Pratt v. Kirby Co.

Respectfully, I dissent.

Margaret Pratt was laid off in October 1980 from her job as parts coordinator with the Kirby Company, a vacuum cleaner manufacturer. In December 1980 she was recalled to work at the filing bench in the polishing area. She refused this offer of employment, and, on the basis of this refusal, she was denied unemployment compensation.

The substantive issue in this case is whether the appellant unjustifiably refused "suitable work" within the meaning of R.C.4141.29(D)(2)(b), the relevant portion of which provides:

"(D) * * * [N]o individual may * * * be paid benefits under the following conditions:

"* * *

"(b) He has refused without good cause to accept an offer of suitable work when made by an employer either in person or to his last known address, or has refused or failed to investigate a referral to suitable work when directed to do so by a local employment office of this state or another state; provided, that this division shall not cause a disqualification for a waiting week or benefits under the following circumstances:

"(i) When work is offered by his employer and he is not required to accept the offer pursuant to the terms of the labor-management contract or agreement, or pursuant to anestablished employer plan, program, or policy * * *." (Emphasis added.)

The procedural context of this case is that it is on appeal from a decision of the court of common pleas, affirming the decision of the Bureau of Employment Services, denying appellant's claim for benefits. The statutory standard of review is that the administrative decision shall be affirmed unless it is "unlawful, unreasonable, or against the manifest weight of the evidence." R.C. 4141.28(O).

The appellant testified that there were three reasons why she refused work in the polishing department. First, because a "rough breed of men" worked there, and she would be the only woman. Second, the job is noisy, and dirty to the extent that workers in the polishing department are required to wear a mask. Third, because three men with four to eleven years less seniority than she¹ were recalled and were given jobs of higher classification than the job she was offered. She was very precise in her testimony.² She named the men, stated their starting dates with the company from a seniority list, and identified the jobs they were offered. She testified also that this was in violation of company policy set forth in their rule book and a memorandum sheet distributed by her employer.

The appellee, the Kirby Company, offered no evidence on its behalf.

Two issues are presented by these facts. First, was appellant offered "suitable work," within the meaning of R.C. 4141.29(D)(2)(b). The second is whether appellant was not required to accept this offer pursuant to the employer's "policy," as provided in R.C. 4141.29(D)(2)(b)(i).

The appellant bears the burden of proving that she is entitled to benefits. Shannon v. Bur. of Unemployment Comp. (1951),155 Ohio St. 53 [44 O.O. 75], paragraph one of the syllabus; Kontner v. Bd. of Review (1947), 148 Ohio St. 614, 622 [36 O.O. 241]. However, there is no provision of law requiring the claimant to prove her case by "clear and convincing evidence." The decision appealed from imposed this higher burden upon the appellant.³ For this reason the administrative decision ought at a minimum to be reversed, and the cause remanded for a determination in accordance with the proper standard of proof, on the issue of the "suitability" of the offered work.

However, I would not merely remand, but reverse and enter judgment for appellant, on the second issue presented by the facts. It was uncontested that the employer failed to follow its own seniority rules in offering higher classification jobs to men with less tenure. Whether this was an act of sex discrimination it is unnecessary for us to determine, because it was clearly a violation of company policy, and, pursuant to R.C.4141.29(D)(2)(b)(i), appellant was justified in refusing the offer of employment.

This result is not only required by the plain wording of Ohio law, but under the circumstances of this case, justice demands it.

Appendix "A" Appellant's testimony in relation to the seniority issue was as follows:

"Q. Now at the time that you were, or at the time that you had the discussion with reference to your recall, with Mr. Pamer, did you know of any jobs or did you request any jobs in, that were of a higher classification to which you felt you were entitled?

"A. Yes. I knew of the fact that the other gentleman, Steve Pohorence (phonetic) who was laid off the same period that (Referee interrupts).

"THE REFEREE: How do you spell his name for the record?

"MR. WEINBERGER: The uh, spelling is Pohorence, P-O-H-O-R-E-N-C-E, Steven, and we happen to have the seniority list here and his seniority day was April 1, 1977.

"BY MR. WEINBERGER:

"Q. Anyway, proceed and tell us what job he had been assigned upon recall.

"MISS PRATT:

"A. Okay. Upon recall he was given back the exact job that he was laid off from, which was an A-classification, the same classification I had, and it was, originally had started out in the service department, which the company then put it down into inspection, but basically what it broke down to was opening up old vacuum cleaners and determining, taking the new parts and determining what parts were covered under warranty and what parts weren't covered under warranty and so forth, but it was a job that I had worked prior to Steve getting the job.

"Q. Well was it a job of higher classification than that of the polishing department?

"A. Yeah. Well, yes. It was not only higher, but it also was a job that paid a few cents more than I was actually making at the time, as a parts coordinator.

"Q. Okay. Now you've also, uh, there was a gentleman by the name of Jose, was there not, who was called back to a position that was of a higher classification?

"A. Yes. There were two jobs in the machine shop. Again, with, it was a better classification job. It would've been in the same pay area, pay scale that I was on.

"A. Are you talking about Jose Torres?

"A. Yes.

"MR. WEINBERGER: Okay. That's spelled T-O-R-R-E-S.

"BY MR. WEINBERGER:

"Q. And his seniority date was April 22, 1970. Is that right?

"MISS PRATT:

"A. I, I believe that's the gentleman. We have so many Joses.

"MR. WEINBERGER: Vasquez.

"MISS PRATT:

"I think it is. I think it is Jose out there.

"BY MR. WEINBERGER:

"Q. Well in any event this gentleman by the name of Jose was assigned to what job classification?

"MISS PRATT:

"A. He was assigned in the machine shop to an A-classification job.

"Q. And is that a job of a higher class than that to which you were assigned in the polishing department?

"A. Yes. It's (Mr. Weinberger interrupts).

"Q. Now, I think you've also previously told me that a gentleman by the name of Ray —

"A. Yeah, Stepsicker (Mr. Weinberger interrupts).

"Q. Let's see if we can find on this. This gentleman, who you've been talking about by the name of Ray, is Raymond Fristik, F-R-I-S-T-I-K, with a seniority date of September 30, 1970. Is that correct?

"A. Yes, sir.

"Q. Okay. And what job classification was he assigned upon recall?

"A. He was placed into the main, machine shop, again an A-classification.

"Q. Is there any — there was a bumping system as a result of a company policy prior to these layoffs. Is that right?

"A. Yes, sir.

"Q. Now is there any reason why you couldn't bump into these jobs that these gentlemen were assigned to upon recall in December of 1980?

"A. Uh, they, they didn't allow it. They didn't offer it. I should've by rights I should've been offered that privilege, but they didn't offer it."

¹ Appellant was hired by appellee company April 20, 1966.

² See Appendix "A."

³ The administrator held, in relevant part:

"No clear and convincing evidence has been introduced by the claimant to establish that this offer of employment, made by The Kirby Company, would have been detrimental to the claimant's health, safety or morals."