COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71484 DIANE LORTON : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION UNEMPLOYMENT COMPENSATION : BOARD OF REVIEW, ET AL. : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-307090. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Mark A. Kaiser, Esq. 6603 Seminole Trail Mentor, OH 44060 For Defendant-Appellee Charlett Bundy, Esq. Unemployment Compensation Assistant Attorney General of Ohio Board of Review: State Office Building, 12th Floor 615 W. Superior Avenue Cleveland, OH 44113-1899 For Appellee Gliatech, Inc.: Stephan I. Voudris, Esq. Robert S. Walker, Esq. Jones, Day, Reavis & Pogue North Point, 901 Lakeside Avenue Cleveland, OH 44114 -2- MATIA, P.J.: Dianne Lorton, plaintiff-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Case No. CV-307090, in which the trial court affirmed the Unemployment Compensation Board of Review's denial of plaintiff-appellant's application for unemployment benefits. Plaintiff-appellant assigns one error for this court's review. Plaintiff-appellant's appeal is not well taken. I. THE FACTS Diane Lorton, plaintiff-appellant, was employed as a research scientist by Gliatech, Inc. from August 15, 1990 through May 20, 1994. Prior to her employment at Gliatech, while working for the University of Rochester, plaintiff-appellant applied for and received a federal research grant from the National Institute of Mental Health ( NIMH ). Robert Fredrickson, Ph.D., Senior Vice President of Research and Development at Gliatech and David L. Felton, Ph.D. at the University of Rochester arranged for plaintiff-appellant to work at Gliatech while continuing research for the NIMH grant. NIMH required plaintiff-appellant to spend 50 to 75 percent of her time performing NIMH grant related research. Gliatech was aware of the NIMH requirement and agreed to allow plaintiff-appellant to devote the necessary time to the grant. In exchange, NIMH agreed to pay one-half of the plaintiff-appellant's salary plus other grant related expenses. Plaintiff-appellant maintains that this arrangement worked to everyone's satisfaction under her first supervisor, Dr. Dikla -3- Raufa. However, once Gliatech named Dr. Kurt Brunden as plaintiff- appellant's supervisor, problems developed due to Dr. Brunden's alleged insistence that plaintiff-appellant perform additional hours on Gliatech projects and less time on the NIMH research grant. On January 6, 1994, Gliatech placed plaintiff-appellant on probation due to excessive tardiness and problems arising out of her experimental performance. On January 23, 1994, Dr. Felton of the University of Rochester wrote a letter to Dr. Robert Fredrickson detailing the problems plaintiff-appellant was encountering while working on both the Gliatech projects and the NIMH grant. Dr. Felton suggested that plaintiff-appellant contact the NIMH program officer, Dr. Vitkovic, and attempt to put the grant on hold while she sought an academic position that would enable her to complete her NIMH research. On February 7, 1994, plaintiff-appellant notified NIMH of her request to put the grant on hold. Plaintiff-appellant estimated that it would take her six to nine months to obtain a new position. It was plaintiff- appellant's contention that she was forced to find new employment in order to maintain her research grant and avoid a major professional setback. On April 13, 1994, plaintiff-appellant's probation was continued. Dr. Brunden noted that plaintiff-appellant had corrected some of the problems set forth in the January probation notice. However, it was also noted that plaintiff-appellant's attempt to put the NIMH grant on hold, without prior authorization -4- from a Gliatech representative, was inappropriate. Dr. Brunden also noted that plaintiff-appellant had difficulty managing the financial aspects of her grant. On April 14, 1994, plaintiff-appellant met with Gliatech's president, Dr. Thomas Oesterling; senior vice-present, Dr. Robert C. Fredrickson; and personnel director Monica Thayer in order to discuss plaintiff-appellant's continued employment options with Gliatech. Plaintiff-appellant was presented with two options; she could continue to work for Gliatech if she relinquished the NIMH research grant, or she could retain the research grant and work for Gliatech for an additional three month period. Plaintiff-appellant was not satisfied with either option presented by Gliatech and further negotiations ensued. After these negotiations failed to produce a satisfactory compromise, plaintiff-appellant's probationary status was continued for an additional six month period. Plaintiff-appellant's probation was continued on April 29, 1994. As a result of the failed negotiations, plaintiff-appellant immediately began scheduling initial interviews with potential employers. Plaintiff-appellant maintained that time was of the essence since the NIMH had instituted a deadline of July 31, 1994 by which plaintiff-appellant had to secure new employment with an institution that would allow the transfer of the NIMH research grant. Plaintiff-appellant scheduled the following interviews; Indiana University in Bloomington, Indiana for May 18 and 19, 1994; Wadsworth Center in Albany, New York for May 23 and 24, 1994; and -5- Sun Health Institute in Phoenix, Arizona for May 26 and 27, 1994. On May 17, 1994, plaintiff-appellant's attorney faxed a written request for an unpaid leave of absence for plaintiff- appellant so that she could begin the interview process and obtain new employment. Plaintiff-appellant's request for a leave of absence was denied by Gliatech due to the one day notice provided by plaintiff-appellant and due to the fact that plaintiff-appellant had started a three week research project for Gliatech the day before and finding an individual to take over the research project would have been difficult given the time constraints involved. On May 18, 1994, plaintiff-appellant failed to report for work and called in to inform her immediate supervisor, Clark Tedford, Ph.D., that she was ill and would not be reporting for work that day or May 19, 1994. The following day plaintiff-appellant did not report for work or place a telephone call to Gliatech. Plaintiff- appellant maintained that in spite of her illness (she was allegedly under a physician's care for ulcers) she attended the job interview at the University of Indiana. On May 20, 1994, plaintiff-appellant reported for work and was relieved of all employment duties due to her alleged dishonesty and insubordination. On June 9, 1994, plaintiff--appellant filed an application for unemployment benefits. On June 23, 1994, the Administrator, Ohio Bureau of Employment Services determined that plaintiff-appellant was discharged by her employer, Gliatech, for just cause in -6- connection with work and suspended plaintiff-appellant's unemployment benefit rights. On July 7, 1994, plaintiff-appellant filed a request for reconsideration. On August 23, 1994, the Administration denied plaintiff-appellant's request for reconsideration and affirmed the initial determination of the Bureau of Employment Services. On August 29, 1994, plaintiff-appellant timely appealed from the Administrator's decision on reconsideration to the Ohio Unemployment CompensationBoard of Review. A telephone hearing was conducted on December 8, 1995. On December 11, 1995, the hearing officer affirmed the Administrator's denial of plaintiff- appellant's motion for reconsideration. Plaintiff-appellant's application to institute further appeal was disallowed by the Board of Review on March 21, 1996. On April 18, 1996, plaintiff-appellant filed her notice of appeal from the decision of the Unemployment Compensation Board of Review. On October 1, 1996, the trial court affirmed the decision of the Board of Review. On October 24, 1996, plaintiff-appellant filed a timely notice of appeal from the judgment of the trial court. The instant appeal now follows. II. ASSIGNMENT OF ERROR Dianne Lorton's, plaintiff-appellant's, sole assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF DR. LORTON BY HOLDING THAT THE BOARD OF REVIEW'S DECISION DENYING DR. LORTON UNEMPLOYMENT COMPENSATION BENEFITS WAS NOT UNLAWFUL, -7- UNREASONABLE, OR AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. A. THE ISSUE RAISED: WHETHER PLAINTIFF-APPELLANT WAS ENTITLED TO UNEMPLOYMENT COMPENSATION BENEFITS. Plaintiff-appellant argues, through her sole assignment of error, that the trial court erred by affirming the decision of the Unemployment Compensation Board of Review which denied her application for unemployment compensation benefits. Specifically, plaintiff-appellant maintains that she should have been entitled to receive unemployment compensation benefits since she was not discharged for just cause but rather terminated in an unlawful, unreasonable and pretextual manner. The main thrust of plaintiff- appellant's argument is based upon the following assertions: Gliatech, plaintiff-appellant's employer, failed to follow its own policies in discharging plaintiff-appellant; Gliatech failed to apply its progressive discipline policy to plaintiff-appellant's sick day dispute; Gliatech discharged plaintiff-appellant for one alleged act of insubordination which, even if true, did not constitute just cause; plaintiff-appellant did not lie to Gliatech management when she called in sick; and plaintiff-appellant's use of two sick days for the purpose of a job interview was justified under the circumstances of this case. Plaintiff-appellant's sole assignment of error is not well taken. B. STANDARD OF REVIEW FOR UNEMPLOYMENT COMPENSATION ADMINISTRATIVE APPEAL. A party dissatisfied with the ultimate decision of the Unemployment Compensation Board of Review may appeal that decision -8- to the appropriate court of common pleas which shall hear the appeal solely on the record certified by the board of review. R.C. 4141.28(O)(1). See Wigest Corp., dba. Cub Foods, Swan Creek v. Todd, et al. (April 4, 1997), Lucas App. No. L-96-327, unreported. Pursuant to the statute, the common pleas court may reverse the decision of the board only if the decision is unlawful, unreasonable or against the manifest weight of the evidence. Absent one of these findings, the trial court must affirm the board's decision. Tzangas, Plakas & Mannas v. Ohio Bur. Of Emp. Serv. (1995), 73 Ohio St.3d 694, 653 N.E.2d 1207. The Tzangas court noted further that an appellate court may not make factual findings or determine the credibility of witnesses. Id. at 696-97. Rather, factual determinations are the exclusive province of the hearing officer and the board of review. Hall v. American Brake Shoe Co. (1968), 13 Ohio St.2d 11, 14; Brown-Brockmeyer Co. v. Roach (1947), 148 Ohio St. 511. An appellate court may not weigh the evidence and substitute its judgment for that of the administrative hearing officer in factual determinations. Simon v. Lake Geauga Printing Co. (1982), 69 Ohio St.2d 41, 45. Determinations that are supported by some competent credible evidence will not be reversed as against the manifest weight of the evidence. C. E. Morris v. Foley Const. Co. (1978), 54 Ohio St.2d 279, syllabus. In order to be eligible for unemployment compensation benefits in Ohio, a claimant must satisfy the criteria set forth in R.C. 4141.29(D)(2)(a) which provides in part: -9- (D) *** [No] individual may *** 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 ***. 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 v. Unemp. Comp. Bd. Of Review (1985) 19 Ohio St.3d 15, 17; Tzangas, Plakas & Namas, supra; see, also, Angelkavski v. Buckeye Potato Chips Co. (1983), 11 Ohio App.3d 159. Fault on the part of the employee is an essential factor of a just cause determination. If an employer has been reasonable in finding fault on behalf of an employee, then the employer may terminate the employee with just cause. Tzangas, Plakas & Mannas, supra, at 698. A deliberate violation of a reasonable work rule may provide just cause for an employee discharge. Blitzer v. May Dept. Stores (Nov. 1, 1990), Belmont App. No. 90-B-15, unreported. -10- C. THE TRIAL COURT DID NOT ERR BY AFFIRMING THE DECISION OF THE UNEMPLOYMENT COMPENSATION BOARD OF REVIEW. In this case, a review of the entire record from the trial court demonstrates that sufficient evidence was adduced below to enable the trial court to determine that plaintiff-appellant's discharge was for just cause and affirm the decision of the board of review accordingly. Plaintiff-appellant was admittedly placed on probation by Gliatech for tardiness as well as alleged experimental difficulties. The probation was extended due to plaintiff-appellant's unilateral efforts to place a hold upon her NIMH research grant unbeknown to Gliatech management and alleged financial difficulties encountered by plaintiff-appellant in managing her NIMH research grant money. It was during the aforementioned probationary period that plaintiff-appellant requested an unpaid leave of absence in order to pursue other employment opportunities. When plaintiff-appellant's request for leave was denied due to a pending research project, plaintiff- appellant took sick time and completed the scheduled interview in spite of her pending responsibilities at Gliatech. Considering the above-stated evidence, this court cannot now say that the trial court's affirmance of the decision of the board of review was in error as the decision of the board was neither unlawful, unreasonable or against the manifest weight of the evidence. While it is true, as plaintiff-appellant contends, that Gliatech did not follow its progressive discipline policy in this -11- case as it related to plaintiff-appellant's misuse of sick time, plaintiff-appellant's probationary employment status at Gliatech significantly altered her occupational position. This is particularly significant in light of the fact that Gliatech's employer handbook does not require that all employment discipline be handled on a progressive basis. Therefore, when plaintiff- appellant used sick time to complete an out-of-state interview, Gliatech was under no obligation to employ progressive disciplinary action. Lastly, plaintiff-appellant's contention that she was, in reality, sick when she called in to Gliatech on May 18, 1994, is unsupported by the record and does not invalidate the board's finding just cause for termination. For the foregoing reasons, this court finds that the trial court properly affirmed the decision of the Unemployment Compensation Board of Review. Plaintiff-appellant's sole assignment of error is not well taken. Judgment of the trial court is affirmed. -12- 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 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. DYKE, J. and NAHRA, J., CONCUR. DAVID T. MATIA PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court -13- of Ohio shall begin to run upon the journalization of this court's .