[Cite as Cafaro Mgt. Co. v. Polta, 2012-Ohio-4558.]

                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


CAFARO MANAGEMENT COMPANY, )                          CASE NO. 11 MA 171
                           )
    APPELLANT,             )
                           )
VS.                        )                          OPINION
                           )
MARCIE POLTA, et al.,      )
                           )
    APPELLEES.             )


CHARACTER OF PROCEEDINGS:                             Civil Appeal from Common Pleas Court,
                                                      Case No. 10CV2365.


JUDGMENT:                                             Affirmed.


APPEARANCES:
For Appellant:                                        Attorney Michael Wright
                                                      2445 Belmont Avenue
                                                      P.O. Box 2186
                                                      Youngstown, Ohio 44504-0186

For Appellee:                                         Attorney Michael DeWine
                                                      Attorney General
                                                      Attorney Susan Sheffield
                                                      Assistant Attorney General
                                                      20 West Federal Street, 3rd Floor
                                                      Youngstown, Ohio 44503

JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite


                                                      Dated: September 25, 2012
[Cite as Cafaro Mgt. Co. v. Polta, 2012-Ohio-4558.]
VUKOVICH, J.


        {¶1}     Appellant Cafaro Management Company appeals the decision of the
Mahoning County Common Pleas Court granting judgment in favor of appellees
Marcie Polta and the Ohio Department of Jobs and Family Services (ODJFS). The
issue in this case is whether the Review Commission’s conclusion that Polta was
terminated without just cause was unreasonable, unlawful and against the weight of
the evidence. For the reason expressed in depth below, given our limited standard of
review and the facts of this case, the judgment of the trial court is hereby affirmed.
                                   STATEMENT OF THE CASE
        {¶2}     In October 2007, Polta was hired by Cafaro as an administrative
assistant for the Sandusky Mall. In October 2008, Polta requested a medical leave of
absence due to severe migraines. She was granted Short Term Disability leave
(STD) and FMLA; the two leaves ran concurrent with each other. STD expired on
December 13, 2008 and FMLA expired on January 5, 2009. Cafaro’s handbook
requires employees to contact their supervisor every thirty days to “report on their
status and intention to return to work.” Polta claimed that she kept in contact with
Cafaro approximately every two weeks and the Hearing Officer found this testimony
believable.
        {¶3}     On January 26, 2009, Polta contacted her supervisor about returning to
work but indicated that she could not guarantee that she would not need intermittent
leaves.    Her supervisor informed her that he could not use her if she could not
guarantee a 40 hour week.
        {¶4}     On February 1, 2009, she sent an email to her supervisor and the
human resources department updating them about her medical condition and asking
how she should proceed with her medical leave. On February 9, 2009, Polta was
informed that she was discharged from her employment for failing to return to work
following the exhaustion of her FMLA leave.
        {¶5}     Thereafter, Polta filed a claim for unemployment compensation.
03/27/09 Claimant Application for Determination of Benefits Rights. The Director
determined that she was discharged without just cause and, as such, was eligible for
                                                                                    -2-

benefits. 05/01/09 Determination. Cafaro appealed that decision and the Director
issued a redetermination which reversed the initial determination.            06/12/09
Redetermination.
       {¶6}   Polta appealed that decision and the matter was transferred to the
Review Commission. Three hearings were held before a hearing officer. The first
hearing was held on September 29, 2009. Testimony was taken from Polta and
Melanie Gemmell, Director of Human Resources. A second hearing was held on
October 28, 2009. Polta did not appear at this hearing. Additional testimony was
taken from Gemmell. A third hearing was set for November 16, 2009. This hearing
was set because a second issue of whether Polta was physically able to work was
identified by the hearing officer and the matter was scheduled for a later date to give
Polta the opportunity to respond to that issue. Polta did not attend the third hearing,
therefore, it was cancelled.
       {¶7}   On December 1, 2009, the Hearing Officer issued its order reversing
the Director’s redetermination; it determined that Polta was terminated without just
cause. Cafaro appealed that decision to the Review Commission.
       {¶8}   On May 19, 2010 the Review Commission issued its decision affirming
the Hearing Officer’s determination. It reasoned:

              Ms. Gemmell testified that claimant never contacted Cafaro with
       a return-to-work date after her FMLA approval letter was sent on
       December 13, 2008.      However, claimant presented sworn, credible
       testimony that she spoke approximately every other week between
       October of 2008 and January of 2009 with her supervisor, Neil Gray.
       She presented sworn, credible testimony that she specifically asked
       him about returning to work, and was told on January 26, 2009, that he
       could not use her services if she could not guarantee that she would be
       able to work a full forty-hour week. Claimant’s notification to Mr. Gray
       appears to be consistent with Cafaro’s written Short Term Disability
       policy, which requires that, “As soon as the employee knows the date
       he or she can return to work, he or she must inform his or her
                                                                                    -3-

         immediate supervisor of this date.”     Despite having three separate
         hearings in this matter, Cafaro never presented or subpoenaed Mr.
         Gray to dispute claimant’s testimony about their conversations.

                Neither Cafaro’s policies nor federal law required Cafaro to hold
         open the claimant’s position beyond the expiration of her approved
         twelve-week FMLA leave. However, physical inability to return to work
         full-time at the end of an FMLA leave is not misconduct which creates
         just cause for discharge. In Tzangas, Plakas and Mannos v. OBES
         (1995), 73 Ohio St.3d 694, at syllabus paragraph 2, the Ohio Supreme
         Court held that “[f]ault on behalf of the employee is an essential
         component of a just cause termination.” Claimant’s physical inability to
         work does not constitute fault on her part. Indeed, the courts have held
         that “absenteeism caused by bona fide illness, reported to the
         employer, is not just cause for discharge.” See, e.g., Cobbldick Buick,
         Inc., v. Board of Review (April 19, 1994), Cuyahoga App. No. 47430,
         unreported. Based upon the evidence presented in this matter, the
         Review Commission finds that claimant was discharged by Cafaro
         without just cause in connection with work.

05/19/10 Review Commission Decision.
         {¶9}   As to her ability to work, the Review Commission found that she was
physically able to return to work. To support this conclusion, it referenced a note
from her physician that stated as of January 2009 she was physically able to return to
work. The Review Commission further noted that in any specific week when she was
physically unable to work due to a migraine, Polta would not be eligible for benefits.
However, no such week had been identified by either party, thus it could not
conclude that she was physically unable to work.
         {¶10} Cafaro appealed that decision to the Mahoning County Common Pleas
Court.    Following briefing, the magistrate issued a decision affirming the Review
                                                                                       -4-

Commission’s determination.       Cafaro objected to that decision and the ODJFS
responded to those objections.
       {¶11} Following the review of the objections, the trial court adopted the
magistrate’s decision and granted judgment in favor of Polta and the ODJFS. Cafaro
timely appeals that decision.
                                ASSIGNMENT OF ERROR
       {¶12} “The lower court erred when it overruled Cafaro’s objections to the
magistrate’s decision filed July 27, 2010, and affirmed the Review Commission’s May
19, 2010 decision. The Review Commission’s conclusion that Polta was terminated
without just caused [sic] was unreasonable, unlawful and against the weight of the
evidence.”
       {¶13} Our standard of review in unemployment compensation cases is
limited. An appellate court may reverse a board's decision only if the decision is
unlawful, unreasonable, or against the manifest weight of the evidence. Williams v.
Ohio Dept. of Job and Family Servs., 129 Ohio St.3d 332, 951 N.E.2d 1031, 2011-
Ohio-2897, ¶20, citing Irvine v. Unemployment Compensation Board of Review, 19
Ohio St.3d 15, 17–18, 482 N.E.2d 587 (1985). An appellate court may not make
factual findings or determine the credibility of the witnesses, but rather, is required to
make a determination as to whether the board's decision is supported by evidence on
the record. Id. The hearing officer, as the fact finder, is in the best position to judge
the credibility of the witnesses. Shaffer–Goggin v. Unemployment Compensation
Review Commission, 5th Dist. No. 03–CA–2, 2003–Ohio–6907, citing Hall v.
American Brake Shoe Co., 13 Ohio St.2d 11, 233 N.E.2d 582 (1968); Brown–
Brockmeyer Co. v. Roach, 148 Ohio St. 511, 76 N.E.2d 79 (1947).
       {¶14} The Ohio Supreme Court has explained the purpose of the
Unemployment Compensation Act:

              The [A]ct was intended to provide financial assistance to an
       individual who had worked, was able and willing to work, but was
       temporarily without employment through no fault or agreement of his
       own. Irvine at 17, 19 OBR at 14, 482 N.E.2d at 589. * * *
                                                                                    -5-

             The Act does not exist to protect employees from themselves,
      but to protect them from economic forces over which they have no
      control. When an employee is at fault, he is no longer the victim of
      circumstances but is instead directly responsible for his own
      predicament.    Fault on the employee's part separates him from the
      Act's intent and the Act's protection. Thus, fault is essential to the
      unique chemistry of a just cause termination.

Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Servs., 73 Ohio St.3d 694, 697–
698, 653 N.E.2d 1207 (1995). See also Williams at 335-36.
      {¶15} Nevertheless, the unemployment compensation statutes must be
liberally construed in favor of awarding benefits to the applicant. Clark Cty. Bd. of
Mental Retardation & Dev. Disabilities v. Griffin, 2d Dist. No.2006–CA–32, 2007–
Ohio–1674, ¶ 10, citing R.C. 4141.46; Ashwell v. Ohio Dept. of Job & Family Servs.,
2d Dist. No. 20522, 2005-Ohio-1928, ¶ 43.
      {¶16} “Just cause” is not defined by the statute, however, the Ohio Supreme
Court has explained that it is “‘that which, to an ordinarily intelligent person, is a
justifiable reason for doing or not doing a particular act.’”     Irvine at 17.   The
determination whether there is just cause for discharge depends upon the factual
circumstances of each case. Warrensville Hts. v. Jennings, 58 Ohio St.3d 206, 207,
569 N.E.2d 489 (1991).
      {¶17} Cafaro is of the position that there was just cause for Polta’s termination
because she abandoned her position; it explains that it was unreasonable for the
Review Commission to conclude otherwise. Cafaro asserts that she was released to
work as of January 1, 2009 but she remained absent from work for 38 days after that
and thus abandoned her position.
      {¶18} The Hearing Officer, Review Commission and the Common Pleas Court
concluded that Polta did not abandon her position, but was prevented from returning.
There is support for such conclusion in the record.
      {¶19} Polta’s doctor provided her with a return to work note that states that
she could return to work “as of January 2009.” However, it does not state the exact
                                                                                   -6-

date of return. Despite Cafaro’s insistence to the contrary, “as of January 2009” does
not necessarily mean that she was released to return to work on January 1, 2009.
Her testimony indicates that she was in contact with her supervisor every two weeks
and on January 26, 2009 she informed her supervisor that she could return to work.
09/29/09 Tr. 18-19. She explained that she had a doctor’s appointment that week. It
is not unreasonable for this testimony to be viewed as meaning she was not released
by her Doctor to work until January 26, 2009, the same day she talked to her
supervisor about returning to work.
      {¶20} Furthermore, given the record it is plausible to find that it was not her
failure to return to work that caused her termination, but rather her inability to
guarantee that she could work 40 hours a week, every week. As stated above, on
January 26, 2009, Polta talked to her supervisor about returning to work.        She
advised him that she would like to come back, but she could not guarantee him a 40
hour week, every week. According to Polta, when she told the supervisor she would
need to take time off when she had a migraine, he stated, “that if [she] couldn’t
guarantee him that [she] could be there 40 hours a week, every week that it would be
no benefit for him to have [her] come back at that time.” 09/29/09 Tr. 15. The
supervisor wanted a guarantee that Polta would be there every week for 40 hours
before agreeing to her return. Cafaro does not dispute that the conversation between
Polta and her supervisor occurred; it offered no evidence to the contrary.        The
conversation implies that had Polta guaranteed a 40 hour work week, she could
return to work. Thus, it is plausible to conclude that Cafaro did not view her as
abandoning her job.      Had Cafaro viewed her as abandoning her position, a
qualification of guaranteeing a 40 hour work week every week would not have been
placed upon her. As the magistrate aptly noted:

             Cafaro placed an unreasonable condition upon Ms. Polta’s return
      to work.    It would be difficult for any employee to make such a
      “guarantee”. Under these circumstances, Ms. Polta did not abandon
      her job. She tried to return after her leave under FMLA was exhausted,
      but Cafaro prevented her from returning.
                                                                                     -7-

07/27/11 Magistrate’s Decision.
       {¶21} In further support of this conclusion is the fact that none of the letters
from Cafaro state the specific date that Polta’s FMLA leave was to terminate. In fact,
according to Polta, her supervisor indicated to her on January 26, 2009 that while he
did not know the date that her leave expired, it would be occurring soon. 09/29/09
Tr. 15. A review of the file indicates that at the time he made that statement her
leave already expired; it ended on January 5, 2009. However, he did not indicate at
that time that she had abandoned her position by failing to return. Thus, the fact that
her FMLA time had expired over two weeks prior to her discussing her return to work
with her supervisor does not support Cafaro’s position that she abandoned her
position. Rather, it has a tendency to show that Cafaro would have retained her had
she guaranteed a 40 hour work week.
       {¶22} Thus, given the time line and Polta’s testimony concerning the
conversation between herself and her supervisor, it was not unreasonable for the
Hearing Officer and Review Commission to conclude that she did not abandon her
position.
       {¶23} Next, Cafaro argues that the Review Commission’s conclusion that she
was terminated without just cause was against the manifest weight of the evidence.
       {¶24} Appellate review of the manifest weight of the evidence in a civil case is
much more deferential to the trial court than in a criminal case. State v. Wilson, 113
Ohio St.3d 382, 865 N.E.2d 1264, 2007–Ohio–2202, ¶ 26. The civil manifest weight
of the evidence standard provides that judgments supported by some competent,
credible evidence going to all the essential elements of the case will not be reversed
by a reviewing court as being against the manifest weight of the evidence. Id. at ¶
24, citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578
(1978). The reviewing court is obliged to presume that the findings of the trier of fact
are correct. Id., citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80–81,
461 N.E.2d 1273 (1984). This presumption arises in part because the fact-finder
occupies the best position to watch the witnesses and observe their demeanor,
                                                                                       -8-

gestures, eye movements, and voice inflections and to utilize these observations in
weighing credibility. Id. The Wilson Court concluded:

              A reviewing court should not reverse a decision simply because
       it holds a different opinion concerning the credibility of the witnesses
       and evidence submitted before the trial court. A finding of an error in
       law is a legitimate ground for reversal, but a difference of opinion on
       credibility of witnesses and evidence is not.

Id.
       {¶25} As discussed above, there is evidence to support the conclusion that
Polta was terminated because she could not guarantee a 40 hour work week. That
reason does not qualify as just cause for termination.
       {¶26} Appellate courts have stated that “absenteeism * * * caused by a bona
fide illness or injury is not just cause for termination of an employee.” Lorain Cty. Aud.
v. Ohio Unemp. Rev. Comm., 185 Ohio App.3d 822, 2010-Ohio-37, 925 N.E.2d 1038,
¶ 9 (9th Dist.); Durgan v. Ohio Bur. of Emp. Servs., 110 Ohio App.3d 545, 550, 674
N.E.2d 1208 (9th Dist.1996) (stating a dismissal for excessive absenteeism and
tardiness may be classified as being without just cause and, therefore, eligible for
unemployment compensation under R.C. 4141.29(D)(2)(a) if the absences were the
result of a bona fide illness); Marchese Servs. v. Bradley, 3d Dist. No. 12-08-06,
2009-Ohio-2618, ¶ 27; Woodworth v. Ohio Dept. of Job & Family Servs., 8th Dist. No.
91601, 2009-Ohio-734, ¶ 6; Metal Powder Products, Inc. v. Ohio Bur. of Emp. Serv.,
69 Ohio App.3d 785, 788, 591 N.E.2d 1285 (4th Dist.1990).
       {¶27} The FMLA paperwork filled out by Polta’s doctor and Polta’s testimony
established that Polta could not work when she was having a migraine. Thus, it
would be a bona fide illness for which if she missed work she could not be terminated
for just cause.    Likewise, if Polta became sick for another reason, that would
constitute a bona fide illness. Thus, terminating Polta’s employment because she
could not guarantee a 40 hour work week every week when there was a doctor’s
                                                                                     -9-

documentation that she could not work when she was having a migraine does not
constitute just cause.
       {¶28} It is noted that much of what Cafaro is disputing under this argument
and the preceding one concerns Polta’s credibility and the Hearing Officer’s choice to
believe her. As explained above, we will not second guess credibility determinations.
In this instance there is no evidence to dispute Polta’s testimony that her supervisor
told her if she could not guarantee a 40 hour week, she would be of no use to him.
Given the time line of how her termination occurred, we should not find that the
Review Commission was incorrect in determining that there was no just cause for the
termination.
       {¶29} At this point it is important to distinguish between “just cause” for
discharge in the context of an unemployment case and an employer being liable for
wrongful discharge.      An employer may justifiably terminate an employee without
incurring liability for wrongful discharge. However, even though there was a reason
to terminate without incurring liability for wrongful discharge, that employee still may
be entitled to receive unemployment compensation if he or she can show that the
termination was without “just cause.” See Durgan at 549 (a Ninth District decision
noting that firing for absenteeism due to illness is not due to fault and is not just
cause under the unemployment compensation system). In other words, even though
we are potentially upholding the determination that there was no “just cause” for the
termination, that decision in no way suggests that Polta was wrongfully discharged.
See Niskala v. Dir., Ohio Dept. of Job & Family Services, 9th Dist. No. 10CA0086-M,
2011-Ohio-5705, ¶ 11. Nothing in the record before us even remotely suggests a
wrongful discharge, rather it is just a termination without “just cause” for purposes of
unemployment compensation.
       {¶30} Cafaro’s last arguments concern what it believes to be inconsistent
findings about Polta’s ability to work. In finding that there was no just cause for the
termination, the Review Commission indicated that a bona fide illness does not
constitute just cause; “physical inability to return to work full-time at the end of an
FMLA leave is not misconduct which creates just cause for discharge.” 05/19/10
                                                                                  -10-

Review Commission Decision. Then in determining whether she was able to work,
the Review Commission stated:

             Claimant has submitted a note from her physician stating that
      she was physically able to return to work as of January of 2009. In any
      specific week where she was physically unable to work due to a
      migraine, claimant would not be eligible for benefits. However, no such
      specific week has been identified in this matter by either party.
      Accordingly, the Review Commission finds that claimant was physically
      able to work as requested by law beginning on her benefit year
      beginning date of March 22, 2009.

05/19/10 Review Commission Decision.
      {¶31} These are not inconsistent findings and are reasonable.          First, her
termination was based on her inability to guarantee a 40 hour week when she had a
bona fide documented illness, which may cause her to miss work. As the magistrate
indicated, requiring any employee to make the “guarantee” that Cafaro was
requesting would be difficult.     It would be especially difficult for one with a
documented illness. Furthermore, whether she would need to miss work in the future
is speculative at that point. It is unclear when or if she would get any more migraines
that would cause her to miss work. Thus, the magistrate determined that there was
no just cause was based on a potential physical inability to work 40 hours every
week. It was also based on her inability to guarantee, despite her illness, that she
would be able to work 40 hours every week.
      {¶32} Second, the determination regarding her physical ability to work was
supported by the record. Here, the physician indicated that Polta could return to
work, but would have to miss work when she had a migraine.             As the Review
Commission found, neither party indicated a specific week where she had a physical
inability to work after she had been cleared to return to work.       This was partly
because she was terminated prior to being allowed to return to work. Had she been
                                                                                   -11-

permitted to return to work and she had a migraine that prevented her from work,
Cafaro may have been able to show an inability to work.
      {¶33} Cafaro contends that the Review Commission violated the law when it
found that the inability to work was not proven by either party. Cafaro correctly
asserts that it is the applicant’s burden to establish that they are able to work.
Saulter v. Anchor Hocking Corp., 10th Dist No. 86AP-73, 1986 WL 6897 (June 17,
1986). Cafaro asserts that the Review Commission shifted the burden to Cafaro to
prove Polta could not work. A reading of the decision does not reveal such an action.
The decision clearly states that Polta provided a physician statement stating she was
able to physically return to work. Polta’s submission of the physician note provided
evidence of the ability to work. Thus, she met her burden. Although the Review
Commission did state that neither party identified a specific week where Polta was
unable to work due to a migraine, such a statement does not demonstrate an illegal
shifting of the burden. It is Polta’s burden to show an ability to work (which, as
referenced above, she did). It is not her burden to show an inability to work. If
Cafaro wanted to call into question her evidence and assertion of an ability to work, it
could have pointed to a specific week where she could not perform because of
migraines. However, as the Review Commission noted, it did not.
      {¶34} For the reasons expressed above and our limited standard of review,
we find that this assignment of error lacks merit.       The Common Pleas Court’s
decision to uphold the Review Commission’s decision is hereby affirmed; Polta was
terminated without just cause.


Donofrio, J., concurs.

Waite, P.J., concurs.
