Perry v. Buckeye Community Services

Grey, P.J. This is an appeal from a judgment of the Pike County Court of Common Pleas affirming a decision of the Unemployment Compensation Board of Review, denying Sylvia J. Perry’s application for unemployment benefits. We reverse. On June 20, 1985, Sylvia Perry filed an application for determination of benefit rights. On July 3, 1985, the Administrator of the Ohio Bureau of Employment Services determined that Perry had quit her employment with Buckeye Community Services (“Buckeye”) without just cause. Perry’s claim for benefits was denied. Upon Perry’s request for reconsideration the administrator affirmed the initial denial. Perry filed an appeal with the Unemployment Compensation Board of Review (“board”). A hearing was held before a referee of the board at which time both Perry and Buckeye were questioned by the referee and presented testimony on their behalf. After the hearing was completed, the referee affirmed the denial of benefits on the grounds that Perry had terminated her employment with Buckeye *141 without just cause. The board denied Perry’s application to institute further administrative appeal. On November 21,1985 Perry timely appealed the board’s decision to the Pike County Court of Common Pleas. The trial court affirmed the board’s decision. Perry appeals the trial court’s decision and assigns two errors. First Assignment of Error “The Pike County Court of Common Pleas erred by finding that the decision of the Board of Review was supported by the manifest weight of the evidence and correct as a matter of law.” At issue here is whether Sylvia Perry terminated her employment with Buckeye Community Services with just cause pursuant to R.C. 4141.29(D)(2)(a). R.C. 4141.29(D)(2)(a) provides in pertinent part: “(D) Notwithstanding division (A) of this section, no individual may * * * be paid benefits under the following conditions: * * “(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 * * * j* Perry asserts that she terminated her employment with Buckeye for just cause due to the continuing mental stress of caring for a mentally retarded adult. Buckeye contends that Perry left her employment without just cause. “Just cause” is an issue reserved for the trier of fact to decide. McKay v. McKay Tire Stores, Inc. (App. 1938), 29 Ohio Law Abs. 304. In a board of review hearing before a referee, the referee is the trier of fact. Brown-Brockmeyer Co. v. Roach (1947), 148 Ohio St. 511, 36 O.O. 167, 76 N.E. 2d 79. The scope of review in a case such as the one presented here is extremely limited both at the trial court and appellate levels. This court, in a recent opinion in Webb v. Ohio Bur. of Emp. Serv. (Feb. 24, 1987), Vinton App. No. 432, unreported, presented an analysis of the review authority of both courts. In Webb, we stated at 3: “The review authority of the common pleas court is set forth in R.C. 4141.28(0) and provides that ‘If the court finds that the decision was unlawful, unreasonable, or against the manifest weight of the evidence, it shall reverse and vacate such decision or it may modify such decision and enter final judgment in accordance with such modification; otherwise such court shall affirm such decision.’ “Since the appeal is not de novo but one of law, with respect to factual issues the court is limited to determining whether the Board of Review’s decision is supported by evidence in the record. Kilgore v. Bd. of Review (1965), 2 Ohio App. 2d 69. The court may not substitute its judgment for that of the Board of Review as to the facts and may not reverse simply because it interprets the evidence differently than did the Board of Review. Brown-Brockmeyer Co. v. Roach (1947), 148 Ohio St. 511; Fahl v. Board of Review (1965), 2 Ohio App. 2d 286; Kilgore, supra.” If the judgment of the board of review below is supported by some competent credible evidence going to all the essential elements of the case a reviewing court may not reverse the judgment as being against the manifest weight of the evidence. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 10 OBR 408, 461 N.E. 2d 1273. If reasonable minds could fairly reach different conclusions a reviewing court may not reverse on *142 the manifest weight of the evidence. Angelkovski v. Buckeye Potato Chips Co. (1983), 11 Ohio App. 3d 159, 11 OBR 242, 463 N.E. 2d 1280. As an appellate court we may only reverse a decision of a common pleas court on the manifest weight of the evidence on appeal from the board of review if the trial court has abused its discretion. Angelkovski, supra. Absent such an abuse we must affirm. An abuse of discretion connotes more than a mere mistake on the part of the trial court. The decision below must be clearly wrong. Id. Here, the decision below is clearly wrong. The trial court abused its discretion in affirming the decision of the board of review. The board’s decision was clearly against the manifest weight of the evidence, finding that Perry did not quit for just cause. Perry testified and presented testimony from another witness that Wanda, the mental health client, had become more uncontrollable and difficult to handle. Perry testified that she had been pushed to a point where she was “vegetating mentally.” There was unrefuted testimony that Perry notified her superior, Susan Tilton, about her difficulty. Counseling was suggested and attempted but the situation remained the same. The evidence presented clearly indicates that Perry’s quit was for just cause because she had to quit to preserve her mental health. In Daugherty v. Bur. of Emp. Serv. (1984), 21 Ohio App. 3d 1, 2, 21 OBR 1, 2, 486 N.E. 2d 242, 243, the Eleventh District Court of Appeals noted: “ * * 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.’ Peyton v. Sun T.V. (1975), 44 Ohio App. 2d 10, 12.” Here, Perry’s inability to handle the mental health client, coupled with her superior’s refusal or inability to alleviate that situation, was ' a justifiable reason for not continuing in her employment. If we do not acknowledge that workers in positions such as Perry’s get mentally exhausted and emotionally drained in caring for mental health adult clients and that quitting because of such exhaustion is for “just cause,” such positions will go unfilled. The trial court abused its discretion in affirming the board of review’s decision. Perry’s first assignment of error is well-taken and is sustained. Second Assignment of Error “The Pike County Court of Common Pleas erred by finding that Ms. Perry had received a fair hearing.” Perry asserts that the board of review referee failed to provide a fair hearing pursuant to Ohio Adm. Code 4146-7-02, and that the trial court erred in holding that such a hearing was fair. Ohio Adm. Code 4146-7-02 provides in pertinent part: “* * * Where a claimant or employer is not represented by counsel, the Board or Referee conducting the proceeding shall advise such party as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the discharge of the official duties of the Board or Referee.” During the hearing the referee refused to permit Perry to present all of her witnesses, deeming these witnesses’ testimony to be cumulative. Further, the referee put words in Perry’s mouth and essentially testified himself for the record. The referee’s actions denied Perry her full panoply of due process rights. Thus, the trial court abused its discretion in holding that the board of review referee afforded Perry a fair hearing. Perry’s *143 second assignment of error is well-taken and is sustained. The judgment of the trial court is reversed. Judgment reversed. Abele, J., concurs. Stephenson, J., dissents.