COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
COUNTY OF CUYAHOGA
NO. 86296
ANNETTE L. MORAD
Plaintiff-appellant
vs.
DIRECTOR, O.D.J.F.S., ET AL.
Defendant-appellee
JOURNAL ENTRY
AND
OPINION
DATE OF ANNOUNCEMENT
OF DECISION:
MARCH 23, 2006
CHARACTER OF PROCEEDING:
Civil appeal from Common Pleas
Court, Case No. CV-481073
JUDGMENT:
Reversed and remanded.
DATE OF JOURNALIZATION:
KARPINSKI, J.:
{¶ 1} Annette L. Morad appeals from the judgment of the common pleas
court affirming the decision of the Ohio Unemployment Compensation
Review Commission (the“Commission”) to deny her unemployment benefits.
This case came to the common pleas court as an administrative appeal
from the Commission pursuant to R.C. 4141.282.1 For the reasons set
forth below, we reverse the judgment of the lower court.
{¶ 2} In August 2001, claimant was hired as a full-time
bookkeeper/leasing agent by West Terrace Management, Inc. (“West
Terrace”). West Terrace is a property management company that manages
several apartment complexes in the Cleveland, Ohio area. Peter Parras,
one of the owners of the company, hired claimant.
{¶ 3} When hired, claimant was put on probationary status for ninety
days. During that period, she received $9.00 per hour. Once the
probationary period expired, claimant expected to receive $500 per week
in wages and a health benefit package.
{¶ 4} Claimant was trained to complete tenant eviction notices.
In September and October, claimant was told to backdate the notices.
Claimant believed the practice of backdating was wrong, if not
illegal.
{¶ 5} Once her probationary period ended, claimant confronted
Parras about backdating the eviction notices. Parras became angry and
told claimant to leave the premises. Claimant left, believing she had
been fired. That evening, claimant received a telephone call from her
supervisor, Jim Gruzosky, who asked claimant whether she would return
to work or not. Before responding, Claimant asked whether she would
still be required to backdate the eviction notices, to which Gruzosky
replied that she would do as told or quit. Claimant quit.
{¶ 6} Claimant applied for and was denied unemployment benefits by
the Ohio Department of Jobs and Family Services (“Department”). The
Department determined that claimant voluntarily quit her employment at
West Terrace without just cause. Claimant’s appeal of the
Department’s decision was eventually brought to the Commission for a
hearing.
{¶ 7} The Commission affirmed the Department’s decision, whereupon
claimant sought but was denied review of that decision. Claimant then
appealed to the Cuyahoga Court of Common Pleas, which affirmed the
Commission’s decision that she quit without just cause and thus was
not eligible for unemployment benefits. Claimant now appeals and
presents two assignments of error:
I. THE COURT OF COMMON PLEAS ERRED IN AFFIRMING THE BOARD
OF REVIEW’S DETERMINATION THAT MS. MORAD QUIT HER JOB
WITHOUT JUST CAUSE WHEN THAT DETERMINATION WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND WAS UNREASONABLE.
{¶ 8} Claimant argues that when she left her employment at West
Terrace she had just cause to do so and is, therefore, entitled to
unemployment benefits. She argues that the manifest weight of the
evidence presented during the hearing before the Commission supports
her entitlement to those benefits. We agree.
{¶ 9} 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. Administrator, Ohio
Bureau of Employment Servs., 73 Ohio St.3d 694, 697, 1995-Ohio-206,
653 N.E.2d 1207.
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, 19 Ohio B. 12, 482 N.E.2d 587. 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, 376 N.E.2d 578.
Fisher v. Bill Lake Buick, Cuyahoga App. No. 86338, 2006-Ohio-457,
¶24.
{¶ 10} 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
***.
Pursuant to R.C. 4141.29(D)(2)(a), a claimant is ineligible for
unemployment benefits if she quits a job without “just cause.”
{¶ 11} 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.
{¶ 12} In the case at bar, the Commission’s Hearing Officer
conducted a hearing at which only claimant and Parras appeared and
gave evidence. At the end of that hearing, in a written opinion, the
Hearing Officer concluded that claimant quit without just cause. We
disagree.
{¶ 13} During the hearing, claimant testified that in August,
during her probationary period, she was shown how to complete the
company’s tenant eviction notices. In September, claimant was told to
complete several notices on her own. As instructed during her
training, claimant put the current date on the notices and then gave
them to Parras.
{¶ 14} Returning the notices to claimant, Parras stated that she
had put the wrong date on them and instructed her to backdate the
notices to an earlier date. He told her to start over and shred the
notices she had already completed. She complied, but at the hearing
she testified that because she had previously been a tenant, she “knew
it was an incorrect procedure.” She was not sure, however, whether it
was illegal or not. Hearing Tr. at 12.
{¶ 15} In mid-October, when claimant was told to complete a second
set of notices on her own, she questioned Gruzosky about the practice
of backdating them. Gruzosky told her to do as she was told. She did
not mention the subject again until approximately two weeks later when
she had her probationary review.
{¶ 16} The review was conducted by Parras. He told claimant that
her job performance was satisfactory and that she would receive an
hourly raise of $.50. When asked whether she had any comments,
claimant expressed her concern about backdating eviction notices. She
told him that backdating the notices was improper. She also told him
that she did not think $.50 per hour was what they had agreed on and
that it was not a substantial raise at all. Claimant described the
rest of the review:
He asked me if I had any problems on the job, I said, yes,
I did. We discussed the three day notices and the problem
I felt we were having with it. He told me that that was
none of my business. That he makes the decisions around
here. And he dismissed that.
And he started to tell me that he had some other work
and he handed me some more work and told me to go do it.
By this time it was ten to 5:00. I worked until 5:30. And
he left the office at 5:00 o’ clock. And Linda and I both
stayed and worked until 5:30. And I finished the work he
assigned me as I was leaving the office and I left. I was
really upset. He had spoken to me terribly during that
meeting. He told me what did I need to be paid that kind
of money for and we were discussing it.
This was the first time he had ever discussed on that
level with me, what did I need to be paid like that for.
He told me, what’s the matter with you, how come you don’t
have a husband or boyfriend who can take care of you, why
do you need that big house anyway, you don’t need that
house. I’ve been in my house for three years, sir, I don’t
need an employer to tell me what I need. He went on to
attack me in several more personal ways. I was upset by
the way he was talking to me. I was upset by the fact that
he did not pay me as we pre-agreed when I began. We had
several meetings before I was hired, two meetings
personally, one on the phone, all of which pay was
discussed by me. He said, what do you expect, I told him
what I expected. He never said --
Q: What did you tell her ... What did you tell him you were
expecting?
A: I told him for the job that he wanted, I thought that
$500 a week would be fair. He told me that you don’t get
two weeks vacation. I said, well, $500 a week I thought was
fair for the job he was asking me to do. It was a very
detailed and a very large task.
Q: And so he settled on what per week?
A: He told me that for the first 90 days, I was to be paid
$9 an hour.
Q: And what does that work out to, do you know?
A: It’s not even 18 ... a little over 18 thousand a year
which is 2,000 plus less than I was receiving at my last
job. I agreed to that because the potential was there for a
good job. He told me that at the end of the 90 days if
everything checked out, if my work was up to par, if I
dressed like he told me to dress, if everything was okay,
you know, my work performance, he would give me a raise and
benefits, he would take care of me. He never in any way
told me that what I was saying to him about pay and
benefits was not in line with what he wanted to pay me. And
never in any way until that 90 day notice did he say to me
that what I had been saying to him from the first phone
conversation to the interview to hire, that was the first
time at 90 days he was saying that that was not what he
planned to do with me.
Tr. 18-20.
{¶ 17} At the end of the review, Parras told claimant that if she
did not like the proposed compensation, she could obtain employment
elsewhere. Claimant returned to her desk and finished working for the
day. The next two days, Wednesday and Thursday, were claimant’s
scheduled days off.
{¶ 18} When she returned to work on Friday, claimant discussed what
occurred on Tuesday with her supervisor, Jim Guzovsky. She also
handed him a letter she had written during her two days off. The
letter detailed the terms of employment she would accept. Parras came
into the room and claimant read the letter out loud. As she read it,
Parras became incensed and ordered claimant to leave the premises. At
this point, claimant believed that she had been fired.
{¶ 19} Later that evening, however, claimant received a telephone
call at home from Guzovsky asking her whether she had quit or was she
going to return to work? Claimant’s response was as follows:
I said, well, I ... I’ll come back to work as long as I
don’t have to illegally fill out paperwork and as long as
you guys make good on the pay that you told me. I will
not... It’s non-negotiable about incorrectly filling out
paperwork. And, I’m upset that I’ve been mislead [sic] for
90 days. He said, listen, you either come in, take what we
give you, do what we say or you quit. I go, you know what
Jim, in that case I guess I quit. I’m not being ordered
about illegally by someone. My name, my reputation and my
sleeping at night is more important than you evicting
someone illegally. (Emphasis added.)
Tr. 26-27.
{¶ 20} On rebuttal, Parras essentially denied everything claimant
described. Parras denied that he ever told claimant to backdate
eviction notices and he denied that he ever promised her a
“substantial” raise, let alone a salary between $400 to $500 per week.
{¶ 21} In his written decision, the Hearing Officer drew several
conclusions from the evidence. Initially, the Hearing Officer
observed that Parras could have rebutted claimant’s charge of
backdating notices by “presenting all notices prepared in September
and October. The employer having failed to do so, the Hearing Officer
finds claimant’s testimony to be more credible.” Hearing Officer’s
Decision, at 2. Despite his determination that claimant was telling
the truth about being told to backdate the notices, the Hearing
Officer made the following findings:
*** the Hearing Officer takes note of claimant’s written
demands given to her employer on November 2, a copy of
which is in the record. Claimant offers her employer three
options. First, that she continue to work without being
asked to do anything “improper, illegal, or immoral.” The
second option is that the employer pay her eight weeks of
severance and “write up my exit so I am allowed my
unemployment benefits” thereby avoiding “costly or
embarrassing problems for either party.” The third option
was that she would file for unemployment stating she quit
for failure to pay the agreed wage and being required to
violate “accepted moral and legal standards.”
If backdating three day notices was a substantial factor in
claimant’s decision to quit, she would have done so
immediately. Those who take the high moral ground do not
wait to see what their next raise is going to be. And they
do not suggest writing up their exit in order to be
eligible for unemployment compensation.
As for the issue of wages, without an agreement between the
parties as to the meaning of “substantial”, [sic] the fifty
cent or 5.5 percent raise offered by the employer cannot be
said to be a violation of the hiring agreement. Having
accepted a job without nailing down the wage scale,
claimant’s decision to quit over the issue of pay was not
for just cause. (Emphasis added.)
Commission Hearing Officer Decision, at 3-4. From this determination,
it is clear that the Commission assigned fault to claimant.
{¶ 22} Claimant argues that not only are the Hearing Officer’s
findings not supported by the record, there is also legal precedent
demonstrating that his findings are contrary to law.
{¶ 23} In Carter v. Board of Review and Administrator, Ohio Bureau
of Employment Services (Mar. 16, 1984), Lucas App. No. L-83-392, 1984
Ohio App. Lexis 9285, claimant appealed the Board of Review’s
determination that he quit his employment without just cause. On
appeal, the court discussed the following undisputed facts.
{¶ 24} Claimant’s employer made him perform his work with equipment
that did not work properly. As a result, claimant’s job was made
dangerous. Claimant complained to his employer not only about the
equipment but also because he believed the company’s customers were
being intentionally cheated. The court determined that there was
uncontroverted evidence suggesting;
that the equipment employed by DeWitt was frequently broken
or inadequate for the job. Further, the record indicates
that DeWitt required appellant to perform work which, at
least in appellant's mind, was unfair to the customers and,
arguably, illegal. The employer did not contradict said
evidence, although it clearly had notice of the hearing and
an opportunity to present evidence ***.
Id., at *4-*5. The court concluded that, because claimant’s employer
“persistently employed faulty or broken equipment, coupled with the
appellant's belief that customers were being cheated,” claimant had
just cause to quit his employment. Id., at *7.
{¶ 25} In Whipkey v. Ohio Bureau of Employment Services (C.P.
Washington Cty. 1994), 63 Ohio Misc.2d 517, 635 N.E.2d 88, the court
also reversed a denial of unemployment benefits to an employee, who
the court determined had just cause to quit her employment because her
employer required her to lie about patients’ medical charts.
{¶ 26} The court concluded that “an individual who quits work
because of a belief that continuance in the employment would violate
some principle of good moral conduct may be considered to have quit
with just cause. A violation of the claimant's morals includes being
required to do anything which is immoral, dishonest, illegal, or
unethical.” Id., 522-523.
{¶ 27} In the case at bar, the Hearing Officer determined that
claimant was more credible than Parras. He must, therefore, have also
decided that West Terrace required claimant to backdate eviction
notices. Throughout the proceedings, claimant was unequivocal that
the practice of backdating is repugnant to her because she knows it is
wrong. West Terrace’s practice of backdating is equivalent to the
lying required of the employee in Whipkey.
{¶ 28} In the case at bar, requiring claimant to backdate the
notices not only offended her personal moral code, but is arguably
illegal. Although the Hearing Officer found claimant more credible on
whether Parras had ordered her to backdate, the Hearing Officer
stopped short of acknowledging the illegality of backdating. See,
R.C. 1923.04(A);2 Godbelt v. McClain (Nov. 20, 1995), Licking App. No.
94-CA-0066, 1995 Ohio App. LEXIS 5953, at *2-*3, (Pursuant to R.C.
1923.04, “[p]roper service of the three-day notice is a condition
precedent to the court taking jurisdiction over an eviction
proceeding”). Instead, the Hearing Officer decided that he did not
find that requiring her to backdate notices was a “substantial factor”
for her quitting. According to him, if claimant truly objected to
backdating the notices, she would not have waited “to see what [her]
next raise [was] going to be.” Hearing Officer Determination, at 3.
Further, if claimant were sincere in her objection to backdating the
notices, the Hearing Officer concluded, she would not have written the
letter as a means of qualifying for unemployment compensation.3
{¶ 29} Claimant clearly explained the dual nature of her problems
with the employer: the backdating order and the pay dispute.
Apparently accepting her claim that the illegal order was a reason for
quitting, the Hearing Officer concluded that the backdating order was
not a “substantial factor” in the claimant’s decision. The statute,
however, does not require that a claimant’s reason for leaving be a
“substantial factor” in her decision in order for that reason to
qualify as a just cause.4
{¶ 30} Claimants can have more than one reason for terminating
their employment. And none of their reasons must be more substantial
or compelling than their other reasons. See, Voss v. Bailey's Tree &
Landscape Serv. (Oct. 31, 1997), Sandusky App. No. S-97-020.
{¶ 31} As explained by the Ohio Supreme Court in Irvine, supra, the
correct standard of review has to do with determining whether an
employee had just cause to leave employment. As explained by the Ohio
Supreme Court:
“Traditionally, just cause, in the statutory sense, is that
which, to an ordinarily intelligent person, is a
justifiable reason for doing or not doing a particular
act." Peyton v. Sun T.V. (1975), 44 Ohio App.2d 10, 12 [73
O.O.2d 8].
{¶ 32} In Ohio, an at-will employee is justified in leaving
employment when the employer requests the employee to perform an
illegal act. See, Painter v. Graley (1994), 70 Ohio St.3d 377, 639
N.E.2d 51.5 Requesting an employee to commit an unlawful act is
against public policy and it constitutes just cause to leave
employment. Id. When there is an indication (even if not “a
substantial factor”) that claimant quit because of an illegal order,
the Commission should not condone such a request by prohibiting
benefits.
{¶ 33} In the case at bar, not only did the Hearing Officer apply
the wrong standard of review, his conclusions are unsupported by the
evidence. Claimant never indicated her quitting was based solely on
the pay issue. Claimant never stated that if the employer paid her
more she would ignore the backdating issue. On the contrary, she
expressly made a legal resolution of this issue a necessary condition
of her return.
{¶ 34} What triggered claimant being ordered off the premises was
her questioning the legality of her employer’s policy. When she was
ordered off the premises, claimant believed she had been fired. The
only immediate reason for this order was her questioning her
employer’s policy. Thus she properly attributed her questioning that
policy as the basis of her being fired. When the employer called,
claimant again asked whether she would have to comply with the order
to backdate notices. At the hearing she specifically stated that she
explained she would not return to work because of that order. The
employer never denied that claimant expressly specified this necessary
condition to her returning. Thus the employer never provided any
conflicting testimony regarding claimant’s priorities.
{¶ 35} The Hearing Officer, however, did not find claimant credible
on her reason for quitting. He determined that being asked to
illegally backdate notices was not a substantial factor in her
decision to quit, because he she did not “immediately” quit. He does
not explain precisely when “immediately” should have occurred.
{¶ 36} The Hearing Officer cites only to her waiting until her
raise was rejected. That date, however, was the same date she again
questioned the policy and was ordered off the premises. She did not
quit immediately after she was notified of her raise. Rather, she
left believing she had been fired because of her questioning the
policy. Her employer, moreover, does not deny that she stated her
refusal to return immediately after the employer called her and she
questioned the policy again. The Hearing Officer also totally ignores
the clear explanation the claimant offered as to why she did not
“immediately” quit: she was not certain as to the illegality of what
she had been ordered to do.
{¶ 37} Claimant did not leave her employer because of the pay
issue. Claimant never stated that if the employer paid her more she
would ignore the backdating issue.
{¶ 38} From the record before this court, 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 conclusion that claimant quit her employment without
just cause is unlawful, unreasonable, and against the manifest weight
of the evidence. Claimant’s first assignment of error is sustained.
Since claimant’s first assignment of error is dispositive of this
appeal, claimant’s second assignment of error is now moot.6
6“II. THE COURT OF COMMON PLEAS ERRED IN AFFIRMING THE BOARD OF
Judgment accordingly.
This cause is reversed and remanded.
It is, therefore, ordered that appellant recover of appellees 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.
DIANE KARPINSKI
JUDGE
FRANK D. CELEBREZZE, JR., P.J., AND
CHRISTINE T. MCMONAGLE, J., CONCUR.