IOWA WORKFORCE DEVELOPMENT UNEMPLOYMENT INSURANCE APPEALS

Transcription

1 IOWA WORKFORCE DEVELOPMENT UNEMPLOYMENT INSURANCE APPEALS (9-06) EI DAVID BARNES Claimant APPEAL NO: 18R-UI TN-T ADMINISTRATIVE LAW JUDGE DECISION OPERATION NEW VIEW Employer OC: 02/25/18 Claimant: Appellant (1) Iowa Code 96.5(1) Voluntary Quit STATEMENT OF THE CASE: David Barnes, the claimant, filed an appeal from a representative s unemployment insurance decision dated March 13, 2018, (reference 01) which denied unemployment insurance benefits, finding that the claimant resigned from employment without good cause attributable to the employer. Notices were mailed to the parties last known addresses of record for a hearing that was scheduled for April 11, Claimant participated. The employer did not. On April 12, 2018, an administrative law judge decision was entered reversing the adjudicators March 13, 2018, reference 01 decision and holding the claimant eligible to receive unemployment insurance benefits. The employer filed a timely appeal with the Employment Appeal Board on May 11, 2018, the Employment Appeal Board remanded the matter to the Workforce Appeal Bureau to schedule a new due process hearing by administrative law judge and for the issuance of an appealable determination. The Employment Appeal Board held that the April 12, 2018 decision was to remain in force unless and until a decision that differs that was entered by the administrative law judge. Pursuant to the remand by the Employment Appeal Board, Notices of Hearing were sent to the parties for a telephone hearing scheduled for and held on June 1, Mr. Barnes participated. Employer participated by Mr. Steven Drahdzal, Board Chairman and Ms. Danaa Fessler, Human Resource Director. Employer s Exhibits A through D were admitted into the hearing record. ISSUE: The issue is whether Mr. Barnes left his employment with Operation New View with good cause that was attributable to the employer. FINDINGS OF FACT: Having considered all of the evidence in the record, the administrative law judge finds: David Barnes began employment with Operation New View on April 8, The claimant held the position of full-time executive director and was paid by salary. As executive director, Mr. Barnes answered to the Board of Directors, the Executive Committee and to the Board Chairperson. Mr. Barnes employment with Operation New View ended after the claimant submitted a letter of resignation on January 11, 2018, to be effective January 19, 2018.

2 Page 2 Mr. Barnes tendered his resignation by to the organization s executive committee s chairman, Mr. Steven Drahdzal. Mr. Barnes thanked the organization for the employment opportunity and wished the organization well in the future but stated no specific reasons for quitting. (See Employer s Exhibit A). On December 15, 2017, a temporary worker employed by Operation New View brought a written complaint to her supervisor alleging that Mr. Barnes conduct during meetings with her on December 14 and 15, had made her feel uncomfortable. The complaint made by the temporary employee was brought directly to the organization s Human Resource Department per policy, by the temporary employee. Ms. Fessler, the Human Resource Director, took the statement and documented the employee s assertions about Mr. Barnes conduct. Although the employee objected to Mr. Barnes conduct, she asserted at the end of her statement that she did not believe that Mr. Barnes motivation was sexual. Because of the nature of the written complaint about Mr. Barne s conduct with specific allegations, Ms. Fessler deemed it reasonable and felt that it was necessary to inform the organizations Board of Directors of the allegation. As a courtesy, Ms. Fessler also felt it was appropriate to inform Mr. Barnes, who was her supervisor. Ms. Fessler met with Mr. Barnes in his office and informed him she had an obligation to report the matter to the Board and showed Mr. Barnes the complaint. Mr. Barnes instructed Ms. Fessler not to forward the complaint and threatened to suspend her if she did so. Mr. Barnes told Ms. Fessler that he felt that the latter portion of the statement had exonerated him from any wrongdoing. Mr. Barnes also stated that the complaint had not been properly forwarded through the Human Resource Department. Ms. Fessler left the room briefly and returned with a witness. Ms. Fessler knocked on Mr. Barnes door but did not wait for an invitation before re-entering. Mr. Barnes disagreement with Ms. Fessler s decision to forward the complaint continued with Mr. Barne s language that could be overheard outside the offices. Mr. Barnes left the building but subsequently returned. During the interim a vice chairperson had been contacted and Mr. Barnes was instructed that he should leave the building. After being made aware of the complaint, members of the executive council agreed that the claimant should be placed on administrative leave pending investigation into the allegations. Mr. Barnes was told he would be contacted by an attorney hired by the organization to investigate. Mr. Barnes initially agreed to be interviewed and cooperate with the investigator/attorney. After reconsidering, Mr. Barnes decided not to meet with the investigator. On January 11, 2018, Mr. Barnes submitted his resignation by to the Board Chairman Mr. Drahdzal. The claimant s resignation was in a generic form that thanked the employer for the opportunity serve and wished the organization well in the future. Claimant s resignation was accepted, and a settlement agreement was entered into. It is Mr. Barnes position that he left his position as an Executive Director of the organization because he had found what he felt was a generally a discriminatory culture and a concerted unwillingness to cooperate by employees of the organization because of racial bias. Mr. Barnes cited an issue with the previous Human Resource Director and with a former Head Start Director, Mr. Barnes felt that had made statements reflecting a bias against black people. Mr. Barnes also cited an incident where a Director had interrupted Mr. Barnes during a meeting with an inappropriate statement, and an incident where the organization s finance manager had come to his office and stated no one here wants you to succeed because you are black.

3 Page 3 Mr. Barnes asserts that the cumulative effect of these statements and the attitudes that they reflected caused him to begin consider leaving his position as Executive Director and that he later tendered his resignation solely for those reasons. Prior to tendering his resignation and accepting the terms of a settlement agreement, Mr. Barnes had not reported any of the incidents to Mr. Drahdzal, the Board Chairman or other Executive Board members. Mr. Barnes first reported the statement of the Finance Director to Mr. Drahdzal after Mr. Barnes had resigned and his resignation had been accepted. REASONING AND CONCLUSIONS OF LAW: The question before the administrative law judge is whether the evidence in the record establishes that Mr. Barnes left his employment with Operation New View with good cause that was attributable to the employer. It does not. Iowa Code provides: An individual shall be disqualified for benefits, regardless of the source of the individual s wage credits: 1. Voluntary quitting. If the individual has left work voluntarily without good cause attributable to the individual's employer, if so found by the department. Iowa Admin. Code r (21) provides: Voluntary quit without good cause. In general, a voluntary quit means discontinuing the employment because the employee no longer desires to remain in the relationship of an employee with the employer from whom the employee has separated. The employer has the burden of proving that the claimant is disqualified for benefits pursuant to Iowa Code section However, the claimant has the initial burden to produce evidence that the claimant is not disqualified for benefits in cases involving Iowa Code section 96.5, subsection (1), paragraphs "a" through "i," and subsection 10. The following reasons for a voluntary quit shall be presumed to be without good cause attributable to the employer: (21) The claimant left because of dissatisfaction with the work environment. Iowa Admin. Code r (28) provides: Voluntary quit without good cause. In general, a voluntary quit means discontinuing the employment because the employee no longer desires to remain in the relationship of an employee with the employer from whom the employee has separated. The employer has the burden of proving that the claimant is disqualified for benefits pursuant to Iowa Code section However, the claimant has the initial burden to produce evidence that the claimant is not disqualified for benefits in cases involving Iowa Code section 96.5, subsection (1), paragraphs "a" through "i," and subsection 10. The following reasons for a voluntary quit shall be presumed to be without good cause attributable to the employer: (28) The claimant left after being reprimanded.

4 Page 4 Iowa Admin. Code r (4) provides: Voluntary quit with good cause attributable to the employer and separations not considered to be voluntary quits. The following are reasons for a claimant leaving employment with good cause attributable to the employer: (4) The claimant left due to intolerable or detrimental working conditions. Iowa Admin. Code r (37) provides: Voluntary quit without good cause. In general, a voluntary quit means discontinuing the employment because the employee no longer desires to remain in the relationship of an employee with the employer from whom the employee has separated. The employer has the burden of proving that the claimant is disqualified for benefits pursuant to Iowa Code section However, the claimant has the initial burden to produce evidence that the claimant is not disqualified for benefits in cases involving Iowa Code section 96.5, subsection (1), paragraphs "a" through "i," and subsection 10. The following reasons for a voluntary quit shall be presumed to be without good cause attributable to the employer: (37) The claimant will be considered to have left employment voluntarily when such claimant gave the employer notice of an intention to resign and the employer accepted such resignation. This rule shall also apply to the claimant who was employed by an educational institution who has declined or refused to accept a new contract or reasonable assurance of work for a successive academic term or year and the offer of work was within the purview of the individual's training and experience. An individual who leaves employment voluntarily is disqualified from receiving job insurance benefits unless the quit was for good cause attributable to the employer. Iowa Code Section 96.5(1). The claimant has the burden of proving that the voluntary leaving was for good cause attributable to the employer. Iowa Code Section 96.6(2). Based upon the evidence in the record, the administrative law judge concludes that Mr. Barnes primary reason for leaving his employment with Operation New View was to preserve his employment history and to avoid possible effect of an investigation into allegations about his conduct that had been made against him by a temporary employee of the organization. When initially informed that an employee had filed a complaint against him and the matter was going to be reported to the organization s Board of Director s, Mr. Barnes was vigorous in his attempt to halt the investigation and stop the forwarding of information about the matter to the Board of Director s. Although the complaint had been made in a written form by the employee herself and that the matter had been properly brought to the attention of the Human Resource Department, Mr. Barnes asserted the complaint was meaningless and threatened to suspend from work the Human Resource Director if she notified the Board or further investigated the complaint. The Board was informed of Mr. Barnes actions and Mr. Barnes was placed on paid administrative leave pending the investigation into the complaint. Mr. Barnes was informed by the Board that an experienced attorney/investigator had been retained and Mr. Barnes was asked to cooperate with the investigation. Although Mr. Barnes initially agreed to cooperate, instead he submitted a generic resignation from employment citing no particular reason for his leaving. Mr. Barnes maintains that the reason he left his employment with Operation New View was because of a culture of discrimination and unwillingness on the part of the employee s to cooperate with Mr. Barnes because of bias. Although Mr. Barnes apparently kept notes on a number of instances that he believed reflected discrimination, Mr. Barnes did not report any of

5 Page 5 these concerns to Mr. Drahdzal or other individual s in the organization s chain of command before resigning his position. When Mr. Barnes submitted his resignation, some of the individuals that he complained about were already no longer with the organization. The organization had been unable to previously act on Mr. Barnes concerns because he had not made the organization aware of them before resigning. Mr. Barnes had the opportunity to remain employed with Operation New View pending the outcome of the independent investigation but chose not to meet with the investigation and to instead submit his resignation. The claimant s decision to leave employment because of the pending independent investigation and because of allegations that he had not previously reported are not good cause reasons attributable to the employer for leaving. Because the claimant left employment without good cause attributable to the employer, he is disqualified for unemployment insurance benefits until he has worked in and been paid wages for insured work equal to ten times his weekly benefit amount and is otherwise eligible. Because the claimant has been deemed ineligible for benefits, any benefits the claimant has received could constitute an overpayment. A review of the administrative record shows the claimant has received benefits in the amount of $7, since opening his claim for benefits for the week ending dates March 3, 2018 through June 2, 2018, as a result of the administrative law judge decision dated April 12, 2018 that reversed the adjudicated March 13, 2018, reference 01 decision and held the claimant eligible for benefits. That decision was remanded by the Employment Appeal Board and is no longer in force as it differs from the most recent administrative law judge decision entered in this matter in compliance with the directives of the Employment Appeal Board. The claimant has received unemployment insurance benefits that he was not entitled to for the weeks ending March 3, 2018 through June 2, Iowa Code 96.3(7) provides, in pertinent part: 7. Recovery of overpayment of benefits. a. If an individual receives benefits for which the individual is subsequently determined to be ineligible, even though the individual acts in good faith and is not otherwise at fault, the benefits shall be recovered. The department in its discretion may recover the overpayment of benefits either by having a sum equal to the overpayment deducted from any future benefits payable to the individual or by having the individual pay to the department a sum equal to the overpayment. b. (1) (a) If the department determines that an overpayment has been made, the charge for the overpayment against the employer s account shall be removed and the account shall be credited with an amount equal to the overpayment from the unemployment compensation trust fund and this credit shall include both contributory and reimbursable employers, notwithstanding section 96.8, subsection 5. Because the claimant s separation was disqualifying, benefits were paid to which he was not entitled. The unemployment insurance law provides that benefits must be recovered from a claimant who receives benefits and is later determined to be ineligible for benefits even though the claimant acted in good faith and was not otherwise at fault. Since the overpayment in this case was not caused by the employer not participating in the fact-finding interview but based upon an administrative law judge decision on remand, the employer is not charged for benefits paid, not charged for the overpayment of benefits and the claimant is obligated to repay the amount to the agency.

6 Page 6 DECISION: The representative s unemployment insurance decision dated March 13, 2018, reference 01 is affirmed. Claimant left employment without good cause attributable to the employer. Unemployment insurance benefits are withheld until he has worked in and been paid wages for insured work equal to ten times his weekly benefit amount and is otherwise eligible. The claimant has been overpaid job insurance benefits in the amount of $7, and is liable to repay that amount to the agency. The employer s account shall not be charged. Terry P. Nice Administrative Law Judge Decision Dated and Mailed tn/scn