COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DAVID J. HORNING
Plaintiff-Appellee
-vs-
DIRECTOR, OHIO DEPARTMENT of
JOB and FAMILY SERVICES, et al.
Defendant-Appellant
JUDGES:
Hon. Sheila G. Farmer, P. J.
Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
Case No. 2004 AP 11 0069
O P I N I O N
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 2004 AA 05 0266
JUDGMENT: Reversed
DATE OF JUDGMENT ENTRY: June 15, 2005
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RICHARD R. RENNER BETSEY NIMS FRIEDMAN
TATE & RENNER SR. ASSISTANT ATTORNEY GENERAL
505 North Wooster Avenue State Office Building 11th Floor
Post Office Box 8 615 West Superior Avenue
Dover, Ohio 44622 Cleveland, Ohio 44113-1899
Wise, J.
{¶1} Appellant Director, Ohio Department of Job & Family Services, et al.
(“ODJFS”) appeals the decision of the Tuscarawas County Court of Common Pleas that
reversed the decision of the Unemployment Compensation Review Commission and
concluded Appellee Horning is eligible for unemployment benefits. The following facts
give rise to this appeal.
{¶2} From July 1, 1999 to September 26, 2003, appellee worked at R Tape
Corporation. Upon his hiring, appellee worked as a machine operator and received an
hourly wage of $15.00 per hour. In addition, appellee received overtime pay each time
he worked more than forty hours per week. In September 2000, R Tape Corporation
promoted appellee and his compensation structure changed to that of a salaried
employee. Under this arrangement, appellee did not receive overtime pay if he worked
more than forty hours per week.
{¶3} During the summer of 2003, appellee became frustrated by the amount of
overtime he was required to work and thereafter, notified R Tape Corporation of his
intent to quit his employment. Appellee informed R Tape Corporation’s plant manager
that he would continue his employment, with the company, if he could receive overtime
pay. R Tape Corporation denied appellee’s request and appellee terminated his
employment on September 26, 2003.
{¶4} Appellee filed a claim for unemployment compensation. ODJFS denied
appellee’s claim, on October 16, 2003, on the basis that appellee quit his employment,
without just cause. On appeal of the initial determination, ODJFS affirmed its decision
and denied benefits. Appellee filed an appeal of the re-determination decision.
Tuscarawas County, Case No. 2004 AP 11 0069 3
Following a hearing, the Review Commission affirmed ODJFS’s re-determination
decision. The Review Commission denied further review.
{¶5} Thereafter, appellee appealed to the Tuscarawas County Court of
Common Pleas. On October 13, 2004, the trial court reversed the decision of the
Review Commission and determined appellee quit his job for just cause and therefore,
was eligible for unemployment benefits. ODJFS timely filed a notice of appeal and sets
forth the following assignment of error for our consideration:
{¶6} “I. THE COMMON PLEAS COURT ERRED IN REVERSING THE
DECISION OF THE UNEMPLOYMENT COMPENSATION REVIEW COMMISSION AS
COMPETENT, CREDIBLE EVIDENCE DEMONSTRATES THAT CLAIMANT QUIT HIS
EMPLOYMENT WITHOUT JUST CAUSE AND IS NOT ELIGIBLE FOR
UNEMPLOYMENT COMPENSATION.”
I
{¶7} In its sole assignment of error, ODJFS maintains the trial court erred when
it reversed the Review Commission’s decision and concluded appellee quit his job for
just cause. We agree.
{¶8} An appeal of a decision rendered by the Review Commission is governed
by R.C. 4141.282(H), which provides, in pertinent part:
{¶9} “* * * If the court finds that the decision is unlawful, unreasonable, or
against the manifest weight of the evidence, it shall reverse, vacate, or modify the
decision, or remand the matter to the commission. Otherwise, such court shall affirm
the decision of the commission.”
{¶10} In Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Serv., 73 Ohio St.3d
694, 1995-Ohio-206, the Ohio Supreme Court set forth the standard of review for
appellate courts with regard to unemployment compensation administrative appeals.
According to this decision, an appellate court may reverse a board’s decision only if it is
unlawful, unreasonable or against the manifest weight of the evidence. Id. at paragraph
one of the syllabus.
{¶11} In order to qualify for unemployment compensation benefits, a claimant
must satisfy the criteria set forth in R.C. 4141.29(D)(2)(a). That section provides:
“* * *
{¶12} “(D) * * * [N]o individual may * * * be paid benefits * * *:
“* * *
{¶13} “(2) For the duration of the individual’s unemployment if the director finds
that:
{¶14} “(a) The individual quit his work without just cause or has been discharged
for just cause in connection with the individual’s work, * * *.”
{¶15} The Ohio Supreme Court has defined “just cause” as that which, to an
ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act.
Irvine v. Unemp. Comp. Bd. of Review (1985), 19 Oho St.3d 15, 17; Tzangas at 697. In
the case sub judice, the Review Commission determined appellee did not terminate his
employment for just cause. Specifically, the hearing officer held:
{¶16} “The weight of the evidence shows that claimant quit his employment with
R Tape Corp. when he became tired of the long hours required of him and the fact that
he did not receive overtime pay as compensation. However, claimant worked under
these conditions for three years before deciding to quit his employment, and did not
bring a Fair Labor Standards complaint to the U.S. Department of Labor. The evidence
is clear that continuing work was available for claimant, if he had chosen to continue.
The unemployment compensation laws do not contemplate the payment of
unemployment benefits to an individual who becomes voluntarily unemployed, unless all
other available options have been pursued. In light of the evidence presented in this
case, the Hearing Officer finds that claimant quit his employment with R Tape Corp.
without just cause.” Hearing Officer Decision, Mar. 5, 2004, at 3.
{¶17} On appeal to the trial court, the court reversed the decision of the hearing
officer. In doing so, the trial court concluded the hearing officer based her decision
upon the fact that appellee never filed a complaint under the Fair Labor Standards Act
during his employment and therefore, did not quit for just cause. Based upon this
conclusion, the trial court held as follows:
{¶18} “FINDS that the undersigned is persuaded by Appellants (sic) legal
argument that Appellant had no obligation to file a formal or informal Complaint under
the Fair Labor Standards Act during his employment. Additionally, Appellees (sic)
Brief cites no legal authority requiring the filing of such a Complaint. * * *” (Emphasis
sic.) Judgment Entry, Oct. 13, 2004, at 3.
{¶19} Thus, the trial court reversed the hearing officer’s decision because it
found that the hearing officer wrongfully concluded that appellee was required to file a
complaint under the Fair Labor Standards Act (“FLSA”) in order to be eligible for
unemployment benefits. We disagree with the trial court’s conclusion based upon a
close reading of the hearing officer’s decision. The hearing officer did not state, in her
decision, that appellee waived his rights by not filing a complaint under the FLSA.
Instead, the hearing officer cited appellee’s failure to file a complaint, under the FLSA,
as evidence of his acquiescence of his job and salary and his failure to pursue all
options prior to quitting his employment with R Tape Corporation.
{¶20} Further, we conclude the Review Commission’s decision denying appellee
unemployment compensation benefits was not unlawful, unreasonable or against the
manifest weight of the evidence. The record supports the conclusion that when
appellee accepted the salaried position, he was no longer entitled to overtime pay. In
response, appellee maintains that in the salaried position, he had nine daily duties, one
of which was to operate a machine, if needed. Appellee claims the operation of a
machine remained a significant part of his duties and therefore, his employment status
remained that of a manual laborer rather than a salaried employee.
{¶21} Prior to August 23, 2004,1 29 C.F.R., § 541.1, § 541.2 and § 541.3
provided that in order to be exempt from overtime pay requirements, an employee must
be paid on a salaried rather than an hourly basis, and his or her employment must be of
a bona fide administrative, professional or executive nature. In determining whether an
employee qualifies for this exemption, one of two tests, contained in the above
regulations, had to be met. Counts v. S. Carolina Elec. & Gas Co. (2003), 317 F.3d
453, 455.
{¶22} In the case sub judice, the “short test” applies because appellee earned a
salary of more than $250.00 per week. Under this test, an employer is exempt from the
overtime provisions so long as (1) the employee’s primary duty consists of the
performance of office or non-manual work directly related to management or general
business operations; and (2) the employee customarily and regularly exercises
discretion and independent judgment. See C.F.R. § 541.214. Id.
{¶23} Appellee’s administrative duties included the following: schedule the
machines per orders to be shipped; printing labels of machine slitting work order;
update schedule; setting ship date; making sure everything is being shipped for that
date; making sure of how the schedule is running per original schedule; training
program; and inventory control.
{¶24} Appellee’s duties also included running a machine, when needed.
However, there is no evidence, in the record, as to the amount of time appellee spent
running a machine as a salaried employee. Thus, it would appear from the record that
appellee’s primary duties included office or non-manual work and therefore, appellee
was a salaried employee. As a salaried employee, appellee was not entitled to
overtime pay2 and the R Tape Corporation’s refusal to pay such does not constitute just
cause for appellee’s voluntary termination of his employment. A quit because of
dissatisfaction with one’s duties or wages is a quit without just cause. Fabian v. Admr.,
Ohio Bur. Employ. Serv. (Nov. 24, 1987), Jefferson App. No. 875-5, at 2.
{¶25} Appellee cites the case of Scarnati v. Ohio Unemp. Comp. Bd. of Rev.
(1983), 86 Ohio App.3d 589, in support of his argument that where an employer
requires an employee to work truly excessive hours, the employee has just cause to quit
even if the compensation had been lawful. We find the Scarnati case distinguishable
from the case sub judice.
{¶26} In Scarnati, a prison psychiatrist quit his job because he believed he was
being forced to violate the ethics of his profession by having more patients than he
could assist. Id. at 590. The Tenth District Court of Appeals reversed the trial court’s
decision denying Dr. Scarnati’s right to collect unemployment benefits on the basis that
he quit for just cause because “* * * the level of psychiatric services provided to inmates
in the prisons in Ohio has steadily deteriorated over the last ten to fifteen years. As the
number of inmates has increased, the number of psychiatrists available to provide them
necessary psychiatric services has not kept pace.” Id. at 591. Thus, in Scarnati, the
employee did not complain of long hours or inadequate pay, but instead terminated his
employment because he could not provide adequate care for the inmates.
{¶27} Accordingly, we conclude the trial court’s decision reversing the decision
of the Review Commission is not supported by relevant, competent and credible
evidence.
{¶28} ODJFS’s First Assignment of Error is sustained.
{¶29} For the foregoing reasons, the judgment of the Court of Common Pleas,
Tuscarawas County, Ohio, is hereby reversed.
By: Wise, J.
Farmer, P. J., and
Edwards, J., concur.
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JUDGES
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