[Cite as Huth v. Ohio Dept. of Job & Family Servs., 2014-Ohio-5408.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
IRVIN W. HUTH : JUDGES: : : Hon. William B. Hoffman, P.J. APPELLANT : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 2014 AP 03 0011 : DIRECTOR, OHIO DEPARTMENT OF : JOB AND FAMILY SERVICES, ET AL. : : : APPELLEES : OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2013 AA 05 0396
JUDGMENT: AFFIRMED IN PART; REVERSED AND REMANDED IN PART
DATE OF JUDGMENT ENTRY: December 4, 2014
APPEARANCES:
For Appellant: For Appellees:
MICHELA HUTH SUSAN M. SHEFFIELD 257 Canal Street 20 W. Federal St., 3rd Floor P.O. Box 673 Youngstown, OH 44503 Bolivar, OH 44612 DENNIS TRAVER 232 West Third St., Suite 309 Dover, OH 44622 Tuscarawas County, Case No. 2014 AP 03 0011 2
Delaney, J.
{¶1} Appellant Irvin W. Huth appeals the February 26, 2014 judgment entry of
the Tuscarawas County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellee Lawrence Township (Tuscarawas County) Board of Trustees
employed Appellant Irvin W. Huth as a Zoning Inspector and Assistant to the Board of
Trustees. The Zoning Inspector and Assistant position was a full-time position at 40
hours per week earning $13.50 per hour. Huth's position also provided health insurance
benefits for Huth and his spouse at no cost. Huth began his employment on August 1,
2006.
{¶3} In the summer of 2012, Huth learned from the Board of Trustees that they
were going to change the Zoning Inspector and Assistant position to a part-time position
due to budget cuts. The Board of Trustees never made a final decision as to whether
the part-time position would entail 24 hours per week or 20 hours per week. Huth
assumed the Board of Trustees intended to reduce the position to 20 hours per week.
The pay rate would remain at $13.50 per hour. There would be no health benefits
associated with the position. Huth was informed the part-time hours would go into effect
on January 1, 2013.
{¶4} In December, Huth wrote a letter to the Board of Trustees acknowledging
the reduction in hours for his position. Huth offered to stay past January 1, 2013 to train
his replacement if the Board of Trustees paid Huth for 40 hours per week. Huth stated if
the Board did not accept his counter-offer, he would resign effective December 31,
2012. Tuscarawas County, Case No. 2014 AP 03 0011 3
{¶5} On December 27, 2012, Huth attended a Board of Trustees meeting. At
the meeting, Huth suggested additional alternatives. He suggested the Board of
Trustees consider full-time employment at $13.50 per hour and Huth would provide his
own health insurance coverage. Huth also suggested he could work 20 hours per week
at $18.00 per hour and he would provide his own health insurance coverage. Huth
determined his health coverage expenses for he and his spouse would be
approximately $1,388.00 per month under COBRA. The Board of Trustees stated to
Huth they would have to investigate whether it was permissible for Huth to provide his
own health insurance coverage.
{¶6} On December 31, 2012, Huth spoke to the Lawrence Township fiscal
officer regarding his position. The fiscal officer stated the Board of Trustees had not
made any decision as to Huth's counter offer. Huth's last day as a Lawrence Township
employee was December 31, 2012. As of March 13, 2013, the position was not filled by
a permanent employee. It was being filled in-house, part-time by current Lawrence
Township employees.
{¶7} Huth filed an application for benefits with the Office of Unemployment
Compensation. On January 25, 2013, the Office of Unemployment Compensation
issued an initial Determination of Unemployment Benefits disallowing Huth's application
for unemployment compensation benefits.
{¶8} Huth filed an appeal of the January 25, 2013 Determination. The Office of
Unemployment Compensation Benefits issued a Director's Redetermination denying
Huth unemployment benefits. Huth appealed the Director's Redetermination. The Ohio
Unemployment Compensation Review Commission ("Commission") heard Huth's Tuscarawas County, Case No. 2014 AP 03 0011 4
appeal on March 13, 2013 and issued its Decision on March 20, 2013. The Decision
affirmed the Director's Redetermination to deny Huth unemployment benefits because
Huth quit without just cause. The Hearing Officer found Huth could have worked the
part-time hours while searching for new employment or Huth could have applied for
partial unemployment benefits. Huth filed a request for review of the Hearing Officer's
Decision, which was disallowed by the Commission.
{¶9} Huth filed an administrative appeal of the Commission's Decision with the
Tuscarawas County Court of Common Pleas.
{¶10} During the briefing, Appellee Lawrence Township filed a Notice Adopting
the Brief of Appellee Director, Ohio Department of Job and Family Services ("ODJFS").
Huth moved to strike the Notice.
{¶11} On February 26, 2014, the trial court issued its judgment entry on Huth's
administrative appeal. The trial court first denied Huth's motion to strike Lawrence
Township's Notice of adopting the brief of ODJFS. Second, the trial court affirmed the
Decision of the Commission to find Huth quit without just cause and was not entitled to
unemployment compensation benefits.
{¶12} It is from this judgment entry Huth now appeals.
ASSIGNMENTS OF ERROR
{¶13} Huth raises four Assignments of Error:
{¶14} "I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND
ABUSED DISCRETION WHEN IT DENIED APPELLANT'S MOTION TO STRIKE
APPELLEE LAWRENCE TOWNSHIP'S NOTICE ADOPTING THE BRIEF OF
APPELLEE, DIRECTOR, ODJFS. Tuscarawas County, Case No. 2014 AP 03 0011 5
{¶15} "II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND
ABUSED ITS DISCRETION WHEN FOUND THAT THE COMMISSION'S APRIL 24,
2013 DECISION WAS NOT UNLAWFUL, UNREASONABLE, OR AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶16} "III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND
ABUSED ITS DISCRETION WHEN IT FOUND THAT THE COMMISSION'S APRIL 24,
2013 DECISION SHOULD BE AFFIRMED.
{¶17} "IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND
ABUSED ITS DISCRETION WHEN IT FOUND THAT THE COMMISSION'S APRIL 24,
2014 DECISION IS SUPPORTED BY THE EVIDENCE."
ANALYSIS
II., III., and IV.
{¶18} We will first address Huth's second, third, and fourth Assignments of Error
because they are dispositive of Huth's administrative appeal. In Huth's second, third,
and fourth Assignments of Error, Huth argues the decision of the trial court to affirm the
Commission's Decision was in error. We agree.
Standard of Review
{¶19} R.C. 4141.282(H) governs the standard of review to be applied by the
court of common pleas and subsequent reviewing courts in unemployment
compensation cases. The statute states:
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 Tuscarawas County, Case No. 2014 AP 03 0011 6
commission. Otherwise, the court shall affirm the decision of the
commission.
We are required to focus on the decision of the commission, rather than that of the trial
court. Hartless v. Ohio Dept. of Job & Family Servs., 4th Dist. Pickaway No. 10CA27,
2011–Ohio–1374, ¶ 14 quoting Klemencic v. Robinson Memorial Hosp., 9th Dist.
Summit No. 25293, 2010–Ohio–5108, ¶ 7.
{¶20} Appellate courts are not permitted to make factual findings or to determine
the credibility of witnesses; but the reviewing court does have the duty to determine
whether the Commission’s decision is supported by the evidence in the record.
Tzangas, Plakas, & Mannos v. Administrator, Ohio Bureau of Employment Services, 73
Ohio St.3d 694, 696, 1995–Ohio–206, 653 N.E.2d 1207, citing Irvine v. Unemp. Comp.
Bd. of Review, 19 Ohio St.3d 15, 17–18, 482 N.E.2d 587 (1985). Where the commission
might reasonably decide either way, the courts have no authority to upset the
Commission's decision. Bonanno v. Ohio Dept. of Job & Fam. Servs., 5th Dist.
Tuscarawas No. 2012 AP 02 0011, 2012-Ohio-5167, ¶ 15 citing Irvine, supra at 17–18. “
‘Every reasonable presumption must be made in favor of the [decision] and the findings
of facts [of the Review Commission].’ “ Bonanno, at ¶ 15 citing Ro–Mai Industries, Inc.
v. Weinberg, 176 Ohio App.3d 151, 2008–Ohio–301, 891 N.E.2d 348, ¶ 7 (9th Dist.),
quoting Karches v. Cincinnati, 38 Ohio St.3d 12, 19, 526 N.E.2d 1350 (1988).
Just Cause
{¶21} In order to qualify for unemployment compensation benefits, a claimant
must satisfy the criteria set forth in R.C. 4141.29(D)(2)(a). The section provides: Tuscarawas County, Case No. 2014 AP 03 0011 7
(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, * * *.
Pursuant to R.C. 4141.29(D)(2)(a), a claimant is ineligible for unemployment benefits if
the claimant quits a job without “just cause.”
{¶22} R.C. Chapter 4141 does not define “just cause.” The Ohio Supreme Court
has defined “just cause” as that which, to an ordinarily intelligent person, is a justifiable
reason for doing or not doing a particular act. Irvine, supra at 17; Tzangas, supra at 697.
“The determination of whether just cause exists necessarily depends upon the unique
factual considerations of the particular case. Determination of purely factual questions is
primarily within the province of the referee and the [Commission].” Irvine, supra at 17.
Accommodation
{¶23} ODJFS argues the record supports the Commission's conclusion that
Huth did not have just cause to quit his employment. ODJFS first argues Huth did not
give Lawrence Township sufficient time to address Huth's counter offers prior to his
resignation. ODJFS cites to Shephard v. Ohio Dept. of Job & Family Servs., 166 Ohio
App.3d 747, 853 N.E.2d 335, ¶ 26 (8th Dist.1996) that stated:
"[G]enerally[,] 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 Tuscarawas County, Case No. 2014 AP 03 0011 8
employer of the problem and request 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 quit without just cause and, therefore will not be entitled to
unemployment benefits." DiGiannantoni v. Wedgewater Animal Hosp., Inc.
(1996), 109 Ohio App.3d 300, 307, 671 N.E.2d 1378.
In the Shephard case, the claimant quit her employment due to health problems.
Shephard, supra at ¶ 24. It was determined, however, the claimant failed to give her
employer the opportunity to make an accommodation for her health needs. Id. at ¶ 25.
The Commission found the claimant did not have just cause to resign her employment.
Id. at ¶ 16.
{¶24} The record shows that Huth proposed alternatives to maintain his full-time
salary such as providing his own health insurance coverage. The Board of Trustees
said they would research the matter and get back to Huth. As of December 27, 2012,
the Lawrence Township fiscal officer told Huth that nothing had been determined as to
the hours or health insurance coverage. Huth resigned on December 31, 2012 and the
part-time position became effective on January 1, 2013. Lawrence Township argues this
was insufficient time for it to address Huth's concerns. Unlike the Shephard case, the
alleged problem in Huth's employment, the reduction in hours and elimination of health
coverage, was not a problem Lawrence Township could solve. The reduction in hours
and elimination of health insurance coverage was due to budget cuts. The evidence
shows the position has not been filled by Lawrence Township and the duties of the
position are being performed by current employees. Tuscarawas County, Case No. 2014 AP 03 0011 9
Substantial Reduction in Hours and Wages
{¶25} Huth argues he established he had just cause to quit his job because
Lawrence Township made a substantial reduction in the position’s hours and benefits.
When Huth was working 40 hours per week at $13.50 per hour, he earned $540.00 per
week for an annual salary of $28,080.00. The full-time position provided health
insurance coverage at no cost for Huth and his spouse. Huth argues with the health
insurance coverage valued at approximately $1,388.00 per month, the value of his
annual compensation was $44,736.00. Lawrence Township stated it was reducing the
Zoning Inspector position from a full-time to a part-time position, but it did not decide at
the time of Huth’s resignation whether the hours would be 24 hours per week or 20
hours per week. The part-time position would not include health insurance coverage
under either scenario.
{¶26} If Lawrence Township reduced the position to 24 hours per week at
$13.50 per hour, Huth would earn $324.00 per week for an annual salary of $16,848.00.
Without considering the value of the health insurance coverage, a reduction from 40
hours to 24 hours per week would equate to 40% reduction in salary. If Lawrence
Township reduced the position to 20 hours per week at $13.50 per hour, Huth would
earn $270.00 per week for an annual salary of $12,960.00. Without considering the
value of the health insurance coverage, a reduction from 40 hours to 20 hours per week
would equate to a 54% reduction in salary.
{¶27} Huth stated COBRA health insurance coverage would cost approximately
$1,388.00 per month. This evidence was uncontroverted at the administrative hearing.
Huth argues that if you consider the value of the health insurance coverage the full-time Tuscarawas County, Case No. 2014 AP 03 0011 10
position provided, a 24 hour per week position would result in a 62% reduction in
compensation. A 20 hour per week position would equate to a 70% reduction in
compensation.
{¶28} In Irvine, the Ohio Supreme Court stated there was no “slide-rule definition
of just cause. Essentially, each case must be considered upon its particular merits.”
Irvine, supra at 17. A review of the case law analyzing whether a reduction in work
hours constitutes just cause for an employee to quit his or her job exemplifies Irvine’s
holding that the determination of just cause “depends on the unique factual
considerations of the particular case.” Irvine, supra at 18. The Second District Court of
Appeals in Suftin v. Carsbad Marketing & Communications, Inc., 2nd Dist. Montgomery
No. 24555, 2011-Ohio-5988, reviewed existing case law addressing whether a
reduction in work hours constituted just cause for an employee to quit his or her job.
The Second District cited eleven Ohio appellate decisions and noted the “courts that
have addressed the issue over the years have reached different conclusions.” Id. at ¶
15. The determination of just cause depends on the unique facts of the case while
considered under the limited scope of review of an administrative appeal of an
unemployment compensation decision.
{¶29} In the present case, the Commission Decision stated:
Claimant had other options besides quitting and having no income along
with no health insurance. He could have worked the assigned hours while
seeking other employment. If he earned less than his weekly benefit
amount, he could have filed a claim for partial unemployment
compensation benefits. Tuscarawas County, Case No. 2014 AP 03 0011 11
{¶30} A point of contention in this case is partial unemployment compensation
benefits. The Decision stated Huth could have filed a claim for partial unemployment
compensation benefits to support its conclusion that Huth did not have just cause to quit
his employment. Under R.C. 4141.29, an eligible individual shall receive "benefits as
compensation for loss of remuneration due to involuntary total or partial unemployment
in the amounts and subject to the conditions stipulated in this chapter." "An individual is
'partially unemployed' in any week if, due to involuntary loss of work, the total
remuneration payable to the individual for such week is less than the individual's weekly
benefit amount." R.C. 4141.01(N).
{¶31} In his Request for Review of the Decision, Huth argued the Decision
reasoning was flawed because Huth would not be eligible for partial unemployment
compensation. If Lawrence Township reduced the position to 24 hours per week at
$13.50 per hour, Huth would earn $324.00 per week. If Lawrence Township reduced the
position to 20 hours per week at $13.50 per hour, Huth would earn $270.00 per week.
Huth argued in his Request for Review that according to the Ohio 2013 UC Benefit
Chart, Huth would be entitled to $134.00 per week, which was less than he would earn
with Lawrence Township. Huth argued the Decision was in error because he was not
eligible for partial unemployment compensation benefits.
{¶32} Lawrence Township contends Huth cannot make an argument as to his
alleged ineligibility for partial unemployment benefits because that evidence was not
presented in the certified record below. Pursuant to R.C. 4141.282(H), “[t]he court shall
hear the appeal on the certified record provided by the commission.” Tuscarawas County, Case No. 2014 AP 03 0011 12
{¶33} Ohio Adm.Code 4146–17–01(A) provides that:
In addition to the administrator's file the review commission shall maintain
a file in each case before it. The review commission file shall consist of the
appeal, request for review or an application for appeal, all exhibits
introduced at the hearing, the transcript where it exists and any other
documents pertaining to the case that are submitted or generated after an
appeal, application for appeal or request for review has been filed.
(Emphasis added.) Ohio Adm.Code 4146–25–01, in turn, provides that:
A request for review to the review commission may be taken by any
interested party by filing a request for review from a decision by a hearing
officer.
Any written notice stating that the interested party appeals from or desires
a review of the decision of the hearing officer on a hearing officer level
appeal shall constitute a request for review to the review commission. If
the appellant desires to submit additional evidence, the appellant should
so state and set forth a brief statement thereof.
Shepherd Color Co. v. Dir., Ohio Dept. of Job & Family Servs., 10th Dist. Franklin No.
CA2012-11-244, 2013-Ohio-2393, ¶ 27.
{¶34} In this case, Huth raised the issue of the partial unemployment benefits in
his Request for Review based on the Decision’s conclusions of law. The Request for
Review contained the argument stating that pursuant to the Ohio 2013 UC Benefit
Chart, he was ineligible for partial unemployment benefits if he remained in his position
with Lawrence Township. This evidence was properly included in the certified record Tuscarawas County, Case No. 2014 AP 03 0011 13
and could be considered by the trial court and reviewing courts. Shepherd, supra at ¶
29.
{¶35} "Whether an employer's reduction in hours is substantial enough to
provide the employee with just cause to quit [his or her] job is a factual determination."
Bethlenfalvy v. Ohio Dept. of Job & Family Services, 8th Dist. Cuyahoga No. 84773,
2005-Ohio-2612, ¶ 19 quoting Bainbridge Township v. Stellato, 11th Dist. Geauga No.
95-G-1936, 1996 WL 200594 (Mar. 8, 1996). In Bethlenfalvy, the court found the
Commission's determination that a claimant did not have just cause to quit her
employment due to a substantial reduction in her hours was against the manifest weight
of the evidence.
{¶36} In the present case, there is no factual dispute Huth's hours were
substantially reduced and the reduction was not related to the fault of Huth. The position
was originally a full-time position with 40 hours per week. The position was reduced to
24 or 20 hours per week. If Lawrence Township reduced the position to 24 hours per
week at $13.50 per hour, Huth would earn $324.00 per week for an annual salary of
$16,848.00. Without considering the value of the health insurance coverage, a reduction
from 40 hours to 24 hours per week would equate to 40% reduction in salary. If
Lawrence Township reduced the position to 20 hours per week at $13.50 per hour, Huth
would earn $270.00 per week for an annual salary of $12,960.00. Without considering
the value of the health insurance coverage, a reduction from 40 hours to 20 hours per
week would equate to a 54% reduction in salary.
{¶37} The facts establish that that Lawrence Township would no longer provide
health insurance coverage for the position. Huth determined it would cost approximately Tuscarawas County, Case No. 2014 AP 03 0011 14
$1,388.00 per month to obtain COBRA health insurance coverage for himself and his
spouse. Huth argues if you consider the value of the health insurance coverage the full-
time position provided, a 24 hour per week position would result in a 62% reduction in
compensation. A 20 hour per week position would equate to a 70% reduction in
{¶38} There is evidence presented that if Huth remained in the position, he
would be ineligible for partial unemployment compensation benefits.
{¶39} After Huth's resignation, the position was not filled by a permanent
employee at the time of the Hearing. The position was being performed by current
Lawrence Township employees.
{¶40} Considering the evidence in the record under our limited standard of
review, we find the evidence demonstrates the reduction in Huth's hours was substantial
and amounted to a constructive discharge. In this case, we find the Commission's
decision that Huth did not have just cause to leave his employment was against the
manifest weight of the evidence. A reasonable person would have justifiably quit his or
her job under the same conditions.
{¶41} Huth's second, third, and fourth Assignments of Error are sustained.
I.
{¶42} Huth argues in his first Assignment of Error that the trial court erred when
it denied his motion to strike Lawrence Township’s Notice of Adopting the Brief of
ODJFS. We disagree.
{¶43} Huth contends that by failing to raise any issues during the administrative
proceedings, Lawrence Township waived its right to raise arguments in the Tuscarawas County, Case No. 2014 AP 03 0011 15
administrative appeal to the trial court. During the administrative proceedings, Huth
objected to the determination of the Commission to deny his unemployment benefits.
Lawrence Township did not raise any objections during the administrative proceedings
because it did not have any objections to the Commission’s determination that Huth was
not entitled to unemployment benefits. During the administrative appeal, ODJFS is an
interested party and must be named as an appellee in the notice of appeal. R.C.
4141.282(D).
{¶44} We see no abuse of discretion for the trial court to deny the motion to
strike and to allow Lawrence Township to adopt the brief presented by ODJFS.
{¶45} Huth’s first Assignment of Error is overruled. Tuscarawas County, Case No. 2014 AP 03 0011 16
CONCLUSION
{¶46} Huth’s first Assignment of Error is overruled. Huth’s second, third, and
fourth Assignments of Error are sustained.
{¶47} The judgment of the Tuscarawas County Court of Common Pleas is
affirmed in part, reversed in part and the matter is remanded for further proceedings
consistent with this opinion and law.
By: Delaney, J.,
Hoffman, P.J. and.
Farmer, J., concur.