[Cite as Evans v. Dir., Ohio Dept. of Job & Family Servs., 2023-Ohio-4299.]

COURT OF APPEALS

DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

ANTOINETTE EVANS

Plaintiff-Appellant

-vsDIRECTOR, OHIO DEPARTMENT 

OF JOB AND FAMILY SERVICES

Defendant-Appellee

JUDGES:

: Hon. W. Scott Gwin, P.J.

: Hon. John W. Wise, J.

: Hon. Andrew J. King, J.

:

:

: Case No. 23 CAE 04 0023

:

:

: NUNC PRO TUNC O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of 

Common Pleas, Case No. CVF 09 0491

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 4, 2023

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

THOMAS CONDIT BARTHOLOMEW T. FREEZE

P.O. Box 12700 GENEVIEVE M. HOFFMAN

Cincinnati, OH 45212 JOSEPH G. BOGDEWIECZ

Capitol Square Office Building

65 East State Street, Suite 800

DAVE YOST Columbus, OH 43215

Attorney General

By: DAVID E. LEFTON PATRICK J. SCHMITZ

Unemployment Compensation Unit SANDRA R. MCINTOSH

30 East Broad Street, 26th Floor SCOTT SCRIVEN, LLP

Columbus, OH 43215 250 E. Broad St. Suite 900

Columbus, OH 43215
Delaware County, Case No. 23 CAE 04 0023 2

Gwin, P.J.

{¶1} Plaintiff-appellant Antoinette Evans [“Evans”] appeals the March 9, 2023 

Opinion entered by the Delaware County Court of Common Pleas, which affirmed the 

decision of the State of Ohio Unemployment Compensation Review Commission 

(“Commission”) which declined to review a hearing officer's determination that Evans's 

employer had just cause to terminate her employment, and disallowing her application for 

unemployment compensation benefits.

Facts and Procedural History

{¶2} In 2008, Evans joined the Olentangy Local School District ("District") as a 

"Cafeteria/Study Hall Aide" at Olentangy Liberty High School] ("Liberty"). 1R. at 159-160; 

2R. at 8831. Evans received an Employee Handbook or access to an online copy when 

she was hired. 1R. at 167.

{¶3} Evans would daily converse with her students about a wide range of

topics, some school-related and some not. Topics would include schools, jobs, the

wrestling team, global events, and whatever students might bring up that day. 2R. at 

695-696. According to the District, Evans's responsibilities were to: (1) exhibit

professional behavior; (2) ensure student safety; (3) observe and report

inappropriate student behavior; (4) engage the public with tact and diplomacy; (5)

interact positively with staff, students, and parents; (6) promote good public

relations; and (7) serve as a positive role model for students. 2R. at 446. 

1 For clarity, the telephone hearing held before the Commission and the record of this case will be 

referred to as, “__R.__,” signifying the volume and the page number.
Delaware County, Case No. 23 CAE 04 0023 3

{¶4} The District employs a progressive disciplinary policy. 1R. at 170. During 

Evans's employment, the District disciplined her on four separate occasions, the last 

of which led to her alleged constructive discharge that is the subject of this appeal. 

2R. at 442.

Evans's discipline for her off-duty Facebook posts and comments - April 2019 

and September 2020

{¶5} The District first disciplined Evans in April 2019 for several of her comments 

and posts on Facebook. 2R. at 445; 447. One post depicted the actor Jussie Smollett with 

a statement that "Jesse [sic] Smollett swearing on his mother. Folks he will have judgment 

day. His black privilege and star quality will not help him when he goes before God!" 2R. 

at 521. Evans also shared a picture of a transgender couple with a caption that the 

individuals in the photo are the gender of their biological sex, and commented, "She's a 

he" on a story concerning a transgender female wrestler. 2R. at 519; 522. Finally, Evans 

posted a picture of several members of Congress referred to as “the Squad” with the 

caption “We are being TAKEN OVER from WITHIN!!!! What’s it gonna [sic] take 

America?!" 2R. at 520.

{¶6} When Evans made these comments and posts, her Facebook profile was 

publicly available and identified her as a District employee. 2R. at 445-446. On or around 

April 1, 2019, the District received 10-15 complaints about Evans's Facebook posts from 

parents, Liberty alumni, and members of the public. 2R. at 515. Multiple students also 

visited guidance counselors to discuss the posts, and at least three teachers told 

administrators that the posts were a major topic amongst the Liberty student body. 2R. at 

515.
Delaware County, Case No. 23 CAE 04 0023 4

{¶7} On April 2, 2019 - the day after the District became aware of the posts -

Liberty Principal Michael Stamer ("Principal Stamer") placed Evans on paid leave. 2R. at 

515. Soon after, on April 4, 2019, Evans and representatives from the District met to 

discuss the incident, and the next day, the District suspended Evans for four days without 

pay and required her to complete professional training. 2R. at 445 447. In a letter to her 

announcing its decision, the District explained that Evans's posts "attracted negative 

publicity because they contradicted [the District's] mission as a public school district to 

'facilitate maximum learning for every student.'" (Emphasis in original) 2R. at 445-446. 

Additionally, the District determined that Evans's posts raised questions about her ability 

to "credibly enforce Board policies ... that require employees to report incidents of bullying 

or harassment, hold students accountable for acceptable technology use, and ensure the 

care and protection of all students." 2R. at 446. Finally, the District warned Evans that -

because her conduct concerned the fundamental expectations of her job - she could face 

disciplinary action up to and including termination for exhibiting unprofessional conduct in 

the future. 2R. at 447. On April 9, 2019, Evans signed the suspension letter and 

acknowledged that she understood it. 2R. at 447. The training included training on the 

Professional Code of Conduct for Educators. 1R. 164.

{¶8} Evans faced discipline again in September 2020 for commenting on another 

user's Facebook post that said, "If your students know your political affiliation you have 

failed as a teacher. Teachers are there to help students think for themselves not like you 

[,]" with, "Tell that to the English Department!" 1R. at 170; 2R. at 483-484, 498. Although 

Evans’s profile was no longer publicly available, she removed her comment shortly after 

a Liberty English teacher questioned the intent behind Evans's remark. 2R. at 483. When 
Delaware County, Case No. 23 CAE 04 0023 5

asked about the incident, Evans claimed that her comment was not directed toward 

anyone at Liberty but toward the English Department at her daughter’s former college. 

2R. at 483. The District, however, did not find this explanation credible because the post 

did not mention Evans’s daughter, or her college. 2R. at 483. Further, the District noted 

that Evans’s daughter had graduated from college more than eight years ago. Id.2 Evans 

was given a "Documented Warning” after it had determined that Evans’s comment 

“reflected poor professional judgment and/or violated” the District’s social media policy 

and the Licensure Code of Professional Conduct for Ohio Educators. 2R. at 483.

Discipline for in-school remarks – October 2020 and April 7, 2021

{¶9} On October 14, 2020, Evans had a conversation with a student "M.S." 

Evans started that conversation by mentioning the experience of a Black student who had 

recently transferred to Liberty and whom Evans thought “hated" her new school. 2R. at 

472.

{¶10} M.S. explained that the other student had transferred from a more diverse 

school, seemingly as an explanation for that student's challenges at Liberty. 2R. at 472. 

Evans downplayed this and recounted that she had experienced discrimination as a child 

because, as an Italian-American in that era, Evans "wasn't considered white." 2R. at 472. 

Evans also said that during certain parts of America's past, Italian Americans had it worse 

than Black Americans and were lynched more often. 2R. at 472. At some point in the 

conversation, M.S. mentioned that she was Black, and Evans asked, "Oh, you consider 

yourself that?" 2R. at 472. When M.S. confirmed her identity, Evans responded, “For the 

last two years I thought you were Indian because you’re always studying." 2R. at 472. In 

2 Evans’s corrected the District that her daughter had graduated four years, not eight, years prior 

to Evans’s comments. 2R. at 487.
Delaware County, Case No. 23 CAE 04 0023 6

a previous conversation, Evans asked M.S. if her parents had been born in America. 2R. 

at 472.

{¶11} When M.S. shared her experiences as a Black student who had 

encountered race-related bias and discrimination at Liberty, Evans began to cry because 

she could not believe that other Liberty students would behave in such a way. 2R. at 472. 

Evans remained upset, and M.S. spent the last five minutes of the class period comforting 

her. 2R. at 472.

{¶12} The District held an investigatory meeting on November 16, 2020. 2R. at 

470. In place of formal discipline, the District required Evans to attend individualized 

training to - according to the District's November 17, 2020 disciplinary letter to Evans -

"assist [her] with appropriate interactions with diverse students in the district." 2R. at 470.

{¶13} Up to this point, the District provided Evans with training, in lieu of 

termination, in the following areas: implicit bias, building a safe and supportive school 

environment, separate trainings on the professional use of social media, microaggression 

and restorative education and separate trainings involving the Code of Professional 

Responsibility for Educators3. 1R. at 163-164.

{¶14} The final disciplinary incident occurred during a morning study hall on April 

7, 2021. 1R. at 160; 2R. at 528. While Evans cleaned partitions that were used to limit the 

spread of COVID-19, she said to a student, "Can you believe the coronavirus came from 

China and that China is making money from sales of PPE to the United States?" 

(hereinafter referred to as "COVID comment") 1R. at 160; 2R. at 545, 883. A student of 

Chinese descent who was sitting nearby overheard the comment and left the study hall 

3 April 4, 2019, September 4, 2019 and August 21, 2020. 1R. at 164.
Delaware County, Case No. 23 CAE 04 0023 7

out of frustration and anger. 1R. at 182; 2R. at 545; 546. That student reported the incident 

to an assistant principal and received support from a guidance counselor. 2R. at 546. The 

student reported that the student felt offended, hurt, attacked and overall anger. 1R. at 

179. 

{¶15} On the evening of April 7, 2021, Principal Stamer told Evans not to report 

to work the next day. 2R. at 883. On April 8, 2021, the District placed Evans on paid 

administrative leave and scheduled an investigatory meeting for April 14, 2021 ("April 

14th Meeting"), but the District did not inform Evans why she was placed on leave. 1R. at 

205; 2R. at 542; 883. During the April 14th Meeting, Evans was accompanied by Gary 

Yashko ("Yashko"), who was a friend and real estate attorney. 2R. at 542. In attendance 

on behalf of the District were Assistant Director of Human Resources Jennifer Iceman 

("Iceman"); Principal Stamer, a Liberty assistant principal, and an attorney for the District. 

(1R. at 161; 2R. at 542.) Iceman ran the meeting, the purpose of which was to collect 

information regarding the April 7, 2021 incident. 1R. at 162; 2R. at 883. 

{¶16} Iceman asked Evans if she remembered having a conversation with the 

student, the content of the conversation, whether Evans had been provided training 

regarding implicit bias and cultural responsiveness, microaggressions and the code of 

professional responsibility. 1R. at 162-163. 

{¶17} At first, Evans stated that she could not recall the incident. 1R. at 163. Evans 

eventually did admit to making the comment. 1R. at 208. Iceman asked Evans if she saw 

how her comments could be considered offensive. Evans responded, “yes, I can see 

that.” 1R. at 164. When asked if she could see how her comments could make a student 

of Asian descent feel uncomfortable, Evans responded, “I’m not sure.” Evans 
Delaware County, Case No. 23 CAE 04 0023 8

acknowledged that she had reviewed the professional code of conduct during her three 

previous disciplinary proceedings. 1R. at 164. When asked what her interpretation of her 

obligation with regard to her students was in light of her training, Evans responded “I 

understand what I’m supposed to do and I didn’t do what I was supposed to do.” 1R. at 

164. When asked if she considered her COVID comment to be in violation of the Code of 

Professional Conduct, Evans stated that she saw her comment as an economic 

statement. Id. Evans commented that “I sometimes make mistakes, I didn’t do it 

deliberately, do anything on purpose.” 1R. at 165. When asked what the administration 

could do to help her, Evans replied, “I don’t’ know what to say.” Id. 

{¶18} The District did not allow Evans to present evidence or call witnesses. 1R. 

at 161-165; 2R. at 883. Evans and Attorney Yashko were provided time to speak at the 

end of the meeting. 2R. at 852; 861. 

{¶19} At the conclusion of the hearing the matter was taken under advisement. 

1R. at 165. Evans was informed that she would be informed of the decision of the Board 

at a later time. Id. She remained on paid administrative leave. Id. at 165-166. 

{¶20} The following day, on April 15, 2021, the District called Attorney Yashko to 

inform him that the District's representatives would recommend that the Board of 

Education terminate Evans's employment. 2R. at 883-884. The District also told Attorney 

Yashko that Evans had the option to resign before the formal termination process began. 

2R. at 165-166, 716-718. On April 16, 2021, Evans resigned in a letter stating: "In lieu 

of termination, I hereby resign my position ...at Olentangy Liberty High School effective 

as of the end of my current contract for the 2020/2021 school year." 2R. at 443; 884. The 
Delaware County, Case No. 23 CAE 04 0023 9

Board of Education accepted Evans's resignation on April 22, 2021, and Evans's last day 

as a District employee was May 27, 2021. 2R. at 884.

Denial of Unemployment Benefits

{¶21} Evans filed her Application for Determination of Benefit Rights on January 

23, 2022, which was initially denied. 2R. at 882. Evans appealed that denial, and on 

March 23, 2022, the Ohio Department of Job and Family Services ("ODJFS") issued a 

Redetermination denying Evans's application, finding that she had been discharged with 

just cause. 2R. at 882. On April 12, 2022, Evans appealed to the Unemployment 

Compensation Review Commission ("UCRC"). 2R. at 882. Hearing Officer Delores 

Evans4 ("Hearing Officer) held a telephone hearing on June 10, June 28, and July 21, 

2022. 2R. at 882. 

{¶22} During the UCRC hearing, Evans testified, “would I say it [the COVID 

statement] to an Asian student, probably not. But this kid was a white kid who I actually 

had a good relationship with. I just didn’t think anything of it.” 1R. at 209. Evans explained 

her reasons for resigning in lieu of termination, 

Well, I thought that if I resigned that that would give me the ability to 

work in other school districts. So, I had because my retirement... well, I can 

just go and uh, you know I can substitute...in another school district ....

1R. at 212. Evans attempted to rescind her resignation six weeks later because, “I didn’t 

realize that was of no value” referring to her resignation and her ability to find work in a 

4 Nothing in the record suggests that Hearing Officer Delores Evans is related to Appellant Antoinette 

Evans.
Delaware County, Case No. 23 CAE 04 0023 10

different school district. 1R. at 212; 2R. at 865-866. She further testified that she was 

informed that “basically what happened is illegal.” Id.

{¶23} Attorney Yashko testified at the UCRC hearing that he informed Evans that 

she did not have to resign, instead she could opt for a full Loudermill hearing. 2T. at 720. 

Iceman testified that if she had not opted to resign, Evans would have received a 

Loudermill hearing. 2R. at 860. A Loudermill hearing was not scheduled in Evans’ case 

because the District received her resignation letter. Id.

{¶24} Evans called K.H. and J. K. parents from OLSD to testify at Evans' UCRC 

hearing about their objections to leftist politics, perverse sexuality, and other offensive 

topics in OLSD classrooms, hallways, and curricula.

{¶25} On July 29, 2022, the Hearing Officer concluded that Evans left her position 

under disqualifying conditions and that the District had just cause to discharge her, which 

precluded unemployment compensation (hereinafter, "Decision"). 2R. at 885. On August 

24, 2022, UCRC denied Evans's request for further review of the Decision. 2R. at 933.

{¶26} On September 21, 2022, Evans filed an appeal to the Delaware County 

Court of Common Pleas. 

{¶27} In her appeal, Evans maintained that she was constructively discharged due 

to disciplinary action that violated her constitutional rights under the First and Fourteenth 

Amendments to the United States Constitution. Judgment Entry Affirming the Decision of 

the Unemployment Compensation Review Commission, filed Mar 9, 2023 at 7 [hereinafter 

“Judgment Entry”]. Specifically, she identified five assignments of error in the Decision: 

(1) her COVID comment was constitutionally protected speech on a matter of public 

concern; (2) the District employed policies and an "unwritten (and unknowable) speech 
Delaware County, Case No. 23 CAE 04 0023 11

code" that represent unconstitutional content and viewpoint discrimination; (3) the District 

arbitrarily enforced its policies against her and other conservatives, contra the Fourteenth 

Amendment's Equal Protection Clause;(4) the District's policies were unconstitutionally 

vague; and (5) she did not receive the procedural safeguards guaranteed by the Due 

Process Clause of the Fourteenth Amendment before the District coerced her resignation. 

Id. at 7-8. 

The trial judge’s decision

{¶28} Concerning Evans’s First Amendment claims and whether Evans's COVID 

comment is constitutionally protected, the trial judge after carefully reviewing the federal 

standards concerning protected speech and the facts presented during the UCRC hearing 

concluded, “On the whole, these facts demonstrate that Evans spoke as a private citizen.” 

Judgment Entry at 11.

{¶29} The trial judge next concluded,

Undoubtedly, COVID has been a matter of public concern since at 

least March 2020, and it continues to make headlines even now. Similarly, 

COVID's origin and China's role in the pandemic featured prominently in the 

public discourse throughout that period. Under the test outlined in Pickering, 

it is immaterial whether Evans's COVID comment was true, inappropriate, 

or controversial. See Rankin v. McPherson, 483 U.S. 378, 387, 107 S.Ct. 

2891, 97 L.Ed.2d 315 (1987). Thus, because Evans spoke as a private 

citizen on a matter of public concern, her COVID comment is entitled to at 

least some First Amendment protections.
Delaware County, Case No. 23 CAE 04 0023 12

Judgment Entry at 12 (emphasis in original) (footnotes omitted). The trial judge then 

considered the balancing test described in Pickering v. Bd. of Edn. of Twp. High School 

Dist. 205, Will Cty., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). The trial judge 

first concluded, 

Evans's COVID comment was "couched in terms of political debate," 

as COVID and China's role in the pandemic have featured as hot-button 

political issues. Likewise, Evans lacked specialized knowledge on those 

topics, and her comment did not expose the District's or Liberty's inner 

workings. The fact that COVID's origin and any financial impact on China 

from the international response to the virus's spread were entirely unrelated 

to Evans's employment duties diminishes any public interest in her speech.

All told, I find that the public's limited interest means that Evans's 

speech does not fall into the "highest rung" of protected speech under the 

First Amendment.

Judgment Entry at 14. The trial judge proceeded next to, 

Analyze the District's interest, as an employer, "in promoting the 

efficiency of the public services it performs through its employees." 

Pickering, 391 U.S. at 568. Toward this end, I may consider Evans's past 

conduct to place her speech in context. Kirkland u. City of Maryville, Tenn., 

54 F.4th 901, 910 (6th Cir. 2022) (citing Connick, 461 U.S. at 152).

{¶30} To gauge the District's interest in promoting efficiency, the trial judge noted 

“there are four ‘pertinent considerations,’ which call for an assessment of the degree to 

which Evans's speech: (1) impaired harmony among co-workers or discipline by 
Delaware County, Case No. 23 CAE 04 0023 13

superiors; (2) interfered with close working relationships that require personal loyalty and 

confidence; (3) impeded her job performance or interfered with the District's regular 

operation; and (4) undermined the District's mission. Rankin [v. McPherson], 483 U.S. 

[378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987)] at 388.” Judgment Entry at 14. The trial 

judge found that Evans’s conduct became a frequent source of tension within the high 

school, with teachers reporting that her behavior was "all that students are talking 

about" on at least one occasion. 2R. at 515. Further, from April 2019 through April 

2021, Evans's conduct caused multiple students to report her conduct and prompted 

more than a dozen parents, teachers, and Liberty alumni to file complaints with the 

District. Judgment Entry at 15. The trial judge found that the first consideration-which 

calls for him to weigh any disruption to harmony among co-workers and any impact 

on workplace discipline - supports the District. Id. 

{¶31} Next, the trial judge analyzed whether Evans's speech interfered with

close working relationships and whether it hindered her job performance or the

District's operations. Id. The trial judge concluded, 

Evans's comment hurt her relationship with her students. In her

position, Evans had the fundamental obligation to be a positive role

model. And more importantly, she was tasked with the care of minors, a

relationship where trust is paramount. The extent to which Evans damaged

her relationship with her students is demonstrated by the fact that her

conduct caused at least two students to report her behavior to the

school and one to request a transfer out of Evans's classroom.

Judgment Entry at 16. The trial judge concluded, “that the impact on working relationships 
Delaware County, Case No. 23 CAE 04 0023 14

is a significant interest that weighs in the District's favor.”

{¶32} The trial judge found Evans's speech did affect her job performance and the 

District's operations. “Beyond serving as a positive role model, Evans's responsibilities 

were to: (1) exhibit professional behavior; (2) ensure student safety; (3) observe and 

report inappropriate student behavior; (4) engage the public with tact and diplomacy; (5) 

interact positively with staff, students, and parents; and (6) promote good public relations.”

2R. at 446. Judgment Entry at 16. The trial judge noted that Evans's pattern of

inappropriate behavior points to an inability on her part to learn from her mistakes or

tochange her behavior to meet her employer's needs and expectations. Id.

{¶33} Next, the trial judge considered the effect of Evans's conduct on the 

District's mission, and found Evans, on multiple occasions, undermined the District's

mission to "facilitate maximum learning for every student.” Id. at 17 (emphasis in original). 

On balance, the trial judge found that the District's interest in promoting the efficiency of 

its services outweighs Evans's First Amendment interests in making her COVID

comment. Id. at 18. The trial judge concluded, “the District did not violate Evans's First 

Amendment right to speak on a matter of public concern.” Id. at 19.

{¶34} Concerning Evans’s arguments on content and view point discrimination 

under the First Amendment, the trial judge found, “Evans admitted that the District did not 

tell employees or students that they could not discuss COVID, effectively dispelling her 

claim that the District discriminated based on the content of her comment. 2R. at 687. 

Likewise, the Hearing Officer's findings demonstrate that the District's actions were not 

taken simply to avoid the ‘discomfort and unpleasantness’ that accompany an unpopular 

viewpoint, but instead in response to the disruption that Evans's comment caused. As 
Delaware County, Case No. 23 CAE 04 0023 15

already discussed, Evans's COVID comment materially and substantially disrupted 

Liberty's learning environment. I, therefore, conclude that the District did not engage in 

unconstitutional content or viewpoint discrimination under the First Amendment.” 

Judgement Entry at 19.

{¶35} Concerning Evans’s Fourteenth Amendment claims the trial judge found

that the District's policies, on their face, do not target any suspect classifications; Evans 

does not allege that she is a member of a class that would warrant heightened scrutiny; 

Evans has provided little evidence beyond bare assertions that the District selectively 

enforced its policies to target conservatives; and the record in fact indicates that the 

District enforced its policies against a "liberal" teacher for improper social media use and 

discussions in the classroom. See 2R. at 838-842. The trial judge found that “the District 

did not target a suspect class when it enforced its policies.” Id. at 21-22.

{¶36} Further, “The United States Supreme Court's holding in Engquist v. Oregon

Department of Agriculture explicitly excluded the ‘class-of-one’ theory from publicemployment cases. 553 U.S. 591, 607, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008) (‘the 

class-of-one theory of equal protection has no application in the public employment 

context’). Nothing Evans puts forward detracts from that observation or Engquist's

applicability to her case.” Judgment Entry at 24.

{¶37} Finally, the trial judge found Evans's vagueness challenge fails because the 

District's policies and her training on those policies, provided sufficient notice that her 

COVID comment would lead to discipline. Id. at 26. The trial judge found Evans’s 

arguments “concerning and unwritten (and unknowable) speech code" to be 
Delaware County, Case No. 23 CAE 04 0023 16

unpersuasive because she did not identify this supposed speech code or provide 

evidence that it exists. Id. 

{¶38} The trial judge found Evans’s claim that she was coerced to resign was not 

supported by the record. The judge pointed to the fact that she was accompanied at the 

meeting by Attorney Gary Yashko. Attorney Yashko received the District's call that it 

would recommend termination. Attorney Yashko even helped Evans draft her letter of 

resignation. 2R. at 716. Further, Attorney Yashko told Evans that, had she requested a 

hearing to call her own witnesses and present evidence before an impartial adjudicator, 

she would have had such an opportunity. 2R. at 720, 884. Judgment Entry at 28-29.

{¶39} The trial judge affirmed the UCRC's determination. Id. at 30. On March 9, 

2023, the trial judge issued a 30-page decision finding that the UCRC's determination

was not unlawful, unreasonable, or against the manifest weight of the evidence.

Assignments of Error

{¶40} Evans raises one Assignment of Error,

{¶41} “I. THE LOWER COURT ERRED BY AFFIRMING THE UCRC'S 

DETERMINATION THAT APPELLEE OLENTANGY LOCAL SCHOOL DISTRICT 

HAD TERMINATED APPELLANTS' EMPLOYMENT FOR CAUSE.”

Standard of Appellate Review

{¶42} In an appeal from a decision of the court of common pleas affirming the 

UCRC’s decision, reviewing courts do not use the standard of review provided for by in 

R.C. 119.12 concerning appeals from orders or decisions of administrative agencies. 

Brooks v. Ohio Dept. of Job & Family Servs. 10th Dist. Franklin No. 08AP-414, 2009-

Ohio-817, ¶9; Parrett v. Administrator, Unemployment Compensation Review Comm’n,
Delaware County, Case No. 23 CAE 04 0023 17

4th Dist. Pickaway No. 16CA15, 2017-Ohio-2778, ¶13. In Irvine v. Unemp. Comp. Bd. of 

Review, 19 Ohio St.3d 15, 17–18, 482 N.E.2d 587, 590 (1985), the Ohio Supreme Court 

held that reviewing courts may reverse “just cause” determinations “if they are unlawful, 

unreasonable, or against the manifest weight of the evidence.” The court noted that while

appellate courts are not permitted to make factual findings or to determine the credibility 

of witnesses, they do have the duty to determine whether the board’s decision is 

supported by the evidence in the record. Id. at 18, 482 N.E.2d at 590; Tzangas, Plakas & 

Mannos, 73 Ohio St.3d 694, 696, 1995-Ohio-206, 653 N.E.2d 1207. This duty is shared 

by all reviewing courts, from the first level of review in the common pleas court, through 

the final appeal in the Ohio Supreme Court. Id.; See also, Struthers v. Morell, 164 Ohio 

App.3d 709, 2005-Ohio-6594, 843 N.E.2d 1231 (7th Dist.), ¶14; Marlatt v. Ohio Dept. of 

Job and Family Services, 5th Dist. Guernsey No. 22 CA 000022, 2023-Ohio-630, ¶13. 

The Court further cautioned,

To apply the same standard at each appellate level does not result 

in a de novo review standard. As this court stated in Irvine, “[t]he fact that 

reasonable minds might reach different conclusions is not a basis for the 

reversal of the board’s decision.” Irvine at 18, 19 OBR at 15, 482 N.E.2d at 

590. The board’s role as factfinder is intact; a reviewing court may reverse 

the board’s determination only if it is unlawful, unreasonable, or against the 

manifest weight of the evidence.

Tzangas, Plakas & Mannos, 73 Ohio St.3d at 697, 1995-Ohio-206, 653 N.E.2d 1207.

Manifest weight

{¶43} In Eastley v. Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, 972 N.E.2d 
Delaware County, Case No. 23 CAE 04 0023 18

517, the Ohio Supreme Court clarified the standard of review appellate courts should 

apply when assessing the manifest weight of the evidence in a civil case. SST Bearing 

Corp. v. Twin City Fan Companies, Ltd., 1st Dist. Hamilton No. C110611, 2012–Ohio–

2490, ¶ 16. The Ohio Supreme Court held the standard of review for manifest weight of 

the evidence for criminal cases stated in State v. Thompkins, 78 Ohio St.3d 380, 678 

N.E.2d 541 (1997), is also applicable in civil cases. Eastley, at ¶ 17–19, 972 N.E.2d 517.

Weight of the evidence concerns “the inclination of the greater 

amount of credible evidence, offered in a [hearing], to support one side of 

the issue rather than the other. It indicates clearly to the [finder of fact] that 

the party having the burden of proof will be entitled to their verdict, if, on 

weighing the evidence in their minds, they shall find the greater amount of 

credible evidence sustains the issue which is to be established before them. 

Weight is not a question of mathematics, but depends on its effect in 

inducing belief.” (Emphasis added.) Black’s, supra, at 1594.

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541(1997).

{¶44} Recently, the Ohio Supreme Court again addressed the appropriate 

standard for reviewing courts to employ when conducting a manifest weight of the 

evidence review. In State v. Jordan, Slip Op. No. 2023-Ohio-3800, the Court reiterated 

that the standard set forth in State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 

(1997), is appropriate,

[W]hen an appellate court reviews whether a judgment is against the 

manifest weight of the evidence, the court looks at the entire record and 

“‘weighs the evidence and all reasonable inferences, considers the 
Delaware County, Case No. 23 CAE 04 0023 19

credibility of witnesses and determines whether in resolving conflicts in the 

evidence, the [finder of fact] clearly lost its way and created such a manifest 

miscarriage of justice that the [decision] must be reversed, and a new 

[hearing] ordered.’” [Thompkins] at 387, 678 N.E.2d 541, quoting State v. 

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist. 1983). Sitting 

as the “thirteenth juror,” the court of appeals considers whether the 

evidence should be believed and may overturn a [decision] if it disagrees 

with the trier of fact’s conclusion. See id.

Jordan, ¶17. “In a civil case, in which the burden of persuasion is only by a preponderance 

of the evidence, rather than beyond a reasonable doubt, evidence must still exist on each 

element (sufficiency) and the evidence on each element must satisfy the burden of 

persuasion (weight).” Eastley, at ¶ 19.

{¶45} However, this standard of review must be modified slightly when reviewing 

an appeal from a decision rendered by the UCRC because the Ohio Supreme Court has 

repeatedly told us that appellate courts are not permitted to determine the credibility of 

witnesses in those cases. Simon v. Lake Geauga Printing, 69 Ohio St.2d 41, 44, 430 

N.E.2d 468(1982); Irvine v. Unemp. Comp. Bd. Of Review, 19 Ohio St.3d 15, 17-18, 482 

N.E.2d 587(1985); Tzangas, Plakas & Mannos v. Ohio Bur. Of Emp. Serv., 73 Ohio St.3d 

694, 696, 653 N.E.2d 1207(1985); Williams v. Ohio Dept. of Job and Family Servs., 129 

Ohio St.3d 332, 2011-Ohio-2897, 951 N.E.2d 1031, ¶20.

{¶46} We further note that we are required to focus on the decision of the 

commission, rather than that of the trial court. Irvine v. State Unemp. Comp. Bd. of Rev.,

19 Ohio St.3d 15, 17, 482 N.E.2d 587 (1985), ¶18; Huth v. Director, Ohio Dept. of Job 
Delaware County, Case No. 23 CAE 04 0023 20

and Family Services, 5th Dist. Tuscarawas No. 2014 AP 03 0011, 2014-Ohio-5408; 

Perkins v. Ohio Dep't of Job & Family Servs., 10th Dist. Franklin No. 18AP-900, 2019-

Ohio-2538, 2019 WL 2605225, ¶ 11, citing Carter v. Univ. of Toledo, 6th Dist. No. L-07-

1260, 2008-Ohio-1958, 2008 WL 1837254, ¶ 12; Meinerding v. Coldwater Exempted 

Village School Dist. Bd. of Education, 3rd Dist. No. 10-19-06, 2019-Ohio-3611, 143 

N.E.3d 1147, ¶ 18.

Unemployment Compensation

{¶47} Unemployment compensation provides temporary income to workers who 

lose their jobs through no fault of their own. Irvine v. Unemployment Comp. Bd. Of Rev.,

19 Ohio St.3d 15,17, 482 N.E.2d 587. For example, discharge due to layoff, plant closure 

or work slowdown. See, Irvine at 17, quoting Leach v. Republic Steel Corp., 176 Ohio St. 

221, 223, 27 O.O.2d 122, 199 N.E.2d 3 (1964); Williams v. Ohio Dept. of Job & Family 

Servs., 129 Ohio St.3d 332, 2011-Ohio-2897, 951 N.E.2d 1031, ¶ 22. However, not all 

workers are eligible for unemployment benefits. For example, workers who were fired with 

just cause cannot receive benefits. R.C. 4141.29(D)(2)(a); Marlett v. Ohio Department of 

Jobs and Family Services, 5th Dist. Guernsey No. 22CA00022, 2023-Ohio-630, ¶14.

{¶48} For purposes of unemployment compensation, the focus is on whether the 

employee is unemployed through no fault of their own. R.C. 4141.29(D)(2)(a) provides:

(D) * * * [N]o individual may * * * be paid benefits * * *:

(2) For the duration of the individual’s unemployment if the director 

finds that:

(a) The individual quit his work without just cause or has been 

discharged for just cause in connection with the individual’s work, * * *.
Delaware County, Case No. 23 CAE 04 0023 21

Emphasis added. “Thus, fault is essential to the unique chemistry of a just cause 

termination.” Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Servs., 73 Ohio St.3d at 

697–698, 653 N.E.2d 1207; Williams v. Ohio Dept. of Job & Family Servs., 129 Ohio St.3d 

332, 2011-Ohio-2897, 951 N.E.2d 1031, ¶23. Fault, however, is not limited to willful or 

heedless disregard of a duty or a violation of an employer's instructions. Williams, 129 

Ohio St.3d 332 at ¶ 24, citing Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Servs., 73 

Ohio St.3d at 698. Fault may arise from willful or heedless disregard of a duty, a violation 

of an employer's instructions, or unsuitability for a position. Williams at ¶ 24; Moore v. 

Ohio Unemp. Comp. Rev. Comm., 10th Dist. Franklin No. 11AP-756, 2012-Ohio-1424, ¶ 

21. The critical issue is whether the employee’s actions demonstrate an unreasonable 

disregard for an employer’s best interest. Janovsky v. Ohio Bureau of Employment 

Services, 108 Ohio App.3d 690, 694 671 N.E.2d 611 (2nd Dist. 1996); Peterson v. 

Director, 4th Dist. Ross No. 03CA2738, 2004-Ohio-2030, ¶38; Kiikka v. Administrator, 

Bureau of Employment Services, 21 Ohio App.3d 168, 169, 486 N.E.2d 1233 (8th Dist. 

1985); Gregg v. SBC Ameritech, 10th Dist. No. 03AP–429, 2004–Ohio–1061, ¶39; Quartz 

Scientific, Inc. v. Ohio Bur. Of Unemp. Comp., 11th Dist. Lake No. 2012-L-0090, 2013-

Ohio-1100, ¶5.

{¶49} This does not mean that an employee’s behavior must consist of 

misconduct, but it does require some degree of fault on the part of the employee. Quartz,

¶15, citing Sellers v. Bd. of Rev., 1 Ohio App.3d 161, 164, 440 N.E.2d 550 (10th Dist. 

1981). In Cassaro v. Ohio Dept. of Job & Family Servs., 3rd Dist. Crawford No. 3-16-08, 

2016-Ohio-7643, the court agreed noting,

Likewise, “courts have repeatedly held that a discharge is considered 
Delaware County, Case No. 23 CAE 04 0023 22

for just cause when an employee’s conduct demonstrates some degree of 

fault, such as behavior that displays an unreasonable disregard for his 

employer’s best interests.” Markovich v. Employers Unity, Inc., 9th Dist. 

Summit No. 21826, 2004–Ohio–4193, ¶ 8, citing Tzangas, Plakas & 

Mannos, 73 Ohio St.3d 694, at paragraph two of the syllabus, Kiikka at 

paragraph two of the syllabus, and Sellers v. Bd. of Rev., 1 Ohio App.3d 

161 (10th Dist. 1981), paragraph two of the syllabus.

Id. at ¶16.

Liberal Construction

{¶50} R.C. 4141.46 requires that the sections of R.C. Chapter 4141 “shall be 

liberally construed.” R.C. 4141.46 does not say the Unemployment Compensation Act 

shall be liberally construed in favor of or against either party. Bernard v. Unemp. Comp. 

Rev. Comm., 136 Ohio St.3d 264, 994 N.E.2d 427, ¶11.

The Commission is not required to find in favor of coverage except 

when ineligibility for coverage is shown to a moral certainty. The 

Commission is charged only to resolve any material doubt in favor of 

coverage, and in so doing it must rely on the facts presented and is not 

bound by any particular nomenclature which parties adopt, or fail to.

Ashwell v. Ohio Dept. of Jobs and Family Services, 2nd Dist. Montgomery No. 20522, 

2005-Ohio-1928, ¶79. “Although unemployment compensation statutes are to be liberally 

construed, neither the agency nor the trial court has a duty to construe facts more 

favorably to either party. Dailey v. Admr. Ohio Bur. of Emp. Services, 8th Dist. No. 52633, 

1987 Ohio App. LEXIS 5607, 1987 WL 5642.” Burns v. Director, Ohio Dept. of Job and 
Delaware County, Case No. 23 CAE 04 0023 23

Family Services, 11th Dist. Nos. 2004-T-0071, 2004-T-0072, 2005-Ohio-6290, ¶47; 

Accord, Shephard v. Ohio Dept. of Job and Family Services, 166 Ohio App.3d 747, 2006-

Ohio-2313, 853 N.E.2d 335 (8th Dist.), ¶20.

{¶51} The “liberal construction” requirement of R.C. 4141.46 means that the 

Unemployment Compensation Act should be construed to promote the “humane purpose” 

of enabling unfortunate employees who become unemployed through no fault of their own 

“to subsist on a reasonably decent level...” Sharp v. Union Carbide Corp., 38 Ohio St.3d 

69, 71, 525 N.E.2d 1386(1988); Williams v. Ohio Dept. of Job & Family Servs., 129 Ohio 

St.3d 332, 2011-Ohio-2897, 951 N.E.2d 1031, ¶ 22. In other words, we can liberally 

construe the Act to provide unemployment benefits to employees who are unemployed 

through no fault or misconduct on their part. Williams at ¶23 (“Fault on the employee’s 

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

{¶52} Thus, this Court must determine if the Review Commission's finding that 

Evans was terminated with just cause was unlawful, unreasonable, or against the 

manifest weight of the evidence. In other words, the issue is whether Evans has the right 

to unemployment compensation benefits because the District terminated her employment 

without just cause as defined within the unemployment context. Case W. Res. Univ. v. 

Statt, 8th Dist. Cuyahoga No. 97159, 2012-Ohio-1055, ¶ 13.

Issue for Appellate review: Whether the UCRC's decision is unlawful, 

unreasonable or against the manifest weight of the evidence.

Coercion and lack of a hearing

{¶53} Evans first contends that she was coerced into resigning. [Appellant’s brief 

at 18-19]. She further contends that the district terminated her employment without 
Delaware County, Case No. 23 CAE 04 0023 24

affording her a hearing. [Appellant’s brief at 20-21].

{¶54} In her decision, the Hearing Officer noted, “an employee who resigns in 

anticipation of being discharged must be judged by the same criteria as if the discharge 

had actually taken place. In such a case, the employee has just cause to quit employment 

only if the employer does not have just cause to discharge the employee.” UCRC Decision 

July 29, 2022 at 5, 2R. 882. In other words, the Hearing Officer reviewed the claim as if 

Evans had been fired. Thus, the Hearing Officer utilized the correct standard. In the case 

at bar, the focus is on whether the District had just cause to terminate Evans’s 

employment.

The record contains competent, credible evidence that Evans resigned in lieu of 

requesting a Loudermill hearing

{¶55} In Ohio, a state-employed teacher or aide possesses a property interest in 

continued employment. See R.C. 124.11 and 3319.081. Before the state may deprive an 

employee of that interest, the Due Process Clause requires certain procedural 

safeguards, an example being a Loudermill hearing. See Cleveland Bd. of Edn. v. 

Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). As the Loudermill 

Court noted in the pre-deprivation due process hearing, “The tenured public employee is 

entitled to oral or written notice of the charges against him, an explanation of the 

employer's evidence, and an opportunity to present his side of the story. See Arnett v. 

Kennedy, 416 U.S., at 170–171, 94 S.Ct., at 1652–1653 (opinion of Powell, J.); id., at 

195–196, 94 S.Ct., at 1664–1665 (opinion of White, J.); see also Goss v. Lopez, 419 U.S., 

at 581, 95 S.Ct., at 740. To require more than this prior to termination would intrude to an 

unwarranted extent on the government's interest in quickly removing an unsatisfactory 
Delaware County, Case No. 23 CAE 04 0023 25

employee.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 

1495, 84 L.Ed.2d 494 (1985). See also, Ohio Assn. of Pub. School Emp., AFSCME, AFLCIO v. Lakewood City School Dist. Bd. of Edn., 68 Ohio St.3d 175, 177, 624 N.E.2d 1043, 

1045 (1994) (discussing pre and post deprivation hearing requirements).

{¶56} The record establishes that at the April 14, 2021 investigatory meeting, 

Evans was given notice of the charges against her, an explanation of the District’s 

evidence, and at the end of the hearing an opportunity for her and Attorney Yashko to 

speak in order to present her side of the story. 1R. at 162-165; 2R. at 528; 852; 861. 

Evans admitted that she was permitted to speak at the meeting. 2T. at 683. The record 

further establishes that Evans was accompanied at the meeting by Attorney Gary Yashko. 

1R. at 206; 2R. at 709. 

{¶57} Attorney Yashko received the District's call that it would recommend 

termination. Attorney Yashko helped Evans draft her letter of resignation. 2R. at 716. 

Further, Attorney Yashko told Evans that, if she requested a hearing to call her own 

witnesses and present evidence before an impartial adjudicator, the District would give 

her that opportunity, in the event she chose not to resign. 2R. at 720, 884. Evans testified 

that when she submitted her letter of resignation, she had hopes of attaining employment 

in a different school district. 1R. at 212. 

{¶58} Iceman testified that Attorney Yashko was informed the District was going 

to move forward with termination of Evans’s employment; however, Evans would be given 

the option to resign if she wanted too. 1R. at 166. Iceman testified that Evans submitted 

a letter of resignation dated April 16, 2021. Id. Iceman testified that Evans’s resignation 

was accepted on April 22, 2021. 1R. at 16. Iceman testified that if she had not opted to 
Delaware County, Case No. 23 CAE 04 0023 26

resign, Evans would have received a Loudermill hearing. 2R. at 860. A Loudermill hearing 

was not scheduled in Evans’ case because the District received her resignation letter. Id. 

{¶59} We find the record contains competent, credible evidence supporting the 

Hearing Officer’s finding that “[Evans] would have been given a proper due process 

hearing prior to being formally discharged, but she was offered the option of resigning. 

On April 16, 2021, [Evans] submitted her resignation, effective at the end of the 2020-

2021 school year. On April 22, 2021, the Board accepted [Evans’s] resignation effective 

May 27, 2021.” UCRC Decision at 5. 

{¶60} The record contains no evidence that Evans was unaware that she could 

request a Loudermill hearing instead of resigning. The record contains no evidence that 

Evans asked for a Loudermill hearing, or that the District would have denied her such a 

hearing had she requested one in lieu of resigning. There is nothing in the record to 

suggest the Hearing Officer improperly placed the burden of proof on Evans.

{¶61} Upon review of the entire record, weighing the evidence and all reasonable 

inferences as a thirteenth juror, we cannot reach the conclusion that the hearing officer 

lost her way and created a manifest miscarriage of justice. We find that the UCRC’s 

decision that the District did not violate Evans' procedural due process rights by 

terminating her without a hearing is not unlawful, unreasonable or against the manifest 

weight of the evidence.

The record contains competent credible evidence that the District had “just 

cause” to discharge Evans

{¶62} The Hearing Officer found that Evans,
Delaware County, Case No. 23 CAE 04 0023 27

[H]ad a prior history of counseling, specialized training, and discipline 

after making disparaging public social media posts, asking inappropriate 

questions about a student’s parent’s’ nationality, and making raciallycharged and insensitive comments to a Black student. Although [Evans] 

asserted that she had no intention of harming anyone through her posts or 

commentary, she appears to be either unable or unwilling to fully 

comprehend the significant impact of her conduct on students and the 

broader community, the disruption to a positive school environment, and the 

effect on the school’s public image. The investigation team found [Evans] 

to be untrainable due to her inability to adapt to the societal changes around 

her (specifically at OLHS).

* * *

[Evans] acknowledged, in hindsight, that she should not have made 

her October 2020 comments or her April 7, 2021 statement. [Evans] 

received training and counseling in 2019 and 2020 but nevertheless 

continued to voice her opinions without regard to her role and the 

employer’s immense task and precarious position. [Evans] did not exhibit 

professionalism, sound judgment, or promote good public relations, and her 

conduct clearly displayed that she could not be trained to act in the 

employer’s best interest. Based on the above, the Hearing Officer has 

determined that the employer had just cause to discharge [Evans]. [Evans’s 

misconduct was contrary to the employer’s best interests and represents 

fault that will serve to suspend her unemployment compensation benefits. 
Delaware County, Case No. 23 CAE 04 0023 28

Accordingly, [Evans] quit her employment with the Olentangy Local Board 

of Education without just cause when presented with an inevitable 

discharge.

UCRC Decision at 5-6.

{¶63} The District employs a progressive disciplinary policy. 1R. at 170. The 

record established that with respect to Evans’s previous disciplinary actions, the district 

chose to support Evans through additional training so that she could maintain her 

employment. 1R. at 173-174. Iceman testified that the decision to terminate Evans’s 

employment was the “end of a ...sequential...number of disciplines...for violating the 

strict policy, a final warning that was [from] a discipline from March of 2019...and 

continued unprofessionalism.” 1R. at 168-169. Iceman testified that this was Evans’s 

fourth incident in two years. Id. at 170.

Progressive disciplinary policy and past disciplinary actions

{¶64} It has been observed that “[p]rogressive disciplinary systems create 

expectations on which employees rely,” and “[f]airness requires an employee not be 

subject to more severe discipline than that provided for by company policy.” Mullen v. 

O.B.E.S., 8th Dist. No. 49891 (Jan. 16, 1986). Ohio appellate courts have “generally 

concluded that where a company bypasses its progressive disciplinary system and 

terminates an employee, that employee’s discharge is without cause for unemployment 

compensation purposes.” Peterson v. Dir., Ohio Dept. of Job & Family Servs., 4th Dist. 

03CA2738, 2004–Ohio–2030, ¶ 20. See also Apex Paper Box Co. v. Admr., Ohio Bur. of 

Employment Serv., 8th Dist. No. 77423 (May 11, 2000) (“an employer’s failure to follow 

the disciplinary procedure set out in the work rules does not constitute just cause for 
Delaware County, Case No. 23 CAE 04 0023 29

termination”); Pickett v. Unemp. Comp. Bd. of Rev., 55 Ohio App.3d 68, 70 (8th Dist. 

1989) (Despite employer’s contention that employee could be discharged summarily 

because he had previously been discharged, “there is nothing in the record to justify 

ignoring the progressive discipline requirement”); Interstate Brands Corp. v. Cogar, 8th 

Dist. No. 48704 (June 13, 1985) (Unemployment Compensation Board of Review could 

reasonably have concluded that employer’s bypass of progressive disciplinary system 

was too severe under the facts, and therefore, the discharge of employee was without 

just cause); Peterson v. Director, 4th Dist. No. 03CA2738, 2004-Ohio-2030, 2004 WL 

869373, ¶ 20, citing In re Claim of Frazee, 10th Dist. No. 84AP284 (Dec. 13, 1984); See 

also, Eagle-Picher Industries, Inc. v. Ohio Bur. Of Emp. Serv., 65 Ohio App.3d 548, 584 

N.E.2d 1245(3rd Dist. 1989); Ohio Assn. Pub. School Emp. V. Ohio Dept. of Job & Family 

Services, 10th Dist. Franklin No. 12-AP-81, 2012-Ohio-6210, ¶21; Coles v. United Parcel

Service, 7th Dist. Mahoning No 12 MA 22, 2013-Ohio-1428, ¶20. Thus, prior disciplinary 

actions involving the employee are relevant in considering whether the employer followed 

its own progressive disciplinary policy. Additionally, we can find evidence that an 

employer followed its progressive disciplinary policy to support a finding of “just cause.” 

Eagle-Picher Industries, Inc. v. Ohio Bur. Of Emp. Serv., 65 Ohio App.3d 548, 584 N.E.2d 

1245(3rd Dist. 1989).

{¶65} In this respect, when the employer bases a decision to terminate an 

employee’s employment on a history of disciplinary violations, the hearing officer can 

consider the employee’s previous disciplinary record. Ogburn v. Administrator, Ohio Bur. 

Of Employment Services, 7th Dist. Mahoning No. 97 CA 242, 1998 WL 775027(Nov. 2, 

1998) at *5 (“Case law discussing just cause also supports the propriety of the board’s 
Delaware County, Case No. 23 CAE 04 0023 30

consideration of appellant’s previous disciplinary record.”); Chardon Local School District 

Board of Ed. V. Keller, 11th Dist. Geauga No. 2013-G-3159, ¶26 (“Further, it was not 

reasonable for the Hearing Officer to limit the just cause determination to this particular 

incident, as the Board’s decision to terminate Yowell relied upon his prior disciplinary 

infractions, as evidenced by the termination letter.”); City of Dublin v. Clark, 10th Dist. 

Franklin Nos. 05AP-431; 05AP-450, 2005-Ohio-5926, ¶30 (“[Clark] was given several 

written and verbal warnings that he was falling short in job productivity, and Hammersmith 

had several counseling discussions with Clark about his work.”); Crisp v. Scioto 

Residential Services, 4th Dist. Scioto No. 03CA2918, 2004-Ohio-6349, ¶25 (“Here, the 

hearing officer could reasonably have concluded that the disciplinary actions before 

October 2001 were relevant to the offense at issue because they involved similar 

infractions.”).

{¶66} The record demonstrates that Evans received training on November 23, 

2020, December 2, 2020 and December 9, 2020 on microaggression and restorative 

education. 1R. at 163; 2R. at 480. Evans further received trainings on the professional 

use of social media; trainings on the Code of Professional Conduct for Educators on April 

4, 2019, September 4, 2019 and August 21, 2022, and training on implicit bias and 

building a safe and supportive school environment. 1R. at 163-164; 2R. at 480. These 

training sessions all took place before Evans made her April 7, 2021 COVID comments. 

{¶67} The April 5, 2019 letter regarding Evans’s “Unpaid suspension, Directives 

and Final Warning” clearly informed Evans that her “insensitive comments” contradicted 

the District’s mission statement and created “considerable disruption” to the District’s 

operations. The letter clearly informed Evans of her “essential functions” as an employee. 
Delaware County, Case No. 23 CAE 04 0023 31

Evans was also advised that concerns were raised by “several students, parents and/or 

other members of the public.” 2R. at 445.

{¶68} From April 2019 through April 2021, Evans's conduct caused multiple 

students to report her conduct and prompted more than a dozen parents, teachers, and 

Liberty alumni to file complaints with the District. Judgment Entry at 15. Upon our own 

independent review of the record, we find that the record contains competent, credible 

evidence that demonstrates Evans's comment hurt her relationship with her students and 

the parents. 1T. at 172-73; 174; 175; 187; 2R. at 472-474; 515.

{¶69} The record supports that Evans was informed as early as 2019 that her 

insensitive comments were contradictory to the District’s mission statement and “created 

considerable disruption to our operation.” 2R. at 446. (Apr. 5, 2019 letter to Evans from 

Todd R. Meyer, Chief Operations Officer regarding the Apr. 4, 2019 pre-disciplinary 

hearing). (Evans signed this letter on April 9, 2019. 2R. at 447). In response to a question 

during the investigatory hearing, Evans stated that she was not familiar with the 

Professional Code of Conduct for Educators. 2R. at 511.

{¶70} In a letter dated September 29, 2020, Evans was informed that her 

comment with respect to “Tell that to the English Department,” demonstrated a repeated 

and persistent pattern of poor judgment. 2R. at 483. Evans was further informed that her 

comments have compromised her ability to work with staff, created a negative influence 

for students and violated a position of trust as a positive role model for students. Id. Evans 

was directed “to refrain from engaging in any other unprofessional or unethical behavior 

or violations of Board policies. If you do not follow these directives, you will face further 

disciplinary action up to and including termination.” Id. (Emphasis added).
Delaware County, Case No. 23 CAE 04 0023 32

{¶71} Evans had multiple disciplinary incidents, disrupting the high school’s 

operation and its learning environment each time. Because of this, the Hearing Officer 

found that Evans "appear[ed] to be either unable or unwilling to fully comprehend the 

significant impact of her conduct on students and the broader community, the disruption 

to a positive school environment, and the effect on the school's public image." UCRC 

Decision at 5.

{¶72} Evans admitted that she understood “what I am suppose to do and I didn’t 

do what I was suppose to do.” 1R. at 164. She further admitted that she was advised April 

2, 2019 and September 29, 2020 that any future violations of school policy would result 

in discipline up to and including termination of employment. 1R. at 169; 2R. at 445; 682.

{¶73} This was Evans's fourth infraction in two years. And yet, as observed by the 

Hearing Officer, Evans "continued to voice her opinions" “without regard to her role [,] and 

. . . her conduct clearly displayed that she could not be trained to act in the employer's 

best interests." 2R. at 884-885.

{¶74} The record contains competent, credible evidence that the COVID comment 

was not an isolated incident upon which the District based its decision to terminate 

Evans’s employment. The record clearly establishes that her discharge was the result of 

a history of repeated disciplinary infractions, each of which created considerable 

disruption to the District’s operation. The record establishes that from April 2019 through 

April 2021, Evans's conduct caused multiple students to report her conduct and prompted 

more than a dozen parents, teachers, and Liberty alumni to file complaints with the 

District. The record contains competent, credible evidence that the District provided 

Evans with notice of the problems caused for students, parents and members of the public 
Delaware County, Case No. 23 CAE 04 0023 33

each time she made a disparaging public social media post, asked inappropriate 

questions, and made racially-charged and insensitive comments. The District continued 

to employ Evans while working with her to address those problem areas by providing her 

with training and instruction. 

{¶75} Thus, the record contains competent, credible evidence supporting the 

hearing officer’s finding that Evans did not exhibit professionalism, sound judgment, or 

promote good public relations, and her conduct clearly displayed that she could not be 

trained to act in the employer’s best interest. 

{¶76} The record establishes that the fault for Evans’s discharge lies with her 

inability to learn from the numerous training sessions that the District provided to her, as 

well as the previous disciplinary hearings in which she was involved, to simply keep her 

inappropriate comments out of the school environment. The record contains competent, 

credible evidence that in spite of repeated warnings, Evans appears to be either unable 

or unwilling to fully comprehend the significant impact of her conduct on students and the 

broader community, the disruption to a positive school environment, the effect on the 

school’s public image, and that it was not in the best interest of the District. The record 

supports that Evans’s conduct after repeated warnings, training, and previous disciplinary 

hearings evidences an unreasonable disregard for her employer’s best interests.

{¶77} Upon our independent review of the entire record, weighing the evidence 

and all reasonable inferences as a thirteenth juror, we cannot reach the conclusion that 

the hearing officer lost her way and created a manifest miscarriage of justice. We 

conclude that the UCRC’s decision in this case that Evans misconduct was contrary to 

the employer’s best interests and represents fault that will serve to suspend her 
Delaware County, Case No. 23 CAE 04 0023 34

unemployment compensation benefits, and that Evans quit her employment without just 

cause when presented with an inevitable discharge, was neither unlawful, unreasonable, 

nor against the manifest weight of the evidence.

Wrongful termination

{¶78} Although Evans raised only a single assignment of error, in her brief she 

raises sub-issues that assert, in essence, that the District fired her for engaging in 

protected activity, i.e., free speech. Therefore, Evans suggests that the finding by the 

Hearing Officer that she quit without just cause or her employment was terminated by the 

District with just cause is against the manifest weight of the evidence. 

{¶79} An unfair firing is not the same thing as an illegal firing. Situations which 

may give rise to a wrongful termination claim can include when an employee is fired for a 

discriminatory reason, such as age, race or sex; when an employee is fired in retaliation 

to complaints about harassment or whistle-blowing, and where an employee is fired for 

exercising their protected rights. If an employee is fired for engaging in protected activity 

and through no fault of their own, the situation may give rise to a wrongful termination 

claim in addition to unemployment compensation benefits.

It is important to distinguish between just cause for discharge in the 

context of unemployment compensation and in other contexts. An employer 

may justifiably discharge an employee without incurring liability for wrongful 

discharge, but that same employee may be entitled to unemployment 

compensation benefits. See Adams v. Harding Machine Co., 56 Ohio 

App.3d 150, 155, 565 N.E.2d 858 (3d Dist. 1989). This is so because just 

cause, under the Unemployment Compensation Act, is predicated upon 
Delaware County, Case No. 23 CAE 04 0023 35

employee fault. Tzangas, 73 Ohio St.3d at 698, 653 N.E.2d 1207; Adams,

56 Ohio App.3d at 155, 565 N.E.2d 858. We are, therefore, unconcerned 

with the motivation or correctness of the decision to discharge. Friedman v. 

Physicians and Surgeons Ambulance Serv., 9th Dist. No. 10287, 1982 WL 

2867 (Jan. 6, 1982). The Act protects those employees who cannot control 

the situation that leads to their separation from employment. See Tzangas, 

73 Ohio St.3d at 697, 653 N.E.2d 1207.

Durgan v. Ohio Bur. of Emp. Serv., 110 Ohio App.3d 545, 549–550, 674 N.E.2d 1208 (9th 

Dist. 1996); Clucas v. RT80 Express, Inc., 9th Dist. Lorain No. 11CA009989, 2012-Ohio1259, ¶5; Peterson v. Director, Ohio Dept. of Job & Family Services, 4th Dist. Ross No. 

03CA2738, 2004-Ohio-2030, ¶17.

{¶80} As we have already explained, Evans’s employment was not terminated 

based upon the content of her COVID statement; rather the termination of her 

employment was based upon multiple disciplinary violations evidencing an unreasonable 

disregard for her employers’ best interests. Accordingly, we find Evans’s First 

Amendment and Equal protection arguments fail to establish that the Hearing Officer’s 

decision was unlawful, unreasonable, or against the manifest weight of the evidenced.
Delaware County, Case No. 23 CAE 04 0023 36

{¶81} The March 9, 2023 judgment entry of the Delaware County Court of 

Common Pleas is affirmed.

By Gwin, P.J., and

Wise, J., concur;

King, J., dissents
Delaware County, Case No. 23 CAE 04 0023 37

King, J. dissents

{¶ 82} I would reverse the determination of the UCRC because I conclude Evans's 

COVID "microaggression" does not represent just cause sufficient to deny benefits. The 

majority of the panel concludes otherwise; therefore, I dissent. 

{¶ 83} To begin, I disagree that the burden of proof rests on any claimant. The 

current formulation of the statute states, "No person shall impose upon the claimant or 

the employer any burden of proof as is required in a court of law." R.C. 4141.281(C)(2). 

As our colleagues in the Seventh District recognized, this statutory change supersedes 

prior case law. Struthers v. Morell, 164 Ohio App.3d 709, 2005-Ohio-6594, 843 N.E.2d 

1231, ¶ 12 (7th Dist.). Under this proper formulation, we cannot uphold a UCRC 

determination under the notion that a claimant failed to carry the burden of proof. In my 

view, this error in formulation was present in the trial court's opinion, and then repeated 

in the majority's opinion. See, Trial Court's March 9, 2023 Judgment Entry at page 10.

{¶ 84} The purpose of unemployment compensation is to provide financial 

assistance to individuals who have lost their employment through no fault of their own, 

i.e., without just cause. See Salzl v. Gibson Greeting Cards, Inc., 61 Ohio St.2d 35, 39,

399 N.E.2d 76 (1980). In order to accomplish this purpose, we are directed to liberally

interpret certain statutes. R.C. 4141.46. In this context, both the Third and Seventh

Districts have concluded that the legislative intent is to presume that employees are

entitled to receive benefits. Tomlinson v. Ohio Department of Job and Family Services, 

3d Dist. Allen No. 1-09-02, 2009-Ohio-3414, ¶ 6; Abate v. Wheeling-Pittsburgh Steel

Corp., 126 Ohio App.3d 742, 748-749, 711 N.E.2d 299 (7th Dist.1998). The Second, 

Sixth, Eighth, Ninth, and Tenth Districts arrived at a similar conclusion as well. Bates v.
Delaware County, Case No. 23 CAE 04 0023 38

Airborne Express, Inc., 186 Ohio App.3d 506, 2010-Ohio-741, 928 N.E.2d 1168, ¶ 9 (2d 

Dist.); Schivelbein v. Riverside Mercy Hospital, 6th Dist. Lucas No. L-11-1208, 2012-

Ohio-3991, ¶ 13; Shephard v. Ohio Department of Job and Family Services, 166 Ohio 

App.3d 747, 753, 2006-Ohio-2313, 853 N.E.2d 335, ¶ 21 (8th Dist.); Niskala v. Director,

Ohio Department of Job & Family Services, 9th Dist. Medina No. 10CA0086-M, 2011-

Ohio-5705, ¶ 9; Bennett v. Department of Job and Family Services, 10th Dist. Franklin

No. 11AP-1029, 2012-Ohio-2327, ¶ 6. It also appears the Twelfth District reached the 

same conclusion.

{¶ 85} Before the Twelfth District, the UCRC argued that this presumption in favor 

of awarding benefits was improper, but the court of appeals rejected the argument. 

Harmon v. Ohio Department of Job and Family Services, 12th Dist. Butler No. CA2021-

08-105, 2022-Ohio-1142, ¶ 31-32. Our colleagues' determinations are further bolstered 

by the subsequent Supreme Court of Ohio case holding courts are no longer required to 

defer to administrative agency interpretations. TWISM Enterprises, L.L.C. v. State Board

of Registration for Professional Engineers & Surveyors, --- N.E.3d ---, 2022-Ohio-4677, ¶ 

3. 

{¶ 86} For the sake of statewide consistency, I would follow the overwhelming 

majority of our sister appellate courts and begin with the proposition a claimant is entitled 

to receive benefits. In this light, under R.C. 4141.281(C)(2), the hearing officer must 

ensure that evidence at hand is sufficient to overcome the presumption a claimant is 

entitled to receive benefits before denying benefits. As it relates here, the hearing officer 

was required under R.C. 4141.29(D)(2) to determine if the submitted evidence sufficiently 

demonstrated that Evans was terminated for just cause.
Delaware County, Case No. 23 CAE 04 0023 39

{¶ 87} I agree with the majority that the hearing officer correctly reviewed the 

alleged inevitable discharge under the standard of whether the employer had just cause 

to terminate employment. But I do not agree the evidence before the hearing officer was 

sufficient to demonstrate just cause and thus rightly deny Evans benefits. 

{¶ 88} Whether a claimant's conduct rises to the level of just cause is not subject 

to a bright line rule, instead it must be examined on a case-by-case basis. Irvine v. State

Unemployment Compensation Board of Review, 19 Ohio St.3d 15, 17, 482 N.E.2d 587 

(1985). Although, the Supreme Court did provide some rough guidance by stating: " 

'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.' " Id., quoting Peyton 

v. Sun T.V., 44 Ohio App.2d 10, 12, 335 N.E.2d 751 (10th Dist.1975).

{¶ 89} Moreover, there is a distinction between the conduct that may warrant 

dismissal and "the further degree of misconduct or fault required on the part of the 

employee to justify a denial of unemployment benefits." James v. Ohio State

Unemployment Review Commission, 10th Dist. Franklin No. 08AP-976, 2009-Ohio-5120, 

¶ 12. In other words, an employer may have the right to discharge an employee for certain 

conduct, but that does not automatically equate to just cause under R.C. 4141.29(D)(2) 

to deny that employee benefits. In that regard, it is entirely possible Evans would fail to 

win a wrongful discharge claim, yet be entitled to receive benefits. As I explain below, it 

is unnecessary to directly reach the constitutional issues raised, although I view it 

presents a much more significant obstacle to the denial of benefits than stated by the 

majority.
Delaware County, Case No. 23 CAE 04 0023 40

{¶ 90} The proximate conduct at issue here is Evans's overheard COVID 

comment: "Can you believe the coronavirus came from China and that China is making 

money from the sales of PPE to the United States?" The school district's concern was 

not so much that this statement was made, but rather its impact on a particular student 

who was of Asian descent and became upset after hearing this comment. Indeed, the 

school district's brief referred to the statement itself as an "Anti-Asian microaggression." 

While the facts surrounding the origin of COVID-19 continue to be hotly debated, the 

statement itself lacks the sort of racially charged slurs, opinions, statements, or distasteful 

"joking" that usually precede an employee's discharge.

{¶ 91} In my view, whatever legal authority an employer has to punish a 

microaggression with termination, a microaggression will usually fall well short of 

demonstrating sufficient just cause to overcome a worker's presumption to unemployment 

benefits. In support of the UCRC's decision, the school district gestures at the broadly 

worded statement of principles adopted by the school district, and that Evans violated 

those rules. Again, violations of those laudable aspirations might well support lawful 

discharge, but not necessarily the denial of unemployment benefits. Ordinarily, the UCRC 

reviews the violation of company rules that are far more objective, such as being ready 

for work at the assigned start time, using internet for only business purposes, procedures 

for use of sick time, and so on. The workplace rules at issue here approach the "be a 

good employee and support company objectives" level of specificity that is, in my view, 

insufficient to support a finding of just cause for violating a company rule.

{¶ 92} As I read the record, Evans has been repeatedly disciplined and on 

November 17, 2020, she was placed on something roughly equivalent to a last chance 
Delaware County, Case No. 23 CAE 04 0023 41

agreement. We can assume without deciding that on November 17, 2020, just cause 

existed to terminate her. But the school district decided to proceed otherwise. If the 

conduct at issue here were truly actionable, then her prior conduct would be relevant and 

would certainly support the UCRC's finding. But the school district gave her another 

chance, which it cannot now take back. Because the single microaggression is not either 

a violation of workplace rules or independent evidence of her unsuitability for her position, 

the prior discipline is of no import.

{¶ 93} Finally, I believe much of the discussion by the trial court and majority is 

unnecessary. With regard to Evan's claimed constitutional violations of equal protection 

and procedural due process, I fail to see how either is relevant to whether Evans's 

microaggression was sufficient just cause to support the UCRC's denial of her 

unemployment benefits. Those may well be independent claims related to wrongful 

discharge she can raise in another forum, but, as explained above, we do a disservice to 

the purpose and structure of the Unemployment Compensation Act to interject those here. 

{¶ 94} Regarding the free speech claims, I agree the UCRC has to ensure that any 

denial of unemployment benefits comports with the United States Constitution. See, e.g.,

Sherbert v. Verner, 374 U.S. 398, 410, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). But the 

trial court's analysis expressly placed the burden on Evans to prove a first amendment 

violation. This was an error under R.C. 4141.281(C)(2). The factors examined by the 

federal district court in Brandenburg v. Housing Authority of Irvine, 253 F.3d 891, 897 (6th 

Cir.2001), placed the burden on the former employee because the employee as plaintiff 

had the burden of proof. That is not the case here. Thus, this illustrates the danger of 
Delaware County, Case No. 23 CAE 04 0023 42

conflating standards relevant to wrongful discharge cases with the standard of just cause 

under the unemployment compensation system.

{¶ 95} Further, whenever the UCRC has to assure itself it is behaving 

constitutionally in denying benefits, it should proceed cautiously in applying federal 

precedent. As illustrated above, the framework in which those cases arise are often 

remarkably different. Moreover, as discussed by Judge Murphy in Bennett v. Metropolitan

Government of Nashville & Davidson County, Tennessee, 977 F.3d 530, 547 (6th 

Cir.2020) (Murphy, J., concurring), the "state-as-the-employer" free speech law revolves 

around "two incomparable values—a public employee's interest in speaking about politics 

and a public employer's interest in its efficient operations." If the balancing in federal 

court is a delicate affair with the benefit of discovery and the adversarial nature of 

litigation, then the UCRC should be circumspect in denying benefits under any framework 

driven by "two incompatible values."

{¶ 96} Thus, in my view, in many circumstances, with the difficulty in assessing 

this area of the law coupled with the presumption of awarding benefits, the discharged 

worker should receive benefits and thus avoid consideration of this perilous doctrine 

altogether. It follows then that I am not nearly as convinced as the trial court and the 

majority about a conclusion to deny benefits premised on the lack of merits of the free 

speech claim here. I would conclude the UCRC's determination of just cause was 

unreasonable and thus believe it should be reversed on that ground.