C.C. v. Review Board of the Indiana Department of Workforce Development and Wal-Mart Associates

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be Feb 20 2014, 10:32 am
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.

APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:

CYNTHIA CONNER GREGORY F. ZOELLER
New Albany, Indiana Attorney General of Indiana

KATHY BRADLEY
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

C. C., )
)
Appellant-Petitioner, )
)
vs. ) No. 93A02-1304-EX-375
)
REVIEW BOARD OF THE INDIANA )
DEPARTMENT OF WORKFORCE )
DEVELOPMENT and WAL-MART )
ASSOCIATES, )
)
Appellees-Respondents. )

APPEAL FROM THE REVIEW BOARD OF THE
DEPARTMENT OF WORKFORCE DEVELOPMENT
The Honorable Steven F. Bier, Chairperson
Cause No. 13-R-925

February 20, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge

STATEMENT OF THE CASE

Appellant-Petitioner, Cynthia D. Conner (Conner), appeals the decision of the

Unemployment Insurance Review Board of the Indiana Department of Workforce

Development (the Board) that Conner is ineligible for unemployment compensation

benefits following her termination by Appellee-Respondent, Wal-Mart Associates, Inc.

(Wal-Mart).

We affirm.

ISSUE

Conner raises one issue on appeal, which we restate as the following: Whether there

is sufficient evidence to support the Board’s determination that Conner is ineligible for

unemployment compensation benefits because she was discharged for just cause.

FACTS AND PROCEDURAL HISTORY

On August 25, 2007, Conner began working for Wal-Mart in New Albany, Indiana.

On July 7, 2012, Conner’s supervisor instructed her to clean up her work area. Conner

went into the personnel office to speak with another employee and to retrieve a new broom.

Believing Conner had stated that her task was a job for the maintenance crew and that she

was refusing to comply, Conner’s supervisor and the store manager met Conner in the

office to address the situation. When confronted, Conner began screaming and refused to

calm down. Other store employees were present as Conner argued with the supervisors,

and the yelling also drew the attention of customers, who were concerned as to “what was

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going on.” (Transcript p. 8). Conner was directed to clock out and leave the store. When

Conner arrived to begin her shift the following day, Wal-Mart terminated her for

insubordination.

Conner filed a claim for unemployment compensation benefits with the Indiana

Department of Workforce Development (the DWD). On October 17, 2012, the DWD

found Conner was eligible for unemployment benefits because Wal-Mart did not have just

cause to terminate her. On October 29, 2012, Wal-Mart appealed the DWD’s decision. On

January 10, 2013, an administrative law judge (ALJ) conducted a hearing and affirmed the

DWD’s eligibility determination.

On January 28, 2013, the Board, sua sponte, vacated the ALJ’s decision because of

transcription issues and ordered a new hearing. A different ALJ conducted a hearing, and

on February 22, 2013, the ALJ issued a decision reversing the DWD, finding that Wal-

Mart had “presented sufficient evidence to establish that [Conner] was insubordinate to an

extent justifying discharge.” (Exh. p. 32). Conner was denied unemployment

compensation benefits. On March 26, 2013, the Board adopted the ALJ’s decision.

Conner now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Waiver

Conner, who is appealing pro se, filed an appellant’s brief that entirely fails to

comply with the Indiana Rules of Appellate Procedure, including that her arguments are

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not “supported by cogent reasoning” with appropriate citations to legal authority.1 Ind.

Appellate Rule 46(A)(8)(a). On August 29, 2013, the Board filed a motion to dismiss

Conner’s appeal or, alternatively, to require that Conner file a conforming brief. On

October 10, 2013, this court held the Board’s motion in abeyance for consideration by the

writing panel. On December 30, 2013, Conner filed a reply brief. However, the contents

of this brief are also wholly inadequate as the argument section consists solely of Conner’s

version of events leading to her termination; it contains no standard of review or citations

to authority. See App. R. 46(C).

A pro se appellant is bound by the procedural rules in the same manner as a licensed

attorney. Ramsey v. Review Bd. of Ind. Dep’t of Workforce Dev., 789 N.E.2d 486, 487

(Ind. Ct. App. 2003). It is not the role of this court to act as an advocate for a pro se party

or address arguments that are “too poorly developed or improperly expressed to be

understood.” Id. Accordingly, where a party’s non-compliance with the appellate rules is

so substantial as to impede our review, we will consider her alleged errors waived. Id. In

this case, as both of Conner’s briefs disregard nearly every applicable provision of

Appellate Rule 46, it would be well within our province to find she has waived her

argument for appeal. However, it is well-established that our court prefers to decide cases

based on their merits. Moore v. Review Bd. of Ind. Dep’t of Workforce Dev., 951 N.E.2d

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In Conner’s one-page brief, her facts are as follows: “It was stated that[] I said something that was
never stated by me[,]” and the argument section is simply: “I did not use vulgar or profane language
towards any person or persons[,] nor[] was I any louder than spoken to. I was originally terminated for
telling [the department] manager I would not do it, and that it was maintenance.” (Appellant’s Br. p. 1).

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301, 306 (Ind. Ct. App. 2011). Because we discern the gist of Conner’s claim, we elect to

consider the merits of this case, waiver notwithstanding.2

II. Standard of Review

Pursuant to the Indiana Compensation Act (Act), “[a]ny decision of the [Board]

shall be conclusive and binding as to all questions of fact.” Ind. Code § 22-4-17-12(a).

When the Board’s decision is challenged as contrary to law, we must consider whether

there is sufficient evidence to support the Board’s factual findings and whether there are

sufficient facts to sustain the decision. S.S. LLC v. Review Bd. of Ind. Dep’t of Workforce

Dev., 953 N.E.2d 597, 602 (Ind. Ct. App. 2011). On review, “(1) findings of basic fact are

reviewed for substantial evidence; (2) findings of mixed questions of law and fact—

ultimate facts—are reviewed for reasonableness; and (3) legal propositions are reviewed

for correctness.” Recker v. Review Bd. of Ind. Dep’t of Workforce Dev., 958 N.E.2d 1136,

1139 (Ind. 2011). Accordingly, we will affirm the Board’s decision if there is substantial

evidence to support its findings and if the decision is reasonable in light of those findings.

Coleman v. Review Bd. of Ind. Dep’t of Workforce Dev., 905 N.E.2d 1015, 1019 (Ind. Ct.

App. 2009). We do not assess witness credibility or reweigh evidence, and we consider

only the evidence most favorable to the Board’s decision. Id.

III. Eligibility

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The violations of the appellate rules in this case are extensive. Although we have decided to address
this case on its merits, we note that parties should not expect that this court will excuse such defects in the
future. It is imperative that parties, at the very least, “make good faith efforts to substantially comply
with the rules [of appellate procedure]” or risk having their arguments waived. Terpstra v. Farmers &
Merchants Bank, 483 N.E.2d 749, 752 (Ind. Ct. App. 1985), trans. denied.

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 Conner seeks to have her unemployment benefits reinstated, apparently claiming

there is insufficient evidence to support the Board’s determination that she was discharged

for just cause. The Act is intended “to provide for payment of benefits to persons

unemployed through no fault of their own.” I.C. § 22-4-1-1. Individuals discharged from

“employment for just cause” are ineligible for unemployment benefits. I.C. § 22-4-15-1.

“Insubordination may be a proper basis for just discharge.” Scholl v. Review Bd. of

Ind. Emp. Sec, 461 N.E.2d 691, 692 (Ind. Ct. App. 1984). Factors to be considered in

determining whether the insubordination justified termination include the vulgarity and

severity of the language, the number and length of outbursts, the presence of other

employees, whether the outbursts were directed to a supervisor, and whether the conduct

was provoked. Id. In this case, Conner testified during the hearing that she is “a loud

person[,]” but “everybody was screaming in there because at one point they told me to quit

screaming. I said you’re yelling at me.” (Tr. p. 18). The ALJ found Conner had been

warned on previous occasions concerning her interactions with supervisors and that Conner

“was not provoked into the insubordination.” (Exh. p. 32). Furthermore, the record also

includes evidence that Conner’s yelling went on for at least ten minutes, she argued with

her supervisors in the presence of other employees, and her outbursts caused customers to

complain. Therefore, we find that, in affirming the ALJ, the Board had substantial

evidence to conclude that Conner’s insubordination merited discharge.

CONCLUSION

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 Based on the foregoing, we conclude that there is sufficient evidence to support the

Board’s determination that Wal-Mart terminated Conner’s employment for just cause, thus

disqualifying her from unemployment compensation benefits.

Affirmed.

VAIDIK, C.J. and MAY, J. concur

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