Opinion
No. 93A02-1011-EX-1318
10-27-2011
T.H., Appellant, v. STATE OF INDIANA, Appellee.
APPELLANT PRO SE: T.H. Indianapolis, Indiana ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana PAMELA S. MORAN Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind.Appellate Rule 65(D), 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.
APPELLANT PRO SE:
T.H.
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
PAMELA S. MORAN
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM REVIEW BOARD OF DEPARTMENT OF WORKFORCE DEVELOPMENT
Steven F. Bier, Chairperson
Cause No. 10-R-04702
MEMORANDUM DECISION - NOT FOR PUBLICATION
MATHIAS , Judge
T.H. appeals pro se the Review Board of the Department of Workforce Development's ("the Board") decision that he was ineligible for unemployment insurance benefits because he voluntarily terminated his employment with a car dealership.
We affirm.
Discussion and Decision
T.H. was employed as a salesman with a car dealership from September 23, 2009 to March 26, 2010. T.H. worked approximately 52 hours per week on a commission basis with a minimum wage draw. Because T.H.'s sales were not at the level needed to exceed the minimum wage draw, he received a warning in February 2010 concerning his inability to meet sales expectations. Thereafter, T.H. voluntarily terminated his employment with the car dealership.
On June 4, 2010, a Department of Workforce Development claims deputy determined that T.H. "voluntarily left employment without good cause in connection with the work" and declared him "ineligible for benefits." Appellee's App. p. 1. T.H. appealed the eligibility determination to the Board, and on August 2, 2010, a hearing was held at which T.H. and the sales manager for the car dealership appeared.
Shortly thereafter, the Administrative Law Judge ("ALJ") issued a decision affirming the claims deputy's determination of ineligibility. The ALJ found:
After quitting the Claimant raised the issue on appeal of his UI benefits that the Employer was not paying him for his lunch hour, during which he frequently worked on a voluntary basis in order to try and increase his sales. The Claimant was also working more than 40 hours per week and not receiving time and a half for the overtime. The overtime was also on a voluntary basis and not required. During his employment the Claimant did not raise the lunch pay or the overtime issue with the Employer at any time.Appellant's App. p. 2. The ALJ concluded that T.H. did not voluntarily terminate his employment for good cause because he "never brought his concerns to the Employer's attention at any time during employment, and thus did not give the Employer a chance to correct the issue." Id. at 3. Further, the ALJ observed that T.H.'s assertion that "he was afraid of being fired on the spot if he would have raised the issue with the Employer . . . is not credible given the good relationship between the parties." Id. Finally, the ALJ concluded that
The relationship between the Claimant and the Employer is amiable. The Employer encourages its employees to take an hour for lunch and does not pay for the lunch hour or any voluntary overtime.
either the Claimant created the issue of no lunch pay and no overtime pay after he terminated employment, or that it was not the reason for his termination even if it was known to him. The evidence also indicates the Claimant worked during his lunch and overtime on a voluntary basis and the Employer is not required to pay minimum wage for an employee trying to increase his own sales statistics on his own time in order to earn a higher commission.
Id.
T.H. appealed the ALJ's decision to the Board. On October 19, 2010, the Board affirmed the ALJ's decision with the following addendum:
On appeal, the Claimant contends that the Employer failed to pay time and a half for overtime. The Claimant worked for the Employer as a commissioned sales person at an automobile dealership. Section 213 of the Fair Labor Standards Act provides that "any salesman . . . primarily engaged in selling or servicing automobiles, trucks, or farm implements, . . ." is exempt from the overtime pay requirements of section 207 of the Act. [citation omitted]. Thus, the Employer is not required to pay time and a half for any overtime worked. The Employer is only required to not pay less than minimum wage.Id. at 1. T.H. now appeals pro se.
The Claimant further alleged that the Employer failed to pay him for all hours worked. During the hearing, the Claimant submitted a copy of his
time card for the week of January 20, 2010 which purportedly demonstrated that he was not paid for all hours worked that week. The Employer's Representative questioned the authenticity of the time card, but he testified that the payroll Department may have deducted five hours to account for on-hour lunch breaks since the time card indicated that the Claimant did not clock out for any lunch-breaks. The Claimant, however, never brought this perceived pay discrepancy to he Employer's attention. Thus, the Employer was deprived of an opportunity to investigate and/or remedy the situation.
Discussion and Decision
T.H. argues that the car dealership's unfair and unlawful wage and labor practices caused him to voluntarily terminate his employment, and therefore, the Review Board erred when it concluded that he did not voluntarily terminate his employment for good cause. Our standard of review is well settled:
The Indiana Unemployment Compensation Act ("the Act"), Indiana Code art. 22-4, provides that "[a]ny decision of the review board shall be conclusive and binding as to all questions of fact." Indiana Code Section 22-4-17-12(f) provides that when the Board's decision is challenged as contrary to law, the reviewing court is limited to 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 facts." Under this standard, courts are called upon to review (1) determinations of specific or "basic" underlying facts, (2) conclusions or inferences from those facts, sometimes called "ultimate facts," and (3) conclusions of law.Koewler v. Review Bd. of Ind. Dept. of Workforce Dev., 951 N.E.2d 272, 274-75 (Ind. Ct. App. 2011) (internal citations omitted).
Review of the Board's findings of basic fact is subject to a "substantial evidence" standard of review. In this analysis, the appellate court neither reweighs the evidence nor assesses the credibility of witnesses and considers only the evidence most favorable to the Board's findings. We will reverse the decision only if there is no substantial evidence to support the Board's findings. The Board's determinations of ultimate facts involve an inference or a deduction based upon the findings of basic fact, and the ultimate facts are typically reviewed to ensure that the Board's inference is reasonable. We examine the logic of the inference drawn and impose any applicable rule of law. Some questions of ultimate fact are within the special competence of the Board, and it is therefore appropriate for us to accord greater deference to the reasonableness of the Board's
conclusion. However, as to ultimate facts which are not within the Board's area of expertise, we are more likely to exercise our own judgment.
Finally, we review conclusions of law to determine whether the Board correctly interpreted and applied the law. "In sum, basic facts are reviewed for substantial evidence, conclusions of law are reviewed for their correctness, and ultimate facts are reviewed to determine whether the Board's finding is a reasonable one."
The Act was enacted to "provide for payment of benefits to persons unemployed through no fault of their own." Ind. Code § 22-4-1-1. To be eligible for unemployment benefits, an individual must meet the requirements set forth in Indiana Code chapter 22-4-14 and must not be disqualified by any of the various exceptions provided in chapter 22-4-15.
Indiana Code section 22-4-15-1(a) provides that an employee is disqualified from collecting unemployment compensation if the employee has left his employment voluntarily "without good cause in connection with the work[.]" The employee has the burden of establishing that the voluntary termination of employment was for good cause, meaning that the employee must show that:
(1) the reasons for leaving employment were such as to impel a reasonably prudent person to terminate employment under the same or similar circumstances; and (2) the reasons are objectively related to the employment. This second component requires that the employee show her reasons for terminating employment are job-related and objective in nature, excluding reasons which are personal and subjective.M & J Mgmt., Inc. v. Review Bd. of the Dep't of Workforce Dev., 711 N.E.2d 58, 62 (Ind. Ct. App. 1999) (internal citation omitted).
T.H. did not establish that he was paid less than minimum wage. The sales manager of the car dealership explained that one hour per day was deducted from T.H.'s pay because employees were supposed to clock in and clock out when they left for their lunch break. T.H. testified that he generally worked through his lunch breaks and that he was therefore entitled to be paid for that hour. But he failed to address the perceived shortage in his pay with anyone at the car dealership. The sales manager and T.H. both testified that they had a good relationship. Further, the sales manager testified that if T.H.'s pay was not accurate, he would have corrected the problem.
Because T.H. failed to raise the issue, the car dealership was not given the opportunity to investigate and/or remedy the situation. And T.H.'s failure to discuss the alleged pay shortage with the car dealership led the ALJ to conclude that T.H.'s claims were less than credible. Cf. Winder v. Review Bd. of the Ind. Employment Sec. Div., 528 N.E.2d 854, 856 (Ind. Ct. App. 1988) (stating that because the employee failed to inform her employer that she was physically unable to stand on the job, a reasonable person could conclude that the employee abandoned her employment for personal and subjective reasons without good cause). In addition, T.H. had a good working relationship with the car dealership, and that relationship does not support his alleged belief that he would be fired if he questioned the discrepancy in his pay.
For all of these reasons, we affirm the Board's determination that T.H. is ineligible to receive unemployment insurance benefits because he voluntarily terminated his employment without good cause.
Affirmed. BAILEY, J., and CRONE, J., concur.