J.B. v. Review Board of the Indiana Department of Workforce Development and Employer (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 09 2017, 8:25 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Troy D. Warner Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana

Andrea E. Rahman
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

J.B., November 9, 2017
Appellant-Defendant, Court of Appeals Case No.
93A02-1611-EX-2666
v. Appeal from the Review Board of
the Indiana Department of
Review Board of the Indiana Workforce Development
Department of Workforce Case No.
Development and Employer, 16-R-1458
Appellee-Plaintiff

Barnes, Judge.

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 Case Summary
[1] J.B. appeals the denial of his request for unemployment benefits by the Review

Board of the Department of Workforce Development (“Review Board”). We

affirm.

Issue
[2] J.B. raises several issues, which we consolidate and restate as whether the

Review Board properly found that he was terminated for just cause.

Facts
[3] J.B. was employed by Employer as a journeyman inside wireman from June 13,

2016, to July 14, 2016, when he was terminated from his position. J.B. applied

for unemployment benefits, and a claims deputy denied the claim. J.B. then

appealed the decision. An administrative law judge (“ALJ”) held a hearing and

found:

The Claimant worked for the Employer from June 13, 2016 until
July 14, 2016. The Claimant worked as a journeyman inside
wireman. The Employer discharged the Claimant for destruction
of company property by writing on a tool box in sharpie.

On July 13, 2016, the Claimant and other employees left the
work site early for the day because of a lack of clean and cold
water on hand. The Claimant was frustrated by the Employer’s
lack of effort in addressing the situation. As a result, the
Claimant took a sharpie and wrote on the Employer’s tool box
the instructions for how to reach OSHA if an employee had an
issue with getting water. [Mr. D.] learned of the situation and
questioned the Claimant about it. The Claimant admitted to

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 writing it. The Claimant offered to clean the writing off of the
tool box. The Employer decided to go ahead and terminate his
employment. The tool box was not painted over or cleaned as of
the date of the hearing.

Appellant’s App. Vol. III p. 4. The ALJ concluded:

Claimant owed a duty to the Employer to not damage any
company property. While the Claimant’s behavior in writing on
the tool box was not the best way to address workplace safety
issues, it was also not intentional destruction of company
property. It also could be said that the Claimant was being
insubordinate with his conduct, but it appears that his
insubordinate attitude was due to the provocation of the inaction
on the part of the Employer to provide water for its employees.
Therefore, the Claimant did not breach a duty that a reasonable
person would realize that it would result in termination of
employment. Employer discharged the Claimant without just
cause.

Id. at 5.

[4] Employer appealed the ALJ’s decision to the Review Board. The Review

Board found:

The Claimant began working for the Employer on June 13, 2016
as a journeyman inside wireman until his last day of employment
on July 14, 2016.

The Employer had a job installing wiring in a new building that
was under construction. As the building was under construction,
there was no air conditioning, and the working conditions were
very warm. The Employer provided water jugs and bottled water
for its workers, but there had been a shortage of water bottles

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 since the day before. While there was water in the water jugs, the
water was not cooled, and the Claimant believed the water jugs
were contaminated with bacteria.

Due to his frustration over the lack of water, the Claimant wrote
on the side of the Employer’s gang box/tool box in permanent
marker, “IOSHA, need drinking water call 317-234-3946.” The
Claimant stated that he wrote it on the side of the gang box,
because he thought all of the guys would see it there when they
got in the gang box to get tools. Information for employees
regarding how to contact OSHA and their rights as employees
was available in the Employer’s office. When asked by the
Employer if he had written the message on the gang box, the
Claimant admitted that he did. The Employer discharged the
Claimant for defacing the Employer’s property.

Id. at 6. The Review Board concluded:

[T]he Claimant wrote a message to fellow employees in
permanent marker on the side of the Employer’s gang box. A
reasonable person would understand that marking on someone
else’s property in permanent marker without the owner’s
permission was an act of defacement. The Claimant’s conduct
deliberately marked the Employer’s property. Even if the
Employer takes measures to cover-up or remove the defacement,
the Employer’s property will still have been permanently altered
by the Claimant’s actions.

The Claimant’s behavior both damaged the Employer’s property
through willful negligence - it was in fact a deliberate act - and
breached a duty owed to his Employer by purposefully defacing
the Employer’s property. The Claimant owed the Employer a
duty to treat the Employer’s property with reasonable care to
maintain the equipment in the manner in which he found it and
to utilize the equipment so that it only gradually deteriorated

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 under the usual wear and tear that occurs during its normal use -
not to make a message board out of the side of the Employer’s
tool box. A reasonable employee would expect to be discharged
for the same or similar behavior. The Employer discharged the
Claimant for just cause.

Id. at 7. Consequently, the Review Board reversed the decision of the ALJ and

determined that J.B. was not entitled to unemployment benefits. J.B. now

appeals.

Analysis
[5] J.B. argues that the Review Board erred when it found he was terminated for

just cause and was ineligible 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 inferences or

deductions based upon the findings of basic fact, are generally reviewed to

ensure that the Review Board’s inferences are reasonable. Id. at 1317-18.

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 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).

[6] 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 includes “(4) damaging the employer’s

property through willful negligence” and “(9) any breach of duty in connection

with work which is reasonably owed an employer by an employee.” The

Review Board found that J.B. was discharged for just cause under both

subsection (4) and subsection (9).

[7] With respect to subsection (4), which concerns damaging the employer’s

property through willful negligence, J.B. argues that the Review Board did not

make any findings of fact that he had damaged the Employer’s property.

According to J.B., the Review Board “assumed damage had occurred without

any finding nor evidence of actual damage.”1 Appellant’s Br. p. 11. In support

of his argument, J.B. relies on Hehr v. Review Bd. of Ind. Emp’t. Sec. Div., 534

1
In support of his argument, J.B. relies on evidence that was not presented to the ALJ or the Review Board.
Because J.B. failed to present this evidence below, he cannot present it on appeal. See Schaefer v. Kumar, 804
N.E.2d 184, 187 (Ind. Ct. App. 2004) (“It is well settled that matters outside the record cannot be considered
by this court on appeal.”), trans. denied. Moreover, the evidence does not qualify for judicial notice under
Indiana Evidence Rule 201.

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 N.E.2d 1122, 1127 (Ind. Ct. App. 1989), where a striking worker hit vehicles

with his hand. We held in Hehr that there was no evidence or finding of actual

damage, and we reversed. Here, however, the Review Board found that J.B.

had written on the Employer’s gang box with a permanent marker, and J.B.

admitted doing so. J.B. claims that the writing could be easily removed, but the

Review Board concluded, “Even if the Employer takes measures to cover up or

remove the defacement, the Employer’s property will still have been

permanently altered by the Claimant’s actions.” Appellant’s App. Vol II p. 7.

Here, there was actual evidence of damage, regardless of whether it could have

later been repaired. Hehr is distinguishable, and the Review Board’s conclusion

regarding subsection (4) is reasonable.

[8] Next, J.B. argues that the Review Board erred by finding that he was

discharged for just cause based on subsection (9) for “any breach of duty in

connection with work which is reasonably owed an employer by an employee.”

I.C. § 22-4-15-1(d)(9). 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,

534 N.E.2d at 1126).

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

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 and that he would be subject to discharge for engaging in the
activity or behavior.

Id. at 1140-41 (quoting Hehr, 534 N.E.2d at 1126).

[9] J.B. argues that the Review Board used the wrong standard by using a

“reasonable person” standard rather than a “reasonable employee” standard.

Under Recker, the proper inquiry is whether a “reasonable employee of the

employer would understand that the conduct in question was a violation of a

duty owed the employer.” Id. (emphasis added). In support of this argument,

J.B. relies on the Review Board’s statement that “A reasonable person would

understand that marking on someone else’s property in permanent marker

without the owner’s permission was an act of defacement.” Appellant’s App.

Vol. II p. 7. However, in discussing J.B.’s behavior, the Review Board also

stated, “A reasonable employee would expect to be discharged for the same or

similar behavior.” Id. Consequently, the Review Board used the correct

standard, and J.B.’s argument fails.

[10] Finally, J.B. argues that his actions were protected by the National Labor

Relations Act and the Indiana Occupational Health and Safety Law and that

his termination was a pretext for his protected activity complaints about the

lack of water on the job site. J.B. did not raise these arguments below, and he

cannot raise them for the first time on appeal. See Leonard v. State, 80 N.E.3d

878, 884 n.4 (Ind. 2017) (waiving an argument that was raised for the first time

on appeal).

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 Conclusion
[11] The Review Board’s findings and conclusions are not clearly erroneous, and the

Review Board properly concluded that J.B. was not entitled to unemployment

benefits. We affirm.

[12] Affirmed.

May, J., and Bradford, J., concur.

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