Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                FILED
                                                             Feb 20 2013, 9:37 am
court except for the purpose of
establishing the defense of res judicata,                            CLERK
                                                                   of the supreme court,
collateral estoppel, or the law of the case.                       court of appeals and
                                                                          tax court




APPELLANT PRO SE:                               ATTORNEYS FOR APPELLEE:

BRADLEY J. OSKEY                                GREGORY F. ZOELLER
Fort Wayne, Indiana                             Attorney General of Indiana

                                                STEPHANIE L. ROTHENBERG
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                            IN THE
                  COURT OF APPEALS OF INDIANA

BRADLEY J. OSKEY,                  )
                                   )
      Appellant-Petitioner,        )
                                   )
             vs.                   )                    No. 93A02-1203-EX-272
                                   )
REVIEW BOARD OF THE INDIANA        )
DEPARTMENT OF WORKFORCE            )
DEVELOPMENT and CL SCHUST COMPANY, )
INC.,                              )
                                   )
      Appellees-Respondents.       )


             APPEAL FROM THE REVIEW BOARD OF THE DEPARTMENT
                        OF WORKFORCE DEVELOPMENT
                      The Honorable Steven F. Bier, Chairperson
                                Cause No. 12-R-464


                                    February 20, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge

       In this case, the appellant-claimant, Bradley J. Oskey, quit his job as a roofer with

the CL Schust Company (Schust). Contending that he quit because Schust was, in fact,

not paying him the required wage amount, Oskey applied for unemployment benefits.

The evidence presented at the hearing before the Administrative Law Judge (ALJ)

demonstrated that Oskey failed to take reasonable steps to inform Schust of the issues

regarding his compensation until after he had quit.

       In light of these circumstances, we agree with the ALJ’s and the Review Board’s

determination that Oskey voluntarily left his employment without good cause and,

therefore, is not eligible for unemployment compensation benefits. As a result, we affirm

the Review Board’s decision to deny Oskey’s claim for benefits.

                                         FACTS

       On October 9, 2008, Oskey began working for Schust as a roofer. Oskey was a

full-time hourly employee and was assigned to a project at the Randolph County

Courthouse. Oskey last worked for Schust on September 23, 2011. On that day, Oskey

turned in his time card and key, told a Schust representative that he could not work for

the level of pay that he was receiving, and quit work. Oskey claimed, and it was later

found, that Schust was not meeting the wage scale requirement on the courthouse job.

       Oskey subsequently applied for unemployment benefits with the Indiana

Department of Workforce Development (DWD).             On December 26, 2011, a claims


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deputy with the DWD found that Oskey voluntarily left his employment without good

cause.     Oskey appealed that decision, and a telephonic hearing with the ALJ was

conducted on January 17, 2012. Oskey was present, and an administrative assistant,

Cindy Royer, represented Schust.

         At that hearing, Oskey claimed that he quit working for Schust because he had

learned on September 23, 2011, that the job he was working was a “wage scale job,” and

he was not being paid the proper amount. Ex. p. 46-47. Royer acknowledged that

Oskey’s assertion was correct.      More specifically, Royer testified that she was the

individual in charge of payroll and that no one from Schust had informed her that Oskey

was performing a wage scale job. Royer specifically acknowledged at the hearing before

the ALJ that Schust had not been paying Oskey the required wage amount while he was

working at the Randolph County Court House.

         After quitting, Oskey contacted Schust’s owner and brought the wage error to his

attention. At that point, Schust paid Oskey the difference between the wages he had

earned and the wages that he should have been earning. Schust also issued a check to

Oskey for the cash equivalent of the fringe benefits that Oskey had opted out of.

         The ALJ found that Oskey was not being paid the correct wage amount while

working as a roofer at the court house. However, it was also determined Oskey did not

attempt to resolve the issues with Schust before quitting. Oskey admitted that he had not

raised any questions regarding the wage scale payments before quitting, but he claimed

that he should not have been required to do so. When Oskey quit, representatives from

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Schust assumed that his concern about his pay was because he had recently been demoted

and had received a pay cut for wages that he had received on non-governmental jobs.

However, Oskey admitted that he quit work because Schust had not been meeting the

wage scale requirements.

         Following the hearing, the ALJ affirmed the claims deputy’s decision denying

Oskey’s request for benefits. The ALJ found, among other things, that Oskey quit work

with Schust because he was not being paid the correct amount. The ALJ also found that a

reasonably prudent person would feel compelled to leave employment under these

circumstances.

         However, the ALJ also determined that Oskey did not make reasonable efforts to

maintain his employment relationship with Schust prior to quitting. Moreover, it is

undisputed that Schust corrected Oskey’s pay when Oskey raised his concerns after he

quit. Because Oskey did not raise these issues before he quit work, the ALJ found that

Oskey voluntarily left his employment with Schust without good cause “in connection

with the work as defined by IC 22-4-15-1.” Ex. 46, 47.

         On March 1, 2012, the Review Board affirmed the ALJ’s decision. Additionally,

while it was determined that Schust had not been paying Oskey the proper amount for his

work at the court house, the Review Board found that Oskey did not present any evidence

that Schust “intentionally failed to pay him [the] . . . mandated wages.” Appellant’s App.

p. 45.    Oskey now appeals.



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                            DISCUSSION AND DECISION

                                 I. Standard of Review

      We initially observe that the Unemployment Compensation Act provides that

“[a]ny decision of the review board shall be conclusive and binding as to all questions of

fact.” McClain v. Rev. Bd. of the Ind. Dept of Workforce Dev., 693 N.E.2d 1314, 1316

(Ind. 1998). Moreover,

      Indiana Code § 22-4-17-12(f) provides that when the Board’s decision is
      challenged as contrary to law, the reviewing court is limited to a two part
      inquiry into: (1) “the sufficiency of the facts found to sustain the decision”;
      and (2) “the sufficiency of the evidence to sustain the findings of facts.”
      Under this standard courts are called upon to review (1) determinations of
      specific or “basic” underlying facts, (2) conclusions or inferences from
      those facts, sometimes called “ultimate facts,” and (3) conclusions of law.

Id. at 1317.

      Under our standard of review, we neither reweigh the evidence nor assess the

credibility of witnesses and consider only the evidence most favorable to the Review

Board’s findings. Id. We will reverse the decision “only if there is no substantial

evidence to support the findings.” Id.

      Questions of ultimate facts are essentially “mixed questions of law and fact.” Id.

at 1318. The ultimate facts are typically reviewed to ensure that the Review Board’s

inference is reasonable.    Some questions of ultimate fact are within the special

competence of the Review Board.          In such cases, a court should “exercise greater

deference to the reasonableness of the Board’s conclusion.” Id. The Review Board’s

deduction requires reversal if the underlying facts are not supported by substantial

                                             5
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. Id.

                                 II. Oskey’s Contentions

       Oskey argues that the Review Board erred in denying his request for

unemployment benefits. Specifically, Oskey asserts that he was entitled to such benefits

because he “was denied statutorily mandated wages throughout the course of [his]

employment with Schust.” Appellant’s Br. p. 1.

       In resolving this issue, we initially observe that when an individual voluntarily

leaves his employment “without good cause in connection with the work,” he is

disqualified from receiving unemployment compensation benefits. Ind. Code § 22-4-15-

1(a); Indianapolis Osteopathic Hosp., Inc. v. Jones, 669 N.E.2d 431, 434 (Ind. Ct. App.

1996). Whether an employee voluntarily leaves his employment without good cause in

connection with the work is a question of fact to be determined by the Review Board.

Indianapolis Osteopathic Hosp., 669 N.E.2d at 433.

       In Best Chairs, Inc. v. Review Board, 895 N.E.2d 727, 730 (Ind. Ct. App. 2008),

the following standard was set forth for determining what the claimant must prove to

show good cause for leaving a job:

       The employee has the burden of establishing that the voluntary termination
       of employment was for good cause, meaning that the employee must show
       that:

       (1) The reasons for leaving employment were such as to impel a reasonably
           prudent person to terminate employment under the same or similar
           circumstances; and (2) the reasons are objectively related to the

                                             6
          employment. This second component requires that the employee show
          her reasons for terminating employment are job-related and objective in
          nature, excluding reasons which are personal and subjective.

895 N.E.2d at 730 (internal citation omitted).

       As discussed above, Oskey left his employment with Schust because he believed

that he was not being properly compensated. Appellant’s Br. p. 1-3; Tr. p. 4-15. And it

was in fact found that Schust had not been paying Oskey the correct amount of wages

while he was working at the court house. Appellant’s App. p. 44-45, 47. However, it is

apparent that Oskey did not take any steps before leaving his employment to ascertain

whether he could or would receive a higher wage per hour and reimbursement for

previous hours that he had been underpaid.       Indeed, it was only after quitting his

employment with Schust that Oskey complained to management about the discrepancy in

the payment of “wage scale” versus his normal hourly wage rate. Tr. p. 8. And as

mentioned above, when Oskey contacted Schust after he had quit, the discrepancies in the

wages were rectified. Id. at 7-8.

       In light of these circumstances, we agree with the Review Board’s decision that a

reasonable person would have brought such wage discrepancies to the attention of

Schust’s management or its human resources department prior to leaving employment.

That said, we cannot say that it was reasonable for Oskey to quit, subsequently contact

the management of the company about allegedly unfair wages, and then make a claim for

unemployment benefits. This is particularly so here, because when Schust was notified



                                             7
of the errors, it attempted to remedy its error by correcting the amount and issuing a

check to Oskey.

      While we in no way condone Schust’s underpayment of wages, we must conclude

that because Oskey did not make a reasonable effort to maintain his employment

relationship with Schust, he is not entitled to collect unemployment benefits. Put another

way, the Review Board correctly determined that a reasonably prudent person would

have first discussed the issue involving wage discrepancies with the company before

leaving employment. As a result, it was properly determined that Oskey voluntarily left

his employment without good cause in connection with the work and, therefore, is not

eligible for unemployment compensation benefits.

      The decision of the Review Board is affirmed.

RILEY, J., and BARNES, J., concur.




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