[Cite as CHJ Corp. v. Foley, 2014-Ohio-1061.]



                    Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                      No. 100004




                                           CHJ CORP.
                                                      PLAINTIFF-APPELLANT

                                                vs.

                           MARCIE L. FOLEY, ET AL.
                                                      DEFENDANTS-APPELLEES




                                          JUDGMENT:
                                           AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-11-769556

             BEFORE:          Blackmon, P.J., McCormack, J., and Stewart, J.

      RELEASED AND JOURNALIZED:                            March 20, 2014
ATTORNEY FOR APPELLANT
Douglas P. Whipple
Whipple Law, L.L.C.
13940 Cedar Road, Suite 420
University Heights, Ohio 44118


ATTORNEYS FOR APPELLEES

For Marcie L. Foley

Michael K. Webster
800 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113


For Director of Ohio Dept. of Job and Family Services

Mike DeWine
Ohio Attorney General

Patrick MacQueeney
Assistant Ohio Attorney General
Ohio Attorney General’s Office
615 West Superior Ave., 11th Floor
Cleveland, Ohio 44113




PATRICIA ANN BLACKMON, P.J.:
       {¶1} Appellant CHJ Corp. (“CHJ”) appeals the trial court’s affirmance of the

decision      of    the   appellee   Unemployment    Compensation   Review   Commission

(“Commission”) finding appellee Marcie Foley (“Foley”) terminated her employment

with CHJ for just cause. CHJ assigns the following two assigned errors for our review:

       I. The allowance of appellee’s claim on this record is unlawful,
       unreasonable, and against the manifest weight of the evidence.

       II. The hearing officer committed prejudicial error, contrary to law, by

       considering the issue of spousal support in making his determination;

       particularly because the Domestic Relations Court was actively exercising

       its exclusive jurisdiction over the matter and because the divorce decree

       was not in evidence before the hearing officer.

       {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

decision. The apposite facts follow.

                                             Facts

       {¶3} Foley was employed with CHJ from January 1988 until she quit on April

19, 2011.          CHJ is an apartment complex.      Foley helped CHJ manage its rental

properties.

       {¶4} On April 20, 2011, Foley filed an application for unemployment

compensation benefits, which was denied on May 11, 2011, by the Office of

Unemployment Compensation.            Foley requested a redetermination, and on June 23,

2011, the redetermination request was denied.
      {¶5} On July 14, 2011, Foley filed an appeal from the redetermination to the

Commission. On August 24, 2011, a telephonic hearing was conducted with a hearing

officer. The hearing officer made the following findings.

      {¶6} Foley was married to the president of CHJ, Joseph Chiro, until their divorce

in November 2010. Prior to the divorce, Foley was permitted to come and go at will and

was paid an annual salary of $54,000. She was also given yearly bonuses and had a

401K account with CHJ. After the divorce, Chiro brought his adult children into the

company to help run operations.      Chiro took away Foley’s office keys, desk, and

computer.   He also removed her from her administrative responsibilities and added

menial chores like mopping floors.

      {¶7} Chiro also took away Foley’s personal leave. Foley was the only employee

to not receive a year-end bonus in 2010. Chiro also began recording the conversations

that occurred in the office and reviewed the conversations with his children in

closed-door meetings. Chiro forbade Foley from using her personal cellphone while at

the office, although Chiro’s son was permitted to use his personal cellphone. Chiro’s

children would also “gang up” on Foley, constantly correcting her and berating her.

When Foley complained to Chiro, he did nothing to stop the harassment.

      {¶8} On March 22, 2011, Foley told Chiro that her mother had broken her arm

and that she needed time to care for her mother. Foley asked that her time be reduced

temporarily to three days a week so that she could help her mother to recuperate. Chiro

responded by taking away Foley’s 401K contribution and salary, and changed her pay to a
strict hourly rate of $22.26 per hour. According to the hearing officer, this amounted to a

17 percent reduction in Foley’s hourly pay. Foley quit on April 19, 2011.

       {¶9} The hearing officer overturned the redetermination decision and found that

Foley quit for just cause, finding in pertinent part:

       Claimant quit due to unreasonable, harassing working conditions.
       Claimant’s boss was also her former husband and there was no one else
       with authority to stop his behavior. She reasonably sought to address her
       concerns with management to no avail.

       By reducing claimant’s pay seventeen percent Mr. Chiro gave her an
       independent, equally adequate in-and-of itself, reason to quit under Ohio
       law. A significant reduction in pay is a reasonable basis to quit. A
       reduction of ten percent is the usual rule of thumb for “significant.”
       Seventeen percent is certainly a significant reduction in pay. The pay cut
       was not appropriate under the circumstances. For that reason alone
       claimant’s quit would have been found for just cause.

Commission’s order, August 29, 2011.

       {¶10} After CHJ’s redetermination application was denied, CHJ appealed the

Commission’s decision to the Cuyahoga County Court of Common Pleas. After both

parties briefed the matter, the trial court affirmed the Commission’s decision, stating in

pertinent part:

       Pursuant to R.C. 4141.282(H), this court has jurisdiction to hear appeals
       from the UCRC. “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.” [Irvine v. Unemp. Bd. of Rev., 19 Ohio St.3d 15, 482
       N.E.2d 587 (1985). Upon review, this court finds that the UCRC’s decision
       that Foley quit her employment with CHJ with just cause is supported by
       the evidence in the record. Accordingly, the decision is affirmed.

Journal Entry, May 31, 2013.
                                  Allowance of Claim

       {¶11} In its first assigned error, CHJ argues that the Commission’s decision was

unlawful, unreasonable, and against the manifest weight of the evidence because the

evidence did not support the decision.

       {¶12} R.C. 4141.282(H) governs the standard of review for decisions made by the

Commission that applies to all appellate courts. Tzangas, Plakas & Mannos v. Ohio Bur.

of Emp. Serv., 73 Ohio St.3d 694, 697, 1995-Ohio-206, 653 N.E.2d 1207. The statute

provides that the common pleas court shall reverse the Commission’s decision only if it

finds “that the decision of the Commission was unlawful, unreasonable, or against the

manifest weight of the evidence.” R.C. 4141.282(H). Appellate courts are not permitted

to make factual findings or to determine the credibility of witnesses, but they do have the

duty to determine whether the Commission’s decision is supported by the evidence in the

record. Tzangas at 696, citing Irvine v. Unemp. Comp. Bd. of Rev., 19 Ohio St.3d 15,

17-18, 482 N.E.2d 587 (1985). See Williams v. Ohio Dept. of Job & Family Servs., 129

Ohio St.3d 332, 2011-Ohio-2897, 951 N.E.2d 1031.

       {¶13} CHJ argues that there was no evidence to support the hearing officer’s

conclusion that CHJ reduced Foley’s pay by 17 percent. Chiro explains that Foley was

switched from a salary employee to an hourly employee based on Foley’s decision to

work part-time to help her mother.    In determining her hourly rate, Chiro claims he took

the salary she earned when she worked full-time, which he estimated to be $1,968.03

every two weeks, and reduced it pro rata. He based his calculation on a 44 hour work
week because that is when the office is open for business. The hearing officer, however,

based his calculations on a 40 hour work week. Foley did not testify regarding how

many hours she worked a week.

       {¶14} If the reduction in pay was the only basis for the hearing officer finding just

cause, it would give us pause in affirming the trial court’s decision because the hearing

officer based his calculations on a 40 hour week, while CHJ based the salary on a 44 hour

week. The hearing officer does not account for why he did not base his calculations on a

44 hour week. However, the hearing officer also cited the hostile work conditions as

providing just cause for Foley’s quitting her job.

       {¶15} CHJ claims there was no specific evidence of hostile work conditions;

however, Foley testified that her desk and computer were taken away, her job

responsibilities were drastically reduced, she was verbally abused and demeaned by

Chiro’s adult children, and she was the only employee to not receive a bonus. Employee

Elizabeth Blystone corroborated Foley’s claims of a hostile work environment. Chiro, of

course, presented reasons justifying this behavior; however, it was within the hearing

officer’s discretion to determine who to believe.

       {¶16} CHJ argues that there was no evidence to support the hearing officer’s

conclusions that CHJ wrongfully took away Foley’s 401(K) contributions and wrongfully

failed to pay Foley a merit bonus. However, the only evidence before the hearing officer

was Foley’s word against Chiro’s word. No documentation was presented regarding the

401(K). Therefore, we must defer to the hearing officer regarding whom he found to be
more credible. The fact that reasonable minds might reach different conclusions is not a

basis for the reversal of the Commission’s decision. Irvine, 19 Ohio St.3d at 18, 482

N.E.2d 587.

        {¶17} CHJ argues the hearing officer erred by finding Elizabeth Blystone to be an

unbiased witness because her email, which discussed the hostile environment, showed her

disdain for Chiro and his family. Whether she was a hostile witness or not is irrelevant

because pursuant to R.C. 4141.281(C)(2), “[h]earing officers are not bound by common

law or statutory rules of evidence or by technical or formal rules of procedure.” Thus,

the Ohio Rules of Evidence do not apply to unemployment compensation hearings.

Simon v. Lake Geauga Printing Co., 69 Ohio St.2d 41, 44, 430 N.E.2d 468 (1982).

Interestingly, Blystone was a 16 year employee of CHJ’s and provided her telephonic

testimony while seated with CHJ’s attorney and Chiro, thus giving the appearance she

was testifying on behalf of CHJ.

        {¶18} Blystone testified that if it were her, instead of Foley, she would have also

quit.   Although this did constitute opinion testimony, as we previously stated, the

evidence rules do not apply to unemployment compensation hearings. Id. Even if the

evidence rules applied, her opinion would have been admissible because her lay opinion

was rationally based on her perception and helpful to the determination of a fact in issue.

See Evid.R. 701.

        {¶19} Chiro also claims that the hearing officer ignored material evidence such as

the fact that Foley violated company policies, instigated arguments, and engaged in
inappropriate behavior. However, the hearing officer heard the evidence and stated that

“although both husband and wife presented generally credible testimony, their

perceptions naturally diverged. It is not so much that either was untruthful in the hearing

as each truly saw things differently.” The hearing officer clearly believed things were as

Foley perceived them to be, not as Chiro did; it was within the officer’s discretion to

make this determination.

       {¶20} CHJ also argues that the hearing officer erred by ignoring the fact that just

prior to Foley’s resignation, Chiro had hired a private investigator to investigate whether

Foley was embezzling money from the company. None of this evidence was discussed at

the hearing beyond the fact that CHJ’s attorney stated that Foley was not given access to

the computer because of “suspicion of money being missing.” This line of questioning

was not further developed, and there is no evidence that the hearing officer prevented

introduction of this evidence. Whether she had actually stolen money was not proven at

the time of the hearing. It was within the hearing officer’s discretion to weigh the

importance of the information. Accordingly, CHJ’s first assigned error is overruled.

                           Domestic Relations Divorce Decree

       {¶21} In its second assigned error, CHJ claims that the hearing officer committed

prejudicial error by considering the issue of spousal support.

       {¶22} The hearing officer stated in his opinion that “spousal support is not

considered remuneration that would be deducted from a weekly unemployment benefit

amount.    Meaning, claimant could conceivably receive both.”           This is merely a
statement regarding how spousal support affects unemployment compensation. We have

found no provision in R.C. Chapter 4141, and CHJ has failed to cite to a provision, that

states that spousal support is considered remuneration that is deducted from

unemployment compensation. Therefore, his statement that spousal support was not

remuneration is correct.

        {¶23} The hearing officer’s statement also did not encroach on the domestic
relations court’s jurisdiction. He merely said it was “conceivable” she could receive
both. He was not ordering that she receive both.1 Accordingly, CHJ’s second assigned
error is overruled.

       {¶24} Judgment affirmed.

       It is ordered that appellees recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said 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, PRESIDING JUDGE

TIM McCORMACK, J., and
MELODY J. STEWART, J., CONCUR


       1
         While this case was pending on appeal, this court affirmed the domestic relations court’s
order that found Foley to have been constructively discharged, thereby triggering the spousal support
provision in the divorce decree. Chiro v. Foley, 8th Dist. Cuyahoga No. 99888, 2013-Ohio-4808.
