Kathleen Burnell v. Review Board of the Indiana Department of Workforce Development (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 15, 2015
• Docket: 93A02-1505-EX-260
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Sep 15 2015, 9:09 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Amy Andreas Gregory F. Zoeller Abhishek Chaudhary Attorney General of Indiana Indiana Legal Services, Inc. Indianapolis, Indiana Frances Barrow Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kathleen Burnell, September 15, 2015 Appellant, Court of Appeals Cause No. 93A02-1505-EX-260 v. Appeal from the Review Board of the Department of Workforce Review Board of the Indiana Development Department of Workforce Steven F. Bier, Chairperson Development, George H. Baker, Member Lawrence A. Dailey, Member Appellee. Review Board Case No. 15-R-633

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-260 | September 15, 2015 Page 1 of 6 Case Summary [1] Kathleen Burnell1 appeals the determination of the Review Board of the

Indiana Department of Workforce Development (“Review Board”) to deny her

claim for unemployment benefits. We affirm.

Issue [2] Burnell raises one issue, which we restate as whether the Review Board’s

decision that Burnell voluntarily left her employment without good cause in

connection with the work is reasonable.

Facts [3] Beginning on April 15, 2013, Burnell was employed as a bartender/server at a

golf club/restaurant. On May 17, 2013, Burnell complained to the club

manager about a verbal altercation with another employee. According to K.B,

the manager said, “this isn’t working out” and “maybe you should start looking

for another job.” Tr. p. 8. The manager denied telling her that she should start

looking for another job. The manager then left, and Burnell went to the

bathroom, where she staying crying for several hours. The manager then asked

someone to send Burnell home. The next day, Burnell did not report to start

1 Burnell used her full name in her briefs and waived her right to keep her identity confidential. See Ind. Administrative Rule (9)(G)(6).

Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-260 | September 15, 2015 Page 2 of 6 her shift. She called the manager twice and left messages for him because she

“didn’t want to be charged for the uniform . . . .” Id. at 9.

[4] Burnell applied for unemployment benefits and, on December 9, 2013, a claims

deputy determined that Burnell was not entitled to benefits because she

voluntarily left her employment without good cause in connection with the

work. Burnell appealed that determination, and a hearing was held before an

administrative law judge (“ALJ”) in January 2014. The ALJ affirmed the

claims deputy’s decision, and Burnell appealed to the Review Board. The

Review Board vacated the ALJ’s decision and remanded for a new hearing

before a different ALJ.

[5] A second hearing was held in March 2015. The new ALJ also affirmed the

claims deputy’s decision and concluded that Burnell “voluntarily quit her

employment without good cause in connection to the work.” App. p. 4.

Burnell appealed to the Review Board, which adopted and incorporated the

ALJ’s findings of fact and conclusions of law with one modification. The

Review Board affirmed the ALJ’s decision as modified. Burnell now appeals.

Analysis [6] Burnell appeals the Review Board’s determination that she voluntarily

terminated her employment without good cause. The Review Board’s decision

is conclusive and binding as to all questions of fact. Ind. Code § 22-4-17-12(a).

On appeal, the standard of review is threefold: (1) findings of basic fact are

reviewed for substantial evidence; (2) findings of mixed questions of law and

Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-260 | September 15, 2015 Page 3 of 6 fact—ultimate facts—are reviewed for reasonableness; and (3) legal

propositions are reviewed for correctness. Recker v. Review Bd. of Ind. Dep’t of

Workforce Dev., 958 N.E.2d 1136, 1139 (Ind. 2011). When reviewing findings of

basic fact, we neither reweigh the evidence nor judge the credibility of

witnesses. J.M. v. Review Bd. of Ind. Dep’t of Workforce Dev., 975 N.E.2d 1283,

1286 (Ind. 2012). Rather, we consider only the evidence most favorable to the

Review Board’s findings, and we reverse only if there is no substantial evidence

to support the findings. Id. Ultimate facts are facts that “involve an inference

or deduction based on the findings of basic fact.” Recker, 958 N.E.2d at 1139.

Where such facts are within the “special competence of the [Review] Board,”

we will give greater deference to the Review Board’s conclusions, broadening

the scope of what can be considered reasonable. Id.

[7] The purpose of the Unemployment Compensation Act is to provide benefits to

those who are involuntarily out of work, through no fault of their own, for

reasons beyond their control. Davis v. Review Bd. of Ind. Dep’t of Workforce Dev.,

900 N.E.2d 488, 492 (Ind. Ct. App. 2009). An employee who has voluntarily

left his or her employment without good cause in connection with the work is

ineligible for unemployment benefits. I.C. § 22-4-15-1(a). The question of

whether an employee quit without good cause is a question of fact to be

determined by the Review Board. S.A. v. Review Bd. of Ind. Dep’t of Workforce

Dev., 936 N.E.2d 336, 337 (Ind. Ct. App. 2010). The claimant has the burden

to prove that good cause existed. Id. The reason for quitting must be job-

Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-260 | September 15, 2015 Page 4 of 6 related and objective in character, excluding purely subjective and personal

reasons. Id. at 337-38.

[8] Burnell challenges the Review Board’s finding of the ultimate fact that she

voluntarily terminated her employment without good cause, thus disqualifying

her from receiving benefits pursuant to Indiana Code Section 22-4-15-1(a). See

McClain v. Review Bd. of Indiana Dep’t of Workforce Dev., 693 N.E.2d 1314, 1318

(Ind. 1998). Burnell argues that she was fired from her employment, and the

manager testified that Burnell was not fired, rather that she quit. The ALJ

found the employer’s testimony more credible and found that Burnell’s actions

on the evening in question “do not make sense for someone who believed that

they had been discharged.” App. p. 4. Burnell’s argument is merely a request

to reweigh the evidence, which we cannot do. The evidence most favorable to

the ALJ’s findings, which the Review Board adopted, is that after the manager

suggested that Burnell’s employment was not “working out” and “maybe [she]

should start looking for another job,” Burnell stayed in the restroom for several

hours. Tr. p. 8. The next day, she did not go to work for her scheduled shift

and called a couple of times about returning her uniform. Burnell did not

clarify the manager’s comments and simply did not return to work. The

manager reasonably believed that Burnell had quit her employment when she

did not show up for her next shift. The Review Board’s determination that

Burnell voluntarily terminated her employment without good cause is

reasonable.

Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-260 | September 15, 2015 Page 5 of 6 Conclusion [9] The Review Board’s denial of Burnell’s unemployment benefits is reasonable.

We affirm.

[10] Affirmed.

Kirsch, J., and Najam, J., concur.

Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-260 | September 15, 2015 Page 6 of 6