[Cite as Folck v. Patton, 2014-Ohio-2304.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
NEAL C. FOLCK : : Appellate Case No. 2013-CA-105 Plaintiff-Appellant : : Trial Court Case No. 12-CV-1120 v. : : SYLVESTER PATTON, et al. : (Civil Appeal from : (Common Pleas Court) Defendant-Appellees : : ...........
OPINION
Rendered on the 30th day of May, 2014.
...........
NEAL C. FOLCK, 6447 Harbinger Lane, Dayton, Ohio 45449 Plaintiff-Appellant, pro se
MICHAEL DEWINE, by ALAN SCHWEPE, Atty. Reg. #0012676, and YVONNE TERTEL, Atty. Reg. #0019033, Ohio Attorney General’s Office, Health and Human Services Section, 30 East Broad Street, 26th Floor, Columbus, Ohio 43215-3400 Attorneys for Defendant-Appellee, Ohio Dept. Of Job and Family Services
.............
FAIN, J.
{¶ 1} Appellant Neal Folck appeals from a judgment of the common pleas court 2
affirming a decision of the Unemployment Compensation Review Commission that he quit his
job without just cause, and is therefore not entitled to unemployment benefits. For the reasons
set forth below, we Affirm.
I. The Course of Proceedings
{¶ 2} Folck was employed as a commissioned sales consultant with Keffer
Volkswagen from January 31, 2012 through March 16, 2012, when he quit.
{¶ 3} Folck applied for unemployment benefits in Case Number C2012-018500. In
his application, Folck claimed that Keffer did not pay him in accord with the terms of his
commission agreement. Specifically, he claimed that the commission agreement was changed,
because Keffer hired too many sales personnel; other employees took his potential sales; he was
not provided a share of “internet leads”; he was assigned non-commissionable tasks; and he had
to split his commissions. In his application, Folck also claimed that he spoke to two sales
managers on March 13, 2012, and that he spoke to the Floor Manager on March 16, telling the
Floor Manager that he was “leaving and left without incident on 3/16/12.” Folck also noted in is
application that he spoke to the owner of Keffer after he quit.
{¶ 4} Folck submitted copies of two of his pay stubs. One shows that from February
15 - 20, 2012, Folck was paid $718.47. The other stub shows that he was paid $47.17 for
March 14 through 27. Keffer submitted a document reflecting that he had been paid $2,972.29
for the six weeks he worked.
{¶ 5} The application was denied, upon a finding that the “facts establish that
claimant did not discuss his/her objections with the employer or did not allow the employer 3
reasonable time to correct the situation.” Folck’s initial administrative appeal from the
denial of his application resulted in an affirmance of the decision. Upon his further appeal,
the matter was transferred to the Review Commission.
{¶ 6} A telephonic hearing was held before a Commission Hearing Officer on
August 27, 2012. During the hearing, evidence was submitted that the commission
agreement provided that commissions were to be 25% of the commissionable gross, and that
the minimum commission for new and used vehicle sales was $150 and $100, respectively.
The agreement further provided in pertinent part:
Sales commissions will be paid on a bi-weekly basis based on
commissions earned. * * * if no commissions are earned and fall below
minimum wage for hours worked, the sales associate will receive the minimum
wage times the clock hours actually worked. The shortfall in commissions will
be carried forward and satisfied in future pay periods.
{¶ 7} Folck testified that Keffer “changed” the commission agreement by hiring
additional personnel. He testified that by hiring additional sales personnel, Keffer caused a
diminution of his potential sales.
{¶ 8} Folck further testified that some of his commissions were split with other
sales people, so that he was not getting the full amount of his commissions. When asked
about splitting commissions, Folck submitted a document that he claims showed he split a
$100 used-vehicle commission with another salesperson. Folck further testified that the
document shows that on another sale, which generated a commission of $520, he received
$268.88 in commission, but had to give the remainder to another salesperson. He testified 4
that these two salespersons did not participate in the sale “except to show up.” There was no
documentary evidence submitted to demonstrate that commission splits were required by
Keffer. From the record it appears that this was an accommodation among the sales personnel
when they worked together on a sale.
{¶ 9} Folck further testified that the wage agreement stated that some of his
sales would be generated from internet sales. A review of that document does not support
his claim. Folck testified that he spoke to one manager in February 2012 (but he admitted
that he was not sure of the date because he did not have the notes on hand), and complained
that he wanted to be given more “internet leads” and “prior customer leads.” He testified
that the request went unfulfilled. Folck testified that he spoke to two other managers about
receiving leads, but they failed to follow through with his requests. Folck testified that he
did not advise them that the failure to resolve these issues to his satisfaction would result in
his resignation.
{¶ 10} Folck testified that at least four hours a week he was required to perform
non-commissionable tasks, such as delivering vehicles or putting gas into vehicles. He also
submitted documents suggesting that he was scheduled to work at least five days per week
during February and March, for a minimum of forty-five hours per week.
{¶ 11} Folck then presented the testimony of Joseph Bukovensky. Bukovensky
testified that he thought he began working at Keffer some time in February 2012, but was not
sure. He testified that he was given a wage agreement for a two-week training period, which
provided that he would receive $400 in base pay during that time. He testified that during
his training period Folck referred a customer to him and one other person. He testified that 5
they “finished that deal, but never got paid for that sale.” Bukovensky testified that he only
received $247 in base pay. However, he admitted that he did not complete the two-week
training because he went “to a better offer someplace else,” working outside the automobile
business.
{¶ 12} Folck attempted to present the testimony of Andy Hicks, a former
employee of Keffer. Mr. Hicks stated that he had not received any subpoena to testify, that
he did not know Folck, and that he did not want to testify. He further stated that he had
recently moved. The record shows that the Commission sent a subpoena to Hicks. The
hearing officer advised Hicks that he could be subjected to contempt proceedings. The
hearing officer then advised Folck that he could pursue contempt proceedings. There is no
indication that Folck did so. Folck stated that Hicks was “the internet manager who did not
disseminate the leads and was one of the highest paid employees at Keffer.” Other than that,
there was no proffer of Hicks’s anticipated testimony.
{¶ 13} Finally, Folck presented the testimony of Virginia Lynn, who was Folck’s
“customer and personal friend.” Lynn testified that she deposited Folck’s pay checks and
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Folck v. Patton, 2014-Ohio-2304.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
NEAL C. FOLCK : : Appellate Case No. 2013-CA-105 Plaintiff-Appellant : : Trial Court Case No. 12-CV-1120 v. : : SYLVESTER PATTON, et al. : (Civil Appeal from : (Common Pleas Court) Defendant-Appellees : : ...........
OPINION
Rendered on the 30th day of May, 2014.
...........
NEAL C. FOLCK, 6447 Harbinger Lane, Dayton, Ohio 45449 Plaintiff-Appellant, pro se
MICHAEL DEWINE, by ALAN SCHWEPE, Atty. Reg. #0012676, and YVONNE TERTEL, Atty. Reg. #0019033, Ohio Attorney General’s Office, Health and Human Services Section, 30 East Broad Street, 26th Floor, Columbus, Ohio 43215-3400 Attorneys for Defendant-Appellee, Ohio Dept. Of Job and Family Services
.............
FAIN, J.
{¶ 1} Appellant Neal Folck appeals from a judgment of the common pleas court 2
affirming a decision of the Unemployment Compensation Review Commission that he quit his
job without just cause, and is therefore not entitled to unemployment benefits. For the reasons
set forth below, we Affirm.
I. The Course of Proceedings
{¶ 2} Folck was employed as a commissioned sales consultant with Keffer
Volkswagen from January 31, 2012 through March 16, 2012, when he quit.
{¶ 3} Folck applied for unemployment benefits in Case Number C2012-018500. In
his application, Folck claimed that Keffer did not pay him in accord with the terms of his
commission agreement. Specifically, he claimed that the commission agreement was changed,
because Keffer hired too many sales personnel; other employees took his potential sales; he was
not provided a share of “internet leads”; he was assigned non-commissionable tasks; and he had
to split his commissions. In his application, Folck also claimed that he spoke to two sales
managers on March 13, 2012, and that he spoke to the Floor Manager on March 16, telling the
Floor Manager that he was “leaving and left without incident on 3/16/12.” Folck also noted in is
application that he spoke to the owner of Keffer after he quit.
{¶ 4} Folck submitted copies of two of his pay stubs. One shows that from February
15 - 20, 2012, Folck was paid $718.47. The other stub shows that he was paid $47.17 for
March 14 through 27. Keffer submitted a document reflecting that he had been paid $2,972.29
for the six weeks he worked.
{¶ 5} The application was denied, upon a finding that the “facts establish that
claimant did not discuss his/her objections with the employer or did not allow the employer 3
reasonable time to correct the situation.” Folck’s initial administrative appeal from the
denial of his application resulted in an affirmance of the decision. Upon his further appeal,
the matter was transferred to the Review Commission.
{¶ 6} A telephonic hearing was held before a Commission Hearing Officer on
August 27, 2012. During the hearing, evidence was submitted that the commission
agreement provided that commissions were to be 25% of the commissionable gross, and that
the minimum commission for new and used vehicle sales was $150 and $100, respectively.
The agreement further provided in pertinent part:
Sales commissions will be paid on a bi-weekly basis based on
commissions earned. * * * if no commissions are earned and fall below
minimum wage for hours worked, the sales associate will receive the minimum
wage times the clock hours actually worked. The shortfall in commissions will
be carried forward and satisfied in future pay periods.
{¶ 7} Folck testified that Keffer “changed” the commission agreement by hiring
additional personnel. He testified that by hiring additional sales personnel, Keffer caused a
diminution of his potential sales.
{¶ 8} Folck further testified that some of his commissions were split with other
sales people, so that he was not getting the full amount of his commissions. When asked
about splitting commissions, Folck submitted a document that he claims showed he split a
$100 used-vehicle commission with another salesperson. Folck further testified that the
document shows that on another sale, which generated a commission of $520, he received
$268.88 in commission, but had to give the remainder to another salesperson. He testified 4
that these two salespersons did not participate in the sale “except to show up.” There was no
documentary evidence submitted to demonstrate that commission splits were required by
Keffer. From the record it appears that this was an accommodation among the sales personnel
when they worked together on a sale.
{¶ 9} Folck further testified that the wage agreement stated that some of his
sales would be generated from internet sales. A review of that document does not support
his claim. Folck testified that he spoke to one manager in February 2012 (but he admitted
that he was not sure of the date because he did not have the notes on hand), and complained
that he wanted to be given more “internet leads” and “prior customer leads.” He testified
that the request went unfulfilled. Folck testified that he spoke to two other managers about
receiving leads, but they failed to follow through with his requests. Folck testified that he
did not advise them that the failure to resolve these issues to his satisfaction would result in
his resignation.
{¶ 10} Folck testified that at least four hours a week he was required to perform
non-commissionable tasks, such as delivering vehicles or putting gas into vehicles. He also
submitted documents suggesting that he was scheduled to work at least five days per week
during February and March, for a minimum of forty-five hours per week.
{¶ 11} Folck then presented the testimony of Joseph Bukovensky. Bukovensky
testified that he thought he began working at Keffer some time in February 2012, but was not
sure. He testified that he was given a wage agreement for a two-week training period, which
provided that he would receive $400 in base pay during that time. He testified that during
his training period Folck referred a customer to him and one other person. He testified that 5
they “finished that deal, but never got paid for that sale.” Bukovensky testified that he only
received $247 in base pay. However, he admitted that he did not complete the two-week
training because he went “to a better offer someplace else,” working outside the automobile
business.
{¶ 12} Folck attempted to present the testimony of Andy Hicks, a former
employee of Keffer. Mr. Hicks stated that he had not received any subpoena to testify, that
he did not know Folck, and that he did not want to testify. He further stated that he had
recently moved. The record shows that the Commission sent a subpoena to Hicks. The
hearing officer advised Hicks that he could be subjected to contempt proceedings. The
hearing officer then advised Folck that he could pursue contempt proceedings. There is no
indication that Folck did so. Folck stated that Hicks was “the internet manager who did not
disseminate the leads and was one of the highest paid employees at Keffer.” Other than that,
there was no proffer of Hicks’s anticipated testimony.
{¶ 13} Finally, Folck presented the testimony of Virginia Lynn, who was Folck’s
“customer and personal friend.” Lynn testified that she deposited Folck’s pay checks and
noticed that his “compensation kept dropping,” despite the fact that he was “putting in a lot of
hours every day.”
{¶ 14} A decision denying Folck’s claim for benefits was filed on September 7,
2012. In the decision, the hearing officer stated that “no reliable, substantive and probative
evidence was offered to clearly establish that the employer failed to pay the claimant
according the [sic] terms of his wage agreement. Therefore, claimant quit without just
cause.” Folck requested a review, which was granted. The Review Commission affirmed 6
the denial.
{¶ 15} On April 25, 2012, Folck filed a separate application for benefits
regarding his job at Keffer (Case Number C2012-016299). This application was denied on
the basis that the matter had already been heard, and could be administratively appealed, but
not relitigated. Ultimately, the Commission affirmed the denial.
{¶ 16} Additionally, Folck filed for unemployment benefits for a period of four
weeks in April and May 2012 with regard to a different employer (Case Numbers
H2012-018501 and 2012-018502). These applications were denied on the basis that they
were untimely filed. Again, the denial was affirmed by the Commission.
{¶ 17} On October 31, 2012, Folck filed a notice of appeal in all four matters to
the Clark County Common Pleas Court, which affirmed the decisions of the Commission.
The trial court concluded that the record demonstrated that “Folck quit employment with
Keffer without just cause.” The court further concluded that the evidence indicated that
“Folck’s own actions created his situation and rendered him ineligible for unemployment
compensations [sic] benefits.” Folck appeals.
II. The Lack of Assignments of Error in Folck’s Brief
Leads Us to Infer Three Assignments of Error
{¶ 18} Folck has not included “a statement of the assignments of error presented
for review * * * [or] a statement of issues presented for review” as required by App.R.
16(A)(3) and (4). Furthermore, he has failed to comply with App.R. 19, regarding the form
of his brief. However, a review of his appellate brief indicates that the focus of Folck’s 7
appeal is that the evidence does not support the decision of the lower tribunals. He further
appears to argue that the failure to compel Hicks’s testimony was error. With that in mind,
we have inferred three assignments of error.
III. The Commission’s Decision that Folck Was Paid in Accordance with the Terms of his
Commission Agreement, and therefore Lacked Just Cause to Quit, Is Neither Unlawful,
Unreasonable, Nor Against the Manifest Weight of the Evidence
{¶ 19} Folck’s inferred First Assignment of Error is as follows:
THE DECISION OF THE COMMISSION WAS UNLAWFUL,
UNREASONABLE, OR AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶ 20} Folck contends that the decision of the commission is not supported by
the evidence. In support, he argues that he demonstrated that Keffer did not pay him
according to the terms of his commission agreement and that the commission agreement was
modified.
{¶ 21} The purpose of the Unemployment Compensation Act codified at R.C.
Chapter 4141 is “‘to enable unfortunate employees, who become and remain involuntarily
unemployed by adverse business and industrial conditions, to subsist on a reasonably decent
level and is in keeping with the humanitarian and enlightened concepts of this modern day.’”
(Emphasis deleted.) Irvine v. Unemp. Comp. Bd. of Review, 19 Ohio St.3d 15, 17, 482
N.E.2d 587 (1985), quoting Leach v. Republic Steel Corp., 176 Ohio St. 221, 223, 199
N.E.2d 3 (1964). The provisions of the Act must be construed liberally. R.C. 4141.46. [Cite as Folck v. Patton, 2014-Ohio-2304.] {¶ 22} R.C. 4141.29(D)(2)(a) provides that individuals may not receive
unemployment compensation benefits if they have quit their work without 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.” Irvine, at 17. Further,
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.”
DiGiannantoni v. Wedgewater Animal Hosp., Inc., 109 Ohio App.3d 300, 307, 671 N.E.2d
1378 (10th Dist. 1996).
{¶ 23} A common pleas court shall affirm the decision of the Commission
unless it finds that decision “unlawful, unreasonable or against the manifest weight of the
evidence.” Williams v. Ohio Dept. of Job & Family Servs., 129 Ohio St.3d,
2011-Ohio-2897, 951 N.E.2d 1031, ¶ 20; R.C. 4141.282(H). This court is limited to the
same standard of review. Id., citing Irvine at 18. “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 supports it. In other words, a reviewing
court may not reverse the commission's decision simply because ‘reasonable minds might
reach different conclusions.’ ” Id.
{¶ 24} In this case, Folck contends that the problem with his working condition
leading to his reasonable decision to quit was that he was not being paid his commissions as
required by the commission agreement and that the commission agreement was changed
during his employment. The Hearing Officer concluded that he failed to establish any 9
“reliable, substantive and probative evidence” of this claim. We agree.
{¶ 25} The record in this case demonstrates that the commission agreement
merely set forth the minimum and maximum amounts for commissions. The record shows
that Folck was assigned to work approximately forty-five hours per week; even given the four
hours he claimed he spent on non-commissionable tasks, he still had at least forty hours per
week to achieve his sales. There is no evidence that he was the only salesperson required to
perform some non-commissionable tasks as part of the job. While the record arguably shows
that he split two of his commissions while at Keffer, there is no evidence to indicate that this
violated the commission agreement, or that he was forced to do so. To the contrary, it
appears that this was a routine “courtesy” extended when sales personnel worked together on
a sale. The record further shows that he received almost $3,000 in compensation for the six
weeks of his employment, and that at least some of that income was from commissions.
Folck admitted at the hearing that the language of the commission agreement was not literally
changed during his employment.
{¶ 26} The fact that the car dealership had twelve sales consultants did not
violate the terms of Folck’s commission agreement, which did not specify or limit the number
of sales consultants the dealership could employ. The record indicates that Folck was hired
in with a new group of sales personnel, and that Keffer usually had as high as fourteen
salespeople, because attrition rates in the industry are high. Folck did receive commissions
during the term of his employment. While he claims that other salespeople took his sales
from him, he only cited one instance in which a customer was directed to another salesperson.
Folck’s claim that he did not get internet leads or new customer leads does not support a 10
conclusion that he was not paid, or that the commission agreement was modified, or not
followed.
{¶ 27} Folck’s inferred First Assignment of Error is overruled.
IV. In the Absence of Either a Specific Request for the Invocation
of Contempt Proceedings, or a Proffer of the Testimony of a Witness
who Was Subpoenaed, but Declined to Testify, the Hearing Officer
Did Not Abuse her Discretion by Continuing with the Hearing
{¶ 28} Folck’s Second Assignment of Error is:
THE HEARING OFFICER ABUSED HER DISCRETION BY FAILING
TO COMPEL THE TESTIMONY OF A WITNESS.
{¶ 29} Folck appears to argue that the hearing officer abused her discretion by
failing to compel Hicks to testify.
{¶ 30} The principles of due process apply to administrative hearings. R.C.
4141.281(C)(2). Hearing officers have a duty to question witnesses and fully develop the
record. Id. However, a hearing officer has broad discretion in accepting and rejecting
evidence, and in conducting the hearing in general. Owens v. Ohio Bur. of Emp. Serv., 135
Ohio App.3d 217, 220, 733 N.E.2d 628 (1st Dist.1999). And hearing officers are not bound
by the rules of evidence or procedure. Harrison v. Penn Traffic Co., 10th Dist. Franklin No.
04AP-728, 2005-Ohio-638, ¶ 20.
{¶ 31} The record shows that a subpoena was served on Hicks, who essentially
refused to testify. Folck was advised of this fact, and he was advised that he could seek 11
contempt proceedings against Hicks. Folck did not object; nor did he ask for a continuance
of the hearing or seek any relief. Furthermore, Folck did not make a proffer of the testimony
he expected from Hicks.
{¶ 32} In the absence of a proffer of testimony, we cannot determine whether
Hicks’s testimony would likely have affected the outcome of this case. Harrison, at ¶ 24.
Likewise, without a request for a continuance or an objection, we cannot say that the hearing
officer abused her discretion by continuing with the hearing. Id.
{¶ 33} Folck’s inferred Second Assignment of Error is overruled.
V. Folck’s Remaining Applications Were Properly Denied as Constituting Relitigation of
a Prior Claim, or as Untimely, Respectively
{¶ 34} Folck’s inferred Third Assignment of Error is:
THE DECISION OF THE COMMISSION DENYING HIS
APPLICATION IN CASE NUMBERS C2012-016299, H2012-018501 AND
H2012-018502 WAS UNREASONABLE, UNLAWFUL AND AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 35} Folck contends that the decision of the common pleas court and
Commission should be reversed with regard to his remaining claims.
{¶ 36} We begin with case number C2012-16299. This case involves Folck’s
attempt to file a second application for benefits with regard to his employment at Keffer. The
claim involved the exact issues and facts as set forth in his first application. The claim was
properly denied as having been previously litigated. Furthermore, the claim was still 12
pending on appeal. Thus, we find no error in the denial of this claim.
{¶ 37} As noted above, the remaining two claims involve the denial of weekly
unemployment benefits related to other employment with Veolia ES Technical Solutions,
LLC. The record shows that Folck filed claims for unemployment benefits for the weeks of
April 21, April 28, May 13, and May 26, 2012, and that he did not file these claims until June
19, 2012, via telephone. Folck does not dispute that they were untimely filed. Folck claims
that he could not timely file these claims because of technical problems with the computer
system at the Ohio Department of Job and Family Services. He claims that he was unable to
access the system.
{¶ 38} At the hearing on the issue, the hearing officer asked Folck why he did
not call until June 19, when he experienced problems with the computer system. At that
point, Folck was clearly frustrated and began to disparage the hearing officer, using offensive
language. He merely kept repeating that he had been unable to access the computer system.
{¶ 39} The hearing officer issued a decision concluding that Folck had not
presented any evidence to support his claim that he was “deterred by circumstances beyond
[his] control from filing a claim so as to permit the department to extend the filing time” as
required by R.C. 4141.29(A)(3) and O.A.C. 4141-27-05(A) - (B). We agree. There is no
evidence that Folck was prevented from timely filing his claims via telephone.
{¶ 40} Folck’s inferred Third Assignment of Error is overruled.
VI. Conclusion
{¶ 41} All of Folck’s inferred assignments of error having been overruled, the 13
judgment of the trial court is Affirmed.
DONOVAN and HALL, JJ., concur.
Copies mailed to:
Neal C. Folck Michael DeWine Alan Schwepe
Yvonne Tertel Hon. Douglas M. Rastatter