COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68853 DIANE COLEMAN : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION ADMINISTRATOR, OHIO BUREAU : OF EMPLOYMENT SERVICES, ET AL.: : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 30, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 273829 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: CORNELIUS A. MANLY, ESQ. BETTY D. MONTGOMERY, ESQ. 5715 Woodland Avenue Ohio Attorney General Cleveland, Ohio 44104 BETSEY NIMS FRIEDMAN, ESQ. Assistant Attorney General 12th Floor, State Office Bldg. 615 West Superior Avenue Cleveland, Ohio 44113-1899 - 2 - DYKE, J.: Appellant appeals from the Court of Common Pleas' affirmance of the denial of unemployment benefits by the Ohio Bureau of Employment Services ("OBES".) Appellant sought unemployment benefits after being terminated from her housekeeping position with University Manor Health Care Center. She was discharged after violating her employer's no-fault attendance policy, which allows no more than twelve absences in a twelve month period. The no- fault policy renders it unnecessary for the employer to determine the reasons behind each employee's absence from work. It is not in dispute that, of the twelve absences, the final three were due to appellant's injury from a gun shot wound. The OBES determined that appellant was discharged for just cause, and was therefore precluded from receiving unemployment benefits. The Unemployment Compensation Board of Review and the Court of Common Pleas each affirmed this determination. Appellant claims that she is entitled to unemployment benefits because her discharge was not for just cause. Appellant filed a timely notice of appeal with this Court to review the applicable law. Appellant raises one assignment of error. I THE COURT ERRED IN FINDING THAT THE UNEMPLOYMENT COMPENSATION BOARD OF REVIEW'S DECISION THAT APPELLANT DIANE COLEMAN WAS DISCHARGED FOR JUST CAUSE PURSUANT TO R.C. 4141.29(D)(2)(a) WAS LAWFUL, REASONABLE AND NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. - 3 - Appellant argues that the law in Ohio requires some fault on the part of the employee before a finding can be made that the discharge was for just cause. Appellant asserts that a serious injury, such as the one she suffered, precludes a finding of fault to support a discharge for just cause. We do not find appellant's argument to be well taken. The Ohio Supreme Court recently reaffirmed that: [A]ppellate courts may reverse a board decision if it is unlawful, unreasonable or against the manifest weight of the evidence. Tzangas, Plakas & Manos v. Ohio Bur. of Emp. Serv. (1995), 73 Ohio St.3d 694, 696, citing Irvine v. Unemp. Comp. Bd. of Review (1985), 19 Ohio St.3d 15, 17-18. We do not find that the decision to deny appellant's benefits due to her discharge for just cause is unlawful, unreasonable or against the manifest weight of the evidence. The primary issue before this Court is whether a discharge can be considered for just cause if the employee violates an employer's no-fault attendance policy, which is not unfair in its application, regardless of the circumstances of her final absence. R.C. 4141.29(D)(2)(a) establishes the necessary criteria to obtain unemployment compensation benefits. It provides that: (D) * * * [N]o individual may serve a waiting period or be paid benefits * * *: (2) For the duration of his unemployment if the administrator finds that: (a) He quit his work without just cause or has been discharged for just cause in connection with his work * * *. - 4 - Appellant bears the burden of proof when seeking entitlement to unemployment compensation benefits under this statutory provision. Irvine v. Unemployment Comp. Bd. of Review (1985), 19 Ohio St.3d 15. Appellant therefore bore the burden to prove that her employer lacked just cause for her discharge. It was thus necessary for appellant to show that she was not at fault in creating the circumstances which led to her discharge. In other words, if appellant had proven that she was not at fault for the accumulation of unjustified absences, she would have demonstrated that the discharge was not for just cause. The law in Ohio is clear that fault is an essential element to prove discharge for just cause. Tzangas, Plakas & Manos v. Ohio Bur. of Emp. Serv. (1995), 73 Ohio St.3d 694. Appellant asserts that because she was not at fault in incurring the gun shot injury, she can not be terminated for just cause. The Hamilton County Court of Appeals has addressed this argument. The trial court in the case of Sutherlin v. Interstate Brands Corp. (1992), 79 Ohio App.3d 635, reversed the decision of the Unemployment Board of Review to deny benefits. The trial court found that the tenth point accumulated in the employer's no-fault attendance point system was assessed because of an incident beyond the claimant's control, therefore it held that the discharge after ten years of employment, on the basis of the ten point accumulation, was not what the legislature intended as a discharge for just cause. The Court of Appeals held that the trial court - 5 - placed too much emphasis on the final point. The appellate court found that: "[E]xcessive absenteeism and tardiness can be the basis for discharge for good cause." Mohawk Tools v. Ohio Bur. of Emp. Serv. (Mar. 14, 1986), Williams App. No. WMS-85-15, unreported, 1986 WL 3251. Moreover, this court in Johnson & Hardin Co. v. Ohio Bur. of Emp. Serv. (June 28, 1989), Hamilton App. No. C-880319, unreported, 1989 WL 71863, rejected the argument that a "no fault" policy which fails to consider underlying reasons for absences cannot satisfy the just-cause standard for employee discharge under R.C. 4141.29(D)(2)(a). Clearly, the purpose of this policy is to (1) provide the worker with control over his continued employment with the company, and (2) relieve the employer of the task of determining whether an employee has a valid or exculpating reason for absences. In the instant case, the trial court, in reversing the decision of the board, merely focused upon the circumstances underlying the assessment of the tenth point against the appellee. Such a piecemeal analysis is contrary to the function of the attendance-control policy and ignores the appellee's numerous absences from work during the entire twelve-month period. Sutherlin v. Interstate Brands Corp. (1992), 79 Ohio App.3d 635, 637. We find the holding of the Hamilton County Court of Appeals to be persuasive in determining the focus of our review of the circumstances of appellant's discharge. Rather than focusing entirely upon the reasons for her final three absences, we review her employment history for application of the just cause analysis. The record before this Court does not contain the transcribed proceedings of the hearings before the Unemployment Compensation Board of Review. We are therefore limited to the Board of Review's findings of fact contained in the December 3, 1993 decision. The Board found that written warnings regarding excessive absenteeism - 6 - were issued to appellant on three separate occasions, December 4, 1990, October 21, 1991 and April 6, 1992. The final warning was issued concerning a total of nine unauthorized absences. Other warnings were issued to appellant regarding tardiness and her failure to report unsanitary conditions. We find, after a review of appellant's work history, that she contributed to the accumulation of absences and was thus, at least partially, at fault with regard to the violation of her employer's work rule. We do not believe that appellant has succeeded in carrying her burden of establishing lack of just cause for her discharge. As the Unemployment Compensation Board of Review found, in spite of numerous warnings, appellant continued to be absent or tardy without justification. This competent, credible evidence supports the denial of unemployment benefits. Appellant's assignment of error is overruled and the court of common pleas decision affirming the denial of unemployment benefits is affirmed. - 7 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas 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. PATTON, C.J., AND O'DONNELL, J., CONCUR ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .