[Cite as Ricks v. Ohio Dept. of Job & Family Servs., 2013-Ohio-3253.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 99451



                                JACQUELINE D. RICKS
                                                            PLAINTIFF-APPELLANT

                                                      vs.

                  DIRECTOR, OHIO DEPARTMENT OF
                  JOB AND FAMILY SERVICES, ET AL.
                                                            DEFENDANTS-APPELLEES




                                            JUDGMENT:
                                             AFFIRMED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                               Case Nos. CV-772373 and CV-786006

        BEFORE: Boyle, P.J., Rocco, J., and Blackmon, J.

        RELEASED AND JOURNALIZED: July 25, 2013
ATTORNEYS FOR APPELLANT

Kenneth J. Kowalski
Doron M. Kalir
Cleveland-Marshall College of Law
Civil Litigation Clinic
2121 Euclid Avenue, LB 138
Cleveland, Ohio 44115

ATTORNEYS FOR APPELLEES

For the Director of the Ohio Department of Job and Family Services

Mike DeWine
Ohio Attorney General
BY: Laurence R. Snyder
Assistant Attorney General
State Office Building, 11th Floor
615 West Superior Avenue
Cleveland, Ohio 44113

For Barkley of Cleveland, L.L.C.

Roy J. Schechter
Lichko & Schechter
230 Bridge Building
18500 Lake Road
Rocky River, Ohio 44116
MARY J. BOYLE, P.J.:

       {¶1} Appellant Jacqueline Ricks appeals from the trial court’s decision affirming a

judgment of the Ohio Unemployment Compensation Review Commission (“UCRC”) that

denied her claim for unemployment benefits. Finding no merit to the appeal, we affirm.

                              Procedural History and Facts

       {¶2} Appellee Barkley of Cleveland, L.L.C. (“Barkley”) hired Ricks in March

2010, where she worked in office and administrative support. Her employment ended on

March 16, 2011.     Ricks worked part-time at Barkley.       Prior to her discharge from

Barkley, Ricks was receiving some unemployment benefits for her previous employment

at University Hospitals.

       {¶3} On March 17, 2011, Ricks appeared in court and was sentenced to six

months in prison. As a result of her sentence, Ricks was unable to appear for her next

scheduled shift on March 19, 2011. Ricks’s supervisor, Rachel Radcliffe, learned of

Ricks’s incarceration on the news and subsequently sent Ricks a text message. Ricks’s

boyfriend, Martin Head, saw Radcliffe’s text and then called her, notifying Radcliffe of

Ricks’s sentence but indicating that Ricks may be released sooner. According to Head,

Radcliffe informed him that Ricks would have her job back regardless of when she was

released from jail. Radcliffe further indicated that Ricks should contact Barkley if she

was released.
      {¶4} In June 2011, Ricks attempted to return to work but learned that a replacement

was hired. She was told the company would keep her number if anything changed.

      {¶5} Ricks subsequently applied for unemployment benefits with appellee Ohio

Department of Job and Family Services (“ODJFS”).            The agency disallowed the

application, determining that Ricks had been discharged with just cause. On appeal, the

director’s redetermination affirmed the denial of benefits. A second appeal followed, and

the matter was transferred to the UCRC for an evidentiary hearing.

      {¶6} On October 17, 2011, a telephone hearing was held. Ricks appeared and

offered her testimony and the testimony of her boyfriend. Barkley did not participate in

the hearing. The hearing officer subsequently issued a decision affirming the director’s

redetermination that Ricks was discharged for just cause. In support of her decision, the

hearing officer reasoned the following:

             The claimant argued that a leave was granted, and therefore she

      should be granted unemployment compensation.             However, there is

      insufficient evidence that leave was granted to serve her sentence. In this

      case, the claimant admitted that the employer was unaware of her legal peril

      until she was unable to return to work. It appears that there may have been

      a gesture to give the claimant her job back but the employer was under no

      legal obligations to do so.

      {¶7} Ricks subsequently filed a request for review, and on November 30, 2011,

the UCRC issued a decision disallowing her request. Ricks appealed to the common
pleas court, which ultimately upheld the UCRC’s decision.

         {¶8} Ricks appeals from that decision, raising the following two assignments of

error:

                I. The hearing officer’s decision to deny Ms. Ricks unemployment
         insurance benefits was unlawful, unreasonable, and against the manifest
         weight of the evidence.

                II. Assuming arguendo that Ms. Ricks was terminated by Barkley
         for just cause, it would be inequitable to deny her unemployment benefits
         completely.

                                   Just Cause Determination

         {¶9} R.C. 4141.29 sets forth the eligibility and qualifications for unemployment

benefits:

         (D) * * * [N]o 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 * * *.

         {¶10} “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 Rev., 19 Ohio St.3d 15, 17, 482 N.E.2d 587 (1985). An

employer may require specific standards of conduct and discharge employees who violate

the standards. Piazza v. Ohio Bur. of Emp. Servs., 72 Ohio App.3d 353, 357, 594 N.E.2d
695 (8th Dist.1991), citing Williams v. Ohio Bur. of Emp. Servs., 8th Dist. Cuyahoga No.

49759, 1985 Ohio App. LEXIS 9562 (Nov. 27, 1985).

       {¶11} In reviewing a “just cause” determination, our standard of review is the same

as the trial court’s — i.e., 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 & Family Servs., 129 Ohio St.3d 332, 2011-Ohio-2897, 951

N.E.2d 1031, ¶ 20, citing R.C. 4141.282(H). With respect to the standard of review, this

court recently stated:

       While appellate courts are not permitted to make factual findings or to

       determine the credibility of witnesses, they do have the duty to determine

       whether the board’s decision is supported by the evidence in the record.

       This duty is shared by all reviewing courts, from the first level of review in

       the common pleas court through the final appeal. Therefore, the focus of an

       appellate court when reviewing an unemployment compensation appeal is

       upon the commission’s — not the trial court’s — decision.

(Citations omitted.) Hertelendy v. Great Lakes Architectural Serv. Sys., 8th Dist. No.

97782, 2012-Ohio-4157, 976 N.E.2d 950, ¶ 16.

       {¶12} Ricks argues that the hearing officer’s determination was unlawful,

unreasonable, and against the manifest weight of the evidence because the “hearing officer

ignored the evidence that clearly demonstrates that [she] was not terminated until after her

release from jail, and was not terminated because of her incarceration.” Ricks contends
that she was terminated on June 7, 2011, two weeks after her release from prison and

approximately a week after she notified her supervisor that she was ready to return to

work. In support of this argument, Ricks relies on an internal memo issued by Barkley to

its employees notifying them that Ricks was no longer an employee of Barkley.

      {¶13} Contrary to Ricks’s assertion, there is evidence in the record that she no

longer worked at Barkley after March 16, 2011. Ricks’s own testimony before the UCRC

hearing officer was that her dates of employment were from March 24, 2010 through

March 16, 2011 — the day of the last shift that she worked.          The hearing officer

obviously found the internal memo sent out to Barkley staff — not Ricks herself — was

not indicative of Ricks’s last day of employment. Instead, the hearing officer reasonably

relied on Ricks’s own testimony as well as the undisputed evidence that Ricks was

incarcerated on March 17, 2011, thereby making it impossible for her to return to work.

      {¶14} To the extent that Ricks argued that Barkley implicitly granted her a leave of

absence based on her supervisor’s representation to her boyfriend, thereby allowing her to

keep her job while she was incarcerated, the hearing officer rejected this argument. The

hearing officer specifically found that the evidence was insufficient to support such a

contention. Based on the record before us, we cannot say that determination is unlawful,

unreasonable, or against the manifest weight of the evidence.

      {¶15} We also find that the record evidences that Ricks was discharged as a result

of her incarceration. Prior to the agency issuing a decision on Ricks’s application for

unemployment benefits, the agency submitted a questionnaire to Barkley as part of its
fact-finding process. In its responses, Barkley indicated that Ricks had been sentenced by

a judicial officer and committed to a correctional facility. Barkley further affirmatively

indicated that Ricks “became unemployed as a direct result of the commitment to the

correctional facility.” Barkley’s answers therefore are sufficient evidence for the hearing

officer to rely on in making its just-cause determination. Notably, Ricks does not dispute

any of the evidence related to her incarceration.

       {¶16} Barkley further noted in the questionnaire two cited policies in its handbook

that Ricks violated, namely, Section 4.1(z) — “failure to report an absence or late arrival”

and Section 7.20(b) — “personal leave policy does not apply if personal leave is needed as

a result of self-inflicted injury, illegal substance abuse or alcohol abuse, or illness or injury

incurred while in the act of committing a felony.” Admittedly, Section 7.20(b) does not

apply in this case. Section 4.1(z), however, does apply. And Ricks admitted at the

hearing that she never notified Barkley of her scheduled sentencing date or subsequent

sentence. To the extent that Ricks argues her boyfriend’s notification was sufficient to

satisfy the policy, Ricks offered no support for this position.

       {¶17} But even assuming that Ricks demonstrated that she had not violated either

company policy, we find that her incarceration alone justified her discharge. Contrary to

Ricks’s assertion, the primary reason for Barkley discharging her was the incarceration.

This fact is prevalent throughout the director’s file as well as the proceedings before the

UCRC. Because her incarceration was a stated reason for discharge, we find her reliance

on Braithwaite v. Dept. of Commerce, 10th Dist. Franklin No. 03AP-381,
2003-Ohio-6562, to be misplaced.         That case recognizes that “[a]n unemployment

compensation review commission hearing officer’s review and determination of just cause

is limited to the actual reasons for a claimant’s discharge and evidence of circumstances

not relied on by the employer may not be considered.” Id. at ¶ 13. Again, Ricks’s

incarceration was undoubtedly the primary reason for her discharge. The mere fact that

Barkley erroneously believed that the incarceration violated a policy not at issue does not

negate the just-cause finding related to the incarceration.

       {¶18} The first assignment of error is overruled.

               Partial Benefits for Prior Employment at University Hospitals

       {¶19} In her second assignment of error, Ricks argues that it would be inequitable

to deny her unemployment benefits completely because she was previously receiving some

benefits for her prior employment with University Hospitals. ODJFS counters that this

issue was never raised before the UCRC, and therefore she is precluded from raising this

issue now on appeal. Although Ricks raised the argument for the first time in the trial

court, she failed to raise the issue before the administrative bodies below. See Evans v.

Evans, 10th Dist. Franklin No. 08AP-398, 2008-Ohio-5695, ¶ 8, quoting State ex rel.

Zollner v. Indus. Comm., 66 Ohio St.3d 276, 278, 611 N.E.2d 830 (1993) (“‘A party who

fails to raise an argument in the court below waives his or her right to raise it’ on appeal”).

We therefore decline to consider this argument on appeal.

      {¶20} Judgment affirmed.

      It is ordered that appellees recover of appellant costs herein taxed.
       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE

KENNETH A. ROCCO, J., and
PATRICIA ANN BLACKMON, J., CONCUR
