[Cite as Barno v. Dir., Dept. of Job & Family Servs., 2018-Ohio-2133.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 105933
PATRICK BARNO
PLAINTIFF-APPELLANT
vs.
DIRECTOR, ODJFS, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-844729
BEFORE: Blackmon, J., Boyle, P.J., and Keough, J.
RELEASED AND JOURNALIZED: May 31, 2018 [Cite as Barno v. Dir., Dept. of Job & Family Servs., 2018-Ohio-2133.] -i-
ATTORNEYS FOR APPELLANT
Kenneth J. Kowalski Cleveland Marshall Civil Litigation Clinic 1801 Euclid Avenue, LB 138 Cleveland, Ohio 44115
Doron M. Kalir Cleveland Marshall Civil Litigation Clinic Cleveland Marshall College of Law 2121 Euclid Avenue, LB 138 Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEES
Mike DeWine Ohio Attorney General
Laurence R. Snyder Assistant Attorney General 615 West Superior Avenue, 11th Floor Cleveland, Ohio 44113
For Great Lakes Water Treatment, Inc.
Great Lakes Water Treatment, Inc. 4949 Galaxy Parkway, Suite G Warrensville Heights, Ohio 44128 ON RECONSIDERATION1
PATRICIA ANN BLACKMON, J.:
{¶1} Upon review, this court grants appellee’s application for reconsideration pursuant
to App.R. 26(A)(1). The application did not call to the attention of this court an obvious error in
our opinion; however, the manifest weight of the evidence standard of review to be applied to
civil cases merits further consideration. This court’s decision to reverse the denial of
unemployment benefits remains unchanged.
{¶2} Patrick Barno (“Barno”) appeals from the trial court’s affirming the denial of his
application for unemployment benefits in this administrative appeal and assigns the following
errors for our review:
I. The Review Commission Hearing Officer’s Decision is unlawful because it either ignored or misstated the law of Ohio on a number of important issues.
II. The Decision of the Review Commission is erroneous in that it is unreasonable and against the manifest weight of the evidence.
{¶3} Having reviewed the record and pertinent law, we reverse the decision and
remand to the trial court. The apposite facts follow.
{¶4} On February 17, 2014, Barno began working for Great Lakes Water Treatment
(“GLWT”) as an “in-store lead generator.” Barno was stationed at a Home Depot, where he
signed up customers for an in-home demonstration of GLWT’s water purification system.
1 The original decision in this appeal, Barno v. Dir., ODJFS, 8th Dist. Cuyahoga No. 105933, 2018-Ohio-1196, released March 29, 2018, is hereby vacated. This opinion, issued upon reconsideration, is the court’s journalized decision in this appeal. See App.R. 22 (C); see also S.Ct.Prac.R. 7.01. GLWT instructed Barno to tell customers that, as an incentive, they would receive a $20 Home
Depot gift card upon completion of the demonstration.
{¶5} According to Barno, when he was hired, GLWT explained the weekly marketing
bonus he would receive, starting at $2 for each lead that resulted in a demonstration and $25 for
each lead that resulted in a sale. Barno’s understanding was that the marketing bonus increased
based on the number of demonstrations and sales generated on a weekly basis. Although GLWT
did not give Barno any written documentation of the company’s commission structure at the time
Barno was hired, or at any other time during Barno’s employment, Barno took notes during his
interview, which reflect the following:
$2.00 for first 2 leads – confirmed $3.00 for each after that $25.00 per system sale for first sold $50.00 per system sale for second sold $100.00 per system sale 3rd sale $150.00 up from there paid weekly
{¶6} On April 22, 2014, Barno notified his manager, Brian Hlavac (“Hlavac”), of two
issues he was having regarding “shortages” in his paychecks. First, Barno complained that he
was not paid for four hours that he worked. On April 28, 2014, Barno followed up with a letter
to Hlavac requesting that this issue be corrected. Hlavac determined that the hours Barno
worked were miscalculated and corrected the issue.
{¶7} Second, Barno complained to Hlavac that his paychecks were “short on
commissions.” Barno first became aware that one of his leads turned into a sale when the
customer came back into Home Depot to complain about his new water system. According to
Barno, he was never paid his marketing bonus for this sale. Barno also identified one other sale for which he was allegedly never paid. According to Barno, GLWT had no record-keeping
system to inform its employees of the disposition of their leads. When Barno notified Hlavac
about the missing bonuses, Hlavac said they “would show up on the check.”
{¶8} Barno experienced “issues weekly” regarding unpaid or underpaid bonuses, and
“[n]early every Tuesday he complained to Mr. Hlavac that his check did not appear to include
bonuses for sales of the water purification systems.” Hlavac typically responded that he was
“going to look into it.” Ultimately, however, GLWT did nothing in response.
{¶9} Additionally, Barno began to question the ethical practices of GLWT. For
example, a customer who purchased GLWT’s water purification system returned to Home Depot
“livid” and asked to cancel his contract. Barno called Hlavac, who instructed Barno to tell the
customer to continue calling GLWT’s office. According to Barno, “GLWT would screen
incoming calls with Google Voice and likely not answer.” Furthermore, other customers
returned to Home Depot to complain about the high-pressure sales pitch and that they never
received their promised $20 Home Depot gift cards. According to Barno, Hlavac said in
response, “yes I know they call and call,” and GLWT’s position was to“just continue to re-pitch
them and resell them and sooner or later they would get tired and stop calling.”
{¶10} Barno identified other GLWT practices that he felt were unethical. For example,
at the end of March or early April, Hlavac instructed Barno not to write up leads for “elderly
people * * *, Russians, Orientals, anybody in zip code 441-anything, and by the way, Indians.”
Barno was uncomfortable with these tactics and thought them to be unethical.
{¶11} On August 26, 2014, Barno told Hlavac that he was concerned about training new
people to engage in these practices. Hlavac stated that Barno “had to do it, he had no one else.” Barno also told Hlavac he could no longer wait to be paid correctly. Hlavac told Barno he was
being paid correctly and, according to Barno, for the first time Hlavac stated that “it depends on
what pay program you’re in.” Barno told Hlavac, “there’s only one pay program that I know
of.” Hlavac “had nothing else to say” in response. That same day, Barno quit his job, claiming
that GLWT failed to honor the bonus structure they had promised him and engaged in unethical
treatment of its customers.
{¶12} On August 27, 2014, Barno applied for unemployment compensation benefits. On
September 26, 2014, the Ohio Department of Job and Family Services Office of Unemployment
Compensation (“ODJFS”) issued a determination disallowing Barno’s application for
unemployment compensation benefits, finding that Barno
did not establish that he/she was compelled to quit for ethical reasons. Ohio’s legal standard that determines if a quit is without 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 without just cause under Section 4141.29(D)(2)(a), Ohio Revised Code.
Barno appealed this determination.
{¶13} On November 7, 2014, the agency issued a redetermination affirming the initial
decision disallowing Barno’s unemployment benefits. The agency’s findings were identical to
the findings it made in its initial September 26, 2014 decision. Barno appealed this
redetermination.
{¶14} On December 12, 2014, January 5, 2015, and January 27, 2015, the Unemployment
Compensation Review Commission (“UCRC”) held telephone hearings regarding Barno’s
appeal. [Cite as Barno v. Dir., Dept. of Job & Family Servs., 2018-Ohio-2133.] {¶15} On February 10, 2015, the UCRC found that Barno quit his employment without
just cause and upheld the denial of his unemployment benefits. On March 25, 2015, the UCRC
denied Barno’s request for review. Barno appealed to the Cuyahoga County Court of Common
Pleas. On May 24, 2017, the court affirmed the UCRC decision, finding that it “is not
unconstitutional, illegal, arbitrary, capricious, unreasonable, nor unsupported by the
preponderance of substantial, reliable, and probative evidence on the whole record.” It is from
this order that Barno appeals.
Standard of Review
{¶16} Pursuant to R.C. 4141.29(D)(2)(a), and as pertinent to the facts of this case, an
employee may receive unemployment compensation if the employee quit work with just cause.
“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.” Peyton v. Sun T.V. & Appliances,
44 Ohio App.2d 10, 12, 3354 N.E.2d 751 (10th Dist.1975). See also Tzangas, Plakas &
Mannos v. Admr., Ohio Bur. of Emp. Servs., 73 Ohio St.3d 694, 653 N.E.2d 1207 (1995).
“Whether just cause exists is unique to the facts of each case.” Sinclair v. Ohio Dept. of Job &
Family Servs., 8th Dist. Cuyahoga No. 101747, 2015-Ohio-1645, ¶ 4.
{¶17} Applications for unemployment benefits begin with ODJFS, which issues an initial
determination allowing or disallowing the claim. These determinations may be appealed, by
either the employee or the employer, to the UCRC, which acts as the trier of fact and issues a
decision regarding ODJFS’s determination. This decision may be appealed to the court of
common pleas. Pursuant to R.C. 4141.282(H)
[t]he court shall hear the appeal on the certified record provided by the commission. 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.
{¶18} “At the outset, there should be no question that a court of appeals has the authority
to reverse a judgment as being against the manifest weight of the evidence.” Eastley v.
Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 7. “In civil cases, the
concepts of sufficiency of the evidence and weight of the evidence continue to be sources of
confusion, particularly as to what standard of review should apply when a verdict is challenged
as being against the weight of the evidence.” Id. at ¶ 9.
{¶19} In Eastley, the Ohio Supreme Court held that “the Thompkins standard of review
for manifest weight of the evidence applies in civil cases.” Id. at ¶ 16.
Weight of the evidence concerns “the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the
other. It indicates clearly to the jury that the party having the burden of proof
will be entitled to their verdict, if, on weighing the evidence in their minds, they
shall find the greater amount of credible evidence sustains the issue which is to be
established before them. Weight is not a question of mathematics, but depends
on its effect in inducing belief.
(Emphasis sic.) Eastley at ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678
N.E.2d 541 (1997). See also State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d
1264, ¶ 25, (a manifest weight of the evidence argument concerns the quality, rather than the
quantity, of evidence and “addresses the evidence’s effect of inducing belief. In other words, a reviewing court asks whose evidence is more persuasive — the state’s[/plaintiff’s] or the
defendant’s?”).
{¶20} The Eastley court noted that “neither the constitution nor statutes nor rules of
procedure treat civil cases differently from criminal cases with regard to appellate review on the
issues of sufficiency and manifest weight.” Id. at ¶ 17. The court further explained as follows:
because “manifest weight of the evidence” refers to a greater amount of credible evidence and relates to persuasion, it does not matter that the burden of proof differs in criminal and civil cases. In a civil case, in which the burden of persuasion is only by a preponderance of the evidence, rather than beyond a reasonable doubt, evidence must still exist on each element (sufficiency) and the evidence on each element must satisfy the burden of persuasion (weight).
***
In weighing the evidence, the court of appeals must always be mindful of the presumption in favor of the finder of fact.
“[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts. * * *
“If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191-192 (1978).
Eastley at ¶ 19-21. Compare Portage Cty. Bd. Of Dev. Disabilities v. Portage Cty. Educators’
Assn. for Dev. Disabilities, Slip Opinion No. 2018-Ohio-1590, ¶ 2 (“When reviewing a trial
court’s decision to confirm, modify, vacate, or correct an arbitration award, an appellate court
should accept findings of fact that are not clearly erroneous but should review questions of law
de novo”). {¶21} “There is no distinction between the scope of review of common pleas and
appellate courts regarding just cause determinations under the unemployment compensation law.
* * * Accordingly, [an appellate court] is bound by the same limited scope of review as the
common pleas court.” Sinclair at ¶ 6.
UCRC Hearing Testimony
{¶22} Barno testified that he noticed commission shortages on his paychecks dated
February 25, 2014, and March 4, 2014. According to Barno, he knew there was a problem with
his paychecks, but he “didn’t know how to track it. * * * Not having any disposition regularly, I
never know what’s been * * * purchased and what’s to be paid, but I was aware * * * that there
was a sale and knew it was to be paid and hadn’t been.” According to Barno, he was the only
in-store marketer for GLWT in that particular Home Depot, and all sales were necessarily
generated through him. However, on cross-examination, Barno testified that it was possible for
someone to get a new GLWT water system from the Home Depot at which he was stationed
without him generating the lead. For example, some leads are generated through the appliance
department at Home Depot, where “associates are trained and signs are posted in the store for
customers who may be interested in having their water tested * * *.”
{¶23} Additionally, Barno would notice that when he did get paid commission on a sale,
it was “short paid. * * * Typically, it was in that $25 to $50 range. It’s hard to know when I get
no disposition with my leads. All I get is a one line marketing bonus figure. No disposition * *
* in my paperwork as to who they actually got to and did a water test and who and when and
where they sold.” {¶24} Barno also testified about what he perceived as “violation[s] of acceptable moral
and legal standards on the part of GLWT.” According to Barno, Hlavac told him that Hlavac
“has problems with communicating with anybody of the foreign tongue. He also would not
want to try to sell to anyone from India because in his words our water’s like gold to them * * *.”
Barno told Hlavac that he felt this was discriminatory, but Hlavac said “it has to go on. It’s a
demand” that Barno do it.
{¶25} Barno testified that more “problems became apparent when in May and June many
people came in and complained that they went through the process, it was a terribly long process.
It took them three hours. They never anticipated three hours and, of course, when they didn’t
buy they didn’t receive the $20 gift card.” Barno further testified that he had “ongoing”
discussions with Hlavac about this issue.
{¶26} Asked why he did not “reach out” to anyone else at GLWT to discuss the issues he
was having, Barno testified that Abe Bahhage (“Bahhage”), the president of GLWT, “is a very
hard man to reach,” and that he “was told by [Hlavac] all correspondence goes through him.”
According to Barno, Hlavac told him that Bahhage was “not to be bothered” with questions
about his paycheck. In May, Barno left Bahhage a message regarding Hlavac’s instructions
about approaching “various groups,” but never got a call back. According to Barno, GLWT is a
small company and there is not anybody else to report to.
{¶27} Bahhage testified that GLWT employs three to four in-store marketers, and during
the period Barno was employed, there was only one pay structure. Bahhage testified that they do
not pay commissions to in-store marketers. “Commissions are paid to the outside sales rep who
actually goes out and does the sale. The lead generators [are] paid hourly and [they get] a bonus based on production” for every in-home water test demonstration and every sale. According to
Bahhage, GLWT does not have a written employee handbook or policy manual; rather, GLWT
would notify employees of the pay scale and bonus structure the day of the interview and during
training the first week on the job. GLWT prepared a document for the UCRC hearing, which
explained the bonus structure as follows:
1-9 DEMOS/week $2.00 each 10-14 DEMOS/week $3.00 each 15-19 DEMOS/week $4.00 each 1-4 SALES/week $5.00 each 5-9 SALES/week $10.00 each
{¶28} “[E]very once in a while somebody will come in and say * * * I had * * * 14
demos. I was paid for you know 12. * * * And then we say * * * no problem * * * and this
happens * * * every once in a while on payday * * * and then we look it up and we correct it.
We always correct it. Twenty-eight years in business.” Bahhage further stated that “[t]his has
happened with [Barno] as well * * * and we fixed it.”
{¶29} Bahhage testified that Hlavac
expressed some frustration * * * always trying to explain the same thing as far as the pay program over and over on the demos and the sales to Mr. Barno. * * * [I]t seemed that Mr. Barno felt that anytime he talked to somebody at the store that that should be a demo and * * *, the fact of the matter is when we call these people after the fact we end up talking to somebody’s wife who says no we’re not interested and those leads never see the light of day, and we explained that weekly to him every time we gave him his * * * paycheck there was a bonus and that bonus was explained this is * * * four demos and a sale or three demos and no sales or no demos but hey try again next week * * * keep the leads coming and * * * so every week we went over that program so Brian was a little frustrated that [Barno] never seemed to understand * * * the pay program.
*** On Tuesday we have a short meeting to go over your production last week and see if we can help you, motivate you, and so forth. We would then hand you your paycheck and on the paycheck there would be your hours as well as any bonus you’ve earned. The bonus you’ve earned, we would then go through your appointments that you * * * generated and we would give you the dispositions, what happened with each one and what sales were there and we would actually hand you the check and that’s it. If there was a mistake that was made or a discrepancy, we would correct it on the spot * * *.
{¶30} Bahhage never personally went through this with Barno, but he was “in the room
when that was happening.”
{¶31} According to Bahhage, GLWT was not aware of Barno’s “feeling” that GLWT
paid “$25 * * * per sale and a $50 per sale” until he applied for unemployment, and this “comes
as a huge surprise. * * * I thought he knew that I was very approachable. I’m always in the
office and * * * for the most part my door is open. * * * If you’re not satisfied with anything or
with your manager you come and see me. Everybody knows that.” Bahhage testified that he
never received any letters or voicemails from Barno.
{¶32} As to Barno’s allegations of unethical practices, Bahhage testified that potential
customers need to be homeowners, and they need to be available for the in-home demonstration.
Furthermore, GLWT’s policy toward selling their products to elderly customers is “really a gray
area.” Bahhage testified that “the issue with the elderly sometimes is * * *, if they’re older
* * *, if we end up in somebody’s home * * *, the children might not be happy about that
situation. I certainly wouldn’t be if somebody went to visit my mother and tried to sell her
something.” According to Bahhage, GLWT expects “a judgment call on that.” Bahhage
testified that GLWT has no other customer qualifications or requirements “whatsoever.”
{¶33} Hlavac testified that he is a marketing manager at GLWT and has been employed
with the company since October 2012. According to Hlavac, on the day Barno quit, he attended
the Tuesday meeting to pick up his paycheck. When Barno looked at his paycheck, he “said he didn’t understand the * * * bonus structure again, which I had explained to him on numerous
occasions and he said that he quit.” Hlavac testified that Barno was under the impression that he
would get a bonus for every lead he generated, rather than for demonstrations and sales. “I
believe that’s where the discrepancy was and I tried to explain that” to Barno. Hlavac also
denied receiving a letter in April from Barno regarding Barno’s concerns about his paycheck.
{¶34} As to Barno’s ethical concerns, Hlavac testified that GLWT had a “target
demographic” regarding customers that the in-store marketers were instructed to approach at
Home Depots. Hlavac does not recall Barno ever raising any concerns he had over “venturing
outside this demographic.”
{¶35} In the case at hand, the UCRC’s decision was based on the following reasoning:
[Barno] argued that he quit because he had consistently not been paid the bonuses he believed he was due and because of ethical objections with company procedures. * * * While [Barno] had been aware of these issues for several months, he did not quit until August 26, 2014. During that time * * * any concerns he mentioned were only brought to his immediate supervisor. Although [Barno] was in the main office every Tuesday, and Mr. Bahhage’s office was very close to the meeting room, [Barno] admits that he never spoke with Mr. Bahhage about his concerns or the alleged failure of Mr. Hlavac to properly address those concerns. The evidence does not establish that the employer’s conduct was so unreasonable or egregious as to constitute just cause for quitting. Accordingly, [Barno] quit work without just cause.
{¶36} In reaching this conclusion, the UCRC based its decision on 1.) The time that
elapsed between Barno’s “awareness” of workplace issues and Barno’s quitting; 2.) Barno’s
failure to report workplace issues to anyone other than his “immediate supervisor”; and 3.) The
“reasonableness” of GLWT’s failure to address Barno’s concerns in light of number one and
number two. {¶37} First, in Morad v. Dir., O.D.J.F.S., 8th Dist. Cuyahoga No. 86296,
2006-Ohio-1350, ¶ 38, this court reversed a UCRC’s decision as being “unlawful, unreasonable,
and against the manifest weight of the evidence” when the hearing officer found the employee’s
reason for quitting was not credible “because she did not ‘immediately’ quit.” Morad at ¶ 35.
There is no requirement that an employee quit “immediately” after a concern arises to be eligible
for unemployment compensation.
{¶38} Second, “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.” Belle Tire Distrib. Inc. v. Dir., Ohio
Dept. of Jobs & Family Servs., 8th Dist. Cuyahoga No. 97102, 2012-Ohio-277, ¶ 16. The
UCRC’s finding that Barno “only” notified his immediate supervisor of the issues and “never
spoke with Bahhage about his concerns” is not evidence that Barno failed to satisfy the notice
requirement. We find that raising an issue with management effectively notifies the employer of
the alleged problem.
{¶39} Third, we find that the UCRC’s focus on GLWT’s conduct to determine whether
Barno quit his employment with just cause was improper. See Ohio Turnpike Comm. v.
Saunders, 8th Dist. Cuyahoga No. 61059, 1992 Ohio App. LEXIS 5708 (Nov. 12, 1992) (“just
cause for quitting employment * * * requires a lack of fault on the part of the employee”); King
v. State Farm Mut. Auto Ins. Co., 112 Ohio App.3d 664, 669, 679 N.E.2d 1158 (6th Dist.1996)
(“a statutory administrative proceeding under R.C. Chapter 4141 centers on ‘just cause’ and the
conduct of the employee”). [Cite as Barno v. Dir., Dept. of Job & Family Servs., 2018-Ohio-2133.] {¶40} Additionally, upon review, we find that the UCRC ignored undisputed evidence in
the record. See generally Breeze, Inc. v. Testa, Slip Opinion No. 2017-Ohio-7801, ¶ 15 (“We
will reverse [administrative agency] decisions that are ‘unreasonable or unlawful.’ It was
unreasonable for the [administrative agency] to ignore Breeze’s evidence of its intent regarding
its lease with Horizon and focus solely on the excess of rental income over expenses”).
Although GLWT testified as to its bonus structure, the only evidence in the record as to what
GLWT told Barno during his interview is Barno’s testimony, the notes Barno took during his
interview, and the April 28, 2014 letter Barno wrote to Hlavac, which states, in part, as follows:
“Per our agreement, #1 would pay $25.00 and #2, $50.00.” GLWT did not present any evidence
contradicting Barno’s understanding of the bonus structure, other than a document prepared after
the fact and specifically for the UCRC hearing. What GLWT promised to pay Barno and what it
actually paid Barno are two different things, and GLWT presented no evidence regarding what it
promised to pay Barno. In reviewing the UCRC’s decision, it is clear that the hearing officer
failed to consider Barno’s unrefuted testimony and documentary evidence. Compare Sinclair v.
ODJFS, 8th Dist. Cuyahoga No. 101747, 2015-Ohio-1645, ¶ 25-32 (UCRC must consider
evidence in the record and can “discredit” or weigh the sufficiency of certain evidence by making
credibility determinations).
{¶41} The UCRC did not find Barno’s version of events or GLWT’s version of events
more credible than the other; rather, it based its decision on GLWT’s conduct, i.e., the failure to
address Barno’s concerns after Barno complained to his direct supervisor, Hlavac, but not to the
owner of the company, Bahhage, as not being “so unreasonable or egregious as to constitute just
cause for quitting.” Furthermore, GLWT explained why it instructed Barno to avoid elderly customers and why it required customers to be homeowners. Additionally, GLWT explained
that it instructed Barno to avoid customers who do not speak English. However, GLWT did not
deny that Hlavac told Barno to avoid “Russians, Orientals, or Indians,” and GLWT presented no
evidence at all regarding Barno’s allegation that customers did not receive the promised Home
Depot gift cards or that GLWT ignored customer phone calls related to canceling contracts.
Again, we find that the UCRC’s decision overlooks Barno’s evidence.
{¶42} Upon review, applying the standard set forth in Eastley regarding manifest weight
of the evidence in civil cases, we find that the greater amount of credible evidence in the record
supports the conclusion that a reasonable person would have just cause to quit his or her job
under the same conditions. The only evidence presented to the hearing officer was that Barno
was not paid what GLWT promised him during his interview. This evidence is unrefuted,
credible, and a significant reason for Barno leaving his job. Barno properly notified GLWT of
his concerns, and the company, while neither denying nor admitting what it told Barno regarding
the bonus structure, failed to satisfactorily remedy the situation. The weight of the evidence also
shows that a reasonable amount of time elapsed between Barno’s realization of his employment
issues, his repeatedly notifying Hlavac of the problems, his realization that GLWT was not going
to remedy the situation, and his quitting.
{¶43} Accordingly, the UCRC’s decision that Barno quit his employment without just
cause is against the manifest weight of the evidence. Barno’s two assigned errors are sustained.
{¶44} The trial court’s judgment is reversed, and this case is remanded for further
proceedings consistent with this opinion.
It is ordered that appellant recover from appellees costs herein taxed. The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County 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.
PATRICIA ANN BLACKMON, JUDGE
MARY J. BOYLE, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR