Wright v. Ohio Dept. of Job & Family Servs. , 2013 Ohio 2260 ( 2013 )

[Cite as Wright v. Ohio Dept. of Job & Family Servs., 2013-Ohio-2260.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
GREGORY A. WRIGHT C.A. No. 12CA010264
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DIRECTOR, OHIO DEPT. OF JOBS & COURT OF COMMON PLEAS
FAMILY SERVICES, et al. COUNTY OF LORAIN, OHIO
CASE No. 11CV172664
Appellees
DECISION AND JOURNAL ENTRY
Dated: June 3, 2013
HENSAL, Judge.
{¶1} Plaintiff-Appellant, Gregory Wright, appeals from the judgment of the Lorain
County Court of Common Pleas. This Court affirms.
I.
{¶2} Gregory Wright was employed as a truck driver by Schneider National Carriers,
Inc. (“Schneider”) from July 6, 2010 until August 20, 2010. On August 20, 2010, Wright quit
his job while in the middle of a delivery when he left his truck at a Schneider terminal in Seville,
Ohio, and told his employer he would not drive again until it assigned him a local route.
{¶3} Wright filed an application for unemployment benefits, which was assigned two
different identification numbers as his qualifying employment period overlapped benefit years.
The Ohio Department of Job and Family Services (“ODJFS”) initially allowed his application for
benefits. This decision was reversed on redetermination when the agency found that Wright quit
Schneider without just cause.
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{¶4} Wright filed a timely appeal of the redetermination decision and the Ohio
Department of Job and Family Services transferred jurisdiction of the case to the Unemployment
Compensation Review Commission (“UCRC”) where his claim was assigned two docket
numbers (C2010-012991 and C2010-014088) with all substantive determinations being made
under the C2010-014088 docket number. On February 10, 2011, a telephone hearing was held
before a UCRC hearing officer. The hearing officer issued a decision on February 11, 2011, that
affirmed the redetermination decision that Wright quit Schneider without just cause.
{¶5} Wright filed a request for review of C2010-012991 to the UCRC that was
disallowed on May 11, 2011, and a request for review of C2010-014088 that was disallowed on
June 2, 2011. Wright filed an appeal in the Lorain County Court of Common Pleas on June 29,
2011. He attempted to appeal both UCRC docket numbers, and requested that the court merge
both cases. The trial court did not expressly rule on Wright’s request to merge the cases. The
record reflects that only the appeal for docket number C2010-014088 was timely. On July 2,
2011, the court issued a judgment entry that affirmed the UCRC decision without referencing the
corresponding UCRC docket number.
{¶6} Wright filed a timely appeal of the trial court decision, and raises two assignments
of error for our review. For ease of analysis, this Court combines his two assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT’S DECISION AFFIRMING [THE] ORDER OF THE
UNEMPLOYMENT COMPENSATION BOARD (UCBR) WAS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.
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ASSIGNMENT OF ERROR II
[THE] TRIAL COURT’S DECISION AFFIRMING [THE] ORDER OF THE
UNEMPLOYMENT COMPENSATION REVIEW BOARD (UCBR) WAS
UNLAWFUL AND UNREASONABLE.
{¶7} Wright argues that the trial court erred in affirming the UCRC decision as that
decision was unreasonable, unlawful and against the manifest weight of the evidence. The crux
of his argument is that the UCRC erred when it found he quit his job without just cause. He
alleges that the evidence before the UCRC demonstrated that he was hired to drive a local route,
and his employer knew and agreed that he could only perform the over-the-road regional route
position temporarily as it was necessary for him to be home every night due to his medical
conditions and to care for his special needs child. He further argues that he was deprived of his
due process rights when the UCRC hearing officer failed to elicit the testimony of a subpoenaed
witness at the telephone hearing.
{¶8} When reviewing the trial court’s decision, “[t]his Court is required to focus on the
decision of the Review Commission, rather than that of the common pleas court, in
unemployment compensation cases.” Moore v. Comparison Market, Inc., 9th Dist. No. 23255,
2006-Ohio-6382, ¶ 8. Pursuant to R.C. 4141.282(H), appellate review of an UCRC decision is
limited as follows:
The court shall hear the appeal on the certified record provided by the
commission. 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.
Lang v. Dir., Ohio Dept. of Job & Family Servs., 134 Ohio St.3d 296, 2012-Ohio-5366 ¶ 11
(applying standard of review to all appellate courts). “A reviewing court may not reverse the
commission’s decision simply because ‘reasonable minds might reach different conclusions.’”
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Id., quoting Williams v. Ohio Dept. of Job & Family Servs., 129 Ohio St.3d 332, 2011-Ohio-
2897, ¶ 20. Additionally, an appellate court is “preclude[d] * * * from making factual findings
or weighing the credibility of witnesses.” Moore at ¶ 7. This Court’s role is to ascertain whether
evidence in the certified record supports the UCRC decision. Id. at ¶ 9.
{¶9} The UCRC found that Wright quit his job without just cause, thus rendering him
ineligible for unemployment benefits pursuant to R.C. 4141.29(D)(2)(a). The term “just cause”
means “that which, to an ordinarily intelligent person, is a justifiable reason for doing or not
doing a particular act.” Williams v. Ohio Dept. of Job and Family Servs., 129 Ohio St.3d 332,
2011-Ohio-2897, ¶ 22. The employee has the burden to prove he is entitled to unemployment
benefits under R.C. 4141.29(D)(2)(a). Irvine v. Unemp. Comp. Bd. of Review, 19 Ohio St.3d 15,
17 (1985).
{¶10} Wright maintains that he was hired as a local route driver. He argues that the
UCRC finding that Schneider hired him as an over-the-road regional route driver and made no
promises about the availability of a local route is against the manifest weight of the evidence.
When reviewing the manifest weight of the evidence, “[t]he reviewing 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 omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-
2179, ¶ 20.
{¶11} Wright was hired after he responded to a Schneider advertisement for drivers to
run a local route between train yards in Cleveland and Cincinnati. Mike Doss, a Schneider fleet
manager who interviewed Wright for the position, testified that an over-the-road regional
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position was not discussed during the initial interview. Wright received a conditional offer of
employment via email that listed several conditions he needed to complete, including attendance
at orientation/training. Doss told Wright before he began orientation that the company had yet to
secure the local route contract and that there was no set timeframe when that would occur. Doss
instead offered Wright a regional driver position that involved overnight travel to Indiana,
Pennsylvania, and Kentucky, which would necessitate him “being out in the truck” four nights
per week. Wright accepted the regional route job. While Wright maintains that he was told he
would be home two nights during the week, Doss testified he was told that the company would
get him home during the week when possible.
{¶12} Wright argues that he only agreed to drive the regional route position temporarily
until the local route was available. He spoke to Schneider representatives “[e]veryday” about the
availability of the local route, and was asked to keep driving the regional route because the local
contract was not finalized. As of the February 10, 2011 hearing, the local route contract still was
not finalized. Wright, however, never drove a local route for Schneider other than when he was
paired with another driver during his training period. Once he completed his training and was
permitted to drive on his own, he only drove the regional route. UCRC found “the employer’s
testimony that no promises were made to the claimant regarding a local route to be credible.”
After a careful review of the record, we are not persuaded that the UCRC finding that Wright
was hired for a regional route is against the manifest weight of the evidence as there is
competent, credible evidence to support that conclusion.
{¶13} Wright further argues that the UCRC was unreasonable in finding that he failed to
submit documentation of his medical conditions. The UCRC decision states that, “[w]hile the
claimant argues that he had a medical condition, and he had a special needs son that (sic)
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required him to be at home every night, no medical documentation was ever provided to the
employer, and no medical documentation has been submitted to the State that this job posed a
risk to the claimant, or his family.” The employer acknowledged one occasion when Wright was
routed back home when he forgot his medication. There is no evidence, however, that he
informed his employer of his medical conditions and son’s needs during the term of his
employment.
{¶14} Wright submitted a report dated December 13, 2010 from his treating physician to
the UCRC, which stated that:
Mr. Wright does not have any physical limitations other than it would be
extremely difficult for him to have to sit for long periods of time without any rest
or movement especially such as a long-distance trucker driver would need to do.
In addition, he would need to be able to sleep in a regular bed on a regular basis
were he to keep his back from locking up or causing him more pain and disability.
He is also on medications that require monitoring * * * and would require him to
be home or at least near to home for * * * up to 4-6 times a year.
There is no evidence this report, or any other medical documentation, was submitted to
Schneider during the course of Wright’s employment. Further, this report does not suggest that
there was a risk to his health in performing the regional route driver duties. The report
specifically states that Wright does not have any physical limitations with the exceptions of
difficulty sitting for long periods of time, the need to sleep in a regular bed on a regular basis,
and medication monitoring four to six times per year. The report also does not define what
constitutes a “regular basis” of sleeping in a regular bed.
{¶15} The Ohio Supreme Court has stated that:
An employee’s voluntary resignation on the basis of health problems is without
just cause * * * when the employee is physically capable of maintaining a
position of employment with the employer, but fails to carry her burden of
proving that she inquired of her employer whether employment opportunities
were available which conformed to her physical capabilities and same were not
offered to her by the employer.
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Irvine, 19 Ohio St.3d 15 at syllabus. While Wright testified that he followed up “[e]veryday”
with Schneider on the status of the local route position, there is no evidence that he advised
Schneider prior to his resignation that his medical conditions prevented him from continuing as a
regional route driver. There is also no evidence that Wright asked Schneider whether it had any
such jobs available that conformed to his physical abilities, or that Schneider failed to offer him
such an opportunity if one existed. The fact that Wright never advised Schneider prior to his
resignation that his medical conditions prevented him from continuing as a regional route driver
is fatal to his claim for unemployment benefits. King v. State Farm Mut. Auto Ins. Co., 112 Ohio
App.3d 664, 669 (6th Dist.1996) (upholding the denial of unemployment benefits when
employee “never fully apprised [her employer] of her health problems or the cause of those
problems until she quit her job, thereby preventing her employer from offering her alternate
forms of employment.”).
{¶16} This is not an instance where the medical condition was diagnosed after the date
of hire. Instead, Wright accepted the regional route position with full knowledge of his medical
conditions and their impact on his physical abilities. Wright knew when he accepted the regional
route position that the local route contract was not finalized and that there was no definitive time
frame for its completion.
{¶17} Wright further suggests that the UCRC failed or refused to consider the medical
report. A plain reading of the UCRC decision does not suggest that it failed to consider the
medical report. Rather, the UCRC decision indicates that the hearing officer did not agree with
Wright’s assertion that the report proved his medical conditions posed such a risk as to prevent
him from performing the regional route driver job.
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{¶18} There is no evidence that Wright informed Schneider orally or in writing about
his medical conditions prior to terminating his employment. The medical report Wright
submitted in support of his benefits claim also does not definitively establish that his medical
conditions impeded his continuation as a regional route driver. Accordingly, there was
competent, credible evidence in the record to support the UCRC’s decision concerning the
impact of Wright’s medical conditions on his employment. This Court holds that the UCRC
finding that Wright failed to submit documentation that supported his claim he could not perform
the job duties due to a medical reason was not unreasonable, unlawful or against the manifest
weight of the evidence.
{¶19} Wright further contends that the UCRC violated his statutory due process rights
and acted unreasonably by failing to elicit the testimony of a subpoenaed witness. On December
20, 2010, Wright submitted a written request to the UCRC that it issue a subpoena to the
Schneider employee who allegedly trained him for a local route position. The UCRC issued the
subpoena on January 31, 2011, but the subpoenaed employee did not appear at the telephone
hearing held on February 10, 2011.
{¶20} Wright, however, failed to object to the absence of the witness at the time of the
hearing. It was not until the UCRC issued an unfavorable decision that Wright objected. In the
case of Harrison v. Penn Traffic Co., 10th Dist. No. 04AP-728, 2005-Ohio-638, the claimant
argued that he was denied due process because the UCRC hearing officer failed to enforce a
subpoena for the production of documents issued to his employer. Id. at ¶ 22-23. The claimant
elicited through cross-examination testimony that the employer failed to produce the documents,
but did not request a continuance of the hearing. Id. at ¶ 23. The Tenth District held that there
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was no reversible procedural error as the “[claimant’s] seeming acquiescence to not enforcing
the subpoenas largely negates the hearing officer’s non-action.” Id. at ¶ 26.
{¶21} Just as in Harrison, Wright failed to object to the absence of the witness or
request a continuance of the hearing. He also failed to request that the UCRC pursue a contempt
proceeding against the witness as authorized in Revised Code Section 4141.17. See also Ohio
Adm.Code 4146-15-03. “An appellate court need not consider an error which a party
complaining of the trial court’s judgment could have called, but did not call, to the trial court’s
attention at a time when such error could have been avoided or corrected by the trial court.”
State v. Williams, 51 Ohio St.2d 112 (1977), paragraph one of the syllabus. Because it is well
settled that an applicable objection must be made at the hearing level, Wright has forfeited this
argument on appeal. Smith v. Richfield Twp. Bd. Of Zoning Appeals, 9th Dist. No. 25575, 2012-
Ohio-1175, ¶ 33.
{¶22} “An issue otherwise waived may be brought up on appeal through the plain error
doctrine.” Ponder v. Kamienski, 9th Dist. No. 23270, 2007-Ohio-5035, ¶ 18. Wright, however,
does not argue plain error on appeal, and this Court declines to create such an argument on his
behalf. See State v. Zepeda-Ramires, 9th Dist. No. 12CA010275, 2013-Ohio-1224, ¶ 11.
{¶23} Because the UCRC decision is not unlawful, unreasonable, or against the manifest
weight of the evidence, the trial court did not err in affirming the decision. Accordingly, both of
Wright’s assignments of error are overruled.
III.
{¶24} Wrights’s two assignments of error are overruled. The judgment of the Lorain
County Court of Common Pleas is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, 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 Appellant.
JENNIFER HENSAL
FOR THE COURT
WHITMORE, J.
CONCURS.
BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
PATRICK D. RILEY, Attorney at Law, for Appellant.
MICHAEL DEWINE, Ohio Attorney General, and YVONNE TERTEL, Assistant Attorney
General, for Appellee.