base period work. Remuneration earned

in such work shall be excluded from the individual’s total base period

remuneration and qualifying weeks that otherwise would be credited to the

individual for such work in the individual’s base period shall not be credited

for the purpose of determining the total benefits to which the individual is

eligible and the weekly benefit amount to be paid under section 4141.30 of 11

the Revised Code. Such excluded remuneration and noncredited qualifying

weeks shall be excluded from the calculation of the maximum amount to be

charged, under division (D) of section 4141.24 and section 4141.33 of the

Revised Code, against the accounts of the individual’s base period employers.

In addition, no benefits shall thereafter be paid to the individual based upon

such excluded remuneration or noncredited qualifying weeks.

For purposes of division (D)(2)(e) of this section, “dishonesty” means

the commission of substantive theft, fraud, or deceitful acts.

{¶ 22} The Review Commission based its decision on the finding that the law firm

had “just cause” for Caserta’s discharge. It stated that Caserta’s failure to be truthful

regarding the payment of fees by a client constituted misconduct and provided just cause for

the termination of her employment. The Review Commission did not discuss R.C.

4141.29(D)(2)(e) or address Caserta’s misconduct as “dishonesty” under that provision.

{¶ 23} We have found no case law that indicates that Caserta’s untruthful

statements to her employer were required to be addressed under R.C. 4141.29(D)(2)(e). To

the contrary, numerous courts have found that lying to an employer or falsifying

work-related records, contrary to the employer’s policy, may constitute just cause under R.C.

4141.29(D)(2)(a). E.g., Hunt v. Ohio Dept. of Job & Family Serv., 5th Dist. Delaware No.

12CAH40024,

(falsifying driver logs contrary to employer’s policy and law

constituted just cause for discharge); Sharif v. Children’s Hunger Alliance, Inc., 10th Dist.

Franklin No. 10AP-796,

(altering fire inspection report contrary to 12

employer’s policy constituted just cause); Oriana House v. Terrell, 9th Dist. Summit No.

19550,

(Mar. 15, 2000) (employee’s lying regarding a work-related matter

constituted both “substantive deceit” and “just cause” for her termination). Accordingly, we

turn to whether the Review Commission reasonably concluded that Caserta’s actions

constituted “just cause” for her discharge.

{¶ 24} Upon review of the administrative record, there is competent, credible

evidence to support the Review Commission’s findings that Caserta accepted $750 from

Parsons, that she wrote a receipt for that payment, and that she erroneously told the

Brannons that Parsons had paid with a check. The record further supports the findings that,

on August 16, Caserta lied to Douglas Brannon when she told him that Parsons had come to

the office and exchanged the check for $750 in cash. When Dwight Brannon contacted

Parsons, Parsons indicated that he had paid in cash and that Caserta had counted the cash

before giving a receipt. Caserta acknowledged to Dwight Brannon (and reiterated at the

hearing) that her prior statement about Parsons’s exchanging the check for cash had not been

truthful. As stated above, the hearing officer did not make any finding as to whether

Caserta knew that she had received cash prior to August 16.

{¶ 25} Even accepting Caserta’s version of events as true, the administrative record

reflects that Caserta did not handle Parsons’s payment in accordance with the law firm’s

policies regarding the receipt of cash and checks. Caserta did not verify the nature or

amount of the payment when she received it from Parsons, and she did not follow the

procedures for ensuring proper documentation of the payment (i.e., she did not turn the 13

money over to an attorney, as required for cash payments, and she did not review and make a

copy of the check, as required for payments by check). When Caserta realized on August

16 that she had misrepresented that the payment had been by check, she admittedly

attempted to cover up her mistake by lying to her employer about how Parsons had made his

payment and how she had come into possession of $750 in cash. Regardless of Caserta’s

reasons for making this statement, Caserta’s untruthfulness did not conform to the “strict

honesty” that was required of Brannon & Associates’s employees, and it displayed a lack of

trustworthiness with respect to her ability to handle cash, which she acknowledged was

required.

{¶ 26} We disagree with Caserta’s assertion that her untruthful statement was

“insubstantial” and was merely “a minor infraction” of the law firm’s policy. Although no

money was lost due to Caserta’s handling of Parsons’s payment, her attempt to hide her

mishandling of the money reflected both an unwillingness to acknowledge her mistakes to

her employer and untrustworthiness with respect to monetary payments. As such, the

Review Commission reasonably concluded that Caserta’s failure to be truthful constituted

misconduct and just cause for her termination.

{¶ 27} The second assignment of error is without merit.

{¶ 28} Caserta’s first assignment of error asks us to review the trial court’s reasons

for upholding the Review Commission’s decision. She claims that the trial court made

specific factual findings that were not made by the hearing officer and that the trial judge

relied on evidence outside the record when he discussed his own personal experience as a 14

private attorney in rendering his decision. In determining whether the trial court properly

affirmed the denial of Caserta’s claim for unemployment compensation benefits, our duty is

to focus on the Review Commission’s decision and determine whether that decision is

supported by competent, credible evidence and is not unlawful, unreasonable, or against the

manifest weight of the evidence. While a trial judge should not consider personal

experiences which are not in the record, this does not affect the evidence before the Review

Commission. Because we agree with the trial court’s ultimate conclusion to affirm the

Review Commission’s decision, the first assignment of error is overruled as moot.

III.

{¶ 29} The judgment of the trial court will be affirmed.

..........

FAIN, J., and HENDON, J., concur. (Hon. Sylvia Sieve Hendon, First District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Wilburn L. Baker, Esq. Yvonne Tertel, Esq. Douglas D. Brannon, Esq. Hon. Michael A. Buckwalter