IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
ROGER L. VEST, :
:
Plaintiff-Appellant, : Case No. 04CA2977
:
vs. :
: Released: December 22, 2005
ADMINISTRATOR, OHIO :
DEPARTMENT OF JOB AND : DECISION AND JUDGMENT
FAMILY SERVICES, ET AL., : ENTRY
:
Defendants-Appellees. :
APPEARANCES:
Karyn Leitzell, Southeastern Ohio Legal Services, Portsmouth, Ohio for
Appellant.
Jim Petro, Ohio Attorney General, and David E. Lefton, Senior Assistant Attorney
General, Columbus, Ohio, for Appellee Administrator, Ohio Department of Job &
Family Services.
PER CURIAM:
{¶1} This is an appeal from a Scioto County Common Pleas Court judgment
that affirmed the Ohio Unemployment Compensation Review Commission's
(Commission) judgment to deny unemployment compensation benefits. Roger L.
Vest, plaintiff below and appellant herein, raises one assignment of error for
review and determination:
{¶2} “THE DECISION OF THE COURT OF COMMON PLEAS
UPHOLDING THE DECISION OF THE UNEMPLOYMENT REVIEW
OMMISSION IS UNLAWFUL, UNREASONABLE, AND AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
{¶3} Appellant worked for M&J Industries for almost six years. On March
21, 2003, M&J terminated his employment for job abandonment. Appellant
applied for unemployment compensation and the Ohio Department of Job and
Family Services (ODJFS) initially determined that M&J terminated him without
just cause and awarded compensation. M&J appealed this determination and
ODJFS affirmed its initial decision. M&J then appealed the redetermination to the
Commission.
{¶4} At the Commission hearing, appellant testified that he wanted to leave
work early due to a work-related leg injury that occurred the previous week.
Appellant did not see his supervisor, Paul Wampler, on the floor. Ray Scott, a
union steward, advised appellant to speak with the "Lead Man," Mike Maynard.
Appellant told Maynard that he did not feel well and might leave for the day after
lunch. Maynard replied: "if you're not feeling good, this ain't the place to be, you
know." Appellant testified that this conversation occurred sometime between ten
and eleven a.m. At lunchtime, appellant left work and did not return. When
appellant returned to work the following morning, his supervisor and the
operations manager informed him that he had been terminated for abandoning his
job.
{¶5} Appellant testified that he understood the company's policy to allow
him to inform the Lead Man if he intended to leave and if the supervisor was not
available. Appellant stated that his supervisor was not on the floor at the time he
told Maynard that he intended to leave, and that he did not see his supervisor
before the left. Appellant did admit that he had a contentious conversation with his
supervisor at nine a.m. In that conversation, appellant expressed concern about
staffing shortages and stated that he was about ready to quit. He returned to work,
however, immediately after this conversation.
{¶6} Mike Maynard, the Lead Man, testified that appellant informed him
that he might leave work early because he felt ill. Maynard acknowledged that he
told appellant "if you're not feeling good, this ain't no place to be, you know. You
might go home." Maynard also testified that he assumed appellant spoke with the
supervisor who was on the floor at all times that morning.
{¶7} Maynard admitted that he saw appellant leave at lunchtime, and that it
was unusual for appellant to leave the work premises during the lunch hour.
Maynard testified that he assumed, however, that appellant informed the supervisor
that he intended to leave, and only realized otherwise later in the afternoon. After
learning that the supervisor was not informed, Maynard stated that (1) he did not
give appellant permission to leave, and (2) appellant told him earlier that he might
need to leave work. Finally, Maynard repeatedly stated that if the supervisor is not
present, an employee must inform him if they intend to leave work early.
{¶8} Supervisor Paul Wampler testified that appellant did not inform him
that he intended to leave work early. Wampler acknowledged that if he is
unavailable, it is permissible for employees to inform Maynard if they need to
leave work. Wampler testified that on the day in question, however, he was on the
floor, and at his desk, until 12:15 p.m. Wampler acknowledged that he worked on
a machine in the morning, within forty feet of appellant. Finally, Wampler
testified regarding his discussion with appellant earlier that morning when
appellant stated that he was about ready to quit the job.
{¶9} After considering the evidence, the hearing officer reversed the
redetermination decision and found that M&J discharged appellant for just cause.
The hearing officer found that appellant knew the company policy, but failed to
follow the policy. In particular, the officer found that the supervisor was available
at all times and that appellant failed to notify him, as required, that he intended to
leave early. In addition, the officer found that Maynard did not give appellant
permission or authorization to leave. Therefore, when appellant left work early the
"employer considered him to have abandoned his job." The hearing officer found
this consideration reasonable, "especially in view of claimant's recent statements
that he was considering quitting and that he did not care about the company."
Subsequently, the trial court concluded that the decision was not unlawful,
unreasonable, or against the manifest weight of the evidence. This appeal
followed.
{¶10} In his sole assignment of error, appellant asserts that the trial court's
decision to uphold the Commission's decision is unlawful, unreasonable, and
against the manifest weight of the evidence. We disagree with appellant.
{¶11} Initially, we note that a reviewing court, whether a trial court or a
court of appeal, must affirm the Commission’s decision unless the decision is
unlawful, unreasonable, or against the manifest weight of the evidence. See R.C.
4141.28(O)(1); Tzangas, Plakas & Mannos v. Ohio Bur. Of Emp. Servs. (1995), 73
Ohio St.3d 694, 696, 653 N.E.2d 1207, 1210. A reviewing court may not reverse
the Commission’s decision simply because “reasonable minds might reach
different conclusions.” Irvine v. Unemployment Comp. Bd. of Rev. (1985), 19
Ohio St.3d 15, 18, 482 N.E.2d 587, 590; see, also, Tzangas, supra. Rather, the
reviewing court is limited to determining whether evidence exists in the record to
support the Commission’s decision. See Irvine, supra.
{¶12} R.C. 4141.29(D)(2)(a) generally renders an employee who voluntarily
leaves his or her employment without just cause ineligible to receive
unemployment compensation benefits. See Durgan v. Ohio Bureau of Emp.
Services (1996), 110 Ohio App.3d 545, 674 N.E.2d 1208. Ford Motor Co. v. Ohio
Bureau of Emp. Servs. (1991), 59 Ohio St.3d 188, 189, 571 N.E.2d 727, 728. “Just
cause” to terminate employment exists if a person of ordinary intelligence would
have concluded that the circumstances justified terminating the employment.
Warrensville Heights v. Jennings (1991), 58 Ohio St.3d 206, 207, 569 N.E.2d 489,
491; Irvine, 19 Ohio St.3d at 17, 482 N.E.2d at 589 (stating that “‘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’” (quoting Peyton v. Sun T.V. (1975),
44 Ohio App.2d 10, 12, 335 N.E.2d 751, 752)). Furthermore, the Ohio Supreme
Court has stated:
“The determination of what constitutes just cause must be
analyzed in conjunction with the legislative purpose underlying the
Unemployment Compensation Act. Essentially, the Act’s purpose is
‘to enable unfortunate employees, who become and remain
involuntarily unemployed by adverse business and industrial
conditions, to subsist on a reasonably decent level and is in keeping
with the humanitarian and enlightened concepts of this modern day.’
Leach v. Republic Steel Corp. (1984), 176 Ohio St. 221, 223.”
Irvine, 19 Ohio St.3d at 17, 482 N.E.2d at 589. The claimant bears the burden of
proving that he or she is entitled to unemployment compensation benefits. Id.
{¶13} Moreover, we note that “whether just cause exists necessarily depends
upon factual considerations of the particular case.” Id., 19 Ohio St.3d at 17, 482
N.E.2d at 590. As the Irvine court stated:
“* * * Determinations of purely factual considerations is
primarily within the province of the referee and the board. Upon
appeal, a court of law may reverse such decisions only if they are
unlawful, unreasonable, or against the manifest weight of the
evidence. * * * Like other courts serving in an appellate capacity, we
sit on a court with limited power to review. Such courts are not
permitted to make factual findings or to determine the credibility of
witnesses. * * * The duty or authority of the courts is to determine
whether the decision of the board is supported by the evidence in the
record. * * * The fact that reasonable minds might reach different
conclusions is not a basis for the reversal of the board’s decision. * *
* Moreover, ‘our statutes on appeals from such decisions [of the
board] are so designed and worded as to leave undisturbed the board’s
decisions on close questions. Where the board might reasonably
decide either way, the courts have no authority to upset the board’s
decision.”
Id., 19 Ohio St.3d at 17-18, 482 N.E.2d at 590.
{¶14} Appellant asserts that he was discharged without just cause because:
(1) he left this job with proper authorization from the Lead Man; (2) even if the
Lead Man's statements did not constitute proper authorization, appellant's reliance
on the statement was merely a reasonable misunderstanding; and (3) any potential
misconduct did not rise to the level necessary for a just cause dismissal.
{¶15} At the hearing, appellant admitted that he understood the company's
policy that he may report to the Lead Man only when the supervisor is unavailable.
Appellant claimed, however, that his supervisor was unavailable and away from
the work area. Appellant's supervisor's testimony indicated, however, that he was
on the floor and available for a consultation the entire morning. Maynard's
testimony also supports this assertion.
{¶16} This is a case of disputed facts and appellant, in essence, maintains
that his testimony is more credible than Wampler's and Maynard's testimony. The
Commission resolved these disputed facts, found the latter testimony more credible
and concluded that the supervisor was available to employees in the work area.
This finding is within the Commission's purview, as determinations of purely
factual issues and witness credibility rest within its province. See Irvine, supra, at
17-18. We, as an appellate court, cannot disturb this judgment merely because
reasonable minds may reach different conclusions. Id.
{¶17} In his third argument, appellant asserts that the Commission erred
when it found that his employer terminated him for just cause. Appellant urges us
to adopt a position that prohibits the Commission from finding a just cause
discharge when the employee's misconduct (1) does not result in harm to the
employer, (2) is an isolated incident, and (3) the employer has never warned the
employee against past behavior.
{¶18} Appellant contends that his employer suffered no loss or injury when
he left work because a sufficient number of employees were available to complete
the work. This position does not, however, consider the fact that an employer has
a right to expect an employee to remain in the workplace and to only leave work
with permission.
{¶19} Appellant also argues that his misconduct was an isolated incident and
did not rise to a level warranting a just cause discharge. While it is true that the
employer did not claim that appellant had a history of abandoning his position by
leaving work without proper authorization, Paul Wampler testified that appellant
engaged in a heated exchange with him that same morning. During that
conversation, appellant used profanity and claimed he was ready to quit. Appellant
subsequently left work without proper authorization despite the fact that his
supervisor, Wampler, was available. These facts provide a context in which the
Commission could find that this incident, while perhaps isolated in the broader
sense, constitutes a deliberate act on appellant's part.
{¶20} Next, appellant argues that his employer cannot discharge him without
providing warnings for his conduct. We do not find, however, sufficient evidence
of a company policy warning system for unauthorized absences. Consequently, we
cannot find that the employer discharged appellant without just cause because it
chose to terminate his employment immediately and without the benefit of a
second chance and a formal warning.
{¶21} Finally, appellant argues that the Commission erred when it implicitly
found that the employer discharged him for just cause because he "quit" his
position by leaving without authorization. Appellant argues that whether an
employee actually quit his job cannot be determined by the reasonableness of the
employer's belief, but must be determined according to the employee's intention at
the time he left the position. Appellant cites Griffith v. Admin., Ohio Bureau of
Emp. Serv. (Dec. 27, 1984), Cuyahoga App. No. 48301 in support of his
contention.
{¶22} We believe that the instant case is distinguished from Griffith. Here,
the facts were contested and appellant threatened to quit his job prior to leaving
without prior authorization. In Griffith, the facts were uncontested, which allowed
that court to give less deference to the judgment because its review involved
determining the propriety of "the legal effect of unchallenged facts rather than the
existence of such facts." Id., citing Sellers v. Board of Review (1981), 1 Ohio
App.3d 161; Kubelko v. Board of Review (Jan. 25, 1979), Cuyahoga App. No.
38098. Moreover, even the Griffith undisputed factual basis differs from the
contested facts in this case. In Griffith, the employee argued with his plant
manager over a recent pay deduction. During that argument, the plant manager
ordered the employee to return to work and advised the employee that if he failed
to return to work, the employer would consider him to have quit his employment.
The Eighth District found that whether the employee quit depended upon the
employee's mental state or intention, rather than the employer's. In the instant
case, however, we note that it was not the employer who threatened to consider
appellant's absence as a "quit", but the appellant who used those words before he
left work without proper authorization. Also in Griffith we note that the employee
had already completed a normal working day and most of his overtime hours.
Here, appellant left work without completing a normal work day, and did so
without proper authorization, even though he was aware of the company policy
that required him to report to his supervisor when that supervisor was available.
{¶23} Thus, based upon the foregoing reasons, we agree with the trial court's
conclusion that the Commission's decision is not unlawful, unreasonable, or
against the manifest weight of the evidence. Accordingly, we overrule appellant's
sole assignment of error and affirm the trial court's judgment.
JUDGMENT AFFIRMED.
McFarland, J., Dissenting:
{¶24} I respectfully dissent. In my view, there was an abuse of discretion
after a thorough review of the transcripts. This is because I fail to see “just cause”
for the termination or support for a finding of job “abandonment” in the record
below.
{¶25} The relevant facts are that the Appellant expressed his desire to a Mr.
Maynard “lead man” and was expressly told “if you’re not feeling good, this ain’t
no place to be you know. You might go home.” Further, the other supervisor, Mr.
Wampler, who is the other person that the employee was to advise of any illness
and desire to leave that day, contradicted himself in his own testimony.
{¶26} On direct examination, Mr. Wampler admitted that it is permissible
for employees to inform Mr. Maynard that they are ill and need to leave if he is in
a meeting or otherwise unavailable. He went on to say that on the day in question,
he was on the floor and at his desk until 12:15 p.m. However, on cross
examination Mr. Wampler stated in response to a question if he had reason to leave
the department for any reason that morning, and he conceded by saying: “Well,
I’m sure there were times when I left the department, Yeah.”
{¶27} It is reasonable to conclude that if he left the department that morning
Appellant could not locate him to explain his situation. It is reasonable to conclude
that if Appellant told Mr. Maynard about his situation it was because, at that time,
Mr. Wampler may have “left the department.”
{¶28} Further, it is unreasonable and against the manifest weight of the
evidence in my view to conclude that Appellant intended to “abandon” his job
when reviewing the record as a whole. This is magnified because the employer
has created an “ambiguity” in its policy. It has decided that employees may report
illness or injury to the “Lead Man” when the direct supervisor is not available.
The record reflects that the direct supervisor is often away from his work area,
making it apparent why the employer needs this policy. However, by initiating and
implementing such a policy it has created, in the Lead Man, the apparent authority
to permit or reject such requests. Even Mr. Wampler, Appellant’s direct
supervisor, indicated that the Lead Man has such authority.
{¶29} Lastly, the record does not support the finding of the Commission that
the employer reasonably believed Appellant “abandoned his job.” “Abandonment”
is defined as “[t] he relinquishing of a right or interest with the intention of never
again claiming it.” Black’s Law Dictionary (7th Ed. 1999) 1. The record shows
that Appellant never intended to relinquish his right of claim to his job. This is
best shown by Appellant reporting his injury and intention to leave work to the
lead man and because he timely returned to work the following morning. Since the
record below fails to show that Appellant intended to permanently relinquish his
job, the Commission’s finding otherwise is unreasonable and against the manifest
weight of the evidence. Also, if Appellant intended to quit his job he had the
perfect opportunity to do so during or immediately after the heated exchange he
had the day in question.
{¶30} In summary, Appellant reported his intention to leave to the Lead Man
whom he viewed as having the authority to authorize his request. The Lead Man’s
statements indicated that Appellant’s request was authorized and Appellant relied
on that authorization, now, to his detriment. Moreover, Appellant’s actions
demonstrated no intention to abandon his job. Any fault, in this situation, lies with
the employer’s policy, which vests two individuals with the authority to grant these
requests and not with the employee who relied on that apparent authority.
Scioto App. No. 04CA2977 14
{¶31} Although determinations of purely factual issues and witness
credibility rest within the province of the Commission and may not be reversed
merely because reasonable minds could reach a different conclusion, these factual
determinations must not be unlawful, unreasonable or against the manifest weight
of the evidence. In my view, the Commission’s factual determinations were
against the manifest weight of the evidence, in light of a review of the transcript,
and as such unreasonable. Therefore, the trial court’s decision below affirming the
same was unreasonable and against the manifest weight of the evidence. Thus, I
dissent.
JUDGMENT ENTRY