[Cite as Marchese Servs. v. Bradley, 2009-Ohio-2618.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              PUTNAM COUNTY


MARCHESE SERVICES, INC.,

        APPELLEE,

        v.                                                       CASE NO. 12-08-06

AMBER BRADLEY,

        APPELLEE,

        v.                                                       OPINION

DIRECTOR, OHIO DEPARTMENT
OF JOB AND FAMILY SERVICES,

        APPELLANT.



                 Appeal from Putnam County Common Pleas Court
                            Trial Court No. 08-CV-24

                                     Judgment Affirmed

                              Date of Decision:         June 8, 2009




APPEARANCES:

        Eric A. Baum for Appellant

        Arthur P. Cohen and Shannon J. George for Appellee,
                Marchese Services, Inc.
Case No. 12-08-06


ROGERS, J.

       {¶1} Defendant-Appellant, Ohio Department of Job and Family Services

(“ODJFS”), appeals the judgment of the Putnam County Court of Common Pleas

reversing the decision of the Unemployment Compensation Review Commission

(“Review Commission”) and finding that just cause existed for the termination of

Amber Bradley’s employment with Marchese Services. On appeal, ODJFS argues

that the Review Commission’s decision finding that Bradley’s employment

termination was without just cause and granting her unemployment compensation

should be reinstated because the decision is supported by sufficient evidence; that

the trial court should have found Bradley’s employment termination to be without

just cause because her physical limitations were the indirect cause of her

termination, and because her request for employment opportunities that

accommodated her physical limitations was denied; and, that the trial court should

have found that Bradley was constructively, and without just cause, terminated

from her employment because her absenteeism and tardiness were the result of

being forced to commute fifty minutes round-trip while enduring pregnancy and

post-pregnancy complications. Finding that the Review Commission’s decision

was against the manifest weight of the evidence, and that just cause existed for

Bradley’s termination, we affirm the judgment of the trial court.




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      {¶2} In March, 2007, Bradley filed an application with the Ohio

Department of Job and Family Services, Office of Unemployment Compensation

(“OUC”) for unemployment compensation due to her February 2007 discharge

from her employment with Marchese Services (“Marchese”).

      {¶3} Subsequently, the OUC sent a questionnaire to Marchese, asking it

to explain the details of Bradley’s discharge. In response, Marchese stated that

Bradley was discharged for excessive tardiness and absenteeism in violation of the

company’s standard operating procedures which were disclosed to her through the

employee manual; that the reason given by Bradley for her tardiness and absences

were illnesses, doctor’s visits for her and her child, difficulties finding a

babysitter, transportation problems, and having to drive an extended distance to

work; that out of forty-nine instances of tardiness or absenteeism, she only

provided two doctor’s notes; that the company’s disciplinary procedure progresses

as follows: verbal notice, written conference summary, verbal warning,

suspension, written warning with probation, and termination; that, on September

14, 2006, Bradley was given a verbal notice due to the fact that she had taken

extensive time off; that Bradley was given a written conference summary on

November 30, 2006, which detailed her inefficient production numbers and a time

line and goals for future improvements; that she was given a verbal warning on

January 16, 2007, which detailed the company’s policy on tardiness and personal



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phone calls during work hours; that she was suspended from January 17 through

January 19, 2007, for continued problems with tardiness, absenteeism, and early

departures; that Bradley was given another warning and placed on probation from

February 19, 2007, until March 2, 2007, for continued absenteeism, tardiness, and

early departures, during which time she was required to abide by all break policies

and not permitted to have any instances of absenteeism, tardiness, or early

departures; and, that, due to her tardiness during the probation period, she was

discharged. Enclosed with its response, Marchese attached several exhibits which

detailed the company’s standard operating procedures and workplace conduct

policy, Bradley’s confirmed receipt of the employee manual and workplace

conduct policy, the company’s disciplinary procedures, and written copies of the

disciplinary actions taken against Bradley. Additionally, Marchese attached a list

of all instances of approved vacations, absenteeism, tardiness, early departures,

and extended breaks.      Out of forty-five documented instances of absences,

tardiness, early departures, or extended breaks, excluding pre-approved time off

before hire, maternity leave, and her suspension, forty-one instances were

unexcused and only four were excused for illness or doctor’s visits, of which there

were only two documented doctor’s notes.

       {¶4} Additionally, the OUC sent Bradley a questionnaire regarding the

details of her termination, to which she responded that the reason for her tardiness



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Case No. 12-08-06


during the probation period was because she had to take her four-month-old

daughter to the doctor for her scheduled check-up one day and for an allergic

reaction another day; that she furnished a doctor’s note to Marchese for these

instances of tardiness; that she was aware of the company absenteeism and

tardiness policy, but that she was not permitted to take time off for doctor’s visits

under the Family Medical Leave Act (“FMLA”) because the FMLA did not apply

to Marchese; that she had not received warnings or other discipline for instances

of tardiness or absenteeism in the past year; that she did not know if the company

had a grievance procedure, and if so, that they did not offer it to her; and, that the

reason for her tardiness and absenteeism was due to multiple required doctor’s

visits she made during her pregnancy and after her daughter’s birth.

       {¶5} On March 26, 2007, the OUC issued a determination of

unemployment compensation benefits, finding that Bradley was entitled to

benefits in the amount of $175 per week because her termination from Marchese

was without just cause, as Marchese failed to follow its established disciplinary

policy when Bradley violated the attendance procedures.

       {¶6} In April 2007, Marchese filed an appeal from the OUC’s

determination, arguing that Bradley was discharged for just cause and is, therefore,

ineligible for benefits pursuant to R.C. 4141.29(D)(2)(a), as she was absent or

tardy seventy-four days from July 20, 2006, through February 28, 2007, and she



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was discharged after the company followed its disciplinary policy, in which she

was given a verbal notice, a written conference summary, a verbal warning, a

suspension, a written warning and probation, and an additional e-mail warning

reminder. Attached to Marchese’s appeal were written copies of the disciplinary

actions taken against Bradley.

       {¶7} On May 11, 2007, the OUC issued a redetermination of

unemployment compensation, finding that Bradley was still eligible for $175 per

week, as a review of the original facts and those submitted in Marchese’s appeal

did not support a change in the initial determination. The redetermination stated,

in pertinent part:

       The claimant was discharged by Marchese Services
       Incorporated on February 28, 2007.          Evidence submitted
       establishes that the employer failed to follow the established
       disciplinary policy when the claimant violated the attendance
       procedures. Ohio’s legal standard that determines if a discharge
       is without just cause is whether the claimant’s acts, omissions, or
       course of conduct were such that an ordinary person would find
       the discharge not justifiable. After a review of the facts, this
       agency finds that the claimant was discharged without just cause
       under Section 4141.29(D)(2)(a), Ohio Revised Code.

(May 2007 Redetermination, p. 2).

       {¶8} Subsequently, Marchese filed an appeal from the OUC’s May 11,

2007 redetermination, again asserting that Bradley’s discharge was for just cause,

as she was absent or tardy for seventy-four days from July 20, 2006, through

February 28, 2007; that the company’s disciplinary procedure was followed prior


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Case No. 12-08-06


to Bradley’s discharge through the use of a verbal notice, a written conference

summary, a verbal warning, a suspension, a written warning with probation, and

an e-mail warning reminder; and, that no evidence was submitted indicating that

the disciplinary procedure was not followed. Marchese again attached written

copies of the disciplinary actions taken against Bradley.

           {¶9} Additionally, Bradley’s personal handwritten statement was filed

with the OUC1, which stated that, shortly after she started working at Marchese,

she began having pregnancy complications requiring her to make frequent doctor’s

visits; that, in August 2006, Marchese informed her that she would be required to

start working in the company’s Glandorf, Ohio, office, which was about a twenty-

five minute drive from her home; that, after a month of working in the office, she

asked if she could return to working from home, as she was concerned about going

into labor while driving to and from work; that she was told she would need to

remain working in the office; that, shortly thereafter, she took maternity leave;

that, when she returned to work, she was required to return to working in the

office, but was given the option of working only three days per week instead of the

full five days; that she decided to work the full five days because she needed the

money; that, when she was later placed on two-weeks probation, it became

impossible for her to not miss any days due to her daughter’s doctor’s appointment



1
    We note that the record does not indicate whether Bradley or Marchese filed the statement.


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Case No. 12-08-06


and subsequent illness; and, that when she missed days due to her daughter’s

doctor’s appointment and illness, she was dismissed.

      {¶10} In June 2007, the OUC transferred Marchese’s appeal to the Review

Commission.

      {¶11} In September 2007, Bradley filed a personal statement and several

documents with the Review Commission indicating that she gave birth on

September 14, 2006, while employed at Marchese; that she was discharged from

the hospital on September 16, 2006; that she returned to work the week of

November 4, 2006, approximately two weeks and three days after giving birth;

that returning to work that soon after giving birth did not give her an adequate

opportunity to get settled as a first-time mother and attend the multiple follow-up

doctor’s visits for her and her daughter; that her job was supposed to allow her to

work from home, but that Marchese asked her to work in the office soon after she

returned to work from her maternity leave; that she was given a prescription to

deal with her separation anxiety because she was forced to leave her daughter with

a babysitter when she went to work in the office; that she could not afford her

medication due to a reduction in her hours, as she was told on several occasions to

go home early or take the rest of the week off due to a lack of work; that she was

told by Marchese that they were also cutting other employees’ hours due to a lack

of work, but that she discovered by talking with other employees that she was the



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Case No. 12-08-06


only employee whose hours were reduced; and, that she was discharged when she

missed work to take her daughter to a doctor’s appointment, even though she

provided a doctor’s note.

      {¶12} In November 2007, the Review Commission held a hearing on

Marchese’s appeal, at which the following testimony was adduced.             Linda

Barbusca, a senior operations manager at Marchese, testified that Bradley was

hired on May 15, 2006, to be a canvass caller for Marchese; that she was

discharged in February 2007 due to excessive absenteeism and tardiness; that

Bradley was originally trained and worked in the Glandorf, Ohio office, but that

she was permitted to work from home for a period of time; that after working from

home for some time, Marchese required her to again work from the office due to

her low performance, her attendance problems, and for retraining; that Bradley

was asked to provide medical documentation if she was not going to be able to

work a set number of hours, and she provided this documentation for all doctor’s

appointments that she had; that, in addition to missing work hours due to doctor’s

appointments, Bradley also missed time because she could not find a babysitter,

because she had car trouble, and because of personal issues at home; that around

half of the occurrences of tardiness, absenteeism, and early departures were due to

doctor’s appointments; and, that, as she continued to have attendance problems,

she was given various warnings and suspensions pursuant to the standard



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operating procedures of the company, including a verbal warning on September

14, 2006, a written warning on January 30, 2007, a suspension from January 17

until January 19, 2007, and a two-week probation period starting on February 19,

2007.

        {¶13} Bradley testified that the reason for her last tardiness, which led to

her discharge, was that she had to take her daughter to the hospital due to either a

food reaction or the flu; that prior to this tardiness, she had received a warning that

she would be on probation for two weeks and could not miss any days; that her

husband could not take her daughter to the doctor on that occasion because he was

already at work and was the only manager on duty, and that she did not remember

if she asked her mother to take her daughter to the doctor; that she remembered

receiving other verbal warnings prior to being placed on probation; that she

remembered receiving warnings about making personal phone calls while at work

and taking extended breaks; that Barbusca’s statement that she missed work

because of car problems was incorrect, and that she was late on that day because

she had a near-collision with a tractor trailer, subsequently had a panic attack, and

needed someone to pick her up because she could not drive; that most of her

absenteeism was due to either doctor’s appointments or illnesses; and, that she

always provided Marchese with a doctor’s excuse if she missed work time due to a

doctor’s appointment.



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Case No. 12-08-06


       {¶14} Subsequently, the       Review      Commission   upheld   the OUC’s

redetermination, finding that Bradley was discharged without just cause and

stating the following findings of fact:

       Claimant has an extensive history of absenteeism and tardiness.
       However, claimant was pregnant and the majority of the
       occurrences which led to her discharge were due to her
       pregnancy issues, her personal illness, or the illnesses of her
       newborn child.

       Claimant was given the appropriate warnings as required by
       company policy before being discharged.

(Nov. 2007 Decision, pp. 1-2).

       {¶15} In December 2007, Marchese filed a request for a reassessment of

the Review Commission’s decision, stating that the reason behind the Review

Commission’s finding that Bradley was discharged was that the majority of her

attendance problems were due to either personal illness, pregnancy, or problems

with her newborn child; however, that of Bradley’s eighty-four instances of early

departures, tardiness, taking extended breaks, and being completely absent, only

thirteen were for doctor’s appointments, of which only one doctor’s note and two

appointment cards were provided.          Subsequently, Marchese’s request for a

reassessment was denied.

       {¶16} In January 2008, Marchese appealed the Review Commission’s

denial of its reassessment request to the Putnam County Court of Common Pleas,

again, arguing that the Review Commission erred in finding Bradley’s discharge


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was without just cause, as she had an extensive history of tardiness, absenteeism,

early departures, and taking extended breaks.

      {¶17} In September 2008, the trial court reversed the decision of the

Review Commission, finding that Bradley’s termination was for just cause,

thereby making her ineligible to receive unemployment compensation pursuant to

R.C. 4141.29(D)(2)(a). The trial court stated the following in its judgment entry:

      Ms. Bradley worked for employer as a canvas caller. She was
      initially permitted to work from home and as of August 2006
      was required to work at employer’s Glandorf, Ohio site during
      this period. Ms. Bradley had ongoing medical issues including
      complications from a pregnancy. Spokesperson Linda Barbusca
      reported that Ms. Bradley reported to work late or was absent
      on numerous occasions. On February 19, 2007, Ms. Bradley was
      placed on a two week probationary period and was required to
      have perfect attendance. She subsequently missed one day of
      work and was tardy for several others including February 28,
      2007, the day on which she was fired. Thirty-eight (38) absences
      or tardies are listed in the documented attendance of Amber
      Bradley. A doctor’s note was provided on four (4) occasions.

      The record reflects that Appellee had a total of eighty four (84)
      instances when she left early, came in late, took extended breaks,
      or was completely absent. In addition, thirty nine (39) days were
      off for maternity leave. Sixty two (62) instances of absenteeism
      were with no reason given.

      ***

      The record in this case clearly reflects that Appellee had a
      number of absences and for instances [sic] of being to work
      tardy. The majority of the absences were not documented * * *.
      Furthermore, the Appellee continued to fail to supply
      documentation of absenteeism after being placed on a two week
      probationary period.


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        This Court finds that the Review Commissions’ decision was
        against the manifest weight of the evidence. The discharge of
        Amber Bradley was for just cause and the determination by the
        Review Commission was in error.

(Sept. 8 Judgment Entry, pp. 2-5).

        {¶18} It is from this judgment that ODJFS appeals2, presenting the

following assignments of error for our review.

                                   Assignment of Error No. I

        IT IS UNDISPUTED THAT MS. BRADLEY WAS ENDURING
        THE EFFECTS OF A COMPLICATED PREGNANCY
        DURING     ALL    TIMES     RELEVANT     TO      HER
        UNEMPLOYMENT-COMPENSATION CLAIM. BECAUSE
        THE REVIEW COMMISSION’S FINDING THAT THE
        MAJORITY OF MS. BRADLEY’S ABSENCES RESULTED
        FROM THIS BONA FIDE ILLNESS IS SUPPORTED BY
        SUFFICIENT EVIDENCE, ITS DECISION GRANTING HER
        UNEMPLOYMENT-COMPENSATION BENEFITS SHOULD
        BE REINSTATED. (BELLEMAR PARTS INDUS., INC. V.
        BUTLER (SEPT. 27, 1991), 3RD DIST. NO. 14-90-21, 1991
        OHIO APP. LEXIS 4642, FOLLOWED).

                                  Assignment of Error No. II

        DUE TO THE RESTRICTED PHYSICAL CAPABILITIES
        RESULTING FROM HER PREGNANCY, MS. BRADLEY
        ASKED WHETHER SHE COULD REVERT TO WORKING
        FROM HER HOME. BECAUSE MARCHESE, WITHOUT
        EXPLANATION, DENIED THIS REQUEST FOR AN
        EMPLOYMENT OPPORTUNITY THAT CONFORMED TO
        HER PHYSICAL CAPABILITIES, HER TERMINATION
        WAS WITHOUT JUST CAUSE. (IRVINE V. STATE OF

2
  Although Bradley is a party to the case, ODJFS, represented by the Attorney General of Ohio, is the
actual appellant, seeking to have its unemployment compensation determination upheld. Bradley’s interest
in receiving unemployment compensation is, therefore, implicitly represented through ODJFS.


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Case No. 12-08-06


       OHIO, UNEMPLOYMENT COMP. BD. OF REV. (1985), 19
       OHIO ST.3D 15, SYLLABUS, FOLLOWED.)

                           Assignment of Error No. III

       ALTHOUGH MARCHESE’S REQUIREMENT THAT MS.
       BRADLEY WORK FROM THE GLANDORF OFFICE
       RESULTED IN CONDITIONS SO INTOLERABLE – SHE
       HAD TO COMMUTE 50-MINUTES ROUND TRIP WHILE
       ENDURING A COMPLICATED PREGNANCY – THAT A
       REASONABLE      PERSON     WOULD     HAVE   FELT
       COMPELLED TO RESIGN, MS. BRADLEY CONTINUED TO
       WORK BECAUSE OF HER FAMILY’S FINANCIAL
       SITUATION. BECAUSE HER TERMINATION RESULTED
       FROM THIS SITUATION, SHE IN EFFECT WAS
       CONSTRUCTIVELY, AND WITHOUT JUST CAUSE,
       DISCHARGED. (MAUZY V. KELLY SERVICES, INC., 75
       OHIO ST.3D 578, 1996-OHIO-265, PARAGRAPH FOUR OF
       THE SYLLABUS, FOLLOWED.)

       {¶19} Initially, we note that all three assignments are essentially arguments

of factual issues and fail to properly state specific instances of error. Accordingly,

ODJFS has failed to comply with App.R. 16(A)(3), Loc.R. 7(A) and Loc.R. 11(B),

and, pursuant to App.R. 12(A)(2), we are permitted to disregard any assignments

of error not specifically identified or separately argued. However, in the interests

of justice, we elect to address ODJFS’ assignments of error, and, due to the nature

of ODJFS’ arguments, we will address assignments of error one, two, and three

together.



                       Assignment of Error Nos. I, II, and III



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       {¶20} In its first assignment of error, ODJFS argues that its decision

granting Bradley unemployment compensation benefits should be reinstated.

Specifically, it asserts that the trial court’s finding that Bradley’s termination was

for just cause is not entitled to deference, and that the Review Commission’s

decision finding that the majority of Bradley’s absences resulted from a bona fide

illness was supported by sufficient evidence, thereby making her termination

without just cause and entitling her to unemployment compensation.

       {¶21} In its second assignment of error, ODJFS argues that Bradley’s

termination was without just cause, and, therefore, that she is eligible for

unemployment compensation because her termination resulted from Marchese’s

refusal to accommodate her physical limitations involved with her pregnancy and

post-pregnancy issues by granting her request for alternate employment

opportunities.

       {¶22} In its third assignment of error, ODJFS argues that Bradley is

eligible for unemployment compensation because she was constructively

discharged without just cause. Specifically, it contends that, although Bradley did

not resign, she, in effect, was constructively discharged because she was forced by

Marchese for illegitimate business reasons to commute fifty minutes round-trip to

work while enduring pregnancy and post-pregnancy issues, which caused her to

miss work, thereby leading to her discharge.



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                               Standard of Review

      {¶23} An appellate court will not reverse the decision of the Review

Commission as long as it is not unlawful, unreasonable, or against the manifest

weight of the evidence. Geretz v. Ohio Dept. of Job & Family Servs., 114 Ohio

St.3d 89, 91, 2007-Ohio-2941; Benton v. Unemployment Compensation Bd. of

Rev., 3d Dist. No. 6-2000-13, 2001-Ohio-2201, citing Tzangas, Plakas & Mannos

v. Ohio Bur. of Emp. Serv. (1995), 73 Ohio St.3d 694, 1995-Ohio-206, paragraph

one of the syllabus. See, also, R.C. 4141.282(H). A judgment is not against the

manifest weight of the evidence as long as it is supported by some competent,

credible evidence. C. E. Morris Co. v. Foley Const. Co. (1978), 54 Ohio St.2d

279, 280. This same standard of review applies at each appellate level of the

unemployment compensation proceeding, including the court of common pleas,

appeals court, and the Supreme Court of Ohio. Verizon N. v. Ohio Dept. of Job &

Family Servs. 3d Dist. No. 9-06-22, 2007-Ohio-112, ¶18, citing Tzangas, 73 Ohio

St.3d at 696. Accordingly, we are ‘“required to focus on the decision of [the

Review Commission], rather than that of the common pleas court[.]”’ Carter v.

Univ. of Toledo, 6th Dist. No. L-07-260, 2008-Ohio-1958, ¶13, quoting Markovich

v. Emps. Unity, Inc., 9th Dist. No. 21826, 2004-Ohio-4193, ¶10.

      {¶24} The determination of factual questions is primarily a matter for the

Review Commission Simon v. Lake Geauga Printing Co. (1982), 69 Ohio St.2d



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41, 45, and every reasonable presumption must be made in favor of the Review

Commission’s decision and its findings of fact. Carter, 2008-Ohio-1958, at ¶13.

Furthermore, an appellate court’s jurisdiction is limited to a review of the record

that was created from the administrative proceedings before the Review

Commission. Verizon N., 2007-Ohio-112, at ¶19, citing Bindas v. Admr., Ohio

Bur. of Emp. Servs., 8th Dist. No. 57425, 1990 WL 125456.

     “Just Cause” Termination and Unemployment Compensation Eligibility

       {¶25} R.C. 4141.29 governs unemployment compensation eligibility and

provides, in part:

       (D) Notwithstanding division (A) of this section, no 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 * * *.

R.C. 4141.29(D)(2)(a).

       {¶26} In order to receive unemployment compensation, the employee bears

the burden of proof to establish that the employment termination was without just

cause. Oriana House, Inc. v. Terrell, 9th Dist. No. CA 19550, 2000 WL 277906,

citing Irvine v. State Unemployment Comp. Bd. of Rev. (1985), 19 Ohio St.3d 15,


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Case No. 12-08-06


17; Shephard v. Ohio Dept. of Job & Family Servs., 166 Ohio App.3d 747, 753,

2006-Ohio-2313. Just cause is defined as ‘“that which, to an ordinary intelligent

person, is a justifiable reason for doing or not doing a particular act.”’ Gossard v.

Director, Ohio Dept. of Job & Family Servs., 3d Dist. No. 6-04-06, 2004-Ohio-

5098, ¶9, quoting Peyton v. Sun T.V. (1975), 44 Ohio App.2d 10, 12.              The

determination of whether just cause exists for an employee’s dismissal under R.C.

4141.29 is based upon whether there was some fault on the part of the employee

that led to the dismissal. Benton, 2001-Ohio-2201, citing Tzangas, 73 Ohio St.3d

694, at paragraph two of the syllabus.         Furthermore, where an employee

demonstrates ‘“unreasonable disregard for [the] employer's best interests,”’ just

cause for the employee’s termination is said to exist. Kiikka v. Ohio Bur. of Emp.

Servs. (1985), 21 Ohio App.3d 168, 169, quoting Stephens v. Bd. of Rev., 8th Dist.

No. 41369, 1980 WL 355009. See, also, Binger v. Whirlpool Corp. (1996), 110

Ohio App.3d 583, 590.

       {¶27} Excessive absenteeism and tardiness provide an employer with just

cause to dismiss an employee. Bennett v. Director, Ohio Dept. of Job & Family

Servs., 7th Dist. No. 03-MA-222, 2005-Ohio-3313, ¶28; Higgins v. Patterson

Pools, Inc., 10th Dist. No. 99AP-1394, 2000 WL 1376464. However, a dismissal

for excessive absenteeism and tardiness may be classified as being without just

cause and, therefore, eligible for unemployment compensation under R.C.



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4141.29(D)(2)(a) if the absences were the result of a bona fide illness. Durgan v.

Ohio Bur. of Emp. Servs. (1996), 110 Ohio App.3d 545, 550.

       {¶28} Furthermore, an employee’s voluntary resignation on the basis of

health problems will be found to be a resignation without just cause, and,

therefore, ineligible for unemployment compensation, unless the employee

demonstrates that a request was made for employment opportunities that

accommodated the employee’s physical capabilities. Eifel v. Ohio Dept. of Job &

Family Servs., 148 Ohio App.3d 167, 171, 2002-Ohio-2672, citing Irvine, 19 Ohio

St.3d 15, at syllabus.

       {¶29} In the case sub judice, Marchese filed several documents with both

the OUC and the Review Commission which detailed every step it took in its

discipline of Bradley, including documents evidencing a verbal notice, a written

conference summary, a verbal warning, a suspension, a written warning with

probation, and an e-mail warning reminder. Furthermore, Marchese also filed

documents detailing Bradley’s instances of absenteeism, tardiness, early

departures, or extended breaks, and even though some of those documents differed

in the exact number of days these instances occurred, they each evidenced around

forty-five occurrences, of which only around five were actually excused and

around two where doctor’s notes were provided. Even though the trial court and

Marchese stated several different numbers regarding Bradley’s instances of



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absenteeism, tardiness, or early departures, the record is clear that she missed

excessive work time, with very little of that time being excused.

       {¶30} Additionally, it is also clear from the record that Bradley submitted

very little evidence to the OUC or to the Review Commission in support of her

claim for unemployment compensation. The administrative record only contains

two doctor’s notes and one document detailing Bradley’s hospital stay when she

gave birth to her daughter. The only other evidence submitted by Bradley were

her personal statements arguing her side of the case. While Bradley asserted to the

OUC and to the Review Commission that most instances of her absenteeism,

tardiness, or early departures were due to doctor’s appointments or having to take

care of her newborn daughter, she provided almost no evidence of these

occurrences, and it is difficult for this Court to lend much credibility to her

argument that she needed to miss work on forty separate occasions in a nine month

span, in addition to her maternity leave, mostly because of illnesses or doctor’s

appointments. Even if we took Barbusca’s statement at the Review Commission’s

hearing that around half of Bradley’s occurrences of missed work time were due to

doctor’s appointments or illnesses, that still leaves over twenty instances of

unexcused absences, tardiness, and early departures, more than enough to

conclude that her discharge was for just cause.




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       {¶31} Moreover, ODJFS’ reliance upon this Court’s decision in Bellemar

Parts Indus. Inc., v. Butler, 3d Dist No. 14-90-21, 1991 WL 216877, is misplaced.

In that case we found that an employee’s discharge for absenteeism, tardiness, and

early departures on six occasions was without just cause because five of the

occasions were due to the employee’s or her child’s illness. In this case, however,

Bradley had over forty instances of absenteeism, tardiness, or early departures, of

which only about five were documented as being excused. As such, this case is

clearly distinguishable from Bellemar Parts, and we do not find its logic to be

applicable.

       {¶32} Accordingly, because of the copious documentation provided by

Marchese detailing Bradley’s excessive unexcused absenteeism and tardiness, and

the progressive discipline administered against her, and because of the dearth of

evidence submitted by Bradley to the OUC and to the Review Commission to

support her argument that her absenteeism and tardiness were due to medical

issues, we find the following: that Bradley failed to meet her burden of proof

establishing that her discharge was without just cause; that her occurrences of

missed work were not the result of a bona fide illness; that she demonstrated

“unreasonable disregard for [Marchese’s] best interests,” Kiikka, supra; and,

consequently, that her termination was for just cause. Although we are required to

make every reasonable presumption in favor of the Review Commission’s



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decision and its findings of fact, such presumptions in this case are clearly

unreasonable and against the manifest weight of the evidence.

      {¶33} Furthermore, we find to be without merit ODJFS’ argument that

Bradley was constructively discharged without just cause because Marchese failed

to provide suitable employment to accommodate to her physical limitations and

because it forced her to commute fifty minutes roundtrip to work, both causing her

to miss work time due to pregnancy and post-pregnancy issues, thereby leading to

her discharge. First, a constructive discharge analysis requires the employee to

voluntarily terminate employment, see Eifel, 148 Ohio App.3d 167, but here,

Bradley was discharged by Marchese. Second, in analyzing whether Bradley’s

termination was without just cause because Marchese failed to accommodate her

physical limitation and forced her to commute to the office, both subsequently

causing her to miss work time, the administrative record demonstrates that Bradley

only made one request for employment accommodations while she was pregnant,

asking Marchese to allow her to work from home.          Bradley did not submit

evidence to the OUC or to the Review Commission showing that she made a

subsequent request after her return from maternity leave, and she even turned

down an offer by Marchese to allow her the option of working three days per week

to better accommodate any post-pregnancy issues. While Bradley argued to the

Review Commission that it was not financially feasible for her to only work three



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days per week, she still voluntarily chose to refuse Marchese’s accommodation; as

such, she cannot now complain that her discharge was without just cause because

it resulted from Marchese’s failure to accommodate her physical limitations.

Additionally, Bradley submitted no evidence to the OUC or to the Review

Commission demonstrating the number of absences or instances of tardiness she

could have avoided had she been able to work from home instead of commute to

the office, and, as we previously mentioned, the evidence failed to support a

finding that most of her missed time was due to illnesses or doctor’s appointments.

       {¶34} Consequently, because the administrative record demonstrates that

just cause existed for Bradley’s discharge, we find that the trial court did not err in

reversing the decision of the Review Commission granting Bradley unemployment

compensation.

       {¶35} Accordingly, we overrule ODJFS’ first, second, and third

assignments of error.

       {¶36} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

PRESTON, P.J. and SHAW, J., concur.

/jlr




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