Maury Dusendschon v. Review Board of the Indiana Dept. of Workforce Development and TALX UC Express ( 2012 )

FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for
Sep 06 2012, 9:31 am
the purpose of establishing the defense of res
judicata, collateral estoppel, or the law of the
case. CLERK
of the supreme court,
court of appeals and
tax court
APPELLANT PRO SE: ATTORNEYS FOR APPELLEES:
MAURY DUSENDSCHON 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
MAURY DUSENDSCHON, )
)
Appellant, )
)
vs. ) No. 93A02-1104-EX-525
)
REVIEW BOARD OF THE INDIANA )
DEPARTMENT OF WORKFORCE )
DEVELOPMENT and TALX UC EXPRESS, )
)
Appellees. )
APPEAL FROM THE REVIEW BOARD OF THE INDIANA
DEPARTMENT OF WORKFORCE DEVELOPMENT
Cause No. 11-R-1459
September 6, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
SHARPNACK, Senior Judge
STATEMENT OF THE CASE
Maury Dusendschon appeals the decision of the Unemployment Insurance Review
Board of the Indiana Department of Workforce Development (“the Board”) denying his
request for unemployment insurance benefits. We affirm.
ISSUE
Dusendschon raises one issue, which we restate as: whether the Board’s decision
is supported by sufficient evidence.
FACTS AND PROCEDURAL HISTORY
Talx UC Express, which does business as Aldi, hired Dusendschon on March 23,
2010 to work as an assistant store manager/cashier. On October 12, 2010, Dusendschon
told several managers he was resigning and signed a written voluntary resignation form.
The form had a space for Dusendschon to explain the reasons he was resigning, but he
left it blank. He subsequently filed for unemployment benefits. A deputy denied
Dusendschon’s request, and he appealed. An administrative law judge (“ALJ”)
determined that he voluntarily left work for good cause and was eligible for benefits. The
Board vacated that decision and remanded for a new hearing because the hearing’s
recording “was not saved in a reviewable format.” Appellant’s App. p. 5. On remand, a
different ALJ presided over the hearing and determined that Dusendschon did not resign
for good cause and was not entitled to unemployment benefits. The Board affirmed the
ALJ’s decision. This appeal followed.
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DISCUSSION AND DECISION
Our review of the Board’s findings is subject to a “substantial evidence” standard
of review. Davis v. Review Bd. of Ind. Dep’t of Workforce Dev., 900 N.E.2d 488, 492
(Ind. Ct. App. 2009). Thus, we neither reweigh the evidence nor assess witness
credibility, and we consider only the evidence most favorable to the Board’s decision. Id.We will reverse the decision only if there is no substantial evidence to support the
Board’s findings. Id.An employee who voluntarily leaves employment without good cause in
connection with the work is not entitled to unemployment benefits. Ind. Code § 22-4-15-
1(a) (2009). The determination of whether an employee quit for good cause is a question
of fact for the Board. Davis, 900 N.E.2d at 492. Furthermore, it is the employee’s
burden to establish that he quit for good cause. Id. Thus, the employee must
demonstrate:
(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
employment.
Best Chairs, Inc. v. Review Bd. of Ind. Dep’t of Workforce Dev., 895 N.E.2d 727, 730
(Ind. Ct. App. 2008) (quoting M&J Mgmt., Inc. v. Review Bd. of Ind. Dep’t of Workforce
Dev., 711 N.E.2d 58, 62 (Ind. Ct. App. 1999)).
Here, Dusendschon told the ALJ that his reasons for resigning were as follows:
(1) at the time he was hired, he expected full-time work, but he frequently worked as little
as twenty hours per week; (2) he was transferred to another store against his wishes; and
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(3) he was frequently not allowed to take breaks, in violation of the employee handbook.
However, the evidence most favorable to the Board indicates that Aldi did not guarantee
Dusendschon full-time work at the time of hire. To the contrary, Dusendschon’s
supervisor, Jon Harvey, promised him only a minimum of twenty hours of work per
week, which was the necessary amount for Dusendschon to qualify for Aldi’s health
insurance and other benefits. When Dusendschon asked for more hours, Harvey
transferred him to the other store because Harvey thought he would have opportunities to
work more hours there. Finally, Harvey reviewed Dusendschon’s time cards for the two
weeks before Dusendschon resigned. He discovered one day on which Dusendschon did
not get an entire break, but Aldi paid Dusendschon for the lost break time pursuant to
company policy.
Based on this evidence, we cannot conclude that Aldi was so unfair or
unreasonable in its treatment of Dusendschon that his reasons for quitting would impel a
reasonably prudent person to terminate employment under the same or similar
circumstances. See Best Chairs, 895 N.E.2d at 732 (determining that the employer’s
involuntary transfer of an employee to a different department was necessary to ensure
that the employee had the opportunity to continue full-time employment and did not
constitute unjust or unreasonable treatment); Wasylk v. Review Bd. of Ind. Emp’t Sec.
Div., 454 N.E.2d 1243, 1247 (Ind. Ct. App. 1983) (determining that an employee lacked
good cause to quit, even though his hours were cut, because he had not been promised a
specific schedule of hours at the time of hire).
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Dusendschon asserts that at the time of hire Harvey repeatedly promised him a
full-time job and that he was frequently denied breaks. This assertion is a request to
reweigh the evidence, which we cannot do.
CONCLUSION
For the reasons stated above, we affirm the Board’s decision.
Affirmed.
RILEY, J., and CRONE, J., concur.
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