[Cite as Underhill v. Unemp. Comp. Rev. Comm., 2011-Ohio-1598.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Robert S. Underhill,
:
Appellant-Appellant,
:
No. 10AP-617
v.
:
(C.P.C. No. 09CVF08-12787)
Unemployment Compensation Review
Commission et al.,
:
(REGULAR CALENDAR)
:
Appellees-Appellees.
:
D E C I S I O N
Rendered on March 31, 2011
Robert S. Underhill, pro se.
Michael DeWine, Attorney General, and Patria V. Hoskins, for
appellee.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶1}
Appellant, Robert S. Underhill, has filed an appeal from a judgment of the
Franklin County Court of Common Pleas, in which the court affirmed the decision of the
Unemployment Compensation Review Commission ("commission"), appellee.
{¶2}
Appellant is hearing impaired in both ears. He was employed by Sears &
Roebuck Co. ("Sears"), at its Great Indoors store at the Polaris Mall in Columbus, Ohio.
His employment commenced in June 2002. On November 16, 2008, appellant engaged
in an argument with another employee, Michael Fearnow. The argument regarded the
No. 10AP-617
2
use of a certain cart, as well as appellant's belief that Fearnow had been making
derogatory comments about him based upon his hearing impairment. Ryan Mason, a loss
prevention supervisor, heard the argument and discussed the incident with appellant.
Appellant's direct supervisor, Jane Edwards, was on medical leave at the time. Appellant
was unhappy with Mason's handling of the situation and told Mason he was leaving.
Mason told appellant that he needed management approval in order to leave work prior to
the end of his work shift. Appellant told Mason he was not merely leaving but quitting.
Appellant gathered personal items from his desk and locker, placed them in a box, and
left the premises. Appellant was scheduled to work the following day, but he did not report
to work and did not call off. He did apparently speak with someone at The Great Indoors
on November 17, 2008, and a meeting was scheduled for the following day,
November 18, 2008. At the meeting, Sears contended it terminated appellant as of
November 17, 2008, due to his quitting his job and failing to report for work.
{¶3}
On November 18, 2008, appellant filed for unemployment compensation
benefits with the Ohio Department of Job and Family Services ("ODJFS"), appellee, and
benefits were allowed on the basis that appellant had been discharged without just cause.
Sears appealed, and ODJFS affirmed the initial determination on February 3, 2009. Sears
appealed again, and the matter was referred to the commission for a hearing. After a
hearing on May 18, 2009, the commission hearing officer reversed ODJFS's
determination and found appellant had been discharged for just cause; thus, appellant
was denied unemployment compensation benefits. The commission denied appellant's
request for further review on August 5, 2009.
No. 10AP-617
{¶4}
3
Appellant appealed the commission's decision to the common pleas court
on August 24, 2009. On June 11, 2010, the common pleas court affirmed the
commission's decision. Appellant has appealed the judgment of the trial court. However,
appellant, who is pro se, has not filed assignments of error. Instead, appellant lists
numerous statements and/or findings from the court's decision and presents arguments
as to why he believes those statements and/or findings were in error. We will construe
each of these statements and/or findings as assignments of error and address them
accordingly. Appellant asserts the following assignments of error:
[I.] "That absence does not mean that the hearing officer did
not consider them in formulating his decision."
[II.] "Appellant has offered that Sears did not follow its policy
on unexcused absence [sic]. Upon full review of the hearing,
the Court find [sic] no offer of such policy[.]"
[III.] "Although Appellant was scheduled to work the next day,
he failed to report. Appellant did contact the company the
following day[.]"
[IV.] The Judge's remark in paragraph #3 on Pg 6.
[V.] As to applicable case precedent, the Court will start with
the foundation that an employer has a right to expect an
employee to remain in the workplace, et all [sic].
[VI.] "A number of cases have determined that unauthorized
departure from an employer's premises[.]"
[VII.] "Under normal circumstances, 'employees who
experience problems in their working conditions must make
reasonable efforts to attempt to solve the problem before
leaving their employment.' et al[.]"
{¶5}
In all of appellant's assignments of error, appellant contests the trial court's
affirmance of the commission's decision. The scope of our review in unemployment
No. 10AP-617
4
compensation appeals is quite limited. Silkert v. Ohio Dept. of Job & Family Servs., 184
Ohio App.3d 78, 2009-Ohio-4399, ¶26, citing Giles v. F & P Am. Mfg., Inc., 2d Dist. No.
2004-CA-36, 2005-Ohio-4833, ¶13. "All reviewing courts, including common pleas, courts
of appeal, and the Supreme Court of Ohio, have the same review power and cannot
make factual findings or determine witness credibility. * * * However, these courts 'do
have the duty to determine whether the board's decision is supported by the evidence in
the record.' " Silkert at ¶26, quoting Tzangas, Plakas & Mannos v. Ohio Bur. of Emp.
Servs. (1995), 73 Ohio St.3d 694, 696.
{¶6}
Pursuant to R.C. 4141.29, which establishes the requirements for eligibility
for unemployment benefits, a claimant is not eligible for benefits if he is discharged for
"just cause." R.C. 4141.29(D)(2)(a). An appellate court may reverse the commission's
"just cause" determination only if it is unlawful, unreasonable, or against the manifest
weight of the evidence. Tzangas at paragraph one of the syllabus. "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." Irvine v. Unemployment Comp.
Bd. of Rev. (1985), 19 Ohio St.3d 15, 17.
{¶7}
"Each unemployment compensation case must be considered upon its
particular merits in determining whether there was just cause for discharge." Johnson v.
Edgewood City School Dist. Bd. of Edn., 12th Dist. No. CA2008-11-278, 2010-Ohio-3135,
¶14, citing Warrensville Heights v. Jennings (1991), 58 Ohio St.3d 206, 207. The
discharged employee bears the burden of persuasion to prove that he is entitled to
unemployment compensation. Silkert at ¶36.
No. 10AP-617
{¶8}
5
The Unemployment Compensation 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. * * * The Act
does not exist to protect employees from themselves, but to protect them from economic
forces over which they have no control. 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.
Thus, fault is essential to the unique chemistry of a just cause termination." Tzangas at
697-98. Nevertheless, the unemployment compensation statutes must be liberally
construed in favor of awarding benefits to the applicant. Clark Cty. Bd. of Mental
Retardation & Dev. Disabilities v. Griffin, 2d Dist. No. 2006-CA-32, 2007-Ohio-1674, ¶10,
citing R.C. 4141.46; Ashwell v. Dir., Ohio Dept. of Job & Family Servs., 2d Dist. No.
20552, 2005-Ohio-1928, ¶43.
{¶9}
In appellant's assignments of error, he takes issue with several findings by
the trial court, which we will address in turn. Appellant states in his first assignment of
error that the trial court erred when it found that the commission's failure to mention
appellant's documentary evidence of prior harassment in its decision did not mean that
the hearing officer did not consider them in formulating the decision. Appellant's actual
arguments under this assignment of error are that he does not feel like he was able to
adequately explain his case before the hearing officer; the hearing was restricted to the
point he was unable to present evidence at all; the interpreter was not competent and
made errors; and the hearing officer attempted to silence the interpreter. However,
appellant cites to no evidence to support these contentions. The record from the
No. 10AP-617
6
commission hearing shows no indication that the hearing was "too restricted," that the
interpreter made any errors, or that the hearing officer attempted to impact the
interpreter's job. Furthermore, if appellant desired to submit documentary evidence, he
was free to do so. Appellant's claim that he was unable to do so because of his
inexperience with the hearing procedure is not a proper ground for reversal. Therefore,
appellant's first assignment of error is overruled.
{¶10} In his second assignment of error, appellant takes issue with the trial court's
rejection of his argument that Sears did not follow its policy on unexcused absences
based upon its finding that there was no offer of such policy by appellant at the
commission hearing and no explanation as to how it would be applied to this case.
Appellant attaches to his appellate brief an alleged excerpt from Sears's attendance
policy. Appellant admits he did not present this evidence at the commission hearing and
only recently obtained it in July 2010. He also admits that the policy was revised in 2007
or 2008, but he does not have a revised version. Regardless, we cannot accept new
evidence at this stage of the proceedings and are unable to rely upon any evidence that is
not part of the record before us. It is a basic proposition of appellate review that we
cannot add matter to the record before us and decide this appeal based upon that new
matter. Barnett v. Ohio Adult Parole Auth. (1998), 81 Ohio St.3d 385, 387. For these
reasons, appellant's second assignment of error is overruled.
{¶11} In his third assignment of error, appellant takes issue with the trial court's
statement that, "[a]lthough Appellant was scheduled to work the next day, he failed to
report. Appellant did contact the company the following day and had a meeting with Ms.
Lasher and the store manager, Andy Komaromy." Appellant asserts he did, in fact, speak
No. 10AP-617
7
with Lasher at The Great Indoors on November 17, 2008, around noon, and they set up a
meeting for November 18, 2008. It is unclear whether the trial court's use of the phrase
"the following day" meant the day following "the next day," which would be November 18,
2008, or meant the day following the incident, which would have been November 17,
2008.
{¶12} In the record from ODJFS that was before the trial court, there are several
pieces of evidence that indicate appellant spoke to management at The Great Indoors on
November 17, 2008, and appellant testified at the commission hearing that he spoke with
Lasher at approximately noon on November 17, 2008. Thus, if the trial court meant that
appellant did not speak with anyone from The Great Indoors on November 17, 2008, the
court was incorrect.
{¶13} However, the pertinent question is whether the trial court's factual
statement, if in fact erroneous, was prejudicial and impacted its analysis. Appellant
presents no argument or explanation why this statement was prejudicial. The statement
was made during the factual summary of the case and was not referred to again in the
legal analysis. Therefore, we find that, even if the trial court's statement was incorrect, the
error was not prejudicial and did not affect the outcome of the case. For this reason,
appellant's third assignment of error is overruled.
{¶14} We will address appellant's arguments in his fourth, fifth, sixth, and seventh
assignments of error together, as the issues raised in each overlap. In his fourth
assignment of error, appellant takes issue with the trial court's interpretation of certain
statements appellant made in a June 8, 2009 letter to the commission. The statement
cited by the trial court was "in my anger, [I] inadvertently said to him that I'm quitting*
No. 10AP-617
8
ONLY TO GET HIM TO BACK OFF FROM ME." (Emphasis sic.) The trial court indicated
this statement was relevant because appellant has maintained that he never quit his job.
The trial court later concluded that the record contained substantial evidence to controvert
appellant's contention that he did not "quit." Appellant argues that the trial court took his
statement out of context; ignored the overall relevance of his compelling reasons to leave
the job for the day under duress and for his personal safety; ignored the word
"inadvertently"; and ignored the asterisk, which would have directed the court to a
footnote that said "Mr. Mason simply misinterpreted my 'quitting' statement because he
did not realize that he was in my personal space and I was already emotionally angry.
Hence I said that only to get him to back off from me."
{¶15} Initially, appellant does not contest that he told Mason he was quitting.
Several circumstances would support the inference that The Great Indoors could have
justifiably believed appellant had quit. Appellant actually stated he was quitting, he
packed some of his personal items from his desk and locker into a box, failed to report to
work the next day, and failed to call in to inform his supervisors he would not be working
that day. We find these actions indicative of a worker who has abandoned his
employment, and Sears was not unreasonable in interpreting them in such a way.
{¶16} Appellant asks this court to consider he was extremely upset, angry, and
under duress at the time of the incident; he was not in the best frame of mind; and he may
have unintentionally said some words in an inarticulate manner, as he is human and
prone to irrational actions or statements under duress. Insofar as appellant would like this
court to ignore his statement that he quit because he was angry, emotional, upset, under
duress, and inarticulate, we decline to do so. Although appellant claims his quitting was
No. 10AP-617
9
"inadvertent," it appears that his quitting was intentional, albeit caused by his heightened
emotional state at the time. In his brief, appellant states that he assumed he would "get
his job back" via negotiation later under a calmer setting, which is also indicative of the
fact that appellant meant he was quitting his job at the time he made the statement.
{¶17} Appellant also asserts under these assignments of error that the ongoing
harassment issues, the hostile environment, and management's failure to address them
were compelling enough to cause him to leave his shift for the day for personal safety
reasons. Whether an employee who is discharged for failing to comply with the schedule
has been discharged for "just cause" within the contemplation of R.C. 4141.29(D)(2)(a) is
a question of fact that depends on the totality of the circumstances. Schadek v. Admr.
Ohio Bur. of Emp. Servs. (June 15, 1990), 2d Dist. No. 11569. The law looks to the
degree and nature of the employee's "fault." Id., citing Angelkovski v. Buckeye Potato
Chip Co. (1983), 11 Ohio App.3d 159. The law also looks at the extent to which the
employee has exhibited a disregard of his employee's interests. Id., citing Sellers v. Bd. of
Rev. (1981), 1 Ohio App.3d 161. Unauthorized departure of the employer's premises and
abandonment of the work duties assigned may constitute "just cause" in the absence of a
compelling need demonstrated in the record. Id.
{¶18} However, an employee may quit for "just cause" and still be eligible for
unemployment benefits. The claimant has the burden of proving the existence of just
cause for quitting work. Irvine at 17. A reasonable fear for one's personal safety is a
proper reason for leaving employment. Village of Chesapeake v. Ellis (Nov. 24, 1993), 4th
Dist. No. 93 CA 3, citing Taylor v. Bd. of Rev. (1984), 20 Ohio App.3d 297. Just cause to
quit and be eligible for unemployment benefits has also been found where an employee
No. 10AP-617
10
has been subjected to verbal harassment. DiGiannantoni v. Wedgewater Animal Hosp.,
Inc. (1996), 109 Ohio App.3d 300. However, a mere perception by an employee that she
has been subject to harassment does not constitute just cause for quitting employment.
Biles v. Ohio Bur. of Emp. Servs. (1995), 107 Ohio App.3d 114, 122. A significant factor in
determining just cause to resign is the employee's fault in creating the situation that led to
resignation. Stapleton v. Ohio Dept. of Job & Family Servs., 163 Ohio App.3d 14, 2005Ohio-4473.
{¶19} Typically, an employee must first notify the employer of the problems prior
to quitting, or they risk a finding that they quit without just cause. DiGiannantoni at 307.
The purpose of notice is to give the employer an opportunity to solve the problem before
the employee quits. Id. However, notice to the employer alone is not sufficient to establish
just cause. Id. at 308. Merely notifying the employer of the problem, without giving the
employer the opportunity to correct the problem, does not accomplish this goal. See, e.g.,
Thake v. Unemployment Comp. Bd. of Rev. (1990), 67 Ohio App.3d 503 (holding that,
despite employee's initial notification to her employer of a health problem, employee did
not possess just cause when she quit without informing the employer that its
accommodations proved to be insufficient).
{¶20} In contrast, where an employee's initial complaints do not prompt the
employer to change her working conditions, the employee may be relieved of her duty to
further pursue internal remedies. Krawczyszyn v. Ohio Bur. of Emp. Servs. (1989), 54
Ohio App.3d 35, 37. Likewise, "an employee need not indefinitely subject herself to
abusive conduct while waiting for her employer to respond." Id. Thus, although
employees must make reasonable efforts to solve a problem before quitting, an employee
No. 10AP-617
11
with a reasonable fear for his personal safety cannot be expected to remain on the job
until an actual physical assault takes place. Taylor at 299.
{¶21} In the present case, appellant argues that he gave notices to his
supervisors and management several times, verbally, and in writing, about the problems
of harassment and hostile work environment toward him during his years of employment,
but the behavior and problems persisted, forcing him to leave his workplace on the day in
question. At the hearing, Ryan Mason, loss prevention supervisor for The Great Indoors,
testified that, after the incident, appellant came into his office and said he had had several
problems with Fearnow in the past. Mason told appellant that he would follow up with any
issues he had with Fearnow, but appellant did not like that response and returned to his
work area. Appellant never elaborated on his past issues with Fearnow, and Mason was
not aware that there had been other issues between appellant and Fearnow. After several
minutes, Mason went to appellant's work area to see if he had calmed down, and
appellant was packing his personal items into a box. Mason told appellant that he would
need manager's approval to leave for the day, and appellant told him he was quitting.
Appellant then left work.
{¶22} Julie Lasher, operations manager for Sears, testified she was unaware of
any problems between appellant and Fearnow, and appellant's direct supervisor had
never informed her of any past problems.
{¶23} Appellant testified he had been having problems with Fearnow since
Fearnow was hired in 2007. Fearnow would talk behind his back and make negative
remarks about him, while taking advantage of appellant's deafness. He testified that he
asked his supervisor, Jane Edwards, to talk to Fearnow about the problems. He also told
No. 10AP-617
12
his boss, Jacob Goragimer, five or more times in one year about the problem, but
appellant did not think Goragimer ever reported anything. Appellant also told another
supervisor, Danny Reed, about his problem with Fearnow, and Fearnow's behavior
changed for a short time. He also reported his problems with Fearnow to Shanna
Christian in the human resources department around early 2008. Christian said she
would talk to appellant's supervisor, but Fearnow's behavior did not change. When
Fearnow's behavior continued, appellant reported the problem to Edwards in May 2008,
and last reported them to her in October 2008. He admitted he had no documentation
about his conversations with management regarding Fearnow before the incident in
question.
{¶24} Appellant also testified that, while arguing with Fearnow during the incident
at issue here, he felt threatened by Fearnow, and it looked like Fearnow was ready to
fight. He told Mason right after the incident that he was tried of the harassment,
discrimination, and negative reports about him. Mason told him they would talk when the
manager arrived. Appellant said he did not care about the manager and did not want to
talk to anyone. Appellant testified that Mason was physically intimidating and in his
personal space and admitted he told Mason he was quitting. Mason left for a phone call
and returned to say a manager was on the way. Appellant testified he cleared out several
things from his locker and desk, but not all of his personal affects, and left before a
manager arrived. Appellant said he contacted Edwards via e-mail on November 14, 2008,
about Fearnow's behavior, but he knew she would not get the message until she arrived
back from leave several days later. He said he never contacted the store manager or
No. 10AP-617
13
Sears's toll free human resources number from November 14 through November 18,
2008, to voice his concerns about Fearnow.
{¶25} Included in the commission record are several e-mails from appellant to his
superiors complaining of mistreatment at the hands of known and unknown perpetrators.
Appellant did not submit these attachments during the oral hearing before the hearing
officer, but he did submit them as attachments to his application to institute a further
appeal of the decision of the hearing officer. Pursuant to Ohio Adm.Code 4146-25-01, a
party filing a request for review to the review commission from a decision by a hearing
officer may submit additional evidence if the party so states and sets forth a brief
statement thereof. The content of some of the attached e-mails is as follows.
{¶26} In an August 24, 2005 e-mail to a supervisor, appellant complained that a
different supervisor was picking on him, throwing food at him, and being disrespectful to
him. The supervisor replied to appellant's e-mail the same day, requesting the names of
witnesses who had seen the incident so that he could develop a solution to prevent it from
happening again.
{¶27} In an August 25, 2005 e-mail to a human resources manager, appellant
reiterated the complaint he made in the August 24, 2005 e-mail. The human resources
manager replied the same day and suggested that appellant stop by her office to discuss
the matter.
{¶28} On November 21, 2006, appellant sent an e-mail to a supervisor and to
Edwards complaining that someone had dumped "garbage chutes" in his area, and it had
happened a few times before. Appellant expressed that he was angry with this behavior.
No. 10AP-617
14
Appellant also claimed that a supervisor was encouraging or allowing his mistreatment in
order to get rid of appellant.
{¶29} In a November 21, 2007 e-mail to Edwards and Komaromy, the store
manager, appellant complained that someone had dumped packing peanuts in his work
area and glued a tape measure to a table. In response to appellant's November 21, 2007
e-mail, on November 28, 2007, Edwards sent an e-mail to Komaromy and Lasher
indicating she needed them to find out who was "messing" with appellant because
appellant did not find the behavior funny and was angry. Edwards asked for help finding
out who was responsible and help getting the behavior to stop. On November 28, 2007,
Lasher sent a reply e-mail to appellant indicating she and others were investigating the
incident and the behavior was not acceptable.
{¶30} In a November 14, 2008 e-mail to Edwards, appellant complained that
Fearnow had a hostile attitude toward him, talked negatively about him, and engaged in
mean-spirited behavior toward him. Appellant testified that Edwards was on leave at the
time he sent the e-mail, and he knew she would not receive it until she returned on
November 18, 2008.
{¶31} What we must decide is whether an ordinarily intelligent person would have
been justified in quitting his job under the circumstances facing appellant. In doing so, as
explained above, we look at whether appellant had a reasonable fear for his personal
safety, whether he was subjected to verbal harassment, whether he had any fault in
bringing about the circumstances leading to his quitting, whether he first notified Sears of
the problems prior to quitting, and whether he gave Sears an opportunity to solve the
problem before quitting. As an initial matter, it is clear that appellant did raise his problems
No. 10AP-617
15
with Fearnow and other employees to his supervisors on several occasions prior to the
incident on November 16, 2008. The e-mails and appellant's testimony support such, and
Sears does not contest appellant's claims in this regard.
{¶32} However, viewing the circumstances as a whole, other facts weigh more in
favor of finding appellant voluntarily quit his job without just cause. From the e-mails
appellant submitted, it is apparent that appellant's supervisors at Sears promptly
responded to appellant's e-mails and indicated their desire to address his concerns.
Appellant likewise testified that, on several occasions when he reported his problems with
co-workers to his supervisors, they said they would investigate further. Although appellant
claims that his supervisors never resolved the issues, the length of time between
incidents reported in the e-mails suggests the problems appellant was having with other
workers was sporadic and spread across three years.
{¶33} Furthermore, several of the conflicts between appellant and his co-workers
detailed in the e-mails, such as someone dumping packaging peanuts, leaving crumbs,
and putting "garbage chutes" in his work area, were general workplace complaints, and
there is no proof that these actions were malicious, direct attacks against appellant. Also,
several of the e-mails—both detailed and not detailed above—seem to involve personality
conflicts rather than threats of physical violence, abusive conduct, or personal safety
issues. In one e-mail not included above, a supervisor appellant complained about
accused appellant of also picking on him and joking around. Appellant also admitted that
he had been reprimanded for outbursts and other incidents involving other employees.
Thus, much of the evidence appellant presented was either vague or unconvincing, and
16
No. 10AP-617
we cannot find that appellant had a reasonable fear for his personal safety or was
subjected to harassment that would induce a reasonable person to quit his job.
{¶34} As for appellant's actions on November 16, 2008, it is clear that appellant
left his job without giving his supervisors an opportunity to resolve his particular problem
that day. Mason told appellant that he had called another manager, and the manager was
on the way to talk to appellant about the incident. Appellant told Mason he was not
waiting, collected his personal items, and left the premises without giving the manager an
opportunity to address the issue. In addition, although appellant raised his complaints
regarding Fearnow in the November 14, 2008 e-mail to Edwards, appellant knew that
Edwards would not get the e-mail until she arrived back from leave, and appellant did not
contact any other supervisors on that day to give them an opportunity to address his
issues with Fearnow. Therefore, because appellant did not give Sears an opportunity to
correct the problem before he quit his job, he did not have just cause to quit on
November 16, 2008. For all these reasons, we agree appellant abandoned his job, and
Sears could have reasonably relied upon such in terminating appellant. Appellant's fourth,
fifth, sixth, and seventh assignments of error are overruled.
{¶35} Accordingly, appellant's seven assignments of error are overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
KLATT and SADLER, JJ., concur.
______________________
