Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
FILED
Apr 18 2012, 9:01 am
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata, CLERK
of the supreme court,
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ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
MITCHELL A. PETERS GREGORY F. ZOELLER
Miller Fisher Law, LLC Attorney General of Indiana
Merrillville, Indiana
STEPHANIE ROTHENBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MARGARET M. HAMMOND, )
)
Appellant-Petitioner, )
)
vs. ) No. 93A02-1110-EX-956
)
REVIEW BOARD OF THE INDIANA )
DEPARTMENT OF WORKFORCE )
DEVELOPMENT and PORTER COUNTY )
COMMISSIONERS, )
)
Appellees-Respondents. )
APPEAL FROM THE REVIEW BOARD
OF THE DEPARTMENT OF WORKFORCE DEVELOPMENT
The Honorable Steven F. Bier, Chairperson
Cause No. 11-R-04094
April 18, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Claimant, Margaret Hammond (Hammond), appeals the decision by the
Review Board of the Indiana Department of Workforce Development (Review Board),
which found her to be ineligible for unemployment benefits.
We affirm.
ISSUE
Hammond raises one issue on appeal, which we restate as: Whether Hammond
was discharged for just cause.
FACTS AND PROCEDURAL HISTORY
Hammond worked at the Portage, Indiana office of the Porter County Circuit
Court Clerk as the Deputy of Records. Her duties entailed document handling and
locating files for the courts or attorneys. Karen Martin (Martin) is the Porter County
Circuit Clerk and was Hammond’s supervisor. Martin worked at the Clerk’s office in
Valparaiso.
On June 20, 2011, Hammond worked at the Valparaiso office and Martin told
Hammond to attend document scanning training at the same office. Training was
scheduled for 8:30 a.m., June 24, 2011. The day before, June 23, 2011, Hammond told
Martin that she could not attend the training on time because of difficulties in getting up
earlier for travel to the Valparaiso office. A heated argument ensued. Martin informed
Hammond that document scanning duties were required for her position at the Portage
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office. Although Hammond had received training previously, she was admittedly not
sufficiently proficient. Hammond asked how long the training would take and Martin
responded that it depended on her ability to learn document scanning. Hammond refused
to take the training and Martin ordered Hammond to attend the training. Hammond said
“I don’t think so,” and Martin repeated her instruction. Hammond then walked out of
Martin’s office, slamming the door. (Appellant’s App. p. 17).
Hammond did not return to work for the remainder of the day. Hammond also did
not report for training the following day at 8:30 a.m. Instead, Hammond sent Martin a
text message that she was ill and would not report to work that day. Later that day,
Hammond sent another text message to Martin informing her that she would report to
training on Monday, June 27, 2011, as Martin had instructed. On June 27, 2011,
Hammond arrived at the Valparaiso office where she was escorted to Martin’s office.
Hammond was handed a termination letter discharging her for insubordination.
On July 14, 2011, a claims deputy with the Department of Workforce
Development determined that Hammond was discharged for just cause. On July 19,
2011, Hammond appealed the deputy’s determination. On August 3, 2011, an
administrative law judge (ALJ) held a hearing, attended by both Hammond and Martin.
That same day, the ALJ upheld the claims deputy’s decision, concluding that Hammond
was discharged for just cause and therefore was not entitled to unemployment benefits.
On August 12, 2011, Hammond appealed the ALJ's conclusion to the Review Board and
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also requested that the Review Board accept new evidence. On September 13, 2011, the
Review Board affirmed the ALJ’s decision without considering any new evidence.
Hammond now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
Our supreme court has recently stated the applicable standard of review:
The standard of review on appeal of a decision of the [Review]
Board is threefold: (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. Ultimate facts are facts that “involve an inference or
deduction based on the findings of basic fact.” Where such facts are within
the “special competence of the [Review] Board,” the [reviewing court] will
give greater deference to the [Review] Board's conclusions, broadening the
scope of what can be considered reasonable.
Recker v. Review Bd. of Ind. Dep’t of Workforce Development, 958 N.E.2d 1136, 1139
(Ind. 2011). Under the substantial evidence review, “the appellate court neither reweighs
the evidence nor assesses the credibility of witnesses and considers only the evidence
most favorable to the [Review] Board’s findings.” McClain v. Review Bd. of Indiana
Dep’t of Workforce Dev., 693 N.E.2d 1314, 1317 (Ind. 1998).
II. Discharge for Just Cause
Hammond contends that the Review Board’s decision that she was discharged for
just cause was not supported by the evidence. Under Ind. Code § 22-4-15-1(a), an
employee discharged for just cause is ineligible for unemployment benefits. Recker, 958
N.E.2d at 1140. The employer has the burden to show that the employee was discharged
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for just cause. Sloan v. Review Bd. of the Ind. Employment Security Div., 444 N.E.2d
862, 865 (Ind. Ct. App. 1983). If the employer meets its burden, the burden shifts to the
claimant to rebut the employer’s case. Id.
I.C. § 22-4-15-1(d)(4) provides that an employee’s refusal to obey instructions
constitutes just cause for that employee’s discharge. Jones v. Review Bd. of Indiana
Dep’t of Employment and Training, 583 N.E.2d 196, 199 (Ind. Ct. App. 1991). Further,
“[w]hen the authority of those in whom the employer has confided responsibility for day-
to-day operations is flouted by an employee’s willful disregard of reasonable directives,
just cause for discharge of that employee exists.” Graham v. Review Bd. of Indiana
Employment Security Div., 386 N.E.2d 699, 702 (Ind. Ct. App. 1979). Here, the ALJ
concluded that Hammond willfully disregarded Martin’s reasonable instructions to attend
training in Valparaiso. We agree.
Martin testified that Hammond had difficulties with document scanning and that
certain co-workers at the Portage office had complained about these difficulties. Martin
testified that she never considered discharging Hammond. Martin instructed Hammond
to attend training to better perform her duties. Although Hammond asserted that she
could scan, she admitted that her abilities were deficient. When instructed again to attend
training again, Hammond said, “we’ll see about that,” and left Martin’s office, slamming
the door shut. (Appellant’s App. p. 17). Hammond left work and did not return that day.
Training was to occur the following day and Hammond failed to attend. We therefore
find that substantial evidence supports the determination that Hammond willfully
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disobeyed a reasonable instruction of her employer. Accordingly, Hammond’s discharge
was for just cause.
Hammond makes three arguments that the evidence was insufficient to prove that
Martin discharged her with just cause. First, Hammond argues that her testimony
establishes that she did not refuse to attend training in Valparaiso, but instead sought a
postponement of the training sessions. Hammond had an ill father for whose care she
was responsible and the extra hour or two required for travel to the Valparaiso office was
difficult given these responsibilities. As a result, she did not demonstrate a willful
disregard of Martin’s instructions. However, Hammond’s argument here requires us to
revisit the ALJ’s determination of witness credibility and weight of the evidence. We
decline Hammond’s invitation to do so. See McClain, 693 N.E.2d at 1317.
Next, Hammond argues that she was discharged for a violation of employment
rules governing employee insubordination and absenteeism. During the hearing, Martin
questioned Hammond about her knowledge and compliance with the Porter County
Government Employee Personnel Policy Manual, specifically Section 11.03, addressing
termination based on employee insubordination, as well as other sections of the manual
addressing employee absenteeism. Because this employment manual was not in evidence
and Martin could not establish Hammond’s knowledge of its provisions, Hammond
contends that Martin failed to meet her burden to prove a “knowing violation of a
reasonable and uniformly enforced rule of an employer, including a rule regarding
attendance.” I.C. § 22-4-15-1(d)(2). Meeting this burden required Martin to show that
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Hammond “(1) knowingly violated; (2) a reasonable; and (3) uniformly enforced rule.”
Brown v. Indiana Dep’t of Workforce Dev., 919 N.E.2d 1147, 1151 (Ind. Ct. App. 2009).
However, “[w]hile the [Review] Board’s task is to use any applicable definition in
[I.C. § 22-4-15-1(d)] to determine whether an employee was discharged for just cause,
our review is limited to determining whether the [Review] Board made sufficient findings
to support the definition it selected to apply.” Ryan v. Review Bd. of Indiana Dep’t of
Employment and Training Svcs., 560 N.E.2d 112, 114 (Ind. Ct. App. 1990). Here, the
Review Board’s conclusion expressly rests upon a determination that Hammond was
discharged for just cause under I.C. § 22-4-15-1(d)(5), insubordination. Accordingly, our
review is limited to whether the Review Board’s findings support its conclusion, which
we have concluded in the affirmative. See Ryan, 560 N.E.2d at 114.
Finally, Hammond contends that the ALJ was negligent in her duties by failing to
independently conduct further inquiry or solicit evidence into those areas tending to
support Hammond’s version of events, including her medical records, her father’s illness,
and Porter County’s employment policies. Given that Hammond appeared at the hearing
pro se, she argues that the ALJ “had a special responsibility in shepherding the case and
following up on all presented evidence.” (Reply Br. p. 9).
646 Ind. Admin. Code § 5-10-5(a)(3) sets out the duties of the ALJ in this regard:
Where either party fails to appear or where either party is not represented
by an attorney or duly authorized agent, [the ALJ] shall have the duty to
examine the party's witnesses, and to cross-examine all witnesses of the
other party, in order to ensure complete presentation of the case.
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Further, we have recognized the “affirmative duty” placed upon the ALJ to ensure that
pro se claimants are afforded the opportunity to present their cases. Steele v. Dep’t of
Workforce Dev., 853 N.E.2d 179, 180 (Ind. Ct. App. 2006). We have also recognized the
limitations of that duty:
The [ALJ] does not have to explore every minute aspect of a claimant’s
termination and her work conditions. [The ALJ] should question all parties
and witnesses with a view toward eliciting testimony necessary to ferret out
the issues. Sufficient facts should be obtained during [the ALJ’s]
questioning to allow for a reasonable disposition of this issue.
Richey v. Review Bd. of Indiana Employment Securities Div., 480 N.E.2d 968, 971 (Ind.
Ct. App. 1985). Further, the ALJ is not an advocate for the claimant; instead, the ALJ
“must sufficiently develop the facts and issues to allow for a reasonable disposition of the
claim.” Jones, 583 N.E.2d at 200.
Hammond attended the hearing without an attorney. The ALJ questioned both
Martin and Hammond, giving both an opportunity to ask questions of the other. Instead
of testifying as to facts regarding the discharge, the extent of her care-giving, and her
medical condition, Hammond chose to focus on the argument and apparently difficult
relationship between her and Martin. The hearing transcript also contains a number of
attempts by the ALJ to restrain both sides from engaging in argument, rather than
questioning, as well as focusing both parties’ testimony on the issue at hand, Hammond’s
alleged insubordination. In sum, we conclude that the ALJ satisfied her obligation to
develop the facts and issue of whether Hammond was discharged for just cause.
CONCLUSION
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Based on the foregoing, we conclude that the Review Board properly affirmed the
ALJ’s decision that Hammond was discharged for just cause and thus not eligible to
receive unemployment benefits.
Affirmed.
NAJAM, J. and DARDEN, J. concur
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Margaret M. Hammond v. Review Board of the Indiana Dept. of Workforce Development and Porter County Commissioners
Combined Opinion