Lippert v. Lumpkin

Citation2010 ohio 5809
Decision Date29 November 2010
Docket NumberCASE NO. CA2010-01-004
PartiesCHARLES LIPPERT, Plaintiff-Appellant, v. DOUGLAS E. LUMPKIN, et al., Defendants-Appellees.
CourtUnited States Court of Appeals (Ohio)

2010 ohio 5809

CHARLES LIPPERT, Plaintiff-Appellant,
DOUGLAS E. LUMPKIN, et al., Defendants-Appellees.

CASE NO. CA2010-01-004


DATED: November 29, 2010


Case No. CV2009-03-1299

Charles Lippert, appellant, pro se

Richard Cordray, Ohio Attorney General, Robin A. Jarvis, for Douglas Lumpkin and Department of Job & Family Services,


{¶1} Plaintiff-appellant, Charles Lippert, appeals the decision of the Butler County Court of Common Pleas in an unemployment compensation action.

{¶2} On May 24, 2004, appellant began working for Excel Direct, Inc. as an operations manager. Appellant regularly worked Sunday through Thursday. On Monday through Thursday, appellant worked either an opening shift from 6:30 a.m. to 2:00 p.m. or a closing shift from 10:00 a.m. to 5:30 p.m. On Sundays, appellant would report to Excel at

Page 2

6:00 a.m. to open the facilities, but would leave the job site for the remainder of the day to work from home and monitor the employer's drivers via phone until 5:30 p.m. Appellant testified that working from home allowed him to also perform nonwork-related tasks. Appellant noted that following his divorce he had custody of his children, irregularly attended church, and was involved in a study group on Sundays.

{¶3} On July 3, 2008, appellant and his co-workers were notified that Excel planned to modify the employee work schedules due to changing client demands. On August 1, 2008, appellant received an email detailing his new schedule. Appellant's weekday schedule primarily remained intact, but appellant was expected to be at Excel's facilities from 6:30 a.m. until 6:30 p.m. on Sundays. That day, appellant had a conversation with his supervisor regarding the new schedule. He informed the supervisor that he would not work according to the new Sunday schedule. On August 3, 2008, appellant sent his supervisor an email stating that he would continue to work under his previous schedule, but not work the new Sunday schedule. Appellant concluded, "If necessary, let me know when to expect my last day of employment."

{¶4} Through the first several weeks of August 2008, appellant refused to work the new schedule. Although appellant was away from work during some of that time due to a scheduled vacation, he failed to report to work on several Sundays after Excel implemented the schedule change and another manager had to work in appellant's place. Based upon his continuing refusal to work the schedule assigned to him, appellant was discharged by Excel on August 20, 2008.

{¶5} Appellant filed for unemployment benefits with defendant-appellee, director of the Ohio Department of Jobs and Family Services, on August 26, 2008. The ODJFS denied appellant's application for benefits. Appellant appealed the determination and the matter was referred to the review commission. Following a hearing, the review commission affirmed the

Page 3

denial, concluding that appellant was discharged by Excel for just cause. Appellant appealed to the Butler County Court of Common Pleas and the decision was affirmed. Appellant now appeals to this court, raising two assignments of error. We will address appellant's assignments of error out of order.

{¶6} Assignment of Error No. 2:


{¶8} In his second assignment of error, appellant contends his termination and denial of unemployment benefits violates his First Amendment right to the free exercise of religion.

{¶9} The Free Exercise Clause of the First Amendment bans laws "prohibiting the free exercise" of religion, and applies to the states via the Fourteenth Amendment. Further, Section 7, Article I of the Ohio Constitution provides that "[a]ll men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience."

{¶10} The state's denial of unemployment benefits to a claimant following termination for actions directly related his or her religion are governed by the test articulated by the United States Supreme Court in Sherbert v. Verner(1963), 374 U.S. 398, 83 S.Ct. 1790, and adopted by the Ohio Supreme Court in State v. Schmidt (1987), 29 Ohio St.3d 32. "The test is first, whether a defendant's religious beliefs are sincerely held; second, whether the regulation at issue infringes upon a defendant's constitutional right to freely engage in the religious practices; and third, whether the state has demonstrated a compelling interest for enforcement of the regulation and that the regulation is written in the least restrictive means." State v. Blackmon (1998), 130 Ohio App.3d 142, citing Sherbert, 374 U.S. at 403-407, and Schmidt, 29 Ohio St.3d at 34. See, also, Note, The Best of a Bad Lot: Compromise and Hybrid Religious Exemptions (2010), 123 Harv.L.Rev. 1494, 1496-1497; Wiles, Have American Indians Been Written Out of the Religious Freedom Restoration Act (2010), 71

Page 4

Mont.L.Rev. 471, 475-478.

{¶11} The extent of appellant's evidence relating to his First Amendment free exercise of religion claim is a single statement offered to the review commission referee. Appellant testified, "I'm not going to sit here and say I go to church every week. I don't, but I did go to church irregularly [on Sundays]." Appellant argues the revised Sunday schedule impermissibly interfered with his ability to attend church on Sundays in violation of the free exercise clause and, as a result, he is entitled to unemployment compensation.

{¶12} After review of the record, we cannot say based upon this minimal evidence that appellant was terminated in violation of the free exercise clause. Appellant has failed to submit sufficient evidence to support a claim under the Sherbert standard. Specifically, appellant offers no evidence addressing the sincerity of his beliefs or describing how the work schedule infringes upon his constitutional right to freely engage in his religion, other than stating that he irregularly attends church on Sunday. There is no evidence in the record describing the tenets of appellant's religion, the sincerity of his religious beliefs, whether Sunday church service is integral to his religious practices, or if no alternative means of worship are available such as services only being offered during his working hours on Sunday. See Blackmon at 149.

{¶13} Moreover, there is no indication that appellant informed Excel that the new schedule would interfere with his religious practices. Dupuy v. Ohio Bur. of Emp. Serv., Franklin App. No. 98AP-1376, 1999 WL 771068. Rather, when specifically asked if he ever informed Excel that he could not work the revised Sunday schedule due to religious reasons, appellant responded that he could not recall telling his employer. "An employee's failure to inform his employer of his religious needs and to assist in the accommodation process may be fatal to the right of the employee to have his beliefs accommodated by his employer and may constitute a waiver of such right." Dupuy at *5, citing Shapiro-Gordon v. MCI

Page 5

Telecommunications Corp. (S.D.N.Y.1993), 810 F.Supp. 574, 579.

{¶14} Accordingly, we will not find a violation of the free exercise clause based upon the de minimis evidence offered by appellant. Appellant's second assignment of error is overruled.

{¶15} Assignment of Error No. 1:


{¶17} In his first assignment of error, appellant challenges the finding of "just cause" for his termination. Appellant primarily contends that he had an agreement with Excel allowing him to work from home on Sundays. Appellant argues that the change in schedule, requiring him to work on-site on Sundays, was substantial and his failure to accept the new schedule did not amount to "just cause" for his discharge.

{¶18} The standard of review in unemployment-compensation appeals is well established. A reviewing court may reverse the board's determination only if it is unlawful, unreasonable, or against the manifest weight of the evidence. Geretz v. Ohio Dept. of Job & Family Servs., 114 Ohio St.3d 89, 2007-Ohio-2941, ¶10, citing Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Servs., 73 Ohio St.3d 694, 697, 1995-Ohio-206. "[W]hile appellate courts are not permitted to make factual findings or to determine the credibility of witnesses, they do have the duty to determine whether...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT