Wilson v. Review Bd. of Indiana Employment Sec. Division

• Decision Date: 23 November 1977
• Docket Number: No. 2-677A228,2-677A228
• Citation: 369 N.E.2d 675
• 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

Page 675

369 N.E.2d 675

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.

No. 2-677A228.

Court of Appeals of Indiana, First District.

Nov. 23, 1977.

David F. Shadel, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Darrell K. Diamond, Asst. Atty. Gen., Indianapolis, for appellee.

LOWDERMILK, Judge.

This case was transferred to this office from the Second District in order to help eliminate the disparity in caseloads among the Districts.

STATEMENT OF THE CASE

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), its Review Board, and numerous other parties. This court granted Wilson's motion for consolidation of these two matters.

STATEMENT OF THE FACTS

Donna Wilson worked as a waitress at a 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 her 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.

Restaurant filed a Form 501 with the Division December 14, 1976, alleging that Wilson had refused an offer of suitable work. On January 5, 1977, a deputy of the Division gave Wilson written notice that the Division had determined that Wilson was no longer eligible for benefits because of her refusal for personal reasons to accept the offer of employment; the Division immediately suspended payment of benefits to Wilson.

On January 6, 1977, Wilson filed in the Superior Court of Marion County, Room On January 17, 1977, Wilson filed with the Division her request for hearing before a referee. She also filed with the Division on January 26, 1977, 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. The referee denied the motion on date of filing.

No. 5, against the Division and certain other parties, her verified complaint for declaratory and injunctive relief. The action ultimately was transferred to the Marion County Circuit Court.

Wilson received a hearing before a referee on February 9, 1977. The referee's determination was mailed February 15, 1977, and a portion of that determination reads as follows:

"Although the claimant contends that the work offer of December 12, 1976 was not bona fide, the evidence submitted does not establish whether the offer was made for the sole purpose of initiating a disqualification in the claimant's claim for benefits, or was made in good faith and her refusal was reported to the local office under the provisions of Regulation 802 of the Indiana Employment Security Board, which requires an employer to timely furnish potentially disqualifying information to the Division. Since the evidence is persuasive that there was a present opening for a regular, full-time, dayshift waitress on December 12, 1976 and the district manager, who witnessed the offer, was not even aware of the provisions of Chapter 15-2 of the Act until the following day, it is concluded that the claimant was offered reemployment on December 12, 1976 in good faith and not for the purpose of disqualifying her on her unemployment claim.

On February 22, 1977, Wilson filed her request for appeal to the Board.

The trial court granted defendants' motion to dismiss March 4, 1977. Wilson subsequently filed an amended complaint for declaratory and injunctive relief and damages. Defendants filed their motion to dismiss March 21, 1977, which the trial court granted March 22, 1977. On April 6, 1977, the trial court entered judgment of dismissal.

The Review Board heard oral argument April 12, 1977, on the record of the hearing before the referee. On April 14, 1977, the Review Board affirmed the decision of the referee.

ISSUES

1. Whether the decision of the Review Board finding that Wilson refused without good cause an offer of suitable work is contrary to law and not supported by the evidence.

2. Whether the referee erred in denying Wilson's 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.

3. Whether the trial court erred in dismissing Wilson's amended complaint for lack of jurisdiction or for failure to state a claim upon which relief could be granted.

Issue One

The Review Board concluded that the restaurant made a suitable work offer and Wilson refused that offer without good cause. Wilson summarizes her contentions as follows:

" . . . it is clear that the employer was highly motivated by malice and revenge, that the work offer was not genuine, and that there were no job openings. As a matter of law, reasonable persons can reach only these conclusions. Therefore, claimant did not refuse an offer of suitable employment for there was no genuine job offer."

In Skirvin v. Review Board of Indiana Employment Security Division (1976), Ind.App., 355 N.E.2d 425, 428, appear certain guidelines for review of decisions made by the Review Board:

". . . (I)t is the general rule that the Review Board's decision as to all questions of fact is conclusive and binding on this court. . . . On appeal, we will not disturb the decision of the Review Board unless reasonable men would be bound to reach a different conclusion on the evidence in the record. . . . 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. . . ." (Citations omitted)

The district manager testified at the hearing:

"She had come in to the store. Mr. Kleinbub and I were sitting at a table and talking in general, and she came over to the table and wanted to know was she going to get her check the company supposedly owed her; and he said yes, it is coming. I think she left and came back inside. He asked her if she wanted the job back, the same job, and same hours, the same pay; and she said, no; and he asked her again; and her words were, 'get rid of that lead waitress and I will think about it;' and he said, o. k.; and she got up and walked out."

Wilson testified at the hearing:

"Q Did he ask you more than once if you wanted the job back?

"A Yes, twice.

"Q What did he say?

"A He said, do you want your job back; the second time he said, are you sure you don't want your job back?

"Q And you responded what to that?

"A I said, no, that I did not want to work under the lead waitress, if they got another one, maybe.

"Q Did you take that as a serious job offer?

"A No.

"Q Why did you not?

"A Because I knew he knew I would not come back to work. I thought he must be kidding; he knows I won't come back to work.

"Q Was that based on your earlier testimony that you did not have a job if you walked out?

"A Yes. I knew he didn't want me back. He made that very clear on November 12.

"Q Did you speak to any employees . . . that gave you the impression that either Mr. Cady's or Mr. Kleinbub's offer of employment was false, not sincere?

"A No.

"Q Your testimony then that you arrived at the conclusion it wasn't sincere was only from your own impression and the unemployment clerk's impression, not casual. Is that right?

"A Yes.

"Q Have you ever known either Mr. Cady or Mr. Kleinbub or any Steak 'N Shake management ever to make an insincere or false offer of employment to any of the employees?

"A No."

The district manager testified that job openings existed at the time Wilson was offered employment. He also stated that he and the restaurant manager did not learn until after Wilson refused the job offer that a refusal of employment impaired eligibility for collecting unemployment compensation benefits.

Wilson's argument goes solely to weight of the evidence and credibility of witnesses. The record provides evidence of probative value to support the decision of the Review Board. Accordingly, that decision is affirmed.

Issue Two

Wilson filed a motion with the Division in which she asked that the Division

(1) recognize the action as a class action appeal on the issues of the practice and policy of terminating unemployment compensation benefits without advance notice or opportunity for a hearing;

(2) enter an order causing her unemployment compensation benefits to be resumed and to be paid to her until the Division provided her with prior notice of suspension or termination of benefits and opportunity for a hearing; and

(3) adopt a policy, rule, regulation, and practice whereby the Division would continue to pay benefits to recipients who were initially determined eligible for and entitled to receive unemployment compensation benefits unless, prior to any proposed termination or suspension of such benefits based upon its obtaining new information subsequent to the initial determination of eligibility, it provided the recipient with notice and opportunity for hearing.

By written order the referee denied the motion on the date it was...