 [Cite as Greenville Fed. v. Obringer, 2013-Ohio-3286.]




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

 GREENVILLE FEDERAL

         Plaintiff-Appellee

 v.

 RENEE E. OBRINGER, et al.

         Defendant-Appellant


 Appellate Case No.       2012-CA-7

 Trial Court Case No. 2012-CV-00333

 (Civil Appeal from
 (Common Pleas Court)
                                                 ...........

                                                OPINION

                                 Rendered on the 26th day of July, 2013.

                                                 ...........

MARK E. HEGGIE, Atty. Reg. No. 0015441, 100 Washington Avenue, Greenville, Ohio 45331
    Attorney for Plaintiff-Appellee

DAVID M. DUWEL, Atty. Reg. No. 0029583, 130 West Second Street, Suite 2101, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

                                                .............
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WELBAUM, J.

        {¶ 1}     Appellant, Renee E. Obringer, appeals from a judgment of the trial court

 reversing the decision of the Unemployment Review Commission regarding her application for

 unemployment compensation benefits. The Commission concluded in its decision that Obringer

 was entitled to benefits because Appellee, Greenville Federal, terminated Obringer’s employment

 without just cause. Obringer contends that the record supports the Commission’s decision, and

 that the decision is not unlawful, unreasonable, or against the manifest weight of the evidence.

        {¶ 2}    We conclude that the record does not support the Commission’s decision.

 Greenville Federal had just cause to terminate Obringer because she failed to submit a doctor’s

 excuse for an unscheduled absence, which was an express requirement of her continued

 employment.     The Commission’s decision was, therefore, unreasonable.          Accordingly, the

 judgment of the trial court will be affirmed.



                                I. Facts and Course of Proceedings

        {¶ 3}    Appellant, Renee E. Obringer, had been employed as an accounting clerk for the

 Appellee, Greenville Federal, (Greenville) for approximately seven years, until her employment

 was terminated on December 22, 2011. Obringer was terminated on grounds of excessive

 absence and her failure to submit a doctor’s excuse for an unscheduled absence. Following her

 termination, Obringer applied with the Ohio Department of Job and Family Services, (ODJFS)

 for unemployment compensation benefits. On January 20, 2012, her application was disallowed.

  Obringer requested a redetermination by ODJFS, and on February 24, 2012, the disallowance

 was affirmed.
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       {¶ 4}     On February 28, 2012, Obringer appealed the redetermination, and ODJFS

transferred jurisdiction to the State of Ohio Unemployment Compensation Review Commission

(the Commission). Hearings were held on March 21, 2012, and April 18, 2012, before the

Commission’s hearing officer, who heard testimony from Obringer and her supervisors at

Greenville. On April 19, 2012, the Commission reversed ODJFS’s disallowance on grounds

that Obringer had been discharged without just cause. The Commission based its decision on

the following facts.

       {¶ 5}     Obringer began her employment with Greenville on August 9, 2004. On July 9,

2010, Obringer received her first written warning from her supervisor at Greenville due to an

unscheduled absence. She was given the warning because she failed to return to work after

going home for lunch. Later, in June 2011, Obringer underwent surgery and took six weeks of

medical leave. Obringer’s physician did not permit her to return to work until the end of July

2011. Following her return, Obringer was absent six times between August 2011 and September

2011. Obringer claimed that she was absent due to surgery-related pain. On September 30,

2011, Obringer received a second written warning stating that she would need to submit a

doctor’s note for any future unscheduled absences, or she would be terminated.

       {¶ 6}    After the warning, Obringer called in sick on November 14, 2011, due to a

surgery-related illness.   Obringer’s supervisor asked her for a doctor’s note, and Obringer

explained that she did not have a note because her doctor’s appointment was scheduled to occur a

few days later. As a result, Obringer’s supervisor excused her from submitting the doctor’s note.

 The Commission found that Obrigner obtained a medical excuse for the November 14th

absence; however Obringer specifically testified that she never provided a doctor’s note.
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Hearing Transcript (Apr. 18, 2012), p. 6, ln. 16-17.

       {¶ 7}     On December 20, 2011, Obringer called in sick due to flu-related symptoms.

Obringer did not see a physician, and she returned to work the next day. When Obringer’s

supervisor asked for a doctor’s note, Obringer refused, as she thought it was unreasonable for her

to be required to submit a doctor’s note for missing one day of work. Obringer’s employment

was subsequently terminated for excessive absenteeism and failure to submit a medical excuse.

       {¶ 8}    Despite finding that Obringer “used poor judgment in failing to obtain a medical

excuse,” the Commission concluded that Obringer was terminated without just cause. State of

Ohio Unemployment Compensation Review Commission Decision (Apr. 19, 2011), pp. 4-5.

The Commission concluded this because: (1) Obringer was absent due to either surgery-related

pain or illness; (2) Obringer reasonably believed that a medical excuse was not required for her

absence of December 20, 2011; and (3) Obringer was not excessively absent nor was she guilty

of fault or misconduct warranting disqualification for unemployment benefits.

       {¶ 9}    On May 29, 2012, Greenville appealed the Commission’s decision to the Darke

County Court of Common Pleas.          Greenville argued that the Commission’s decision was

unlawful, unreasonable, and against the manifest weight of the evidence. Each party submitted

briefs in support of its position, and the trial court found that there was just cause for discharge

based on Obringer’s failure to comply with an express requirement of her continued employment.

       {¶ 10} Obringer appeals from the judgment of the trial court.



        II. Did the Trial Court Err When it Reversed the Commission’s Decision?

       {¶ 11} Obringer states the following as her sole assignment of error:
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                The Trial Court Erred When it Reversed the Decision of the Review Commission,

       Because Said Decision Was Not Unlawful, Unreasonable or Against the Manifest Weight

       of the Evidence.

       {¶ 12} Under this assignment of error, Obringer contends that the facts in the record

support the Commission’s decision finding that she was terminated without just cause.

Specifically, Obringer claims that the Commission correctly determined that she missed work for

legitimate reasons relating to her surgery and illness. She also claims that the record does not

establish that she was sufficiently at fault for not obtaining a doctor’s note.



                                       A. Standard of Review

       {¶ 13}     When reviewing a decision of the Commission regarding eligibility for

unemployment compensation benefits, an appellate court has a limited scope of review. (Citation

omitted.)   Clark v. Ohio Dept. of Job & Family Servs., 2d Dist. Montgomery No. 25257,

2012-Ohio-5311, ¶ 6.        An appellate court is required to focus on the decision of the

Commission, rather than the decision of the trial court. (Citation omitted.) Roberts v. Hayes,

9th Dist. Summit No. 21550, 2003-Ohio-5903, ¶ 11. “ ‘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.” ’ ” Clark

at ¶ 6, quoting Silkert v. Ohio Dept. of Job & Family Services, 184 Ohio App.3d 78,

2009-Ohio-4399, 919 N.E.2d 783, ¶ 26 (2d. Dist.). (Other citation omitted.)

       {¶ 14}      “ ‘An appellate court may reverse the Unemployment Compensation Board of
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Review's “just cause” determination only if it is unlawful, unreasonable or against the manifest

weight of the evidence.’ ” Id., quoting Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Serv., 73

Ohio St.3d 694, 695, 653 N.E.2d 1207 (1995), paragraph one of the syllabus. “[T]he courts

should reverse an agency's ruling which reaches an unreasonable conclusion from essentially

undisputed evidence at the administrative hearing.” (Citation omitted.) Opara v. Carnegie

Textile Co., 26 Ohio App.3d 103, 105, 498 N.E.2d 485 (8th Dist. 1985).



                       B. Was Appellant Discharged Without Just Cause?

       {¶ 15} The Commission concluded that Greenville terminated Obringer’s employment

without just cause. “[J]ust cause is conduct which an ordinarily intelligent person would regard

as a justifiable reason for discharging an employee.” (Citations omitted.) Gem City Eng. Co. v.

Admr., Ohio Bur. of Emp. Serv., 2d Dist. Montgomery No. 11412, 1989 WL 65313, *3 (June 7,

1989), quoting Sellers v. Bd. of Review, 1 Ohio App.3d 161, 164, 440 N.E.2d 550 (10th Dist.

1981). “ ‘In order to have just cause for discharge, pursuant to R.C. 4141.29, there must be some

fault on the part of the employee involved, in the absence of some overwhelming contractual

provision.’ ” Id.    “ ‘Just cause for discharge may be established by proof that the employee

violated a specific company rule or policy, * * * so long as the policy was fair and fairly applied.’

” Caserta v. Ohio Job & Family Servs., 2d Dist. Greene No. 2011-CA-63, 2012-Ohio-5097, ¶ 16,

quoting Jones v. Bd. of Review, 10th Dist. Franklin No. 93AP-430, 1993 WL 393908, *3 (Sept.

28, 1993).

       {¶ 16} In this case, the Commission found there was no just cause for discharge

because: (1) Obringer was absent due to surgery-related pain or illness; (2) Obringer reasonably
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believed that a medical excuse was not required for her absence of December 20, 2011; and (3)

Obringer was not either excessively absent or guilty of fault or misconduct warranting

disqualification for unemployment benefits.

       {¶ 17} The record supports the Commission’s finding that Obringer was absent due to

surgery-related pain or illness.    While Obringer’s supervisor testified that she suspected

Obringer was taking off work for other reasons, the supervisor provided no evidence indicating

that her suspicion was correct. Obringer testified that her unscheduled absences were due to

pain from her surgery or illness, and the Commission properly relied on her testimony. As a

court of limited review, we are required to defer to the Commission for witness credibility

determinations. Because there is no evidence refuting Obringer’s testimony, the Commission’s

finding is supported by the record and reasonable.

       {¶ 18}    The record, however, is devoid of evidence establishing that Obringer

reasonably believed that a doctor’s note was not required for her absence of December 20, 2011.

Obringer claims that she believed a note was not required, because one was not required for her

absence of November 14, 2011. However, the record establishes that on September 30, 2011,

Obringer received a written warning stating that she needed to submit a doctor’s note for any

future unscheduled absences, or she would be terminated.

       {¶ 19}    After Obringer’s absence of November 14th, her supervisor requested a doctor’s

note pursuant to the warning. Obringer returned to work the next day, and explained that she did

not have a note because her doctor’s appointment was scheduled a few days later. As a result of

this explanation, the supervisor excused Obringer from submitting a note. There is nothing in

the record establishing that the November 14th excuse rendered the doctor’s note policy
                                                                                           8


ineffective. Additionally, Obringer never testified that she thought a doctor’s note was no longer

required. When the hearing officer asked her whether she believed she still needed to provide a

doctor’s note for absences occurring after November 14th, Obringer only stated that she “did not

even think about it.” Hearing Transcript (Apr. 18, 2012), p. 8, ln.1-3.

       {¶ 20}    Furthermore, the emails exchanged between Obringer and her supervisor

regarding her December 20, 2011 absence, do not indicate that Obringer was under the

impression that a doctor’s note was not required.        In response to her supervisor’s e-mail

requesting a doctor’s excuse, Obringer stated that she did not go to the doctor since she only

missed one day.     Email No. 23 (Dec. 21, 2011).       When asked again for a doctor’s note,

Obringer argued that she did not have a note because she does not go to the doctor every time she

gets sick. Email No. 24 (Dec. 22, 2011). She further argued that the note requirement was

unreasonable and unfair, and that she would not be providing one. Id. Obringer never claimed

to believe that a doctor’s note was no longer required. Accordingly, the Commission’s finding

that Obringer reasonably believed that a doctor’s note was not required is unreasonable.

       {¶ 21} The Commission’s finding that Obringer was not guilty of fault or misconduct is

also unreasonable. Pursuant to the September 30th warning, Obringer was required to provide a

doctor’s note for any unscheduled absences, or she would be terminated. After her absence of

December 20, 2011, Obringer did not provide a doctor’s note. She was given the opportunity to

submit a note, but blatantly refused. The Commission specifically stated in its decision that

Obringer “used poor judgment in failing to obtain a medical excuse.”              State of Ohio

Unemployment Compensation Review Commission Decision (Apr. 19, 2011) pp. 4-5.

Therefore, according to the record, Obringer was guilty of fault or misconduct for failing to
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follow a requirement that was a condition of her employment.

       {¶ 22} Obringer’s failure to submit a doctor’s note qualifies as just cause for termination

because she was at fault for failing to follow a fair company policy. The requirement of a

doctor’s note was put in place due to Obringer’s large number of absences in 2011. This was a

fair way for Greenville to ensure that Obringer was missing work due to illness. The policy was

also fairly applied, as Obringer was given formal written notice of the policy, and was given a

second chance to comply. Obringer, however, refused to comply with the policy. An ordinarily

intelligent person would regard such refusal as a justifiable reason for terminating an employee.

Accordingly, Greenville had just cause for terminating Obringer’s employment.

       {¶ 23} For the foregoing reasons, the Commission’s decision finding that Obringer was

terminated without just cause is unreasonable. Obringer’s sole assignment of error is overruled.



                                       III. Conclusion

       {¶ 24}    Having overruled Obringer’s sole assignment of error, the judgment of the trial

court is affirmed.



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

FAIN, P.J. and FROELICH, J., concur.




Copies mailed to:

Mark E. Heggie
David M. Duwel
Hon. Jonathan P. Hein
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