[Cite as Loughman v. Ohio Dept. of Pub. Safety, 2016-Ohio-1086.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Tatiana Loughman, : 

 

 Appellant-Appellant, : No. 15AP-473 

 (C.P.C. No. 14CVF-11749) 

v. : 

 (ACCELERATED CALENDAR) 

Ohio Department of Public Safety, : 

Ohio Highway Patrol et al., 

 : 

 Appellees-Appellees. 

 : 

 

 

D E C I S I O N 

Rendered on March 17, 2016 

 

On brief: Marshall & Morrow LLC, Samuel M. Schlein, 

John S. Marshall, and Edward R. Forman, for appellant. 

Argued: Samuel M. Schlein. 

On brief: Michael DeWine, Attorney General, and 

Richard M. Jones, for appellee Ohio Department of Public 

Safety, Ohio Highway Patrol. 

On brief: Michael DeWine, Attorney General, and Alan 

Schwepe, for appellee Director, Ohio Department of Job & 

Family Services. Argued: Alan Schwepe. 

 

APPEAL from the Franklin County Court of Common Pleas 

BROWN, J. 

{¶ 1} Tatiana Loughman, appellant, has filed an appeal from the judgment of the 

Franklin County Court of Common Pleas in which the court affirmed the decision of the 

Unemployment Compensation Review Commission ("commission"), a division of the 

Ohio Department of Job and Family Services ("ODJFS"), appellee. 
No. 15AP-473 2

{¶ 2} Appellant began working as a police officer for the Ohio Department of 

Public Safety ("ODPS"), Ohio Highway Patrol ("highway patrol"), appellee, on August 7, 

2013. Upon commencement of her employment, she was subjected to sexual harassment 

by co-workers and her supervisor, Sergeant Sheldon Robinson. In November 2013, she 

filed a complaint ("first complaint") with the human resources department regarding the 

harassment. The first complaint was found to be justified, and Sergeant Robinson was 

disciplined. 

{¶ 3} Appellant returned to the same position and continued to work under 

Sergeant Robinson. Appellant claimed that the sexual harassment and hostile work 

environment continued. Appellant requested, and was granted, sick leave from May 20, 

through May 26, 2014. On May 21, 2014, appellant complained again ("second 

complaint") to the Equal Employment Opportunity ("EEO") manager that Sergeant 

Robinson continued to harass her, prompting the commencement of a second 

investigation. On May 27, 2014, appellant returned to work and was transferred to the 

Office of Personnel pending the investigation. 

{¶ 4} On May 29, 2014, the human resources department offered appellant four 

positions within ODPS but outside the section in which she had been working. However, 

appellant resigned on June 4, 2014. Appellant later alleged that she resigned due to a 

medical condition. 

{¶ 5} On June 4, 2014, appellant filed an application for unemployment benefits. 

On July 11, 2014, ODJFS issued a redetermination, finding that appellant quit her job 

without just cause. Appellant appealed the redetermination. On August 29, 2014, a 

hearing officer for ODJFS held a hearing. On September 8, 2014, ODJFS' hearing officer 

found that appellant had quit her employment without just cause. The commission 

affirmed the hearing officer's decision on October 22, 2014, by disallowing further review. 

{¶ 6} Appellant appealed the commission's decision to the common pleas court. 

On April 6, 2015, the court issued a judgment affirming the commission's denial of 

unemployment compensation. Appellant appeals the judgment of the trial court, asserting 

the following assignments of error: 

[I.] The Trial Court Committed Error in Determining that 

Appellee Did Not Have Just Cause to Quit Based on Her UnRemedied Hostile Work Environment. 
No. 15AP-473 3 

[II.] The Trial Court Committed Error in Not Determining 

why Appellant Did Not Provide Notice of Her Medical 

Condition. 

{¶ 7} Appellant argues in her first assignment of error that the trial court erred 

when it determined that she did not have just cause to quit based on the un-remedied 

hostile work environment. A trial court and an appellate court employ the same, wellestablished standard of review in appeals involving the commission: "[A] reviewing court 

may reverse the board's 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, 697 (1995); R.C. 4141.282(H). When a reviewing court 

(whether a trial or appellate court) applies this standard, it may not make factual findings 

or determine witness credibility. Irvine v. State Unemp. Comp. Bd. of Rev., 19 Ohio St.3d 

15, 18 (1985). Factual questions remain solely within the commission's province. Tzangas

at 696. Thus, a reviewing court may not reverse the commission's decision simply because 

"reasonable minds might reach different conclusions." Irvine at 18. The focus of an 

appellate court when reviewing an unemployment compensation appeal is on the 

commission's decision, not the trial court's decision. Moore v. Comparison Mkt., Inc., 9th 

Dist. No. 23255, 2006-Ohio-6382, ¶ 8. In determining whether a commission's decision is 

or is not supported by the manifest weight of the evidence, this court applies the civil 

manifest weight of the evidence standard set forth in C.E. Morris Co. v. Foley Constr. Co., 

54 Ohio St.2d 279 (1978), syllabus, which holds: "Judgments supported by some 

competent, credible evidence going to all the essential elements of the case will not be 

reversed by a reviewing court as being against the manifest weight of the evidence." 

{¶ 8} R.C. 4141.29(D)(2)(a) provides that an applicant is not eligible for 

unemployment compensation benefits if "[t]he individual quit work without just cause or 

has been discharged for just cause in connection with the individual's work." The term 

"just cause," in this context, is defined as " 'that which, to an ordinarily intelligent person, 

is a justifiable reason for doing or not doing a particular act.' " Irvine at 17, quoting Peyton 

v. Sun T.V. & Appliances, 44 Ohio App.2d 10, 12 (10th Dist.1975). A significant factor in 

assessing whether an employee resigned with just cause is the employee's fault in creating 

the situation that led to the resignation. Stapleton v. Dir., Ohio Dept. of Job & Family 

Servs., 163 Ohio App.3d 14, 2005-Ohio-4473 (7th Dist.). In cases in which an employee 
No. 15AP-473 4 

encounters circumstances that might force resignation, the employee must first notify the 

employer of problems prior to resigning or risk a finding of resignation without just cause. 

DiGiannantoni v. Wedgewater Animal Hosp., Inc., 109 Ohio App.3d 300 (10th 

Dist.1996). The purpose of such notice is to provide the employer an opportunity to 

resolve the conflict before the employee is forced to resign. Id. at 307. Notice to the 

employer, however, is not alone enough to establish just cause; the employer must have a 

realistic opportunity to correct the problem. Underhill v. Unemp. Comp. Rev. Comm., 

10th Dist. No. 10AP-617, 2011-Ohio-1598, ¶ 19. 

{¶ 9} However, where an employee's initial complaints do not prompt the 

employer to change her working conditions, the employee may be relieved of her duty to 

further pursue internal remedies. Krawczyszyn v. Ohio Bur. of Emp. Servs., 54 Ohio 

App.3d 35, 37 (8th Dist.1988). Likewise, an employee need not indefinitely subject 

herself to the hostile working conditions while waiting for her employer to respond. Id. 

{¶ 10} Appellant argues that the highway patrol did not adequately handle her 

second sexual harassment complaint, which involved the same supervisor as in the first 

complaint and occurred six months after the first complaint. Appellant claims that when 

her first complaint was found to have merit, the highway patrol should have taken 

immediate and effective steps to ensure that she did not suffer from continued 

harassment. Appellant asserts that once it became clear that her employer had not taken 

effective steps to remedy the environment, she had just cause to quit. 

{¶ 11} We find no error in the common pleas court's and commission's decisions in 

this respect. Appellant's employer investigated her initial claim for harassment and then 

disciplined Sergeant Robinson. Appellant fails to explain how the highway patrol's 

handling of her first harassment complaint was insufficient. Although she alleged in a 

second harassment complaint that Sergeant Robinson's harassment continued, that case 

was not yet substantiated and her employer was investigating it. After appellant lodged 

her second complaint and returned to work following her medical leave, the highway 

patrol transferred her to a different office. After she returned to work, the highway patrol 

offered her four separate positions in different areas than she had previously worked. 

Although appellant contends that the highway patrol should have taken immediate and 

"effective" steps to ensure that she did not suffer from continued harassment, the highway 

patrol did take immediate steps. Whether they were effective or not is still unknown, as 
No. 15AP-473 5

appellant's allegations were unconfirmed and she quit before they could be substantiated. 

Importantly, appellant presents no evidence that her employer was aware that the 

harassment was allegedly continuing prior to the time she raised her second complaint. 

When she did initiate her second complaint, the highway patrol took immediate action to 

remove her from the allegedly harassing environment pending its investigation and 

offered her other permanent positions thereafter. Appellant fails to convince us that the 

highway patrol's actions were not appropriate under the circumstances. For these 

reasons, we find appellant's argument without merit, and we overrule her first assignment 

of error. 

{¶ 12} Appellant argues in her second assignment of error that, even if we 

determine that she did not have just cause to quit when the highway patrol failed to 

remedy her work environment, as we did under her first assignment of error, we must still 

reverse the common pleas court's decision because it failed to address why she did not 

notify her employer about her medical condition and whether that failure to notify was 

reasonable. 

{¶ 13} The Supreme Court of Ohio has stated: 

An employee's voluntary resignation on the basis of health 

problems is without just cause * * * when the employee is 

physically capable of maintaining a position of employment 

with the employer, but fails to carry her burden of proving 

that she inquired of her employer whether employment 

opportunities were available which conformed to her physical 

capabilities and same were not offered to her by the employer. 

Irvine at syllabus. 

{¶ 14} In DiGiannantoni, which appellant relies on, this court discussed Irvine: 

In Irvine, the court found the record failed to demonstrate 

that claimant gave her employer "sufficient timely notice" of 

her medical restrictions so that it could find a less demanding 

position for her. Id. at 18. When the foregoing excerpt is read 

in conjunction with its definition of "just cause," Irvine found 

an ordinarily intelligent person with a health problem would 

not quit their employment without first notifying their 

employer of the problem and thus giving the employer an 

opportunity to make suitable arrangements. See Thake v. 

Unemployment Comp. Bd. of Review (1990), 67 Ohio App.3d 

503, 505-506 (where claimant failed to give employer 

sufficient notice of her continuing problem, she quit without 
No. 15AP-473 6

just cause and was therefore unentitled to unemployment 

benefits). See, also, Wilson v. Ohio Bur. of Emp. Serv. (Nov. 

19, 1986), Summit App. No. 12651, unreported (citing Irvine, 

court found employee who quit because of employer's 

religious lectures and temperamental outbursts quit without 

just cause where employee failed to discuss problems with 

employer and to give employer an opportunity to correct them 

before quitting). 

DiGiannantoni at 306-07. Thus, we summarized Ohio law in DiGiannantoni as follows: 

Given the foregoing, we are constrained to find under Ohio 

statutory law that generally employees who experience 

problems in their working conditions must make reasonable 

efforts to attempt to solve the problem before leaving their 

employment. Essentially, an employee must notify the 

employer of the problem and request it be resolved, and thus 

give the employer an opportunity to solve the problem before 

the employee quits the job; those employees who do not 

provide such notice ordinarily will be deemed to quit without 

just cause and, therefore will not be entitled to unemployment 

benefits. 

 

Id. at 307. 

{¶ 15} In her second assignment of error, appellant relies on the portion of 

DiGiannantoni in which we explained that, "in applying the notice element of Irvine, the 

critical issue underlying whether an employee has quit with just cause is not whether 

notice was given, but rather whether an ordinarily intelligent person would have quit 

without giving notice under the circumstances of the case." Id. at 308, citing Irvine at 17. 

"In addressing the issue, [a] board needs to consider the nature of the problem, the 

person to whom [the employee] would need to address her concerns, and whether notice 

to that person would have been a futile act." Id.

{¶ 16} Here, it is undisputed that appellant failed to give any notice to her 

employer of her medical condition before quitting her employment. Appellant contends 

that she did not notify her employer of her medical condition because it would have been 

a futile act to give notice of a medical condition to an employer who had already failed to 

take effective action when notified of the hostile work environment that caused the 

medical condition and had just informed her that she was "too sensitive" for filing a 

complaint with the Ohio Civil Rights Commission. Appellant argues that the common 
No. 15AP-473 7

pleas court should have addressed this issue instead of applying a "per se rule" stemming 

from Irvine that, absent such notice, claims for unemployment benefits must be denied. 

{¶ 17} However, we believe the requirement explained in DiGiannantoni that a 

board must consider the nature of the problem, the person to whom the employee would 

need to address her concerns, and whether notice to that person would have been a futile 

act, was implicit in the commission's and common pleas court's decisions regarding what 

an ordinarily prudent person would do under the same or similar circumstances. By 

concluding that appellant failed to give notice to her employer of her medical condition, 

the commission and common pleas court implicitly found that the exception to the notice 

requirement from Irvine did not apply. We agree with that conclusion. One situation we 

cited in DiGiannantoni that should excuse an employee from notifying her employer of a 

problem and giving it an opportunity to solve the problem is when an employee has no 

one to whom she can report the incident but the harassing employer. In the current case, 

appellant was not required to report the incident to the harassing co-worker(s) but, 

instead, lodged her complaints with a separate human resources department. Upon both 

complaints, an investigation was launched, and, with regards to the first complaint, the 

supervisor was disciplined. The second investigation had not been completed at the time 

of appellant's resignation. Thus, the record supports a finding that the human resources 

department would have continued to take action on any complaints. There is no evidence 

in the record that notice to her employer that she had a medical condition would have 

been a futile act, or that her employer would have ignored her medical condition and not 

acted on such to resolve any issues and accommodate appellant. The human resources 

department responded appropriately to her sexual harassment complaints, and appellant 

fails to offer any evidence that it would not have responded appropriately to her claim of a 

medical condition. For these reasons, we must find appellant's argument without merit, 

and we overrule her second assignment of error. 

{¶ 18} Accordingly, appellant's two assignments of error are overruled, and the 

judgment of the Franklin County Court of Common Pleas is affirmed. 

Judgment affirmed. 

TYACK and SADLER, JJ., concur. 

 

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