[Cite as Michaels v. KTLA Invests., L.L.C., 2013-Ohio-2933.]




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

     ROBIN S. MICHAELS                                  :
                                                        :      Appellate Case No. 25403
                Plaintiff-Appellant                     :
                                                        :      Trial Court Case No. 2012-CV-2234
     v.                                                 :
                                                        :
     KTLA INVESTMENTS LLC, et al.                       :      (Civil Appeal from
                                                        :      (Common Pleas Court)
                Defendant-Appellee                      :
                                                        :
                                                    ...........
                                                    OPINION
                                      Rendered on the 3rd day of July, 2013.
                                                    ...........




     DAVID M. DUWEL, Atty. Reg. #0029583, Duwel Law, 130 West Second Street, Suite 2101,
     Dayton, Ohio 45402
           Attorney for Plaintiff-Appellant

     MICHAEL DeWINE, by ROBIN A. JARVIS, Atty. Reg. #0069752, Ohio Attorney General’s
     Office, 1600 Carew Tower, 441 Vine Street, Cincinnati, Ohio 45202-2809
             Attorney for Defendant-Appellant

                                                   .............
DONOFRIO, J.,

         {¶1} Plaintiff-appellant Robin S. Michaels appeals the decision of the Montgomery

County Common Pleas Court that upheld the decision of a hearing officer from the

Unemployment Compensation Review Commission that denied her unemployment benefits. That

denial of benefits stemmed from a conclusion that Michaels quit her employment without just

cause.

         {¶2} Michaels worked full time as a video producer at Sinclair Broadcasting Group. She

began to also work part time as a bartender at Savona’s Restaurant, owned by defendant-appellee

KTLA Investments, LLC, in November 2008. (Tr. 6.) She took the job for fun and for extra

money. (Tr. 6.)

         {¶3} Michaels’ employment with Sinclair Broadcasting Group ended and she requested

more hours at Savona’s Restaurant. Her request was denied and she eventually resigned her

employment at Savona’s Restaurant.

         {¶4} Michaels filed for unemployment compensation benefits on November 7, 2011, and

defendant-appellee Director of the Ohio Department of Jobs and Family Services (ODJFS)

issued a determination denying her benefits based on a finding that she had quit her employment

without just cause. Michaels appealed that determination, ODJFS affirmed the disallowance of

benefits in redetermination and transferred the appeal to the Ohio Unemployment Review

Commission.

         {¶5} The Review Commission held an evidentiary hearing on January 17, 2012. Michaels

claimed that she had quit Savona’s Restaurant due to a “hostile” and “unethical” atmosphere.

Specifically, she claimed that after she had requested additional hours after her employment with
                                                                                                     3
Sinclair Broadcasting ended, the owner and chef of the restaurant (and KTLA Investments, LLC

), Keith Taylor, began assigning her shifts to other employees and hired new employees for other

shifts. She also claimed that the owner began to steal her and other employees’ tip money under

the guise of covering fees associated with accepting credit card payments for food and beverage

purchases. She maintained that she did not raise her concerns with Taylor when she resigned and

resigned out of fear of receiving a bad reference.

        {¶6} On January 19, 2012, the hearing officer issued a decision affirming the

redetermination and disallowance of unemployment compensation benefits. Michaels appealed

the Review Commission’s decision to the Montgomery County Common Pleas Court and it

affirmed the Review Commission. This appeal followed.

        {¶7} Michaels’ sole assignment of error states:

                The trial court erred when it affirmed the decision of the Commission

        because that decision was unlawful, unreasonable, and against the manifest weight

        of the evidence.

        {¶8} An employee is not entitled to unemployment compensation benefits if they quit

work without just cause or were discharged by their employer for just cause. R.C. 4141.29(D)(2).

“The claimant has the burden of proving her entitlement to unemployment compensation benefits

under this statutory provision, including the existence of just cause for quitting work.” Irvine v.

State Unemployment Comp. Bd. of Review, 19 Ohio St.3d 15, 17, 482 N.E.2d 587 (1985).

“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.” Id.



        {¶9} This court’s standard of review in this type of appeal is extremely limited. Giles v. F
                                                                                                  4
& P Am. Mfg., Inc., 2d Dist. Miami No. 2004-CA-36, 2005-Ohio-4833, ¶ 13. An appellate court

may only determine whether the decision of the review commission is unlawful, unreasonable, or

against the manifest weight of the evidence. Tzangeos, Plakas, & Mannos v. Ohio Bureau of

Employment Services, 73 Ohio St.3d 694, 697, 653 N.E.2d 1207 (1995), paragraph one of the

syllabus. It may not make factual findings or determine the credibility of the witnesses, but may

only review the record to determine whether the decision is supported by evidence in the record,

Id., at 696, 653 N.E.2d 1207.

       {¶10} Michaels maintains that a hostile and unlawful work environment led her to quit

her job at Savona’s Restaurant. She claims that the owner denied her request for additional hours

and instead gave her shifts to other employees and hired new employees for other shifts. She also

claims that the owner stole her and other employees’ tips under the guise of covering fees

associated with accepting credit card payments for food and beverage purchases. When she

attempted to raise her concerns with the owner, she claims that he responded by becoming

emotionally upset, using profanity, and throwing things.

       {¶11} In response, defendant-appellee Director of the Ohio Department of Jobs and

Family Services notes that Michaels sought out free-lance video production work while

continuing her work at the restaurant. The director suggests that she quit her job at the restaurant

when she had to turn down several video productions jobs due to conflicts with her work

schedule at the restaurant. The director emphasizes that Michaels did not notify her employer of

her objections to her working conditions when she tendered her two week notice.

       {¶12} The record supports the decision of the Unemployment Compensation Review

Commission and the Montgomery County Common Pleas Court. Michaels testified that the work

environment at the restaurant was “a little hostile” and that the owner was not running the
                                                                                                    5
restaurant “ethically.” (Tr. 8.) She accused the owner, Keith Taylor, of “bad behavior,” “throwing

things,” and “yelling” at the restaurant’s staff. (Tr. 9.) Indeed, concerning the allegation regarding

the owner’s retention of a portion of the employees’ tips to cover credit card payment processing

fees, such a practice is likely unlawful. An employee’s tips are the sole property of the tipped

employee and any arrangement between the employer and the tipped employee whereby any part

of the tip received becomes the property of the employer is prohibited by the Fair Labor

Standards Act. 29 C.F.R. 531.52.

        {¶13} However, testimony presented at the hearing demonstrated that there may have

been other reasons Michaels resigned her employment at the restaurant. Taylor testified that

Michaels told him she was going to have to quit because of an agreement she had reached upon

her separation from Sinclair Broadcasting Group. (Tr. 12.) According to Taylor, Michaels told

him that Sinclair was not going to contest her receiving unemployment compensation benefits

and that if she continued to work at the restaurant that would adversely affect her receipt of those

benefits. (Tr. 12.)

        {¶14} Additionally, Michaels’ own testimony belied her claim that she quit her

employment at Savona due to an allegedly hostile or unlawful work environment:

                Hearing Officer: All right. Was there a clear reason that you didn’t

        continue to work whatever hours they were giving y giving you? (cough)

        Excuse me, and look for other work, or was there some reason you couldn’t

        continue working there? I know you said you lost your full-time job. Um, how did

        that cause you to not work at Sevona then?

                Miss Michaels: Well, because my primary job is I am a video producer and

        I have the ability to pick up freelance work. And, I couldn’t do that working there
                                                                                                  6
           to make more money because of the conflict. Most of my work would be

           evenings, weekends, and things like that. So, I had turned down jobs where my

           day rate is as much in one day as I would make in an entire month working there.

           Um, so, out of respect for Keith and, you know, knowing that he has a small staff,

           I didn’t want to put him in the position where I am calling off and then he has no

           one to cover for me because I was the only person that did what I did there. And,

           you know, he’s just stuck. Then, we would be here because he fired me. So, I

           mean, I couldn’t, I didn’t want to do that. I gave my notice and, you know, trying

           to be respectful in the fact that I needed to acquire employment that’s going to be

           able to pay my bills.

(Tr. 7.)

           {¶15} All of the testimony and Michaels’ own conflicting testimony about the real

reasons for her ending her employment at the restaurant made the inquiry centrally one of

credibility, a matter to which this court must defer to the hearing officer. Tzangeos. Additionally,

there was testimony that Michaels did not raise all of her concerns relating to the allegedly

hostile and unlawful work environment to her employer. (Tr. 11-15.)

           {¶16} “Generally[,] employees who experience problems in their working conditions

must make reasonable efforts to attempt to solve the problem before leaving their employment.

Essentially, an employee must notify the employer of the problem and request that it be resolved,

and thus give the employer an opportunity to solve the problem before the employee quits the

job; those employees who do not provide such notice ordinarily will be deemed to have quit

without just cause and, therefore will not be entitled to unemployment benefits.” DiGiannantoni

v. Wedgewater Animal Hosp., Inc., 109 Ohio App.3d 300, 307, 671 N.E.2d 1378 (10th
                                                                                              7
Dist.1996).

       {¶17} As the trial court observed, had Michaels informed her employer of all the reasons

which she claimed lead to her decision to quit her job, she and her employer might have been

able to clear the air and create a working environment that was acceptable to Michaels.

       {¶18} Moreover, Taylor testified that there was still a position available to Michaels at

the time she gave her notice. (Tr. 13.) Based on a review of the entire record, we conclude that

neither the Review Commission or the Common Pleas Court’s decision was unlawful,

unreasonable, nor against the manifest weight of the evidence.

       {¶19} Accordingly, Michaels’ sole assignment of error is without merit.

       {¶20} The judgment of the trial court is hereby affirmed.

                                          ...........



DONOVAN and FROELICH, JJ., concur.

(Hon. Gene Donofrio, Seventh District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).



Copies mailed to:

David M. Duwel
Michael DeWine
Robin A. Jarvis
Hon. Michael Krumholtz
