McClain v. Review Board of the Indiana Department of Workforce Development

BARTEAU, Judge,

dissenting.

In order to make a prima facie showing of just cause for termination of McClain’s employment, IUPUI had to establish that McClain: (1) knowingly violated; (2) a reasonable; and (3) uniformly enforced rule. Hehr v. Review Bd. of Ind. Emp. Sec. Div., 534 N.E.2d 1122, 1124 (Ind.Ct.App.1989). The majority determines that IUPUI failed to establish that its rule regarding falsification of time cards was uniformly enforced. I disagree.

Whether IUPUI’s policy was uniformly enforced was a question of fact and the Board’s decision regarding all questions of fact is conclusive if supported by the evidence. Butler v. Review Bd. of Ind. Dept. of Emp. and Training Serv., 633 N.E.2d 310, 312 (Ind.Ct.App.1994) (citing Russell v. Review Bd. of Ind. Dept. of Emp. and Training Serv., 586 N.E.2d 942, 948 (Ind.Ct.App.1992)). Robert L. Heid, manager of records and unemployment compensation for IUPUI, testified that McClain was fired for falsification of his time card and that IUPUI treats falsification of time cards as a suspension subject to discharge in all departments. R. 27. McClain’s supervisor also testified concerning uniform enforcement of the rule. When asked whether an employee would lose his job if he followed incorrect time card procedures such as the four employees did, he responded “Yes, that ... that’s the standard practice. That’s ... that’s been what the protocol has happened.” R. 34. Additionally, McClain himself testified that he understood the policy regarding clocking out his own time card and that he knew that having someone else clock out his time card could cause him to lose his job. R. 43.3 The Board adopted the decision of the administrative law judge which found that this evidence established McClain knowingly violated a reasonable and uniformly enforced employer policy. Because the Board’s finding of fact is supported by the evidence, this court may not disturb that finding.

The majority cites to Kuntz v. Review Bd. of Ind. Emp. Sec. Div., 180 Ind.App. 490, 389 N.E.2d 342 (1979), as support for its conclusion that the testimony of Heid and the supervisor was insufficient to support a determination that the rule was uniformly enforced. However, in Kuntz, the claimant was discharged for failing to provide the employer with medically documented verification of *1089his illness after he had been instructed to do so. The “that’s customary with us” statement quoted by the majority was found to be deficient because it was the only evidence presented that the employee was asked to provide the documentation. As the only evidence that the violation was knowing, the statement was insufficient. In contrast, in the case before us, even the claimant, McClain, admits to being aware of the policy and the consequences for violating the policy. This, combined with IUPUI’s evidence, supports the Board’s determination that the rule was uniformly enforced.

. The only evidence to the contrary was presented through McClain's own testimony that employees routinely clocked each other out and that the supervisor had observed one such incident, a claim which was denied by the supervisor. However, on review only the evidence favorable to the Board's determination will be considered. VanCleave v. Review Bd. of Ind. Emp. Sec. Div., 517 N.E.2d 1260, 1263 (Ind.Ct.App.1988).