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Barno v. Director, ODJFS

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 29, 2018

PATRICK BARNO PLAINTIFF-APPELLANT
v.
DIRECTOR, ODJFS, ET AL. DEFENDANTS-APPELLEES

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-844729

          ATTORNEYS FOR APPELLANT Kenneth J. Kowalski Cleveland Marshall Civil Litigation Clinic Doron M. Kalir Cleveland Marshall Civil Litigation Clinic Cleveland Marshall College of Law

          ATTORNEYS FOR APPELLEES Mike DeWine Ohio Attorney General Laurence R. Snyder Assistant Attorney General For Great Lakes Water Treatment, Inc. Great Lakes Water Treatment, Inc.

          BEFORE: Blackmon, J., Boyle, P.J., and Keough, J.

          JOURNAL ENTRY AND OPINION

          PATRICIA ANN BLACKMON, JUDGE

         {¶1} Patrick Barno ("Barno") appeals from the trial court's affirming the denial of his application for unemployment benefits in this administrative appeal and assigns the following errors for our review:

I. The Review Commission Hearing Officer's Decision is unlawful because it either ignored or misstated the law of Ohio on a number of important issues.
II. The Decision of the Review Commission is erroneous in that it is unreasonable and against the manifest weight of the evidence.

         {¶2} Having reviewed the record and pertinent law, we reverse the decision and remand to the trial court. The apposite facts follow.

         {¶3} On February 17, 2014, Barno began working for Great Lakes Water Treatment ("GLWT") as an "in-store lead generator." Barno was stationed at a Home Depot, where he signed up customers for an in-home demonstration of GLWT's water purification system. GLWT instructed Barno to tell customers that, as an incentive, they would receive a $20 Home Depot gift card upon completion of the demonstration.

         {¶4} According to Barno, when he was hired, GLWT explained the weekly marketing bonus he would receive, starting at $2 for each lead that resulted in a demonstration and $25 for each lead that resulted in a sale. Barno's understanding was that the marketing bonus increased based on the number of demonstrations and sales generated on a weekly basis. Although GLWT did not give Barno any written documentation of the company's commission structure at the time Barno was hired, or at any other time during Barno's employment, Barno took notes during his interview, which reflect the following:

$2.00 for first 2 leads - confirmed
$3.00 for each after that
$25.00 per system sale for first sold
$50.00 per system sale for second sold
$100.00 per system sale 3rd sale
$150.00 up from there
paid weekly

         {¶5} On April 22, 2014, Barno notified his manager, Brian Hlavac ("Hlavac"), of two issues he was having regarding "shortages" in his paychecks. First, Barno complained that he was not paid for four hours that he worked. On April 28, 2014, Barno followed up with a letter to Hlavac requesting that this issue be corrected. Hlavac determined that the hours Barno worked were miscalculated and corrected the issue.

         {¶6} Second, Barno complained to Hlavac that his paychecks were "short on commissions." Barno first became aware that one of his leads turned into a sale when the customer came back into Home Depot to complain about his new water system. According to Barno, he was never paid his marketing bonus for this sale. Barno also identified one other sale for which he was allegedly never paid. According to Barno, GLWT had no record-keeping system to inform its employees of the disposition of their leads. When Barno notified Hlavac about the missing bonuses, Hlavac said they "would show up on the check."

         {¶7} Barno experienced "issues weekly" regarding unpaid or underpaid bonuses, and "[n]early every Tuesday he complained to Mr. Hlavac that his check did not appear to include bonuses for sales of the water purification systems." Hlavac typically responded that he was "going to look into it." Ultimately, however, GLWT did nothing in response.

         {¶8} Additionally, Barno began to question the ethical practices of GLWT. For example, a customer who purchased GLWT's water purification system returned to Home Depot "livid" and asked to cancel his contract. Barno called Hlavac, who instructed Barno to tell the customer to continue calling GLWT's office. According to Barno, "GLWT would screen incoming calls with Google Voice and likely not answer." Furthermore, other customers returned to Home Depot to complain about the high-pressure sales pitch and that they never received their promised $20 Home Depot gift cards. According to Barno, Hlavac said in response, "yes I know they call and call, " ...


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