# Lee v. Nick Mayer Lincoln

> Ohio Court of Appeals · May 28, 1991 · 74 Ohio App. 3d 306

URL: https://www.frixlaw.com/law-library/cases/3766561

## Case

- **Full name:** LEE, Appellant, v. NICK MAYER LINCOLN Et Al., Appellees
- **Court:** Ohio Court of Appeals
- **Decided:** May 28, 1991
- **Citations:** 74 Ohio App. 3d 306; 598 N.E.2d 1238; 1991 Ohio App. LEXIS 2295
- **Precedential status:** Published
- **Opinion:** Dissent by Blackmon
- **Judges:** Dyke, Nahra, Blackmon
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3766561

## Opinion text

Patricia A. Blackmon, Judge,
dissenting.
Being unable to agree with the majority opinion, I respectfully dissent. Under the circumstances herein, I would find that the standard set forth in
In re Krug
(Aug. 23, 1977), Franklin App. No. 77-AP-266, unreported, applies to the facts of this case. Therefore, appellant was incapable of performing his job and the decision to deny unemployment compensation benefits is incorrect.
The dispositive question in this case is whether appellant was discharged for just cause. The court in
Krug
held that the proper test as to “just cause” for discharge is whether the discharge was due to the culpability of the employee, or for circumstances beyond the control of the employee. Further, the court held that an employee is not at fault when the employee is incapable of performing a job because of a lack of skill or aptitude. Finally, the court decided that “while a lack of effort or an unwillingness to conform to the rules of the employer is just cause for a denial of benefits, incapability is not.”
Id.
In the case
sub judice,
appellant argued that he was incapable of performing at the pace required by his employer. However, the majority was not persuaded by this reasoning and urged that appellant had failed to accept his employer’s offer of assistance. The majority holds that appellant’s failure to
*312
learn to read and his refusal of assistance from his coworkers constituted a lack of effort to take reasonable steps to maintain his employment. The majority concludes that the burden of proof was on appellant to establish that he could not learn to read or that the coworkers’ offer of help would not have made a difference. Therefore, having failed to sustain his burden of proof, appellant is not entitled to benefits and was discharged for just cause.
However, in the
Krug
case the court held that just cause must be construed from the standpoint of the employee. In this case, appellant did not refuse to do his job nor did he refuse to follow his employer’s rules. Appellant argued that the industry had changed and he could no longer function at the pace required. Therefore, appellant’s nonacceptance of the employer’s offer of assistance, taken as a whole, was at best relevant only as continuing evidence of appellant’s incapability of performing in an industry that had surpassed him.
The testimony of the employer established that appellant had been in its employ since 1980. He was discharged for poor workmanship and inability to perform in 1988. Appellant painted automobiles from 1942 to 1986 without difficulty, but these allegations of inability to perform did not surface until 1986. Prior to 1986, appellant was disciplined once, for a matter unrelated to his subsequent discharge in 1988. During the first six years of his employment, appellant’s ability to perform or to read was not called into question. In 1986, the industry underwent substantial changes. It is my opinion that
BUT FOR
these changes in the industry, appellant’s ability would not have been called into question.
Nevertheless, the majority fails to recognize the significance of the industry changes, appellant’s over forty years in the industry, and appellant’s age, which was over sixty years. The majority, however, decides to place great emphasis on appellant’s inability to read. This preoccupation with appellant’s inability to read and refusal to learn to read is misplaced, but understandable. Clearly, when one is given the opportunity to learn to read, the failure to accept is unwise. However, that nonacceptance should be perceived as a failure in judgment, not a willful disregard of a job responsibility or a violation of an employer’s rules.
Therefore, in applying the standard set forth in
Krug,
the discharge of appellant was without just cause, when viewed from the standpoint of appellant’s age, his inability to function at the pace required, and the changes in the industry. These factors demonstrate that appellant was not at fault and that his inability to perform was due to circumstances beyond his control.
Accordingly, I would sustain the assignment of error and reverse the judgment of the trial court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3766561. Public record. Not legal advice.