STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
JOSEPH MERANTE
Appellant
v.
DIRECTOR OF JOB & FAMILY
SERVICES, et al.
Appellees
C. A. No. 05CA008677
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
CASE No. 04CV140051
DECISION AND JOURNAL ENTRY
Dated: November 23, 2005
This cause was heard upon the record in the trial court. Each error assigned
has been reviewed and the following disposition is made:
REECE, Judge.
{¶1} Appellant Joseph Merante appeals from the Lorain County Court of
Common Pleas, which affirmed a decision by the Unemployment Compensation
Review Commission to deny him unemployment compensation. We affirm.
I.
{¶2} Mr. Merante is married and has two children, ages six and sixteen.
Mr. Merante’s wife, Sharon, suffers from migraine headaches. During her youth,
they occurred on a monthly basis and were associated with her menses. In 1993,
she was severely injured in an automobile accident, and approximately a year later
began to suffer increasingly severe headaches, often triggered by weather changes
or stress. These headaches ranged from mild (two to three per week) to severe,
which left her bed-bound and nauseous (once or twice per month), to debilitating,
which required visits to the emergency room (once or twice per year). By all
accounts, these headaches were responsive to rest and medication.
{¶3} Mr. Merante had been employed by the Lorain County Department
of Job & Family Services (JFS)1 since November 1984. At some point, Mr.
Merante began to stay at home to care for his wife during her migraine headaches
rather than go to work. Accordingly, these absences were as unpredictable,
sporadic and intermittent as the onset of the headaches. However, these absences
were also recognized as authorized leave, to the extent that they fell within the
Family and Medical Leave Act (FMLA) of 1993, Pub. L. No. 103-3, 107 Stat. 6
(codified as 29 U.S.C. Chapter 28, Sec. 2601, et seq.). In 2001,2 Mr. Merante used
the maximum 480 hours of leave designated by FMLA. This was certified by a
physician and apparently uncontested by JFS. Again in 2002, Mr. Merante used
the full 480 hours, with certification from a physician and endorsement from JFS.
{¶4} However, questions arose in 2003 when Mrs. Merante’s physician,
Dr. Mark Bej, completed the FMLA recertification form but stated that leave was
not necessary to ensure Mrs. Merante’s care. Dr. Bej later amended the form to
assert that leave would be required, and noted: “Migraines have worsened. I don’t
know why. This is not unusual; migraines.” After some dispute, Mr. Merante was
allowed to replace the certification from Dr. Bej with a certification by another
physician, Dr. Darshan Mahajan, who wrote:
“[Sharon Merante] suffers from migraine headaches which occur
sporadically, at times as frequently as twice a month. The headaches
may last two days. These can be quite debilitating. Sharon requires
help from her husband, Joe Merante, when these attacks occur,
depending on the severity. Specifically, she may need help walking
to the bathroom, getting cleaned up, inserting rectal suppositories for
the nausea and vomiting, as well as supervising the children.”
However, Mr. Merante contested Dr. Mahajan’s opinion that his aid was needed
only one or two days per month, and Mr. Merante was allowed to obtain a
certification from yet another physician: a Dr. Steven Samples of the Cleveland
Clinic Headache Center, who had treated Mrs. Merante in the past. Contrary to
Mr. Merante’s expectation, Dr. Samples’ opinion was that Mr. Merante was not
needed to assist his wife during her migraine headaches. Finding this opinion to
be in conflict with that of either Dr. Bej or Dr. Mahajan, the parties (JFS and Mr.
Merante) mutually agreed that Dr. Tarvez Tucker would render a deciding
opinion, pursuant to FMLA’s provisions on conflicting opinions.
{¶5} Dr. Tucker issued a three-page letter, in which he summarized Mrs.
Merante’s medical history, offered a diagnosis of her present condition, and
forecasted her anticipatable needs and concerns. The letter concluded:
“However, Mr. Merante has used 480 hours of FMLA time per year.
This amount of time simply does not correlate with the one or two
severe headaches per month that [Mrs.] Merante reports to me as her
current frequency. I certainly support Mr. Merante’s wish to be with
his wife on these occasions. He will need to drive her to the ER
once or twice a year. She should not drive with these profound
migraines.
“Most adults are capable [of] taking their own oral or rectal
suppositories when migraine strikes. She can simply keep them by
her bedside when migraine strikes suddenly. She does not have
associated weakness of her limbs or syncope with her headache that
would preclude her taking care of herself of taking medications,
including rectal ones.
“I understand that Mr. Merante would wish to be by his wife’s side
for psychological support. She does also suffer from depression. I
believe he could offer his support effectively when he returned from
work, or in the morning before leaving. Migraine is a longstanding
disorder, as is depression, but in my opinion it does not require 480
hours of FMLA care. I would suggest the care needed for [Mrs.]
Merante would approximate more reasonably about 100 to 120 hours
per year.”
{¶6} By September 26, 2003, Mr. Merante had used 120 hours of FMLA
leave for the stated purpose of caring for his wife. Thereafter, he continued to
miss work and continued to assert that it was to care for his wife. Specifically, in
a November 10, 2003 letter to JFS, Mr. Merante explained that he had taken
additional FMLA leave because his wife “continues to have migraine headaches.”
Because Mr. Merante had exhausted the 120 hours that Dr. Tucker had deemed
necessary, JFS disapproved this leave and implemented its progressive discipline
policy for unexcused absences. Ultimately, Mr. Merante was terminated.
{¶7} Mr. Merante filed a lawsuit in federal court, alleging that JFS had
interfered with his rights under FMLA and that his termination was in retaliation
for taking FMLA leave. That lawsuit is separate and distinct from the present
appeal, which is limited to review of Mr. Merante’s claim for unemployment
compensation.
{¶8} Mr. Merante filed a claim for unemployment compensation with
JFS, but was denied upon a finding that he had been discharged for just cause.
Mr. Merante appealed to the director and the denial was affirmed. Mr. Merante
further appealed to the Unemployment Compensation Review Commission. A
hearing officer heard the appeal and rendered a decision, dated August 20, 2004.
The hearing officer affirmed the prior denial, finding:
“The Hearing Officer concludes that [Mr. Merante’s November 10,
2003] letter did not need to be addressed by the employer as an
initial request for leave because the medical condition that [Mr.
Merante] stated existed with his wife that required his absence was
the same condition for which a certification had been obtained
according to the procedures outlined in the [FMLA] regulations and
leave time up to [one] hundred twenty hours had been approved and
used. [Mr. Merante] was not presenting a situation where there was
a worsening [of an] existing condition or development of a new
condition. The fact that [Mr. Merante] used one hundred and twenty
hours of leave time available early in the one year benefit period is
not sufficient medical evidence that his wife’s condition had
worsen[ed]. Dr. Bej’s original certification for the disputed
certification period mentioned that the migraines [of Mr. Merante’s]
wife had worsened but that is not unusual and he did not find the
worsening condition needed to be addressed by [Mr. Merante’s]
absence from work other than to help with transportation.”
(Emphasis added.)
From this, the hearing officer concluded that JFS properly disapproved those
absences in excess of 120 hours and found that sufficient to constitute just cause in
connection with Mr. Merante’s termination. Therefore, the hearing officer
concluded that Mr. Merante was not entitled to unemployment compensation.
{¶9} Mr. Merante appealed to the Lorain County Court of Common Pleas,
which affirmed the decision, finding it to be lawful, reasonable and supported by
the evidence. Thereafter, Mr. Merante timely appealed to this Court, asserting a
single assignment of error for our review.
II.
Assignment of Error
“THE TRIAL COURT ERRED IN UPHOLDING THE AUGUST
20, 2004 DECISION OF [THE] HEARING OFFICER [] DENYING
MERANTE’S CLAIM FOR UNEMPLOYMENT BENEFITS.”
{¶10} Mr. Merante alleges that the trial court erred in its reading and
application of FMLA, and because JFS had violated FMLA (at least by his reading
and application of it), the trial court further erred in finding that he was terminated
for just cause. Thus, arguing that his termination was not for just cause, Mr.
Merante reasons that he was entitled to unemployment compensation and the trial
court’s denial of unemployment compensation is reversible error. We disagree.
{¶11} When a common pleas court reviews a decision by the
Unemployment Compensation Review Commission, it must affirm unless it
concludes that the decision was “unlawful, unreasonable, or against the manifest
weight of the evidence.” R.C. 4141.282(H). When an appellate court reviews the
common pleas court’s review, it applies the same standard. Tzangas, Plakas &
Mannos v. Ohio Bur. of Emp. Serv. (1995), 73 Ohio St.3d 694, 696-97. Therefore,
our focus is on the Commission’s decision, rather than the common pleas court’s
review. Tenny v. Oberlin College (Dec. 27, 2000), 9th Dist. No. 00CA007661, at
*1. This Court must determine whether the Commission’s decision is supported
by evidence in the record, but we may not make factual findings or determine the
credibility of witnesses. Tzangas, 73 Ohio St.3d at 696. See, also, Barilla v. Dept.
of Job and Family Servs., 9th Dist. No. 02CA008012, 2002-Ohio-5425, at ¶6.
{¶12} The Commission concluded that Mr. Merante was terminated for
just cause, and therefore he was not entitled to unemployment benefits. See R.C.
4141.29(D)(2)(a) (“[N]o individual may * * * be paid benefits * * * if the director
finds that: [t]he individual * * * has been discharged for just cause in connection
with the individual’s work * * *[.]”). Just cause was determined to arise from Mr.
Merante’s unjustified absence from work. See Bennett v. Ohio Dept. of Job &
Family Servs., 7th Dist. No. 03-MA-222, 2005-Ohio-3313, at ¶28 (holding that
absenteeism may constitute just cause for termination of employment). Mr.
Merante’s absence was deemed unjustified based on a finding that, although he
was entitled to certain amount of leave under FMLA, he had exceeded the amount
established via the FMLA process. Mr. Merante disputes this finding by claiming
that his wife’s condition had changed,3 which necessarily entitled him to additional
FMLA leave time. At issue is who has the burden of proof on an employee’s
claim of changed conditions, after the initial FMLA certification determination has
been resolved pursuant to 29 U.S.C. 2613(d). We find that the employee bears
such a burden.
{¶13} As explained above, Mr. Merante’s wife suffers from serious
migraine headaches and, at least as early as May 2000, Mr. Merante had begun
taking leave under the FMLA in order to care for her. See 29 U.S.C.
2612(a)(1)(C) (“[A]n eligible employee shall be entitled to a total of 12
workweeks [480 hours] of leave during any 12-month period * * * [i]n order to
care for the spouse * * * of the employee, if such spouse * * * has a serious health
condition.”). Mr. Merante had supported his prior requests for this FMLA leave
by submitting a medical certification pursuant to 29 U.S.C. 2613(a), and his
employer, JFS, had granted the request. However, by May 2003, JFS had become
doubtful of the validity of this leave due to conflicting medical opinions. See 29
U.S.C. 2613(c). In accordance with the provisions set forth in FMLA, a jointlyapproved
physician (“third health care provider”) resolved the conflict of opinions
and rendered the final decision as to eligibility. See 29 U.S.C. 2613(d)(2) (“The
opinion of the third health care provider concerning the information certified
under subsection (b) of this section shall be considered to be final and shall be
binding on the employer and the employee.”). Thus, both Mr. Merante and JFS
were bound by the third physician’s decision: Mr. Merante was entitled to 120
hours leave time, which could be used intermittently over the course of a year
(May 2002 to May 2003) in order to care for his wife. But, within five months
time, Mr. Merante had used the full 120 hours and immediately took additional
leave, asserting that he had a right to it under FMLA. JFS terminated Mr. Merante
for unauthorized absences.
{¶14} On appeal, Mr. Merante argues: (1) that additional leave was
necessary due to a change in circumstances (i.e., a worsening condition of his
wife’s migraines); (2) that JFS was thus forbidden from terminating him without
further inquiry or request for certification, as prescribed by FMLA; (3) that JFS’s
failure to abide by the provision of FMLA was a violation of a federal statutory
right; and therefore (4) this violation necessarily thwarts a finding of just cause, as
a matter of law. See, generally, Jones v. Ohio Bur. of Emp. Servs., 7th Dist. No.
99 C.A. 224, 2000-Ohio-224. We find this argument flawed.
{¶15} Regarding Mr. Merante’s claim of changed conditions, we find this
unsupported by the record. Furthermore, we find this to be a factual determination
that was properly decided by the Commission, and which we are not at liberty to
revisit on appeal. Tzangas, 73 Ohio St.3d at 696. The Commission conducted a
hearing, evaluated the credibility of the evidence, and concluded that Mr. Merante
“was not presenting a situation where there was a worsening [of an] existing
condition or development of a new condition.” The Commission based its
decision on the plain language of Mr. Merante’s November 10, 2003 letter to JFS,
the medical certifications, and the circumstances surrounding Mr. Merante’s
absences. We do not find this decision to be “unlawful, unreasonable, or against
the manifest weight of the evidence.” Tzangas, 73 Ohio St.3d at 696-97.
{¶16} In arguing against this finding, Mr. Merante points us to the separate
lawsuit proceeding in federal district court and an order by Hon. Judge Solomon
Oliver that issued from that lawsuit, which speculates:
“[O]ne could reasonably conclude based on these [Oct. 30, 2003 and
Nov. 10, 2003] letters that [Mr. Merante] alleged ‘changed
circumstances.’ *** [It is] therefore possible that by alleging
‘constant’ migraines, [Mr. Merante] was alleging a change in Mrs.
Merante’s condition. The court finds that [Mr. Merante’s]
Complaint pled a change in circumstances sufficient to avoid
judgment on the pleadings.” (Emphasis added.) Merante v. Lorain
Cty. Commrs. (N.D.Ohio, Dec. 1, 2004), Judgment Entry, Case No.
1:04 CV 628.
Notwithstanding the equivocal nature of these statements, the very purpose of the
analysis (to deny judgment on the pleadings) would deter us from relying on this
as a factual finding.4 Mr. Merante concedes that we are not bound by this order,
and we will rely on our own review of the record before us. However, even under
Mr. Merante’s reasoning, once we find that he failed to assert a change in
condition, we may conclude that JFS did not violate FMLA, and since Mr.
Merante claims no other basis to refute a finding that he was terminated for just
cause, we must agree with the Commission that he was terminated for just cause.
Accordingly, his claim for unemployment compensation was properly denied.
{¶17} Regarding Mr. Merante’s argument that JFS was forbidden from
terminating him without further inquiry or another request for certification, we
disagree with this proposition, as it would effectively render meaningless FMLA’s
physician certification/conflict resolution scheme. See 29 U.S.C. 2613(b)-(d).
Mr. Merante argues that even though there had been a third physician’s final and
binding resolution, pursuant to 29 U.S.C. 2613(d), he was not bound by it. Rather,
he insists that he needed merely to notify JFS of his desire for more FMLA leave,
and thereafter JFS was bound by the FMLA procedure for an original notice - that
is, JFS had to inquire further and request from him the prescribed medical
certification. See Brenneman v. MedCentral Health Sys. (C.A.6, 2004), 366 F.3d
412, 422 (“Once an employer receives sufficient notice that the eligible employee
is requesting leave for a FMLA-qualifying reason, the employer bears the burden
to gather any additional information necessary for the leave to fall within the
FMLA.”). See, also, 29 C.F.R. 825.302(c); 825.305(a).
{¶18} To the contrary, we conclude that the third physician’s opinion is
“binding on the employer and the employee,” in accordance with the plain
language of the statute. 29 U.S.C. 2613(d)(2). An employer may rely on this
opinion as final, despite an employee’s subsequent notices or requests for
additional leave:
“Where an employer properly requests a physician’s certification
under the FMLA and that certification indicates the employee is not
entitled to FMLA leave, the employer does not violate the FMLA by
relying upon that certification in the absence of some overriding
medical evidence. And that medical evidence should come from the
employee in time to save his job, not during a subsequent law suit.”
Stoops v. One Call Communications, Inc. (C.A.7, 1998), 141 F.3d
309, 314.
JFS’s duty of inquiry was satisfied by the first round of certifications and Dr.
Tucker’s final resolution of the conflicting opinions. At that point, JFS was not
obligated to inquire further or request additional certification; JFS properly relied
on Dr. Tucker’s final certification. The burden was on Mr. Merante to produce
“overriding medical evidence” of an error by Dr. Tucker or some changed
condition. Mr. Merante failed this burden. In fact, he did not even attempt it.
{¶19} Mr. Merante cites two cases for the proposition that an employer’s
sole recourse is to pursue further inquiry or seek recertification from the
employee, and that an employer has no recourse to terminate the employee. See
Cavin v. Honda of Am. Mfg., Inc. (C.A.6, 2004), 346 F.3d 713; Peter v. Lincoln
Tech. Inst. (E.D. Pa., 2002), 255 F. Supp.2d 417. However, these cases are of a
different character than the present case. Foremost, these cases both involved
original notice situations, in which there had been no final and binding physician
certification. Cavin, 346 F.3d at 726; Peter, 255 F. Supp.2d at 444. Furthermore,
these were both appeals from summary judgment, in which the courts’
perspectives were attuned to finding a material question of fact, with inferences
granted in favor of the non-moving party. See Fed.R.Civ.P. 56(C). Therefore, we
find these cases unpersuasive in regard to the circumstances of the present case.
While it is reasonable to forbid the employer from terminating the employee
without seeking any certification, it is unreasonable to forbid that same employer
from terminating an employee once certification has been sought, conflicting
positions have been resolved, and FMLA leave has been expressly disallowed.
{¶20} Mr. Merante relied on Dr. Tucker’s certification in taking 120 hours
of leave without consequence, and he must be equally bound to it. We find that
Mr. Merante’s legal claim is without merit, JFS did not violate FMLA, Mr.
Merante was terminated for just cause, and therefore, Mr. Merante is not entitled
to unemployment compensation. Therefore, his assignment of error is overruled.
III.
{¶21} Mr. Merante’s sole assignment of error is overruled. The decision of
the Lorain County Court of Common Pleas is affirmed.
Judgment affirmed.