COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69965 DARLENE EAKLE : : Appellant : : JOURNAL ENTRY -vs- : AND : OPINION CUYAHOGA COUNTY METROPOLITAN : HOUSING AUTHORITY : : Appellee : : DATE OF ANNOUNCEMENT OF DECISION JULY 25, 1996 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 286838 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Appellant: For Appellee: RODGER A. PELAGALLI, ESQ. STEPHANIE R. REED, ESQ. 6400 Pearl Road 1441 West 25th Street Parma Hts., Ohio 44130 Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, P.J., Appellant Darlene Eakle appeals from the decision of the Common Pleas Court affirming her suspension for fighting with a fellow employee of appellee Cleveland Metropolitan Housing Authority (CMHA). Appellant contends that the CMHA suspension was unconstitutional, unreasonable, arbitrary and capricious, and not supported by substantial, reliable and probative evidence. We find no error and affirm. Appellant was office manager of the Construction Department of CMHA, a public housing authority. She reported to Vincent Ferraro, Director of Construction. Brenda Lavendar was an administrative assistant in the department. On February 22, 1995, the receptionist for the Construction Department contacted Ms. Lavendar and asked her to cover the phones while she delivered a package to the Department Director. Ms. Lavendar covered the phones, but when the receptionist returned, told her that she had a lot of work to do, but she would talk to Ronald Williams, Contract Administrator, about the phones. Ms. Lavendar spoke to Mr. Williams but he stated that, despite her work load, she would have to cover the phones. Ms. Lavendar returned to her desk to put her work away and resume answering the phones. At this point, Ms. Lavendar alleges that appellant approached her and began yelling at her, demanding that she go to the phones immediately. Appellant, on her part, stated that she simply told Ms. Lavendar that she was needed on the switchboard. In either event, both Ms. Lavendar and appellant - 3 - proceeded to the office of Mr. Williams, their immediate supervisor. In his presence, the verbal exchange between these two employees escalated to the point that they were "toe to toe" screaming and yelling at each other. This verbal dispute quickly became physical and they began tussling. Other employees intervened, eventually separating them, ending the fight. The evidence was conflicting as to who started the physical attack. Mr. Ferraro, Director of Construction, recommended both employees for termination in accordance with Administrative Order 11, Section 11.10 and Administrative Order 11, Part II, XIII(C)(4). Administrative Order 11 is the personnel Policy for CMHA and reads in pertinent part as follows: XIII. MISCONDUCT AND PROHIBITED PRACTICES C. The following actions by a CMHA employee are determined to be sufficient cause for dismissal (involuntary separation); but they are not the only grounds for such separation: * * * 4. Fighting on the job or on CMHA property. A pre-termination hearing was held before Melvyn Patterson, Vice President of Administration, on March 2, 1995, at which the foregoing evidence was produced. Mr. Patterson considered all the statements including character witnesses for the combatants. Given the character witnesses and work history of the employees, Mr. Patterson reduced the recommended termination to a three-week suspension without pay. Both employees were also ordered to apologize to the entire staff for their behavior. - 4 - The decision of the CMHA was appealed by appellant to the Common Pleas Court and heard upon the transcript of the CMHA hearing. The court found that substantial, probative and reliable evidence supported appellant's suspension. A timely appeal to this Court ensued. Appellant's sole assignment of error states as follows: I. THE COURT OF COMMON PLEAS ABUSED ITS DISCRETION AFFIRMING THE APPELLEE, AGENCY'S DECISION TO DISCIPLINE APPELLANT FOR "FIGHTING" IN THAT SAID DECISION WAS UNCONSTITUTIONAL, ILLEGAL, ARBITRARY, CAPRICIOUS, AND UNREASONABLE AS IT WAS UNSUPPORTED BY A PREPONDERANCE OF SUBSTANTIAL, RELIABLE, AND PROBATIVE EVIDENCE. The applicable standard of review in appeals from administrative agencies was recently set forth in Diversified Benefit Plans Agency, Inc. v. Duryee (1995), 101 Ohio App.3d 495, 499: When reviewing an order of an administrative agency, a common pleas court acts in a "limited appellate capacity." Univ. Hosp., Univ. of Cincinnati College of Medicine v. State Emp. Relations Ed. (1992), 63 Ohio St. 3d 339, 343, 587 N.E.2d 835, 838. In reviewing an order of an administrative agency pursuant to R.C. 119.12, the common pleas court is bound to affirm the agency's order "if it is supported by reliable, probative, and substantial evidence, and is in accordance with the law." Pons v. Ohio State Med. Bd. (1993), 66 Ohio St. 3d 619, 621, 614 N.E.2d 748, 750. See, also, Bottoms Up, Inc. v. Ohio Liquor Control Comm. (1991), 72 Ohio App. 3d 726, 728, 596 N.E.2d 475, 476. The common pleas court "'must give due deference to the administrative resolution of evidentiary conflicts'" and therefore must not substitute its judgment for that of administrative agency. Hawkins v. Marion Corr. Inst. (1990), 62 Ohio App. 3d 863, 870, - 5 - 577 N.E.2d 720, 724, quoting Univ. of Cincinnati v. Conrad (1980), 63 Ohio St. 2d 108, 111, 17 Ohio Op. 3d 65, 67, 407 N.E.2d 1265, 1267. An appellate court's review of the trial court's decision is even more limited and requires the appellate court "to determine only if the trial court has abused its discretion, i.e., being not merely an error of judgment, but perversity of will, passion, prejudice, partiality or moral delinquency." Pons, 66 Ohio St. 3d at 621, 614 N.E.2d at 750-751. Where the common pleas court applies a standard of review greater than that called for in R.C. 119.12, the trial court has abused its discretion. Bottoms Up, Inc., 72 Ohio App.3d at 729-730, 596 N.E.2d at 476-477. Appellant argues that the evidence and statements taken at the pre-termination hearing were, as a matter of law, lacking in substantial, reliable and probative value due to the fact that the evidence taken was unsworn and cites in support In re Rocky Point Plaza Corporation (1993), 86 Ohio App.3d 486. Appellant also notes that the court held that the appellant upon application should be permitted to present additional evidence in the Court of Common Pleas upon appeal. In the instant case, appellant, in fact, applied to the court to present additional evidence and did present additional evidence by appendage to her brief below. Appellant also notes that the court in Rocky Point held that the absence of sworn testimony or other information does not rise to the level of evidence required to withstand an appeal to the courts. - 6 - Appellant was represented by legal counsel throughout the pre-termination hearing. The transcript is devoid of any indication that counsel requested that the testimony of witnesses be sworn or that counsel objected to the failure to administer the oath to witnesses. In Dudukovich v. Lorain County Housing Authority (1979), 58 Ohio St.2d 202, a case involving the appeal of the dismissal of an employee of the Lorain County Housing Authority under R.C. Chapter 2506, the Ohio Supreme Court, citing its syllabus in Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41, held that "the omission or administration of the oath to a witness in a trial or administrative hearing is waivable error." Dudukovich at 206. In the instant case, appellant waived the failure to swear the witnesses by not raising the issue at the pre-termination hearing. The evidence presented at the pre-termination hearing clearly indicates that both Ms. Lavendar and appellant engaged in a mutual fight on the job and on CMHA property contrary to Administrative Order 11, Part II, XIII(C)(4). This was fully supported by testimony of several co-workers. In evaluating the testimony of witnesses, the hearing officer was entitled to consider the demeanor of the witness, the interests of the witness and/or supportive testimony. In the instant case, the testimony of Ms. Lavendar appears to be supported by the testimony of other witnesses to the incident. Ms. Lavendar testified against her own interest in admitting to - 7 - the fight given the fact that she had been recommended for termination of employment. Appellant's own testimony was self- serving and inconsistent with or unsupported by the testimony of the third party witnesses. There was sufficient, substantial, reliable and probative evidence to support the agency's conclusion that both employees were actively involved in a confrontation which culminated in a physical altercation. Appellant's claim that she was a victim of an unprovoked assault was not supported by the weight of the evidence. The reduction of the discipline from termination to suspension was clearly appropriate in light of the character witnesses and the testimony of Vincent Ferraro that both employees were good workers deserving a second chance. We find no error in the agency's determination or abuse of discretion by the trial court in affirming same. Appellant's sole assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, J., and KARPINSKI, J., CONCUR. JAMES M. PORTER PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate .