                                                                                      FILED
                                                                                  Apr 29 2016, 8:57 am

                                                                                      CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Jay Meisenhelder                                           Gregory F. Zoeller
      Jay Meisenhelder Employment & Civil                        Attorney General of Indiana
      Rights Legal Services, P.C.
      Indianapolis, Indiana                                      Andrea E. Rahman
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      P & P Home Services, LLC,                                  April 29, 2016
      Appellant-Petitioner,                                      Court of Appeals Case No.
                                                                 93A02-1511-EX-1818
              v.                                                 Appeal from the Review Board of
                                                                 the Department of Workforce
      Review Board of the Indiana                                Development
      Department of Workforce                                    Cause No.
      Development and Cynthia                                    15-RB-1599
      Hutcherson,
      Appellee-Respondent




      Bailey, Judge.



                                            Case Summary
[1]   P & P Home Services, LLC (“P & P”) appeals a decision of the Review Board

      of the Indiana Department of Workforce Development (“Review Board”)
      Court of Appeals of Indiana | Opinion 93A02-1511-EX-1818 | April 29, 2016                           Page 1 of 7
      finding P & P’s former employee, C.H., to be eligible for unemployment

      compensation benefits. P & P presents the sole issue of whether the Board’s

      decision is contrary to law. We reverse and remand to the Review Board for

      further proceedings.



                                Facts and Procedural History
[2]   P & P is a provider of in-home personal care or health services for individual

      clients P & P refers to as “consumers.” (Ex. Pg 13.) On November 25, 2013,

      C.H. began her full-time employment with P & P. She was assigned to work

      with one particular consumer (“Consumer”). The last day that she provided

      services for Consumer was December 31, 2014.


[3]   On January 8, 2015, P & P notified C.H. that Consumer had terminated the

      business relationship between Consumer and P & P. On January 21, 2015,

      C.H. sent an e-mail message to the CEO of P & P, Ranaye Miles (“Miles”),

      inquiring about the availability of “second shifts” and their locations. (Ex. Pg

      31.) Miles responded, in general terms, that second shift consumers were

      available “all over Indy.” (Ex. Pg 32.) At the same time, Miles advised C.H.

      that she needed medication administration training.1 On the same date, a letter

      was sent by P & P to C.H., requesting that C.H. submit her annual T.B. test




      1
          P & P offered payment for the course, but did not pay wages for the time in attendance.


      Court of Appeals of Indiana | Opinion 93A02-1511-EX-1818 | April 29, 2016                     Page 2 of 7
      result (“expired 11/25/14”) and her vehicle registration (“due before

      expiration”). (Ex. Pg. 36.)


[4]   The requested materials were not submitted. No new consumer was assigned

      to C.H. Communications regarding potential assignments ceased, and P & P

      marked C.H.’s employment file with a date of separation from employment of

      February 15, 2015.


[5]   C.H. sought unemployment benefits and, on July 8, 2015, a claims deputy

      found that C.H. was eligible for benefits because there was a lack of evidence to

      support a determination that C.H. had voluntarily quit her employment. On

      July 10, 2015, P & P appealed. An Administrative Law Judge (“the ALJ”)

      conducted an evidentiary hearing on August 24, 2015. 2 At the conclusion of

      the hearing, the ALJ reversed the decision of the claims deputy, finding that

      C.H. had voluntarily quit her employment without good cause. C.H. appealed

      to the Review Board.


[6]   On October 7, 2015, the Review Board issued an order reversing the ALJ

      decision. The Review Board concluded that the relationship between P & P

      and C.H. was essentially that of a temporary services agency and temporary

      employee; C.H.’s employment relationship with P & P had ended on January 8,

      2015; and C.H. did not leave her employment voluntarily. This appeal ensued.




      2
       The hearing was conducted telephonically, despite the absence of a telephone number for C.H., who did
      not participate.

      Court of Appeals of Indiana | Opinion 93A02-1511-EX-1818 | April 29, 2016                     Page 3 of 7
                                  Discussion and Decision
[7]   Decisions made by the Review Board are subject to review for legal error, but

      questions of fact determined by the Review Board are, absent limited

      exceptions, conclusive and binding. K.S. v. Review Bd. of Ind. Dep’t of Workforce

      Dev., 33 N.E.3d 1195, 1197 (Ind. Ct. App. 2015). The Review 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). The Review Board’s findings are classified in

      three ways: (1) as basic, underlying facts; (2) as “ultimate facts” derived as

      inferences or conclusions from basic, underlying facts; and (3) as conclusions of

      law. Chrysler Group, LLC. v. Review Bd., 960 N.E.2d 118, 122 (Ind. 2012). We

      review the findings of basic facts under a “substantial evidence” standard and

      review ultimate facts to ensure that the Board has drawn a reasonable inference

      in light of its findings on the basic, underlying facts. Id.


[8]   A claimant’s entitlement to unemployment benefits is determined based upon

      the information that is available without regard to a burden of proof. I.C. § 22-

      4-1-2(c). The purpose of the Unemployment Compensation Act is to provide

      unemployment benefits to individuals who are “out of work through no fault of

      their own.” Giovanoni v. Review Bd. of Ind. Dep’t of Workforce Dev., 927 N.E.2d

      906, 909 (Ind. 2010). Therefore, an individual who voluntarily leaves his or her

      employment without good cause in connection with the work is disqualified

      from receiving unemployment compensation benefits. K.S., citing I.C. § 22-4-

      15-1(a). Whether an employee has voluntarily left employment without good

      Court of Appeals of Indiana | Opinion 93A02-1511-EX-1818 | April 29, 2016   Page 4 of 7
       cause in connection with the work presents a question of fact for the Review

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

       (Ind. Ct. App. 2009).


[9]    Here, the Review Board found that C.H.’s employment with P & P ended

       involuntarily when P & P notified C.H., on January 8, 2015, that Consumer

       was no longer using the services of P & P. Without question, C.H. did not

       initiate an end to her employment with P & P on that date. However, the

       Review Board’s premise that the employment relationship necessarily ended on

       that date is based upon treating P & P as if it were a temporary services agency.


[10]   The Review Board cited Cintemp, Inc. v. Unemployment Insurance Review Board,

       717 N.E.2d 988 (Ind. Ct. App. 1999) for the proposition that “once a temporary

       assignment ends, there is no relationship between the temporary employee and

       the temporary service agency except for consideration for future assignments.”

       (App. at 56.) Cintemp involved a consolidated appeal by CTI, a temporary

       services company, of fifteen orders from the Review Board finding that a

       claimant was eligible for unemployment compensation after he or she had been

       temporarily placed in factory employment for sixty to ninety days, accepted an

       offer of full-time permanent employment there, but was subsequently laid off.

       Id. at 989-90. In affirming the orders, a panel of this Court observed:


               A thorough review of the record reveals that substantial evidence
               of probative value exists which supports the ALJs’ findings of
               fact and conclusions as set forth above. The evidence shows that
               once an offer of permanent employment was extended to the
               Claimants by either Cambridge Industries or Libbey-Owens-

       Court of Appeals of Indiana | Opinion 93A02-1511-EX-1818 | April 29, 2016   Page 5 of 7
               Ford, each of the fifteen claimants were faced with the decision
               of either accepting the offer of permanent employment, or cease
               working for both the company and CTI. . . . Blackburn further
               testified that once an assignment with one of CTI’s corporate
               clients had ended, either for lack of work or some other reason,
               they were ‘no longer a CTI employee’ and that there was no
               continuing relationship between CTI and the Claimant, other
               than consideration for future assignments.


       Id. at 992-93.


[11]   The nature of the employment relationship between C.H. and P & P does not

       mirror the employment relationship in Cintemp. There, employees were placed

       “with certain corporate clients on a temporary basis.” Id. at 990. Given the

       expectation of temporary employment only during the sixty to ninety-day

       window before permanent employment could be offered, this particular

       employment relationship between CTI and an employee would inevitably

       terminate.


[12]   These are not the circumstances under which C.H. accepted employment with

       P & P. C.H. did not come to the pre-determined end of a temporary

       probationary placement with a potential future employer. She was a permanent

       employee of P & P, although she had no assurance that she would always be

       assigned to provide services to Consumer. The employment arrangement

       contemplated successive assignments at different locations and of varying

       durations while the caregiver remained the employee of P & P. The employee

       handbook advised that “additional” training was required, tailored to each

       consumer’s needs (for example, “seizure management”). (Ex. Pg. 13.)

       Court of Appeals of Indiana | Opinion 93A02-1511-EX-1818 | April 29, 2016   Page 6 of 7
[13]   The Review Board reached its decision based upon the premise that the

       employment relationship at issue was one of a temporary employer and

       temporary employee. Finding the relationship severed as a matter of law, the

       Review Board did not consider whether a permanent employment relationship

       was voluntarily severed by the employee. Accordingly, we remand for a factual

       determination of whether, in light of the communications between the parties

       and the surrounding circumstances, C.H. voluntarily left her employment

       without good cause.


[14]   Reversed and remanded.


       Bradford, J., Altice, J., concur.




       Court of Appeals of Indiana | Opinion 93A02-1511-EX-1818 | April 29, 2016   Page 7 of 7
