The estate of a Chardon Local Schools maintenance worker fired for taking a picture of a notorious crime scene may have to pay back unemployment compensation benefits awarded after the man challenged his termination.

A split Eleventh District Court of Appeals affirmed the ruling of a Geauga County Common Pleas Court, which overturned the state’s award of unemployment compensation to Perry T. Yowell. The December 22 ruling supports the Chardon Local Schools Board of Education’s objection to the determination. The case also involved the unusual situation where Ohio Attorney General Mike DeWine personally filed an amicus brief on behalf of the school district while his office was obligated to defend the Unemployment Compensation Review Commission.

Yowell was called to the Chardon High School cafeteria in February 2012 to fix a water leak just after then 17-year-old T. J. Lane shot and killed three students and injured several others. The bodies had been removed when Yowell took a photo with his cell phone of what he described to others as two pools of blood and some brain matter from the victims.

According to the appeals court, Yowell showed the photo to some co-workers, members of the community and his nephew, a student at the school. The school superintendent was informed of the photo and placed Yowell on suspension. Yowell had been disciplined by the district for other matters in the past and the school board voted to terminate Yowell stating he “engaged in misconduct” for showing the photos and violating board policy.

Yowell filed for unemployment benefits through the Ohio Department of Job and Family Services, which denied him, determining that Yowell had been fired for just cause. He appealed the decision to the Unemployment Compensation Review Commission and a hearing officer ruled that Yowell “showed a lack of respect for the shooting victims and their families,” and used poor judgment. But the officer determined that because Chardon schools had no policy concerning photography in the cafeteria and Yowell did not publish the pictures, there was not sufficient misconduct to disqualify him from receiving benefits.

The district appealed the officer’s ruling to the full commission which upheld the benefits award. The district appealed to the common pleas court. In August 2013, the court reversed the commission’s ruling saying the school was justified by Yowell’s “outrageous and egregious conduct.”

Common Pleas Court Judge David Fuhry said the school did not need a rule to prevent the photo from being taken. “Yowell’s conduct was profoundly troubling. The photograph is inherently gruesome. It shocks the sensibilities of any reasonable person,” he ruled.

Yowell died three months after the ruling, but his estate appealed the case to the Eleventh District in an attempt to prevent the state from seeking a refund.

Writing for the court majority Judge Timothy P. Cannon said the commission hearing officer failed to take into consideration that Yowell had been disciplined by the district before and warned that any further misconduct could lead to termination. While the hearing officer indicated the district relied solely on taking the photo as grounds for dismissal, the court said the district made it clear that the previous incidents were relevant to its decision.

“Yowell was aware that based on his instances of prior misconduct, termination was a possibility,” Judge Cannon wrote. “Yet, Yowell proceeded to not only take a photograph of the scene, but he showed and described it to others. If Yowell had not taken the photograph and showed it to other individuals, he may not have been terminated.”

The appeals court concluded that the commission was not presented with competent, credible evidence to determine if Yowell was fired without just cause and that it was “not unlawful, unreasonable or against the manifest weight of the evidence” for the trial court to overturn the commission.

Judge Thomas R. Wright concurred in the decision.

In her dissent, Judge Colleen Mary O’Toole stated that Yowell took the photo after the victims had been removed from the scene, never included any personal or identifying information about the victims, and took the picture from outside of the crime scene. In addition, she wrote that she was “puzzled and disturbed” that another employee took a photo of the crime scene and had showed it to Yowell and other employees but was not disciplined by the school board.

“There is no evidence that the photo was shocking or gruesome. In fact, the photo was never introduced as evidence and is not in the record,” Judge O’Toole wrote.

Judge O’Toole stated the commission had competent, credible evidence to support its finding and that the trial court and the appeals court have a limited role in reviewing the factual determinations of the commission. She wrote they cannot substitute their own judgment about the evidence for that of the commission.

“Not only do the facts not show the violation of any policy, the trial court wrongfully substituted its judgment for that of the Review Commission,” she concluded.

Chardon Local School Dist. v. Keller, 2014-Ohio-5623
Opinion: http://sc.ohio.gov/rod/docs/pdf/11/2014/2014-ohio-5623.pdf
Civil Appeal From: Geauga County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 22, 2014

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