Rodriguez v. S. Star Corp. , 2013 Ohio 2377 ( 2013 )

[Cite as Rodriguez v. S. Star Corp., 2013-Ohio-2377.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
JOSE RODRIGUEZ C.A. No. 12CA0049-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
SOUTH STAR CORP., et al. COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellants CASE No. 11 CIV 1677
DECISION AND JOURNAL ENTRY
Dated: June 10, 2013
BELFANCE, Presiding Judge.
{¶1} Defendant-Appellant South Star Corporation (“South Star”) appeals the decision
of the Medina County Court of Common Pleas reversing the decision of the Unemployment
Compensation Review Commission (“UCRC”), which concluded that Plaintiff-Appellee Jose
Rodriguez was terminated for just cause and was therefore not entitled to unemployment
compensation. We affirm the decision of the Medina County Court of Common Pleas.
I.
{¶2} Mr. Rodriguez worked for South Star providing landscaping services from March
2010 through December 1, 2010. In May 2010, Mr. Rodriguez heard another employee named
Ray refer to Mr. Rodriguez as “Hadji.” Mr. Rodriguez asked what that term meant and Ray
defined the word in terms of another highly offensive racial slur.1 Despite Mr. Rodriguez raising
the issue with individuals in charge on more than one occasion and being told the issue would be
1
At the hearing, Mr. Rodriguez testified that Ray told him a Hadji was a “nigger[.]”
2
taken care of, Ray continued to refer to Mr. Rodriguez by the racial slur on more than one
occasion. However, prior to November, Mr. Rodriguez was assigned to work with other
employees.
{¶3} In November, Mr. Rodriguez reported the problem to individuals in the quality
control department. Immediately prior to the termination of his employment with South Star,
Mr. Rodriguez was assigned to work with Ray. Mr. Rodriguez informed his supervisor that he
would not work with Ray and the supervisor told him then he was “out of here.”
{¶4} Mr. Rodriguez thereafter filed for unemployment benefits. The director of the
Ohio Department of Job and Family Services disallowed Mr. Rodriguez’ application, concluding
that Mr. Rodriguez was discharged with just cause. The matter was then transferred to the
UCRC. A telephonic hearing was held before a hearing officer. Mr. Rodriguez provided
testimony at the hearing; however, no representative of South Star appeared for, or testified on
behalf of, South Star. The hearing officer issued a decision concluding that Mr. Rodriguez was
discharged for just cause. Mr. Rodriguez sought further review by the UCRC but the request
was not granted. Mr. Rodriguez then appealed to the Medina County Court of Common Pleas,
which reversed the decision of the UCRC and found Mr. Rodriguez eligible to receive
unemployment benefits. South Star has appealed, raising a single assignment of error for our
review.
II.
ASSIGNMENT OF ERROR
THE REVIEW COMMISSION’S DETERMINATION THAT RODRIGUEZ
WAS JUSTIFIABLY TERMINATED SHOULD HAVE BEEN UPHELD AS
LAWFUL, REASONABLE, AND NOT AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.
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{¶5} South Star asserts in its sole assignment of error that the decision of UCRC should
not have been reversed by the Medina County Court of Common Pleas. We do not agree.
{¶6} “‘This Court is required to focus on the decision of the Review Commission,
rather than that of the common pleas court, in unemployment compensation cases.’” Sturgeon v.
Lucas Plumbing and Heating, Inc., 9th Dist. No. 11CA010010, 2012-Ohio-2240, ¶ 5, quoting
Moore v. Comparison Market, Inc., 9th Dist. No. 23255, 2006–Ohio–6382, ¶ 8. “[W]hile
appellate courts are not permitted to make factual findings or to determine the credibility of
witnesses, they do have the duty to determine whether the [UCRC’s] decision is supported by the
evidence in the record.” Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Serv., 73 Ohio St.3d
694, 696 (1995).
“The Unemployment Compensation Review Commission’s determination of
whether a claimant was discharged with just cause is appealable to the court of
common pleas: ‘If the court finds that the decision of the commission was
unlawful, unreasonable, or against the manifest weight of the evidence, it shall
reverse, vacate, or modify the decision, or remand the matter to the commission.
Otherwise, the court shall affirm the decision of the commission.’ R.C.
4141.282(H). This limited standard of review applies to all appellate courts.”
Sturgeon at ¶ 5, quoting Williams v. Ohio Dept. of Job & Family Servs., 129 Ohio St.3d 332,
2011-Ohio-2897, ¶ 20. “This Court applies the same standard in determining whether both
criminal and civil judgments are against the manifest weight of the evidence.” Upton v. Rapid
Mailing Servs., 9th Dist. No. 21714, 2004-Ohio-966, ¶ 10; see also Eastley v. Volkman, 132
Ohio St.3d 328, 2012-Ohio-2179, ¶ 17.
Therefore, in reviewing a civil judgment, an appellate court weighs the evidence
and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the [finder of fact]
clearly lost its way and created such a manifest miscarriage of justice that the
[judgment] must be reversed and a new trial ordered.
(Internal quotations and citations omitted.) Upton at ¶ 10; see also Eastley at ¶ 20.
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{¶7} Pursuant to R.C. 4141.29(D)(2)(a), “no individual may * * * be paid benefits * *
* [f]or the duration of the individual’s unemployment if the director finds that [t]he individual
quit work without just cause or has been discharged for just cause in connection with the
individual’s work * * *.”
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.
Just cause determinations in the unemployment compensation context, however,
also must be consistent with the legislative purpose underlying the
Unemployment Compensation Act. The Act exists to enable unfortunate
employees, who become and remain involuntarily unemployed by adverse
business and industrial conditions, to subsist on a reasonably decent level and is in
keeping with the humanitarian and enlightened concepts of this modern day. The
[A]ct 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. Thus, while a termination based upon
an employer’s economic necessity may be justifiable, it is not a just cause
termination when viewed through the lens of the legislative purpose of the Act.
(Internal quotations and citations omitted.) Tzangas, 73 Ohio St.3d at 697. “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.” Id. at 698. “[T]he question of
fault cannot be rigidly defined, but, rather, can only be evaluated upon consideration of the
particular facts of each case.” Id.
{¶8} In the instant matter the UCRC made the following findings:
In May 2010, [Mr. Rodriguez] complained to a supervisor * * * about another
employee named “Ray.” [Mr. Rodriguez] complained that Ray did not address
him by using his first name. He also stated that Ray had called him a “Hadji.”
[Mr. Rodriguez] was uncertain of the meaning of the term, but felt that it was
offensive.
As an accommodation, [the supervisor] assigned [Mr. Rodriguez] to work with
other employees beginning in May 2010 and continuing until November 29, 2010.
On November 29, 2010, [the supervisor] told [Mr. Rodriguez] that he would have
to work on Ray’s crew that day. * * * [Mr. Rodriguez] told [the supervisor] that
he did not want to do that. [The supervisor] repeated the instruction to [Mr.
Rodriguez] that he would be working on Ray’s crew on that day. [Mr. Rodriguez[
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again refused to agree to work on a crew with Ray. [The supervisor] told [Mr.
Rodriguez] that he would be terminated if he refused to go on the assignment.
[Mr. Rodriguez] again refused to work with Ray. He was therefore discharged.
{¶9} While this Court can find evidence in the record to support the majority of the
hearing officer’s findings, this Court cannot say that the hearing officer’s and, thus, the UCRC’s
conclusion based upon those findings is reasonable. See Williams, 129 Ohio St.3d 332, 2011-
Ohio-2897, at ¶ 20. In concluding that Mr. Rodriguez’ conduct in refusing to work amounted to
insubordination, the hearing officer did not conclude that Mr. Rodriguez’ testimony was not
credible. Further, there is nothing in the record that even suggests that Mr. Rodriguez was not
repeatedly called an offensive name by another employee. While South Star, in its written
response,2 downplays the nature of what Mr. Rodriguez was subjected to by referring to the
racial slurs as “slang,” South Star does not assert that Mr. Rodriguez’ claims are false.
{¶10} The record indicates that Ray repeatedly referred to Mr. Rodriguez using a highly
offensive racial slur, that Mr. Rodriguez reported this problem on multiple occasions to
management, that management said it would be taken care of, and that, prior to the incident in
November, Mr. Rodriguez was assigned to work with employees other than Ray. In addition,
Mr. Rodriguez testified that, on the day in November when Mr. Rodriguez got to work, Ray
stated that “Hadji, you’re with me today.” Mr. Rodriguez informed management that he would
not work with Ray, but management would not put him with a different crew. Mr. Rodriguez
testified that there were six crews working that day, and, thus, he could have been placed with
another group. Additionally, despite the hearing officer’s statement that Mr. Rodriguez would
2
South Star, while notified of the telephonic hearing, did not appear for, nor testify at, the
hearing.
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not have had to “work side-by-side with Ray[,]” Mr. Rodriguez offered uncontroverted
testimony that “we would have traveled in the same truck and [because Ray would have been]
the [] driver of the truck [he would have been] the crew leader * * * [and, thus, he would have
been] my boss that day.”
{¶11} Despite this evidence, and the hearing officer’s factual findings, the hearing
officer stated that while Mr. Rodriguez testified that “Ray had referred to him as a Hadji on a
number of different occasions[,] [t]he evidence does not show that Ray’s conduct was so
offensive that it would negatively impact a reasonable person’s ability to perform his duties.”
The hearing officer reasoned that “[i]t is a fact of life that employees do not choose their co-
workers. It is common in any employment environment to be required to work with individuals
who may be difficult to get along with.” Thus, the hearing officer concluded that South Star
“properly discharged [Mr. Rodriguez] when he refused a proper order.”
{¶12} We cannot conclude that the hearing officer’s conclusions were reasonable. In
the context of determining whether an employee subject to harassment was justified in quitting,
courts have stated that, “where an employee’s initial complaints do not prompt the employer to
change h[is] working conditions, the employee may be relieved of her duty to further pursue
internal remedies. Likewise, an employee need not indefinitely subject h[im]self to abusive
conduct while waiting for h[is] employer to respond.” (Internal quotations and citations
omitted.) Underhill v. Unemp. Comp. Rev. Comm., 10th Dist. No. 10AP-617, 2011-Ohio-1598,
¶ 20. Mr. Rodriguez’ actions corresponded to those of an ordinary, intelligent person. Mr.
Rodriguez had informed management of the problem with Ray on more than one occasion. It is
undisputed that management could have placed Mr. Rodriguez with a different crew of
employees that day. Thus, management’s decision to require Mr. Rodriguez to work with Ray
7
anyway was clearly unreasonable under the circumstances. See DiGiannantoni v. Wedgewater
Animal Hosp., Inc., 109 Ohio App.3d 300, 307 (10th Dist.1996) (noting that case law supported
the conclusion that generally “an employee must notify the employer of the [harassment] and
request that it be resolved, and thus give the employer an opportunity to solve the problem before
the employee quits the job[]”); Belle Tire Distribs., Inc. v. Ohio Dept. of Job & Fam. Servs., 8th
Dist. No. 97102, 2012-Ohio-277, ¶ 17 (“[T]he Review Commission had competent, credible
evidence before it that Belle Tire failed to remedy the harassment even though Cook continued
to report it. Based on these facts, the Review Commission determined that an ordinary,
intelligent person would have quit under these circumstances and labeled Cook’s actions as
just.”). In light of the foregoing, we conclude that the decision of the UCRC was unreasonable.
This is not a situation where two employees may have had a personality conflict. We find it
unreasonable to conclude that a person who is forced to work with someone who repeatedly
refers to him by highly offensive racial slurs is an equivalent situation to someone assigned to
work with a “difficult” co-worker. Given the undisputed facts, it is apparent that Mr. Rodriguez
was not at fault for his discharge and that he was terminated without just cause. See Tzangas, 73
Ohio St.3d at paragraph two of the syllabus (“Fault on behalf of the employee is an essential
component of a just cause termination.”). South Star’s assignment of error is overruled.
III.
{¶13} The judgment of the Medina County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, 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(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
EVE V. BELFANCE
FOR THE COURT
CARR, J.
WHITMORE, J.
CONCUR.
APPEARANCES:
SCOTT H. RUPORT and ANTHONY R. BEERY, Attorneys at Law, for Appellant.
SUSAN SHEFFIELD, Attorney at Law, for Appellant.
DANIEL F. MAYNARD, Attorney at Law, for Appellee.