Shields v. Kelly Servs., Inc. , 2021 Ohio 4018 ( 2021 )

[Cite as Shields v. Kelly Servs., Inc., 2021-Ohio-4018.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
MARION R. SHIELDS, :
Plaintiff-Appellant, :
No. 110701
v. :
KELLY SERVICES, INC., ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 10, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-21-946953
Appearances:
Lester S. Potash, for appellant.
Dave Yost, Ohio Attorney General, and Laurence R.
Snyder, Assistant Attorney General, for appellee.
EILEEN A. GALLAGHER, J.:
Appellant Marion Shields (“Shields”) appeals the judgment of the
Cuyahoga County Court of Common Pleas affirming the determination of Ohio
Department of Job and Family Services (“ODJFS”) that Shields was not entitled to
unemployment compensation. Shields herself testified that she quit Kelly Services,
Inc. (“Kelly Services”) to accept a position with Manpower International, Inc.
(“Manpower”). Therefore, we cannot say that the decision of the ODJFS is unlawful,
unreasonable or against the manifest weight of the evidence. Accordingly, we
overrule Shields’ assignments of error and affirm the judgment of the trial court.
I. Factual and Procedural Background
Shields’ employment in this case is complicated by the fact that she
worked for two temporary employment services: Kelly Services and Manpower.
Her actual work was performed for two customers of those services: NeoGraf for
Kelly Services and Cintas for Manpower.
On April 24, 2020, Shields began working at NeoGraf for Kelly
Services. She then gave approximately two weeks’ notice to Kelly Services and
expected Kelly Services to inform NeoGraf. On June 16, 2020, Shields stopped
working at NeoGraf and then started working at a placement with Cintas on behalf
of Manpower International. Her first and only day with Cintas was June 22, 2020.
Cintas determined that Shields “was not suitable” and she was told
not to return to the workplace. Shields testified that she did not know why Cintas
determined that. Materials which were submitted by Manpower that indicate the
basis are not material for the purposes of the present appeal.1 This appeal concerns
Shields’ departure from Kelly Services and NeoGraf.
1 Specifically, Cintas stated that “she was using crude language, that she disclosed
that she was nursing a hangover and showed an inappropriate picture to personnel that
was training her on her first day.”
At the hearing, Shields’ testimony was somewhat inconsistent on why
she left Kelly Services.
Q: * * * So did you leave Kelly Services based upon finding other work?
A: Yes.
However, Shields expressed her view that conditions at NeoGraf
were unsatisfactory. The job was described as a full-time position. However, there
was not enough work to fill a full day. She testified that the hours per day varied but
that her busiest week was a 39-hour work week. Additionally, she viewed the Health
and Safety Manager as having singled her out for not following COVID directional
arrows on the floor. She claimed that the workplace was filthy with carbon dust and
that she had to bring in her own gloves because NeoGraf would not provide her with
gloves. Finally, she was placed in a shared cubical with a coworker at the time that
COVID was running rampant.
Shields complained about the posting to Kelly Services and to the HR
department of NeoGraf. However, no material changes in her employment at
NeoGraf occurred. Shields also requested a different assignment from Kelly
Services but never received one. Shields then told Kelly Services that she was
quitting her assignment with NeoGraf and accepting a position with Manpower.
On August 5, 2020, ODJFS determined that Shields was not entitled
to unemployment benefits because Shields
quit without just cause, per Ohio Revised Code Section
4141.29(D)(2)(a). The claimant quit KELLY SERVICES, INC. on
06/16/2020 for other employment. Therefore, no benefits will be paid
until the claimant obtains employment subject to * * * unemployment
compensation law, works six weeks, earns wages of $1614, and is
otherwise eligible.
Shields appealed the decision to the Unemployment Compensation
Review Commission (“the commission”) that conducted a telephonic hearing on
March 4, 2021. Following that hearing, the commission issued a decision that
affirmed the denial of benefits. Appellant appealed that decision to the Cuyahoga
County Court of Common Pleas. The court below issued an opinion affirming the
judgment of the commission. Shields now appeals and assigns two errors for our
review.
II. Standard of Review
“An appellate court may reverse the Unemployment Compensation
Board of Review’s ‘just cause’ determination only if it is unlawful, unreasonable or
against the manifest weight of the evidence.” Tzangas, Plakas & Mannos v. Admr.,
Ohio Bur. of Emp. Servs., 73 Ohio St.3d 694, 694, 653 N.E.2d 1207 (1995),
paragraph one of the syllabus.
“[A]ppellate courts are not permitted to make factual findings or to
determine the credibility of witnesses, they do have the duty to determine whether
the board’s decision is supported by the evidence in the record. * * * The focus of an
appellate court when reviewing an unemployment compensation appeal is upon the
commission’s decision, not the trial court’s decision.” N. Olmsted v. Fox, 8th Dist.
Cuyahoga No. 107519, 2019-Ohio-1776, ¶ 14.
Assignment of Error No. 1: The Director’s Decision applied the wrong
law when denying Marion Shields’s unemployment compensation
claim.
Appellant points to two different divisions of the same section of the
Ohio Revised Code and contends that the court and commission below applied the
wrong one.
First, R.C. 4141.29(A)(5) provides that an individual is eligible for
unemployment compensation where that individual “[i]s unable to obtain suitable
work.” According to appellant she qualifies under this division because she was not
able to obtain suitable work during the period because her placement with NeoGraf
was unsuitable, no more suitable positions were available from Kelley Services and
she did seek to be reassigned from NeoGraf to a different position.
Second, R.C. 4141.29(D)(2)(a) provides in material part that
“[n]otwithstanding division (A) of this section, no individual may * * * be paid
benefits * * * [f]or the duration of the individual’s unemployment if the director finds
that * * * [t]he individual quit work without just cause[.]”
The structure and language of the revised code makes it clear that if
Shields quit Kelly Services without just cause then she is not entitled to benefits
under division (D) even if she otherwise qualifies under division (A). The review
commission expressly determined that “[e]ven if [Shields’s reasoning were]
accepted as the reason for [her] decision to quit, the Hearing Officer is not
persuaded that her explanations would be sufficient to support a finding that she
quit with just cause.”
The difficulty for appellant here is that her testimony established that
Shields viewed the conditions of her work for NeoGraf as unacceptable from the
beginning of her placement at NeoGraf on April 24, 2020. Shields also complained
to a Kelly Services representative more than once a few weeks prior to her decision
to accept work at Manpower International. Notwithstanding that dissatisfaction
Shields only gave notice to Kelly Services after she had secured a position at
Manpower. Further, when asked, Shields agreed that she left “Kelly Services based
upon finding other work[.]”
Shields also contends that she did not quit Kelly Services but only her
placement at NeoGraf. “When Shields’ assignment at Neo[G]raf terminated, Shields
inquired of Kelly of other temporary work assignments.” However, Shields testified
that “the main reason why [she] left Kelly Services was that [she] found other
work[.]” Thus, we cannot say that the commission erred in determining that Shields
primarily quit based on the placement with Manpower. Quitting to accept a better
paying job is quitting without just cause. Radcliffe v. Artromick Internatl., Inc., 31
Ohio St.3d 40, 41, 508 N.E.2d 953 (1987). “Generally, an employee who terminates
employment in order to accept other employment quits without just cause and is not
eligible for unemployment benefits, even if the employee leaves for a better paying
job.” Vinson v. AARP Found., 134 Ohio App.3d 176, 178-179, 730 N.E.2d 479 (10th
Dist.1999).
Accordingly, there was evidence in the record to support the
conclusion of the review commission that Shields left the placement at NeoGraf
because Shields viewed the placement at Cintas through Manpower as more
desirable.
Assignment of Error No. 2: The Director’s Decision denying Marion
Shields’s unemployment compensation claim is against the manifest
weight of the evidence.
Next Shields contends that the decision of the commission and the
trial court are against the manifest weight of the evidence. Here, appellant contends
that Kelly Services “effectively ‘laid-off’ Shields in that it (Kelly) had no other
‘suitable work assignments’ for Shields.” For the reasons laid out above, we cannot
say that the determination of the agency is against the manifest weight of the
evidence.
Judgment affirmed.
It is ordered that appellee recover from appellant 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 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.
EILEEN A. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR