[Cite as Barno v. Dir., Dept. of Job & Family Servs., 2018-Ohio-2133.]



                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA



                                  JOURNAL ENTRY AND OPINION
                                          No. 105933




                                           PATRICK BARNO

                                                            PLAINTIFF-APPELLANT

                                                      vs.

                                     DIRECTOR, ODJFS, ET AL.

                                                            DEFENDANTS-APPELLEES




                                          JUDGMENT:
                                    REVERSED AND REMANDED


                                        Civil Appeal from the
                               Cuyahoga County Court of Common Pleas
                                      Case No. CV-15-844729

             BEFORE:         Blackmon, J., Boyle, P.J., and Keough, J.

             RELEASED AND JOURNALIZED: May 31, 2018
[Cite as Barno v. Dir., Dept. of Job & Family Servs., 2018-Ohio-2133.]
                                                      -i-

ATTORNEYS FOR APPELLANT

Kenneth J. Kowalski
Cleveland Marshall Civil Litigation Clinic
1801 Euclid Avenue, LB 138
Cleveland, Ohio 44115

Doron M. Kalir
Cleveland Marshall Civil Litigation Clinic
Cleveland Marshall College of Law
2121 Euclid Avenue, LB 138
Cleveland, Ohio 44115


ATTORNEYS FOR APPELLEES

Mike DeWine
Ohio Attorney General

Laurence R. Snyder
Assistant Attorney General
615 West Superior Avenue, 11th Floor
Cleveland, Ohio 44113

For Great Lakes Water Treatment, Inc.

Great Lakes Water Treatment, Inc.
4949 Galaxy Parkway, Suite G
Warrensville Heights, Ohio 44128
ON RECONSIDERATION1

PATRICIA ANN BLACKMON, J.:

       {¶1}    Upon review, this court grants appellee’s application for reconsideration pursuant

to App.R. 26(A)(1). The application did not call to the attention of this court an obvious error in

our opinion; however, the manifest weight of the evidence standard of review to be applied to

civil cases merits further consideration. This court’s decision to reverse the denial of

unemployment benefits remains unchanged.

       {¶2} Patrick Barno (“Barno”) appeals from the trial court’s affirming the denial of his

application for unemployment benefits in this administrative appeal and assigns the following

errors for our review:

       I. The Review Commission Hearing Officer’s Decision is unlawful because it
       either ignored or misstated the law of Ohio on a number of important issues.

       II. The Decision of the Review Commission is erroneous in that it is
       unreasonable and against the manifest weight of the evidence.

       {¶3}    Having reviewed the record and pertinent law, we reverse the decision and

remand to the trial court. The apposite facts follow.

       {¶4}    On February 17, 2014, Barno began working for Great Lakes Water Treatment

(“GLWT”) as an “in-store lead generator.” Barno was stationed at a Home Depot, where he

signed up customers for an in-home demonstration of GLWT’s water purification system.




       1
        The original decision in this appeal, Barno v. Dir., ODJFS, 8th Dist. Cuyahoga No. 105933,
2018-Ohio-1196, released March 29, 2018, is hereby vacated. This opinion, issued upon
reconsideration, is the court’s journalized decision in this appeal. See App.R. 22 (C); see also
S.Ct.Prac.R. 7.01.
GLWT instructed Barno to tell customers that, as an incentive, they would receive a $20 Home

Depot gift card upon completion of the demonstration.

       {¶5}    According to Barno, when he was hired, GLWT explained the weekly marketing

bonus he would receive, starting at $2 for each lead that resulted in a demonstration and $25 for

each lead that resulted in a sale. Barno’s understanding was that the marketing bonus increased

based on the number of demonstrations and sales generated on a weekly basis. Although GLWT

did not give Barno any written documentation of the company’s commission structure at the time

Barno was hired, or at any other time during Barno’s employment, Barno took notes during his

interview, which reflect the following:

       $2.00 for first 2 leads – confirmed
       $3.00 for each after that
       $25.00 per system sale for first sold
       $50.00 per system sale for second sold
       $100.00 per system sale 3rd sale
       $150.00 up from there
       paid weekly

       {¶6}    On April 22, 2014, Barno notified his manager, Brian Hlavac (“Hlavac”), of two

issues he was having regarding “shortages” in his paychecks. First, Barno complained that he

was not paid for four hours that he worked. On April 28, 2014, Barno followed up with a letter

to Hlavac requesting that this issue be corrected. Hlavac determined that the hours Barno

worked were miscalculated and corrected the issue.

       {¶7}    Second, Barno complained to Hlavac that his paychecks were “short on

commissions.” Barno first became aware that one of his leads turned into a sale when the

customer came back into Home Depot to complain about his new water system. According to

Barno, he was never paid his marketing bonus for this sale. Barno also identified one other sale
for which he was allegedly never paid. According to Barno, GLWT had no record-keeping

system to inform its employees of the disposition of their leads. When Barno notified Hlavac

about the missing bonuses, Hlavac said they “would show up on the check.”

       {¶8}    Barno experienced “issues weekly” regarding unpaid or underpaid bonuses, and

“[n]early every Tuesday he complained to Mr. Hlavac that his check did not appear to include

bonuses for sales of the water purification systems.” Hlavac typically responded that he was

“going to look into it.” Ultimately, however, GLWT did nothing in response.

       {¶9}    Additionally, Barno began to question the ethical practices of GLWT.          For

example, a customer who purchased GLWT’s water purification system returned to Home Depot

“livid” and asked to cancel his contract. Barno called Hlavac, who instructed Barno to tell the

customer to continue calling GLWT’s office.        According to Barno, “GLWT would screen

incoming calls with Google Voice and likely not answer.”           Furthermore, other customers

returned to Home Depot to complain about the high-pressure sales pitch and that they never

received their promised $20 Home Depot gift cards.         According to Barno, Hlavac said in

response, “yes I know they call and call,” and GLWT’s position was to“just continue to re-pitch

them and resell them and sooner or later they would get tired and stop calling.”

       {¶10} Barno identified other GLWT practices that he felt were unethical. For example,

at the end of March or early April, Hlavac instructed Barno not to write up leads for “elderly

people * * *, Russians, Orientals, anybody in zip code 441-anything, and by the way, Indians.”

Barno was uncomfortable with these tactics and thought them to be unethical.

       {¶11} On August 26, 2014, Barno told Hlavac that he was concerned about training new

people to engage in these practices. Hlavac stated that Barno “had to do it, he had no one else.”
Barno also told Hlavac he could no longer wait to be paid correctly. Hlavac told Barno he was

being paid correctly and, according to Barno, for the first time Hlavac stated that “it depends on

what pay program you’re in.” Barno told Hlavac, “there’s only one pay program that I know

of.” Hlavac “had nothing else to say” in response. That same day, Barno quit his job, claiming

that GLWT failed to honor the bonus structure they had promised him and engaged in unethical

treatment of its customers.

          {¶12} On August 27, 2014, Barno applied for unemployment compensation benefits. On

September 26, 2014, the Ohio Department of Job and Family Services Office of Unemployment

Compensation (“ODJFS”) issued a determination disallowing Barno’s application for

unemployment compensation benefits, finding that Barno

          did not establish that he/she was compelled to quit for ethical reasons. Ohio’s
          legal standard that determines if a quit is without just cause is whether the
          claimant acted as an ordinary person would have under similar circumstances.
          After a review of the facts, this agency finds that the claimant quit without just
          cause under Section 4141.29(D)(2)(a), Ohio Revised Code.

Barno appealed this determination.

          {¶13} On November 7, 2014, the agency issued a redetermination affirming the initial

decision disallowing Barno’s unemployment benefits. The agency’s findings were identical to

the findings it made in its initial September 26, 2014 decision.             Barno appealed this

redetermination.

          {¶14} On December 12, 2014, January 5, 2015, and January 27, 2015, the Unemployment

Compensation Review Commission (“UCRC”) held telephone hearings regarding Barno’s

appeal.
[Cite as Barno v. Dir., Dept. of Job & Family Servs., 2018-Ohio-2133.]
         {¶15} On February 10, 2015, the UCRC found that Barno quit his employment without

just cause and upheld the denial of his unemployment benefits. On March 25, 2015, the UCRC

denied Barno’s request for review. Barno appealed to the Cuyahoga County Court of Common

Pleas.    On May 24, 2017, the court affirmed the UCRC decision, finding that it “is not

unconstitutional, illegal, arbitrary, capricious, unreasonable, nor unsupported by the

preponderance of substantial, reliable, and probative evidence on the whole record.” It is from

this order that Barno appeals.

                                           Standard of Review

         {¶16} Pursuant to R.C. 4141.29(D)(2)(a), and as pertinent to the facts of this case, an

employee may receive unemployment compensation if the employee quit work with just cause.

“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.” Peyton v. Sun T.V. & Appliances,

44 Ohio App.2d 10, 12, 3354 N.E.2d 751 (10th Dist.1975). See also Tzangas, Plakas &

Mannos v. Admr., Ohio Bur. of Emp. Servs., 73 Ohio St.3d 694, 653 N.E.2d 1207 (1995).

“Whether just cause exists is unique to the facts of each case.” Sinclair v. Ohio Dept. of Job &

Family Servs., 8th Dist. Cuyahoga No. 101747, 2015-Ohio-1645, ¶ 4.

         {¶17} Applications for unemployment benefits begin with ODJFS, which issues an initial

determination allowing or disallowing the claim. These determinations may be appealed, by

either the employee or the employer, to the UCRC, which acts as the trier of fact and issues a

decision regarding ODJFS’s determination. This decision may be appealed to the court of

common pleas. Pursuant to R.C. 4141.282(H)

          [t]he 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.

       {¶18} “At the outset, there should be no question that a court of appeals has the authority

to reverse a judgment as being against the manifest weight of the evidence.”              Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 7. “In civil cases, the

concepts of sufficiency of the evidence and weight of the evidence continue to be sources of

confusion, particularly as to what standard of review should apply when a verdict is challenged

as being against the weight of the evidence.” Id. at ¶ 9.

       {¶19} In Eastley, the Ohio Supreme Court held that “the Thompkins standard of review

for manifest weight of the evidence applies in civil cases.” Id. at ¶ 16.

       Weight of the evidence concerns “the inclination of the greater amount of

       credible evidence, offered in a trial, to support one side of the issue rather than the

       other. It indicates clearly to the jury that the party having the burden of proof

       will be entitled to their verdict, if, on weighing the evidence in their minds, they

       shall find the greater amount of credible evidence sustains the issue which is to be

       established before them. Weight is not a question of mathematics, but depends

       on its effect in inducing belief.

(Emphasis sic.) Eastley at ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997). See also State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d

1264, ¶ 25, (a manifest weight of the evidence argument concerns the quality, rather than the

quantity, of evidence and “addresses the evidence’s effect of inducing belief. In other words, a
reviewing court asks whose evidence is more persuasive — the state’s[/plaintiff’s] or the

defendant’s?”).

       {¶20} The Eastley court noted that “neither the constitution nor statutes nor rules of

procedure treat civil cases differently from criminal cases with regard to appellate review on the

issues of sufficiency and manifest weight.” Id. at ¶ 17. The court further explained as follows:

       because “manifest weight of the evidence” refers to a greater amount of credible
       evidence and relates to persuasion, it does not matter that the burden of proof
       differs in criminal and civil cases. In a civil case, in which the burden of
       persuasion is only by a preponderance of the evidence, rather than beyond a
       reasonable doubt, evidence must still exist on each element (sufficiency) and the
       evidence on each element must satisfy the burden of persuasion (weight).

       ***

       In weighing the evidence, the court of appeals must always be mindful of the
       presumption in favor of the finder of fact.

       “[I]n determining whether the judgment below is manifestly against the weight of
       the evidence, every reasonable intendment and every reasonable presumption
       must be made in favor of the judgment and the finding of facts. * * *

       “If the evidence is susceptible of more than one construction, the reviewing court
       is bound to give it that interpretation which is consistent with the verdict and
       judgment, most favorable to sustaining the verdict and judgment.”

       Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273
       (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at
       191-192 (1978).

Eastley at ¶ 19-21. Compare Portage Cty. Bd. Of Dev. Disabilities v. Portage Cty. Educators’

Assn. for Dev. Disabilities, Slip Opinion No. 2018-Ohio-1590, ¶ 2 (“When reviewing a trial

court’s decision to confirm, modify, vacate, or correct an arbitration award, an appellate court

should accept findings of fact that are not clearly erroneous but should review questions of law

de novo”).
       {¶21} “There is no distinction between the scope of review of common pleas and

appellate courts regarding just cause determinations under the unemployment compensation law.

* * * Accordingly, [an appellate court] is bound by the same limited scope of review as the

common pleas court.” Sinclair at ¶ 6.

                                  UCRC Hearing Testimony

       {¶22} Barno testified that he noticed commission shortages on his paychecks dated

February 25, 2014, and March 4, 2014. According to Barno, he knew there was a problem with

his paychecks, but he “didn’t know how to track it. * * * Not having any disposition regularly, I

never know what’s been * * * purchased and what’s to be paid, but I was aware * * * that there

was a sale and knew it was to be paid and hadn’t been.” According to Barno, he was the only

in-store marketer for GLWT in that particular Home Depot, and all sales were necessarily

generated through him. However, on cross-examination, Barno testified that it was possible for

someone to get a new GLWT water system from the Home Depot at which he was stationed

without him generating the lead. For example, some leads are generated through the appliance

department at Home Depot, where “associates are trained and signs are posted in the store for

customers who may be interested in having their water tested * * *.”

       {¶23} Additionally, Barno would notice that when he did get paid commission on a sale,

it was “short paid. * * * Typically, it was in that $25 to $50 range. It’s hard to know when I get

no disposition with my leads. All I get is a one line marketing bonus figure. No disposition * *

* in my paperwork as to who they actually got to and did a water test and who and when and

where they sold.”
       {¶24} Barno also testified about what he perceived as “violation[s] of acceptable moral

and legal standards on the part of GLWT.” According to Barno, Hlavac told him that Hlavac

“has problems with communicating with anybody of the foreign tongue. He also would not

want to try to sell to anyone from India because in his words our water’s like gold to them * * *.”

 Barno told Hlavac that he felt this was discriminatory, but Hlavac said “it has to go on. It’s a

demand” that Barno do it.

       {¶25} Barno testified that more “problems became apparent when in May and June many

people came in and complained that they went through the process, it was a terribly long process.

 It took them three hours. They never anticipated three hours and, of course, when they didn’t

buy they didn’t receive the $20 gift card.”      Barno further testified that he had “ongoing”

discussions with Hlavac about this issue.

       {¶26} Asked why he did not “reach out” to anyone else at GLWT to discuss the issues he

was having, Barno testified that Abe Bahhage (“Bahhage”), the president of GLWT, “is a very

hard man to reach,” and that he “was told by [Hlavac] all correspondence goes through him.”

According to Barno, Hlavac told him that Bahhage was “not to be bothered” with questions

about his paycheck. In May, Barno left Bahhage a message regarding Hlavac’s instructions

about approaching “various groups,” but never got a call back. According to Barno, GLWT is a

small company and there is not anybody else to report to.

       {¶27} Bahhage testified that GLWT employs three to four in-store marketers, and during

the period Barno was employed, there was only one pay structure. Bahhage testified that they do

not pay commissions to in-store marketers. “Commissions are paid to the outside sales rep who

actually goes out and does the sale. The lead generators [are] paid hourly and [they get] a bonus
based on production” for every in-home water test demonstration and every sale. According to

Bahhage, GLWT does not have a written employee handbook or policy manual; rather, GLWT

would notify employees of the pay scale and bonus structure the day of the interview and during

training the first week on the job. GLWT prepared a document for the UCRC hearing, which

explained the bonus structure as follows:

       1-9       DEMOS/week        $2.00 each
       10-14 DEMOS/week $3.00 each
       15-19 DEMOS/week $4.00 each
       1-4       SALES/week $5.00 each
       5-9       SALES/week $10.00 each

       {¶28} “[E]very once in a while somebody will come in and say * * * I had * * * 14

demos. I was paid for you know 12. * * * And then we say * * * no problem * * * and this

happens * * * every once in a while on payday * * * and then we look it up and we correct it.

We always correct it. Twenty-eight years in business.” Bahhage further stated that “[t]his has

happened with [Barno] as well * * * and we fixed it.”

       {¶29} Bahhage testified that Hlavac

       expressed some frustration * * * always trying to explain the same thing as far as
       the pay program over and over on the demos and the sales to Mr. Barno. * * * [I]t
       seemed that Mr. Barno felt that anytime he talked to somebody at the
       store that that should be a demo and * * *, the fact of the matter is when we
       call these people after the fact we end up talking to somebody’s wife who says no
       we’re not interested and those leads never see the light of day, and we explained
       that weekly to him every time we gave him his * * * paycheck there was a
       bonus and that bonus was explained this is * * * four demos and a sale or
       three demos and no sales or no demos but hey try again next week * * * keep the
       leads coming and * * * so every week we went over that program so Brian was a
       little frustrated that [Barno] never seemed to understand * * * the pay program.

***
       On Tuesday we have a short meeting to go over your production last week and see
       if we can help you, motivate you, and so forth. We would then hand you your
       paycheck and on the paycheck there would be your hours as well as any bonus
       you’ve earned. The bonus you’ve earned, we would then go through your
       appointments that you * * * generated and we would give you the dispositions,
       what happened with each one and what sales were there and we would actually
       hand you the check and that’s it. If there was a mistake that was made or a
       discrepancy, we would correct it on the spot * * *.

       {¶30} Bahhage never personally went through this with Barno, but he was “in the room

when that was happening.”

       {¶31} According to Bahhage, GLWT was not aware of Barno’s “feeling” that GLWT

paid “$25 * * * per sale and a $50 per sale” until he applied for unemployment, and this “comes

as a huge surprise. * * * I thought he knew that I was very approachable. I’m always in the

office and * * * for the most part my door is open. * * * If you’re not satisfied with anything or

with your manager you come and see me. Everybody knows that.” Bahhage testified that he

never received any letters or voicemails from Barno.

       {¶32} As to Barno’s allegations of unethical practices, Bahhage testified that potential

customers need to be homeowners, and they need to be available for the in-home demonstration.

Furthermore, GLWT’s policy toward selling their products to elderly customers is “really a gray

area.” Bahhage testified that “the issue with the elderly sometimes is * * *, if they’re older

* * *, if we end up in somebody’s home * * *, the children might not be happy about that

situation. I certainly wouldn’t be if somebody went to visit my mother and tried to sell her

something.”    According to Bahhage, GLWT expects “a judgment call on that.”               Bahhage

testified that GLWT has no other customer qualifications or requirements “whatsoever.”

       {¶33} Hlavac testified that he is a marketing manager at GLWT and has been employed

with the company since October 2012. According to Hlavac, on the day Barno quit, he attended

the Tuesday meeting to pick up his paycheck. When Barno looked at his paycheck, he “said he
didn’t understand the * * * bonus structure again, which I had explained to him on numerous

occasions and he said that he quit.” Hlavac testified that Barno was under the impression that he

would get a bonus for every lead he generated, rather than for demonstrations and sales. “I

believe that’s where the discrepancy was and I tried to explain that” to Barno. Hlavac also

denied receiving a letter in April from Barno regarding Barno’s concerns about his paycheck.

       {¶34} As to Barno’s ethical concerns, Hlavac testified that GLWT had a “target

demographic” regarding customers that the in-store marketers were instructed to approach at

Home Depots. Hlavac does not recall Barno ever raising any concerns he had over “venturing

outside this demographic.”

       {¶35} In the case at hand, the UCRC’s decision was based on the following reasoning:

       [Barno] argued that he quit because he had consistently not been paid the bonuses
       he believed he was due and because of ethical objections with company
       procedures. * * * While [Barno] had been aware of these issues for several
       months, he did not quit until August 26, 2014. During that time * * * any
       concerns he mentioned were only brought to his immediate supervisor. Although
       [Barno] was in the main office every Tuesday, and Mr. Bahhage’s office was very
       close to the meeting room, [Barno] admits that he never spoke with Mr. Bahhage
       about his concerns or the alleged failure of Mr. Hlavac to properly address those
       concerns. The evidence does not establish that the employer’s conduct was so
       unreasonable or egregious as to constitute just cause for quitting. Accordingly,
       [Barno] quit work without just cause.

       {¶36} In reaching this conclusion, the UCRC based its decision on 1.) The time that

elapsed between Barno’s “awareness” of workplace issues and Barno’s quitting; 2.) Barno’s

failure to report workplace issues to anyone other than his “immediate supervisor”; and 3.) The

“reasonableness” of GLWT’s failure to address Barno’s concerns in light of number one and

number two.
       {¶37} First, in Morad v. Dir., O.D.J.F.S., 8th Dist. Cuyahoga No. 86296,

2006-Ohio-1350, ¶ 38, this court reversed a UCRC’s decision as being “unlawful, unreasonable,

and against the manifest weight of the evidence” when the hearing officer found the employee’s

reason for quitting was not credible “because she did not ‘immediately’ quit.” Morad at ¶ 35.

There is no requirement that an employee quit “immediately” after a concern arises to be eligible

for unemployment compensation.

       {¶38} Second, “Ohio courts have determined that a person who quits because of a

problem with working conditions must first notify the employer of the problem and provide the

employer with the opportunity to deal with the problem.” Belle Tire Distrib. Inc. v. Dir., Ohio

Dept. of Jobs & Family Servs., 8th Dist. Cuyahoga No. 97102, 2012-Ohio-277, ¶ 16. The

UCRC’s finding that Barno “only” notified his immediate supervisor of the issues and “never

spoke with Bahhage about his concerns” is not evidence that Barno failed to satisfy the notice

requirement. We find that raising an issue with management effectively notifies the employer of

the alleged problem.

       {¶39} Third, we find that the UCRC’s focus on GLWT’s conduct to determine whether

Barno quit his employment with just cause was improper.          See Ohio Turnpike Comm. v.

Saunders, 8th Dist. Cuyahoga No. 61059, 1992 Ohio App. LEXIS 5708 (Nov. 12, 1992) (“just

cause for quitting employment * * * requires a lack of fault on the part of the employee”); King

v. State Farm Mut. Auto Ins. Co., 112 Ohio App.3d 664, 669, 679 N.E.2d 1158 (6th Dist.1996)

(“a statutory administrative proceeding under R.C. Chapter 4141 centers on ‘just cause’ and the

conduct of the employee”).
[Cite as Barno v. Dir., Dept. of Job & Family Servs., 2018-Ohio-2133.]
        {¶40} Additionally, upon review, we find that the UCRC ignored undisputed evidence in

the record. See generally Breeze, Inc. v. Testa, Slip Opinion No. 2017-Ohio-7801, ¶ 15 (“We

will reverse [administrative agency] decisions that are ‘unreasonable or unlawful.’         It was

unreasonable for the [administrative agency] to ignore Breeze’s evidence of its intent regarding

its lease with Horizon and focus solely on the excess of rental income over expenses”).

Although GLWT testified as to its bonus structure, the only evidence in the record as to what

GLWT told Barno during his interview is Barno’s testimony, the notes Barno took during his

interview, and the April 28, 2014 letter Barno wrote to Hlavac, which states, in part, as follows:

“Per our agreement, #1 would pay $25.00 and #2, $50.00.” GLWT did not present any evidence

contradicting Barno’s understanding of the bonus structure, other than a document prepared after

the fact and specifically for the UCRC hearing. What GLWT promised to pay Barno and what it

actually paid Barno are two different things, and GLWT presented no evidence regarding what it

promised to pay Barno. In reviewing the UCRC’s decision, it is clear that the hearing officer

failed to consider Barno’s unrefuted testimony and documentary evidence. Compare Sinclair v.

ODJFS, 8th Dist. Cuyahoga No. 101747, 2015-Ohio-1645, ¶ 25-32 (UCRC must consider

evidence in the record and can “discredit” or weigh the sufficiency of certain evidence by making

credibility determinations).

        {¶41} The UCRC did not find Barno’s version of events or GLWT’s version of events

more credible than the other; rather, it based its decision on GLWT’s conduct, i.e., the failure to

address Barno’s concerns after Barno complained to his direct supervisor, Hlavac, but not to the

owner of the company, Bahhage, as not being “so unreasonable or egregious as to constitute just

cause for quitting.” Furthermore, GLWT explained why it instructed Barno to avoid elderly
customers and why it required customers to be homeowners. Additionally, GLWT explained

that it instructed Barno to avoid customers who do not speak English. However, GLWT did not

deny that Hlavac told Barno to avoid “Russians, Orientals, or Indians,” and GLWT presented no

evidence at all regarding Barno’s allegation that customers did not receive the promised Home

Depot gift cards or that GLWT ignored customer phone calls related to canceling contracts.

Again, we find that the UCRC’s decision overlooks Barno’s evidence.

       {¶42} Upon review, applying the standard set forth in Eastley regarding manifest weight

of the evidence in civil cases, we find that the greater amount of credible evidence in the record

supports the conclusion that a reasonable person would have just cause to quit his or her job

under the same conditions. The only evidence presented to the hearing officer was that Barno

was not paid what GLWT promised him during his interview. This evidence is unrefuted,

credible, and a significant reason for Barno leaving his job. Barno properly notified GLWT of

his concerns, and the company, while neither denying nor admitting what it told Barno regarding

the bonus structure, failed to satisfactorily remedy the situation. The weight of the evidence also

shows that a reasonable amount of time elapsed between Barno’s realization of his employment

issues, his repeatedly notifying Hlavac of the problems, his realization that GLWT was not going

to remedy the situation, and his quitting.

       {¶43} Accordingly, the UCRC’s decision that Barno quit his employment without just

cause is against the manifest weight of the evidence. Barno’s two assigned errors are sustained.

       {¶44} The trial court’s judgment is reversed, and this case is remanded for further

proceedings consistent with this opinion.

       It is ordered that appellant recover from appellees costs herein taxed.
       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the Cuyahoga County 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.




PATRICIA ANN BLACKMON, JUDGE

MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
