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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN P. REED GREGORY F. ZOELLER
Abrahamson Reed & Bilse Attorney General of Indiana
Hammond, Indiana
STEPHANIE ROTHENBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ACCESSABILITIES, INC., )
)
Appellant, )
)
vs. ) No. 93A02-1207-EX-551
)
REVIEW BOARD OF THE INDIANA )
DEPARTMENT OF WORKFORCE )
DEVELOPMENT, )
)
Appellee. )
APPEAL FROM THE REVIEW BOARD OF THE DEPARTMENT OF
WORKFORCE DEVELOPMENT
Case No. 12-R-1869
January 29, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
AccessAbilities, Inc., (“Employer”) appeals decision of the Review Board of the
Indiana Department of Workforce Development (“Review Board”) regarding
unemployment benefits for Michele Norris. We affirm.
Issue
Employer raises one issue, which we restate as whether the Review Board
properly determined that Norris was not discharged for just cause.
Facts
Employer provides people with developmental disabilities and the aged with
residential habilitation, community habilitation, and day services. Norris was employed
as a developmental instructor with Employer beginning on February 4, 2008. Employer
has a written policy and procedures manual, which includes a provision that:
Any employee who receives three disciplinary reports, for
any reason, in a three month period, will be subject to
termination following the receipt of another Disciplinary
Report (the 4th). Each of the Disciplinary Reports, up to the
final report resulting in termination, will follow the
procedures for discipline as delineated in this manual.
App. p. 38.
Norris received a Disciplinary Report on April 7, 2011, for using white-out on
documentation after having been warned not to use white-out. Norris submitted a
corrective action plan, acknowledged that she had used white-out, and agreed that she
would not use white-out on Employer’s forms again.
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On June 8, 2011, Norris was observed raising her voice toward a consumer and
using a “verbally abusive tone” with the consumer. Tr. p. 29. Employer learned that
Norris was maintaining possession of the consumer’s debit card and cash. Employer
filed a report with the State of Indiana and began a state-mandated investigation because
the allegations involved abuse or exploitation. The allegations of abuse and exploitation
could not be substantiated in the investigation, but Employer determined that Norris’s
tone with the consumer was not appropriate. Norris was given another Disciplinary
Report as a result of the inappropriate verbal interactions with the consumer.
During the investigation of the June 8th incident, Norris was suspended from her
employment and was not allowed to provide services to Employer’s consumers. Separate
from her employment, Norris was a representative payee for one of Employer’s
consumers. Norris sent repeated disrespectful and inappropriate text messages to a
supervisor, Heather Opperman, regarding the consumer’s care. Employer gave Norris a
third Disciplinary Report as a result of the text messages. That Disciplinary Report
informed Norris that “one more Disciplinary Report, in the month of June 2011, will
result in termination from her position . . . .” App. p. 85.
Norris was to remain suspended until she attended a New Employee Training class
at 10:00 a.m. on June 29, 2011. However, Norris arrived late to the training. Employer
contends that Norris arrived at 10:15 a.m., while Norris argues that she arrived at 10:04
a.m. Norris was given a fourth Disciplinary Report because she was late for the training,
and her employment was terminated by Employer.
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Norris filed for unemployment benefits, and on February 27, 2012, a claims
deputy of the Department of Workforce Development found that Norris was not
discharged for just cause and was eligible for benefits. Employer appealed the deputy’s
determination, and a hearing was held before an administrative law judge (“ALJ”). After
the hearing, the ALJ issued findings of fact and conclusions thereon affirming the claims
deputy’s determination. The Employer appealed the ALJ’s determination to the Review
Board, which adopted and incorporated the ALJ’s findings of fact and conclusions
thereon and affirmed the ALJ’s decision, which provided, in part:
The employer did not present any documentary evidence to
show that the fourth disciplinary report which resulted in the
claimant’s discharge had followed the procedures for
discipline as delineated in the manual. The employer did not
present any evidence to show that a warning was to be issued
to an individual who was four minutes late in reporting for a
training. The other disciplinary reports did not deal with
attendance issues.
*****
It is concluded that the rule that the employer was enforcing
in this case was having greater than three disciplinary reports
in a three month period. The last disciplinary report which
brought about her discharge involved an alleged tardiness
violation. It is concluded that the employer did not produce
documentary evidence to show that the attendance policy was
properly enforced. This procedure concerning greater than
three disciplinary reports requires the employer to follow the
procedures for discipline as delineated in the manual. The
claimant was determined to be tardy because of arriving four
minutes late for training. It is concluded that the employer
did not present any documentary evidence to show that one
incident of tardiness should result in a discharge.
Further, the employer has admitted that the allegations made
in the employee disciplinary report concerning the incident of
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June 8 through June 10, 2011, (Employer’s Exhibit 10), were
not substantiated. Therefore, the claimant did not accumulate
more than three valid disciplinary reports during a three
month period.
It is concluded that the claimant did not violate the
employer’s rule. It is concluded that the employer failed to
meet its burden of proof to show that the claimant knowingly
violated a reasonable and uniformly enforced rule concerning
greater than three disciplinary reports in a three month period.
Therefore, it is concluded that the claimant was discharged
but not for just cause within the meaning and intent of I.C.
22-4-15-1.
Id. at 5-6. Employer now appeals.
Analysis
Employer argues that the Review Board erred when it found that Norris was
eligible to receive unemployment benefits. On appeal, we review the Review Board’s (1)
determinations of specific or basic underlying facts; (2) conclusions or inferences from
those facts, or determinations of ultimate facts; and (3) conclusions of law. McClain v.
Review Bd. of Indiana Dep’t of Workforce Dev., 693 N.E.2d 1314, 1317 (Ind. 1998).
The Review Board’s findings of basic fact are subject to a “substantial evidence”
standard of review. Id. In this analysis, we neither reweigh the evidence nor assess the
credibility of witnesses and consider only the evidence most favorable to the Review
Board’s findings. Id. Reversal is warranted only if there is no substantial evidence to
support the Review Board’s findings. Id. (citing KBI, Inc. v. Review Bd. of Indiana
Dep’t of Workforce Dev., 656 N.E.2d 842, 846 (Ind. Ct. App. 1995)). Next, the Review
Board’s determinations of ultimate facts, which involve an inference or deduction based
upon the findings of basic fact, are generally reviewed to ensure that the Review Board’s
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inference is reasonable. Id. at 1317-18. Finally, we review conclusions of law to
determine whether the Review Board correctly interpreted and applied the law. McHugh
v. Review Bd. of Indiana Dep’t of Workforce Dev., 842 N.E.2d 436, 440 (Ind. Ct. App.
2006).
In Indiana, an employee is ineligible for unemployment benefits if he or she is
discharged for just cause. Recker v. Review Bd. of Ind. Dep’t of Workforce Dev., 958
N.E.2d 1136, 1140-41 (Ind. 2011); Ind. Code § 22-4-15-1. Indiana Code Section 22-4-
15-1(d) delineates nine non-exclusive scenarios that can amount to “[d]ischarge for just
cause,” which include “any breach of duty in connection with work which is reasonably
owed an employer by an employee.” The breach of duty “ground for just [cause]
discharge is an amorphous one, without clearly ascertainable limits or definition, and
with few rules governing its utilization.” Recker, 958 N.E.2d at 1140 (quoting Hehr v.
Review Bd. of Ind. Emp’t. Sec. Div., 534 N.E.2d 1122, 1126 (Ind. Ct. App. 1989)).
In considering whether an employer may utilize this provision
as a basis for justifying its action, the Board should consider
whether the conduct which is said to have been a breach of a
duty reasonably owed to the employer is of such a nature that
a reasonable employee of the employer would understand that
the conduct in question was a violation of a duty owed the
employer and that he would be subject to discharge for
engaging in the activity or behavior.
Recker, 958 N.E.2d at 1140-41 (quoting Hehr, 534 N.E.2d at 1126). The employer bears
the burden of establishing a prima facie showing of just cause for termination, and if that
burden is met, the burden shifts to the employee to introduce competent evidence to rebut
the employer’s case. Herr, 534 N.E.2d at 1124.
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Employer argues that the Review Board’s findings are clearly erroneous regarding
the tardiness incident and associated fourth Disciplinary Report. Employer’s manual
provided that “[e]ach of the Disciplinary Reports, up to the final report resulting in
termination, will follow the procedures for discipline as delineated in this manual.” App.
p. 38. The Review Board concluded that Employer failed to produce documentary
evidence regarding its attendance policy and the procedures for discipline regarding
attendance. The portions of the manual that were admitted did not address attendance
policies and whether a Disciplinary Report was an appropriate response to being fifteen
minutes late to a training.
Employer argues that the ALJ improperly limited the admission of the entire
manual. However, the ALJ emphasized that Employer should move to admit only the
policies that brought about Norris’s discharge. Employer apparently did not move to
admit the attendance policy at issue here. The ALJ could not err by failing to admit a
policy that Employer did not request to have admitted.
Employer failed to meet its burden of demonstrating that the fourth Disciplinary
Report was proper. As a result, Norris did not receive four valid Disciplinary Reports in
a three month period to justify her discharge. Because the Review Board’s findings and
conclusions regarding the validity of the fourth Disciplinary Report are not clearly
erroneous, we need not address Employer’s arguments regarding the Disciplinary Report
for the June 8th through June 10th incident.
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Conclusion
The Review Board’s findings and conclusions are not clearly erroneous, and the
Review Board properly concluded that Norris was entitled to unemployment benefits.
We affirm.
Affirmed.
BAKER, J., and RILEY, J., concur.
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