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.




Court of Appeals of Indiana | Memorandum Decision 93A02-1611-EX-2666| November 9, 2017          Page 1 of 9
                                            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

      Court of Appeals of Indiana | Memorandum Decision 93A02-1611-EX-2666| November 9, 2017   Page 2 of 9
              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

      Court of Appeals of Indiana | Memorandum Decision 93A02-1611-EX-2666| November 9, 2017   Page 3 of 9
        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

Court of Appeals of Indiana | Memorandum Decision 93A02-1611-EX-2666| November 9, 2017   Page 4 of 9
              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.

      Court of Appeals of Indiana | Memorandum Decision 93A02-1611-EX-2666| November 9, 2017   Page 5 of 9
      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.

      Court of Appeals of Indiana | Memorandum Decision 93A02-1611-EX-2666| November 9, 2017             Page 6 of 9
      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


      Court of Appeals of Indiana | Memorandum Decision 93A02-1611-EX-2666| November 9, 2017   Page 7 of 9
               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).


       Court of Appeals of Indiana | Memorandum Decision 93A02-1611-EX-2666| November 9, 2017   Page 8 of 9
                                                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.




       Court of Appeals of Indiana | Memorandum Decision 93A02-1611-EX-2666| November 9, 2017   Page 9 of 9
