Preview:

FOR PUBLICATION

ATTORNEYS FOR APPELLANT: JAMIE ANDREE Indiana Legal Services, Inc. Bloomington, Indiana KATHERINE RYBAK Indiana Legal Services, Inc. Evansville, Indiana

ATTORNEYS FOR APPELLEES: GREGORY F. ZOELLER Attorney General of Indiana STEPHANIE ROTHENBERG Deputy Attorney General Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

Dec 22 2010, 10:06 am

IN THE COURT OF APPEALS OF INDIANA
D.R., Appellant, vs. REVIEW BOARD OF THE INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and FEDEX TRADE NETWORK, Appellees. ) ) ) ) ) ) ) ) ) ) ) )

CLERK

No. 93A02-1005-EX-522

APPEAL FROM THE REVIEW BOARD OF THE INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT The Honorable Steve F. Bier, Chairperson Cause No. 10-R-1235

December 22, 2010

OPINION - FOR PUBLICATION

BROWN, Judge

D.R.1 appeals a decision by the Review Board of the Indiana Department of Workforce Development (the "Board") denying her unemployment benefits. D.R. raises one issue, which we revise and restate as whether the record supports the Board's decision to deny D.R. full unemployment benefits. We affirm. The facts most favorable to the Board's determination follow. On September 16, 2009, FedEx sent a letter to D.R. confirming its offer to her for its "Permanent Part-time Courier/DOT at the BFRA Station in Huntingburg, IN." Appellee's Appendix at 41. The letter stated: "This offer is contingent upon successful completion of a medical examination, drug screen, and all necessary training." Id. The letter also requested D.R. to indicate her acceptance of the offer by indicating such and signing the letter, which D.R. did. D.R. began her employment with FedEx in September 2009. As a part of her training, she was required to pass a defensive driving test. D.R. traveled to Tulsa, Oklahoma, in order to receive training and take the test. She attempted to pass the defensive driving test on two different days while in Tulsa and was unable to pass either time. After returning to Indiana, Jon Willis, D.R.'s boss and the station manager of the local FedEx station in Huntingburg, Indiana, permitted D.R. to drive the truck and practice backing up while he was in the truck. D.R. took the defensive driving test again

Portions of the record are excluded from public access. Pursuant to Ind. Appellate Rule 9(J) and Ind. Administrative Rule 9(G)(4), we are obligated to "identify the names of the parties and affected persons in a manner reasonably calculated to provide anonymity and privacy. . . ."

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on November 12, 2009, but was unable to pass the portion of the test which required D.R. to back up the truck correctly. An inter-office memorandum from FedEx to D.R. dated November 12, 2009, stated that D.R. failed the mandatory training course, the training was required for the position of courier, and "Mandatory Training Policy 9-50 states that D.R. was to be placed on a 30 [sic] Personal Leave of Absence" to find another position for which D.R. qualified. Appellee's Appendix at 38. The memorandum stated that D.R. had until December 11, 2009 to choose between (1) being "placed on a 30 day leave of absence without pay," during which time she would "be allowed unlimited Job Change Applications," or (2) immediately resign her position. Id. at 14. The memorandum also stated that if D.R. did not choose an option by December 11, 2009, she would "be considered voluntarily resigned." Id. D.R. chose to resign from her position. D.R. filed a claim for unemployment benefits, and on December 18, 2009 a claims deputy for the Indiana Department of Workforce Development issued a Determination of Eligibility which found that D.R. "voluntarily left employment without good cause in connection with the work" and that thus D.R. was "ineligible for benefits in accordance with IC-22-4-15-14 [sic]." Id. at 25. D.R. filed an appeal from the deputy's

determination and argued that she "did not quit for personal reasons" and that FedEx "made [her] sign a form to resign [her] position because there were no other options to choose from." Id. at 26.

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On February 12, 2010, a telephonic hearing was held on D.R.'s appeal before an administrative law judge (the "ALJ"), at which evidence was admitted including the testimony of D.R. and Willis. D.R. testified that she had to fly to Tulsa, Oklahoma, for the defensive driving training and that during the "two flights to get there" she "developed problems with [her] ears," and that her ears "were hurting, ringing, popping, and [became] very clogged up." Transcript at 6. D.R. testified that she informed the instructor that she was having "a lot of problems with [her] ears after the flight" and stated "So therefore, I struggled with the defensive driving on backing up the W700 truck into a parking space in the serpentine course." Id. D.R. testified that she flew back and "the flights back made [her] ear even worse, so [she became] very ill" and was later diagnosed with "ear infections, sore throat, bronchitis, all of that." Id. at 6-7. She further testified that she "believe[d] it was no fault of [hers] [] unfortunately what happened to [her] on the flight or defensive driving [test]." Id. at 8. Later during the hearing, D.R. stated that Willis took her into his office, told her that she was terminated, and that he did not have another job for her. D.R. also stated that when she "questioned him on that option," Willis said that "they have you anyway you go." Id. at 17-18. FedEx introduced one of its policies titled "9-50 Mandatory Training" which stated that "[c]ertain designated positions at FedEx Express have, as a condition of employment, a mandatory training requirement." Appellee's Appendix at 39. Under the Guideline titled "External New Hire," the policy provided: 4

If an external new hire is not able to successfully complete the instruction program, he will be given a one-time 30-day personal leave of absence without pay to find another position for which he is qualified. If the employee is unable to secure another position within the 30-day period, the employee is considered to have voluntarily resigned." Id. On February 22, 2010, the ALJ issued a decision which affirmed the claims deputy's determination that D.R. receive no unemployment benefits. In its decision, the ALJ concluded that D.R. "did not voluntarily quit her position with [FedEx]," that D.R.'s "only option was to resign from her position or be placed on a thirty day le ave of absence without pay," that "[a]lthough [D.R.] had an opportunity to apply for other positions, there was no guarantee that [she] would be rehired," and that D.R.'s discharge "was a constructive discharge." Id. at 43. The ALJ's decision also stated that FedEx bore the burden of establishing a prima facie showing of just cause for termination, that the definition of discharge for just cause includes "any breach of duty in connection with the work which is reasonably owed an employer by an employee" under Ind. Code

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