East Wind Acupuncture, Inc. v. Review Board of the Indiana Department of Workforce Development and Elly A. Lesnick

FILED
Feb 24 2017, 8:56 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Nicholas A. Snow Curtis T. Hill, Jr.
Harris Law Firm, P.C. Attorney General of Indiana
Crown Point, Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
Patrick B. McEuen
McEuen Law Office
Portage, Indiana
IN THE
COURT OF APPEALS OF INDIANA
East Wind Acupuncture, Inc., February 24, 2017
Appellant, Court of Appeals Case No.
93A02-1608-EX-1790
v. Appeal from the Review Board of
the Department of Workforce
Review Board of the Indiana Development
Department of Workforce Case Number: 16-R-884
Development and Elly A.
Lesnick,
Appellees.
Najam, Judge.
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Statement of the Case
[1] East Wind Acupuncture, Inc. (“East Wind”) appeals the decision of the Review
Board of the Indiana Department of Workforce Development (“Review
Board”) to award unemployment insurance benefits to Elly Lesnick, a former
employee of East Wind.1 East Wind raises two issues for our review:
1. Whether the Review Board abused its discretion when it
declined to consider additional evidence East Wind had
attempted to submit to it.
2. Whether the Review Board’s judgment is supported by
sufficient evidence.
[2] We affirm.
Facts and Procedural History
[3] The findings of fact as determined by the ALJ are as follows:
[Lesnick] worked for [East Wind] from November[] 2010
through March 9, 2016. [East Wind] was an acupuncture, yoga,
and Chinese medicine facility. [Lesnick] worked 25 hours per
week as a case manager and yoga instructor. [Lesnick] quit due
to working conditions.
1
The parties identify themselves and refer to each other by name in the documents and briefs they have filed
with this court. As we have recognized, when a party in an unemployment insurance benefits appeal uses its
own name in documents filed with this court “it has waived the right to have its name excluded from the
court record.” Advanced Correctional Healthcare, Inc. v. Review Bd. of Ind. Dep’t of Workforce Dev., 27 N.E.3d 322,
324 n.1 (Ind. Ct. App. 2015); see Ind. Administrative Rule 9(G)(6)(a)(i).
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On Wednesday, November 24, 2015, [East Wind’s] owner,
[Laura Zaranski,] directed [Lesnick] to help her train another
employee. [Lesnick] was working on placing a patient in an
exam room and did not give her attention to [Zaranski].
[Zaranski] began screaming at [Lesnick] that [Lesnick] was not
doing her job. [Lesnick] requested [Zaranski to] stop yelling at
[Lesnick] or send [Lesnick] home. [Zaranski] sent [Lesnick]
home.
On February 25, 2016, [Lesnick] had a physical therapy
appointment [for herself] but was scheduled to come into work at
11 a.m. When [Lesnick] did not report to work on time,
[Zaranski] texted [Lesnick] several times about coming . . . to
work. When [Lesnick] did not respond, [Zaranski] called
[Lesnick]. [Zaranski] screamed at [Lesnick] over the phone
about other employees not coming into work that day and hung
up. [Zaranski] called [Lesnick] back and screamed at [Lesnick]
about coming into work. [Lesnick] went into work. [Lesnick]
spoke to [Zaranski] that day in an attempt to tell [Zaranski] that
she did not want [Zaranski] to scream at her. [Zaranski] stated
that that was the way she communicated.
On March 9, 2016, [Lesnick] and [Zaranski] had a discussion
about the amount of time [East Wind] had approved [Lesnick] to
take off for a physical therapy appointment scheduled for March
10, 2016. During this conversation, [Zaranski] screamed at
[Lesnick], “I don’t care what the fuck you do.” [Zaranski]
acknowledged that she yelled this at [Lesnick] but asserted that
she was frustrated because [Lesnick] had repeatedly violated
[East Wind’s] instructions regarding her attendance. [Lesnick]
was agitated during this conversation[] but did not yell.
[Lesnick] quit on March 14, 2016, citing [Zaranski’s] repeated[]
screaming at her as the reason for her quitting.
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Tr. Vol. 3 at 15-16.2
[4] In light of those findings, the ALJ concluded in relevant part as follows:
“It is not the purpose of the Unemployment Security Act for
employees to merely terminate their employment merely because
working conditions are not entirely to their liking.” Marozsan v.
Review Board of Indiana Employment Sec. Div., 429 N.E.2d 986, 990
(Ind. Ct. App. 1982). However, poor working conditions can
constitute good cause in connection with work for leaving
employment “when the demands placed upon employees are
unreasonable or unfair so much so that a reasonably prudent
person would be impelled to leave.” Id.
[Lesnick] voluntarily left employment, citing poor working
conditions. [Lesnick] quit because [Zaranski] repeatedly
screamed at her about work related issues. On February 25,
2015, 2 weeks before [Lesnick] quit, [Lesnick] asked [Zaranski]
to stop screaming at her when she was discussing work related
issues. This constituted a good faith effort on [Lesnick’s] part to
resolve the issue that later caused her to quit. Furthermore, this
was a reasonable request on [Lesnick’s] part. [Zaranski] did not
agree to resolve the issue; she merely stated that that was the way
she communicated.
Two weeks later, when [Lesnick] and [Zaranski] were discussing
an attendance issue, [Zaranski] screamed at [Lesnick], “I don’t
care what the fuck you do.” [Zaranski] asserted that she yelled
this at [Lesnick] because she was frustrated with [Lesnick]
repeatedly failing to follow [East Wind’s] instructions regarding
2
East Wind’s statement of facts in its brief is not in accordance with our standard of review and, therefore, is
contrary to Indiana Appellate Rule 46(A)(6)(b). On the other hand, we appreciate the State’s inclusion of
citations to the transcript in its quotations from the ALJ’s order in its brief.
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her attendance. Frustration over this type of issue is
understandable[] but did not justify [Zaranski] repeatedly
screaming at [Lesnick] after [Lesnick] had requested that she
stop. These conditions were sufficiently unreasonable and unfair
that a reasonably prudent person would be compelled to leave the
employment. The [ALJ] concludes that [Lesnick] voluntarily left
employment for good cause in connection with work . . . .
Id. at 16-17.
[5] East Wind appealed the ALJ’s judgment to the Review Board. In appealing to
the Review Board, East Wind attempted to submit “[a]dditional enlightening
accounts from other staff present during the three dated incidences [sic] listed in
the ‘Findings of Facts’” on the grounds that those documents were “necessary
to understand that [Lesnick] fabricated stories, bent truths[,] and conjured up
her resignation letter only to support her attempt to undeservedly receive
unemployment benefits.” Appellant’s App. Vol. II at 2. The Review Board
rejected East Wind’s attempt to submit the additional evidence and expressly
adopted and affirmed the ALJ’s judgment. This appeal ensued.
Discussion and Decision
Issue One: Review Board’s Denial of East Wind’s
Request to Submit Additional Evidence
[6] We first consider East Wind’s argument on appeal that the Review Board erred
when it denied East Wind’s attempt to submit additional evidence to the
Review Board. The Indiana Administrative Code provides:
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Each hearing before the review board shall be confined to the
evidence submitted before the administrative law judge unless it
is an original hearing. Provided, however, the review board may
hear or procure additional evidence upon its own motion, or
upon written application of either party, and for good cause
shown, together with a showing of good reason why the
additional evidence was not procured and introduced at the
hearing before the administrative law judge.
646 Ind. Admin. Code 5-10-11(b). The Review Board’s decision to accept or
reject additional evidence is in its discretion. Telligman v. Review Bd. of Ind. Dep’t
of Workforce Dev., 996 N.E.2d 858, 865 (Ind. Ct. App. 2013).
[7] East Wind asserts that it “was denied the fundamental due process right to
cross-examine [Lesnick] and present evidence to impeach [her] credibility”
during the proceedings before the ALJ. Appellant’s Br. at 19. We cannot
agree. East Wind, by Zaranski, was present at the proceedings before the ALJ,
along with Lesnick; Lesnick’s resignation letter to East Wind and her appeal to
the ALJ expressly identified Zaranski’s behavior towards her as the basis for
Lesnick’s claim that she had quit her job with good cause; and nothing in East
Wind’s request to submit the additional evidence to the Review Board
explained how the testimony of other employees could not have been obtained
and submitted to the ALJ. In other words, East Wind had notice and
opportunity to fully respond to Lesnick’s claim before the ALJ. Accordingly,
we cannot say that the Review Board abused its discretion when it rejected East
Wind’s subsequent attempt to present additional evidence. Likewise, we
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cannot say that the Review Board’s decision affected East Wind’s constitutional
rights.
Issue Two: Sufficiency of the Evidence
[8] We thus turn to East Wind’s assertion that the Review Board’s judgment is not
supported by sufficient evidence. According to the Indiana Supreme Court:
The Indiana Unemployment Compensation Act (UCA) provides
that any decision of the Review Board shall be conclusive and
binding as to all questions of fact. Ind. Code § 22-4-17-12(a)
(2007). When the decision of the Review Board is challenged, an
appellate court makes a two-part inquiry into (1) “the sufficiency
of the facts found to sustain the decision” and (2) “the sufficiency
of the evidence to sustain the findings of fact.” Id. § 22-4-17-
12(f). This Court provided an extensive analysis of the standard
of review for these cases in McClain v. Review Board of Indiana
Department of Workforce Development, 693 N.E.2d 1314 (Ind.
1998). Simply stated, an appellate court reviews “(1)
determinations of specific or ‘basic’ underlying facts; (2)
conclusions or inferences from those facts, sometimes called
‘ultimate facts,’ and (3) conclusions of law.” Id. at 1317.
The Review Board’s “findings of basic facts are subject to a
‘substantial evidence’ standard of review.” Id. We neither
reweigh evidence nor judge the credibility of witnesses; rather,
we consider only the evidence most favorable to the Review
Board’s findings. Id. We will reverse the decision only if there is
no substantial evidence to support the Review Board’s findings.
Id.
J.M. v. Review Bd. of Ind. Dep’t of Workforce Dev., 975 N.E.2d 1283, 1286 (Ind.
2012).
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[9] East Wind argues that the evidence is insufficient as a matter of law to
demonstrate that Lesnick left her employment with good cause. Indiana Code
Section 22-4-15-1(a) provides, in relevant part, that individuals who voluntarily
leave their employment are not eligible for benefits unless they left their
employment with “good cause in connection with the work.” As we have
explained:
The “good cause” requirement means the employee’s reason for
terminating [her] employment must be job related and objective
in character, excluding purely subjective and personal reasons.
Marozsan v. Review Bd. of the Ind. Employment Sec. Div., 429 N.E.2d
986, 989 (Ind. Ct. App. 1982). The Act will provide
compensation only when demands placed upon an employee are
so unreasonable or unfair that “a reasonably prudent person
would be impelled to leave.” Id. at 990.
Ky. Truck Sales, Inc. v. Review Bd. of Ind. Dep’t of Workforce Dev., 725 N.E.2d 523,
526 (Ind. Ct. App. 2000).
[10] East Wind contends that the Review Board’s judgment is contrary to this
court’s opinion in Kentucky Truck Sales. In that case, we held, on prima facie
review, that the employer had met its burden on appeal to show that the
Review Board had erroneously found good cause for the employee to leave his
employment. Id. at 526. The employee in that case had a history of
absenteeism and, on one occasion, his supervisor gave him a “reprimand [that]
was indelicately presented.” Id. In light of that reprimand, the employee quit
his job. The Review Board concluded the employee had good cause to do so,
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but we held that the employer had “made a showing of prima facie error” in light
of the totality of the circumstances. Id.
[11] We conclude that Kentucky Truck Sales is not controlling here. First, unlike
Kentucky Truck Sales, we are not reviewing the Review Board’s judgment under
the prima facie error standard. Second, unlike in Kentucky Truck Sales, here
Zaranski’s mistreatment of Lesnick was neither a one-time incident nor related
to any clearly identified reprimand for absenteeism. Rather, the record is clear
that Zaranski’s mistreatment of Lesnick was independent of Lesnick’s
attendance, such as when Zaranski screamed at Lesnick for not helping
Zaranski train another employee. Kentucky Truck Sales is not a blank check for
the mistreatment of employees.
[12] The Review Board’s judgment is supported by the record. On at least three
occasions in less than four months, Zaranski screamed at Lesnick. On
November 24, 2015, Zaranski screamed at Lesnick for not helping Zaranski
train another employee. On February 25, 2016, Zaranski screamed at Lesnick
for not showing up to work on time, hung up, and then called her back to
scream at her some more. And, on March 9, 2016, during a conversation about
time off Lesnick needed for her own physical therapy, Zaranski again screamed
at Lesnick, yelling “I don’t care what the fuck you do.” Tr. Vol. 2 at 11.
Immediately after the February 25 incident, Lesnick asked Zaranski to not
scream at her, but Zaranski stated that that is just how she communicates. In
sum, the evidence shows that Zaranski’s treatment of Lesnick was not confined
to a single incident but manifested an habitual pattern of conduct.
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[13] The Review Board concluded that Zaranski’s treatment of Lesnick gave Lesnick
good cause to voluntarily leave her employment. That judgment was squarely
within the Review Board’s prerogative on this record. Employees are not
obliged to endure treatment such as Zaranski’s treatment of Lesnick. In other
words, Zaranski’s treatment of Lesnick was so unreasonable or unfair that “a
reasonably prudent person would be impelled to leave” her employment
because of it. See Ky. Truck Sales, 725 N.E.2d at 526. East Wind’s arguments to
the contrary simply seek to have this court reweigh the evidence on appeal or
otherwise consider evidence other than that which is most favorable to the
Review Board’s judgment, which we will not do. Accordingly, we affirm the
Review Board’s judgment.
[14] Affirmed.
Bailey, J., and May, J., concur.
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