Fuller v. Review Bd. of Indiana Employment Sec. Division, 2-281A67

• Decision Date: 27 July 1981
• Docket Number: No. 2-281A67,2-281A67
• Citation: 423 N.E.2d 725
• Parties: Jan A. FULLER, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, William Skinner, David L. Adams, and Paul M. Hutson, as Members of and as constituting the Review Board of the Indiana Employment Security Division, and Anchor Hocking Corporation, Appellees.
• Court: Indiana Appellate Court

Page 725

423 N.E.2d 725

Jan A. FULLER, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION William Skinner, David L. Adams, and Paul M. Hutson, as Members of and as constituting the Review Board of the Indiana Employment Security Division, and Anchor Hocking Corporation, Appellees.

No. 2-281A67.

Court of Appeals of Indiana, Third District.

July 27, 1981.

Michelle A. Link, Joe Oddo, Legal Services Organization of Indiana, Inc., Muncie, for appellant.

Linley E. Pearson, Atty. Gen., Gordon R. Medlicott, Deputy Atty. Gen., Indianapolis, for appellees.

STATON, Judge.

Jan A. Fuller appeals from a decision of the Review Board of the Indiana Employment Security Division which found her ineligible for unemployment compensation because she was discharged from her employment for just cause in accordance with IC 1976, 22-4-15-1 (Burns Code Ed., 1980 Supp.).

On appeal, Fuller contends the Review Board's decision is contrary to law on the following basis:

(1) The Review Board's findings of fact do not sustain its decision.

(2) The evidence does not sustain the Review Board's findings of fact.

Because the disposition of Fuller's first contention requires reversal of the Review Board's decision, this Court need not address the second contention.

Reversed and remanded.

After an evidentiary hearing, a referee entered the following findings of fact and conclusions of law:

"FINDINGS AND CONCLUSION: The evidence shows that the claimant worked for this employer for the period from September 18, 1974 to June 17, 1980. She was working as an inspector, with a rate of pay of $6.01 an hour at the time of her separation. The evidence further shows that the claimant did not voluntarily leave her employment, but was discharged as a result of her refusal to accept a one year's probation. The employer wanted to give her this year's probation due to her excessive absenteeism. Her attendance record indicates that for the year of 1977, the claimant was absent 99% of the time, for the year 1978, she was absent 48% of the time, for the year 1979, she (was) absent nearly 51% of the time, and for the year 1980, she did not work a day. The evidence further discloses that she was absent most of this time due to illness-related reasons. For example, during the year 1977, she was absent nearly the entire year due to a pregnancy, and for other periods of absenteeism, the reasons therefor were various other related illnesses. Along with these absences too, the claimant received a warning for being late on a number of occasions. She received this warning on March 14, 1979 for being late on January 13, 1979, February 23, 1979, February 28, 1979, and March 14, 1979. As a result of these problems, the employer told the claimant that she was going to be placed on a year's probation. The claimant felt the probation was unjust, and decided not to accept it. As a result of her refusal to be placed on probation, the claimant was discharged. Under the Indiana Employment Security Act, if the claimant is to be denied unemployment compensation it must be shown that she was discharged for just cause. In view of the evidence the referee finds just cause for the discharge. Although the claimant's absences were primarily due to illness the employer felt that, due to her overall attendance record, she should be given a year's probation. However, the claimant refused to accept a year's probation, and was subsequently discharged, and such a discharge can be supported by her refusal to be placed on probation. From the foregoing findings it is concluded that the claimant was discharged for just cause."

The Review Board adopted the referee's findings and conclusions in toto. Fuller commenced this appeal from the Review Board's decision.

When evaluating the sufficiency of the findings of fact on which the Review Board based its decision, this Court must apply the following rules of review:

"It is a basic rule of administrative law that findings of fact 'must contain all the specific facts relevant to the contested issue or issues so that th(is) court may determine whether the Board has resolved those issues in conformity with the law.' Whispering Pines Home for Senior Citizens v. Nicalek, (1975), Ind.App., 333 N.E.2d 324, 326. The findings must be specific enough to allow us to intelligently review the Board's decision. Indiana Bell Telephone Co., Inc. v. Owens, (1980), Ind.App., 399 N.E.2d 443. When the administrative board's decision precludes an award the findings of fact must exclude every possibility of recovery. Wolfe v. Review Board of the Indiana Employment Security Division, (1978), Ind.App. 375 N.E.2d 652. If the findings are found to be lacking in these areas the cause should be remanded to the board. Id." (brackets original)

Jones v. Review Board of Indiana Employment Security Division (1980), Ind.App., 405 N.E.2d 601, 604-05. Furthermore, when the denial of an unemployment compensation claim is challenged as being contrary to law, the two-tier standard of review enunciated in IC 1976, 22-4-17-12 (Burns Code Ed.), must be applied. This Court made the following observations about the two-tier standard of review:

"Under this two-tier standard of review, the Review Board's 'finding of ultimate fact' is the conclusion, and the 'findings of basic facts' are the premises from which the Review Board deduced its conclusion.

'At the first level of review, we examine only the relationship between the premises and the conclusion and ask if the Board's deduction is "reasonable". (Cites omitted.) The inquiry at this first level of review may be termed a "question of law". (Cites omitted.)

'At the second level of review, we inquire into the nexus between the premises or findings of basic facts and the evidence presented to determine if the evidence justified those findings.' Gold Bond Bldg. Prod. Div., etc. v. Review Bd., Ind. (1976), (169) Ind.App. (478), 349 N.E.2d 258, at 263.'

"With regard to the first level of review, it is necessary to determine whether the findings of fact were sufficient in law to support the ultimate finding that (the claimant) was discharged for just cause."

Graham v. Review Board of Indiana Employment Security Division (1979), Ind.App., 386 N.E.2d 699, 701-02.

After reviewing the Review Board's findings of fact, this Court is unable to conclude that the findings sustain the conclusion that Fuller was discharged from her employment for just cause. The Review Board's findings of fact inform this Court of the following facts relevant to Fuller's claim for unemployment compensation:

(1) Anchor Hocking Corporation, Fuller's employer, ordered Fuller to be placed on probation for one year because her record evidenced excessive absenteeism and tardiness.

(2) Most of Fuller's prolonged absences were for "illness related reasons" and "pregnancy."

(3) Fuller refused to accept the probationary term of employment.

(4) Anchor discharged Fuller "as a result of her refusal to accept a one year's probation."

From these facts, the Review Board concluded that Fuller was discharged from her employment for just cause. It must be emphasized at this point that Fuller was...