Miller v. Review Bd. of Indiana Employment Sec. Div.

• Decision Date: 15 June 1982
• Docket Number: No. 2-581A153,2-581A153
• Citation: 436 N.E.2d 804
• Parties: Mark A. MILLER, Claimant-Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, William H. Skinner, David L. Adams, and Paul M. Hutson, as members of and constituting the Review Board of the Indiana Employment Security Division, and Stoutco, Inc., Respondents-Appellees.
• Court: Indiana Appellate Court

Page 804

436 N.E.2d 804

29 A.L.R.4th 275

Mark A. MILLER, Claimant-Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION William H. Skinner, David L. Adams, and Paul M. Hutson, as members of and constituting the Review Board of the Indiana Employment Security Division, and Stoutco, Inc. Respondents-Appellees.

No. 2-581A153.

Court of Appeals of Indiana, First District.

June 15, 1982.

John R. Frechette, Gildea, Long & Frechette, P. C., Elkhart, for claimant- appellant.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for Review Bd. of Indiana Employment Sec. Div.

NEAL, Judge.

STATEMENT OF THE CASE

Claimant-appellant Mark A. Miller (Miller) appeals from a decision of the Employment Security Review Board (Review Board) that denied his claim for unemployment compensation and ordered the repayment of benefits theretofore received by Miller.

We reverse.

STATEMENT OF THE FACTS

The Deputy awarded Miller unemployment compensation, determining that Miller had not been discharged by his employer, Stoutco, Inc. (Stoutco), for just cause. An Appeals Referee, after hearing evidence, reversed the award, and entered the following Findings of Fact, Conclusion, and Decision:

"FINDINGS OF FACT: The evidence established that the claimant worked for the subject employer for a period from May 5, 1980, through June 30, 1980, as a Sales Engineer. His rate of pay at the time of separation was $16,500.00 per year, plus benefits. The evidence further established that the claimant was, in fact, discharged June 30, 1980. Claimant had been hired for the position of Sales Engineer after a thorough interview by the employer. At no time during the interview did the claimant indicate to the employer that he was a candidate for State Representative and if, in fact, elected, it would be necessary that he be given substantial time off on a yearly basis to perform his duties as an elected official. When the employer became aware of the fact that the claimant was, in fact, a candidate for office, the claimant was confronted about the problem and told by the employer that it would be necessary for him to make a decision whether or not he wanted to continue employment or continue as a candidate for State Representative. The employer indicated to the claimant that they could not spend the time and money required to train him with the possibility of losing him within a very short period of time or on an annual basis, if they elected to continue his employment while he served as a State Representative. The claimant decided that he could not withdraw his candidacy for State Representative and, therefore, the claimant was terminated effective June 30, 1980. It was the employer's position that the claimant had withheld this information, which definitely had a bearing, or would have, had they known about the candidacy at the time of the claimant's hire. For this reason the claimant was, in fact, terminated effective June 30, 1980.

CONCLUSION: From the foregoing findings it must be concluded that the claimant was discharged for just cause within the meaning and intent of Chapter 15, Section 1 of the Act, his actions evidencing a breach of duty reasonably owed an employer by an employee.

DECISION: The determination of the deputy is reversed. Claimant is denied benefits in accordance with Chapter 15, Section 1 of the Act. In addition, benefits received by the claimant are due the Division as a refund in accordance with Chapter 13, Section 1 of the Act."

The Review Board adopted the above and affirmed the Referee's decision; this appeal followed.

In addition to the evidence related in the findings restated above, the record reveals without contradiction that during Miller's pre-employment interviews, of which there were apparently several, Stoutco directed no inquires regarding the extent to which Miller was involved in political activities or whether Miller had any political ambitions, although Miller had indicated on his application that among his interests and activities was "working with ... political organizations." Miller made no further disclosures regarding his political activities. Miller was not a candidate for political office at the time of his original interview, but became one prior to the commencement of his employment. Stoutco did not have a stated policy forbidding its employees from running for political office or otherwise engaging in political activities. In fact, Stoutco's personnel manager was a member of the Elkhart City Council and an announced candidate for mayor of Elkhart. There is no showing whatever that, prior to his termination, any political activity on the part of Miller interfered with his performance on the job or that the discharge was for any reason other than his refusal to withdraw his candidacy.

ISSUE

Miller presents three issues for review. Because of our disposition of this appeal, however, we need consider only the following issue:

Whether the Review Board's denial of unemployment compensation to Miller constitutes an impermissible infringement upon the political freedoms guaranteed by the First and Fourteenth Amendments to the United States Constitution.

DISCUSSION AND DECISION

The Review Board found that there was just cause for Miller's discharge because his actions evinced a "breach of duty reasonably owed an employer by an employee," although it is not clear whether the breach of duty found was Miller's failure to apprise Stoutco of his candidacy during his later pre-employment interviews or his refusal to withdraw his candidacy after being confronted by Stoutco and receiving its ultimatum. Ind.Code 22-4-15-1 (Supp.1979) provides in part that:

" 'Discharge for just cause' ... is defined to include but not be limited to separation initiated by an employer for ... any breach of duty in connection with work which is reasonably owed employer by an employee."

In Wakshlag v. Review Board of the Indiana Employment Security Division, (1980) Ind.App., 413 N.E.2d 1078, after noting that the employer bears the burden of establishing that the discharge was for just cause, we said:

"Whether unemployed persons are without fault must be determined upon the facts and circumstances of the individual case. Thompson v. Hygrade Food Products Corp., (1965) 137 Ind.App. 591, 210 N.E.2d 388. Determination of cause is a question of fact. (Gardner v. Review Board, (1943) 162 Ind.App. 125, 318 N.E.2d 361) It is conduct evidencing such wilful or wanton disregard of the employer's interest as is found in deliberate violations or disregard of standards of behavior which the employer has a right to expect of his employee, or a carelessness or negligence of such a degree or recurrence as to manifest equal culpability, wrongful intent, or evil design, or to show an intentional or substantial disregard of the employer's interest, or of the employee's duties or obligation to his employer. Arthur Winer, Inc. v. Review Board, (1950) 120 Ind.App. 638, 95 N.E.2d 214." (Emphasis omitted.)

413 N.E.2d at 1082. Our standard of review was then set out in Wakshlag as follows:

" 'Initially we point out that generally the Review Board's decision as to the questions of fact is conclusive and binding on this court .... In reviewing the evidence to support the Review Board's determination we may not weigh the evidence and may consider only that evidence and the reasonable inferences therefrom most favorable to the Board'(s) decision .... On appeal, we may only disturb the decision of the Review Board if reasonable persons would be bound to reach a different conclusion on the evidence in the record.' (Citations omitted.)"

413 N.E.2d at 1082.

We find no conflict in the evidence. The essence of Miller's position is that the state action in denying him benefits under these facts constitutes an infringement upon his constitutionally protected right to engage in political activity, in particular, his right to participate in the electoral process as a candidate for public office. The Review Board does not squarely confront Miller's constitutional argument, but maintains that the determination that Miller's discharge was for just cause was correct.

The issue raised herein directs our attention not to the actions of the employer Stoutco in discharging Miller, but to the action of the state in denying a public benefit to Miller. Indiana has recently reaffirmed the employment at will doctrine under which an employee at will may be discharged by his employer for any cause whatever, or for no cause, without giving rise to an action for damages. Campbell v. Eli Lilly and Company, (1980) Ind.App., 413 N.E.2d 1054 (transfer denied; Hunter, J., dissenting to denial of transfer, Campbell v. Eli Lilly and Company, (1981) Ind., 421 N.E.2d 1099); Martin v. Platt, (1979) Ind.App., 386 N.E.2d 1026. An exception is recognized, however, and a cause of action will lie if the plaintiff-employee demonstrates he was discharged in retaliation for having exercised a statutorily conferred personal right or having fulfilled a statutorily imposed personal duty. Frampton v. Central Indiana Gas Company, (1973) 260 Ind. 249, 297 N.E.2d 425 (action for damages for wrongful discharge where employee fired for having filed a Workmen's Compensation claim). Miller, as an employee at will, could have been discharged without cause, but just cause is required to permit the denial of benefits.

In Sherbert v. Verner, (1963) 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965, the Supreme Court of the United States considered the propriety of South Carolina's denial of unemployment compensation benefits to a claimant who was discharged for refusing for religious reasons to work on Saturdays. At the time Sherbert, the claimant, became a member of the Seventh-day Adventist Church she was working Monday through Friday for her employer. Subsequently, the work week was expanded to six days, including Saturday. The Seventh-day Adventist...