Gray v. Dobbs House, Inc.

• Decision Date: 09 December 1976
• Docket Number: No. 2--475A86,2--475A86
• Citation: 357 N.E.2d 900,171 Ind.App. 444
• Parties: Mary A. GRAY, Appellant, v. DOBBS HOUSE, INC. and Review Board of the Indiana Employment Security Division, Appellees.
• Court: Indiana Appellate Court

Page 900

357 N.E.2d 900

171 Ind.App. 444

Mary A. GRAY, Appellant, v. DOBBS HOUSE, INC. and Review Board of the Indiana Employment Security Division, Appellees.

No. 2--475A86.

Court of Appeals of Indiana, Second District.

Dec. 9, 1976.

Richard D. Boyle, Richard L. Zweig, Legal Services Organization, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Walter F. Lockhart, Deputy Atty. Gen., Indianapolis, for appellees.

SULLIVAN, Judge.

Mary Gray (Claimant) was denied unemployment benefits. She appeals.

The Review Board determined that although Claimant had 'possibly good personal reasons' for leaving her employment, those reasons did not constitute 'good cause in connection with the work'. The controlling statutory provision disqualifies a claimant if he has left his employment voluntarily 'without good cause in connection with the work'. Ind.Ann.Stat. 22--4--15--1 (Burns Code Ed. 1976 Supp.)

The facts are not materially disputed. Claimant on or about May 26, 1974 accepted employment as a cook with Dobbs House Restaurant located at Weir Cook Airport, Indianapolis. Her initial employment was of a somewhat untenured nature, in that she substituted for various full-time employees as they took annual vacations. Throughout the summer months, Claimant worked the day shift, 6:00 a.m. to 3:00 p.m. These working terms and conditions easily accommodated her transportation and domestic concerns. Having no automobile, she was able to secure a ride to and from work with a fellow-worker who worked the same shift, and she was able to satisactorily arrange for supervision of her young children. Near the end of August, 1974 when Claimant's vacation period employment was essentially concluded, her employer without much, if any, discussion of terms and conditions, assigned Claimant as a permanent employee with similar responsibilities as before, to the swing shift, 2:30 p.m. to 10:30 p.m. Claimant accepted the employment and attempted to work this shift, but because of transportation difficulties and expense, and compelling parental obligations, she terminated her employment on September 6, 1974.

From these facts, the Board found that Claimant terminated her employment due to a lack of adequate transportation to work and that the cost of cab fare and child care made continuation of employment impractical and that such reasons did not constitute 'good cause in connection with the work'.

Claimant takes issue with the Review Board's interpretation of the disqualifying provision of 22--4--15--1, supra, and its application to the facts here.

I

PARENTAL OBLIGATIONS AND TRANSPORTATION DIFFICULTIES ARE NOT

GOOD CAUSE WITHIN MEANING OF THE ACT

Claimant argues that the plain import of 22--4--15--1, supra, compels a conclusion that parental obligations and transportation problems constitute 'good cause', and that since the Board found that she left for these reasons, she is entitled to benefits as a matter of law. ¹

(A) PARENTAL OBLIGATIONS

We cannot agree with the parental obligation portion of Claimant's argument. In Geckler v. Review Board (1963) 244 Ind. 473, 477, 193 N.E.2d 357, 359 the court said:

'As a general rule, the cases hold that 'good cause(,)' which justifies the voluntary termination of employment and entitles the claimant to compensation, must be related to the employment, and thus be objective in character. The cases have not extended the construction of 'good cause' to include purely personal and subjective reasons which are unique to the employee, . . ..'

(Emphasis supplied)

Accord, Lewis v. Review Board (1972) 152 Ind.App. 187, 282 N.E.2d 876.

Thus, assuming that a claimant seeking unemployment benefits after terminating employment qualifies pursuant to the basic eligibility requirements of Ind.Ann.Stat. §§ 22--4--14--1 thru 3 (Burns Code Ed. 1974 and Supp.1976), ² he must further demonstrate that the general disqualification provision of 22--4--15--1, supra, is inapplicable. This means, for example, in the instance of a claimant who has terminated his employment, that he must demonstrate: (a) that his reasons for abandoning his employment were such as would impel a reasonably prudent man to terminate under the same or similar circumstances; and (b) that these reasons, or causes, are objectively related to the employment. See Garelts v. Employment Division (Or.App.1975) 535 P.2d 115.

Although parental obligations no doubt constitute good personal reason for termination of employment, they nevertheless lack the objective nexus with employment envisioned by the Act. Cf. Carter v. Employment Security Commission (Me.1976) 356 A.2d 731.

Claimant, citing Hacker v. Review Board (1971) 149 Ind.App. 223, 271 N.E.2d 191, asserts that if she had refused employment on the evening shift at the time it was made available to her, rather than to have tried accommodating the shift change, she would not have been rendered ineligible.

It is to be noted that in Hacker, supra, the employee had been involuntarily terminated in that her night shift had been closed down and she lacked sufficient seniority for transfer to another shift. Notwithstanding that the employee had restricted her employment to the night shift and would no doubt have rejected a 'shift transfer' even were it available, the consideration before the court, as limited by the findings of the Board, involved Ind.Ann.Stat. 22--4--15--2 (Burns Code Ed. 1974) ³ An over-simplified analysis of the eligibility and disqualification provisions discloses that 22--4--14--3 contains a threshold requirement that an employee must be 'physically and mentally able to work, is available for work (and is) making an effort to secure work'. Under this basic eligibility provision one is not necessarily unavailable for work merely because he or she limits the shift to be worked because of parental obligations. Hacker v. Review Board, supra.

Under 22--4--15--2, a claimant, who may be otherwise eligible for benefits and not disqualified by reason of 22--4--15--1, loses that eligibility when 'he fails without good cause, either to apply for available suitable work . . ., or to accept suitable work when found for and offered to him . . ..' (Emphasis supplied). This provision does not render one disqualified merely because he rejects an offered job, the hours of which are incompatible with his parental obligations. The two sections 22--4--14--3 and 22--4--15--2 are thus related. However, they are, with reference to 'good cause,' separate and distinct from the disqualification provision of 22--4--15--1. Thus, an employee who may be 'available for work' within the meaning of 22--4--14--3 and who, for 'good cause,' within the meaning of 22--4--15--2, may refuse work offered, is nevertheless ineligible for benefits to the extent and for the period prescribed by 22--4--15--1 if he has quit work 'without good cause in connection with the work'.

Claimant argues, however, that the Legislature could not have intended such ironic and inconsistent results, and that therefore the 'good cause' provision of 22--4--15--1 must be the equivalent of 'good cause' under 22--4--15--2. ⁴

Despite the rationality of Claimant's position, we are unable to adopt it. Rather, because of the difference in language between the basic disqualification provision of 22--4--15--1 and the work availability provisions of 22--4--14--3 and 22--4--15--2, we feel compelled to adopt the answer given by the North Carolina Supreme Court when it was faced with the identical question, though in a converse factual situation. In In Re Watson (1968) 273 N.C. 629, 639, 161 S.E.2d 1, 10, that court held:

'When, in two paragraphs of the same section of a statute, the legislature provides for disqualification of a claimant who leaves his old job without 'good cause attributable to his employer' and for disqualification of one who rejects new work without 'good cause,' we think it evidence that the legislature, for some reason satisfactory to it, intended to make the difference between the two situations which its language expresses. . . . The wisdom of such distinction is for the legislature, our authority being merely to determine the meaning of the words it used.'

We realize that our analysis acknowledges distinctions which may seem to result

in harsh consequences, but our primary function when confronted with a duty to interpret legislative mandates, is to effectuate the plain import of statutes, if possible. The statutes here contain distinctions by which we must abide.

(b) TRANSPORTATION INCONVENIENCE AND EXPENSE

Claimant argues that transportation was not available without unreasonable expense and that this fact constitutes 'good cause in connection with the employment'. It is a question of first impression in this jurisdiction. Claimant urges that we adopt Bateman v. Howard Johnson Co. (La.1974) 292 So.2d 228, as dispositive of the issue. In Bateman, the court, in applying similar statutory language, held that transportation difficulty was 'good cause in connection with the employment', especially where, as here claimed, a substantial portion of daily wages was expended for transportation to and from work.

Other jurisdictions have reached a contrary result which we deem more compatible with Indiana law. In Moya v. Employment Security Commission (1969) 80 N.M. 39, 450 P.2d 925 and Zorrero v. Unemployment Security Insurance Appeals Board (1975) 47 Cal.App.3d 434, 120 Cal.Rptr. 855, transportation to and from work was held to be the responsibility of the employee in the absence of some custom or contract to the contrary. Accordingly we reject Claimant's assertion relative to transportation.

II

TERMINATION NOT RENDERED STATUTORILY INVOLUNTARY BY

COMPELLING PERSONAL CIRCUMSTANCES

Claimant urges us to accept the proposition that one who capitulates to domestic, financial and transportation pressures by terminating work does so involuntarily; and that such termination is patently with 'good cause' within the...