COURT OF APPEALS OF OHIO, EIGHTH DISTRICT 
COUNTY OF CUYAHOGA 
NO. 86338 

ELLIOTT D. FISHER, : 
Plaintiff-Appellant : 
v. : 
BILL LAKE BUICK, ET AL., : 
Defendant-Appellee : 

DATE OF ANNOUNCEMENT 
OF DECISION: FEBRUARY 2, 2006 

CHARACTER OF PROCEEDING: Civil Appeal from 
Common Pleas Court, 
Case No. CV-536719. 

JUDGMENT: AFFIRMED. 

APPEARANCES: 
For Plaintiff-Appellant: Martin T. Galvin 
Reminger & Reminger Co., LPA 
1400 Midland Building 
101 Prospect Avenue, West 
Cleveland, OH 44113-1093 
For Defendants-Appellees: Mark Fusco 
(Bill Lake Buick) Wargo & Wargo 
30 Park Drive 
P.O. Box 332 
Berea, OH 44017 
(Director, Ohio Department Jim Petro 
of Job and Family Services) Attorney General of Ohio 
Laurel Blum Mazorow 
Patrick MacQueeney 
Assistant Attorneys General 

Health and Human Services Section 
Unemployment Compensation Unit 
State Office Bldg, 11th Floor 
615 W. Superior Avenue 
Cleveland, OH 44113-1899 

CHRISTINE T. McMONAGLE, J.: 

{¶ 1} Appellant, Elliott D. Fisher (“Fisher”), appeals from the 
judgment of the Common Pleas Court that affirmed the finding of the 
Unemployment Compensation Review Commission (the “Commission”) that 
he quit his job without just cause and is therefore not entitled to 
unemployment benefits. We affirm. 

{¶ 2} Fisher filed an application for unemployment compensation 
benefits for the week ending February 14, 2004. Appellee Director, 
Ohio Department of Job and Family Services, denied the claim, 
finding that Fisher quit his employment without just cause and was 
not entitled to benefits. Fisher appealed this determination; the 
Director subsequently reversed the initial determination and found 
that Fisher was separated from employment due to lack of work. The 
Employer appealed the redetermination decision and Appellee 
transferred jurisdiction to the Commission, which assigned the 
matter to a hearing officer. 

{¶ 3} Fisher and William Lake, the owner and former president 
of Bill Lake Buick, testified at the hearing. Fisher was employed 
as a used car manager at Bill Lake Buick from February 5, 2000 to 
January 14, 2004. Lake testified that at the recommendation of a 
consultant, in December 2003, he and his son, Greg Lake, president 
of Bill Lake Buick, began reorganizing the management structure at 
the dealership. At that time, the dealership had a general sales 
manager, who worked part-time, a new car manager and a used car 
manager (Fisher). Because the general sales manager was retiring, 
William and Greg Lake decided to combine his duties with those of 
the new car and used car managers into one full-time position. 

{¶ 4} Lake testified that Fisher was offered the position of 
general sales manager, but declined the offer because “he was 
afraid he couldn’t do it.” Consequently, in early January 2004, 
Bill Lake Buick hired a new general sales manager. According to 
William Lake, Fisher was asked to train the new manager and his pay 
structure did not change during this training period. Lake 
testified further that he had no intention of terminating Fisher’s 
employment, although the dealership had not yet determined what his 
new job or pay under the new general sales manager were going to 
be. According to Lake, “we were trying to figure out how we were 
going to organize from that position down. *** We weren’t sure yet 
because the new guy had just started. And so we didn’t really know 
what was going to happen. *** It was a work in progress.” 

{¶ 5} Around the same time as the new general sales manager was 
hired, the dealership eliminated its policy of allowing its 
managers and sales people to drive “demonstrator cars.” Instead, 
it allowed these employees to lease a new car or purchase certain 
used cars from the dealership at a substantially reduced price. An 
employee was required to wait at least 30 days after the dealership 
took a car in trade and then, if the car had not sold off the lot, 
the employee could negotiate a purchase price for it at $100 or 
$200 over cost. 

{¶ 6} Lake testified that he and Fisher spoke several times 
about Fisher’s purchase of a Mercedes which the dealership had just 
taken in trade and for which it had paid the owner $2650. Lake 
told Fisher that he would have to pay $3500 to buy it. Unknown to 
William Lake, however, Fisher then spoke with Greg Lake, who agreed 
that he could buy the Mercedes for $100 over cost. 

{¶ 7} On January 14, 2004, William Lake was in his office at 
the dealership and learned that Fisher had put through a deal to 
purchase the Mercedes for $100 over cost. Lake asked the title 
clerk at the dealership to stop the deal, which she did. When 
Fisher learned from an employee of the title company that the deal 
had been stopped, he became upset, told the new general sales 
manager that he was quitting and left. Two days later, Bill Lake 
Buick sold the Mercedes to another buyer for $5000. 

{¶ 8} Fisher denied that the dispute over his purchase of the 
Mercedes was related to his termination. He insisted that his job 
had been eliminated, although he admitted that no one had told him 
that January 14th would be his last day of employment. 
Furthermore, he agreed that he could have remained working at Bill 
Lake Buick, although not in his prior position as used car manager. 
He further agreed that as of January 14, 2004, “nobody’s pay plan 
had really changed” because “we were told that we would still be 
paid as long as we had agreed to train the new general sales 
manager.” Finally, he agreed that Bill Lake Buick had offered him 
the position of general sales manager, but admitted that he had 
expressed some reservations to Greg Lake about his ability to 
manage the same sales people who had taught him how to sell cars. 

{¶ 9} Fisher testified that he was “in limbo” after the new 
general sales manager was hired, because no one told him what his 
new job at the dealership was going to be. Upon questioning by 
William Lake, he admitted that he walked away from his job in 
anger: 

{¶ 10} “Q. At the time you quit exactly what your title was was 
in limbo. But at the time you quit, you did not give notice. You 
were not told that the day that you quit was the day you were 
supposed to leave. You got mad, and correct me if I’m wrong, when 
you found out about me stopping the title of this car and you 
walked out? You didn’t give notice to Greg. You didn’t tell me. 
You told Mike and you stormed out the door. And that was the *** 
that was the end of it. *** Is that true or not? 

{¶ 11} “A. Yes, that’s true.” 

{¶ 12} On June 16, 2004, the hearing officer issued a written 
decision modifying the Director’s redetermination. The hearing 
officer concluded that Fisher quit his employment without just 
cause when he “became upset because the owner stopped the sale of a 
Mercedes that had been taken in a trade, that claimant had arranged 
to sell to himself for $100 over cost.” Accordingly, the hearing 
officer determined that Fisher was not entitled to unemployment 
compensation benefits. 


{¶ 13} The Review Commission subsequently disallowed Fisher’s 
request for review. Fisher then filed an appeal with the Common 
Pleas Court, which affirmed the Commission’s decision. Fisher 
timely appealed the trial court’s judgment. 

{¶ 14} For clarity, we consider Fisher’s arguments out of their 
assigned order. In his second assignment of error, Fisher contends 
that the trial court erred in affirming the Commission’s decision 
because the employer offered only hearsay evidence at the hearing. 

{¶ 15} Initially, we disagree with Fisher’s argument that 
William Lake’s testimony at the hearing was only hearsay. Lake 
testified that he was at his office at the dealership on January 
14, 2004, and, upon learning that Fisher had put through a deal to 
sell the Mercedes to himself at $100 over cost, asked the title 
clerk to stop the deal. Thus, Lake had personal knowledge of the 
events which led to Fisher quitting his job and his testimony 
regarding those events was obviously not hearsay. William Lake 
also testified that he and his son Greg had extensive discussions 
regarding the reorganization of the dealership. Thus, as the owner 
of the dealership, William Lake had personal knowledge that 
Fisher’s position in the reorganized dealership had not yet been 
determined and his testimony regarding these issues was also not 
hearsay. 

{¶ 16} Furthermore, even if some of Lake’s testimony were 
hearsay, such testimony is admissible at administrative hearings. 
R.C. 4141.281(C)(2) governs the conduct of hearings in 
administrative appeals and states, “Hearing officers are not bound 
by common law or statutory rules of evidence or by technical or 
formal rules of procedure.” In reviewing this language, found in 
former R.C. 4141.28(J), the Supreme Court of Ohio stated: 

{¶ 17} “This court previously has not analyzed this specific 
segment of R.C. 4141.28(J), however, its meaning is apparent: the 
Board of Review and the referee need not apply stringent rules in 
determining the admissibility of evidence into the record. The 
logical corollary is such evidence placed in the record is not only 
admissible but also must be weighed and considered when making a 
decision. If evidence which is inadmissible in a court of law is 
to be disregarded when and if reviewed, there is no reason to admit 
such evidence at the administrative level or for purposes of 
subdivision (J) of R.C. 4141.28.” Simon v. Lake Geauga Printing 
Co. (1982), 69 Ohio St.2d 41, 43. 

{¶ 18} Thus, as this court has recognized: 
“It is well settled that a referee may use hearsay evidence in 
making unemployment compensation decisions. ‘As a general 
rule, administrative agencies are not bound by the strict 
rules of evidence applied in a court. The hearsay rule is 
relaxed in administrative hearings; however, the discretion to 
consider hearsay evidence cannot be exercised in an arbitrary 
manner.’” Cully v. Administrator (Oct. 13, 1994), Cuyahoga 
App. No. 66187, quoting Haley v. Ohio State Dental Bd. (1982), 
7 Ohio App.3d 1, 6. 

{¶ 19} In Taylor v. Bd. of Review (1984), 20 Ohio App.3d 297, 
this court found that it is unreasonable to give credibility to a 
hearsay statement and deny credibility to the claimant testifying 
in person where the sworn testimony of the claimant is contradicted 
only by hearsay testimony. Fisher argues that we should follow 
Taylor in this case and find his sworn testimony credible while 
disregarding William Lake’s testimony as hearsay. 

{¶ 20} Taylor is easily distinguishable from this case, however. 
Unlike Taylor, not all of William Lake’s testimony was hearsay. 
Furthermore, in an administrative hearing such as this, the factfinder 
is not required to blindly accept sworn testimony over 
otherwise inadmissible evidence. Hansman v. Director, ODJFS, 
Butler App. No. CA2003-09-224, 2004-Ohio-505. Rather, the duty of 
the fact-finder is to weigh and consider the reliability of the 
evidence and the credibility of the witnesses. Id. See, also, 
Simon, supra. 

{¶ 21} The irony of Fisher’s argument is that he asks us to 
disregard William Lake’s testimony as hearsay and find that other 
hearsay evidence in the record (logs of telephone conversations 
between an examiner for the Office of Unemployment Compensation and 
the employer) is more credible. We refuse to do so. We find 
nothing in this record to indicate that the hearing officer 
exercised his discretion to consider hearsay testimony in an 
arbitrary manner and, further, we find no error in the hearing 
officer’s decision to give weight to such evidence. 

{¶ 22} Appellant’s second assignment of error is therefore 
overruled. 

{¶ 23} In his first assignment of error, Fisher contends that 
the trial court erred in affirming the denial of unemployment 
benefits because he did not quit his employment with Bill Lake 
Buick but was laid off because his job had been eliminated. 

{¶ 24} Unlike most administrative appeals where we employ an 
abuse of discretion standard, see Lorain City School Dist. Bd. of 
Educ. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 260- 
261, our standard of review on appeal from a decision of the 
Commission is the same as that of the Common Pleas Court. 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. Ohio Bur. of Emp. Serv., 73 
Ohio St.3d 694, 696, 1995-Ohio-206. In making this determination, 
we must give deference to the Commission in its role as finder of 
fact. Irvine v Unemployment Comp. Bd. of Rev. (1985), 19 Ohio 
St.3d 15, 18. We may not reverse the Commission’s decision simply 
because “reasonable minds might reach different conclusions.” Id. 
On close questions, where the board might reasonably decide either 
way, we have no authority to upset the agency’s decision. Id. 
Instead, our review is limited to determining whether the 
Commission’s decision is unlawful, unreasonable, or totally lacking 
in competent, credible evidence to support it. Id. A judgment 
supported by some competent, credible evidence going to all the 
essential elements of the controversy will not be reversed by a 
reviewing court as being against the weight of the evidence. C.E. 
Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. 


{¶ 25} R.C. 4141.29(D)(2)(a) provides that an individual may not 
obtain unemployment benefits if he “quit his work without just 
cause.” Traditionally, just cause is that which, to an ordinarily 
intelligent person, is a justifiable reason for doing or not doing 
a particular act. Irvine, supra, at 17. The determination of 
whether just cause exists depends on the “unique factual 
considerations” of a particular case and is, therefore, primarily 
an issue for the trier of fact. Id. 

{¶ 26} Fisher argues that the trial court erred in affirming the 
decision of the Review Commission because it contained several 
factual errors. Specifically, Fisher contends that, contrary to 
the decision, he was not still working as the used car manager and 
receiving his salary while the new general sales manager was being 
trained and he was not offered the general sales manager position. 
Fisher stridently contends that, contrary to the Commission’s 
recitation of the facts, the “only evidence introduced at the 
hearing” and the “only evidence in the record” demonstrates that 
his position was terminated prior to January 14, 2004. We 
disagree. 

{¶ 27} Our review of the record indicates that Fisher was, in 
fact, no longer working as the used car manager after the general 
sales manager was hired. However, the record also indicates that 
Fisher admitted that as of January 14, 2004, his pay structure had 
not yet changed. Despite Fisher’s argument to the contrary, the 
record clearly indicates that Fisher’s last check from Bill Lake 
Buick was for “a mere $37" because the dealership deducted from the 
check the monies Fisher owed it for a loan, not because his 
compensation had been “drastically reduced.” The record also 
reflects that, although Fisher was no longer the used car manager, 
the dealership had no intention of terminating his employment and 
Greg Lake had told Fisher that he would still have a job, as yet 
unspecified, at the dealership, although it would likely be at a 
lower pay rate. Finally, the record demonstrates that, although 
Fisher may not have formally interviewed for the position of 
general sales manager, he was offered the job but turned it down. 
During the hearing, Fisher testified, “The job was offered to me. 
I did speak with Greg Lake about it. I had some reservation about 
how effective I would be within a sales staff of people that taught 
me how to sell cars.” 

{¶ 28} In light of this evidence, it is apparent that the 
immediate cause of Fisher’s separation from employment was his 
actions, not those of the dealership. Indeed, Fisher admitted at 
the hearing that no one had told him that January 14, 2004 was his 
last day of employment, but, on that day, when he found out that 
William Lake had stopped the sale of the Mercedes to him, he got 
mad and quit. 

{¶ 29} This case is easily distinguishable from those cited by 
Fisher. In Robb v. Director, Lake App. No. 2002-L-060, 2003-Ohio- 
6972, the employee was found to have quit with just cause when his 
employer told him that he would be fired if he did not resign. 
Likewise, in Daugherty v. Admin. (1984), 21 Ohio App.3d 1, the 
court found it apparent that the employee had just cause to quit 
because, when she announced that she planned to marry a co-worker, 
her employer advised her to quit because two persons married to 
each other could not work at the store. Similarly, in Frato v. 
Ohio Bur. of Employment Serv. (1991), 77 Ohio App.3d 193, the court 
determined that the employee quit with just cause because, when she 
attempted to return to work from maternity leave, her employer 
refused to set a return date and continually made excuses as to why 
she could not return to work. 

{¶ 30} Fisher was not asked to resign. In fact, he was offered 
the position of general sales manager, but turned it down. Even 
after he turned it down, he was told that he would continue to have 
a job at the dealership. As of the day that he quit, Fisher’s pay 
had not changed. The inescapable conclusion is that Fisher quit 
his job without a justifiable reason. 

{¶ 31} Fisher admitted that he quit his job because he was angry 
that William Lake had stopped his purchase of the Mercedes. 
Generally, an employee who quits his job because of a problem with 
working conditions must make reasonable efforts to solve the 
problem before quitting. Roach v. Administrator (July 20, 2000), 
Cuyahoga App. No. 76661, citing DiGiannantoni v. Wedgewater Animal 
Hosp., Inc. (1996), 109 Ohio App.3d 300, 308. The employee must 
attempt to notify the employer of the problem and give the employer 
an opportunity to correct the problem. Id. Fisher offered no 
evidence that he made any attempt to resolve the dispute about the 
Mercedes before he walked off the job in anger. Accordingly, he 
quit without just cause and, therefore, is not entitled to 
unemployment benefits. 

{¶ 32} Appellant’s second assignment of error is overruled. 
Affirmed. 

It is ordered that appellee recover of appellant 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 Common Pleas 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. 

CHRISTINE T. McMONAGLE 
JUDGE 
MARY EILEEN KILBANE, P.J., and 
MICHAEL J. CORRIGAN, J., CONCUR.