Delbert Conklin v. Review Board of the Indiana Department of Workforce Development and Carter Express, Inc. , 966 N.E.2d 761 ( 2012 )


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  •                                                        FILED
    Apr 24 2012, 9:20 am
    FOR PUBLICATION                                             CLERK
    of the supreme court,
    court of appeals and
    tax court
    APPELLANT PRO SE:                        ATTORNEYS FOR APPELLEES:
    DELBERT E. CONKLIN                       GREGORY F. ZOELLER
    Indianapolis, Indiana                    Attorney General of Indiana
    ELIZABETH ROGERS
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    DELBERT CONKLIN,                      )
    )
    Appellant,                       )
    )
    vs.                       )         No. 93A02-1109-EX-864
    )
    REVIEW BOARD OF THE INDIANA           )
    DEPARTMENT OF WORKFORCE               )
    DEVELOPMENT and CARTER EXPRESS, INC., )
    )
    Appellees.                       )
    APPEAL FROM THE REVIEW BOARD OF THE DEPARTMENT OF
    WORKFORCE DEVELOPMENT
    Cause No. 11-R-3768
    April 24, 2012
    OPINION - FOR PUBLICATION
    BARNES, Judge
    Case Summary
    Delbert Conklin appeals the denial of his application for unemployment benefits
    by the Review Board of the Indiana Department of Workforce Development (“the
    Board”). We reverse.
    Issue
    The sole restated issue we need address is whether there is sufficient evidence to
    support the Board’s decision that Conklin was terminated from his employment for just
    cause.
    Facts
    Conklin was employed by Carter Express, Inc. (“Carter”), as a truck driver.1 On
    May 24, 2011, Conklin was driving a load from Anderson to Peoria, Illinois, when he
    blacked out for a brief period of time. This caused him to drive off the road and cause
    damage to the truck and load he was carrying, but he awoke in time to avoid hitting trees
    by the side of the road. No evidence has been presented as to the medical cause of
    Conklin’s black out, nor were there any mechanical problems with the truck.2 There is no
    evidence Conklin was under the influence of drugs or alcohol. He had never experienced
    such an episode before, and there is no evidence in the record of Conklin being involved
    1
    Neither Conklin nor Carter has sought to maintain their confidentiality in these proceedings. Thus, we
    use their full names in this opinion, pursuant to Recker v. Review Bd. of the Ind. Dep’t of Workforce
    Dev., 
    958 N.E.2d 1136
    , 1138 n.4 (Ind. 2011).
    2
    Conklin, representing himself pro se, has compiled an appendix that includes a medical report from the
    hospital where he was taken after the accident and that seems to indicate his black out might have been
    caused by “medication errors” related to blood pressure medication he was taking. App. p. 13. It does
    not appear this document was introduced into evidence before the Board.
    2
    in any other accidents while working for Carter. After the accident, Carter’s internal
    accident review board reviewed the accident.           It recommended that Conklin’s
    employment be terminated because it was unsafe for him to continue driving commercial
    trucks on public roads.
    Conklin filed an application for unemployment insurance benefits, which was
    approved by a claims deputy. Carter then appealed to an administrative law judge
    (“ALJ”), which reversed the deputy’s determination and found that Conklin was not
    eligible for unemployment benefits. The ALJ’s order found in pertinent part:
    The employer proved that the claimant demonstrated a willful
    or wanton disregard to the employer’s interest. The claimant
    was responsible for transporting the load in a safe manner and
    the claimant blacked out and caused damage. The claimant
    could provide no reason or explanation of his black out.
    Based upon the lack of explanation, the Administrative Law
    Judge concludes it is reasonable to find the claimant an
    imminent safety hazard. Therefore, the Administrative Law
    Judge concludes that the claimant breached a duty reasonably
    owed to the employer and that the claimant was discharged
    for just cause . . . .
    App. p. 5.     Conklin appealed, and the Board affirmed the ALJ’s decision and
    incorporated her order by reference. Conklin now appeals.
    Analysis
    When reviewing a decision of the Board, our analysis is threefold: (1) we review
    findings of basic fact for substantial evidence; (2) we review findings of mixed questions
    of law and fact—ultimate facts—for reasonableness; and (3) we review legal propositions
    for correctness. Recker v. Review Bd. of the Ind. Dep’t of Workforce Dev., 
    958 N.E.2d 3
    1136, 1139 (Ind. 2011). “Ultimate facts are facts that ‘involve an inference or deduction
    based on the findings of basic fact.’” 
    Id. (quoting McClain
    v. Review Bd. of Ind. Dep’t
    of Workforce Dev., 
    693 N.E.2d 1314
    , 1317 (Ind. 1998)). We will give greater deference
    to the Board’s conclusions when such facts are within the Board’s special competence,
    broadening the scope of what can be considered reasonable. 
    Id. This case
    turns upon
    resolution of whether Carter discharged Conklin from his employment for “just cause,”
    thus disqualifying him from eligibility for unemployment benefits; this presents a
    question of ultimate fact that we review for reasonableness. See 
    id. Indiana Code
    Section 22-4-15-1(d) lists nine non-exclusive factors constituting
    “discharge for just cause” that will result in denial of unemployment benefits to a
    discharged employee, including “any breach of duty in connection with work which is
    reasonably owed an employer by an employee.” Ind. Code § 22-4-15-1(d)(9). This is the
    sole basis argued by the Board in support of the denial of benefits to Conklin. An
    employer seeking to deny unemployment benefits to a fired employee bears the burden of
    establishing a prima facie case that the discharge was for “just cause.” P.K.E. v. Review
    Bd. of Indiana Dep’t of Workforce Dev., 
    942 N.E.2d 125
    , 130 (Ind. Ct. App. 2011),
    trans. denied. Once this burden is met, the employee bears the burden of producing
    evidence to rebut the employer’s evidence. 
    Id. In Recker,
    our supreme court quoted with approval this court’s decision in Hehr v.
    Review Bd. of Ind. Employment Sec. Div., 
    534 N.E.2d 1122
    (Ind. Ct. App. 1989),
    wherein we noted that the “breach of duty” justification for a “just cause” discharge
    4
    “‘is an amorphous one, without clearly ascertainable limits or definition, and with few
    rules governing its utilization.’” 
    Recker, 958 N.E.2d at 1140
    (quoting 
    Hehr, 534 N.E.2d at 1126
    ). Additionally,
    In considering whether an employer may utilize this provision
    as a basis for justifying its action, the Board should consider
    whether the conduct which is said to have been a breach of a
    duty reasonably owed to the employer is of such a nature that
    a reasonable employee of the employer would understand that
    the conduct in question was a violation of a duty owed the
    employer and that he would be subject to discharge for
    engaging in the activity or behavior.
    
    Hehr, 534 N.E.2d at 1126
    .
    Recker undertook a thorough examination of the type of evidence necessary to
    support an employer’s claim than an employee was terminated for “just cause” for
    “breach of duty” owed to the employer. It first stated that pursuant to Giovanoni v.
    Review Bd. of Ind. Dep’t of Workforce Dev., 
    927 N.E.2d 906
    , 908-12 (Ind. 2010), there
    must be two separate inquiries on this issue: first, whether the employee in fact breached
    a duty owed to the employer, and second, whether the employee was “at fault” for the
    breach. 
    Recker, 958 N.E.2d at 1140
    .
    Giovanoni, in turn, addressed a claim that an employee had been discharged for
    “just cause” for violating the employer’s attendance policy. In deciding the case, the
    court relied upon the stated legislative purpose behind the Indiana Unemployment
    Compensation Act, which is “‘provide payment of benefits to persons unemployed
    through no fault of their own . . . .” 
    Giovanoni, 927 N.E.2d at 910
    (quoting I.C. § 22-4-1-
    5
    1) (emphasis added in Giovanoni). Building upon this statutory language, our supreme
    court held:
    In light of the Legislature’s pronouncement, “just cause”
    determinations, as they pertain to an employee’s discharge,
    must be consistent with the legislative purpose underlying the
    Act—to provide financial assistance to an individual who had
    worked, was able and willing to work, but through no fault of
    his or her own, is temporarily without employment.
    Disqualification is inappropriate if the totality of the
    circumstances establishes that a claimant is unemployed
    through no fault of his own. At a minimum, the claimant
    must have performed some volitional act or have exercised
    some control over the circumstances resulting in the
    discharge from employment.
    
    Id. The Recker
    opinion noted that the stated reason for discharge in Giovanoni—
    violation of an attendance policy—statutorily required consideration of the employee’s
    intent in violating the policy, while a discharge for “breach of duty” does not require any
    such consideration, at least as far as the language of the statute is concerned. 
    Recker, 958 N.E.2d at 1142
    .3 Similarly, Recker seems to have disapproved of opinions from this
    court to the extent they suggested that a “breach of duty” must have been “willful” in
    order for a discharge to have been made with “just cause,” because of the lack of any
    statutory language requiring examination of whether an employee’s “breach of duty” was
    intentional or willful. 
    Id. at 1140
    n.6. It also stated that Giovanoni “did not address
    3
    See I.C. § 22–4–15–1(d)(2) (requiring a “knowing” violation of an employer rule, including an
    attendance rule, to constitute a “discharge for just cause”), and I.C. § 22–4–15–1(d)(3) (requiring that an
    employee show “good cause” to exclude absences or tardiness, in absence of employer rule governing
    attendance, from constituting a “discharge for just cause”).
    6
    whether the General Assembly intended to provide unemployment benefits to persons
    who unintentionally breach a duty to their employer.” 
    Id. at 1142.
    Regardless, the Recker court then proceeded to address whether the particular
    employee in that case had either acted volitionally or had exercised some control over the
    circumstances that led to her discharge. 
    Id. On that
    point, the court concluded that the
    employee’s failure on three occasions to pass a driving test essential to her employment
    as a delivery truck driver were matters over which the employee had “some control.” 
    Id. Observing that
    the employee was not claiming that her failure to pass the test was the
    result of a “demonstrable impediment,” the court held that it was reasonable for the
    Board to find that the employee had been discharged for “just cause” for breaching a duty
    owed to her employer. 
    Id. In sum,
    despite language in Recker suggesting that a “just cause” discharge
    determination for “breach of duty” statutorily does not require any consideration of the
    willfulness of the employee’s conduct, the court still deemed it necessary to address
    whether an employee’s conduct was volitional and/or whether he or she exercised “some
    control” over the circumstances leading to the discharge. See 
    id. Here, the
    Board wisely
    makes no attempt on appeal to defend the ALJ’s finding that Conklin’s involuntary act of
    passing out while driving was “willful and wanton . . . .” App. p. 5. Still, it argues that
    Conklin’s conduct “disregarded Carter Express’s interest,” and that that alone was
    sufficient to support denial of unemployment benefits to Conklin. Appellee’s Br. p. 9.
    7
    We disagree. We have no doubt that Conklin’s passing out while driving and
    damaging his truck were acts that breached his duty to Carter. As Giovanoni and Recker
    both make clear, however, there must also be evidence that this breach was Conklin’s
    fault. In other words, the accident must have been the result of a “volitional act” or
    circumstances over which Conklin exercised “some control.” See 
    Recker, 958 N.E.2d at 1142
    . We simply cannot perceive how an unexplained, involuntary act of passing out
    while driving can be construed as a “volitional” act or a circumstance over which Conklin
    exercised “some control.”4 To conclude otherwise would simply stretch the concepts of
    “volitional” or “control” beyond their breaking points. Thus, although Carter submitted
    sufficient evidence of a breach of duty on Conklin’s part in wrecking his truck, it did not
    sustain its burden of proving that the breach was his fault, in light of the undisputed
    finding that he involuntarily passed out while driving. The Board’s determination that
    Conklin was discharged for “just cause” was unreasonable.
    The Board argues in part, “Requiring Carter Express to continue employing and
    allowing individuals to drive trucks who suffer from inexplicable blackouts would expose
    it to an unacceptable risk.” Appellee’s Br. pp. 8-9. This argument is specious and blurs
    the line between the employment-at-will doctrine and the statutes and caselaw governing
    unemployment compensation. Carter certainly was not required to continue to employ
    Conklin. The fear of having to pay unemployment benefits is not sufficient reason to
    4
    We emphasize that the ALJ did find that Conklin passed out while driving without explanation. The
    Board does not dispute the accuracy of this finding.
    8
    force Carter to make such a decision. A claim for unemployment benefits cannot be
    equated to or confused with a wrongful termination lawsuit.
    However, Conklin is unable to safely perform his previous job through no fault of
    his own. The record contains no evidence to suggest otherwise. Thus, Conklin did not
    “breach a duty” to Carter in the statutory sense and he is eligible for unemployment
    benefits.
    Conclusion
    The Board’s determination that Conklin was discharged for “just cause” was
    unreasonable because of the lack of evidence that the accident was his fault. We reverse
    the denial of unemployment benefits to Conklin.
    Reversed.
    FRIEDLANDER, J., and MAY, J., concur.
    9