{¶ 35} I respectfully dissent from the majority opinion and would reverse the judgment of the common pleas court.
{¶ 36} I agree with the majority that an individual may not obtain unemployment benefits if the employee quits work without just cause. R.C. 4141.29(D)(2)(a). "Just cause" is a justifiable reason for doing or not doing a particular act, and is measured by an ordinarily intelligent person standard. Peyton v. Sun T.V. Appliances (1975), 44 Ohio App.2d 10, 73 O.O.2d 8, 335 N.E.2d 751. "'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.'"Irvine v. Unemp. Comp. Bd. of Review (1985),19 Ohio St.3d 15, 17, 19 OBR 12, 482 N.E.2d 587, quotingPeyton, supra.
{¶ 37} When determining whether an employee quit work without just cause, courts must analyze the particular circumstances of the case in conjunction with the legislative purpose underlying the Unemployment Compensation Act. Id. *Page 756
{¶ 38} As a general rule, employees experiencing problems in their working conditions must notify the employer of the problem, request that it be resolved, and give the employer an opportunity to solve the problem before a court will find just cause for quitting work. King v. State Farm Mut. AutoIns. Co. (1996), 112 Ohio App.3d 664, 669-670,679 N.E.2d 1158. "An employee who resigns before providing her employer with a reasonable opportunity to correct offensive conduct in the workplace risks quitting her employment without just cause."Krawczyszyn v. Ohio Bur. of Emp. Servs. (1989),54 Ohio App.3d 35, 37, 560 N.E.2d 807.
{¶ 39} However, courts do not always require an employee to notify his or her employer if the circumstances justify the employee's choice not to notify the employer of the problem. DiGiannantoni v. Wedgewater AnimalHosp., Inc. (1996), 109 Ohio App.3d 300, 308,671 N.E.2d 1378. For instance, if an employee notifies the employer of a problem and requests that the employer remedy the situation and the employer fails to do so, the employee may be relieved of her duty to further pursue internal remedies. Krawczyszyn, supra.
{¶ 40} Moreover, although R.C.4141.29(D)(2)(a) disqualifies a claimant who "quit his work without just cause" from collecting unemployment compensation benefits, R.C. 4141.46 requires that the unemployment compensation laws be liberally construed in favor of the applicant. See, also, R.C. 4141.46; R.C. 4141.29(J); andVespremi v. Giles (1980), 68 Ohio App.2d 91,22 O.O.3d 102, 427 N.E.2d 30.
{¶ 41} Shortly after beginning work in 1999, Shephard complained of knee problems that required her to take breaks and sit often. In response, she was given two milk crates to use as a chair during any break periods. Although Shephard was able to use the milk crates to sit on during work hours, she refutes any statement that after complaining of a knee injury in 1999, she was given a "chair" to use during working hours. Shephard testified that although she provided her then area manager, Jerry Hauser, with an excuse from Dr. Bilfield in November 2001 requiring two 15-minute breaks, she could only intermittently use the two crates to sit, and could never take scheduled breaks.
{¶ 42} In September 2003, Shephard began having additional medical difficulties and was experiencing severe pain in her foot, which was ultimately diagnosed as a heel spur. After receiving the diagnosis, Shephard informed her area manager, Dawn Swartwood.
{¶ 43} Shephard also testified that she gave Swartwood two letters, one from Dr. Bair and one from Dr. Robson stating that she suffered from heel spurs. Trombley's later testimony supported both this assertion and Shephard's earlier medical complaints when he admitted receiving doctors' statements from Shephard *Page 757 regarding her knee in 2001 and 2002, and regarding her heel in January 2004.
{¶ 44} There have been repeated assertions that either Shephard did not inform her employer of her need for an accommodation or conversely, that when she did inform her employer of a medical need, the request was met with a sufficient accommodation. Upon direct questioning from Trombley at Shephard's hearing, Trombley stated, "And we have told you at times, because it's certainly in writing from your doctor, but even since then, that even though we don't provide a seat per se, the milk crates, which is what most of the employees end up doing anyway, were there for you to take breaks with if you needed them; is that right?" Shephard agreed that the milk crates were there if she needed them, but during the course of her duties, she rarely had a chance to use the crates.
{¶ 45} The record also contains a March 17, 2004 e-mail from Jack Trombley stating, "[Martha] told us she was supposed to stay off of her feet occasionally and we told her she could sit (not allowed by other personnel) whenever she felt it necessary." He also stated that, "[d]espite our willingness to work with Martha, she voluntarily quit."
{¶ 46} Further, in response to the ODJFS's request for information, Trombley stated, "The most recent medical problems appeared to be her foot. She had previously and through most of her time with us, told us about `leg' problems (some documentation in file concerning her knees). We had accommodated her by allowing her to sit as necessary behind the sales counter (not allowed with other employees)."
{¶ 47} While Trombley repeatedly argued that the company would have been willing to help Shephard in any way, in the over four years of her employment and despite receiving several medical reports, Shephard was only offered two milk crates to use as a chair. If such treatment qualifies as "reasonable accommodation," what other indication is there that if Shephard had continued to complain she would have received something greater than milk crates?
{¶ 48} It is also noteworthy that after Shephard filed her claim for workers' compensation, the initial examiner specifically found that Shephard quit her employment due to personal injury/illness. The examiner found that Shephard provided documentation to her employer, that her employer knew of her medical problems, and that Shephard's personal physician had advised her to resign. After making these findings, the examiner determined that Shephard had quit with just cause. Although the majority focuses on the subsequent denials of Shephard's claim, initially, this was not the case. *Page 758
{¶ 49} For these reasons, I believe that Shephard's notification to her employer of her continued medical problems, coupled with her employer's unwillingness to provide her with anything other than a make-shift chair, qualified as a resignation with just cause. I would, therefore, reverse the decision of the trial court.