Opinion
David F. Shadel, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Darrell K. Diamond, Asst. Atty. Gen., Indianapolis, for appellee.
LOWDERMILK, Judge.
This case was transferred to this office from the Second District in order to help eliminate the disparity in caseloads among the Districts.
STATEMENT OF THE CASE
Donna Wilson (Wilson) seeks review of a decision of the Review Board affirming a referee's denial of unemployment compensation benefits. Wilson also appeals from an order of the Marion County Circuit Court dismissing an amended complaint she had filed against the Indiana Employment Security Division (the Division), its Review Board, and numerous other parties. This court granted Wilson's motion for consolidation of these two matters.
STATEMENT OF THE FACTS
Donna Wilson worked as a waitress at a Steak 'N Shake restaurant (restaurant) on Pendleton Pike in Indianapolis. Her employment terminated November 12, 1976, when she left work early, complaining of illness, despite instructions that she should remain until the end of her scheduled work shift.
Wilson filed a claim for unemployment compensation benefits. On or about December 12, 1976, Wilson returned to the restaurant to inquire concerning a check due her for past services. While Wilson was at the restaurant, the restaurant manager, in the presence of the district manager, offered twice to reinstate Wilson in the same job she held previously. She refused both offers. Wilson stated that she did not want to work under the supervision of the head waitress who had refused Wilson's request to leave early on November 12, 1976.
Restaurant filed a Form 501 with the Division December 14, 1976, alleging that Wilson had refused an offer of suitable work. On January 5, 1977, a deputy of the Division gave Wilson written notice that the Division had determined that Wilson was no longer eligible for benefits because of her refusal for personal reasons to accept the offer of employment; the Division immediately suspended payment of benefits to Wilson.
On January 6, 1977, Wilson filed in the Superior Court of Marion County, Room No. 5, against the Division and certain other parties, her verified complaint for declaratory and injunctive relief. The action ultimately was transferred to the Marion County Circuit Court.
On January 17, 1977, Wilson filed with the Division her request for hearing before a referee. She also filed with the Division on January 26, 1977, a motion for immediate order to resume payment of benefits, for recognition of her appeal as a class action, and for adoption of rule and policy. The referee denied the motion on date of filing.
Wilson received a hearing before a referee on February 9, 1977. The referee's determination was mailed February 15, 1977, and a portion of that determination reads as follows:
"Although the claimant contends that the work offer of December 12, 1976 was not bona fide, the evidence submitted does not establish whether the offer was made for the sole purpose of initiating a disqualification in the claimant's claim for benefits, or was made in good faith and her refusal was reported to the local office under the provisions of Regulation 802 of the Indiana Employment Security Board, which requires an employer to timely furnish potentially disqualifying information to the Division. Since the evidence is persuasive that there was a present opening for a regular, full-time, dayshift waitress on December 12, 1976 and the district manager, who witnessed the offer, was not even aware of the provisions of Chapter 15-2 of the Act until the following day, it is concluded that the claimant was offered reemployment on December 12, 1976 in good faith and not for the purpose of disqualifying her on her unemployment claim.
On February 22, 1977, Wilson filed her request for appeal to the Board.
The trial court granted defendants' motion to dismiss March 4, 1977. Wilson subsequently filed an amended complaint for declaratory and injunctive relief and damages. Defendants filed their motion to dismiss March 21, 1977, which the trial court granted March 22, 1977. On April 6, 1977, the trial court entered judgment of dismissal.
The Review Board heard oral argument April 12, 1977, on the record of the hearing before the referee. On April 14, 1977, the Review Board affirmed the decision of the referee.
ISSUES
1. Whether the decision of the Review Board finding that Wilson refused without good cause an offer of suitable work is contrary to law and not supported by the evidence.
2. Whether the referee erred in denying Wilson's motion for immediate order to resume payment of benefits, for recognition of her appeal as a class action, and for adoption of rule and policy.
3. Whether the trial court erred in dismissing Wilson's amended complaint for lack of jurisdiction or for failure to state a claim upon which relief could be granted.
Issue One
The Review Board concluded that the restaurant made a suitable work offer and Wilson refused that offer without good cause. Wilson summarizes her contentions as follows:
" . . . it is clear that the employer was highly motivated by malice and revenge, that the work offer was not genuine, and that there were no job openings. As a matter of law, reasonable persons can reach only these conclusions. Therefore, claimant did not refuse an offer of suitable employment for there was no genuine job offer."
In Skirvin v. Review Board of Indiana Employment Security Division (1976), Ind.App., 355 N.E.2d 425, 428, appear certain guidelines for review of decisions made by the Review Board:
". . . (I)t is the general rule that the Review Board's decision as to all questions of fact is conclusive and binding on this court. . . . On appeal, we will not disturb the decision of the Review Board unless reasonable men would be bound to reach a different conclusion on the evidence in the record. . . . In reviewing the evidence to support the Review Board's determination, we may not weigh the evidence and may consider only that evidence and the reasonable inferences therefrom most favorable to the Board's decision. . . ." (Citations omitted)
The district manager testified at the hearing:
"She had come in to the store. Mr. Kleinbub and I were sitting at a table and talking in general, and she came over to the table and wanted to know was she going to get her check the company supposedly owed her; and he said yes, it is coming. I think she left and came back inside. He asked her if she wanted the job back, the same job, and same hours, the same pay; and she said, no; and he asked her again; and her words were, 'get rid of that lead waitress and I will think about it;' and he said, o. k.; and she got up and walked out."
Wilson testified at the hearing:
"Q Did he ask you more than once if you wanted the job back?
"A Yes, twice.
"Q What did he say?
"A He said, do you want your job back; the second time he said, are you sure you don't want your job back?
"Q And you responded what to that?
"A I said, no, that I did not want to work under the lead waitress, if they got another one, maybe.
"Q Did you take that as a serious job offer?
"A No.
"Q Why did you not?
"A Because I knew he knew I would not come back to work. I thought he must be kidding; he knows I won't come back to work.
"Q Was that based on your earlier testimony that you did not have a job if you walked out?
"A Yes. I knew he didn't want me back. He made that very clear on November 12.
"Q Did you speak to any employees . . . that gave you the impression that either Mr. Cady's or Mr. Kleinbub's offer of employment was false, not sincere?
"A No.
"Q Your testimony then that you arrived at the conclusion it wasn't sincere was only from your own impression and the unemployment clerk's impression, not casual. Is that right?
"A Yes.
"Q Have you ever known either Mr. Cady or Mr. Kleinbub or any Steak 'N Shake management ever to make an insincere or false offer of employment to any of the employees?
"A No."
The district manager testified that job openings existed at the time Wilson was offered employment. He also stated that he and the restaurant manager did not learn until after Wilson refused the job offer that a refusal of employment impaired eligibility for collecting unemployment compensation benefits.
Wilson's argument goes solely to weight of the evidence and credibility of witnesses. The record provides evidence of probative value to support the decision of the Review Board. Accordingly, that decision is affirmed.
Issue Two
Wilson filed a motion with the Division in which she asked that the Division
(1) recognize the action as a class action appeal on the issues of the practice and policy of terminating unemployment compensation benefits without advance notice or opportunity for a hearing;
(2) enter an order causing her unemployment compensation benefits to be resumed and to be paid to her until the Division provided her with prior notice of suspension or termination of benefits and opportunity for a hearing; and
(3) adopt a policy, rule, regulation, and practice whereby the Division would continue to pay benefits to recipients who were initially determined eligible for and entitled to receive unemployment compensation benefits unless, prior to any proposed termination or suspension of such benefits based upon its obtaining new information subsequent to the initial determination of eligibility, it provided the recipient with notice and opportunity for hearing.
By written order the referee denied the motion on the date it was filed. Neither the decision of the referee (February 15, 1977) nor the decision of the Review Board (April 14, 1977) makes reference to the motion or to the issues raised by the motion.
Wilson contends that the issues raised in her motion filed January 26, 1977, are properly before this court for ruling on the merits. However, she cites no statute granting this court such authority.
IC 1971, 22-4-17-12 (Burns Code Ed.) provides:
". . . Any decision of the review board shall be conclusive and binding as to all questions of fact. Either party to the dispute, the board or the director may, within thirty (30) days after notice of intention to appeal as herein provided, appeal the decision to the Appellate Court (Court of Appeals) for errors of law under the same terms and conditions as govern appeals in ordinary civil actions.
The appellant shall attach to said transcript an assignment of errors. An assignment of errors that the decision of the review board is contrary to law, shall be sufficient to present both the sufficiency of the facts found to sustain the decision, and the sufficiency of the evidence to sustain the findings of facts. . . . " (Our emphasis)
As Judge White stated in McKinley v. Review Board (1972), 154 Ind.App. 387, 392, 290 N.E.2d 108, 111, 301 N.E.2d 845, cert. denied, 415 U.S. 985, 94 S.Ct. 1581, 39 L.Ed.2d 883;
"There is no provision for assigning as error any ruling or decision of the referee. . . . Correction of errors (of fact as well as law), if any, committed by the referee is the Board's function, not ours."
Because we are limited in our review to those matters set forth in the decision of the Review Board, and because both the decision of the Review Board and the decision of the referee which the Review Board specifically affirmed are silent as to those issues Wilson asks this court to rule upon, we can only conclude that those issues are not properly before this court for determination.
Issue Three
On March 17, 1977, Wilson filed in the Marion County Circuit Court her amended complaint for declaratory and injunctive relief and damages concerning the procedure by which the Division suspended benefits. The Division and other named defendants filed motion to dismiss March 21, 1977, for lack of jurisdiction of the trial court and for failure to state a claim upon which relief could be granted. The trial court dismissed the amended complaint.
The Division and other appellees contend that the trial court had no jurisdiction, for Wilson was limited to administrative procedure in challenging the Division's determination of her ineligibility. After following administrative procedure, the Division argues, Wilson could have appealed to the Court of Appeals but at no time did the trial court have jurisdiction over the action Wilson attempted to pursue.
In Indiana High School Athletic Association v. Raike (1975), Ind.App., 329 N.E.2d 66, Raike obtained a declaratory judgment and permanent injunction enjoining the Indiana High School Athletic Association and Rushville Consolidated School Corporation from enforcing certain rules prohibiting married students from participating in athletic competition and extra-curricular activities. The trial court found that the rules violated rights guaranteed by the Constitution of the United States.
On appeal it was argued that Raike had failed to exhaust his administrative remedies. Judge Buchanan referred to 73 C.J.S. Public Administrative Bodies and Procedure § 41, p. 354, at 329 N.E.2d 66, 82:
" 'Exceptions to Rule. The rule that administrative remedies must be exhausted before resort is had to the courts is not absolute and without exception. The rule will be departed from in extreme cases, where compliance with the rule would be futile ; where the Statute is charged to be void on its face; . . . or where irreparable injury would result.
'The rule is inapplicable when no administrative remedy is provided. Likewise, the rule will be relaxed where there is grave doubt as to the availability of the administrative remedy ; . . .' " (Original emphasis)
Judge Buchanan then considered the specific facts in Raike's appeal:
"It would appear that both Raike and his attorney sought to have the rule waived or changed through Huddleston as Principal of Rushville High School and as Superintendent of Schools of Rushville Consolidated School Corporation. Huddleston tried but was unable to get the rule changed and left the firm impression that he had been in touch with the school board and the rule would not be waived or changed for Raike. Pursuit of a further hearing at this juncture would have been a nugatory act."
In the case at bar, Wilson anticipated receipt of benefits during her unemployment. Irreparable injury was a foreboding possibility when such vital payments were summarily suspended.
It appears that Wilson and her attorney made diligent effort to have the benefits continued until a hearing was held. Wilson contends that she or her attorney communicated personally with various representatives of the Division, and the Division insisted that it was following standard procedure in suspending benefits without first providing opportunity for a hearing. The record reveals that Wilson filed with the Division her motion seeking continuation of benefits until a hearing could be held, and seeking a change of Division policy; the referee responded by denying the motion on the same date Wilson filed it. Certainly grave doubt existed at that point that any administrative remedy was available to deal with the harm alleged.
We can only conclude that the administrative remedy was directed solely to the substantive determination concerning eligibility for benefits. In the trial court Wilson sought a judgment, on constitutional and statutory grounds, on the procedure by which the Division discontinued her benefits. She had no administrative remedy to serve that purpose.
The judgment of dismissal does not state the reason for dismissal. The Division offers no argument on whether the amended complaint stated a claim upon which relief could be granted. The Division apparently relies instead upon its arguments that the procedure it followed was correct, and that the trial court had no jurisdiction to hear the suit.
When the trial court considers a motion to dismiss under Rule 12(B)(6) of the Indiana Rules of Procedure, it must liberally construe and take as true the allegations contained in the complaint. Marshall v. Russell R. Ewin, Inc. (1972), 152 Ind.App. 171, 282 N.E.2d 841. Even though the plaintiff may not be entitled to all the relief requested, the trial court errs in dismissing the complaint if the complaint shows that plaintiff may be entitled to some relief. Bryant v. Lake County Trust Company (1972), 152 Ind.App. 628, 284 N.E.2d 537.
Wilson filed an amended complaint alleging that the Division had imposed a procedure which resulted in violation of various rights provided her by state and federal constitutions and statutes. Wilson sought judicial construction of applicable statutes and a determination of whether the Division, by its procedures, had violated her rights. Wilson's allegations were sufficient to withstand a motion to dismiss for failure to state a claim.
We now hold in Cause No. 2-677 A 228, Donna Wilson v. Review Board of the Indiana Employment Security Division, et al., that the trial court erred in its dismissal of Wilson's amended complaint. Said judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.
We now, in Cause No. 2-577 A 206, Donna M. Wilson v. Review Board of the Indiana Employment Security Division, et al., affirm the Review Board's decision finding that Wilson refused without good cause an offer of suitable work.
ROBERTSON, C. J., and GARRARD, J. (participating by designation), concur.