D.S. v. Review Board of the Indiana Department of Workforce Development (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Mar 21 2018, 9:11 am

regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE
D.S. Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General

David E. Corey
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

D.S., March 21, 2018
Appellant, Court of Appeals Case No.
93A02-1711-EX-2600
v. Appeal from the Indiana
Department of Workforce
Review Board of the Indiana Development
Department of Workforce Steven F. Bier, Chairperson
Development, Lawrence A. Dailey, Member
Conny Franken, Administrative
Appellee Law Judge

Case No. 17-R-1182

Crone, Judge.

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 Case Summary
[1] D.S., pro se, appeals the decision of the Review Board of the Indiana

Department of Workforce Development (“the Review Board”) affirming an

administrative law judge’s (“ALJ”) determination that D.S. was discharged

from his employment for just cause and is therefore ineligible for

unemployment benefits. Concluding that there is substantial evidence to

support the Review Board’s decision and that the decision is not unreasonable,

we affirm.

Facts and Procedural History
[2] D.S.’s employment was terminated in July 2017. D.S. sought unemployment

benefits and, on August 25, 2017, a claims deputy with the Indiana Department

of Workforce Development determined that D.S. was not discharged for just

cause and that D.S. was entitled to benefits. The employer appealed that

determination. On October 3, 2017, an ALJ conducted a hearing during which

both parties participated by telephone. That same day, the ALJ issued findings

of fact and conclusions thereon reversing the claim deputy’s determination

regarding just cause. On October 6, 2017, D.S. appealed the ALJ’s decision to

the Review Board. The Review Board adopted and incorporated the ALJ’s

findings of fact and conclusions thereon, affirming that decision on October 27,

2017.

[3] The ALJ’s relevant findings of fact and conclusions thereon adopted by the

Review Board are as follows:

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 [D.S.] began employment on October 23, 2015[,] and was
discharged for lack of respect for the individual effective July 31,
2017. [D.S.] worked as the assistant store manager.

[D.S.] transferred to [Store Manager]’s store in January 2017. In
February 2017, [D.S.] and the Produce Manager became
involved in an argument because [D.S.] questioned why he did
not place the cardboard in the container. The Produce Manager
had placed the cardboard on the ground. [D.S.] and the Produce
Manager took their argument to the front office and proceeded to
argue. The employer discharged the Produce Manger for his
conduct and issued a warning to [D.S.] because he told the
Produce Manager “bye” in an argumentative tone.

In early July 2017[,] [Store Manager] directed [D.S.] to sweep the
floors since maintenance did not do it the prior evening. Keeping
the store clean is one of [D.S.]’s duties. It was near the end of
[D.S]’s shift, and he had plans. [D.S.] left despite [Store
Manager] calling out to him to return and do the task. [Store
Manager] issued a warning that [D.S.] acknowledged on-line.

On July 28, 2017[,] the Market Manager questioned [D.S.] as to
whether he attempted to stock the shelves with the items that
were found in the back room. [D.S.] told the Market Manager
that it was back stock; he had completed unloading and stocking
the shelves. The Market Manager disagreed. In front of [Store
Manager] who was present, [D.S.] told the Market Manager that
he could stock the shelves. The Market Manager directed [D.S.]
to leave. [D.S.] left pending termination. Later, the employer
notified [D.S.] that he was discharged from employment for lack
of respect for individuals.

….

[D.S] chose to argue with a subordinate and his superiors. [D.S.]
exercised control over the circumstances that resulted in his

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 discharge. By being disrespectful, [D.S.] undermines morale
which could impact work output. [D.S.] breached a relevant
duty. [D.S.] was discharged for just cause. [D.S.] is ineligible for
benefits under the Act.

Ex. Vol. 59-64. Accordingly, the Review Board affirmed the ALJ’s decision.

This pro se appeal ensued.

Discussion and Decision
[4] The Indiana Unemployment Compensation Act provides that “[a]ny decision

of the review board shall be conclusive and binding as to all questions of fact.”

Ind. Code § 22-4-17-12(a). Our standard of review on appeal of the Review

Board’s decision is threefold: (1) findings of 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) (citing McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693

N.E.2d 1314, 1318 (Ind. 1998)).

[5] We review the Review Board’s findings of basic facts under a “substantial

evidence” standard, and we neither reweigh the evidence nor assess its

credibility. Chrysler Group, LLC v. Review Bd. of Ind. Dep’t of Workforce Dev., 960

N.E.2d 118, 122 (Ind. 2012). We consider only the evidence most favorable to

the Review Board’s findings and, absent limited exceptions, treat those findings

as conclusive and binding. Id. “Such exceptions include if the evidence ‘was

devoid of probative value,’ or ‘was so proportionally meager as to lead to the

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 conviction that the finding does not rest upon a rational basis,’ or the result of

the proceedings was unduly influenced, fraudulent, or arbitrary.” Id. at 122 n.2

(quoting McClain, 693 N.E.2d at 1317 n.2).

[6] Ultimate facts are reviewed to ensure that the Review Board has drawn a

reasonable inference in light of its findings on the basic, underlying facts. Id.

We examine the logic of the inference drawn and impose any rules of law that

may drive the result. Id. at 123. Finally, we are not bound by the Review

Board’s interpretation of the law and we determine de novo whether the

Review Board correctly interpreted and applied the applicable law. S.S. v.

Review Bd. of Ind. Dep't of Workforce Dev., 941 N.E.2d 550, 554 (Ind. Ct. App.

2011).

[7] Pursuant to Indiana Code Section 22-4-15-1(a), an individual is disqualified

from receiving unemployment benefits if he or she is discharged for just cause

by the most recent employer. “Discharge for just cause” includes “any breach of

duty in connection with work which is reasonably owed an employer by an

employee.” Ind. Code § 22-4-15-1(d)(9). An applicant’s entitlement to

unemployment benefits is determined based on the information that is available

without regard to a burden of proof. Ind. Code § 22-4-1-2(c). “There is no

presumption of entitlement or nonentitlement to benefits. There is no equitable

or common law allowance for or denial of unemployment benefits.” Ind. Code

§ 22-4-1-2(d).

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[8] Here, there is substantial evidence to support the Review Board’s basic finding

that D.S. behaved disrespectfully on multiple occasions and that such behavior

constituted a breach of duty in connection with work which he reasonably

owed to his employer. D.S. does not dispute his employer’s accounts of his

behavior toward both subordinates and superiors, or the fact that he was

discharged for that reason. He simply offers explanations and justifications for

his behavior and argues that his actions were “misinterpreted as disrespect.”

Appellant’s Br. at 8.1 This is essentially a request for us to reweigh the evidence

and reassess witness credibility in his favor, a task not within our prerogative on

appeal. See Chrysler Group, 960 N.E.2d at 122. Under the circumstances

presented, we cannot say that the evidence supporting the Review Board’s

finding was devoid of probative value or was so proportionally meager as to

convince us that the finding does not rest upon a rational basis. Id. at 122 n.2.

[9] Moreover, the Review Board’s ultimate finding of fact and conclusion that D.S.

was discharged for just cause was reasonable in light of its findings on the basic,

underlying facts. D.S. does not challenge the reasonableness of this ultimate

1
We note that D.S. is proceeding pro se. Our supreme court has explained that “a pro se litigant is held to
the same standards as a trained attorney and is afforded no inherent leniency simply by virtue of being self-
represented.” In re G.P., 4 N.E.3d 1158, 1164 (Ind. 2014). Accordingly, we will not “indulge in any
benevolent presumption” on behalf of a pro se litigant, nor will we “waive any rule for the orderly and proper
conduct of his appeal.” Foley v. Mannor, 844 N.E.2d 494, 496 n.1 (Ind. Ct. App. 2006). D.S. failed to file an
appendix, and the arguments in his brief are written in a stream-of-consciousness fashion and are difficult to
discern. He inappropriately refers to evidence outside the record below, and his briefs contain no citation to
case law or the appellate record. Although we could have deemed his arguments waived for lack of cogent
argument, see Ind. Appellate Rule 46(A)(8) (requiring contentions in appellant’s brief be supported by cogent
reasoning and citations to relevant authority), we have instead done our best to address the merits of this
appeal.

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 finding based on the underlying facts; he simply invites us to look to the

“totality” of the facts and “reweigh the evidence provided.” Appellant’s Reply

Br. at 4. Again, we must decline. In sum, there is substantial evidence in the

record to support the basic finding that D.S. behaved disrespectfully. This

supports the ultimate finding of fact and conclusion that D.S. was discharged

for just cause pursuant to Indiana Code Section 22-4-15-l(d)(9). The decision of

the Review Board is affirmed.

[10] Affirmed.

Robb, J., and Bradford, J., concur.

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