Loren J. Adams v. Review Board of the Indiana Department of Workforce Development, and F&J Pizza III LLC (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Oct 21 2015, 9:11 am
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.

APPELLANT PRO SE ATTORNEYS FOR APPELLEES
Loren Jay Adams Gregory F. Zoeller
Westfield, Indiana Attorney General of Indiana
Kyle Hunter
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Loren J. Adams, October 21, 2015

Appellant-Petitioner, Court of Appeals Case No.
93A02-1501-EX-16
v. Appeal from the Review Board of the
Department of Workforce
Development.
Review Board of the Indiana The Honorable Steven F. Bier,
Department of Workforce Chairperson.
Development, and F&J Pizza III The Honorable George H. Baker,
Member.
LLC, The Honorable Larry A. Dailey,
Appellees-Respondents. Member.
Cause No. 14R-02417

Shepard, Senior Judge

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[1] Loren J. Adams was fired from his job at Jet’s Pizza. The Indiana Department

of Workforce Development denied his claim for unemployment benefits,

concluding that he was fired for just cause. Adams contends that the evidence

does not support that finding, and that evidence needed to support his position

was not made available to him. We affirm.

Issues
[2] Adams presents the following restated issues for our review:

I. Whether the Administrative Law Judge (ALJ) erred by
allowing Adams’ employer to introduce evidence of write-
ups for incidents prior to the one that prompted his
discharge.
II. Whether the ALJ erred by failing to obtain video tape
evidence of the incident leading to Adams’ termination.

Facts and Procedural History
[3] Adams had been a part-time delivery driver and inside staff person at Jet’s

Pizza for two years when his employment was terminated for insubordination

on September 2, 2014. After he was fired, Adams filed for unemployment

benefits, but his request was denied by the claims deputy, who found that

Adams had been discharged for just cause. Adams appealed, and an ALJ

conducted a full hearing, and concluded that Adams had been discharged for

cause. Adams appealed that decision to the Department’s Review Board,

where the denial of benefits was affirmed yet again. Adams now brings this

appeal.
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 Discussion and Decision
Standard of Review
[4] The standard of review from a decision of the Review Board involves the

following analyses: (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). Ultimate facts are those which involve some inference or

deduction from the findings of basic fact. Id. Where those facts are within the

special competence of the Board, we will give greater deference to its

conclusions, broadening the scope of what can be deemed reasonable. Id. We

do not reweigh the evidence or assess witness credibility, but consider only the

evidence most favorable to the Board’s findings. Quakenbush v. Review Bd. of

Ind. Dep’t of Workforce Dev., 891 N.E.2d 1051, 1053 (Ind. Ct. App. 2008).

I. Evidence of Prior Write-Ups
[5] Adams argues that the ALJ erred by allowing testimony and documents about

prior write-ups Adams had received for poor performance on the job and for

tardiness, saying that this allowed the employer to add violations to lend

support for the decision to discharge Adams. Mark Helmer, the general

manager of Jet’s Pizza, testified without objection about Adams’ fifteen prior

write-ups involving tardiness, failure to check orders before delivery, or failure

to follow direct instructions from supervisors. He said that although there is no

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 mapped disciplinary process that leads to termination, the general manager

determines when a discharge will occur based on the employee’s work record as

a whole. Discharge can occur for any single violation of a rule in the employee

handbook, and no employee similarly situated to Adams remained employed

after accruing even ten write-ups. Helmer claimed to have treated Adams

leniently, and described the incident prompting the final write-up as “the straw

that broke the camel’s back.” Tr. p. 8.

[6] The final incident occurred on the evening of September 1, 2014, when a

manager and two other employees were performing closing duties. The

manager told all employees that no one could leave until all tasks were

completed. He told Adams, who was mopping floors, to wait on mopping

because other workers were moving back and forth. Adams threw down the

mop and without permission went outside to sit in his car, still on the clock.

Five or ten minutes later, Adams returned to the store and, upon being asked

again to help the others, assisted with the closing. Once those tasks were

completed, Adams clocked out with the other workers. His supervisor

completed a write-up about the incident.

[7] The statute outlining the grounds for disqualification for employment benefits

makes clear that an employee discharged for just cause is ineligible for benefits.

Ind. Code § 22-4-15-1(a) (2014). The definition of discharge for just cause

includes the refusal to obey instructions. Ind. Code § 22-4-15-1(d)(5). Courts

have upheld refusal as just cause for discharge as a matter of law, recognizing

this declaration in the Code. See J.M. v. Review Bd. of Ind. Dep’t of Workforce Dev.,

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 975 N.E.2d 1283, 1289 (Ind. 2012) (denial of benefits affirmed where employee

refused to report time missed as directed).

[8] Whether an employer had just cause to terminate is a question of fact for the

Review Board to determine in each case based on the particular facts presented.

Russell v. Review Bd. of Ind. Dep’t. of Emp’t and Training Servs., 586 N.E.2d 942,

948 (Ind. Ct. App. 1992). Here, the Review Board’s decision is supported by

the facts it found.

[9] Adams points to testimony reflecting his side of the incident. In emphasizing

his version, however, Adams in effect asks us to reweigh the evidence.

Adhering to our standard of review, we decline. See Quakenbush, 891 N.E.2d at

1053.

[10] As for whether evidence of his prior write-ups should have been admitted,

Adams did not object until the parties were preparing for closing argument. He

then objected to some of the write-ups because they were not signed and

claimed not to have seen at least one of them. We conclude that the ALJ did

not err by admitting evidence of the prior write-ups because they tell the full

story leading to the decision to discharge Adams for the final incident involving

insubordination. With respect to the conduct of hearings, the statute says

administrative law judges and others adjudicating unemployment

compensation claims during a hearing shall do so in accordance with rules

adopted by the Department of Workforce Development for determining the

rights of parties. Ind. Code § 22-4-17-6 (2009). Caselaw further establishes that

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 the decision to admit or exclude evidence is left to the sound discretion of the

administrative law judge. See e.g., Cornell v. Review Bd. of Ind. Emp’t Sec. Div.,

179 Ind. App. 17, 21, 383 N.E.2d 1102, 1105 (1979).

[11] Adams also claims error in the admission of the evidence because Manager

Helmer testified about the incident of insubordination but was not a witness to

it. Asked by the ALJ about the final incident, Helmer testified he was not

present on that evening but said the supervisor who wrote-up Adams was

present and would testify. The supervisor did just that. To the extent Helmer

testified about the last incident, he did so without objection and the issue is

waived. Further, Helmer’s testimony was cumulative of evidence offered by the

supervisor who was in charge that night. “The admission of evidence is

harmless and is not grounds for reversal where the evidence is merely

cumulative of other evidence properly admitted.” Gaines v. State, 999 N.E.2d

999, 1005 (Ind. Ct. App. 2013).

[12] There was sufficient, admissible evidence presented to support the denial of

benefits on the ground that Adams was discharged for just cause. The ALJ did

not err by admitting the challenged evidence.

II. Video Tape Evidence
[13] Adams claims that the ALJ committed reversible error by “allowing the

employer to destroy” evidence Adams had requested for the hearing.

Appellant’s Br. p. 1. We disagree.

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[14] The incident occurred on September 1, 2014. Adams requested video tape from

the store on Friday, October 24, 2014 at 2:38 p.m. Ex. Vol. p. 18. The ALJ

issued a subpoena for the video and audio surveillance evidence two business

days later on October 28, 2014. Id. at 19-20. Testimony at the hearing,

however, established that the equipment at Jet’s Pizza stores records for just

fifty days. Tr. p. 2. After the fifty days pass, the system automatically records

over the previous video. Id. Thus, by the time Adams requested production of

the evidence, it no longer existed. As for whether Jet’s should have retained the

video in anticipation of being asked for it, we think the ALJ could well have

deemed such an omission as reflecting on Jet’s case. Still, there is no evidence

of any intent to undermine the proceeding by destroying evidence.

[15] Affirmed.

May, J., and Bailey, J., concur.

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