[Cite as Shaffer v. Dir., Dept. of Job & Family Servs., 2012-Ohio-844.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

SANDRA SHAFFER                             :
                                                    :       Appellate Case No. 24762
        Plaintiff-Appellant                         :
                                                    :       Trial Court Case No. 2009-CV-06771
v.                                                  :
                                                    :
DEPARTMENT OF JOB & FAMILY                          :
SERVICES DIRECTOR, et al.                           :       (Civil Appeal from
                                                    :       (Common Pleas Court)
        Defendant-Appellees                :
                                                  :
                                               ...........

                                               OPINION

                               Rendered on the 2nd day of March, 2012.

                                               ...........

DAVID TORCHIA, Atty. Reg. #0015962, Tobias, Torchia & Simon, 911 Mercantile Library
Building, 414 Walnut Street, Cincinnati, Ohio 45202
       Attorney for Plaintiff-Appellant

MICHAEL DEWINE, Atty. Reg. #0009181, by AMY L. KEEGAN, Atty. Reg. #0084353, and
PATRIA V. HOSKINS, Atty. Reg. #0034661, Office of the Attorney General, Health &
Human Services Section, 30 East Broad Street, 26th Floor, Columbus, Ohio 43215
     Attorney for Defendant-Appellees

                                                          .............

HALL, J.

                         {¶ 1} Sandra Shaffer appeals from the trial court’s July 8, 2011

decision, entry, and order affirming an administrative decision upholding the denial of her

application for unemployment benefits.
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                       {¶ 2} In her sole assignment of error, Shaffer contends the trial court

erred in affirming an administrative decision that was unreasonable and against the weight of

the evidence.

                       {¶ 3} The record reflects that Shaffer worked as an on-site manager

for CBS Personnel Services from July 1998 through December 15, 2005. Her responsibilities

included supervising temporary workers at their job sites. In the administrative proceedings

below, Shaffer testified that beginning in late August 2005 she was assigned to two of CBS’s

accounts, Kohl’s warehouse and Deceunick of North America. According to Shaffer, she never

before had been required to manage two accounts simultaneously. Between the two

assignments, Shaffer claimed she was working seven days a week and fifteen to eighteen hours

per day (i.e., 105 to 126 hours per week). She testified that her health began to suffer and that a

doctor recommended quitting her job. Shaffer further testified that she unsuccessfully sought

extra help from her supervisors. Unable to cope with the situation any longer, she resigned on

December 16, 2005.

                       {¶ 4} Shaffer then applied for unemployment benefits. Her application

initially was approved. The Office of Unemployment Compensation found that she had just

cause to quit because CBS required her “to work hours that were substantially less favorable

than those prevailing for similar work in the locality” and failed to correct the situation despite

her objections. Upon redetermination, the benefits approval was affirmed. CBS appealed that

decision to the Unemployment Compensation Review Commission. The case proceeded to a

telephone hearing during which the only witness was CBS vice-president Carla McKelvey.

Based on McKelvey’s testimony, the Review Commission denied Shaffer’s claim. When
                                                                                          3


Shaffer’s request for further review was disallowed, she appealed to the trial court.

               {¶ 5} On May 12, 2009, the trial court remanded the case to the Review

Commission for a new hearing based on Shaffer’s non-participation in the first hearing. At the

new hearing, Shaffer and McKelvey both testified. Shaffer’s testimony was consistent with the

version of events set forth above. For her part, McKelvey denied that Shaffer was required to

manage the Kohl’s and Deceunick accounts simultaneously. She testified that Shaffer worked

the Deceunick account through October 2005 and then was assigned to the Kohl’s account in

November 2005. McKelvey admitted knowing that Shaffer sometimes would “stop in” at

Kohl’s while managing the Deceunick account. McKelvey testified, however, that Shaffer was

not required to do so. She further testified that Shaffer was not required to work fifteen- to

eighteen-hour days.

               {¶ 6} McKelvey also disputed Shaffer’s claim about not receiving assistance.

According to McKelvey, Shaffer received additional help when she requested it. McKelvey

named several people who were sent to help Shaffer. McKelvey further testified that Shaffer

was permitted to take a two-week vacation in November 2005. Finally, McKelvey testified

that the only real difference between the fall of 2005 and prior years was that CBS had

switched to a new automated payroll system. McKelvey stated that Shaffer became

“backlogged” in her work while struggling to learn the new system.

               {¶ 7} Following the hearing, the Review Commission denied Shaffer’s claim.

The Review Commission’s decision contained the following factual findings:

               Claimant worked as the on-site manager from July 8, 1998, through

       December 16, 2005.
                                                                                          4


                 Claimant worked as the on-site manager at a Kohl’s warehouse. Each

       fall Kohl’s hires a substantial number of temporary workers through CBS

       Personnel Services to meet demand for merchandise leading up to Christmas.

       As many as 300 employees are supplied by CBS Personnel. The fall of 2005

       was claimant’s fourth year managing the account. Although claimant also

       managed another account, after October 31, 2005, claimant worked strictly at

       Kohl’s.

                 In mid-November 2005, claimant asked for assistance managing the

       account. Another employee was sent to the location to assist claimant.

       Claimant requested a 2 week vacation in November 2005. Her request was

       granted.

                 CBS Personnel instituted a swipe card attendance system in the fall of

       2005. Claimant had difficulty adjusting to the change in the timekeeping

       system.

                 On December 16, 2005, claimant met with her supervisors at CBS

       Personnel. She submitted her resignation. She mentioned the stress of the job

       and also domestic issues that led to her decision. Claimant has also contended

       that she was advised by her physician to quit the job. She did not present any

       medical documentation to the employer, or to the Review Commission,

       advising her to quit her employment with CBS Personnel Services.

                 {¶ 8} After making these factual findings, the Review Commission reasoned

as follows:
                                                                                         5


               Claimant contends that she justifiably resigned her position with CBS

       Personnel Services due to the stress of managing a difficult account. The

       Review Commission disagrees with claimant’s contention.

               Claimant had managed the Kohl’s warehouse account during the

       pre-holiday months for many years. She was fully aware of the stress of

       managing the account during the busiest time of the year. The employer tried to

       help by assigning another employee to assist claimant. They also allowed

       claimant to take a two-week vacation in November 2005. The evidence

       suggests that claimant had other sources of stress outside of the workplace.

       Regarding claimant’s health concerns, there has been no evidence that a

       medical professional advised her to quit her employment. For these reasons, it

       will be held that claimant quit employment with CBS Personnel Services

       without just cause.

               {¶ 9} Shaffer appealed the Review Commission’s decision to the trial court.

On July 8, 2011, the trial court affirmed the Review Commission’s denial of unemployment

benefits. In relevant part, the trial court, with emphasis in the original, reasoned:

               The evidence in the record supports the Commission’s decision that

       Appellant quit without just cause. Appellant had worked for Employer for

       several years and knew that her job duties ramped up in the fourth quarter. The

       Review Commission found more credible that testimony from the Employer

       demonstrating that Appellant was assigned only to Kohl’s from October 2005

       through the end of her employment. Credible testimony from the Employer also
                                                                                          6


       demonstrated that, when Appellant asked for help with her workload, she was

       given assistance. She was also given a two week vacation during the busiest

       part of the year. Furthermore, Appellant failed to provide any documentation or

       evidence other than her self-serving testimony that she quit her job because her

       physician recommended that she quit. If Appellant ultimately required a

       less-stressful position, she had a duty to inquire about other reasonable

       solutions before voluntarily resigning her position with only two weeks left of

       the “busy season.”

              {¶ 10}        Our appellate review of a denial of unemployment benefits is

limited. Johnson v. SK Tech., Inc., 2d Dist. Montgomery App. No. 23522, 2010-Ohio-3449,

¶18, citing Silkert v. Ohio Dept. of Job & Family Services, 184 Ohio App.3d 78,

2009-Ohio-4399, 919 N.E.2d 783, ¶26 (2d Dist.). “An appellate court may reverse the

Unemployment Compensation Board of Review’s ‘just cause’ determination only if it is

unlawful, unreasonable or against the manifest weight of the evidence.” Tzangas, Plakas &

Mannos v. Ohio Bur. of Emp. Serv., 73 Ohio St.3d 694, 1995-Ohio-206, 653 N.E.2d 1207,

paragraph one of the syllabus. “All reviewing courts, including common pleas, courts of

appeal, and the Supreme Court of Ohio, have the same review power and cannot make factual

findings or determine witness credibility. * * * However, these courts ‘do have the duty to

determine whether the board’s decision is supported by evidence in the record.’” Silkert at

¶26, quoting Tzangas.

              {¶ 11}     Ohio Revised Code Section 4141.29 establishes the eligibility

requirements for unemployment benefits. A claimant is ineligible if she quits her job without
                                                                                            7


“just cause.” R.C. 4141.29(D)(2)(a). The issue before us is whether Shaffer had just cause to

quit her job with CBS. “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 Review, 19 Ohio St.3d 15, 17, 482 N.E.2d 587 (1985). In

conducting our review, we bear in mind that the unemployment compensation statutes should

be construed liberally in favor of the applicant. Clark Cty. Bd. of Mental Retardation & Dev.

Disabilities v. Griffin, 2d Dist. Clark App. No. 2006-CA-32, 2007-Ohio-1674, ¶10.

               {¶ 12}     Upon review, we reject Shaffer’s argument that the Review

Commission’s decision was unreasonable and against the weight of the evidence. The crux of

Shaffer’s argument below was that CBS required her to manage two accounts simultaneously

and largely ignored her pleas for help. Shaffer claimed this forced her to work seven days a

week and fifteen to eighteen hours per day. Shaffer asserted that this situation was

unreasonable, that it affected her health, and that it gave her just cause for quitting.

               {¶ 13}       Citing her own testimony, Shaffer repeats the foregoing theme on

appeal. She first contends the Review Commission incorrectly found that she was managing

only one account at a time. This finding, however, is supported by the testimony of CBS

vice-president McKelvey, which the Review Commission was entitled to credit. See, e.g.,

Futey v. Ohio Dept. of Job & Family Services, 5th Dist. Richland App. No. 04 CA 14,

2004-Ohio-5400, ¶14 (recognizing that “the resolution of factual matters is within the

province of the Review Commission and its hearing officers as triers of fact”).

               {¶ 14}       Shaffer next claims the Review Commission incorrectly “made it

appear that the job did not change and Appellant was simply working at Kohl’s as she had in
                                                                                             8


the past and that she had been able to handle the stress in previous years.” Shaffer asserts that

this is incorrect because (1) she was simultaneously managing two accounts in the fall of 2005

instead of just one and (2) the work load on the Kohl’s account had increased in the fall of

2005 but she had not been given extra help. Once again, however, McKelvey testified to the

contrary. As set forth above, McKelvey stated that Shaffer was not required to manage two

accounts simultaneously. McKelvey also testified that the only real difference between the fall

of 2005 and prior years was that CBS had implemented a new automated payroll system,

which caused Shaffer trouble. McKelvey testified that CBS provided extra help to alleviate the

situation and gave Shaffer a two-week vacation during the company’s busy season. The

Review Commission was entitled to credit McKelvey’s testimony.

               {¶ 15}      Shaffer next complains that the Review Commission improperly

discounted her testimony about medical problems and a doctor’s suggestion that she should

quit her job. The weight to be given to Shaffer’s testimony, however, was a matter for the

Review Commission to resolve as the trier of fact. In evaluating Shaffer’s testimony, the

Review Commission was entitled to consider the absence of any medical documentation to

support her allegations.

               {¶ 16}      Shaffer also asserts that CBS failed to provide her with sufficient

help, despite her requests, and that the lack of help compelled her to work fifteen to eighteen

hours a day, seven days a week. As a factual matter, the Review Commission found, based on

McKelvey’s testimony, that Shaffer did receive help when it was requested and that she was

permitted to take a two-week vacation in November 2005. The Review Commission’s factual

finding that Shaffer was not required to manage two accounts simultaneously also undercuts
                                                                                           9


Shaffer’s claim that CBS required her to work fifteen to eighteen hours a day, seven days a

week. In her own testimony, Shaffer asserted that these extreme hours were necessary because

she was required to manage two accounts at once. In light of the Review Commission’s

contrary finding that Shaffer was not required to manage two accounts at once, it reasonably

follows that she was not compelled to work fifteen to eighteen hours a day, seven days a week.

               {¶ 17}    Finally, Shaffer contends it was “undisputed” below that she worked

fifteen to eighteen hours a day, seven days a week. We disagree. In the first evidentiary

hearing, McKelvey explicitly denied that assertion. In the second evidentiary hearing,

McKelvey testified that such hours “would not have been required of her.” Moreover, the

Review Commission’s factual finding that Shaffer was not required to manage the Kohl’s and

Deceunick accounts simultaneously undermines Shaffer’s claim that CBS forced her to work

105 to 126 hours per week.

               {¶ 18}     On the record before us, we cannot say the Review Commission’s

finding of no just cause for Shaffer to quit her job was unlawful, unreasonable, or against the

weight of the evidence. Accordingly, we overrule her assignment of error and affirm the

judgment of the Montgomery County Common Pleas Court.

                                                  .............


GRADY, P.J., and FROELICH, J., concur.


Copies mailed to:

David Torchia
Amy L. Keegan
Patria V. Hoskins
Hon. Steven K. Dankof
