Pratt v. Kirby Co.

Nahra, J. Margaret M. Pratt (claimant) was employed by the Kirby Company from April 20, 1966 to December 1,1980. Claimant was laid off from her job as a parts coordinator in October 1980. On December 1, 1980, Kirby Company offered claimant an assembly line job, which she refused. She was then dismissed. Claimant filed for unemployment benefits on December 3, 1980. The Administrator of the Bureau of Employment Services found that claimant had refused an offer of suitable work, and disallowed her claim for benefits. Claimant appealed this decision to the Board of Review, Bureau of Employment Services. A referee of the Board of Review conducted a hearing, and, subsequently, affirmed the administrator’s decision. Claimant then filed an application to institute a further appeal which was denied by the Board of Review on August 20, 1981. Claimant’s appeal to the court of common pleas was dismissed on October 11, 1983. Claimant timely appealed. The sole assignment of error is that: “The Board of Review’s decision that appellant Margaret Pratt was not entitled to unemployment compensation benefits on the basis that she refused suitable work was against the weight of the evidence.” Claimant specifically maintains that the offer of work was unsuitable because: the work would have been detrimental to her health; she would have been physically incapable of doing the proffered work; and, but for discrimination by the employer, she would have been offered a “better” job. Claimant was denied benefits for the entire period of her unemployment pursuant to R.C. 4141.29(D)(2)(b), which provides in the pertinent sections: “(D) Notwithstanding division (A) of this section, no individual may serve a waiting period or be paid benefits under the following conditions: <<* * a “(2) For the duration of his unemployment if the administrator finds that: <<* at at “(b) He has refused without good cause to accept an offer of suitable work when made by an employer either in person or to his last known address * * Claimant maintains that in light of her unrebutted testimony the administrator was required to find for her pursuant to R.C. 4141.29(E) and (F), which provided (see Am. Sub. S. B. No. 160, eff. Oct. 31, 1980, 113th General Assembly) in relevant part: “(E) No individual otherwise qualified to receive benefits shall lose the right to benefits by reason of a refusal to accept new work if: a * “(4) The remuneration, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality. “(F) In determining whether any work is suitable for a claimant in the administration of sections 4141.01 to 4141.46 of the Revised Code, the administrator shall, in addition to the *190 determination required under division (E) of this section, consider the degree of risk to the claimant’s health, safety, and morals, his physical fitness for the work, his prior training and experience, the length of his unemployment, the distance of the available work from his residence, and his prospects for obtaining local work.” The statute requires two separate determinations to be made in order to deny the claim: first, that the claimant has refused suitable work; and, second, that the refusal was without good cause. Although, the inquiries are obviously interrelated, separate tests have developed for each inquiry. Claimant’s appeal presents both issues. The claims that the proffered work presented a health hazard and that claimant was unable to do the work go to the issue of unsuitability. The discrimination claim is examined under the just cause analysis. The Supreme Court has held that “[wjhether work is ‘suitable work’ * * *, will ordinarily be a question of fact for determination by the trier of the facts. * * *” Pennington v. Dudley (1967), 10 Ohio St. 2d 90, 94-95 [39 O.O.2d 94], The court should only disturb this trier-determination if it finds as a matter of law the work is “unsuitable.” Id. at 95. We are unable to conclude that the work was unsuitable as a matter of law, where the evidence introduced at the hearing demonstrated that the claimant would have been continued at approximately her current hourly wage of $7.22 while at the same plant, and that she would have continued to work the same number of hours. The finding of the referee that the proffered job was not a threat to claimant’s health is supported by the manifest weight of the evidence. Claimant testified that the proffered job was dirty. A co-worker also testified that when performing at least one of the jobs in the department, the employee is required to wear a mask. However, claimant further testified: “The polishing job is a very dirty job. They have to wear masks in there and it’s detrimental to the health, and of course, you have to have great strength to be able to polish. Now the bench, the filing bench [the proffered job] itself, I really don’t know anything about it. I just know it’s connected with that department.” (Emphasis added.) The only information in the record about a health risk was the claimant’s testimony that the job was dirty. In the absence of any testimony showing that the precautions taken by the employer were inadequate, the referee’s decision is supported by the manifest weight of the evidence. The evidence also fails to demonstrate that claimant was physically unable to do the proffered work. The only testimony about claimant’s capacity to do the work was that, although claimant had never performed this specific job, she would have received adequate training. This claim is without merit. The claimant’s final allegation is that she would have been recalled to a better job, but for the employer’s sex discrimination. This claim presents the issue whether she declined the work “with good cause.” The test for good or just cause under R.C. 4141.29 was set out in Peyton v. Sun T.V. (1975), 44 Ohio App. 2d 10 [73 O.O.2d 8], The court stated: “* * * There is, of course, not a slide-rule definition of just cause. Essentially, each case must be considered upon its particular merits. 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. * * *” Id. at 12. We cannot agree that the manifest weight of the evidence demonstrates that claimant, as an ordinarily intelligent person, was justified in declin *191 ing the work. The evidence demonstrated that the proffered job had the same pay, hours, and location. The claimant was physically «ble to do the work. Additionally, if the claimant had returned to her job, she would have been entitled to assert her seniority and “bump” into a more desirable job. By remaining on the job, she would not have been precluded from pursuing other remedies for discrimination while continuing to receive the same remuneration at the same location. The judgment is affirmed. Judgment affirmed. Corrigan, C.J., concurs. Jackson, J., dissents.