CONNIE K. DURGAN,
Appellee
vs.
OHIO BUREAU OF EMPLOYMENT SERVICES,
Appellant
C.A. NO. 95CA006160
COURT OF APPEALS OF OHIO, NINTH APPELLATE DISTRICT,
LORAIN COUNTY
110 Ohio App.3d 545, 674 N.E.2d 1208, 1996 Ohio App.
LEXIS 1658
April 24, 1996, Dated
APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT. COUNTY OF
LORAIN, OHIO. CASE NO. 94 CV 112730.
COUNSEL
APPEARANCES:
RICHARD SCHWARTZ, Attorney at Law, 382 Broad St., Elyria, OH 44035
for Appellee.
BETTY D. MONTGOMERY, Attorney General and CHERI WESTERBURG, Asst.
Attorney General, State Office Bldg., 615 W. Superior Ave.,
Cleveland, OH 44113 for Appellant. BOARD OF REVIEW, 145 S. Front
St., Columbus, OH 43216. RCT NETWORKS SERVICES, 1122 E St., Lorain,
OH 44052. RCT NETWORKS SERVICES, c/o Frank Gates Services,
Columbus, OH 43216.
JUDGES
LYNN C. SLABY, QUILLIN, P. J., DICKINSON, J., CONCUR
AUTHOR: SLABY
OPINION
{*548} DECISION AND JOURNAL ENTRY
Dated: April 24, 1996
This cause was heard upon the record in the trial court. Each error
assigned has been reviewed and the following disposition is
made:
SLABY, Judge.
The Ohio Bureau of Employment Services ("OBES") appeals from the
Lorain County Court of Common Pleas' judgment that reversed the
State of Ohio Unemployment Compensation Board of Review's (the
"Board") order disallowing Connie Durgan's claim for unemployment
benefits. We reverse and enter judgment for OBES.
Durgan was employed with RCT Networks Services, Inc. ("RCT") from
September 1972 to May 1993 when she was discharged for chronic and
excessive absenteeism. RCT had a "no fault" absenteeism policy in
which it reviewed the records of employees with absenteeism rates
higher than three to four percent, the average rate for their
employees, and counselled those employees whose absenteeism
appeared "chronic." RCT included all absences, including those
medically excused, in its computation of the rate. RCT considered
the frequency and duration of the absences, as well as the reasons
for them, when determining whether to counsel a chronic offender.
Counselling involved meetings between the employee and management
personnel in which the problem would be discussed.
Beginning in September of 1990, or earlier, RCT counselled Durgan
about her absenteeism rate, which for the year 1990 was sixteen
percent. Her attendance did not improve over the next year and in
October of 1991, RCT again advised her to improve her attendance.
In February of 1992, another meeting was held and Durgan was
demoted, without salary change, to a lower level position for which
temporary replacement could be found, so that her absences would be
less disruptive for the company. In 1992, Durgan's absenteeism rate
escalated to forty-three percent. Subsequent meetings were held in
July 1992 and December 1992 in which she was warned that her
absenteeism threatened her job. Throughout these meetings, RCT did
not dispute that Durgan had been ill and that her illness likely
accounted for her absences. Between December 16, 1992, and May 7,
1993, Durgan was absent for forty-nine days. On May 10, 1993,
having just returned from an extended absence, Durgan was
discharged.
Durgan applied for and was initially granted unemployment
compensation. Upon reconsideration, however, the administrator,
finding that RCT discharged Durgan for just cause, reversed his
initial determination and suspended compensation. Durgan appealed
to the Board. At the hearing before the Board, an RCT witness
testified that, although RCT did not question the reasons for the
absences, it required a doctor's substantiation of medical excuses.
Durgan also {*549} agreed to knowing that she was suppose to
provide documentation for her absences; she testified that she had
complied with the documentation requirement, but that she did not
bring all the documents with her to the hearing. Noting that Durgan
could substantiate medical excuses for only twenty-seven out of
forty-nine absences in 1993 and questioning her credibility, the
Board affirmed the administrator's reconsideration decision.
After an application to institute further appeal was denied by the
Board, Durgan appealed to the Lorain County Court of Common Pleas.
The court, finding that Durgan's absences "were directly related to
her illness," reversed the decision of the Board and entered
judgment for Durgan. OBES now appeals from that judgment; it
assigns one error to the proceedings below.
Assignment of Error
"The common pleas court abused its discretion in finding that
[Durgan] was terminated without just cause and in reversing the
decision of the Board *** ."
OBES subdivides its argument into three separate claimed errors,
all of which relate to the trial court's application of its
standard of review in appeals from unemployment compensation
decisions of the Board. OBES claims that the trial court (1)
"exceeded its jurisdiction" by "reevaluating evidence" and "making
a factual determination"; (2) misapplied unemployment compensation
law regarding medically excused absences; and (3) misapplied the
standard of review found in R.C. 4141.28(O) by reversing the
Board's decision, which was "reasonable, lawful and supported by
competent credible evidence." We address these arguments
simultaneously.
R.C. 4141.29(D)(2)(a) prohibits the payment of unemployment
compensation if the employee "has been discharged for just cause in
connection with his work." "'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.'" (Emphasis added.)
Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Serv. (1995), 73
Ohio St.3d 694, 697, 653 N.E.2d 1207, quoting Irvine v. State,
Unemployment Comp. Bd. of Rev. (1985), 19 Ohio St.3d 15, 17, 482
N.E.2d 587. It is important to distinguish between just cause for
discharge in the context of unemployment compensation and in other
contexts. An employer may justifiably discharge an employee without
incurring liability for wrongful discharge, but that same employee
may be entitled to unemployment compensation benefits. See Adams v.
Harding Machine Co. (1989), 56 Ohio App.3d 150, 155, 565 N.E.2d
858. This is so because just cause, under the Unemployment
Compensation Act, is predicated upon employee fault. Tzangas, 73
Ohio St.3d at 698; Adams, 56 Ohio App.3d at 155. We are, therefore,
unconcerned with the motivation or correctness of the decision to
discharge. Friedman v. Physicians and Surgeons Ambulance Serv.
(Jan. 6, 1982), Summit App. No. 10287, unreported at 6. The Act
protects those {*550} employees who cannot control the situation
that leads to their separation from employment. See Tzangas, 73
Ohio St.3d at 697. Consistent with that purpose, it has been held
repeatedly that absenteeism, or inability to work, caused by a bona
fide illness or injury is not just cause for termination of an
employee. See, e.g., Schultz v. Herman's Furniture, Inc. (1976), 52
Ohio App.2d 161, 162, 368 N.E.2d 1269; Pearson v. Ohio Bur. of Emp.
Serv. (1985), 21 Ohio App.3d 127, 129, 486 N.E.2d 1198; Springston
v. Ohio Bur. of Emp. Serv. (Jan. 5, 1983), Medina App. No. 1191,
unreported at 4.
Recently, courts have seen the advent of no fault absenteeism
policies similar to that used by RCT in this case. The no fault
system, in which an employer assesses absenteeism without regard to
its causes, empowers the worker with the freedom to control his
continued employment and also relieves the employer of having to
determine whether to excuse the absence. See Sutherlin v.
Interstate Brands Corp. (1992), 79 Ohio App.3d 635, 637, 607 N.E.2d
1076; Coleman v. Ohio Bur. of Emp. Serv. (Nov. 30, 1995), 1995 Ohio
App. LEXIS 5288, Cuyahoga App. No. 68853, unreported, 1995 WL
705269 at *2. The question arises, however, whether termination
pursuant to a no fault policy can be considered a discharge with
just cause for the purposes of unemployment compensation. We
believe that the case sub judice exemplifies one scenario where
that question may be answered in the affirmative. [FN1]
In Irvine, 19 Ohio St.3d at 18, 482 N.E.2d 587, the Ohio Supreme
Court unequivocally placed the burden of proof upon the employee to
prove his or her entitlement to unemployment compensation benefits
under R.C. 4141.29(D)(2)(a); accordingly, the burden of proof is
upon the employee to establish that she is entitled to unemployment
compensation benefits because she was discharged without just
cause. Where an employer fires an employee for excessive
absenteeism under a no fault policy, the employee may still be
entitled to compensation if she can establish that her absences
were the result of a bona fide illness. In this context, placement
of the burden of proof upon the employee is fair: (1) it is the
employee who has access to her own medical records and can obtain
physicians' statements; and (2) it promotes the purposes underlying
the no fault system. Thus, the employer may justifiably discharge
an employee out of economic necessity spurred by the excessive
absenteeism of the employee, regardless of the reasons underlying
the absences. See Tzangas, 73 Ohio St.3d at 697. Concurrently, the
employee who is truly "without employment through no fault or
agreement of his own" may still obtain financial assistance to help
him or her to maintain a decent standard of living. See Irvine,
{*551} 19 Ohio St.3d at 17, 482 N.E.2d 587, quoting Salzl v. Gibson
Greeting Cards (1980), 61 Ohio St.2d 35, 39, 399 N.E.2d 76.
In conjunction with the burden of proof, it is critical for a
reviewing court to apply the correct standard of review. Although
this court has previously stated that our examination of
unemployment compensation decisions is limited to whether the
common pleas court abused its discretion, that opinion must change
in light of the Ohio Supreme Court decision in Tzangas. The Court
clarified that there is no distinction between the scope of review
of common pleas and appellate courts regarding "just cause"
determinations under the unemployment compensation law. Tzangas, 73
Ohio St.3d at 696-97. Both courts "may reverse the Board's
determination only if it is unlawful, unreasonable, or against the
manifest weight of the evidence." 73 Ohio St.3d at 697; R.C.
4141.28(O)(1); see, also, Republic Engineered Steels, Inc. v.
Strege (1993), 84 Ohio App.3d 782, 786, 618 N.E.2d 252; Roadway
Express, Inc. v. Ohio Bur. of Emp. Serv. (1990), 68 Ohio App.3d
201, 207-08, 587 N.E.2d 949.
Moreover, the investigation into just cause is a factual inquiry.
Irvine, 19 Ohio St.3d at 17, 482 N.E.2d 587. Reviewing courts are
precluded from making factual findings or determining the
credibility of the witnesses in unemployment compensation
cases--that is the Board's function. 19 Ohio St.3d at 18, 482
N.E.2d 587. If there is evidence to support the Board's findings, a
reviewing court cannot substitute its own findings of fact for
those of the Board. Wilson v. Unemployment Comp. Bd. of Rev.
(1984), 14 Ohio App.3d 309, 310, 471 N.E.2d 168. Nevertheless, the
courts do have the "duty to determine whether the Board's decision
is supported by the evidence in the record." Tzangas, 73 Ohio St.3d
at 696.
Turning to the Board's decision in the instant case, we see that it
found the existence of just cause for Durgan's discharge based, in
part, upon her inability to substantiate her medical excuses and
her lack of credibility. To show entitlement to unemployment
compensation, Durgan had the burden to show that she was free from
fault in bringing about her termination. RCT's failure to question
her reasons for her absences because of its no fault absenteeism
policy did not relieve Durgan of that burden. Chronic and excessive
absenteeism is generally considered to be just cause for discharge
unless a bona fide illness excuses the absences. See, e.g., Metal
Powder Products, Inc. v. Ohio Bur. of Emp. Serv. (1990), 69 Ohio
App.3d 785, 788, 591 N.E.2d 1285.
Considering Durgan's burden of proof, we find that the Board's
conclusion that Durgan was discharged for just cause was neither
unlawful, unreasonable, nor against the manifest weight of the
evidence. Durgan was unable to provide {*552} substantiation of
medical excuses for nearly one-half of her forty-nine absences in
the first five months of 1993 alone. Although she testified that
she was ill on all of these days, the Board was free to disbelieve
her testimony. We, as a reviewing court, must defer to the Board's
credibility determination. In the absence of proof of a bona fide
illness, the evidence of Durgan's excessive absenteeism was
sufficient to support the Board's finding of just cause for her
discharge.
The trial court did not agree with the Board. The court
stated:
"Having carefully considered the evidence presented, the arguments
of counsel and the applicable law, the Court finds that the
absences of appellant were directly related to her illness, which
cannot be a basis for a discharge for just cause. *** The Court
finds that the decision of the Board of Review was unreasonable and
against the manifest weight of the evidence, and the Board is
reversed, and the Court finds appellant was not terminated for just
cause. *** "
The court erred. Disagreement over findings of fact does not
support reversal of the Board's decision. Irvine, 19 Ohio St.3d at
18, 482 N.E.2d 587. The court went outside the boundaries of the
proper scope of review by not deferring to the Board's factual
conclusions and by substituting its own findings; accordingly,
Appellant's assignment of error is well-taken.
Durgan has proposed three assignments of error to be addressed in
the event we desire to reverse the trial court's decision. Loc.R.
13 of the Ninth District Court of Appeals provides that an
appellate brief "shall not exceed thirty (30) pages, exclusive of
the appendix, summary of argument, and index." Durgan's brief,
under that rule, is exactly thirty pages. Durgan attempts, however,
to argue the majority of its cross-assignments of error by
incorporating pages of a brief filed in the court below. Durgan did
not move this court for additional pages. We will not countenance
circumvention of the appellate rules through incorporation by
reference of additional argument into a brief; therefore, we
address only the few points actually argued by Durgan in the text
of her brief. See App.R. 12(A)(2).
Cross-Assignment of Error I
"The employer failed to follow the established, progressive
discipline procedure in the discharge of [Durgan]."
Durgan argues that the Board erroneously found that "written
warnings were reduced to writing" pursuant to an attendance and
disciplinary policy that was adopted by RCT and which required a
warning slip to be issued if more than ten days per year were
missed. Contrary to Durgan's contention, the Board did not so find;
the quote was taken from the statement that "the company *** {*553}
contends that claimant was warned by management about her
attendance at work and these warnings were reduced to writing."
This is not a finding of fact; it is merely a restatement of an
argument.
Even if this were a finding of fact, it would not necessarily be
erroneous. The evidence was undisputed that Durgan repeatedly met
with management and was orally warned that she could be terminated
because of her poor attendance. The discussions held in these
meetings, including the fact of warning, were reduced to writing in
memoranda that were introduced into evidence at the hearing. These
memoranda confirmed that, even if a written warning did not issue,
Durgan knew that she could be terminated if her attendance did not
improve. A finding that RCT had not issued a warning slip under
these circumstances would not have impacted upon the ultimate
decision.
Durgan's first cross-assignment of error is overruled.
Cross-Assignment of Error II
"[Durgan] was denied a fair hearing and due process of law, by the
denial of the right to raise objections at the hearing; issue
switching at hearing; and excessive leading of the employer's
witness."
Durgan complains that the hearing officer did not allow her to
interpose any objections to testimony at the hearing. Durgan has
not identified in her brief what objections would have been made;
therefore, we are unable to determine whether any prejudice
resulted to her as a result of the claimed error. To constitute
reversible error, it is necessary that the error affects the
substantial rights of the complainant. Civ.R. 61. Prejudice has not
been shown in this case.
The second cross-assignment of error is overruled.
Cross-Assignment of Error III
"[Durgan] would be entitled to benefits had she voluntarily quit on
the same grounds used by the employer as the basis for her
discharge."
Durgan has not set forth in her brief any argument supporting this
cross-assignment of error; accordingly, we do not address it.
Durgan's third cross-assignment of error is overruled.
The judgment of the trial court is reversed and judgment is entered
in favor of Appellant, OBES.
Judgment reversed.
The Court finds that there were reasonable grounds for this
appeal.
We order that a special mandate issue out of this court, directing
the County of Lorain Common Pleas Court to carry this judgment into
execution. A certified copy of this journal entry shall constitute
the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute
the journal entry of judgment, and it shall be file stamped by the
Clerk of the Court of Appeals at which time the period for review
shall begin to run. App.R. 22(E).
Costs taxed to appellee.
Exceptions.
LYNN C. SLABY
FOR THE COURT
QUILLIN, P. J.
DICKINSON, J.
CONCUR
DISPOSITION
Judgment reversed.
OPINION FOOTNOTES
1 Other courts have also found just cause to exist where there has
been a violation of similar company attendance rules. See, e.g.,
Sutherlin, 79 Ohio App.3d at 637; Coleman, 1995 WL 705269 at
*3.