PRATT,
APPELLANT,
vs.
KIRBY COMPANY ET AL.,
APPELLEES
No. 47720
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA
COUNTY
482 N.E.2d 1318, 19 Ohio App. 3d 188, 19 Ohio B. Rep. 296
July 16, 1984, Decided
HEADNOTE
Unemployment compensation -- Refusal of an offer of
suitable work "without just cause" -- R.C. 4141.29(D)(2) (b), (E)
and (F) -- Sex discrimination.
SYLLABUS
Where, in a claim for unemployment benefits, the claimant states
that, while on layoff status, she refused an offer of suitable work
from her employer, in part, because she would have been recalled to
a better job, but for the employer's alleged sex discrimination,
and where the manifest evidence demonstrates that the proffered job
had the same pay, hours and location, that she was physically able
to do the work, that, had claimant returned to her job, she would
have been entitled to assert her seniority and "bump" into a more
desirable job, and that, by remaining on the job, she would not
have been precluded from pursuing other remedies for discrimination
while continuing to receive the same remuneration at the same
location, then the claimant has failed to prove that she refused an
offer of suitable work "with good cause." (R.C. 4141.29[D][2][b],
[E] and [F], applied.)
COUNSEL
Tricarichi, Carnes, Kube & Weinberger
and Peter H. Weinberger, for appellant.
David R. Cook, Anthony J. Celebrezze, Jr.,
attorney general, and Q. Albert Corsi, for
appellees.
JUDGES
NAHRA, J. CORRIGAN, C.J., concurs. JACKSON, J., dissents.
AUTHOR: NAHRA
OPINION
{*189} Margaret M. Pratt (claimant) was employed by the
Kirby Company from April 20, 1966 to December 1, 1980. Claimant was
laid off from her job as a parts coordinator> in October 1980.
On December 1, 1980, Kirby Company offered claimant an assembly
line job, which she refused. She was then dismissed.
Claimant filed for unemployment benefits on December 3, 1980.
The Administrator of the Bureau of Employment Services found that
claimant had refused an offer of suitable work, and disallowed her
claim for benefits. Claimant appealed this decision to the Board of
Review, Bureau of Employment Services. A referee of the Board of
Review conducted a hearing, and, subsequently, affirmed the
administrator's decision. Claimant then filed an application to
institute a further appeal which was denied by the Board of Review
on August 20, 1981.
Claimant's appeal to the court of common pleas was dismissed on
October 11, 1983. Claimant timely appealed.
The sole assignment of error is that:
"The Board of Review's decision that appellant Margaret Pratt
was not entitled to unemployment compensation benefits on the basis
that she refused suitable work was against the weight of the
evidence."
Claimant specifically maintains that the offer of work was
unsuitable because: the work would have been detrimental to her
health; she would have been physically incapable of doing the
proffered work; and, but for discrimination by the employer, she
would have been offered a "better" job.
Claimant was denied benefits for the entire period of her
unemployment pursuant to R.C. 4141.29(D)(2)(b), which provides in
the pertinent sections:
"(D) Notwithstanding division (A) of this section, no individual
may serve a waiting period or be paid benefits under the following
conditions:
"* * *
"(2) For the duration of his unemployment if the administrator
finds that:
"* * *
"(b) He has refused without good cause to accept an offer of
suitable work when made by an employer either in person or to his
last known address * * *."
Claimant maintains that in light of her unrebutted testimony the
administrator was required to find for her pursuant to R.C.
4141.29(E) and (F), which provided (see Am. Sub. S. B. No. 160,
eff. Oct. 31, 1980, 113th General Assembly) in relevant part:
"(E) No individual otherwise qualified to receive benefits shall
lose the right to benefits by reason of a refusal to accept new
work if:
"* * *
"(4) The remuneration, hours, or other conditions of the work
offered are substantially less favorable to the individual than
those prevailing for similar work in the locality.
"(F) In determining whether any work is suitable for a
claimant> in the administration of sections 4141.01 to 4141.46
of the Revised Code, the administrator shall, in addition to the
{*190} determination required under division (E) of this
section, consider the degree of risk to the claimant's health,
safety, and morals, his physical fitness for the work, his prior
training and experience, the length of his unemployment, the
distance of the available work from his residence, and his
prospects for obtaining local work."
The statute requires two separate determinations to be made in
order to deny the claim: first, that the claimant has refused
suitable work; and, second, that the refusal was without good
cause. Although, the inquiries are obviously interrelated, separate
tests have developed for each inquiry. Claimant's appeal presents
both issues.
The claims that the proffered work presented a health hazard and
that claimant was unable to do the work go to the issue of
unsuitability. The discrimination claim is examined under the just
cause analysis.
The Supreme Court has held that "[w]hether work is 'suitable
work' * * *, will ordinarily be a question of fact for
determination by the trier of the facts. * * *"
Pennington v.
. Dudley (1967), 10 Ohio St.
2d 90, 94-95 [39 O.O.2d 94]. The court should only disturb this
trier-determination if it finds as a matter of law the work is
"unsuitable." Id. at 95.
We are unable to conclude that the work was unsuitable as a
matter of law, where the evidence introduced at the hearing
demonstrated that the claimant would have been continued at
approximately her current hourly wage of $ 7.22 while at the same
plant, and that she would have continued to work the same number of
hours.
The finding of the referee that the proffered job was not a
threat to claimant's health is supported by the manifest weight of
the evidence. Claimant testified that the proffered job was dirty.
A co-worker also testified that when performing at least one of the
jobs in the department, the employee is required to wear a mask.
However, claimant further testified:
"The polishing job is a very dirty job. They have to wear masks
in there and it's detrimental to the health, and of course, you
have to have great strength to be able to polish. Now the bench,
the filing bench [the proffered job] itself, I really don't
know anything about it. I just know it's connected with
that department." (Emphasis added.)
The only information in the record about a health risk was the
claimant's testimony that the job was dirty. In the absence of any
testimony showing that the precautions taken by the employer were
inadequate, the referee's decision is supported by the manifest
weight of the evidence.
The evidence also fails to demonstrate that claimant was
physically unable to do the proffered work. The only testimony
about claimant's capacity to do the work was that, although
claimant had never performed this specific job, she would have
received adequate training. This claim is without merit.
The claimant's final allegation is that she would have been
recalled to a better job, but for the employer's sex
discrimination.> This claim presents the issue whether she
declined the work "with good cause." The test for good or just
cause under R.C. 4141.29 was set out in Peyton v.
. Sun T.V. (1975), 44 Ohio App. 2d 10 [73 O.O.2d
8]. The court stated:
"* * * There is, of course, not a slide-rule definition of just
cause. Essentially, each case must be considered upon its
particular merits. 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. * * *"
Id. at 12.
We cannot agree that the manifest weight of the evidence
demonstrates that claimant, as an ordinarily intelligent person,
was justified in declining {*191} the work. The evidence
demonstrated that the proffered job had the same pay, hours, and
location. The claimant was physically able to do the work.
Additionally, if the claimant had returned to her job, she would
have been entitled to assert her seniority and "bump" into a more
desirable job. By remaining on the job, she would not have been
precluded from pursuing other remedies for discrimination while
continuing to receive the same remuneration at the same
location.
The judgment is affirmed.
Judgment affirmed.
DISPOSITION
Judgment
affirmed.
DISSENT
JACKSON, J., dissenting.
Respectfully, I dissent.
Margaret Pratt was laid off in October 1980 from her job as
parts coordinator with the Kirby Company, a vacuum cleaner
manufacturer. In December 1980 she was recalled to work at the
filing bench in the polishing area. She refused this offer of
employment, and, on the basis of this refusal, she was denied
unemployment compensation.
The substantive issue in this case is whether the appellant
unjustifiably refused "suitable work" within the meaning of R.C.
4141.29(D)(2)(b), the relevant portion of which provides:
"(D) * * * [N]o individual may * * * be paid benefits under the
following conditions:
"* * *
"(b) He has refused without good cause to accept an offer of
suitable work when made by an employer either in person or to his
last known address, or has refused or failed to investigate a
referral to suitable work when directed to do so by a local
employment office of this state or another state; provided, that
this division shall not cause a disqualification for a waiting week
or benefits under the following circumstances:
"(i) When work is offered by his employer and he is not required
to accept the offer pursuant to the terms of the labor-management
contract or agreement, or pursuant to an established
employer plan, program, or policy * * *." (Emphasis
added.)
The procedural context of this case is that it is on appeal from
a decision of the court of common pleas, affirming the decision of
the Bureau of Employment Services, denying appellant's claim for
benefits. The statutory standard of review is that the
administrative decision shall be affirmed unless it is "unlawful,
unreasonable, or against the manifest weight of the evidence." R.C.
4141.28(O).
The appellant testified that there were three reasons why she
refused work in the polishing department. First, because a "rough
breed of men" worked there, and she would be the only woman.
Second, the job is noisy, and dirty to the extent that workers in
the polishing department are required to wear a mask. Third,
because three men with four to eleven years less
seniority than she1 were recalled and were given jobs of higher
classification than the job she was offered. She was very precise
in her testimony.2 She named the men, stated their starting dates
with the company from a seniority list, and identified the jobs
they were offered. She testified also that this was in violation of
company policy set forth in their rule book and a memorandum sheet
distributed by her employer.
The appellee, the Kirby Company, offered no evidence on its
behalf.
Two issues are presented by these {*192} facts. First,
was appellant offered "suitable work," within the meaning of R.C.
4141.29(D)(2)(b). The second is whether appellant was not required
to accept this offer pursuant to the employer's "policy," as
provided in R.C. 4141.29(D)(2)(b)(i).
The appellant bears the burden of proving that she is entitled
to benefits. Shannon v. . Bur. of
Unemployment Comp. (1951), 155 Ohio St. 53 [44 O.O. 75],
paragraph one of the syllabus; Kontner v.
. Bd. of Review (1947), 148 Ohio St. 614, 622 [36
O.O. 241]. However, there is no provision of law requiring the
claimant to prove her case by "clear and convincing evidence." The
decision appealed from imposed this higher burden upon the
appellant.3 For this reason the administrative decision ought at a
minimum to be reversed, and the cause remanded for a determination
in accordance with the proper standard of proof, on the issue of
the "suitability" of the offered work.
However, I would not merely remand, but reverse and enter
judgment for appellant, on the second issue presented by the facts.
It was uncontested that the employer failed to follow its own
seniority rules in offering higher classification jobs to men with
less tenure. Whether this was an act of sex discrimination it is
unnecessary for us to determine, because it was clearly a violation
of company policy, and, pursuant to R.C. 4141.29(D)(2)(b)(i),
appellant was justified in refusing the offer of employment.
This result is not only required by the plain wording of Ohio
law, but under the circumstances of this case, justice demands
it.
Appendix "A"
Appellant's testimony in relation to the seniority issue was as
follows:
"Q. Now at the time that you were, or at the time that you had
the discussion with reference to your recall, with Mr. Pamer, did
you know of any jobs or did you request any jobs in, that were of a
higher classification to which you felt you were entitled?
"A. Yes. I knew of the fact that the other gentleman, Steve
Pohorence (phonetic) who was laid off the same period that (Referee
interrupts).
"THE REFEREE: How do you spell his name for the record?
"MR. WEINBERGER: The uh, spelling is Pohorence,
P-O-H-O-R-E-N-C-E, Steven, and we happen to have the seniority list
here and his seniority day was April 1, 1977.
"BY MR. WEINBERGER:
"Q. Anyway, proceed and tell us what job he had been assigned
upon recall.
"MISS PRATT:
"A. Okay. Upon recall he was given back the exact job that he
was laid off from, which was an A-classification, the same
classification I had, and it was, originally had started out in the
service department, which the company then put it down into
inspection, but basically what it broke down to was opening up old
vacuum cleaners and determining, taking the new parts and
determining what parts were covered under warranty and what parts
weren't covered under warranty and so forth, but it was a job that
I had worked prior to Steve getting the job.
"Q. Well was it a job of higher classification than that of the
polishing department?
{*193} "A. Yeah. Well, yes. It was not only higher, but
it also was a job that paid a few cents more than I was actually
making at the time, as a parts coordinator.
"Q. Okay. Now you've also, uh, there was a gentleman by the name
of Jose, was there not, who was called back to a position that was
of a higher classification?
"A. Yes. There were two jobs in the machine shop. Again, with,
it was a better classification job. It would've been in the same
pay area, pay scale that I was on.
"A. Are you talking about Jose Torres?
"A. Yes.
"MR. WEINBERGER: Okay. That's spelled T-O-R-R-E-S.
"BY MR. WEINBERGER:
"Q. And his seniority date was April 22, 1970. Is that
right?
"MISS PRATT:
"A. I, I believe that's the gentleman. We have so many
Joses.
"MR. WEINBERGER: Vasquez.
"MISS PRATT:
"I think it is. I think it is Jose out there.
"BY MR. WEINBERGER:
"Q. Well in any event this gentleman by the name of Jose was
assigned to what job classification?
"MISS PRATT:
"A. He was assigned in the machine shop to an A-classification
job.
"Q. And is that a job of a higher class than that to which you
were assigned in the polishing department?
"A. Yes. It's (Mr. Weinberger interrupts).
"Q. Now, I think you've also previously told me that a gentleman
by the name of Ray --
"A. Yeah, Stepsicker (Mr. Weinberger interrupts).
"Q. Let's see if we can find on this. This gentleman, who you've
been talking about by the name of Ray, is Raymond Fristik,
F-R-I-S-T-I-K, with a seniority date of September 30, 1970. Is that
correct?
"A. Yes, sir.
"Q. Okay. And what job classification was he assigned upon
recall?
"A. He was placed into the main, machine shop, again an
A-classification.
"Q. Is there any -- there was a bumping system as a result of a
company policy prior to these layoffs. Is that right?
"A. Yes, sir.
"Q. Now is there any reason why you couldn't bump into these
jobs that these gentlemen were assigned to upon recall in December
of 1980?
"A. Uh, they, they didn't allow it. They didn't offer it. I
should've by rights I should've been offered that privilege, but
they didn't offer it."
DISSENT FOOTNOTES
1 Appellant was hired by appellee company April 20, 1966.
2 See Appendix "A."
3 The administrator held, in relevant part:
"No clear and convincing evidence has been introduced by the
claimant to establish that this offer of employment, made by The
Kirby Company, would have been detrimental to the claimant's
health, safety or morals."