PETER A. SCHARVER : JUDGES: : William B. Hoffman, P.J. Plaintiff-Appellant : Sheila G. Farmer, J. : Julie A. Edwards, J. -vs: : Case No. 2006CA00147 DIRECTOR OF THE OHIO DEPARTMENT : OF JOB AND FAMILY SERVICES, OFFICE: OF UNEMPLOYMENT : COMPENSATION, ET AL. : : Defendants-Appellees : O P I N I O N
(Signer's identity unknown) Signed by Supreme Court of Ohio
JUDGMENT:
DATE OF JUDGMENT ENTRY:
APPEARANCES:
For Plaintiff-Appellant
WILLIAM Z. CHRISTOFF #0001765
26 South Erie
Massillon, Ohio 44646
Civil Appeal From Stark County Court Of
Common Pleas Case No. 2005CV04344
Affirmed
July 16, 2007
For Defendant-Appellee
REPUBLIC ENGINEERED
PRODUCTS LLC
P.O. box 1160
Columbus, Ohio 43216-1160
LAUREL BLUM MAZOROW #0021766
ASSISTANT ATTORNEY GENERAL
HEALTH AND HUMAN SERVICES
SECTION
UNEMPLOYMENT COMPENSATION
UNIT – STATE OFFICE BLDG., 11TH FL.
615 West Superior Avenue
Cleveland, Ohio 44113-1899
[Cite as Scharver v. Ohio Dept. of Job & Family Servs. Office of Unemp. Comp., 2007-Ohio-3633.]
Edwards, J.
{¶1} Plaintiff-appellant Peter A. Scharver appeals the judgment entry
of the Stark County Court of Common Pleas which affirmed the Ohio
Unemployment Compensation Review Commission’s denial of unemployment
benefits to appellant, finding the denial was not unlawful, unreasonable, or
against the manifest weight of the evidence.
STATEMENT OF FACTS AND LAW
{¶2} Appellant was employed by Republic Engineered Products LLC
as an electrical equipment maintenance technician from January 16, 1978,
through December 10, 2003. Appellant had been convicted of possession of
narcotics by the Stark County Court of Common Pleas, and placed on probation
for the offense. One of the conditions of appellant’s probation was that he
abstain from the use of alcohol. Appellant violated the terms of his probation by
using alcohol. On December 11, 2003, appellant was detained at the Stark
County Jail, and on December 22, 2003, appellant’s probation was revoked by
the Stark County Court of Common Pleas. Following the revocation of his
probation, appellant was sentenced to serve eleven (11) months at the North
Coast Correctional Treatment Facility. Because appellant was sentenced to
prison, he was unable to report for work. Accordingly, his employer discharged
him for unauthorized absences from work.
{¶3} On November 8, 2004, following his release from prison,
appellant applied for unemployment benefits. On November 29, 2004, the
Director of the Ohio Department of Job and Family Services issued a
determination disallowing appellant’s claim because appellant had been
discharged for just cause in connection with his unauthorized absences from
work. On December 29, 2004, appellant appealed the Director’s determination,
and on April 14, 2005, the Director issued a re-determination which affirmed the
initial determination.
{¶4} On May 4, 2005, appellant filed a timely appeal of the Director’s
re-determination to the Director, who transferred jurisdiction of the matter to the
Ohio Unemployment Compensation Review Commission on August 10, 2005.
On October 13, 2005, the Review Commission hearing officer found that
appellant became unemployed due to his commitment to a correctional
institution, which was a disqualifying separation. Accordingly, the Review
Commission disallowed appellant’s application for unemployment benefits. On
November 17, 2005, the Review Commission disallowed appellant’s request for
further appeal.
{¶5} Appellant then appealed the Review Commission’s decision to
the Stark County Court of Common Pleas. On April 28, 2006, the trial court
affirmed the Review Commissions’ decision, finding that the Review
Commission’s determination was not unlawful, unreasonable, or against the
manifest weight of the evidence. Appellant now appeals to this Court, setting
forth one assignment of error.
{¶6} “THE UNEMPLOYMENT COMPENSATION BOARD OF
REVIEW’S DETERMINATION WAS UNLAWFUL, UNREASONABLE OR
AGAINST THE MANIFEST WEIGHT OF EVIDENCE FOR THE REASON THAT
THE PLAINTIFF-APPELLANT WAS NOT IN A CORRECTIONAL INSTITUTION
WHEN HE MADE HIS APPLICATION FOR UNEMPLOYMENT
COMPENSATION AND MADE HIS REQUEST FOR REINSTATEMENT.”
{¶7} Appellant argues that he was entitled to unemployment benefits
because he was not in a correctional facility at the time he submitted his
application for said benefits and his request for reinstatement. We disagree.
{¶8} An appellate court’s standard of review in unemployment
compensation cases is limited. An appellate court may reverse a board decision
only if the decision is unlawful, unreasonable or against the manifest weight of
the evidence. See, Tzangas, Plakas & Mannos v. Administrator, Ohio Bureau of
Employment Services, 73 Ohio St.3d 694, 696, 1995-Ohio-206, 653 N.E.2d
1207, citing Irvine v. Unemp. Comp. Bd. Of Review (1985), 19 Ohio St.3d 15, 1718,
482 N.E.2d 587. An appellate court may not make factual findings or
determine the credibility of the witnesses, but rather, is required to make a
determination as to whether the board’s decision is supported by evidence on the
record. Id.
{¶9} R.C. 4141.29 establishes eligibility and qualification for
unemployment benefits, and states in pertinent part: “(D) Notwithstanding
division (A) of this section, no individual may serve a waiting period or be paid
benefits under the following conditions:…
{¶10} “(2) For the duration of the individual's unemployment if the
director finds that:
{¶11} “(a) The individual quit work without just cause or has been
discharged for just cause in connection with the individual's work, . . .
{¶12} “(d) The individual became unemployed by reason of
commitment to any correctional institution . . . .”
{¶13} In the case sub judice, the Director found that appellant had
been discharged for just cause due to his unauthorized absences from work, and
the Unemployment Compensation Review Commission hearing officer affirmed
the Director’s decision, but modified the decision by stating that the discharge
was proper due to the fact that appellant’s separation from employment was a
result of his incarceration.
{¶14} Appellant argues because the Director’s denial of appellant’s
unemployment benefits due to discharge with just cause was based upon R.C.
4141.29(D)(2)(a), and the hearing officer’s affirmation of the denial of benefits
due to appellant’s incarceration was based upon R.C. 4141.29(D)(2)(d), that the
denial of benefits was unlawful, unreasonable and against the manifest weight of
the evidence. We are not persuaded by appellant’s argument. Appellant was
discharged for unauthorized absences from work by reason of his commitment to
a correctional facility. The fact that two sections of the Revised Code apply to
this particular set of circumstances does not change the fact that appellant,
through his own fault, was unable to attend work.
{¶15} The Unemployment Compensation Act was designed to assist
employees who, through no fault of their own, find themselves unemployed. As
set forth by The Ohio Supreme Court in Tzangas, supra, “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. . . .” Tzangas, supra, at 697-698. In the case sub
judice, appellant voluntarily engaged in conduct which he knew was in violation
of his probation. As a direct result of this voluntarily act, appellant was
incarcerated. Thus, appellant alone was at fault for his state of unemployment.
{¶16} In addition, appellant argues the fact that he was not
incarcerated at the time he applied for unemployment benefits somehow renders
inapplicable. This argument is also unpersuasive. As
correctly pointed out by appellee, the appropriate inquiry herein is not whether
appellant was incarcerated at the time he applied for unemployment benefits, but
rather, whether appellant’s employer had just cause to discharge him due to his
unauthorized absences from work as a result of his incarceration.
{¶17} Finally, appellant argues that his employer failed to comply with
provisions of the collective bargaining agreement, and his discharge was
therefore invalid. However, the case sub judice is not a wrongful discharge case,
but rather, comes to us in its limited capacity as an unemployment benefits case.
See, Morris v. Ohio Bureau of Employment Services (1993), 90 Ohio App.3d
295, 300, 629 N.E.2d 35, (“there is a distinct difference between a wrongful
discharge and ‘just cause for discharge,’ pursuant to R.C. 4141.29”). Therefore,
this argument, too, must fail.
Stark County App. Case No. 2006CA00147
{¶18} The denial of unemployment benefits to appellant was not
unlawful, unreasonable, or against the manifest weight of the evidence, and was
supported by the record. Therefore, appellant’s sole assignment of error is
overruled, and the decision of the trial court is affirmed.
By: Edwards, J.
Hoffman, P.J. and
Farmer, J. concur