K.J. v. Review Board of the Indiana Dept. of Workforce Development and T.N.V.A.H. ( 2012 )

FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Mar 30 2012, 9:37 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TIMOTHY J. VRANA GREGORY F. ZOELLER
Timothy J. Vrana LLC Attorney General of Indiana
Columbus, Indiana
FRANCES BARROW
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
K.J., )
)
Appellant-Claimant, )
)
vs. ) No. 93A02-1106-EX-634
)
REVIEW BOARD OF THE INDIANA )
DEPARTMENT OF WORKFORCE )
DEVELOPMENT and T.N.V.A.H. )
)
Appellees. )
APPEAL FROM THE REVIEW BOARD OF
INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT
Review Board No. 11-R-2445
March 30, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
K.J.1 appeals the Review Board‟s decision to deny her unemployment benefits. We
affirm.
FACTS AND PROCEDURAL HISTORY
On June 29, 2010, K.J. began working for T.N.V.A.H. as a part-time veterinary
assistant. She worked twenty to thirty hours a week, and her job duties included “answering
phones, helping customers, and assisting with animals.” (App. at 3.) Dr. B., the owner of the
T.N.V.A.H., knew K.J. “only had remedial skills as far as veterinary medicine is concerned,”
and hired her because “everybody needs that first opportunity.” (Tr. at 15.)
In August 2010, K.J. and Dr. B. met to discuss K.J.‟s performance on the job. Dr. B.
alerted K.J. to several areas that needed improvement, but K.J.‟s performance did not
improve as time went on. Dr. B. indicated she would often tell K.J. the same information
1
The concurring opinion relies on Recker v. Review Bd. of Ind. Dep’t of Workforce Dev., 958 N.E.2d 1136,
1139 n.4 (Ind. 2011), in concluding we should use the full names of the parties in this appeal. In Recker, our
Indiana Supreme Court read Ind. Code § 22-4-19-6(b) and Ind. Administrative Rule 9(G) to require the use of
initials to identify the parties in court proceedings open to the public involving the Department of Workforce
Development only when one of the parties has made an affirmative request for the confidentiality of that
information. However, we note Admin. R. 9(G)(1.2) reads, in its entirety:
During court proceedings that are open to the public, when information in case records that is
excluded from public access pursuant to this rule is admitted into evidence, the information
shall remain excluded from public access only if a party or a person affected by the release of
the information, prior to or contemporaneously with its introduction into evidence,
affirmatively requests that the information remain excluded from public access.
As an appellate court, we do not conduct trials or evidentiary hearings and thus we do not admit information in
the record “into evidence.” Therefore, we do not see how Admin. R. 9(G)(1.2) can be used at the appellate
level to justify the disclosure of the parties‟ identities in unemployment cases on appeal.
In addition, in the more recent case of Chrysler Group, LLC v. Review Bd. of Ind. Dep’t of Workforce
Dev., 960 N.E.2d 118, 121 n.1 (Ind. 2012), our Indiana Supreme Court elected to identify the individual
claimant by initials, while deciding to identify the employer in that case by name. Absent amendment of the
relevant provisions of Admin. R. 9 by our Indiana Supreme Court, we will adhere to the complete language of
the rule and continue to use initials in unemployment cases.
2
multiple times, only to have K.J. ask a question as if she had not received the information
previously. K.J. and Dr. B. both testified to an incident in which K.J. almost sent a customer
home with the wrong kind of insulin for an animal, and Dr. B. reprimanded K.J. in front of
that customer.
K.J. was given a written disciplinary notice for misfiling a check that should have
been deposited. K.J. was also verbally disciplined for neglecting to help Dr. B. with an
animal. On one occasion K.J. asked Dr. B. if a diabetic cat would need insulin while being
boarded at the T.N.V.A.H., and Dr. B. responded, “Why wouldn‟t he?” (App. at 4.)
Finally, Dr. B. testified she repeatedly had told K.J. where the bathroom key was, and
when K.J. asked again about its location, Dr. B. told her to try to remember. The Review
Board noted, “[K.J.] erroneously believed that she would not be allowed to use the restroom
until she remembered where the key was. The facility had another restroom that [K.J.] could
have used.” (Id.)
K.J. voluntarily terminated her employment on October 25, 2010, and her last day was
November 6. K.J. filed for unemployment and was denied compensation. K.J. appealed the
initial determination, and an Administrative Law Judge (ALJ) reversed the decision to deny
K.J. compensation, finding K.J. left employment because she “reasonably believed that she
was being mentally abused.” (Id. at 3.) T.N.V.A.H. appealed, and the Review Board
reversed the ALJ‟s decision, finding K.J. “voluntarily left the employment without good
cause in connection with the work.” (Id. at 4.)
3
DISCUSSION AND DECISION
Our standard of review regarding the Review Board‟s decision to grant or deny
unemployment benefits is well-settled:
When reviewing a decision by the Review Board, our task is to determine
whether the decision is reasonable in light of its findings. Our review of the
Review Board‟s findings is subject to a “substantial evidence” standard of
review. In this analysis, we neither reweigh the evidence nor assess witness
credibility, and we consider only the evidence most favorable to the Review
Board‟s findings. Further, we will reverse the decision only if there is no
substantial evidence to support the Review Board‟s findings.
Quakenbush v. Review Bd. of Ind. Dep’t of Workforce Dev., 891 N.E.2d 1051, 1054 (Ind. Ct.
App. 2008) (citation omitted).
When an individual voluntarily leaves her employment “without good cause in
connection with the work,” she may not receive unemployment compensation benefits.
Ind.Code § 22–4–15–1(a). Whether an employee leaves her employment without good cause
in connection with the work is a question of fact to be determined by the Review Board.
Indianapolis Osteopathic Hosp. Inc. v. Jones, 669 N.E.2d 431, 433 (Ind. Ct. App. 1996).
The claimant has the burden to show that she voluntarily left employment for good cause in
connection with the work. Id. She must show that the reasons for leaving the employment
were “objectively related to the employment” and would “impel a reasonably prudent person”
to behave likewise. Id. “Good cause” does not include “purely personal and subjective
reasons which are unique to the employee.” Geckler v. Review Bd., 244 Ind. 473, 477-78,
193 N.E.2d 357, 359 (1963).
4
The Review Board found:
[K.J.] voluntarily left the employment without good cause in connection with
the work. [K.J.]‟s issues regarding self-confidence and low self-esteem are not
related to the employment. [K.J.] was overly sensitive to [Dr.B‟s] corrections.
A reasonably prudent person would not have left the employment for the
reasons offered by [K.J.].
(App. at 4.) K.J. does not dispute the findings of fact that underlie this ultimate finding, and
both parties agree the employer reprimanded K.J. and discussed with K.J. that her work
performance needed to improve. K.J. argues the Review Board erred because a reasonably
prudent person in her situation would have voluntarily terminated employment. Her
argument is an invitation to reweigh the evidence, which we cannot do. See Quakenbush,
891 N.E.2d at 1054 (appellate court may not reweigh the evidence presented to Review
Board). Accordingly, we affirm the decision of the Review Board.
Affirmed.
CRONE, J., concurs.
BROWN, J., concurs with separate opinion.
5
IN THE
COURT OF APPEALS OF INDIANA
K.J., )
)
Appellant-Claimant, )
)
vs. ) No. 93A02-1106-EX-634
)
REVIEW BOARD OF THE INDIANA )
DEPARTMENT OF WORKFORCE )
DEVELOPMENT and T.N.V.A.H. )
)
Appellees. )
BROWN, Judge, concurring.
I fully concur in the majority‟s reasoning and result, but I write separately to express
my disagreement with the panel‟s use of initials to identify the Appellant-Claimant. The
Indiana Supreme Court recently examined the applicability of the confidentiality
requirements prescribed in Ind. Code § 22-4-19-6(b) to judicial proceedings in Recker v.
Review Bd. of Ind. Dep‟t of Workforce Dev., 958 N.E.2d 1136, 1139 n.4 (Ind. 2011). In
Recker, the Court noted that, although the decisions of the ALJ and the Review Board “were
each expressly labeled as a „Confidential Record‟ pursuant to Indiana Code Section 22-4-19-
6,” the “Appellant‟s Appendix filed by the employee was not so labeled, and it disclosed her
full name.” 958 N.E.2d at 1139 n.4. Although the claimant was identified only by her
6
initials in the briefs, the briefs revealed the identity of Recker‟s employer. Id. After reciting
these facts, the Court stated:
Neither the claimant, the employer, nor the Review Board, made any
affirmative request pursuant to Administrative Rule 9(G)(1.2)[2] to continue
the exclusion from public access the identities and information confidential
under the statute and rule. Pursuant to Administrative Rule 9(G)(1.2), in light
of the absence of an affirmative request for continued confidentiality of the
identities of the employee and the employing entity, we fully identify the
parties.
Id.
Here, similar to Recker, although the decisions of the ALJ and the Review Board were
identified as a Confidential Record pursuant to Indiana Code Section 22-4-19-6, the
Appellant-Claimant used her full name both on the cover page and throughout the body of
both her appellant and reply briefs, as well as on the cover of her appellant‟s appendix. Also,
her briefs identified the full name of the employer in the matter. Accordingly, pursuant to the
Indiana Supreme Court‟s dictates in Recker and in light of the absence of an affirmative
request for continued confidentiality of the identities of the employee and employing entity, I
would fully identify the parties.
2
The Court in Recker noted that Ind. Code § 22-4-19-6(b)‟s confidentiality requirement “is expressly
implemented as to judicial proceedings by Indiana Administrative Rule 9(G)(1)(b)(xviii).” 958 N.E.2d at 1139
n.4. The Court also stated:
The rule further provides, however, that when information excluded from public access is
presented in court proceedings open to the public, “the information shall remain excluded
from public access only if a party or a person affected by the release of the information, prior
to or contemporaneously with its introduction into evidence, affirmatively requests that the
information remain excluded from public access.” Adm. R. 9(G)(1.2) (emphasis added).
Id.
7
Moreover, I do not read note 1 in Chrysler Grp., LLC v. Review Bd. of Ind. Dep‟t of
Workforce Dev., 960 N.E.2d 118 (Ind. 2012), as lessening the import of the Court‟s
statements in Recker.3 The Court in Chrysler merely highlighted that, although Ind. Code §
22-4-19-6 was applicable to the claimants including Chrysler, the briefs and counsel at oral
argument identified Chrysler by its full name, and it noted that although there was “little
merit” in concealing Chrysler‟s identity, it would “continue to identify the individual
claimants–if necessary to name them–by their initials.” Chrysler, 960 N.E.2d at 121 n.1.
Also, the Court in Chrysler did not note whether a request was made for continued
confidentiality of the identities of the parties.
For these reasons I would identify by full names the Appellant-Claimant and the
employer herein.
3
I note that the Recker decision was issued only three weeks prior to the Court‟s decision in Chrysler.
8