Bellaire v. Ohio Unemp. Comp. Rev. Comm.

SUPREME COURT CASES

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2011-Ohio-5167

Case Date: 09/28/2011

Plaintiff: Bellaire

Defendant: Ohio Unemp. Comp. Rev. Comm.

Preview:[Cite as Bellaire v. Ohio Unemp. Comp. Rev. Comm., 2011-Ohio-5167.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
VILLAGE OF BELLAIRE,                                                  )
                                                                      )                                       CASE NO.        11 BE 3
PLAINTIFF-APPELLANT,                                                  )
                                                                      )
- VS -                                                                )                                       O P I N I O N
                                                                      )
STATE OF OHIO UNEMPLOYMENT                                            )
COMPENSATION REVIEW                                                   )
COMMISSION, et al.,                                                   )
                                                                      )
DEFENDANTS-APPELLEES.                                                 )
CHARACTER OF PROCEEDINGS:                                             Civil Appeal from Common Pleas Court,
Case No. 09CV91.
JUDGMENT:                                                             Affirmed.
APPEARANCES:
For Plaintiff-Appellant:                                              Attorney Edward Sustersic
894 National Road
Bridgeport, Ohio   43912
For Defendants-Appellees:                                             Attorney Michael DeWine
Attorney General
Attorney Patria Hoskins
Assistant Attorney General
Health and Human Services Section
30 East Broad Street, 26th Floor
Columbus, Ohio   43215-3400
Attorney Frank Duff
32 20th Street
Wheeling, West Virginia   26003
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite

Dated:   September 26, 2011
VUKOVICH, J.
¶{1}   Appellant Village of Bellaire appeals the decision of the Belmont County
Common  Pleas  Court  affirming  the  decision  of  the  State  of  Ohio  Unemployment
Review  Commission  which  allowed  appellee  Michael  Bumgardner  unemployment
benefits.
¶{2}   The Village of Bellaire contends that the Hearing Officer from the Ohio
Unemployment Review Commission found that there was some fault on the part of
Bumgardner and thus, its decision that there was no just cause for his termination is
unlawful.   It also asserts that the decision is unreasonable because the evidence does
not support a finding of no just cause.   Bumgardner and appellee Ohio Department of
Job and Family Services (ODJS) disagree with the Village’s position by contending
that the termination was not justifiable.
¶{3}   For the reasons expressed more fully below, we hold that the Hearing
Officer did not find that the employee’s conduct constituted “fault” for purposes of a
just cause termination.   Likewise, as there was some competent evidence to support
the Hearing Officer’s decision, the decision is not against the manifest weight of the
evidence.   Therefore, the judgment of the trial court is hereby affirmed.
STATEMENT OF CASE
¶{4}   Bumgardner was employed by the Village of Bellaire from September
1986 until July  9,  2008.    Prior to September  2005, he held the position of heavy
equipment operator.   At that point he was promoted to service director.   In January
2008,  he  was  demoted  back  to heavy equipment operator.    On  July  9,  2008 he
received a letter from Village Administrator Rebecca George Zwack indicating that his
employment with the Village was terminated.   That letter specifically stated:
¶{5}                                                                                      “Subsequent to your demotion in January of this year, you have routinely
been absent from work.   As heavy equipment operator an essential job function is to
serve as lead worker over the water crew and while serving in this capacity several

water jobs have not been completed and many have posed a serious health and/or
safety risk to residents.”
¶{6}   Following  his  termination,  he  appealed  the  termination  through  the
means provided in the Village’s Employee Handbook.   He also filed an Application for
Determination of Benefit Rights with Appellee Ohio Department of Job and Family
Services (ODJFS).   ODJFS determined that he was terminated without just cause and
allowed  him  unemployment  benefits.    The  Village  appealed  the  decision  and  the
director for the Office of Unemployment Compensation affirmed the decision.    The
Village asked for a redetermination and the director affirmed the decision again.
¶{7}   The Village of Bellaire then appealed the decision to the Unemployment
Compensation Review Commission for review by a hearing officer.   A hearing was
held at which testimony and evidence were taken, which included alleged problems
with Bumgardner’s work performance as service director.   The core of the testimony,
however, concerned three specific water projects that occurred after his demotion to
heavy equipment operator - Maple Avenue Project, Indian Run Project and Belmont
Community Hospital Project.
¶{8}   Testimony indicated that the Maple Avenue Project required installation
of new sewer lines and a ditch was left open for about a month.   The Village believed it
should have been completed in two weeks.   The Indian Run Project was to locate
sewer lines so that sewer taps could be installed.   The Village was of the opinion that
the job should have taken one day instead of three days.   The Village Administrator
and  the  Mayor  filled  in  the  ditch  so  that  it  would  not  be  left  open  all  weekend;
employees did not stay overtime to fill in the ditch after the line was fixed.   The Bellaire
Community Hospital Project involved a leaking water line and the ditch was left open
for around three weeks.    On none of these jobs was he the acting foreman and
testimony indicated that some of the delays caused in three projects were because
they were waiting on parts and being called off the job to complete other jobs.
¶{9}   Following the hearing, the Hearing Officer concluded that there was no
just cause for the termination.   It reasoned:
¶{10}  “In  the  instant  case,  the  employer  discharged  claimant  due  to  a
combination  of  poor  job  performance  and  attendance.    The  evidence  presented

establishes that claimant was disciplined in January 2008 for poor job performance as
a  Service  Director.    Claimant’s  punishment  was  demotion  to  a  Heavy  Equipment
Operator.                                                                                     Following  the  demotion,  the  employer  determined  that  claimant’s
involvement in three specific work orders and his excessive absenteeism warranted
discharge.   The evidence presented indicates that claimant was one of several crew
members who worked under the direction of rotating service directors on each of the
job assignments in question.   The evidence further shows that claimant missed work
due to circumstances beyond his control.   A lesser form of discipline for claimant’s
failure to adequately perform his duties on the job assignments would have been
appropriate in this case.   After a review of the entire record in this matter, the Hearing
Officer finds that there was not sufficient fault or misconduct on the part of claimant
that rose to the level of a justifiable discharge.    It will be held that claimant was
discharged by the Village of Bellaire without just cause in connection with work.”
¶{11}  The   Village   of   Bellaire   appealed   that   decision   to   the   Review
Commission.   The request for review was disallowed.   The Village then appealed that
decision to the Belmont County Common Pleas Court.   Following briefing, the common
pleas court affirmed the decision of the Hearing Officer.   The court concluded that the
administrative decision was not contrary to law or irrational.   It provided the following
reasoning:
¶{12}  “The Hearing Officer acknowledged that the disputed work projects were
projects executed in a less than satisfactory manner.   However the Hearing Officer
noted that the claimant’s job on each of the projects was to run heavy equipment, and
he was not the service director assigned managerial responsibility for that week.   The
Hearing Officer found because the claimant was only one of several crew members
working under the direction of a rotating service director, the deficiencies in claimant’s
performance were insufficient to justify a termination.   There is no evidence that the
claimant’s job allowed him to either complete the projects earlier or, without direct
orders, close the ditches once opened.
¶{13}  “The Hearing Officer limited review to the reasons given in the July 9,
2009 termination letter, a letter which was devoid of any reference to past problems.
‘Where a party gives a reason for his conduct and decision touching any thing involved

in a controversy, he cannot, after litigation has begun, change his ground, and put his
conduct upon another and a different consideration.   He is not permitted thus to mend
his hold.    He is estopped from doing it by a settled principle law.’    Grand Trunk
Western. R. Co. v. J.W. Nelson Co., 116 F.2d 823, 840 (6th Cir. 1941).   Because the
termination letter cited only matters arising during the claimant’s performance of his
final job, the termination must be warranted when examined in light of those cited
matters alone.    The Hearing Officer’s statement that lesser sanctions would have
sufficed is not irrational or contrary to law.”
ASSIGNMENT OF ERROR
¶{14}  “THE TRIAL COURT ERRED IN AFFIRMING THE DECISION OF THE
UNEMPLOYMENT   COMPENSATION   REVIEW   COMMISSION   WHERE   THAT
DECISION WAS UNLAWFUL, UNREASONABLE AND AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
¶{15}  R.C. 4141.282 provides the mechanism for appealing the decision of the
Unemployment Compensation Review Commission to the common pleas court.   The
common pleas court must affirm the commission's decision unless it was unlawful,
unreasonable, or against the manifest weight of the evidence.   R.C. 4141.282(H).   An
appellate  court  applies  the  same  standard  on  appeal;  we  can  only  reverse  the
Unemployment  Compensation  Board  of  Review’s  just  cause  determination  if  it  is
unlawful, unreasonable, or against the manifest weight of the evidence.    Tzangas,
Plakas & Mannos v. Ohio Bur. of Emp. Servs. (1995), 73 Ohio St.3d 694, paragraph
one of the syllabus.
¶{16}  The manifest weight of the evidence standard in a civil case is different
from the manifest weight of the evidence standard that is applicable in a criminal case.
State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶26.   In a civil case, a judgment
will not be determined to be against the weight of the evidence if it is supported by
“some competent, credible evidence going to all the essential elements of the case.”
Id., citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279.
¶{17}  R.C.                                                                                4141.29(D)(2)(a)  provides  that  an  individual  is  ineligible  for
unemployment benefits if he was  “discharged for just cause in connection with the
individual’s work.”

¶{18}  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 Ohio St.3d 15, 17; Tzangas,
supra,  at                                                                                        697.                                             “Just  cause  determinations  in  the  unemployment  compensation
context, however, also must be consistent with the legislative purpose underlying the
Unemployment Compensation Act.”   Tzangas, supra, at 697.   “The act was intended to
provide financial assistance to an individual who had worked, was able and willing to
work, but was temporarily without employment through no fault or agreement of his
own.”   Id., quoting Irvine, supra, at 17.                                                        “When an employee is at fault, he is no longer
the  victim  of  fortune's  whims,  but  is  instead  directly  responsible  for  his  own
predicament.   Fault on the employee's part separates him from the Act's intent and the
Act's protection.” Id. at 697-698.   Ohio Supreme Court further explained:
¶{19}  “While this court did hold in Irvine that ‘[t]he determination of whether just
cause  exists  necessarily  depends  upon  the  unique  factual  considerations  of  the
particular case,’ * * *, that does not compel the appellate court's abandonment of fault-
based just cause analysis in favor of a  ‘totality of the circumstances’ examination.
Instead, Irvine recognizes that the question of fault cannot be rigidly defined, but,
rather, can only be evaluated upon consideration of the particular facts of each case. If
an employer has been reasonable in finding fault on behalf of an employee, then the
employer may terminate the employee with just cause.”   Id. at 698.
¶{20}  The Hearing Officer stated in its decision that a lesser form of discipline
would have been sufficient given the facts.    The Village’s position is that this is a
determination  of  fault  and  therefore,  it  follows  that  there  was  just  cause  for  the
termination.    The Village cites this court to the Ninth Appellate Court’s decision in
Autozone, Inc. v. Herring, 9th Dist. No. 22824, 2006-Ohio-1039 to support its position.
¶{21}  In Autozone, the Hearing Officer based its decision of no just cause for
termination  on  comparative  fault;  it  compared  one  employee’s  conduct  to  that  of
another.   Id. at ¶13.   The Appellate Court indicated that Ohio precedent is clear that a
just cause determination requires an analysis of the employee’s fault in the situation
leading to his termination.   Id. at ¶15.   It does not indicate that an employee is unjustly
terminated simply because his misconduct is less egregious than another employee’s.

Id.   In Autozone, the appellate court did not hold that the employee was at fault; rather
it remanded the matter for a determination of whether there was fault.
¶{22}  In  the  case  sub  judice,  the  Hearing  Officer  did  not  compare
Bumgardner’s  conduct  to  that  of  other  employees.    Rather,  the  Hearing  Officer
indicated that Bumgardner was not the supervisor and that his actions did not warrant
termination.   Thus, we find that Autozone is not on point.
¶{23}  Furthermore,  we  disagree  with  the  Village  that  the  Hearing  Officer’s
determination  was  a  finding  of  fault.     Fault,  in  the  context  of  unemployment
compensation, is fact specific.    Here, the Director of the Office for Unemployment
Compensation,  the  Hearing  Officer,  the  Unemployment  Compensation  Review
Commission  and  the  Belmont  County  Common  Pleas  Court  could  not  find  that
Bumgardner’s termination was with just cause. Accordingly, by implication they did not
find that the Village had been reasonable in finding “fault” on Bumgardner’s part.
¶{24}  We now to turn to the issue of whether such a determination is against
the manifest weight of the evidence.
¶{25}  The  Hearing  Officer  only  considered  actions  that  occurred  after  the
demotion to heavy equipment operator in determining whether there was just cause for
the termination.   The common pleas court found no error with that determination. As
aforementioned, the termination letter only refers to his work after the demotion as
justification for his termination.   If the Village had relied on his performance while he
was service director as a reason for his termination, it should have stated as much in
the termination letter.    Thus, for the reasons stated in the common pleas court’s
decision,  we  find  that  the  Hearing  Officer  was  not  unreasonable  to  limiting  the
determination of just cause to actions that occurred after the demotion.   Therefore, our
review is limited to whether those actions would justify the termination.
¶{26}  Starting  with  job  performance,  while  employed  as  heavy  equipment
operator ditches were left open longer than the Village wanted them to be.   It is also
true that the job description of heavy equipment operator states under the essential
functions that the heavy equipment operator  “may act as lead worker over crews.”
However, the testimony at the hearing clearly established that Bumgardner did not act
as the foreman on any of the three work projects that were not completed satisfactorily

to the Village.    Rather, he was one of several crew members working under the
direction of a rotating service director.   Furthermore, he was given no written warnings
or  oral  reprimands  about  his  job  performance  for  the  Indian  Run  Project,  Maple
Avenue Project or the Bellaire Community Hospital Project.   The Village Administrator
did not indicate that she ever reprimanded him on his job performance for these
projects or that he was ever told how long each project should take.   Rather, testimony
indicated that some of the delays on those jobs were not within his control.    For
instance, he was called off of the Indian Run Project twice by the acting service
director to perform other jobs.                                                              (12/17/08 Tr. 40).   On the Maple Avenue Project, the
delay was in part caused because they were waiting on parts.                                 (11/13/08 Tr.  13).
Moreover, he testified that the acting service director would instruct the employees
when to leave and when to arrive on a job site. (12/17/08 Tr. 62-63).   While the Village
Administrator indicated that there was nothing to prevent employees from working
overtime to complete a project, considering that there were foremen in charge of the
projects it would seem that the foreman would be in charge of directing the employees
to stay over.    At the hearing, two of the foremen testified.    One foreman, Delbert
Jackson, indicated that while he had no authority to discipline Bumgardner, he could
have reported him to the Village Administrator if he had a problem with him.   However,
he testified that he did not have a problem with Bumgardner nor his work.                    (12/17/09
Tr. 85-87).   The other foreman, Timothy Moore, testified that he was not dissatisfied
with  Bumgardner’s  performance,  but  it  did take  him  a  long time to  perform  jobs.
(12/17/08 Tr. 92).
¶{27}  Given  the  testimony,  considering  that  he  was  not  in  charge  of  the
projects and there were no warnings given to him about his job performance, the
record   supports   the   Hearing   Officer’s   determination   that   Bumgarnder’s   job
performance did not constitute just cause for his termination and was not against the
manifest weight of the evidence.    As the common pleas court noted,  “there is no
evidence that the claimant’s job allowed him to either complete the projects earlier or,
without direct orders, close the ditches once opened.”   Thus, the Hearing Officer’s
decision was not unreasonable.

¶{28}  The second and final reason given for his termination was absenteeism.
The Village Administrator testified that for a three and a half month period he used 118
hours of sick time.    She testified that he took one or two days off per week. She
indicated it was usually a Thursday and Friday, but sometimes a Tuesday. (11/13/08
Tr. 35).   In the appellate brief, the Village asserts that there is a pattern to the sick
days of Tuesdays and Thursdays.
¶{29}  The testimony clearly establishes that Bumgardner had accumulated sick
time to use.   In fact, when he was terminated he still had 350 hours of unused sick
time.                                                                                        (11/13/08 Tr. 50-51).   Bumgardner further testified that he was suffering from
anxiety  attacks  for  which  he  was  being  treated.                                       (12/17/08  Tr.                                                                    60).   However,
Bumgardner did not submit an approval form for the sick leave used.
¶{30}  The  employee  handbook  was  discussed  at  the  hearing.     In  that
handbook it discusses approval for leave.    It states,  “You must submit request for
absences other than sick leave, two days prior to the first day you will be absent.”
(12/17/08 Tr. 9).   The Village Administrator testified that for sick time, the approval
form had to be filled out after the fact.                                                    (12/17/08 Tr. 10).   The employee handbook
also states that “if any employee fails to report to work for a work day or leave work
prior to the scheduled quitting time, without approval from an immediate supervisor,
the employee will not receive payment of the time reported as personal or sick after
the fact.”                                                                                   (12/17/08 Tr. 16).
¶{31}  Bumgardner testified that he attempted to fill out the approval forms but
the acting service director was out of the forms and he was told that the acting service
director would get the form to him when they were restocked.   The forms were never
given to Bumgardner.   However, Bumgardner did fill out time sheets and those sheets
were signed by the supervisor.   (12/17/08 Tr. 16).   Thus, Bumgardner was paid for the
sick time that he used.   (12/17/08 Tr. 12-13).
¶{32}  When the testimony as to the sick days is reviewed as a whole, the
Hearing Officer’s conclusion that absenteeism would not justify termination was not
against the manifest weight of the evidence.   Bumgardner was paid for the sick time
he used.    This is an implicit indication that the time was approved, and thus, the
Hearing Officer’s decision was not unreasonable.

¶{33}  In conclusion, this assignment of error lacks merit.   The Hearing Officer
did not find Bumgardner’s conduct to constitute fault for purposes of a just cause
termination.    There  was  some  competent  credible  evidence  to  support  such  a
conclusion.   Thus, the Hearing Officer’s decision was not against the manifest weight
of the evidence.
¶{34}  For  the  foregoing  reasons,  the  judgment  of  the  trial  court  is  hereby
affirmed.
Donofrio, J., concurs.
Waite, P.J., concurs.

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