AMERICAN SICKLE CELL ANEMIA
ASSOCIATION, ET AL.,
COURT OF APPEALS, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY,
June 12, 1986
Civil appeal from Common Pleas Court
Case No. 083,794
For Plaintiff-Appellant: Stephen G. Thomas, Esq. Thomas, Boles
& Fitzpatrick, 36 South Franklin Street, Chagrin Falls, Ohio
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
ANN McMANAMON, J., KRUPANSKY, J., CONCUR
JOURNAL ENTRY AND OPINION
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.
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
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
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
PERSONNEL POLICY NO. 8
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.
* * *
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
B. Tardiness and Absenteeism.
C. Improper use of American Sickle Cell Anemia Association's
D. Willful violation of minor safety, security, fire, traffic or
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
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
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
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
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
The appellant's first assignment of error is overruled.
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
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,
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
The trial court's judgment is affirmed.
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.
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
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
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.