Georgia Amerson v. Review Board of the Department of Workforce Development and Durham D&M, LLC.

Nov 26 2013, 5:41 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

WILLIAM R. GROTH GREGORY F. ZOELLER
Fillenwarth Dennerline Attorney General of Indiana
Groth & Towe, LLP
Indianapolis, Indiana ELIZABETH ROGERS
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

GEORGIA AMERSON, et al., )
)
Appellant-Petitioners, )
)
vs. ) No. 93A02-1301-EX-67
)
REVIEW BOARD OF THE DEPARTMENT )
OF WORKFORCE DEVELOPMENT, )
)
Appellee-Respondent )
)
and )
)
DURHAM D&M, LLC, )
)
Party of Interest. )
)

APPEAL FROM THE REVIEW BOARD OF THE
DEPARTMENT OF WORKFORCE DEVELOPMENT
Cause No. 12-R-05097
 November 26, 2013

MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge

This is one of several cases before this Court that deals with a determination of the

Review Board of the Department of Workforce Development (Review Board) that

employee bus drivers and monitors of various school systems were not eligible for

unemployment compensation because they were on unpaid vacation without

remuneration because of their employer’s regular vacation policy and practice pursuant to

Indiana Code section 22-4-3-5. Here, Georgia Amerson, et al. (Appellants), employees

of Durham D&M LLC (Durham), present the same arguments that the appellants set forth

in D.B. v. Review Bd. of the Indiana Dept. of Workforce Development, handed down

November 5, 2013: they argue that the Review Board incorrectly interpreted Indiana

Code section 22-4-3-5 to find that Appellants were ineligible for unemployment

compensation. No. A02-1301-EX-71, slip op. (Ind. Ct. App. Nov. 5, 2013).

FACTS

Additionally, the facts in this case nearly mirror those in D.B.: Appellants are bus

drivers and monitors employed by Durham to service Indiana Public Schools. Appellants

follow the IPS calendar and do not work during the regularly scheduled summer recess.

When the academic year resumes, employees return to work. In 2012, Appellants

received no remuneration from June 12, 2012, the end of the school year, until August 6,

2
2012, when school reconvened. At the beginning of the scheduled summer recess,

Appellants applied for, and began receiving, unemployment compensation. In mid-June

of 2012 a Claims Deputy for the Department of Workforce Development denied benefits

from last day of school, June 12, to the first day of school, August 6, because she

determined that the summer recess was a customary vacation policy and practice of the

employer. Appellants timely appealed, and on November 20, 2012, the Review Board

held a hearing, where it determined that Appellants were “on a vacation week” without

remuneration due to an employer’s regular vacation policy and practice,” within the

meaning of Indiana Code section 22-4-3-5, and thus denied them unemployment

compensation. Appellants now appeal.

DISCUSSION AND DECISION

Appellants argue, as did the appellants in D.B., that the Review Board erred when

it failed to oblige the Department to promulgate a notice requirement pursuant to Indiana

Code section 22-4-3-5(c), and contend that the Review Board interpreted the “vacation

week” provisions of Indiana Code section 22-4-3-5 too broadly.

Citing and utilizing the same analysis this Court employed in D.B., we reject these

arguments, and conclude that the Review Board interpreted Indiana Code section 22-4-3-

5 in a reasonable manner, and therefore affirm the Review Board’s decision. No. A02-

1301-EX-71, slip op. at 5-18.

FRIEDLANDER, J., and VAIDIK, J., concur.

3