Opinion
No. A-9004084.
Decided April 22, 1991.
Simon Groner, for appellant.
Richard Lippert, for appellee McDonald's Restaurants of Ohio.
This matter comes before the court upon the appeal of Dottie J. Smith ("Smith") of the decision of the Ohio Unemployment Compensation Board of Review ("board"). The board found that Smith terminated her employment from McDonald's without just cause and was therefore not entitled to receive unemployment benefits. This decision reversed two prior decisions of the Bureau of Employment Services.
Smith worked for McDonald's from April 1978 to March 31, 1989. On March 29, 1989, Smith had her annual performance evaluation from her immediate supervisor, Susan Rudolph ("Rudolph") and received a rating of "excellent." Along with her evaluation, she received an hourly wage increase of fifteen cents. Smith, however, had hoped to receive the maximum rating of "outstanding" and the accompanying hourly wage increase of twenty-five cents. Because Smith went into the evaluation with the opinion that Rudolph disliked her and treated her unfairly, she had prepared a letter of resignation in advance of the evaluation. The letter, which she submitted to Rudolph at the close of the evaluation, advised of Smith's resignation, to be effective two weeks from March 29, 1989. Rudolph accepted the resignation. However, instead of scheduling Smith for the remainder of the time in the two-week period, Rudolph took her off the schedule. As a result, Smith's last day of work was March 30, 1989. Smith, however, was paid at the new rate of $5.85 per hour for fifty-one hours, the approximate number of hours that she would have worked had she been scheduled during the two weeks.
On April 3, 1989, after learning that she was not scheduled to work during the two-week period, Smith filed for unemployment compensation with the Bureau of Employment Services ("bureau"). R.C. 4141.29(D)(2)(a), the pertinent law, generally provides that a claimant is not entitled to receive employment benefits if either she quit without just cause or if she was discharged with just cause. The bureau determined that Smith was discharged without just cause and granted unemployment benefits. McDonald's then requested the bureau's reconsideration. Smith, in response, requested and participated in a fact-finding interview, conducted by the bureau, to determine the reason for her separation. Subsequent to the interview, the bureau affirmed its previous decision and Smith continued to receive unemployment benefits. McDonald's then appealed to the board. The board, as the reviewing body, reversed the bureau's decision finding both that Smith resigned without just cause and that she was entitled to no benefits. Smith had already received $2,886 in benefits because of the bureau's earlier findings. In response, Smith timely filed this present appeal, which is properly before this court.
R.C. 4141.28(O), which sets out the applicable standard of review for this court, provides, in pertinent part:
"* * * If the court finds that the decision was unlawful, unreasonable, or against the manifest weight of the evidence, it shall reverse and vacate [the board's] decision or it may modify [the] decision and enter final judgment in accordance with [the] modification * * *."
The main issue before this court, then, is whether the board's decision that Smith quit without just cause and to deny Smith unemployment compensation is unlawful, unreasonable, or against the manifest weight of the evidence. In its appellate capacity, this court is not the fact finder. Bernard v. Administrator (1983), 9 Ohio App.3d 277, 9 OBR 492, 459 N.E.2d 904, citing Simon v. Lake Geauga Printing Co. (1982), 69 Ohio St.2d 41, 23 O.O.3d 57, 430 N.E.2d 468. Rather, factual matters are exclusively within the province of the board and the referee. Kilgore v. Bd. of Review (1965), 2 Ohio App.2d 69, 31 O.O.2d 108, 206 N.E.2d 423. Accord Brown-Brockmeyer Co. v. Roach (1947), 148 Ohio St. 511, 36 O.O. 167, 76 N.E.2d 79.
Further, this court's appellate jurisdiction over the board is limited to reversing the lower decision only upon this court's finding that the board's decision is not supported by credible evidence in the record. See, e.g., Bernard, supra. Accord Kilgore, supra. In this respect, Royer v. Bd. of Edn. (1977), 51 Ohio App.2d 17, 5 O.O.3d 138, 365 N.E.2d 889, citing Jacobs v. Benedict (1973), 39 Ohio App.2d 141, 68 O.O.2d 343, 316 N.E.2d 898, found that a reviewing court can disturb the lower decision only if the lower "`"* * * verdict is so manifestly contrary to the natural and reasonable inferences * * * as to produce a result in complete violation of substantial justice * * *."'" Royer, supra, 51 Ohio App.2d at 20, 5 O.O.3d at 140, 365 N.E.2d at 892. Further, a reviewing court has no jurisdiction to "`disturb the judgment of the * * * [lower tribunal] on the ground of insufficiency of the evidence unless it clearly appears that the conclusion reached cannot be supported by any rational view of the evidence." Id.
Here, Referee Weinle found that Smith resigned. Although she was taken off the schedule, she was paid for the time that she would have worked had she been left on the schedule. With these facts, the board both found that Smith's resignation was without just cause and denied benefits. This court finds that the board's decision is supported by credible evidence, as found in the record. The court further finds that the board's decision cannot reasonably be characterized as unlawful, unreasonable, or against the manifest weight of the evidence. Therefore, the court affirms the board's decision that Smith quit her employment without just cause.
The remaining issue is whether the state should be estopped from requiring Smith to reimburse the bureau for the monies she received. Because the board has not ordered restitution from Smith, the court finds that this remaining issue is not ripe and therefore beyond its jurisdiction. The court, therefore, refrains from addressing this second issue.
For the reasons stated, then, the court affirms the decision of the Ohio Unemployment Compensation Board of Review.
Decision affirmed.