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Westfall v. Schwan's Sales Enterprises3/8/2000
JUDGMENT: Affirmed
Defendant-appellant John T. Westfall appeals from the June 9, 1999, Nunc Pro Tunc Journal Entry of the Guernsey County Court of Common Pleas dismissing defendant-appellant's statutory appeal from the decision of the Ohio Bureau of Employment Services and, thus, denying appellant's application for unemployment compensation benefits.
STATEMENT OF THE FACTS AND CASE
Commencing on November 10, 1997, appellant John T. Westfall was employed by appellee Schwan's Sales Enterprises. As part of his duties as a warehouse employee, appellant had to pull items out of the freezer at Schwan's to load onto trucks. Because of the cold temperatures in the freezers, appellant wore heavy-duty coveralls when he entered the freezers. On June 11, 1998, as appellant was taking his uniform off after coming out of the freezer, Tom Casper, Schwan's sales manager, "insinuated that I [appellant] must be queer because I wear pink Carhartts." Transcript of Hearing at 22.
According to appellant, Casper said that because appellant was wearing light pink coveralls, appellant must be a "fagot". Transcript of Hearing at 22. The Carhartt coveralls that appellant wore had turned light pink as a result of age and numerous washings. Appellant, who was upset by Casper's comments, finished his shift and asked for a personal leave of absence.
Appellant's request for leave was granted. Appellant admitted that that was the only incident where he had ever had any problem with Casper. Transcript of Hearing at 33. But appellant considered it an insult from which he never received an apology. Transcript of Hearing at 33 and 27. Shortly thereafter, appellant filed a formal grievance with appellee against Tom Casper for sexual harassment. After investigating appellant's grievance, appellee Schwan found that the same lacked merit. Appellee Schwan then notified appellant pursuant to a letter dated July 10, 1998, sent by certified mail that its investigation had found appellant's claims meritless. In such letter, appellant was directed to return to work at his regularly scheduled time by July 15, 1998. Although appellant received the certified letter on July 13, 1998, appellant did not return to work by July 15, 1998. Not only did appellant fail to return to work, but he also did not notify anyone at Schwan's that he was not planning on returning to his previous job because of the alleged sexual harassment. As a result, appellee Schwan discharged appellant on July 20, 1998, for failure to return to work. On August 25, 1998, appellant filed an application for the determination of unemployment compensation rights with the Administrator of the Ohio Bureau of Employment Services. Pursuant to a decision mailed on September 25, 1998, the Administrator of the Ohio Bureau of Employment Services denied appellant's request for unemployment compensation benefits, finding that appellant had been discharged from employment with Schwan's because of excessive absence or tardiness without justification. Appellant then filed a timely request for reconsideration of the September 25, 1998, decision. Pursuant to a decision mailed on October 2, 1998, the Administrator affirmed its earlier determination of September 25, 1998, finding that appellant was discharged for just cause in connection with his work. Thus, appellant was denied unemployment compensation benefits.
Appellant then filed a timely appeal from the Administrator's Reconsideration Decision. Thereafter, a hearing was held on November 2, 1998, before a hearing officer of the Ohio Unemployment Compensation Review Commission. Pursuant to a Decision issued on November 12, 1998, the hearing officer affirmed the Administrator's D
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