[Cite as Belle Tire Distribs., Inc. v. Ohio Dept. of Job & Family Servs., 2012-Ohio-277.]


                Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97102




                     BELLE TIRE DISTRIBUTORS, INC.

                                                             PLAINTIFF-APPELLEE

                                                      vs.

 DIRECTOR, OHIO DEPARTMENT OF JOB & FAMILY
               SERVICES, ET AL.
                                                             DEFENDANTS-APPELLANTS




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                      Civil Appeal from the
                                Cuyahoga County Common Pleas Court
                                      Case No. CV-750644

        BEFORE: E. Gallagher, J., Sweeney, P.J., and Jones, J.
                                         2

      RELEASED AND JOURNALIZED:                  January 26, 2012

ATTORNEYS FOR APPELLANTS

Michael Dewine
Ohio Attorney General
Laurel Blum Mazorow
Assistant Attorney General
30 East Broad Street
State Office Tower, 17th Floor
Columbus, OH 43215


ATTORNEYS FOR APPELLEE

David J. Kovach
6480 Rockside Woods Blvd., South
Suite 180
Independence, OH 44131

Irvin L. Cook
45 Brown Cir.
Laurel, MS 39440




EILEEN A. GALLAGHER, J.:

      {¶ 1} Appellant, the Director of the Ohio Department of Job and Family Services

(“Director”), appeals the decision of the Court of Common Pleas in the R.C. 4141.282

administrative   appeal   from   the   Ohio    Unemployment    Compensation   Review

Commission. The appellant argues that the trial court erred in concluding that the

decision of the Unemployment Compensation Review Commission was unlawful,
                                            3

unreasonable, and against the manifest weight of the evidence. Finding merit to this

appeal, we reverse the decision of the trial court.

        {¶ 2} Irvin Cook worked for Belle Tire Distributors, Inc., from June 24, 2007

through December 2, 2009 as a Shop Technician. On October 7, 2009, one of Cook’s

co-workers painted a Confederate Flag on his locker and also wrote Cook’s name

alongside the flag with the word “cotton” inserted between his first and last name.    In

his correspondence to the Review Commission, Cook stated that he complained to his

supervisor about the flag and the inscription on his locker but that nothing was ever done

to correct the offensive defacing of the property.          Cook claimed that, as an

African-American, he considered the actions of his co-worker to be a form of racism.

Cook stated that he resigned in protest over the flag and inscription on December 2,

2009.

        {¶ 3} Cook filed an application for unemployment compensation benefits with

the Ohio Department of Job and Family Services on January 27, 2010 for the benefit year

beginning January 24, 2010.        On February 23, 2010, the Director issued an initial

determination allowing unemployment compensation benefits.             In particular, the

appellant determined as follows:

        The claimant quit Belle Tire Distributors Inc., on 01/23/2009.       Facts

        establish that the claimant was subjected to unreasonable abuse and/or
                                             4

      hardship by working with his/her fellow employees.              The claimant

      informed the employer of his/her concerns, but the employer failed to

      correct the situation.     Ohio’s legal standard that determines if a quit is

      with just cause is whether the claimant acted as an ordinary person would

      have under similar circumstances.      After a review of the facts, this agency

      finds that the claimant quit with just cause under Section 4141.29(D)(2)(a),

      Ohio Revised Code.

      {¶ 4} Belle Tire filed an appeal to the initial determination.                    By a

redetermination issued April 9, 2010, the Director upheld the determination, affirming

the decision that Cook quit his employment with just cause.

      {¶ 5} Belle Tire filed an appeal of the redetermination on April 30, 2010.         The

appellant transferred jurisdiction to the Review Commission on May 7, 2010.                In

accordance with proper procedure, a hearing officer conducted a telephone hearing on

September 14, 2010.     Both Cook and Belle Tire participated in the hearing.           After

considering all the evidence in the record as well as the credibility of each witness, the

hearing   officer   issued   a    decision   on    September   15,   2010   reversing     the

Director-appellant’s decision.    Specifically, the hearing officer concluded that Cook

quit his employment without just cause and determined that an overpayment of

unemployment compensation benefits had been made and repayment must be made
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immediately.

       {¶ 6} Cook filed a timely request for review from the hearing officer’s decision

and submitted a five-page statement along with his request. The Review Commission

allowed the request for review on November 10, 2010 and provided notice to Belle Tire

of their right to respond.   Belle Tire never filed a response.   On December 7, 2010, the

Review Commission notified the parties that a decision would be issued based solely on

a review of the record without a further hearing.       On February 9, 2011, the Review

Commission issued its decision, reversing the hearing officer’s decision and finding that

Cook did quit his employment with just cause.

       {¶ 7} Belle Tire appealed the Review Commission’s decision to the Cuyahoga

County Common Pleas Court pursuant to R.C. 4141.282.                On July 6, 2011, the

Common Pleas Court reversed the Review Commission’s decision, finding that the

decision of the Review Commission was unlawful, unreasonable, and against the

manifest weight of the evidence.      Specifically, the trial court determined that because

the decision of the Review Commission was based solely on the record as developed

before the hearing officer, the Review Commission must have given the claimant’s

testimony more weight than the hearing officer.       Thus, the trial court concluded, the

Review Commission substituted its judgment for that of the hearing officer. Based on

these facts, the court determined that the decision of the Review Commission was
                                            6

unlawful.

         {¶ 8} The appellant appeals, raising the following assignments of error:

         I.   The trial court erred in reversing the decision of Unemployment
         Compensation Review Commission which was not unlawful, unreasonable
         or against the manifest weight of the evidence.

         II. The trial court erred in reversing the decision of the Unemployment
         Compensation Review Commission simply because the Review
         Commission reversed the decision of its own hearing officer.

         {¶ 9} Because the appellant’s two assignments of error involve the same

standard of review and facts, they shall be addressed contemporaneously.

         {¶ 10} The Unemployment Compensation Review Commission’s determination of

whether a claimant was discharged with just cause is appealable to the court of common

pleas.    Williams v. Ohio Dept. of Job and Family Serv., 129 Ohio St.3d 332,

2011-Ohio-2897, 951 N.E.2d 1031.           “If the court finds that the decision of the

commission was unlawful, unreasonable, or against the manifest weight of the evidence,

it shall reverse, vacate, or modify the decision, or remand the matter to the commission.

Otherwise, the court shall affirm the decision of the commission.” R.C. 4141.282(H);

Williams. This limited standard of review applies to all appellate courts.          Irvine v.

Unemp. Comp. Bd. of Review, 19 Ohio St.3d 15, 18, 482 N.E.2d 587 (1985). Thus, a

reviewing court may not make factual findings or determine a witness’s credibility and

must affirm the commission’s finding if some competent, credible evidence in the record
                                            7

supports it. Id.; Williams.     In other words, a reviewing court may not reverse the

commission’s decision simply because “reasonable minds might reach different

conclusions.” Id.; Williams.

       {¶ 11} In the present case, we find the trial court’s basis for reversing the decision

of the Review Commission to be erroneous.         In particular, the court concluded that the

Review Commission did not consider additional testimony or evidence in reaching its

decision and that doubt is cast upon the appeal process if the Review Commission can

simply weigh the evidence on appeal from the hearing officer without offering any

explanation or reasoning as to why the decision of the hearing officer should be reversed.

 We find these conclusions problematic.

       {¶ 12} Primarily, in direct contravention to the trial court’s conclusion that the

Review Commission had based its decision solely on the record before the hearing

officer, Cook submitted a five page statement to the Review Commission with his

request for further review.    Thus, the trial court was incorrect; the Review Commission

had additional information that the hearing officer did not.

       {¶ 13} Furthermore, the trial court’s conclusion that doubt is cast upon the appeal

process when the Review Commission reverses the decision of the hearing officer

without offering any explanation or reasoning as to the decision is equally wrong.      R.C.

4141.281(C)(3) provides that following a hearing, the hearing officer’s decision is sent
                                            8

to all interested parties along with notification of the right of an interested party to

request a further review by the Review Commission. R.C. 4141.281(C)(4) provides

that at the review level, the Review Commission may affirm, modify, or reverse a

hearing officer’s decision.    Accordingly, contrary to the lower court’s findings, the

Ohio Revised Code expressly provides for the Review Commission to rewrite a decision

of a hearing officer. R.C. 4141.281(C)(6) provides as follows:

       If the commission allows a request for review, the commission shall notify
       all interested parties of that fact and provide a reasonable period of time, as
       the commission defines by rule, in which interested parties may file a
       response. After that period of time, the commission, based on the record
       before it, may do one of the following: affirm the decision of the hearing
       officer; provide for the appeal to be heard or reheard at the hearing officer
       or review level; provide for the appeal to be heard at the review level as a
       potential precedential decision; or provide for the decision to be rewritten
       without further hearing at the review level. When a further hearing is
       provided or the decision is rewritten, the commission may affirm, modify,
       or reverse the previous decision.

       {¶ 14} Thus, the Review Commission had additional information that the hearing

officer did not possess, and it acted within the bounds of the law in modifying the

decision of the hearing officer. This court concludes that the decision of the Review

Commission was supported by competent, credible evidence and, as such, the decision of

the trial court must be reversed.

       {¶ 15} In order to qualify for unemployment benefits, a claimant must satisfy the

statutory requirements of R.C. 4141.29(D)(2)(a), which provides in pertinent part:
                                            9

       (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.

       {¶ 16} Ohio courts have defined just cause as “that which, to an ordinary,

intelligent person, is a justifiable reason for doing or not doing a particular act.” Irvine.

 Additionally, Ohio courts have determined that a person who quits because of a

problem with working conditions must first notify the employer of the problem and

provide the employer with the opportunity to deal with the problem. DiGiannantoni v.

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

       {¶ 17} In the present case, the Review Commission found that Cook’s co-worker

painted a replica of a Confederate Flag on his locker and also inserted the word “cotton”

between his first and last name. Cook’s statement to the Review Commission outlined

his complaints to his supervisor and his belief that the painting was a racially motivated

act. Further, the Commission noted that the flag remained on Cook’s locker for a

month and a half before Cook left his employ. Cook wrote in his request for further

review that he reminded Joseph Fiedler, facility manager, on a daily basis of the flag.

Despite Mr. Fiedler’s comments that he would take care of it, no action was taken to
                                                10

remove the flag.        Thus, the Review Commission had competent, credible evidence

before it that Belle Tire failed to remedy the harassment even though Cook continued to

report it. Based on these facts, the Review Commission determined that an ordinary,

intelligent person would have quit under these circumstances and labeled Cook’s actions

as just.

           {¶ 18} We find that the decision of the Review Commission was supported by

competent, credible evidence and that its decision should be affirmed.          We find the trial

court erred in concluding otherwise. Appellant’s first and second assignments of error

are sustained.

           {¶ 19} The judgment of the trial court is reversed.     The decision of the Review

Commission determining that Cook resigned with just cause is upheld.

           It is ordered that appellant recover of said appellee 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

lower 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.




EILEEN A. GALLAGHER, JUDGE
                              11


JAMES J. SWEENEY, P.J., and
LARRY A. JONES, J., CONCUR
