Parrett v. Adm'r, Unemployment Comp. Review Comm'n ( 2017 )

[Cite as Parrett v. Admr., Unemp. Comp. Rev. Comm., 2017-Ohio-2778.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
BRADLEY E. PARRETT, : Case No. 16CA15
:
Plaintiff-Appellee, :
:
vs. :
: DECISION AND JUDGMENT
ADMINISTRATOR, : ENTRY
UNEMPLOYMENT :
COMPENSATION REVIEW :
COMM’N, :
:
Defendant-Appellant. : Released: 05/08/17
_____________________________________________________________
APPEARANCES:
Michael DeWine, Ohio Attorney General, and David E. Lefton, Principal
Assistant Ohio Attorney General, Columbus, Ohio, for Appellant, Director,
Ohio Department of Job and Family Services.
Mark Landes, Isaac, Wiles, Burkholder & Teetor, LLC, Columbus, Ohio, for
Appellant Pickaway County Educational Service Center.1
Bradley E. Parrett, Circleville, Ohio, Pro Se Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Appellant, Director, Ohio Department of Job and Family
Services, appeals the Pickaway County Court of Common Pleas' decision
reversing the Unemployment Compensation Review Commission's decision
1
Pickaway County Educational Service Center has not filed a brief on appeal in this matter and is not
otherwise participating.
Pickaway App. No. 16CA15 2
disallowing unemployment compensation benefits to Appellee, Bradley E.
Parrett, based upon its determination that Appellee was discharged for just
cause by Appellant, Pickaway County Educational Service Center. On
appeal, Appellant contends that the trial court erred in reversing the decision
of the Unemployment Compensation Review Commission, as its decision
that Appellee was separated from his employment under disqualifying
conditions was not unlawful, unreasonable, or against the manifest weight of
the evidence.
{¶2} Because the decision of the Unemployment Compensation
Review Commission was not unlawful, unreasonable or against the manifest
weight of the evidence, the trial court erred in reversing the decision.
Accordingly, the decision of the trial court is reversed.
FACTS
{¶3} Appellee, Bradley E. Parrett, began working as a resource
officer for the Pickaway County Educational Service Center in August of
2011. His contract for employment for that position provided, among other
things, that he "maintain a cooperative working relationship with the Ross
County Sheriff Department[]" and that he "[b]e a commissioned law
enforcement officer by the state of Ohio." (Emphasis added). At the time
Appellee became employed with the Pickaway County Educational Service
Pickaway App. No. 16CA15 3
Center, he was a commissioned deputy sheriff by the Ross County Sheriff's
Office. However, after a complaint was made to the Sheriff's Office by a
private citizen regarding Appellee in his capacity as a deputy, the Ross
County Sheriff made the decision to revoke Appellee's commission in
November of 2014. When the school was made aware that Appellee had
lost his commissioned status, the school superintendent informed Appellee
he must either resign his position or he would be discharged. Appellee
submitted a resignation letter on December 12, 2014, stating that his
resignation was "due to the fact that I am no longer affiliated with the Ross
County Sheriff's Office."
{¶4} Appellee made application for unemployment compensation
benefits on December 12, 2014. The record reflects that Appellee's
employer did not challenge the payment of unemployment benefits to
Appellee. The Director's file contains a Determination of Unemployment
Compensation Benefits dated January 14, 2015, which disallowed benefits
due to "a disqualifying separation from employment[,]" and because
Appellee was "discharged with just cause." The determination stated "[t]he
employer discharged the claimant for not providing and maintaining the
license, permit or insurability required to perform the work[,]" and that
"[f]acts establish that the claimant was made aware at the time of hire that
Pickaway App. No. 16CA15 4
he/she was responsible for maintaining the license, permit, or insurability."
{¶5} Appellant appealed the determination and filed a letter
explaining that:
"As of November 2014 there was a complaint filed against me
at the sheriff's office, The sheriff decided to pull my
commission before all the facts were presented. With him
pulling my commission I no longer had any deputy authority
this means I could not arrest, pat down, detain or act in any way
as an officer. With my employment working as a resource
officer at the school it is in my contract the I must be a
commissioned officer. At no time did I surrender/forfeit/resign
or quit, giving up my commission at the sheriff's office. The
sheriff pulled my commission and in return I did not meet the
requirements of the contract at the school. The school in return
laid me off giving me the opportunity to draw unemployment
till all the facets could be worked out and my commission
reinstated which would in return reinstate job with the school."
On February 11, 2015, a Notice of Redetermination of an Initial Application
of Unemployment Benefits was filed, again disallowing Appellee's
application for unemployment benefits due to "a disqualifying separation
from employment[,]" but stating "the claimant quit without just cause."
{¶6} Appellee again appealed, making the same argument contained
in his first appeal. On February 18, 2015, the matter was transferred to the
Unemployment Compensation Review Commission. Thereafter, a telephone
hearing was held on March 5, 2015. The Pickaway County Educational
Service Center filed a notice prior to the hearing stating that it would not be
participating in the hearing and that it was not contesting Appellee's
Pickaway App. No. 16CA15 5
application for benefits. Appellee participated in the hearing and was
permitted to testify. At this stage, however, Appellee testified that he was
not aware he was required to be affiliated with the Ross County Sheriff's
Office, but rather he understood he only had to be a "certified police
officer." When asked whether his position as resource officer required him
to be a "commissioned officer," Appellee testified that his contract only
required that he be a "certified police officer," not that he had to be a
"commissioned officer." He testified that he was still currently a "certified
police officer." He claimed that any requirement that he be commissioned
was a change in the job requirements.
{¶7} The decision of the Unemployment Compensation Review
Commission was filed on March 5, 2015. The Review Commission findings
of fact included findings that 1) Appellee's position required that he be
commissioned by the Ross County Sheriff's Office; 2) his commission was
revoked on November 25, 2014; 3) the commission was revoked due to a
complaint received by the Sheriff's Office; 4) once his commission was
revoked he could no longer perform essential contract obligations of the
position; 5) he was given the option of being discharged or resigning on
December 12, 2014; 6) Appellee offered a letter of resignation in lieu of
discharge; and 7) the employer was the moving party in the separation. The
Pickaway App. No. 16CA15 6
Review Commission's stated reasoning was that the employer acted
reasonably in discharging Appellee because he was unable to meet a
condition of continued employment, as his commission had been revoked by
the Ross County Sheriff's Office. The Review Commission further reasoned
that "[w]ithout the commission he was not able to perform the essential
functions of the position as he could no longer arrest, perform searches, and
complete other essential resource functions." As such, the Review
Commission reasoned that Appellee was discharged with just cause. The
decision of the Review Commission ultimately affirmed the redetermination
findings that disallowed Appellee's claim because he was separated from
employment under disqualifying conditions, however, it modified the
redetermination finding that Appellee "quit" his employment. The Review
Commission modified that decision to instead find that Appellee was
discharged with just cause.
{¶8} By letter dated March 23, 2015, Appellee requested the March
5, 2015 decision be reviewed, arguing that a requirement that he be
commissioned by Ross County was a change in his contract and that he was
unaware, when he was hired, that he had to be commissioned by Ross
County Sheriff's Office. In support of his request for review, Appellee
attached documents purporting to be copies of the contract presented to him
Pickaway App. No. 16CA15 7
upon hire, as well as a new, revised contract that was created after he was
discharged, that would govern the terms of employment for the resource
officer position going forward. Appellant argued that because the new
contract contained different requirements from his original contract, the
terms of employment had changed. There is no indication from the record,
however, that the contract language changed before Appellee was
discharged from his position. Thereafter, an Unemployment Compensation
Review Commission Decision Disallowing Request for Review was filed on
April 15, 2015, disallowing Appellee's claim once again, based upon a
review of the entire record, and informing Appellee of his right to appeal the
matter to the court of common pleas.
{¶9} Appellee subsequently filed a pro se appeal in the Pickaway
County Court of Common Pleas. At this stage, both the Director of the Ohio
Department of Job and Family Services and the Pickaway Educational
Service Center filed motions to dismiss the appeal. Appellee filed a brief in
support of his appeal that contained little argument, but instead appeared to
be a compilation of documents contained in the Director's file, as well as
several letters addressed "to whom it may concern," that are not part of the
official record below. Appellants' position during that appeal was that
Appellee's employment was expressly conditioned upon him maintaining a
Pickaway App. No. 16CA15 8
license or certification (in this case a commission), and that his failure to
comply with the condition was just cause for termination. Appellants urged
the trial court to affirm the decision of the Review Commission, as it was
lawful, reasonable, and not against the manifest weight of the evidence.
{¶10} On September 28, 2016, the trial court issued its decision and
entry reversing the decision of the Review Commission. In its decision, the
trial court found that the record supported Appellee's contention that the
requirement that he be affiliated with the Ross County Sheriff's Office was a
new requirement, that Appellee had not initially agreed that he must be
affiliated with the Ross County Sheriff and that as such, Appellee was not
terminated from his position with just cause. The trial court further reasoned
Appellee had only agreed that he had to be a "certified peace officer." The
trial court further reasoned that there was no conflicting evidence that the
requirements of Appellee's position had changed, and that the manifest
weight of the evidence leads to the conclusion that Appellee was discharged
without just cause. Thus, the trial court reversed the decision of the Review
Commission, finding that that the decision was unlawful, unreasonable and
against the manifest weight of the evidence.
Pickaway App. No. 16CA15 9
{¶11} It is from this decision issued by the trial court that Appellant,
Director, Ohio Department of Job and Family Services filed its timely
appeal to this Court, setting forth one assignment of error for review.
ASSIGNMENT OF ERROR
“I. THE PICKAWAY COUNTY COURT OF COMMON PLEAS
ERRED IN REVERSING THE DECISION OF THE
UNEMPLOYMENT COMPENSATION REVIEW COMMISSION,
AS ITS DECISION THAT THE APPELLEE BRADLEY PARRETT
("MR. PARRETT") WAS SEPARATED FROM HIS
EMPLOYMENT UNDER DISQUALIFYING CONDITIONS WAS
NOT UNLAWFUL, UNREASONABLE, OR AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
{¶12} In its sole assignment of error, Appellant, Director, Ohio
Department of Job and Family Services, contends the trial court erred in
reversing the decision of the Unemployment Compensation Review
Commission, a decision which Appellee argues was not unlawful,
unreasonable or against the manifest weight of the evidence. Appellee
seems to contend that the trial court "understood" and therefore "came to the
conclusion," that he "did not in fact quit his job," but rather that he resigned
for circumstances beyond his control, and therefore correctly reversed the
Review Commission's decision. Based upon our review of the record and
the following reasoning, we agree with Appellant.
{¶13} Unlike most administrative appeals where we employ an abuse
of discretion standard, see Lorain City School Dist. Bd. of Edn. v. State Emp.
Pickaway App. No. 16CA15 10
Relations Bd., 40 Ohio St.3d 257, 260-261, 533 N.E.2d 264 (1988), our
review of an appeal from the decision of the Commission is identical to that
of the common pleas court. We must affirm the Commission's decision
unless we find the decision to be unlawful, unreasonable, or against the
manifest weight of the evidence. See R.C. 4141.28(N)(1); Tzangas, Plakas
& Mannos v. Ohio Bur. Of Emp. Serv., 73 Ohio St.3d 694, 696, 653 N.E.2d
1207 (1995).
{¶14} In making this determination, we must give deference to the
Commission in its role as finder of fact. We may not reverse the
Commission's decision simply because “reasonable minds might reach
different conclusions.” On close questions, where the board might
reasonably decide either way, we have no authority to upset the agency's
decision. Irvine v. Unemployment Comp. Bd. of Rev., 19 Ohio St.3d 15, 18,
482 N.E.2d 587 (1985). Instead, our review is limited to determining
whether the Commission's decision is unlawful, unreasonable or totally
lacking in competent, credible evidence to support it. Id.{¶15} R.C. 4141.29(D)(2)(a) provides that an individual may not
obtain unemployment benefits if he “has been discharged for just cause in
connection with his work.” See also Ford Motor Co. v. Ohio Bur. of Emp.
Serv., 59 Ohio St.3d 188, 189, 571 N.E.2d 727 (1991). “Just cause” exists if
Pickaway App. No. 16CA15 11
a person of ordinary intelligence would conclude that the circumstances
justify terminating the employment. Irvine, supra, at 17. An analysis of just
cause must also consider the policy behind the Unemployment
Compensation Act, which was intended to provide financial assistance to
individuals who become unemployed through no fault of their own.
Tzangas, supra, at 697. Accordingly, “fault” on an employee's part is an
essential component of a just cause termination. Id. at paragraph two of the
syllabus. The determination of just cause depends on the “unique factual
considerations” of a particular case and is, therefore, primarily an issue for
the trier of fact. Irvine, supra, at 17. The Ohio Supreme Court has
recognized that “[t]here is, of course, not a slide-rule definition of just
cause.” Irvine, supra, at 17.
{¶16} 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 Mach. Co., 56
Ohio App.3d 150, 155, 565 N.E.2d 858, 862 (1989). Further, the Supreme
Court of Ohio has noted that "[i]n the case of a police officer, an
interpretation of 'just cause' must consider the particular needs of police
Pickaway App. No. 16CA15 12
departments." City of Warrensville Heights v. Jennings, et al., 58 Ohio St.3d
206, 207, 569 N.E.2d 489 (1991). In Jennings, the Supreme Court further
noted as follows:
“In Jones v. Franklin Cty. Sheriff (1990), 52 Ohio St.3d 40, 43,
555 N.E.2d 940, 944, we quoted approvingly the common pleas
court's statement ‘ “ that police officers are held to a higher
standard of conduct than the general public.” ’ We further
stated, ‘Law enforcement officials carry upon their shoulders
the cloak of authority of the state. For them to command the
respect of the public, it is necessary then for these officers even
when off duty to comport themselves in a manner that brings
credit, not disrespect, upon their department.’ Id. ‘[I]t is
incumbent upon a police officer to keep his or her activities
above suspicion both on and off duty.’ Id. at 44, 555 N.E.2d at
945. Because a higher standard of conduct applies to police
officers, just cause may exist regarding those officers even
though it would not exist regarding another employee.” Id.
{¶17} The Supreme Court of Ohio has further held as follows with
respect to suitability for positions:
“Unsuitability for a position constitutes fault sufficient to
support a just cause termination. An employer may properly
find an employee unsuitable for the required work, and thus to
be at fault, when: (1) the employee does not perform the
required work, (2) the employer made known its expectations
of the employee at the time of hiring, (3) the expectations were
reasonable, and (4) the requirements of the job did not change
since the date of the original hiring for that particular position.”
Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Serv., supra,
at 698-699; see also, Williams v. Ohio Dept. of Job and Family
Servs., 129 Ohio St.3d 332, 2011-Ohio-2897, 951 N.E.2d 1031¶ 27.
Further, in Williams, the Supreme Court held that:
Pickaway App. No. 16CA15 13
“when employment is expressly conditioned upon obtaining or
maintaining a license or certification and an employee agrees to
the condition and is afforded a reasonable opportunity to obtain
or maintain the license or certification, an employee's failure to
comply with that condition is just cause for termination for
unemployment compensation purposes.” Williams at ¶ 27.2
{¶18} Here, Appellant contends that Appellee's employment was
expressly conditioned upon him maintaining his commission with the Ross
County Sheriff's Office, and that such commission was necessary for him to
perform the essential duties of his job. Appellee seemed to agree with this in
the early stages of his application for unemployment compensation benefits.
In fact, Appellee himself stated, in a letter dated January 23, 2015, which is
part of the Director's file, that he went through training to become a peace
officer and was given a "commission" by the elected sheriff (in Ross
County) and gained employment. In his letter, Appellee claimed that "[a]
'Commission' is what the sheriff gives his deputy's that gives them the right
to act in behalf of the sheriff in his absence." Appellee further explained
that once the Sheriff revoked his commission, he "no longer had deputy
authority this means I could not arrest, pat down, detain or act in any way as
an officer." Notably, Appellee further stated in the letter that:
"[w]ith my employment working as a resource officer at the
school it is in my contract that I must be a commissioned officer.
2
Williams involved an employee who was discharged for failure to obtain her LISW certification, which
was a condition of her employment. We find it applicable to the present case, which involves the failure to
maintain the necessary "commission" to perform the essential functions of the job.
Pickaway App. No. 16CA15 14
* * * the sheriff pulled my commission and in return I did not
meet the requirements of the contract at the school."
Appellee submitted this letter after the initial denial of his application for
benefits. However, as set forth above, a redetermination was issued again
denying Appellee benefits.
{¶19} Somewhere along the way, primarily at the stage of the
telephone hearing, Appellee began to argue that his contract did not require
him to be a "commissioned" officer, but only a "certified" officer. He
further argued that his contract did not require that he be affiliated with the
Ross County Sheriff's Office. However, the transcript from the telephone
hearing evidences that the hearing officer noted this discrepancy. The
hearing officer repeatedly questioned Appellee about the contract
requirement that he be a "commissioned" rather than a "certified" officer.
Ultimately the hearing officer disallowed Appellee's claim as well, which
disallowance was affirmed by the Review Commission.
{¶20} Interestingly, the trial court reversed the decision of the
Review Commission, stating in its decision that the requirement that
Appellee be affiliated with Ross County Sheriff's Office was a new
requirement and thus, that the requirements of the job had substantially
changed. As such, the trial court reasoned that the fourth prong of the
Tzangas test had not been met. The trial court further found that Appellee's
Pickaway App. No. 16CA15 15
contract only required that he be a "certified peace officer," and not a
commissioned one. However, both of these determinations were factually
incorrect according to the record before us.
{¶21} As set forth above, Appellee's contract of employment did
require that he "maintain a cooperative working relationship with the Ross
County Sheriff's Department." This is the equivalent of an "affiliation." It
further required that he "[b]e a commissioned law enforcement officer by the
state of Ohio." (Emphasis added). Taken together these provisions clearly
indicate Appellee was required to have an affiliation with the Ross County
Sheriff's Office, which he lost when he was decommissioned by the Sheriff.
Further, the loss of his commissioned status was a failure to abide by
conditions of employment. Additionally, we find Appellee's argument that
he only had to be "commissioned" by the State of Ohio, or rather, be a
"certified" officer, to be disingenuous. There is correspondence in the file
by Appellee's own hand describing the fact that he tried unsuccessfully to
obtain a commission from the Pickaway County Sheriff, but could not.
When Appellee lost his commission through Ross County, he was no longer
a commissioned officer, as required in his job description.
{¶22} Appellee seems to argue, although not clearly, that because he
did not voluntarily give up his commission, he was unable to perform his
Pickaway App. No. 16CA15 16
essential job functions at the school through no fault of his own. "An
employer may terminate an employee for economic necessity when some
condition prevents the employee from performing the duties of his job."
Sprowls v. Ohio Department of Job & Family Services, 156 Ohio App.3d
513, 2004-Ohio-1317, 806 N.E.2d 1030, ¶ 22. However, "just cause for
purposes of R.C. 4141.29(D)(2)(a) imposes a different standard; in this
context, the condition or circumstance which resulted in the termination
must be a matter for which the employee was at fault." Id. As further
explained in Sprowls, “ ‘[f]ault’ necessitates culpability, or blameworthiness,
on the employee's part. A mere causal nexus between the termination and
some circumstance or condition affecting the employee is insufficient to
show that the termination was for just cause.” Id.{¶23} We find Appellee's argument unpersuasive. Because Appellee
had his commission revoked by the Sheriff due to a complaint made by a
private citizen, we conclude some fault may be presumed on the part of
Appellee in losing his commission. Further, as set forth above, "[i]n the case
of a police officer, an interpretation of 'just cause' must consider the
particular needs of police departments." Jennings, supra, at 207. Here, for
reasons involving a complaint made to the Sheriff's Office, the Sheriff made
the decision to revoke Appellee's commission. It appears, based upon this
Pickaway App. No. 16CA15 17
record, that Appellee was at fault in having his commission revoked.
Further, without a commission, Appellee could not perform the essential
duties of his job. Finally, as set forth above, the record supports the Review
Commission's determination that Appellee was aware of this requirement
upon hire, that the requirements of the job did not change, that Appellee
failed to maintain the required commission, as well as the required affiliation
with the Ross County Sheriff's Office and, as such, could not perform the
requirements of the job. Thus, the presence of these factors results in
Appellee’s unsuitability for the resource officer position with the school
under the Tzangas test. Tzangas, supra, at 698-699.
{¶24} As such, because the Review Commission's decision was not
unlawful, unreasonable, or against the manifest weight of the evidence, we
conclude that the trial court erred in reversing the decision. Accordingly, the
judgment of the trial court is reversed.
JUDGMENT REVERSED.
Pickaway App. No. 16CA15 18
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED and that Appellant
shall recover costs from Appellee.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Pickaway County Common Pleas Court to carry this judgment into
execution.
Any stay previously granted by this Court is hereby terminated as of
the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.