Ricks v. Ohio Dept. of Job & Family Servs.

[Cite as Ricks v. Ohio Dept. of Job & Family Servs., 2013-Ohio-3253.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99451
JACQUELINE D. RICKS
PLAINTIFF-APPELLANT
vs.
DIRECTOR, OHIO DEPARTMENT OF
JOB AND FAMILY SERVICES, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CV-772373 and CV-786006
BEFORE: Boyle, P.J., Rocco, J., and Blackmon, J.
RELEASED AND JOURNALIZED: July 25, 2013
ATTORNEYS FOR APPELLANT
Kenneth J. Kowalski
Doron M. Kalir
Cleveland-Marshall College of Law
Civil Litigation Clinic
2121 Euclid Avenue, LB 138
Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEES
For the Director of the Ohio Department of Job and Family Services
Mike DeWine
Ohio Attorney General
BY: Laurence R. Snyder
Assistant Attorney General
State Office Building, 11th Floor
615 West Superior Avenue
Cleveland, Ohio 44113
For Barkley of Cleveland, L.L.C.
Roy J. Schechter
Lichko & Schechter
230 Bridge Building
18500 Lake Road
Rocky River, Ohio 44116
MARY J. BOYLE, P.J.:
{¶1} Appellant Jacqueline Ricks appeals from the trial court’s decision affirming a
judgment of the Ohio Unemployment Compensation Review Commission (“UCRC”) that
denied her claim for unemployment benefits. Finding no merit to the appeal, we affirm.
Procedural History and Facts
{¶2} Appellee Barkley of Cleveland, L.L.C. (“Barkley”) hired Ricks in March
2010, where she worked in office and administrative support. Her employment ended on
March 16, 2011. Ricks worked part-time at Barkley. Prior to her discharge from
Barkley, Ricks was receiving some unemployment benefits for her previous employment
at University Hospitals.
{¶3} On March 17, 2011, Ricks appeared in court and was sentenced to six
months in prison. As a result of her sentence, Ricks was unable to appear for her next
scheduled shift on March 19, 2011. Ricks’s supervisor, Rachel Radcliffe, learned of
Ricks’s incarceration on the news and subsequently sent Ricks a text message. Ricks’s
boyfriend, Martin Head, saw Radcliffe’s text and then called her, notifying Radcliffe of
Ricks’s sentence but indicating that Ricks may be released sooner. According to Head,
Radcliffe informed him that Ricks would have her job back regardless of when she was
released from jail. Radcliffe further indicated that Ricks should contact Barkley if she
was released.
{¶4} In June 2011, Ricks attempted to return to work but learned that a replacement
was hired. She was told the company would keep her number if anything changed.
{¶5} Ricks subsequently applied for unemployment benefits with appellee Ohio
Department of Job and Family Services (“ODJFS”). The agency disallowed the
application, determining that Ricks had been discharged with just cause. On appeal, the
director’s redetermination affirmed the denial of benefits. A second appeal followed, and
the matter was transferred to the UCRC for an evidentiary hearing.
{¶6} On October 17, 2011, a telephone hearing was held. Ricks appeared and
offered her testimony and the testimony of her boyfriend. Barkley did not participate in
the hearing. The hearing officer subsequently issued a decision affirming the director’s
redetermination that Ricks was discharged for just cause. In support of her decision, the
hearing officer reasoned the following:
The claimant argued that a leave was granted, and therefore she
should be granted unemployment compensation. However, there is
insufficient evidence that leave was granted to serve her sentence. In this
case, the claimant admitted that the employer was unaware of her legal peril
until she was unable to return to work. It appears that there may have been
a gesture to give the claimant her job back but the employer was under no
legal obligations to do so.
{¶7} Ricks subsequently filed a request for review, and on November 30, 2011,
the UCRC issued a decision disallowing her request. Ricks appealed to the common
pleas court, which ultimately upheld the UCRC’s decision.
{¶8} Ricks appeals from that decision, raising the following two assignments of
error:
I. The hearing officer’s decision to deny Ms. Ricks unemployment
insurance benefits was unlawful, unreasonable, and against the manifest
weight of the evidence.
II. Assuming arguendo that Ms. Ricks was terminated by Barkley
for just cause, it would be inequitable to deny her unemployment benefits
completely.
Just Cause Determination
{¶9} R.C. 4141.29 sets forth the eligibility and qualifications for unemployment
benefits:
(D) * * * [N]o individual may serve a waiting period or be paid benefits under the
following conditions:
***
(2) For the duration of the individual’s unemployment if the director finds that:
(a) The individual quit work without just cause or has been discharged for just
cause in connection with the individual’s work * * *.
{¶10} “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. Unemp. Comp. Bd. of Rev., 19 Ohio St.3d 15, 17, 482 N.E.2d 587 (1985). An
employer may require specific standards of conduct and discharge employees who violate
the standards. Piazza v. Ohio Bur. of Emp. Servs., 72 Ohio App.3d 353, 357, 594 N.E.2d
695 (8th Dist.1991), citing Williams v. Ohio Bur. of Emp. Servs., 8th Dist. Cuyahoga No.
49759, 1985 Ohio App. LEXIS 9562 (Nov. 27, 1985).
{¶11} In reviewing a “just cause” determination, our standard of review is the same
as the trial court’s — i.e., an appellate court may reverse a board’s decision only if the
decision is unlawful, unreasonable, or against the manifest weight of the evidence.
Williams v. Ohio Dept. of Job & Family Servs., 129 Ohio St.3d 332, 2011-Ohio-2897, 951
N.E.2d 1031, ¶ 20, citing R.C. 4141.282(H). With respect to the standard of review, this
court recently stated:
While 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 board’s decision is supported by the evidence in the record.
This duty is shared by all reviewing courts, from the first level of review in
the common pleas court through the final appeal. Therefore, the focus of an
appellate court when reviewing an unemployment compensation appeal is
upon the commission’s — not the trial court’s — decision.
(Citations omitted.) Hertelendy v. Great Lakes Architectural Serv. Sys., 8th Dist. No.
97782, 2012-Ohio-4157, 976 N.E.2d 950, ¶ 16.
{¶12} Ricks argues that the hearing officer’s determination was unlawful,
unreasonable, and against the manifest weight of the evidence because the “hearing officer
ignored the evidence that clearly demonstrates that [she] was not terminated until after her
release from jail, and was not terminated because of her incarceration.” Ricks contends
that she was terminated on June 7, 2011, two weeks after her release from prison and
approximately a week after she notified her supervisor that she was ready to return to
work. In support of this argument, Ricks relies on an internal memo issued by Barkley to
its employees notifying them that Ricks was no longer an employee of Barkley.
{¶13} Contrary to Ricks’s assertion, there is evidence in the record that she no
longer worked at Barkley after March 16, 2011. Ricks’s own testimony before the UCRC
hearing officer was that her dates of employment were from March 24, 2010 through
March 16, 2011 — the day of the last shift that she worked. The hearing officer
obviously found the internal memo sent out to Barkley staff — not Ricks herself — was
not indicative of Ricks’s last day of employment. Instead, the hearing officer reasonably
relied on Ricks’s own testimony as well as the undisputed evidence that Ricks was
incarcerated on March 17, 2011, thereby making it impossible for her to return to work.
{¶14} To the extent that Ricks argued that Barkley implicitly granted her a leave of
absence based on her supervisor’s representation to her boyfriend, thereby allowing her to
keep her job while she was incarcerated, the hearing officer rejected this argument. The
hearing officer specifically found that the evidence was insufficient to support such a
contention. Based on the record before us, we cannot say that determination is unlawful,
unreasonable, or against the manifest weight of the evidence.
{¶15} We also find that the record evidences that Ricks was discharged as a result
of her incarceration. Prior to the agency issuing a decision on Ricks’s application for
unemployment benefits, the agency submitted a questionnaire to Barkley as part of its
fact-finding process. In its responses, Barkley indicated that Ricks had been sentenced by
a judicial officer and committed to a correctional facility. Barkley further affirmatively
indicated that Ricks “became unemployed as a direct result of the commitment to the
correctional facility.” Barkley’s answers therefore are sufficient evidence for the hearing
officer to rely on in making its just-cause determination. Notably, Ricks does not dispute
any of the evidence related to her incarceration.
{¶16} Barkley further noted in the questionnaire two cited policies in its handbook
that Ricks violated, namely, Section 4.1(z) — “failure to report an absence or late arrival”
and Section 7.20(b) — “personal leave policy does not apply if personal leave is needed as
a result of self-inflicted injury, illegal substance abuse or alcohol abuse, or illness or injury
incurred while in the act of committing a felony.” Admittedly, Section 7.20(b) does not
apply in this case. Section 4.1(z), however, does apply. And Ricks admitted at the
hearing that she never notified Barkley of her scheduled sentencing date or subsequent
sentence. To the extent that Ricks argues her boyfriend’s notification was sufficient to
satisfy the policy, Ricks offered no support for this position.
{¶17} But even assuming that Ricks demonstrated that she had not violated either
company policy, we find that her incarceration alone justified her discharge. Contrary to
Ricks’s assertion, the primary reason for Barkley discharging her was the incarceration.
This fact is prevalent throughout the director’s file as well as the proceedings before the
UCRC. Because her incarceration was a stated reason for discharge, we find her reliance
on Braithwaite v. Dept. of Commerce, 10th Dist. Franklin No. 03AP-381,
2003-Ohio-6562, to be misplaced. That case recognizes that “[a]n unemployment
compensation review commission hearing officer’s review and determination of just cause
is limited to the actual reasons for a claimant’s discharge and evidence of circumstances
not relied on by the employer may not be considered.” Id. at ¶ 13. Again, Ricks’s
incarceration was undoubtedly the primary reason for her discharge. The mere fact that
Barkley erroneously believed that the incarceration violated a policy not at issue does not
negate the just-cause finding related to the incarceration.
{¶18} The first assignment of error is overruled.
Partial Benefits for Prior Employment at University Hospitals
{¶19} In her second assignment of error, Ricks argues that it would be inequitable
to deny her unemployment benefits completely because she was previously receiving some
benefits for her prior employment with University Hospitals. ODJFS counters that this
issue was never raised before the UCRC, and therefore she is precluded from raising this
issue now on appeal. Although Ricks raised the argument for the first time in the trial
court, she failed to raise the issue before the administrative bodies below. See Evans v.
Evans, 10th Dist. Franklin No. 08AP-398, 2008-Ohio-5695, ¶ 8, quoting State ex rel.
Zollner v. Indus. Comm., 66 Ohio St.3d 276, 278, 611 N.E.2d 830 (1993) (“‘A party who
fails to raise an argument in the court below waives his or her right to raise it’ on appeal”).
We therefore decline to consider this argument on appeal.
{¶20} Judgment affirmed.
It is ordered that appellees recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
KENNETH A. ROCCO, J., and
PATRICIA ANN BLACKMON, J., CONCUR