                                                                          FILED
                                                                      Nov 01 2018, 8:35 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
George C. Patrick                                         Curtis T. Hill, Jr.
Crown Point, Indiana                                      Attorney General of Indiana
                                                          Aaron T. Craft
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Company,                                                  November 1, 2018
Appellant,                                                Court of Appeals Case No.
                                                          18A-EX-917
        v.                                                Appeal from the Review Board of
                                                          the Department of Workforce
Review Board of the Indiana                               Development
Department of Workforce                                   Case No.
Development and S.W.,                                     18-R-226
Appellees



Baker, Judge.




Court of Appeals of Indiana | Opinion 18A-EX-917 | November 1, 2018                           Page 1 of 10
[1]   S.W. was employed full-time by his employer (Company). When he

      voluntarily terminated his position, he sought unemployment benefits under

      Indiana’s Unemployment Compensation Act (the Act).1 The Department of

      Workforce Development (DWD) awarded him benefits. Company now

      appeals, arguing that the Review Board erred by determining that S.W. was

      eligible for unemployment benefits. Finding no error, we affirm.


                                                         Facts      2




[2]   On May 26, 2015, S.W. began working full-time for Company. Around the

      time of his separation, he was performing his assigned job duties as a

      department head. But on October 30, 2017, S.W. was placed on a thirty-day

      performance improvement plan, which included a list of expectations for S.W.

      to meet and which informed S.W. that unless he demonstrated significant

      improvement, he would be subject to discipline. Company claims it placed

      S.W. on the improvement plan because of concerns that S.W. was not




      1
          Ind. Code § 22-4-1-1 et. seq.
      2
        Initially, we note that Company submitted a brief that is single-spaced. This format violates Indiana
      Appellate Rule 43(E), which requires that “[a]ll text shall be double-spaced . . . .” Company’s brief also
      violates Appellate Rule 46(A)(1), which requires a table of contents to list each section of the brief, including
      the headings and subheadings of each section and the page on which they begin. Company failed to include
      the headings of its argument section and the appropriate page numbers.
      Further, Company’s statement of facts violates Appellate Rule 46(A)(6)(b), which requires that the facts “be
      stated in accordance with the standard of review appropriate to the judgment or order being appealed.” As
      discussed in detail below, the standard of review for this case requires that the decision of the Review Board
      be conclusive and binding for all questions of fact. Ind. Code § 22-4-17-12(a). Company’s brief blatantly
      disregards this standard of review; instead of presenting the facts in a light favorable to the Review Board’s
      decision, Company presents only facts that favor its desired outcome and omits facts that support the Review
      Board’s findings of fact and conclusions of law.



      Court of Appeals of Indiana | Opinion 18A-EX-917 | November 1, 2018                                  Page 2 of 10
      sufficiently performing his job duties. While S.W. was on the improvement

      plan, he was not informed that his job performance did not meet the level of

      improvement that Company wanted.


[3]   On November 30, 2017, at the end of the duration of the improvement plan,

      Company met with S.W., informing him that he had a choice: he could be

      demoted to a lower position with lower pay or he could resign. S.W. was not

      eligible for discharge at that time. He chose to resign.


[4]   At some point, S.W. sought unemployment benefits. On January 4, 2018, a

      DWD claims deputy determined that S.W. had not been discharged for just

      cause and awarded S.W. unemployment benefits. On January 12, 2018,

      Company appealed the grant of benefits to the DWD’s appeals division.


[5]   On February 7, 2018, an administrative law judge (ALJ) conducted a hearing

      by telephone. During the hearing, one of Company’s witnesses, who was

      S.W.’s supervisor and the assistant director, testified that Company placed S.W.

      on the performance improvement plan because 1) he was not communicating

      daily with his supervisors or training his staff as directed; 2) he was absent from

      his work area several times a week; 3) he did not provide documentation of

      conversations he had with supervisors or staff, including documentation about a

      shift change for one employee; and 4) he changed his shift without notifying his

      supervisors. The supervisor also testified that Company was not aware that

      S.W. had not created training materials or conducted any trainings until he was

      already on the improvement plan. The supervisor then testified that S.W. did


      Court of Appeals of Indiana | Opinion 18A-EX-917 | November 1, 2018       Page 3 of 10
      not successfully complete the plan because 1) he did not meet deadlines and 2)

      he was not a cooperative or communicative employee. The supervisor was

      unable to identify a specific deadline that S.W. had missed and was inconsistent

      in describing when he had asked S.W. to submit certain materials.


[6]   S.W. testified that his job required him to be in different departments; that his

      supervisor bore him ill will and was creating a hostile work environment,

      leading S.W. to file a complaint with the human resources office; that he was

      directed to perform staff trainings but not to create training materials; that when

      he was asked for a training checklist, he could not find it at that time but

      delivered it to the director later that day; that he talked with his supervisor every

      day; and that he was never told that his position was in jeopardy.


[7]   The next day, the ALJ issued a decision, concluding that S.W. voluntarily left

      his employment with good cause in connection with the work and determined

      that S.W. was eligible to receive unemployment benefits.


[8]   On February 21, 2018, Company appealed the ALJ’s decision to the DWD’s

      Review Board. The Review Board did not conduct a hearing and did not

      consider any evidence not admitted by the ALJ. On March 12, 2018, the

      Review Board affirmed the ALJ’s decision, adopting and incorporating the

      ALJ’s findings of fact and conclusions of law. Company now appeals.




      Court of Appeals of Indiana | Opinion 18A-EX-917 | November 1, 2018        Page 4 of 10
                                     Discussion and Decision                        3




[9]   Company argues that the Review Board erred by determining that S.W.

      voluntarily left his position for good cause in connection with the work. The

      standard of review for an order from the Review Board is well established:


               Under Indiana’s Unemployment Compensation Act, “[a]ny
               decision of the review board shall be conclusive and binding as to
               all questions of fact.” Ind. Code § 22-4-17-12(a) (2007). The
               Board’s conclusions of law may be challenged as to “the
               sufficiency of the facts found to sustain the decision and the
               sufficiency of the evidence to sustain the findings of facts.” Ind.
               Code § 22-4-17-12(f). Consistent with appellate review of other
               administrative adjudications, we categorize the Board’s findings
               three ways: (1) basic, underlying facts; (2) ultimate facts derived
               as inferences or conclusions from basic, underlying facts; (3) and
               conclusions of law.


               We review the Board’s findings of basic facts under a substantial
               evidence standard, and we neither reweigh the evidence nor
               assess its credibility. We consider only the evidence most
               favorable to the Board’s findings and, absent limited exceptions,
               treat those findings as conclusive and binding.




      3
        The crux of Company’s argument is that S.W. failed to carry his burden of proof to establish that his
      voluntary termination of his employment was for good cause. Company’s argument is misguided. In the
      past, when a claimant sought unemployment benefits, the employer bore the initial burden of establishing
      that an employee was terminated for just cause, and if the employer met this burden, the claimant had to
      present evidence to rebut the employer’s showing. Brown v. Ind. Dep’t of Workforce Dev., 919 N.E.2d 1147,
      1151 (Ind. Ct. App. 2009). In 2014, however, our General Assembly amended the Act, eliminating the
      burdens of proof from disputed benefits hearings. See Ind. Code § 22-4-1-2(c). The Act now provides that a
      claimant’s “entitlement to unemployment benefits is determined based on the information that is available
      without regard to a burden of proof.” I.C. § 22-4-1-2(c) (emphasis added). The merit of Company’s argument is
      significantly diminished by its reliance on outdated law.

      Court of Appeals of Indiana | Opinion 18A-EX-917 | November 1, 2018                               Page 5 of 10
               Ultimate facts—typically mixed questions of fact and law—are
               reviewed to ensure the Board has drawn a reasonable inference in
               light of its findings on the basic, underlying facts. Where the
               matter lies within the particular expertise of the administrative
               agency, we afford the finding a greater level of deference. Where
               the matter does not lie within the particular expertise of the
               agency, however, the reviewing court is more likely to exercise its
               own judgment. Regardless, the court examines the logic of the
               inference drawn and imposes any rules of law that may drive the
               result. The Board’s conclusion must be reversed if the underlying
               facts are not supported by substantial evidence or the logic of the
               inference is faulty, even where the agency acts within its
               expertise, or if the agency proceeds under an incorrect view of the
               law.


       Chrysler Grp., LLC v. Review Bd. of Ind. Dep’t of Workforce Dev., 960 N.E.2d 118,

       122-23 (Ind. 2012) (some citations, internal quotation marks, and footnote

       omitted). We are not bound by the Review Board’s conclusions of law. Id.

       Rather, we review questions of law de novo and accord the administrative

       tribunal below no deference. NIPSCO Indus. Grp. v. N. Ind. Pub. Serv. Co., 100

       N.E.3d 234, 241 (Ind. 2018).


[10]   An individual is eligible for benefits under the Act if he satisfies certain criteria

       and is not disqualified by certain criteria. Ind. Code ch. 22-4-14, -15. An

       individual is disqualified from receiving unemployment benefits if he

       “voluntarily left the employment without good cause in connection with the

       work[.]” Ind. Code § 22-4-15-1(a). Here, it is undisputed that S.W. satisfied

       the Act’s eligibility criteria and that he voluntarily terminated his employment.




       Court of Appeals of Indiana | Opinion 18A-EX-917 | November 1, 2018          Page 6 of 10
       The dispositive issue, therefore, is whether S.W. terminated his job with or

       without “good cause in connection with the work.” Id.


[11]   Company contends that the evidence does not support the Review Board’s

       order. Regarding the basic, underlying facts, the Review Board found that

       Company placed S.W. on a thirty-day performance improvement plan

       ostensibly out of concern that he was not performing his job duties, such as not

       properly training his subordinates and not being in his work area at scheduled

       times. But the Review Board found that, in fact, S.W. had performed his

       assigned duties both before and during the implementation of the improvement

       plan. Appealed Order p. 2. The following evidence supports the Review

       Board’s findings of fact:


           • S.W. provided all the documentation that his supervisors requested
             during the thirty-day performance improvement period. He spoke daily
             with the assistant director and provided the assistant director with daily
             and weekly incident reports.
           • Although S.W. had been unable to produce training records on demand,
             he delivered them to the director the same day they were requested.
           • S.W.’s job duties frequently required him to leave his work area to speak
             with people in other departments.
           • S.W. maintained “an employee fact file” to document each time he
             talked to or reprimanded a staff person. Tr. p. 31. He also documented
             the reason he changed one employee’s shift.
           • S.W.’s supervisors did not instruct him to create training materials while
             he was on the improvement plan, and he was not told that his position
             was in jeopardy.

       Moreover, the Review Board found that Company’s “witnesses were all but

       entirely unable to provide details about the specific incidents that resulted in”

       Court of Appeals of Indiana | Opinion 18A-EX-917 | November 1, 2018       Page 7 of 10
       S.W.’s placement on the performance improvement plan or the subsequent

       demotion and that Company’s primary witness contradicted his own testimony

       more than once. Appealed Order p. 2. This evidence clearly supports the

       Review Board’s findings of fact.


[12]   Finding that the evidence supports the findings of fact, we now turn to whether

       the Review Board’s determination that S.W. voluntarily terminated his

       employment for good cause in connection with the work is a reasonable

       determination of ultimate fact based on the basic, underlying facts.


[13]   This Court has long held that if an employer unilaterally changes agreed upon

       employment terms, the employee may either accept the changes and continue

       working under the new terms or reject the changes and quit the job. Quillen v.

       Review Bd. of Ind. Emp’t Sec. Div., 468 N.E.2d 238, 241 (Ind. Ct. App. 1984). An

       employee terminating employment under these circumstances does so with

       “good cause” and is entitled to unemployment benefits so long as the

       circumstances are “so unfair or unjust as to compel a reasonably prudent person

       to quit work.” Id. at 241-42. Whether those circumstances exist depends on the

       justification for and the reasonableness and fairness of the changed conditions.

       See Davis v. Review Bd. of Ind. Dep’t of Workforce Dev., 900 N.E.2d 488, 492-93

       (Ind. Ct. App. 2009). “Consideration of the reasonableness of the terms of the

       new position guards against draconian demotions that have the intended effect

       of constructively discharging an employee whom the employer might not

       otherwise be able to discharge for just cause.” Id. at 494 n.2. When the

       employer unjustly or unfairly demotes an employee who subsequently quits,

       Court of Appeals of Indiana | Opinion 18A-EX-917 | November 1, 2018       Page 8 of 10
       that employee quits with good cause in connection with the work. Id. at 492-

       93.


[14]   Here, S.W. faced a choice: he could accept a demotion to a position with

       different job duties and a lower pay rate or he could resign. Company placed

       S.W. on a thirty-day performance improvement plan even though he had been

       performing his assigned job duties; once he was on the plan, he complied with

       it. Nonetheless, Company decided to demote him. The specific circumstances

       leading to S.W.’s resignation differ greatly from cases in which this Court has

       found that an employee who resigned when facing a demotion did so without

       good cause. See id. at 493 (finding that employer reasonably and fairly demoted

       employee who, over the course of nearly one year, was unable or unwilling to

       improve his skills for one of his main job functions, and that employee resigned

       without good cause). As the Review Board found, there simply was a lack of

       “sufficient or sufficiently credible evidence . . . to conclude that [S.W.’s] work

       performance was such that [he] should have been placed on the [performance

       improvement plan], much less that [he] should have been demoted to a lower

       position.” Appealed Order p. 2. S.W.’s performance was not deficient, and

       Company’s unilateral change in employment terms was so unreasonable or

       unfair as to compel a reasonably prudent person to quit work under similar

       circumstances. Thus, the Review Board did not err by finding that S.W.

       voluntarily terminated his employment for good cause in connection with the

       work.




       Court of Appeals of Indiana | Opinion 18A-EX-917 | November 1, 2018        Page 9 of 10
[15]   The judgment of the Review Board is affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 18A-EX-917 | November 1, 2018   Page 10 of 10
