[Cite as Beard v. Dir. of Job & Family Servs., 2022-Ohio-1690.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
TYRONE A. BEARD : : Plaintiff-Appellant : Appellate Case No. 29298 : v. : Trial Court Case No. 2021-CV-1530 : DIRECTOR OF JOB AND FAMILY : (Civil Appeal from SERVICES, et al. : Common Pleas Court) : Defendants-Appellees :
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OPINION
Rendered on the 20th day of May, 2022.
TYRONE A. BEARD, 139 Reisinger Avenue, Dayton, Ohio 45417 Plaintiff-Appellant, Pro Se
ROBIN A. JARVIS, Atty. Reg. No. 0069752, Assistant Attorney General, 1700 Carew Tower, 441 Vine Street, Cincinnati, Ohio 45202 Attorney for Defendants-Appellees
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WELBAUM, J. -2-
{¶ 1} Plaintiff-Appellant, Tyrone A. Beard, appeals pro se from a trial court
judgment affirming the decision of the Unemployment Compensation Review
Commission (“UCRC”). The UCRC denied Beard’s claim for unemployment benefits,
finding that Beard quit his job without just cause.
{¶ 2} Beard failed to include any assignments of error in his brief. However,
Defendant-Appellee, the Director of the Ohio Department of Job and Family Services
(“ODJFS”), has suggested an appropriate issue, i.e., whether UCRC’s decision was
unlawful, unreasonable, or against the manifest weight of the evidence. We will adopt
ODJFS’s suggestion. After considering the record and applicable law, we conclude that
some competent credible evidence in the record supported the UCRC’s decision, and the
decision was neither unlawful nor unreasonable. Accordingly, the judgment of the trial
court will be affirmed.
I. Facts and Course of Proceedings
{¶ 3} The pertinent facts are taken from the certified transcript that ODJFS filed in
the trial court. On July 10, 2020, Beard filed an application with ODJFS seeking
unemployment benefits beginning on July 5, 2020. UCRC Transcript (“Tr.”), p. 1.
Beard’s former employer, Deceuninck North America, LLC (“Deceuninck”) subsequently
indicated to ODJFS that Beard had been employed from March 8, 2020, to July 5, 2020.
On the latter date, Beard stopped coming to work and was a “no call,” “no show” for two
days. Specifically, Beard stopped coming to work without notifying anyone, and he was
considered to have quit his employment. Id. at, p. 13, 14, 15, and 18. -3-
{¶ 4} On August 18, 2020, ODJFS denied the application for benefits, finding that
Beard had quit his employment with Deceuninck without just cause on July 5, 2020.
Beard appealed that decision, and the ODJFS Director issued a redetermination on
January 29, 2021, disallowing the application. At that point, Beard appealed from the
redetermination to the UCRC. ODJFS transferred the file to the UCRC on February 2,
2021.
{¶ 5} A hearing officer then held a telephone hearing on March 10, 2021.
Although both sides had been notified of the hearing, only Beard was present. The
testimony was somewhat confusing, primarily because Beard contradicted himself at
various points.
{¶ 6} During his testimony, Beard said that he had begun his employment at
Deceuninck in December 2019 through a staffing agency; Deceuninck then hired him in
March 2020. Tr. at p. 85. Beard initially said that he first began having issues with
payroll the week of July 10, 2020, when he noticed that he was not being paid for a certain
amount of hours. Id. at p. 86. Specifically, a holiday (July 4th) fell within the pay period
of July 3 through July 10, 2020. Id. at p. 87. Beard stated that he was supposed to be
paid $27 an hour for the holiday, but did not receive any pay for that day. Id.
{¶ 7} Beard also initially said that he addressed this with his supervisor, who told
him he would have to make an appointment because human resources personnel were
working from home due to the Covid-19 pandemic. Id. Beard testified that he tried to
call someone (a person named Jamie Miller), but did not receive a response from anyone
at Deceuninck until January 28, 2021. Id. at p. 88. On that date, Deceuninck -4-
acknowledged in an email that it owed Beard $275.67 for the July 4, 2020 holiday pay.
Id. at p. 89.
{¶ 8} Beard also initially testified that he quit his employment on July 11 or 12,
2020, since no one from human resources had gotten back to him. Id. The date that
Beard received the paycheck and realized the error was July 10, 2020. Id. According
to Beard, he told his supervisor on July 12, 2020, that he did not like the way things were
going with the company and that he would walk away since his employer was not giving
him its full attention to address a problem. Id. at p. 89. Beard also said he went to work
that day (on July 12), and that he finished his shift. He said he then received another
paycheck on July 17, 2020, which did not contain any errors. Id.
{¶ 9} Later in the hearing, Beard realized the above testimony was erroneous and
that his last day of work was actually July 5, 2020, rather than July 12. This was because
he had stated on his unemployment application that July 5 was his last day of work. Tr.
at p. 90 and 92. Beard then claimed the payroll issues had been going on for multiple
weeks. Id. at p. 90. In this regard, Beard mentioned only one prior incident, which
occurred in June 2020. This incident related to the fact that Deceuninck had taken about
a month to reimburse Beard for work boots he had purchased, when he was supposed to
have received the money in a week. Id. at p. 91. However, Beard was paid for the
boots in June; payment was just not as timely as he thought it should have been. Id. at
p. 91 and 94.
{¶ 10} Beard agreed that he had quit because of an issue that had happened in
the past. However, this past incident (the reimbursement) had been unrelated to -5-
Deceuninck’s alleged failure to pay Beard for his holiday pay on July 4, 2020. This is
because Beard had not yet received a paycheck for that date (and did not yet know he
had not been paid for July 4th) when he quit his job on July 5, 2020. Id. at p. 92.
{¶ 11} Beard was also confused about his work hours and how they related to his
paychecks. Contrary to his earlier testimony, Beard realized during the hearing that the
wage payment he received on July 17, 2020, was due to the fact that he had been on
third shift and had worked into the morning of July 5, 2020. Id. at p. 95. Beard also
realized that work for July 4th would have been reflected on the pay period for June 28th
until July 4 (for which he would have been paid on July 10, 2020), and that his hours on
July 5th would have appeared on the July 17, 2020 paycheck. Id. at p. 95.
{¶ 12} According to Beard, he told his supervisor at the end of his shift on July 5,
2020, that he was not coming back. Id. at p. 93. The reason he gave was “payroll
issues.” Id. The supervisor told Beard that he should contact human resources if he
felt there was an issue. However, Beard acknowledged that he did not call human
resources until after he had already quit his job. Id.
{¶ 13} After hearing the testimony, the hearing officer issued a decision affirming
the Director’s redetermination and denial of benefits. The hearing officer found that
Beard had quit without just cause because he had no unresolved payroll issue when he
quit on July 5, 2020. At that point, Beard’s reimbursement was complete, and the
shortage for the holiday pay was not noticed until after Beard had quit. Tr. at p. 100
(March 26, 2021 Decision).
{¶ 14} After Beard appealed from the Hearing Officer’s decision, the UCRC denied -6-
his request for review on April 7, 2021. Id. at p. 118-119. Beard then appealed pro se
to the trial court on April 15, 2021. ODJFS appeared in the action on April 19, 2021, and
filed a certified transcript of the administrative proceedings on May 13, 2021. After the
parties filed briefs, the trial court issued a decision affirming UCRC’s denial of benefits.
Decision, Order, and Entry Affirming Decision of Ohio Department of Job and Family
Services (Oct. 14, 2021). Beard then appealed pro se from the trial court’s order.
II. Review of the UCRC Decision
{¶ 15} As noted, Beard did not assert an assignment of error, and we will adopt
the framing ODJFS suggested, which mirrors the general standard for reviewing UCRC
decisions.
{¶ 16} Under R.C. 4141.282(A), aggrieved parties may appeal decisions of the
UCRC to the court of common pleas. The review standard for common pleas courts is
outlined in R.C. 4141.282(H), which provides that “[i]f 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.”
{¶ 17} The limited review standard in R.C. 4121.282(H) also applies to all appellate
courts, including ours. Young Women's Christian Assn. of Dayton, Ohio, Inc. v. Ohio
Dept. of Job & Family Servs., 2017-Ohio-4102, 92 N.E.3d 108, ¶ 15 (2d Dist.), citing
Williams v. Ohio Dept. of Job & Family Servs., 129 Ohio St.3d 332, 2011-Ohio-2897, 951
N.E.2d 1031, ¶ 20. As a result, “a reviewing court may not make factual findings or -7-
determine a witness's credibility and must affirm the commission's finding if some
competent, credible evidence in the record supports it. * * * In other words, a reviewing
court may not reverse the commission's decision simply because ‘reasonable minds
might reach different conclusions.’ ” Williams at ¶ 20, quoting Irvine v. Unemp. Comp.
Bd. of Review, 19 Ohio St.3d 15, 18, 482 N.E.2d 587 (1985). Nonetheless, appellate
courts “do have the duty to determine whether the board's decision is supported by the
evidence in the record.” Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Serv., 73 Ohio
St.3d 694, 696, 653 N.E.2d 1207 (1995), citing Irvine at 18.
{¶ 18} As pertinent here, R.C. 4141.29(D)(2)(a) provides that an applicant may be
denied benefits for “the duration of the individual’s employment if the director finds that
* * * [t]he individual quit work without just cause or has been discharged for just cause in
connection with the individual's work.” Individuals seeking benefits have the burden of
proving “entitlement to unemployment compensation benefits under this statutory
provision, including the existence of just cause for quitting work.” Irvine at 17. “Just
cause” traditionally “ ‘is that which, to an ordinarily intelligent person, is a justifiable reason
for doing or not doing a particular act.’ ” Id., quoting Peyton v. Sun T.V., 44 Ohio App.2d
10, 12, 335 N.E.2d 751 (10th Dist. 1975).
{¶ 19} In the specific context of unemployment cases, just cause decisions must
also comport with the Unemployment Compensation Act’s legislative purpose, which is
to financially aid persons who have worked and are “ ‘able and willing to work,’ ” but who,
through no fault of their own, are “ ‘temporarily without employment.’ ” Id., quoting Salzl
v. Gibson Greeting Cards, Inc., 61 Ohio St.2d 35, 39, 399 N.E.2d 76 (1980). However, -8-
“[t]he 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 fortune's whims, 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 at 697-698.
{¶ 20} In the case before us, competent, credible evidence existed to support the
UCRC’s decision, and the decision was not unlawful or unreasonable. Although Beard’s
testimony before the hearing officer was somewhat confusing (due to Beard’s changing
explanations), the facts at the hearing indicated that Beard’s reimbursement issue with
Deceuninck was resolved in June 2020. Subsequently, on July 5, 2020, Beard chose to
quit his job before receiving the July 10, 2020 paycheck that he claimed was inaccurate.
{¶ 21} After the hearing officer rejected his claim, Beard offered yet another
explanation in his request for further review. Tr. at p. 111. At that point, Beard stated
“Employer made mistake on July 3/2020 which ran over to July 10. When asked by
commission I was asked when was first time I noticed mistake on my payroll I stated July
10 because payroll was supposed to correct my situation next paycheck. On top of my
payroll issue on 7/3/2020 they made mistake on 7/10/20 also please respond.” Id.
{¶ 22} Although Beard had an opportunity to present testimony to the hearing
officer, he mentioned nothing about this alleged mistake during the hearing. Instead, the
following exchange occurred:
Q. When did the issue with payroll start? I guess let’s start there. -9-
When was the first time that you noticed an issue with payroll?
A. Uh so my first issue was the week of July 10.
Q. Okay and what did you notice specifically?
A. Um so I noticed that I wasn’t paid for a certain amount of hours,
if that makes sense.
Q. Do you know which hours you weren’t paid?
A. Um so technically they shorted me * * *.
***
A. So I, so it was about 25 hours, something like that with, with
holiday pay and things of that nature. * * *
Q. Okay, so they did not, on that paycheck then you did not receive
the holiday pay for the July 4th holiday.
A. Exactly.
(Emphasis added.) Tr. at p. 86-87.
{¶ 23} Beard quit his job on July 5, 2020, before receiving the July 10, 2020
paycheck. By his own admission, this was his first issue with payroll. Accordingly, the
UCRC decision was not unreasonable or unlawful, and it was not against the manifest
weight of the evidence. Instead, the conclusion that Beard quit his job without just cause
was supported by some competent, credible evidence.
{¶ 24} On appeal, Beard has attached two documents to his brief that were not
part of the administrative record. One document appears to be a January 25, 2021 email -10-
from Jamie Miller to Beard regarding a shift differential for which Beard was shorted on
July 3, 2020, and for which he was then credited on July 17, 2020. The second
document appears to be a January 28, 2021 email from Miller concerning Beard’s holiday
pay for July 4, 2020. The January 28 email was attached to Beard’s reply brief in the
trial court, but the January 25 email is not part of either the administrative or trial court
record. Compare Beard’s July 7, 2021 Reply Brief with Beard’s February 16, 2022 Court
of Appeals’ Brief.1
{¶ 25} In the trial court, ODJFS asked the court to strike the January 28, 2021
email from the record. See ODJFS July 26, 2021 Motion to Strike Exhibit Attached to
Appellant’s Reply Brief. The trial court did not rule on the motion to strike.
{¶ 26} As a preliminary point, “ ‘[w]hen a trial court fails to rule upon a motion, an
appellate court generally will presume the trial court overruled the motion.’ ” Dayton
Monetary Assocs. v. Becker, 126 Ohio App.3d 527, 539, 710 N.E.2d 1151 (2d Dist.1998),
quoting Akbar-el v. Muhammed, 105 Ohio App.3d 81, 85, 663 N.E.2d 703, fn. 2 (4th Dist.
1995). Therefore, we assume the trial court overruled the motion to strike.
{¶ 27} As a further matter, by statute, trial courts “shall hear the appeal on the
certified record provided by the commission.” R.C. 4141.282(H). Consequently, “ ‘trial
courts are confined to the record certified by the UCRC and do not have ‘authority to
accept additional evidence.’ ” Pennessi v. Hanger Prosthetics & Orthotics, Inc., 2d Dist.
1 In this regard, we note ODJFS’s assertion that both documents were attached to Beard’s trial court reply brief. See Appellee’s Brief, p. 7. This is incorrect. Only the January 28, 2021 email is part of the trial court record that was transmitted to us. See Appellant’s Reply Brief. We have also checked the Montgomery County Clerk of Court’s online docket, and the January 28, 2021 email is the only document attached to the reply brief that Beard filed in the trial court on July 7, 2021. -11-
Montgomery No. 28022, 2018-Ohio-4631, ¶ 59, quoting Puterbaugh v. Goodwill
Industries of the Miami Valley, Inc., 2d Dist. Miami No. 2013-CA-39, 2014-Ohio-2208,
¶ 31. The trial court, therefore, could not consider the January 28, 2021 email.
{¶ 28} On appeal, ODJFS has also asked us to disregard both of the January 2021
emails. Appellee's Brief at p. 7. Like the trial court, we are confined to the certified
record, which does not include either email.
{¶ 29} As an additional reason, the general principle is well-settled that “[a]
reviewing court cannot add matter to the record before it, which was not a part of the trial
court's proceedings, and then decide the appeal on the basis of the new matter.” State
v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one of the syllabus.
Accordingly, we cannot consider any items attached to Beard’s appellate brief.
{¶ 30} As a final point of discussion, we note that Beard’s appellate brief mentions
page 131 of the certified record and contends that the UCRC should have considered it
as evidence that he and Deceuninck had a “situation with payroll.” Beard’s Court of
Appeals’ Brief at p. 1.
The document in question is an email that Beard apparently faxed the UCRC on
April 7, 2021. This is the last document in the administrative record and is dated the
same day that the UCRC mailed its decision disallowing Beard’s request for review. Tr.
at p. 118-120. There is no indication the UCRC even saw this document before its
decision was mailed to Beard.
{¶ 31} The fax does forward an email previously sent to someone at
“ucbeninquiry@jfs.ohio.gov,” on March 31, 2021. However, there is no indication that -12-
this particular email address belongs to anyone at the UCRC. Id. at p. 131. Since Beard
was forwarding this email to the UCRC on April 7, 2021, the March 2021 email clearly did
not previously reach the UCRC.
{¶ 32} In the March 2021 email, Beard claimed that he was sending a picture of
his bank account from July 3, 2020. The “picture” does not contain any identifying
information, i.e., account number or owner, or even a bank name. The picture shows a
series of purported transactions on July 3, 2020. These transactions show two “DIR
DEP” of pay from Deceuninck, one “PAY REVERSAL” from Deceuninck, a “PC CU
TRANSFER,” and a “CHECKING CASH W/D.” Id. No amounts are listed for any of
these transactions.
{¶ 33} According to Beard’s statement in the March 2021 email, he called human
resources after he noticed the deposit and reversal, and no response was made to him
until January 28, 2021. Id. Beard stated in the March 2021 email that “[t]his is why I
initially filed for unemployment on 7/5/20 and decided to leave company do [sic] to payroll
issues and response time.” Id. As noted, Beard did not indicate any amounts of the
pay that was deposited or reversed. Since only one pay deposit was allegedly reversed,
it is possible that Beard was mistakenly paid twice, causing a reversal. However, nothing
in the email forwarded to the UCRC sheds any light on these matters.
{¶ 34} Assuming for the sake of argument that the “picture” reflects Beard’s bank
account, this is yet another inconsistent version of events. First of all, Beard did not file
for unemployment on July 5, 2020. He filed on July 10, 2020. Moreover, Beard had
previously said that he called human resources after he quit his job on July 5, 2020. -13-
Thus, whether human resources timely responded to Beard’s call is irrelevant, and even
if UCRC had seen Beard’s April 7, 2021 fax, there would have been no grounds for
allowing Beard’s appeal of the hearing officer’s decision.
{¶ 35} Finally, even if all of this were otherwise, “ ‘employees who experience
problems in their working conditions must make reasonable efforts to attempt to solve the
problem before leaving their employment. Essentially, an employee must notify the
employer of the problem and request that it be resolved, and thus give the employer an
opportunity to solve the problem before the employee quits the job; those employees who
do not provide such notice ordinarily will be deemed to have quit without just cause and,
therefore will not be entitled to unemployment benefits.’ ” Michaels v. KTLA Invests.,
L.L.C., 2d Dist. Montgomery No. 25403, 2013-Ohio-2933, ¶ 16, quoting DiGiannantoni v.
Wedgewater Animal Hosp., Inc., 109 Ohio App.3d 300, 307, 671 N.E.2d 1378 (10th
Dist.1996). Assuming for the sake of argument that an issue existed, Beard simply quit
rather than giving Deceuninck a chance to resolve any problem.
{¶ 36} Based on the preceding discussion, we find no error on the trial court’s part
or on the part of the UCRC. The UCRC’s decision to deny unemployment compensation
benefits was not unreasonable or unlawful, and it was supported by some competent,
credible evidence. Accordingly, Beard’s assignment of error, as framed by ODJFS, is
overruled.
III. Conclusion
{¶ 37} Beard’s sole assignment of error having been overruled, the judgment of -14-
the trial court is affirmed.
EPLEY, J. and LEWIS, J., concur.
Copies sent to:
Tyrone A. Beard Robin A. Jarvis Hon. Dennis J. Adkins