COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
COUNTY OF CUYAHOGA
NO. 84773
JULIE M. BETHLENFALVY
Plaintiff-appellant
vs.
DIRECTOR, OHIO DEPT. OF JOB &
FAMILY SERVICES, ET AL.
Defendant-appellee
JOURNAL ENTRY
AND
OPINION
DATE OF ANNOUNCEMENT
OF DECISION:
MAY 26, 2005
CHARACTER OF PROCEEDING:
Civil appeal from Common Pleas
Court, Case No. CV-513493
JUDGMENT:
Reversed and remanded.
DATE OF JOURNALIZATION:
APPEARANCES:
For plaintiff-appellant:
JULIE M. BETHLENFALVY
For defendants-appellees:
DIRECTOR, OHIO DEPT. OF JOB &
FAMILY SERVICES
Appearances continued on next
page.
KEVIN J.M. SENICH, ESQ.
4438 Pearl Road
Cleveland, Ohio 44109
JIM PETRO, ESQ.
OHIO ATTORNEY GENERAL
LAUREL BLUM MAZOROW, ESQ.
Assistant Attorney General
State Office Bldg., 11th Floor
615 W. Superior Avenue
Cleveland, Ohio 44113-1899
For defendants-appellees:
OHIO FARMERS GROUP INS. CO.
THE LIMITED STORES
GROUP INSURANCE CO., OHIO
FARMERS
P.O. Box 5001
Westfield Center, Ohio 44251
THE LIMITED STORES
C/O EMPLOYERS UNITY, INC.
P.O. Box749000
Arvada, CO 80006-9000
KARPINSKI, J.:
{¶ 1} This is an administrative appeal from the Ohio
Unemployment Compensation Review Commission (the “Commission”)
pursuant to R.C. 4141.282.1 Julie M. Bethlenfalvy appeals from the
judgment of the common pleas court affirming the decision of the
Commission to deny her unemployment benefits. For the reasons set
forth below, we reverse the judgment of the trial court.
{¶ 2} Between October 2000 and September 2002, claimant was
employed by Ohio Farmers Insurance Co., Inc., as a commercial
insurance underwriter. In that position, claimant’s salary was
approximately $30,000 per year. In April 2002, claimant decided to
supplement her income by accepting part-time employment with The
Limited Stores, a position that could entail up to fifteen hours
per week.
{¶ 3} On or about September 6, 2002, because of a decline in
sales, Ohio Farmers terminated claimant’s employment. Claimant
applied for and was granted unemployment benefits. The amount of
those benefits was set off by her part-time employment with The
Limited.
{¶ 4} By early November, 2002, sales had declined at The
Limited and claimant’s ususal fifteen-hour work week was reduced to
five to six hours per week. The store would often call her off on
days when she was scheduled to work. Unable to obtain any
assurance of an increase in hours, claimant decided that her
employment with The Limited was economically unfeasible given the
time of her commute2 and the reduction in hours. Following a twoweek
notice, claimant left The Limited.
{¶ 5} Claimant applied for additional unemployment benefits
from The Limited. In December 2002, the Director of the Ohio
Department of Job and Family Services (“Director”) determined that
claimant voluntarily quit her employment at The Limited without
just cause. Not only was claimant’s application for unemployment
benefits from The Limited denied, her unemployment benefits based
on her days off from Farmers Insurance were also completely
terminated.3 Claimant’s subsequent application for reinstatement
of benefits was denied. She appealed that decision and the
Director transferred the appeal to the Commission for a hearing.
{¶ 6} The Commission affirmed the decision to deny claimant all
unemployment benefits. Claimant sought but was denied review of
that decision. Claimant appealed to the trial court, which
affirmed the Commission’s decision to deny her all unemployment
benefits. Claimant now appeals and presents two assignments of
error:
I. THE COMMON PLEAS COURT ERRED IN AFFIRMING THE OHIO
UNEMPLOYMENT COMPENSATION REVIEW COMMISSION’S DECISION
THAT APPELLANT QUIT WORK WITHOUT JUST CAUSE WHERE THAT
DECISION WAS UNLAWFUL, UNREASONABLE OR AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 7} Claimant argues that when she left her employment at The
Limited she had just cause to do so and is, therefore, entitled not
only to unemployment benefits from The Limited, but is also
entitled to reinstatement of her unemployment benefits from Farmers
Insurance.
{¶ 8} On appeal, this court “may reverse the board's
determination only if it is unlawful, unreasonable, or against the
manifest weight of the evidence.” Tzangas, Plakas & Mannos v.
3She had been receiving unemployment compensation that was set
off by her wages from The Limited.
-5-
Administrator, Ohio Bureau of Employment Servs., 73 Ohio St.3d 694,
697, 1995-Ohio-206, 653 N.E.2d 1207. An appellate court cannot
make factual findings or determine the credibility of witnesses.
“The court may only modify the Board's decision where the facts are
not in dispute and such undisputed facts are determinative of the
issues.” Vitale v. Administrator (Oct. 30, 1986), Cuyahoga App.
No. 51207, 1986 Ohio App. LEXIS 8880, at *4.
{¶ 9} If some evidence supports the commission's decision,
the reviewing court, whether a common pleas court or court of
appeals, must affirm. *** Where the board might reasonably
decide either way, reviewing courts must leave the board's
decision undisturbed.
{¶ 10} Harrison v. Penn Traffic Co., Franklin County App. No.
04AP-728, 2005-Ohio-638, at ¶6.
{¶ 11} In Ohio, to be eligible for unemployment compensation
benefits, claimants must satisfy the criteria established pursuant
to R.C. 4141.29(D)(2)(a), which provides in part as follows:
(D) *** [No] individual may *** be paid benefits ***:
***
(2) For the duration of his unemployment if the
administrator finds that:
(a) He quit his work without just cause or has been
discharged for just cause in connection with his work
***.
{¶ 12} Pursuant to R.C. 4141.29(D)(2)(a), a claimant is
ineligible for unemployment benefits if she quits a job without
“just cause.”
{¶ 13} The phrase "just cause" is not defined in the statute;
therefore, whether an employee had just cause to leave employment
is a factual question determined on a case-by-case basis. Tzangas,
supra, citing Irvine v. Unemp. Comp. Bd. of Review (1985), 19 Ohio
St.3d 15, 17, 482 N.E.2d 587. The Ohio Supreme Court has, however,
provided some limited guidance by defining "just cause" as "that
which, to an ordinarily intelligent person, is a justifiable reason
for doing or not doing a particular act." Id., at 697, citing
Irvine.
{¶ 14} In the case at bar, the Commission’s Hearing Officer
concluded that “although Claimant was only working five or six
hours a week when she made the decision [to leave The Limited], she
still could have sought full-time work and collect partial
unemployment benefits. Claimant chose not to do this.”4 Hearing
Officer’s Decision, p. 2.
{¶ 15} On this record, it is evident that the Commission
assigned fault to claimant for refusing to work the five to six
hours per week available to her at the Limited. In this appeal, the
Commission stands by that determination and in doing so
characterizes claimant’s decision to leave The Limited as a
voluntary quit without just cause.
4It is not clear what “this” refers to. The record
demonstrates that claimant continued to seek full-time work and
hoped to continue to collect unemployment benefits as a result of
her unemployment with Ohio Farmers. Claimant was not aware her
partial unemployment benefits might cease. Her decision was to
leave The Limited because at that time it was offering her only
five to six hours of work.
-7-
{¶ 16} The Commission, on the other hand, describes claimant’s
decision to quit her employment as analogous to the situation
described in Shaffer-Goggin v. State of Ohio Unemployment
Compensation Review Commission, et al., Richland App. No. 03-CA-2,
2003-Ohio-6907. In Shaffer-Goggin, claimant worked for a floral
shop. When her son became ill, claimant frequently missed work.
Because claimant’s absences did not abate, the employer reduced
claimant’s hours and hired another floral designer. Claimant quit.
Her subsequent application for unemployment benefits was denied.
The Ohio Unemployment Compensation Review Commission determined
that claimant quit because her hours were reduced. It further
determined that “[t]here has been no showing that claimant had a
contractual right to a certain number of hours per week. ***
Claimant had other options besides quitting. She could have worked
the assigned hours while seeking other employment. She could have
worked the hours made available to her, and if she earned less than
her weekly benefit amount, filed a claim for partial unemployment
compensation benefits.” Id., at ¶21.
{¶ 17} Both the trial court and then the appellate court in
Shaffer-Goggin affirmed the commission’s denial of unemployment
benefits. Both courts agreed with the commission that claimant had
quit her employment without just cause.
{¶ 18} In the case at bar, the Commission argues that claimant,
like the claimant in Shaffer-Goggin, quit The Limited “without just
cause as she could have worked the part time hours while searching
-8-
for full time work.” Commission’s Brief at 6. We do not find
Shaffer-Goggin persuasive authority to apply here.
{¶ 19} Whether an employer’s reduction in hours is substantial
enough to provide the employee with just cause to quit her job is a
factual determination. Bainbridge Township v. Stellato, (Mar. 8,
1996), Geauga App. No. 95-G-1936;
{¶ 20} In Shaffer-Goggin, there is no mention of whether
claimant had full-time employment, how much claimant’s hours were
reduced, or how far claimant traveled to work. Moreover, the
claimant never argued that her reduction in hours constituted an
involuntary termination by the employer. This, argument, however,
is precisely what claimant presented in the case at bar. Shaffer-
Goggin is, therefore, factually and legally distinguishable.
{¶ 21} Some Ohio courts have determined that employees have just
cause in leaving employment when their hours/wages have been
substantially reduced. In Bainbridge Township v. Stellato, (Mar.
8, 1996), Geauga App. No. 95-G-1936, the claimant’s hours, and
resultant pay, were decreased by 66 percent. The reduction in
hours was not related to any fault by claimant. The court
concluded that the reduction in claimant’s hours was substantial
and amounted to a constructive discharge and therefore granted
claimant unemployment benefits.
{¶ 22} In the case at bar, claimant claims that her employment
at The Limited created a substantial economic hardship for her.
She argues that when her hours were reduced by more than 66 percent
she was, in effect, involuntarily terminated. Claimant was paid
$7.50 an hour at The Limited. For a work week of five to six
hours, her gross pay was $37.50-$45.00 a week. And she had the
expense of driving thirty minutes one way each time she worked.5
{¶ 23} Further, claimant points to additional reasons for
leaving The Limited beyond the reduction in her hours. Claimant
pointed to the expense of the thirty-minute travel one way, The
Limited’s inability to say when or if she would ever return to her
usual fifteen-hour work week,6 and The Limited’s frequent and
unpredictable decisions to call her off when business was slow.
She explained that these unpredictable calls limited her attempts
to seek full-time work. She said, “Because I was effectively ‘on
call’ I could not schedule other appointments even though I was not
being paid.”
{¶ 24} Applying the case of Stellato to this record, we conclude
that the evidence supports the determination that a reasonable
person would have justifiably quit her job under the same
conditions. Accordingly, the Commission’s determination denying
employment compensation benefits was against the manifest weight of
the evidence. Claimant’s first assignment of error is sustained.
II. THE COMMON PLEAS COURT ERRED IN NOT APPLYING R.C.
4141.29(D)(2)(A)(iii).
{¶ 25} Claimant argues that before determining that she was not
entitled to unemployment benefits, the court should have applied
R.C. 4141.29(D)(2)(A)(iii). The statute describes an exception to
a denial of benefits for an employee who quits formerly concurrent
employment.
{¶ 26} The exception occurs under the following circumstances:
(iii) The individual has left employment to accept a
recall from a prior employer or, except as provided in
division (D)(2)(a)(iv) of this section, to accept other
employment as provided under section 4141.291 [4141.29.1]
of the Revised Code, or left or was separated from
employment that was concurrent employment at the time of
the most recent separation or within six weeks prior to
the most recent separation where the remuneration, hours,
or other conditions of such concurrent employment were
substantially less favorable than the individual's most
recent employment and where such employment, if offered
as new work, would be considered not suitable under the
provisions of divisions (E) and (F) of this section. Any
benefits that would otherwise be chargeable to the
account of the employer from whom an individual has left
employment or was separated from employment that was
concurrent employment under conditions described in
division (D)(2)(a) (iii) of this section, shall instead
be charged to the mutualized account created by division
(B) of section 4141.25 of the Revised Code, except that
any benefits chargeable to the account of a reimbursing
employer under division (D)(2)(a)(iii) of this section
shall be charged to the account of the reimbursing
employer and not to the mutualized account, except as
provided in division (D)(2) of section 4141.24 of the
Revised Code. (Emphasis added.)
{¶ 27} The statute imposes a specific time restriction for
eligibility under this exception. To be eligible for benefits, a
claimant must leave her most recent employment within six weeks
after leaving her former concurrent employment.
{¶ 28} In the case at bar, claimant left Farmers on September 6,
2002. She left The Limited on November 17, 2002. Because the time
between September 6th and November 17th exceeds the six weeks
specified in the statute, claimant does not qualify for benefits
under R.C. 4141.29(D)(2)(A)(iii).
{¶ 29} Since claimant does not meet the threshold qualifications
under the statute, we need not reach the issue of whether the trial
court erred by not determining whether she met the remaining
qualifications under this exception. Claimant’s second assignment
of error is overruled.
{¶ 30} For all the preceding reasons we reverse the judgment of
the trial court and remand this matter to the trial court to order
the Board to determine specifically the amount of claimant’s
unemployment benefits based on her employment at Farmers and
additional benefits based on her employment at The Limited and then
to issue payment.
-12-
Judgment accordingly.
This cause is reversed and remanded.
It is, therefore, ordered that appellant recover of appellee
her costs herein taxed.
It is ordered that a special mandate be sent to said court 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.
FRANK D. CELEBREZZE, JR., J., CONCURS.
ANN DYKE, P.J., CONCURS IN JUDGMENT ONLY.
DIANE KARPINSKI
JUDGE
N.B. This entry is an announcement of the court's decision.
See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision
will be journalized and will become the judgment and order of the
court pursuant to App.R. 22(E) unless a motion for reconsideration
with supporting brief, per App.R. 26(A), is filed within ten (10)
days of the announcement of the court's decision. The time period
for review by the Supreme Court of Ohio shall begin to run upon the
journalization of this court's announcement of decision by the
clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section
2(A)(1).