[Cite as Marchese Servs. v. Bradley, 2009-Ohio-2618.]

 

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

PUTNAM COUNTY 

 

MARCHESE SERVICES, INC., 

 APPELLEE, 

 v. CASE NO. 12-08-06 

AMBER BRADLEY, 

 APPELLEE, 

 v. O P I N I O N 

DIRECTOR, OHIO DEPARTMENT 

OF JOB AND FAMILY SERVICES, 

 APPELLANT. 

 

Appeal from Putnam County Common Pleas Court 

Trial Court No. 08-CV-24 

Judgment Affirmed 

Date of Decision: June 8, 2009 

 

APPEARANCES: 

Eric A. Baum for Appellant 

Arthur P. Cohen and Shannon J. George for Appellee, 

 Marchese Services, Inc. 
 

Case No. 12-08-06 

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ROGERS, J. 

{¶1} Defendant-Appellant, Ohio Department of Job and Family Services 

(“ODJFS”), appeals the judgment of the Putnam County Court of Common Pleas 

reversing the decision of the Unemployment Compensation Review Commission 

(“Review Commission”) and finding that just cause existed for the termination of 

Amber Bradley’s employment with Marchese Services. On appeal, ODJFS argues 

that the Review Commission’s decision finding that Bradley’s employment 

termination was without just cause and granting her unemployment compensation 

should be reinstated because the decision is supported by sufficient evidence; that 

the trial court should have found Bradley’s employment termination to be without 

just cause because her physical limitations were the indirect cause of her 

termination, and because her request for employment opportunities that 

accommodated her physical limitations was denied; and, that the trial court should 

have found that Bradley was constructively, and without just cause, terminated 

from her employment because her absenteeism and tardiness were the result of 

being forced to commute fifty minutes round-trip while enduring pregnancy and 

post-pregnancy complications. Finding that the Review Commission’s decision 

was against the manifest weight of the evidence, and that just cause existed for 

Bradley’s termination, we affirm the judgment of the trial court. 
 

Case No. 12-08-06 

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{¶2} In March, 2007, Bradley filed an application with the Ohio 

Department of Job and Family Services, Office of Unemployment Compensation 

(“OUC”) for unemployment compensation due to her February 2007 discharge 

from her employment with Marchese Services (“Marchese”). 

{¶3} Subsequently, the OUC sent a questionnaire to Marchese, asking it 

to explain the details of Bradley’s discharge. In response, Marchese stated that 

Bradley was discharged for excessive tardiness and absenteeism in violation of the 

company’s standard operating procedures which were disclosed to her through the 

employee manual; that the reason given by Bradley for her tardiness and absences 

were illnesses, doctor’s visits for her and her child, difficulties finding a 

babysitter, transportation problems, and having to drive an extended distance to 

work; that out of forty-nine instances of tardiness or absenteeism, she only 

provided two doctor’s notes; that the company’s disciplinary procedure progresses 

as follows: verbal notice, written conference summary, verbal warning, 

suspension, written warning with probation, and termination; that, on September 

14, 2006, Bradley was given a verbal notice due to the fact that she had taken 

extensive time off; that Bradley was given a written conference summary on 

November 30, 2006, which detailed her inefficient production numbers and a time 

line and goals for future improvements; that she was given a verbal warning on 

January 16, 2007, which detailed the company’s policy on tardiness and personal 
 

Case No. 12-08-06 

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phone calls during work hours; that she was suspended from January 17 through 

January 19, 2007, for continued problems with tardiness, absenteeism, and early 

departures; that Bradley was given another warning and placed on probation from 

February 19, 2007, until March 2, 2007, for continued absenteeism, tardiness, and 

early departures, during which time she was required to abide by all break policies 

and not permitted to have any instances of absenteeism, tardiness, or early 

departures; and, that, due to her tardiness during the probation period, she was 

discharged. Enclosed with its response, Marchese attached several exhibits which 

detailed the company’s standard operating procedures and workplace conduct 

policy, Bradley’s confirmed receipt of the employee manual and workplace 

conduct policy, the company’s disciplinary procedures, and written copies of the 

disciplinary actions taken against Bradley. Additionally, Marchese attached a list 

of all instances of approved vacations, absenteeism, tardiness, early departures, 

and extended breaks. Out of forty-five documented instances of absences, 

tardiness, early departures, or extended breaks, excluding pre-approved time off 

before hire, maternity leave, and her suspension, forty-one instances were 

unexcused and only four were excused for illness or doctor’s visits, of which there 

were only two documented doctor’s notes. 

{¶4} Additionally, the OUC sent Bradley a questionnaire regarding the 

details of her termination, to which she responded that the reason for her tardiness 
 

Case No. 12-08-06 

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during the probation period was because she had to take her four-month-old 

daughter to the doctor for her scheduled check-up one day and for an allergic 

reaction another day; that she furnished a doctor’s note to Marchese for these 

instances of tardiness; that she was aware of the company absenteeism and 

tardiness policy, but that she was not permitted to take time off for doctor’s visits 

under the Family Medical Leave Act (“FMLA”) because the FMLA did not apply 

to Marchese; that she had not received warnings or other discipline for instances 

of tardiness or absenteeism in the past year; that she did not know if the company 

had a grievance procedure, and if so, that they did not offer it to her; and, that the 

reason for her tardiness and absenteeism was due to multiple required doctor’s 

visits she made during her pregnancy and after her daughter’s birth. 

{¶5} On March 26, 2007, the OUC issued a determination of 

unemployment compensation benefits, finding that Bradley was entitled to 

benefits in the amount of $175 per week because her termination from Marchese 

was without just cause, as Marchese failed to follow its established disciplinary 

policy when Bradley violated the attendance procedures. 

{¶6} In April 2007, Marchese filed an appeal from the OUC’s 

determination, arguing that Bradley was discharged for just cause and is, therefore, 

ineligible for benefits pursuant to R.C. 4141.29(D)(2)(a), as she was absent or 

tardy seventy-four days from July 20, 2006, through February 28, 2007, and she 
 

Case No. 12-08-06 

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was discharged after the company followed its disciplinary policy, in which she 

was given a verbal notice, a written conference summary, a verbal warning, a 

suspension, a written warning and probation, and an additional e-mail warning 

reminder. Attached to Marchese’s appeal were written copies of the disciplinary 

actions taken against Bradley. 

{¶7} On May 11, 2007, the OUC issued a redetermination of 

unemployment compensation, finding that Bradley was still eligible for $175 per 

week, as a review of the original facts and those submitted in Marchese’s appeal 

did not support a change in the initial determination. The redetermination stated, 

in pertinent part: 

The claimant was discharged by Marchese Services 

Incorporated on February 28, 2007. Evidence submitted 

establishes that the employer failed to follow the established 

disciplinary policy when the claimant violated the attendance 

procedures. Ohio’s legal standard that determines if a discharge 

is without just cause is whether the claimant’s acts, omissions, or 

course of conduct were such that an ordinary person would find 

the discharge not justifiable. After a review of the facts, this 

agency finds that the claimant was discharged without just cause 

under Section 4141.29(D)(2)(a), Ohio Revised Code. 

(May 2007 Redetermination, p. 2). 

{¶8} Subsequently, Marchese filed an appeal from the OUC’s May 11, 

2007 redetermination, again asserting that Bradley’s discharge was for just cause, 

as she was absent or tardy for seventy-four days from July 20, 2006, through 

February 28, 2007; that the company’s disciplinary procedure was followed prior 
 

Case No. 12-08-06 

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to Bradley’s discharge through the use of a verbal notice, a written conference 

summary, a verbal warning, a suspension, a written warning with probation, and 

an e-mail warning reminder; and, that no evidence was submitted indicating that 

the disciplinary procedure was not followed. Marchese again attached written 

copies of the disciplinary actions taken against Bradley. 

{¶9} Additionally, Bradley’s personal handwritten statement was filed 

with the OUC1

, which stated that, shortly after she started working at Marchese, 

she began having pregnancy complications requiring her to make frequent doctor’s 

visits; that, in August 2006, Marchese informed her that she would be required to 

start working in the company’s Glandorf, Ohio, office, which was about a twentyfive minute drive from her home; that, after a month of working in the office, she 

asked if she could return to working from home, as she was concerned about going 

into labor while driving to and from work; that she was told she would need to 

remain working in the office; that, shortly thereafter, she took maternity leave; 

that, when she returned to work, she was required to return to working in the 

office, but was given the option of working only three days per week instead of the 

full five days; that she decided to work the full five days because she needed the 

money; that, when she was later placed on two-weeks probation, it became 

impossible for her to not miss any days due to her daughter’s doctor’s appointment 

 

1

 We note that the record does not indicate whether Bradley or Marchese filed the statement. 
 

Case No. 12-08-06 

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and subsequent illness; and, that when she missed days due to her daughter’s 

doctor’s appointment and illness, she was dismissed. 

{¶10} In June 2007, the OUC transferred Marchese’s appeal to the Review 

Commission. 

{¶11} In September 2007, Bradley filed a personal statement and several 

documents with the Review Commission indicating that she gave birth on 

September 14, 2006, while employed at Marchese; that she was discharged from 

the hospital on September 16, 2006; that she returned to work the week of 

November 4, 2006, approximately two weeks and three days after giving birth; 

that returning to work that soon after giving birth did not give her an adequate 

opportunity to get settled as a first-time mother and attend the multiple follow-up 

doctor’s visits for her and her daughter; that her job was supposed to allow her to 

work from home, but that Marchese asked her to work in the office soon after she 

returned to work from her maternity leave; that she was given a prescription to 

deal with her separation anxiety because she was forced to leave her daughter with 

a babysitter when she went to work in the office; that she could not afford her 

medication due to a reduction in her hours, as she was told on several occasions to 

go home early or take the rest of the week off due to a lack of work; that she was 

told by Marchese that they were also cutting other employees’ hours due to a lack 

of work, but that she discovered by talking with other employees that she was the 
 

Case No. 12-08-06 

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only employee whose hours were reduced; and, that she was discharged when she 

missed work to take her daughter to a doctor’s appointment, even though she 

provided a doctor’s note. 

{¶12} In November 2007, the Review Commission held a hearing on 

Marchese’s appeal, at which the following testimony was adduced. Linda 

Barbusca, a senior operations manager at Marchese, testified that Bradley was 

hired on May 15, 2006, to be a canvass caller for Marchese; that she was 

discharged in February 2007 due to excessive absenteeism and tardiness; that 

Bradley was originally trained and worked in the Glandorf, Ohio office, but that 

she was permitted to work from home for a period of time; that after working from 

home for some time, Marchese required her to again work from the office due to 

her low performance, her attendance problems, and for retraining; that Bradley 

was asked to provide medical documentation if she was not going to be able to 

work a set number of hours, and she provided this documentation for all doctor’s 

appointments that she had; that, in addition to missing work hours due to doctor’s 

appointments, Bradley also missed time because she could not find a babysitter, 

because she had car trouble, and because of personal issues at home; that around 

half of the occurrences of tardiness, absenteeism, and early departures were due to 

doctor’s appointments; and, that, as she continued to have attendance problems, 

she was given various warnings and suspensions pursuant to the standard 
 

Case No. 12-08-06 

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operating procedures of the company, including a verbal warning on September 

14, 2006, a written warning on January 30, 2007, a suspension from January 17 

until January 19, 2007, and a two-week probation period starting on February 19, 

2007. 

{¶13} Bradley testified that the reason for her last tardiness, which led to 

her discharge, was that she had to take her daughter to the hospital due to either a 

food reaction or the flu; that prior to this tardiness, she had received a warning that 

she would be on probation for two weeks and could not miss any days; that her 

husband could not take her daughter to the doctor on that occasion because he was 

already at work and was the only manager on duty, and that she did not remember 

if she asked her mother to take her daughter to the doctor; that she remembered 

receiving other verbal warnings prior to being placed on probation; that she 

remembered receiving warnings about making personal phone calls while at work 

and taking extended breaks; that Barbusca’s statement that she missed work 

because of car problems was incorrect, and that she was late on that day because 

she had a near-collision with a tractor trailer, subsequently had a panic attack, and 

needed someone to pick her up because she could not drive; that most of her 

absenteeism was due to either doctor’s appointments or illnesses; and, that she 

always provided Marchese with a doctor’s excuse if she missed work time due to a 

doctor’s appointment. 
 

Case No. 12-08-06 

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{¶14} Subsequently, the Review Commission upheld the OUC’s 

redetermination, finding that Bradley was discharged without just cause and 

stating the following findings of fact: 

Claimant has an extensive history of absenteeism and tardiness. 

However, claimant was pregnant and the majority of the 

occurrences which led to her discharge were due to her 

pregnancy issues, her personal illness, or the illnesses of her 

newborn child. 

Claimant was given the appropriate warnings as required by 

company policy before being discharged. 

(Nov. 2007 Decision, pp. 1-2). 

{¶15} In December 2007, Marchese filed a request for a reassessment of 

the Review Commission’s decision, stating that the reason behind the Review 

Commission’s finding that Bradley was discharged was that the majority of her 

attendance problems were due to either personal illness, pregnancy, or problems 

with her newborn child; however, that of Bradley’s eighty-four instances of early 

departures, tardiness, taking extended breaks, and being completely absent, only 

thirteen were for doctor’s appointments, of which only one doctor’s note and two 

appointment cards were provided. Subsequently, Marchese’s request for a 

reassessment was denied. 

{¶16} In January 2008, Marchese appealed the Review Commission’s 

denial of its reassessment request to the Putnam County Court of Common Pleas, 

again, arguing that the Review Commission erred in finding Bradley’s discharge 
 

Case No. 12-08-06 

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was without just cause, as she had an extensive history of tardiness, absenteeism, 

early departures, and taking extended breaks. 

{¶17} In September 2008, the trial court reversed the decision of the 

Review Commission, finding that Bradley’s termination was for just cause, 

thereby making her ineligible to receive unemployment compensation pursuant to 

R.C. 4141.29(D)(2)(a). The trial court stated the following in its judgment entry: 

Ms. Bradley worked for employer as a canvas caller. She was 

initially permitted to work from home and as of August 2006 

was required to work at employer’s Glandorf, Ohio site during 

this period. Ms. Bradley had ongoing medical issues including 

complications from a pregnancy. Spokesperson Linda Barbusca 

reported that Ms. Bradley reported to work late or was absent 

on numerous occasions. On February 19, 2007, Ms. Bradley was 

placed on a two week probationary period and was required to 

have perfect attendance. She subsequently missed one day of 

work and was tardy for several others including February 28, 

2007, the day on which she was fired. Thirty-eight (38) absences 

or tardies are listed in the documented attendance of Amber 

Bradley. A doctor’s note was provided on four (4) occasions. 

The record reflects that Appellee had a total of eighty four (84) 

instances when she left early, came in late, took extended breaks, 

or was completely absent. In addition, thirty nine (39) days were 

off for maternity leave. Sixty two (62) instances of absenteeism 

were with no reason given. 

* * * 

The record in this case clearly reflects that Appellee had a 

number of absences and for instances [sic] of being to work 

tardy. The majority of the absences were not documented * * *. 

Furthermore, the Appellee continued to fail to supply 

documentation of absenteeism after being placed on a two week 

probationary period. 
 

Case No. 12-08-06 

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This Court finds that the Review Commissions’ decision was 

against the manifest weight of the evidence. The discharge of 

Amber Bradley was for just cause and the determination by the 

Review Commission was in error. 

(Sept. 8 Judgment Entry, pp. 2-5). 

{¶18} It is from this judgment that ODJFS appeals2

, presenting the 

following assignments of error for our review. 

Assignment of Error No. I 

IT IS UNDISPUTED THAT MS. BRADLEY WAS ENDURING 

THE EFFECTS OF A COMPLICATED PREGNANCY 

DURING ALL TIMES RELEVANT TO HER 

UNEMPLOYMENT-COMPENSATION CLAIM. BECAUSE 

THE REVIEW COMMISSION’S FINDING THAT THE 

MAJORITY OF MS. BRADLEY’S ABSENCES RESULTED 

FROM THIS BONA FIDE ILLNESS IS SUPPORTED BY 

SUFFICIENT EVIDENCE, ITS DECISION GRANTING HER 

UNEMPLOYMENT-COMPENSATION BENEFITS SHOULD 

BE REINSTATED. (BELLEMAR PARTS INDUS., INC. V. 

BUTLER (SEPT. 27, 1991), 3RD DIST. NO. 14-90-21, 1991 

OHIO APP. LEXIS 4642, FOLLOWED). 

Assignment of Error No. II 

DUE TO THE RESTRICTED PHYSICAL CAPABILITIES 

RESULTING FROM HER PREGNANCY, MS. BRADLEY 

ASKED WHETHER SHE COULD REVERT TO WORKING 

FROM HER HOME. BECAUSE MARCHESE, WITHOUT 

EXPLANATION, DENIED THIS REQUEST FOR AN 

EMPLOYMENT OPPORTUNITY THAT CONFORMED TO 

HER PHYSICAL CAPABILITIES, HER TERMINATION 

WAS WITHOUT JUST CAUSE. (IRVINE V. STATE OF 

 

2

 Although Bradley is a party to the case, ODJFS, represented by the Attorney General of Ohio, is the 

actual appellant, seeking to have its unemployment compensation determination upheld. Bradley’s interest 

in receiving unemployment compensation is, therefore, implicitly represented through ODJFS. 
 

Case No. 12-08-06 

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OHIO, UNEMPLOYMENT COMP. BD. OF REV. (1985), 19 

OHIO ST.3D 15, SYLLABUS, FOLLOWED.) 

Assignment of Error No. III 

ALTHOUGH MARCHESE’S REQUIREMENT THAT MS. 

BRADLEY WORK FROM THE GLANDORF OFFICE 

RESULTED IN CONDITIONS SO INTOLERABLE – SHE 

HAD TO COMMUTE 50-MINUTES ROUND TRIP WHILE 

ENDURING A COMPLICATED PREGNANCY – THAT A 

REASONABLE PERSON WOULD HAVE FELT 

COMPELLED TO RESIGN, MS. BRADLEY CONTINUED TO 

WORK BECAUSE OF HER FAMILY’S FINANCIAL 

SITUATION. BECAUSE HER TERMINATION RESULTED 

FROM THIS SITUATION, SHE IN EFFECT WAS 

CONSTRUCTIVELY, AND WITHOUT JUST CAUSE, 

DISCHARGED. (MAUZY V. KELLY SERVICES, INC., 75 

OHIO ST.3D 578, 1996-OHIO-265, PARAGRAPH FOUR OF 

THE SYLLABUS, FOLLOWED.) 

{¶19} Initially, we note that all three assignments are essentially arguments 

of factual issues and fail to properly state specific instances of error. Accordingly, 

ODJFS has failed to comply with App.R. 16(A)(3), Loc.R. 7(A) and Loc.R. 11(B), 

and, pursuant to App.R. 12(A)(2), we are permitted to disregard any assignments 

of error not specifically identified or separately argued. However, in the interests 

of justice, we elect to address ODJFS’ assignments of error, and, due to the nature 

of ODJFS’ arguments, we will address assignments of error one, two, and three 

together. 

Assignment of Error Nos. I, II, and III 
 

Case No. 12-08-06 

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{¶20} In its first assignment of error, ODJFS argues that its decision 

granting Bradley unemployment compensation benefits should be reinstated. 

Specifically, it asserts that the trial court’s finding that Bradley’s termination was 

for just cause is not entitled to deference, and that the Review Commission’s 

decision finding that the majority of Bradley’s absences resulted from a bona fide 

illness was supported by sufficient evidence, thereby making her termination 

without just cause and entitling her to unemployment compensation. 

{¶21} In its second assignment of error, ODJFS argues that Bradley’s 

termination was without just cause, and, therefore, that she is eligible for 

unemployment compensation because her termination resulted from Marchese’s 

refusal to accommodate her physical limitations involved with her pregnancy and 

post-pregnancy issues by granting her request for alternate employment 

opportunities. 

{¶22} In its third assignment of error, ODJFS argues that Bradley is 

eligible for unemployment compensation because she was constructively 

discharged without just cause. Specifically, it contends that, although Bradley did 

not resign, she, in effect, was constructively discharged because she was forced by 

Marchese for illegitimate business reasons to commute fifty minutes round-trip to 

work while enduring pregnancy and post-pregnancy issues, which caused her to 

miss work, thereby leading to her discharge. 
 

Case No. 12-08-06 

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Standard of Review 

{¶23} An appellate court will not reverse the decision of the Review 

Commission as long as it is not unlawful, unreasonable, or against the manifest 

weight of the evidence. Geretz v. Ohio Dept. of Job & Family Servs., 114 Ohio 

St.3d 89, 91, 2007-Ohio-2941; Benton v. Unemployment Compensation Bd. of 

Rev., 3d Dist. No. 6-2000-13, 2001-Ohio-2201, citing Tzangas, Plakas & Mannos 

v. Ohio Bur. of Emp. Serv. (1995), 73 Ohio St.3d 694, 1995-Ohio-206, paragraph 

one of the syllabus. See, also, R.C. 4141.282(H). A judgment is not against the 

manifest weight of the evidence as long as it is supported by some competent, 

credible evidence. C. E. Morris Co. v. Foley Const. Co. (1978), 54 Ohio St.2d 

279, 280. This same standard of review applies at each appellate level of the 

unemployment compensation proceeding, including the court of common pleas, 

appeals court, and the Supreme Court of Ohio. Verizon N. v. Ohio Dept. of Job & 

Family Servs. 3d Dist. No. 9-06-22, 2007-Ohio-112, ¶18, citing Tzangas, 73 Ohio 

St.3d at 696. Accordingly, we are ‘“required to focus on the decision of [the 

Review Commission], rather than that of the common pleas court[.]”’ Carter v. 

Univ. of Toledo, 6th Dist. No. L-07-260, 2008-Ohio-1958, ¶13, quoting Markovich 

v. Emps. Unity, Inc., 9th Dist. No. 21826, 2004-Ohio-4193, ¶10. 

{¶24} The determination of factual questions is primarily a matter for the 

Review Commission Simon v. Lake Geauga Printing Co. (1982), 69 Ohio St.2d 
 

Case No. 12-08-06 

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41, 45, and every reasonable presumption must be made in favor of the Review 

Commission’s decision and its findings of fact. Carter, 2008-Ohio-1958, at ¶13. 

Furthermore, an appellate court’s jurisdiction is limited to a review of the record 

that was created from the administrative proceedings before the Review 

Commission. Verizon N., 2007-Ohio-112, at ¶19, citing Bindas v. Admr., Ohio 

Bur. of Emp. Servs., 8th Dist. No. 57425, 1990 WL 125456. 

“Just Cause” Termination and Unemployment Compensation Eligibility 

{¶25} R.C. 4141.29 governs unemployment compensation eligibility and 

provides, in part: 

(D) Notwithstanding division (A) of this section, no individual 

may serve a waiting period or be paid benefits under the 

following conditions: 

* * * 

(2) For the duration of the individual's unemployment if the 

director finds that: 

(a) The individual quit work without just cause or has been 

discharged for just cause in connection with the individual's 

work * * *. 

R.C. 4141.29(D)(2)(a). 

{¶26} In order to receive unemployment compensation, the employee bears 

the burden of proof to establish that the employment termination was without just 

cause. Oriana House, Inc. v. Terrell, 9th Dist. No. CA 19550, 2000 WL 277906, 

citing Irvine v. State Unemployment Comp. Bd. of Rev. (1985), 19 Ohio St.3d 15, 
 

Case No. 12-08-06 

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17; Shephard v. Ohio Dept. of Job & Family Servs., 166 Ohio App.3d 747, 753, 

2006-Ohio-2313. Just cause is defined as ‘“that which, to an ordinary intelligent 

person, is a justifiable reason for doing or not doing a particular act.”’ Gossard v. 

Director, Ohio Dept. of Job & Family Servs., 3d Dist. No. 6-04-06, 2004-Ohio5098, ¶9, quoting Peyton v. Sun T.V. (1975), 44 Ohio App.2d 10, 12. The 

determination of whether just cause exists for an employee’s dismissal under R.C. 

4141.29 is based upon whether there was some fault on the part of the employee 

that led to the dismissal. Benton, 2001-Ohio-2201, citing Tzangas, 73 Ohio St.3d 

694, at paragraph two of the syllabus. Furthermore, where an employee 

demonstrates ‘“unreasonable disregard for [the] employer's best interests,”’ just 

cause for the employee’s termination is said to exist. Kiikka v. Ohio Bur. of Emp. 

Servs. (1985), 21 Ohio App.3d 168, 169, quoting Stephens v. Bd. of Rev., 8th Dist. 

No. 41369, 1980 WL 355009. See, also, Binger v. Whirlpool Corp. (1996), 110 

Ohio App.3d 583, 590. 

{¶27} Excessive absenteeism and tardiness provide an employer with just 

cause to dismiss an employee. Bennett v. Director, Ohio Dept. of Job & Family 

Servs., 7th Dist. No. 03-MA-222, 2005-Ohio-3313, ¶28; Higgins v. Patterson 

Pools, Inc., 10th Dist. No. 99AP-1394, 2000 WL 1376464. However, a dismissal 

for excessive absenteeism and tardiness may be classified as being without just 

cause and, therefore, eligible for unemployment compensation under R.C. 
 

Case No. 12-08-06 

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4141.29(D)(2)(a) if the absences were the result of a bona fide illness. Durgan v. 

Ohio Bur. of Emp. Servs. (1996), 110 Ohio App.3d 545, 550. 

{¶28} Furthermore, an employee’s voluntary resignation on the basis of 

health problems will be found to be a resignation without just cause, and, 

therefore, ineligible for unemployment compensation, unless the employee 

demonstrates that a request was made for employment opportunities that 

accommodated the employee’s physical capabilities. Eifel v. Ohio Dept. of Job & 

Family Servs., 148 Ohio App.3d 167, 171, 2002-Ohio-2672, citing Irvine, 19 Ohio 

St.3d 15, at syllabus. 

{¶29} In the case sub judice, Marchese filed several documents with both 

the OUC and the Review Commission which detailed every step it took in its 

discipline of Bradley, including documents evidencing a verbal notice, a written 

conference summary, a verbal warning, a suspension, a written warning with 

probation, and an e-mail warning reminder. Furthermore, Marchese also filed 

documents detailing Bradley’s instances of absenteeism, tardiness, early 

departures, or extended breaks, and even though some of those documents differed 

in the exact number of days these instances occurred, they each evidenced around 

forty-five occurrences, of which only around five were actually excused and 

around two where doctor’s notes were provided. Even though the trial court and 

Marchese stated several different numbers regarding Bradley’s instances of 
 

Case No. 12-08-06 

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absenteeism, tardiness, or early departures, the record is clear that she missed 

excessive work time, with very little of that time being excused. 

{¶30} Additionally, it is also clear from the record that Bradley submitted 

very little evidence to the OUC or to the Review Commission in support of her 

claim for unemployment compensation. The administrative record only contains 

two doctor’s notes and one document detailing Bradley’s hospital stay when she 

gave birth to her daughter. The only other evidence submitted by Bradley were 

her personal statements arguing her side of the case. While Bradley asserted to the 

OUC and to the Review Commission that most instances of her absenteeism, 

tardiness, or early departures were due to doctor’s appointments or having to take 

care of her newborn daughter, she provided almost no evidence of these 

occurrences, and it is difficult for this Court to lend much credibility to her 

argument that she needed to miss work on forty separate occasions in a nine month 

span, in addition to her maternity leave, mostly because of illnesses or doctor’s 

appointments. Even if we took Barbusca’s statement at the Review Commission’s 

hearing that around half of Bradley’s occurrences of missed work time were due to 

doctor’s appointments or illnesses, that still leaves over twenty instances of 

unexcused absences, tardiness, and early departures, more than enough to 

conclude that her discharge was for just cause. 
 

Case No. 12-08-06 

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{¶31} Moreover, ODJFS’ reliance upon this Court’s decision in Bellemar 

Parts Indus. Inc., v. Butler, 3d Dist No. 14-90-21, 1991 WL 216877, is misplaced. 

In that case we found that an employee’s discharge for absenteeism, tardiness, and 

early departures on six occasions was without just cause because five of the 

occasions were due to the employee’s or her child’s illness. In this case, however, 

Bradley had over forty instances of absenteeism, tardiness, or early departures, of 

which only about five were documented as being excused. As such, this case is 

clearly distinguishable from Bellemar Parts, and we do not find its logic to be 

applicable. 

{¶32} Accordingly, because of the copious documentation provided by 

Marchese detailing Bradley’s excessive unexcused absenteeism and tardiness, and 

the progressive discipline administered against her, and because of the dearth of 

evidence submitted by Bradley to the OUC and to the Review Commission to 

support her argument that her absenteeism and tardiness were due to medical 

issues, we find the following: that Bradley failed to meet her burden of proof 

establishing that her discharge was without just cause; that her occurrences of 

missed work were not the result of a bona fide illness; that she demonstrated 

“unreasonable disregard for [Marchese’s] best interests,” Kiikka, supra; and, 

consequently, that her termination was for just cause. Although we are required to 

make every reasonable presumption in favor of the Review Commission’s 
 

Case No. 12-08-06 

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decision and its findings of fact, such presumptions in this case are clearly 

unreasonable and against the manifest weight of the evidence. 

{¶33} Furthermore, we find to be without merit ODJFS’ argument that 

Bradley was constructively discharged without just cause because Marchese failed 

to provide suitable employment to accommodate to her physical limitations and 

because it forced her to commute fifty minutes roundtrip to work, both causing her 

to miss work time due to pregnancy and post-pregnancy issues, thereby leading to 

her discharge. First, a constructive discharge analysis requires the employee to 

voluntarily terminate employment, see Eifel, 148 Ohio App.3d 167, but here, 

Bradley was discharged by Marchese. Second, in analyzing whether Bradley’s 

termination was without just cause because Marchese failed to accommodate her 

physical limitation and forced her to commute to the office, both subsequently 

causing her to miss work time, the administrative record demonstrates that Bradley 

only made one request for employment accommodations while she was pregnant, 

asking Marchese to allow her to work from home. Bradley did not submit 

evidence to the OUC or to the Review Commission showing that she made a 

subsequent request after her return from maternity leave, and she even turned 

down an offer by Marchese to allow her the option of working three days per week 

to better accommodate any post-pregnancy issues. While Bradley argued to the 

Review Commission that it was not financially feasible for her to only work three 
 

Case No. 12-08-06 

 -23- 

days per week, she still voluntarily chose to refuse Marchese’s accommodation; as 

such, she cannot now complain that her discharge was without just cause because 

it resulted from Marchese’s failure to accommodate her physical limitations. 

Additionally, Bradley submitted no evidence to the OUC or to the Review 

Commission demonstrating the number of absences or instances of tardiness she 

could have avoided had she been able to work from home instead of commute to 

the office, and, as we previously mentioned, the evidence failed to support a 

finding that most of her missed time was due to illnesses or doctor’s appointments. 

{¶34} Consequently, because the administrative record demonstrates that 

just cause existed for Bradley’s discharge, we find that the trial court did not err in 

reversing the decision of the Review Commission granting Bradley unemployment 

compensation. 

{¶35} Accordingly, we overrule ODJFS’ first, second, and third 

assignments of error. 

{¶36} Having found no error prejudicial to the appellant herein, in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

PRESTON, P.J. and SHAW, J., concur. 

/jlr