Wilson v. Review Bd. of Indiana Employment Sec. Division
| Decision Date | 07 March 1978 |
| Docket Number | No. 2-677A228,2-677A228 |
| Citation | 373 N.E.2d 331 |
| Parties | Donna WILSON, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, Steak 'N Shake, Indiana Employment Security Board, Max Wright, Richard Ristine, Glenn Ray, Dr., William H. Andrews, Jr., George Elrod, John F. Coppes, David Brown, Mary Aikens Currie, William Davis, and Leslie Harris, Appellees. |
| Court | Indiana Appellate Court |
David F. Shadel, Legal Services Organization, Indianapolis, for appellant.
Theo. L. Sendak, Atty. Gen., Darrell K. Diamond, Deputy Atty. Gen., Indianapolis, for appellees.
Our prior opinion was filed November 23, 1977, and appears in 369 N.E.2d 675. Both the State and Donna Wilson have petitioned for rehearing. We have carefully reexamined the record in light of facts and arguments emphasized in those petitions and accompanying briefs. We also have reexamined the briefs filed initially by the parties and the authorities cited therein. Having done so, we conclude that our prior opinion must be set aside. Accordingly, the petitions for rehearing filed by the Review Board and by Wilson are hereby granted. Our opinion of November 23, 1977, and the decision expressed therein, are hereby vacated.
Donna Wilson (Wilson) seeks review of a decision of the Review Board affirming a referee's denial of unemployment compensation benefits. Wilson also appeals from an order of the Marion County Circuit Court dismissing an amended complaint she had filed against the Indiana Employment Security Division (the Division) and numerous other parties. This court granted Wilson's motion for consolidation of these two matters.
Donna Wilson worked as a waitress at Steak 'N Shake restaurant (restaurant) on Pendleton Pike in Indianapolis. Her employment terminated November 12, 1976, when she left work early, complaining of illness, despite instructions that she should remain until the end of her scheduled work shift.
Wilson filed a claim for unemployment compensation benefits. On or about December 12, 1976, Wilson returned to the restaurant to inquire concerning a check due for past services. While Wilson was at the restaurant, the restaurant manager, in the presence of the district manager, offered twice to reinstate Wilson in the same job she held previously. She refused both offers. Wilson stated that she did not want to work under the supervision of the head waitress who had refused Wilson's request to leave early on November 12, 1976.
The following events are relevant to the issues raised herein:
In the In the
trial court Division
----------- --------
11/15/76 Wilson filed her initial
claim for benefits
12/2/76 The Division recognized
Wilson's status as an
insured worker
12/14/76 Wilson's former
employer submitted a
report indicating that
Wilson had refused an
offer of suitable work
without good cause
1/5/77 A deputy of the Division
gave Wilson written
notice that Wilson's
benefit rights were
suspended commencing
the week ending
December 18, 1976
1/6/77 Wilson filed her verified
complaint for declaratory
judgment and injunctive
relief
1/17/77 Wilson filed her request
for a hearing before a
referee
1/26/77 Wilson filed a motion
for immediate order to
resume payment of
benefits, for recognition
of her appeal as a class
action, and for adoption
of rule and policy.
1/26/77 The referee denied
Wilson's motion.
2/ 1/77 Wilson filed her request
for appeal to the Review
Board, listing the denial
of her motion as the
point in dispute.
2/ 9/77 Wilson received a hearing
before a referee.
2/15/77 The referee ruled that
restaurant made a
good-faith offer of
suitable work and Wilson
refused that offer
without good cause;
therefore, the deputy
properly suspended
Wilson's benefits.
2/22/77 Wilson filed her request
for appeal to the
Review Board.
3/4/77 The trial court granted
defendant's motion to
dismiss.
3/17/77 Wilson filed an amended
complaint for declaratory
judgment and injunctive
relief.
3/22/77 The trial court granted
defendants' motion to
dismiss the amended
complaint. 1
4/6/77 The trial court entered
judgment of dismissal.
4/12/77 The Review Board
heard oral argument on
the record of the hearing
before the referee.
4/14/77 The Review Board
affirmed the decision
of the referee.
ISSUES
1. Whether the decision of the Review Board is contrary to law and not supported by the evidence.
2. Whether the Indiana Employment Security Division erred in failing to allow Wilson to proceed with her administrative appeal as a class action administrative appeal.
3. Whether the trial court had jurisdiction of Wilson's amended complaint.
4. Whether Wilson's amended complaint stated a claim upon which relief could be granted.
5. Whether the Indiana Employment Security Division erred in failing to find that Wilson's rights to unemployment compensation benefits were violated by the suspension of her benefit rights without first providing her with notice and opportunity for a fair hearing.
6. Whether the Indiana Employment Security Division erred in refusing to adopt the rule, regulation, policy or practice sought by Wilson.
Issue One
Wilson argues that the restaurant made no genuine offer of suitable work.
This court may not weigh the evidence when it reviews a decision of the Review Board. The Review Board's decision as to all questions of fact is conclusive. Skirvin v. Review Board (1976), Ind.App., 355 N.E.2d 425.
Wilson's argument goes solely to weight of the evidence and credibility of witnesses. The record provides evidence of probative value to support the Review Board's conclusion that Wilson refused an offer of suitable work without good cause. 2
Wilson argues that the Indiana Employment Security Division erred in failing to allow Wilson to proceed with her administrative appeal as a class action administrative appeal. Wilson contends that, (1) because the referee has considerable discretion in the conduct of hearings, and (2) because no statute prohibits class action administrative appeals, the appeal should have been recognized as a class action. The Division responds that no authorization for such a procedure exists.
An administrative agency is a creature of the Legislature. The procedures to be followed in an administrative proceeding are defined in the statutes pertaining to the particular agency. Clary v. National Friction Products, Inc. (1972), 259 Ind. 581, 290 N.E.2d 53.
Wilson contends that the administrative agency had "apparent authority" to do what she requested. An administrative agency has only the powers and authority specifically provided it. Wilson errs when she searches for a statute prohibiting a particular procedure; she must search instead for authorization for such a procedure. The Division did not err in refusing to allow Wilson to proceed with her administrative appeal as a class action administrative appeal.
Wilson argues that the trial court had jurisdiction of Wilson's amended complaint. She emphasizes that in the trial court she did not seek to challenge the ruling on her claim for benefits but rather she did seek to challenge the procedure employed by the Indiana Employment Security Division in suspending and terminating benefits.
The Division responds that the Indiana Employment Security Act provides a comprehensive administrative procedure for determination of eligibility for benefits. The Review Board's decision ultimately may be reviewed by the Court of Appeals. The Division argues that the jurisdiction of the Court of Appeals is exclusive and the trial court has no jurisdiction to entertain Wilson's amended complaint.
A failure to pursue statutory remedies is jurisdictional and may be raised by a motion to dismiss. Bryant v. Lake County Trust Co. (1972), 152 Ind.App. 628, 284 N.E.2d 537.
IC 1971, 22-4-17-12 (Burns Code Ed.) provides that either party to the dispute, the Indiana Employment Security Board, or the Director of the Division may appeal the decision of the Review Board to the Court of Appeals. Ind.Rules of Appellate Procedure, Appellate Rule 4(C) states that the Court of Appeals shall have jurisdiction to review final decisions of the Review Board of the Employment Security Division.
The Indiana Employment Security Division is administered by the Indiana Employment Security Board. IC 1971, 22-4-18-1 (Burns Code Ed.). The ...
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