SALLY SHAFFER, Plaintiff-Appellant

vs.

AMERICAN SICKLE CELL ANEMIA ASSOCIATION, ET AL.,

Defendant-Appellees

No. 50127
COURT OF APPEALS, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY, OHIO
Slip Opinion
June 12, 1986

Civil appeal from Common Pleas Court Case No. 083,794

 COUNSEL

 

For Plaintiff-Appellant: Stephen G. Thomas, Esq. Thomas, Boles & Fitzpatrick, 36 South Franklin Street, Chagrin Falls, Ohio 44022
For Defendant-Appellees: M. Umar Abdullah, Esq., 1300 Rockefeller Building, 614 Superior Avenue, N.W., Cleveland, Ohio 44113; Virginia A. Vito, Assistant Attorney General, 800 State Office Building, 615 West Superior Avenue, Cleveland, Ohio 44113

 JUDGES

 

ANN McMANAMON, J., KRUPANSKY, J., CONCUR
 AUTHOR: PARRINO

 OPINION

 

 

 
JOURNAL ENTRY AND OPINION

 

PARRINO, C.J.:

 

This is an appeal from the judgment of the Court of Common Pleas which affirmed the decision of the Unemployment Compensation Board of Review denying benefits to appellant Sally Shaffer. For the reasons adduced below, the trial court's judgment is affirmed.

 

I.

 

Sally Shaffer was employed as a medical records technician with the American Sickle Cell Anemia Association (the Association). On June 28, 1984, Shaffer left for lunch at approximately 11:45 a.m. and did not return until 2:30 p.m. Shaffer did not inform her supervisor that she was leaving, and did not call the office to say she would be late in returning. On June 29, 1984, Shaffer was terminated by the Association.

 

The appellant filed an application for determination of benefit rights with the Ohio Bureau of Employment Services on July 6, 1984. A notice was mailed on July 24, 1984, inforcing Shaffer of the initial determination that she was discharged for just cause and ineligible for benefits. Shaffer filed a request for reconsideration. The bureau's initial determination was affirmed upon reconsideration. (Notice of decision mailed August 16, 1984.) On August 28, 1984, Shaffer filed a notice of appeal to the Unemployment Compensation Board of Review. A hearing was scheduled for September 12, 1984.

 

At the hearing the appellant testified that she informed the receptionist that she was leaving for lunch and that she would be late in returning. Shaffer admitted that she had returned later than anticipated because she had gotten stuck in a traffic jam. Shaffer further testified that she had never been reprimanded for poor work performance and was admonished once for not calling in when she could not come to work. Finally, Shaffer testified that the Association had a written policy relating to employee conduct which provided for progressive discipline.

 

Karen Coates testified on behalf of the Association. Coates testified that Shaffer had previously been warned about leaving work without notifying anyone. This warning was documented in a letter dated December 5, 1984, which was placed in Shaffer's employment file. Shaffer was warned after having left work for two hours on November 30, 1983 without telling anyone. She was informed at that time that she was not to leave without first informing someone other than the receptionist. Thus, Shaffer was terminated when on June 28, 1984, she disregarded the warning and left work without informing someone other than the receptionist.1 Coates also testified that the Association's written disciplinary policy expressly provides for the immediate involuntary termination of an employee who walks off the job without informing the supervisor.

 

In a decision mailed on September 17, 1984, the hearing officer affirmed the administrator's decision that Shaffer had been terminated for just cause and was ineligible for benefits. On September 28, 1984, Shaffer filed an application with the Board of Review to institute further appeal. Further appeal was disallowed on November 6, 1984. Shaffer's subsequent appeal to the Court of Common Pleas was also unsuccessful. On March 13, 1985, the trial court affirmed the decision of the Board of Review. Shaffer has appealed the trial court's judgment raising three assignments of error.

 

II.

 

First assignment of error:

 

WHETHER A FINDING OF "JUST CAUSE" FOR AN EMPLOYEE'S TERMINATION, AS DEFINED BY OHIO REVISED CODE, SECTION 4141.29(D)(2)(a), CAN BE SUSTAINED WHEN THE EMPLOYER HAS ESTABLISHED PROCEDURES FOR THE WORKPLACE WHICH ARE NEITHER FAIR, NOR FAIRLY APPLIED, AND HAS SUBSEQUENTLY DISCHARGED APPELLANT FOR AN ALLEGED INFRACTION OF THESE PROCEDURES.

 

The appellant first argues that her termination pursuant to company policy could not be for just cause because the policy was neither fair nor fairly applied. We disagree.

 

A termination pursuant to company policy will constitute just cause only if the policy is fair, and fairly applied. Harp v. Administrator, Bureau of Unemployment Compensation (1967), 12 Ohio Misc. 34. This court's review of the fairness of a company policy is necessarily limited to a determination of whether the employee received notice of the policy; whether the policy could be understood by the average person; and whether there was a rational basis for the policy. The issue of whether the policy was fairly applied relates to whether the policy was applied to some individuals but not others.

 

A review of the record reveals that on November 9, 1982, the appellant acknowledged, in writing, that she had received a copy of the Association's personnel policies. Therefore, it is clear that the appellant had notice of the company policy.

 

After examining the company policy, it is also clear that the policy was written so as to be easily understood by the average person. The policy provision at issue provides in pertinent part:

 

PERSONNEL POLICY NO. 8

 

 POLICY

 

Employees who fail to abide by these established rules and regulations are subject to corrective discipline. Corrective discipline may range from a simple or timely warning for minor offenses or omissions to disciplinary suspension without pay, including discharge for more serious or repeated infractions.

 

Involuntary termination without previous warning may result in cases of major offenses. Also, repeated infractions or uncorrected conduct may result in a termination of employment.

 

* * *

 

 PROCEDURE

 

A. Infractions which are of a minor nature will be dealt with in the following manner:

 

2nd Offense - Written Warning

 

3rd Offense - Up to three day suspension without pay.

 

A representative list of minor infractions include but are not limited to:

 

B. Tardiness and Absenteeism.

 

C. Improper use of American Sickle Cell Anemia Association's property.

 

D. Willful violation of minor safety, security, fire, traffic or parking regulations.

 

E. Solicitations of any kind with exceptions of United Way or other Association sponsored appeals.

 

F. Refusal to identify yourself to any Supervisor or Security Guard upon request.

 

G. Presence in unauthorized areas.

 

Employees committing infractions of a major nature will be open to immediate involuntary termination. Alternative measures may be taken as warranted. A representative list of major infractions includes, but is not limited to:

 

A. Absence2 of three days without notification.

 

B. Habitual tardiness and absenteeism.

 

C. Insubordination (willful disobedience of authority to a reasonable order).

 

D. Theft.

 

E. Fighting.

 

F. Walking off job (without informing the supervisor).

 

G. Willful damage or destruction to Association property.

 

H. Violation of major safety rules.

 

I. Gambling on Association property.

 

J. Reporting to work under the influence of alcohol or drugs.

 

K. Possession of dangerous weapons.

 

L. Falsification of record, personal or medical.

 

M. Inefficiency or incompetence in performing assigned tasks.

 

N. Release of priviledged [sic] information.

 

The language of this policy is unambiguous. In addition, the reason for the appellant's termination, walking off the job without notifying the proper personnel, is clearly set forth as a major infraction for which an employee is "open to immediate involuntary termination."

 

Next, we must examine whether there is a rational basis for the policy. In reviewing whether the policy in question has a rational basis, this court must consider whether the policy providing for termination is reasonably related to the critical issue in determining just cause. The critical issue in determining just cause is "whether the employee, by his actions, demonstrated an unreasonable disregard for his employer's best interest."> Stephens v. Board of Review (May 22, 1980), Cuyahoga App. No. 41369, unreported, at 3.

 

We believe that the policy at issue in the case at bar is reasonably related to determination of just cause. A company has a serious interest in knowing when its employees leave their work area. A company could not function if the employees could simply come and go as they pleased, without notifying the proper personnel. Therefore, a policy providing for the termination of an employee who leaves work without notifying the proper personnel is directly related to the disregard for the employer's best interest.3

 

In light of the foregoing discussion, this court concludes that the policy under which the appellant was terminated was fair.

 

Finally, the appellant argues that the policy was not fairly applied. There is no evidence in the record suggesting that the appellant was treated differently from other employees, and the appellant does not even make such a claim. Instead, appellant suggests the real reason for her termination was the financial difficulty the Association was in at the time, and that the policy applied was only the Association's excuse for termination. While it is admitted that the Association had been experiencing financial difficulties at the time of Shaffer's termination, there is no evidence substantiating appellant's claim that this was the real reason for her termination. Accordingly, this argument is without merit.

 

The appellant's first assignment of error is overruled.

 

III.

 

Second assignment of error:

 

WHETHER THE FAILURE OF THE TRIAL COURT TO TAKE NOTICE OF THE EMPLOYER'S BREACH OF APPELLANT'S RIGHTS CREATED UNDER THE EMPLOYER'S MANUAL OF PROGRESSIVE DISCIPLINARY PROCEDURE, AND THE FAILURE OF THE COURT TO TAKE NOTICE OF WORKPLACE RULES WHICH WERE UNFAIR AND UNFAIRLY APPLIED AND WHICH WERE USED TO DISCHARGE APPELLANT FOR AN ALLEGED VIOLATION OF SUCH RULES, DEMONSTRATES AN ABUSE OF THAT COURT'S DISCRETION.

 

Under the second assignment of error, appellant maintains that the trial court abused its discretion in affirming the Board's application of a personnel policy that was unfair and unfairly applied. In light of our conclusion under the first assignment of error, i.e., the policy was fair and fairly applied, we must hold that the trial court did not abuse its discretion in affirming the policy's application. Thus, appellant's second assignment of error is overruled.

 

IV.

 

Third assignment of error:

 

WHETHER A FINDING OF "JUST CAUSE" FOR AN EMPLOYEE'S TERMINATION, AS DEFINED BY OHIO REVISED CODE, SECTION 4141.29(D)(2)(a) MUST BE SUSTAINED AS SUPPORTED BY THE CLEAR WEIGHT OF EVIDENCE, WHENT THE EMPLOYER HAS TERMINATED APPELLANT'S EMPLOYMENT BECAUSE OF THE SEVERE ECONOMIC DOWNFALL OF EMPLOYER'S ORGANIZATION, BUT THE PRETEXT OF BREACH OF PROCEDURE HAS BEEN ADVANCED AS THE GOVERNING REASON FOR APPELLANT'S DISCHARGE.

 

The appellant maintains that the evidence clearly shows that the appellant was terminated because of her employer's financial problems rather than claimant walking off the job. The appellant's contention lacks merit.

 

A determination of whether the claimant was discharged for "just cause" is a question of fact. Peyton v. Sun T.V. (1965), 44 Ohio App. 2d 10. The resolution of factual issues rests primarily within the province of the Board of Review. A reviewing court will not substitute its judgment for that of the Board with respect to factual findings if those findings are supported by competent, credible evidence. Brown-Brockmeyer Co. v. Roach (1947), 148 Ohio St. 511; Kilgore v. Board of Review, Bureau of Unemployment Compensation (1965), 2 Ohio App. 2d 69. The Board's finding that the appellant was terminated for walking off the job is supported by competent, credible evidence.

 

At the hearing, Karen Coates testified that the appellant left work without informing the proper personnel. She further testified that the appellant had been warned on a prior occasion, and that walking off the job was the reason for her termination. This constitutes competent credible evidence upon which the Board could make its determination.

 

The appellant's third assignment of error is hereby overruled.

 

V.

 

The trial court's judgment is affirmed.

 DISPOSITION
 

It is ordered that appellees recover of appellant their costs herein taxed.
 

The Court finds there were reasonable grounds for this appeal.
 

It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution.
 

Affirmed.
 

OPINION FOOTNOTES

 

 

 
1 There was a dispute as to whether even the receptionist was notified of Shaffer's departure.

 

2 Absence is defined in Personnel Policy Number 7 as follows:

 

Absence is any period for which work is missed in excess of four (4) hours during any scheduled work day. Any absence of three (3) or more consecutive days must be substantiated by a note from the employee's physician certifying both [sic] nature and dates of disability.

 

3 The appellant suggests that the policy providing for the termination of an employee who walks off the job is disproportionate to the discipline provided for an employee who is absent, and thus the policy is unfair. This court has not and will not second guess the propriety of an employer's entire disciplinary scheme. Such a scheme is within the discretion of the employer. Our only concern is whether the particular policy under which an employee was terminated is fair.