                                                                    May 26 2015, 9:13 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR REVIEW BOARD
Norman L. Roelke                                          OF THE INDIANA DEPARTMENT OF
Fort Wayne, Indiana                                       WORKFORCE DEVELOPMENT
                                                          Gregory F. Zoeller
                                                          Attorney General of Indiana

                                                          Graham T. Youngs
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana
                                                          ATTORNEYS FOR A.W. HOLDINGS,
                                                          LLC
                                                          Adrienne C. Romary
                                                          Carson Boxberger LLP
                                                          Fort Wayne, Indiana
                                                          Ragna M. Urberg
                                                          A.W. Holdings, LLC
                                                          Fort Wayne, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

James E. Reed,                                            May 26, 2015

Appellant,                                                Court of Appeals Case No. 93A02-
                                                          1410-EX-745
        v.                                                Appeal from the Review Board of the
                                                          Indiana Department of Workforce
                                                          Development
Review Board of the Indiana
                                                          The Honorable Steven F. Bier,
Department of Workforce                                   Chairperson
Development, and A.W.
                                                          Case No. 14-R-01807
Holdings, LLC,
Appellees.



Court of Appeals of Indiana | Opinion 93A02-1410-EX-745 | May 26, 2015                     Page 1 of 21
      Brown, Judge.

[1]   James E. Reed (“Employee”) appeals a decision by the Review Board of the

      Indiana Department of Workforce Development (the “Board”) denying his

      claim for unemployment benefits. Employee raises two issues, which we revise

      and restate as whether the record supports the Board’s decision. We reverse.


                                       Facts and Procedural History

[2]   Employee was employed by A.W. Holdings, LLC, (“Employer”) as a direct

      support professional and provided support and assistance to individuals with

      developmental disabilities. Employer provided day habilitation services for

      disabled individuals or clients.


[3]   On May 7, 2014, Employee was driving three of Employer’s clients back to

      Employer’s location after visiting a park and the library when one of the clients

      in the vehicle (“Client D,” as he is referred to in the record), began to yell and

      then to beat his chest with his fists. Employee pulled the vehicle to the side of

      the road near a busy intersection, had the two clients who had not become

      upset exit the vehicle, and required Client D to remain inside the vehicle.

      Employee attempted to call two supervisors, was unable to reach them, and

      then called a co-worker who was able to contact Employee’s supervisor.

      Employee’s supervisor then called Employee, asked if the clients were out of

      the car safely, and stated that she would send help. Antonia Gatewood, a

      residential manager for Employer, was sent to assist Employee. When

      Gatewood arrived at the scene, she observed that Client D was inside the

      Court of Appeals of Indiana | Opinion 93A02-1410-EX-745 | May 26, 2015     Page 2 of 21
      vehicle and that Client D was yelling. Gatewood had Employee unlock the

      door, Client D exited the vehicle and was upset with Employee, and Gatewood

      walked Client D to her vehicle. Employee’s last day of work was May 7, 2014,

      and his employment was terminated effective May 12, 2014.


[4]   Employee filed a claim for unemployment benefits, and a deputy for the

      Department of Workforce Development issued a determination that Employee

      was not discharged for just cause. Employer appealed the deputy’s

      determination, and a telephonic hearing was held before an administrative law

      judge (the “ALJ”) on August 21, 2014, at which testimony was heard from

      Employee, Joy Dennison, a human resources recruiter for Employer, and Bree

      Cannon, an assistant director for a day care center for Employer. Employer

      submitted documentary evidence which included professional conduct rules, an

      incident report prepared by Gatewood on May 8, 2014, certificates given to

      Employee in September 2014 and December 2014 for completing certain

      student training, the job description for the position of a direct support

      professional, a printout of a webpage showing the temperature inside a car over

      time when the outside temperature is ninety degrees, and an employee

      disciplinary report signed by Cannon as Employee’s supervisor on May 12,

      2014. The document with the subject line “Professional Conduct,” stated under

      Paragraph A: “Employees of [Employer] will in no way exploit, neglect or

      inflict physical or psychological harm on a client.” Exhibits at 18. Employer

      submitted an acknowledgement of Employee that he received a copy of the

      professional conduct policy in July 2011. The written job description for the


      Court of Appeals of Indiana | Opinion 93A02-1410-EX-745 | May 26, 2015       Page 3 of 21
position of direct support professional included a paragraph of general

responsibilities, twenty-five numbered specific responsibilities, and two

additional requirements for professionals working with individuals who have a

behavior support plan (a “BSP”), namely, to “[c]omply with behavior support

policies and procedures, and implement approved BSP” and to “[p]rovide

positive behavior supports according to individual BSP’s [sic] and respond to

emergency situations as trained.” Id. at 27. The disciplinary report signed by

Cannon included a box for “Termination,” which had been marked, following

the word “Action.” Id. at 37. Following the phrase “Nature of Incident” on

the report, a box for “Violation of Company Rules” was marked. Id. In a space

for “Details of Incident/Performance Issue,” the disciplinary report stated:

        On 5/7/2014 it was reported that [Employee] had failed to provide
        appropriate support for a consumer he was serving in the community.
        Upon further investigation [Employee] disclosed that he had tried to
        keep his consumer safe by containing him in his vehicle. [Employee]
        neglected to follow this consumer’s [BSP] or to implement MANDT
        de-escalation techniques, as trained, in response to his client who was
        exhibiting maladaptive behaviors. This action violates [Employer’s]
        Professional Conduct Policy which states in letter A, “Employees of
        [Employer] will in no way exploit, neglect or inflict physical or
        psychological harm on a client.” This is also a violation of
        [Employer’s] Direct Support Professional Job Description that states
        that DSP’s must, “Comply with behavior support policies and
        procedures, and implement approved BSP” and “Provide positive
        behavior supports according to individual BSP’s [sic] and respond to
        emergency situations as trained.”
        In addition to this incident, [Employee] received one other disciplinary
        report on 11/20/2013 for failing to provide documentation as
        assigned.
        As a result of his neglectful actions, [Employee] is being terminated
        effective immediately.
Court of Appeals of Indiana | Opinion 93A02-1410-EX-745 | May 26, 2015            Page 4 of 21
      Id. Employee submitted exhibits which included a daily activity log,

      Employee’s written statement, and a drawing showing the location of his

      parked car relative to the surrounding streets and the clients at the time of the

      incident.


[5]   Cannon testified that Gatewood witnessed the event on May 7, 2014, that

      Gatewood was not available to testify, and that Gatewood’s written statement

      of May 8, 2014, had been submitted. In her written statement, Gatewood said

      that she received a call to help with Client D, who was “having a behavior,”

      and “the staff needed assistance.” Id. at 20. She stated that, after she arrived,

      she “hear[d] a horn being blown and saw someone outside the car” and “when

      [she] got out [she] went up to the car to see [Client D] inside the car with the

      windows up and his jacket on and yelling.” Id. She stated that Employee “had

      his car keys in the passenger door lock to keep [Client D] from getting out,” that

      she “told [Employee] to let him out and unlock the door,” that “[a]s

      [Employee] started to unlock the door, [t]he other client that was outside tried

      to get into [Gatewood’s] car on the street side,” and that she “ran out to get him

      and guided him back to the sidewalk.” Id. She further stated that, after helping

      the client, she “went back to [Employee] to notice he still did not unlock the

      door or let [Client D] out of the hot car” and that she told Employee “to unlock

      the car now.” Id. Gatewood stated that, as Employee did so, she told Client D

      that he was going home with her. She also stated that, “[a]s [Client D] was

      getting out of the car he was very upset at” Employee and “was yelling and

      cursing at him,” she “walked [Client D] over to [her] car,” Employee had the


      Court of Appeals of Indiana | Opinion 93A02-1410-EX-745 | May 26, 2015    Page 5 of 21
      other clients enter his vehicle, Client D “did not get into [Gatewood’s] car until

      [Employee] was gone,” and that once Employee was gone, she and Client D

      left for the group home. Id. at 21.


[6]   Cannon testified that she spoke to Employee on May 8, 2014, and that he had

      responded affirmatively when asked if he had locked a client in a car and if the

      car was hot. She testified that Employee indicated that he thought he was

      keeping the client safe. She testified that Employee said Client D “was upset so

      he had redirected the other client[s] out of the car and contained [Client D] in

      the car.” Transcript at 11. She further testified that Employee stated that Client

      D “was upset because he thought another client that was with them had taken

      his library bag.” Id. When asked if her policies in any way allow for physical

      restraint or confinement of clients, Cannon testified: “Physical restraint, yes.

      Confinement of clients, no.” Id. Cannon testified that she was not aware of

      other employees who engaged in conduct similar to Employee’s conduct and

      that, if she were aware of such conduct, that employee’s employment would

      also be terminated.


[7]   When asked what Employee “was supposed to do,” Cannon testified that “[h]e

      should’ve followed Mandt, which he should have used, he should have taken

      [Client D] out of the car and he should have used a Mandt hold.” Id. at 12.

      She testified a “Mandt hold, maybe you would refer to that as restraint” and

      that “[y]ou would never . . . seclude someone in a hot car.” Id. She indicated

      that, even if it had not been hot, it would not have been appropriate to lock

      Client D in a car because “we do not seclude people.” Id. at 13. When asked

      Court of Appeals of Indiana | Opinion 93A02-1410-EX-745 | May 26, 2015    Page 6 of 21
       what might have happened if he locked an angry client in a car, Cannon said

       “he could’ve died” and “[i]t was very hot that day.” Id.


[8]    Dennison testified that the certificates submitted by Employer show that

       Employee received “basic Mandt training” and “intermediate Mandt that is a

       little bit more” and “[i]t teaches more on the holds that [] Cannon was talking

       about.” Id. at 14.


[9]    Employee testified that on May 7, 2014, he was engaging with Client D. When

       asked if he locked Client D in a car, Employee indicated that “[t]he keys were

       in the car on the passenger side in the front door,” that he did not lock Client D

       in the car, and that the client “had been pushing the door open and I was letting

       him open it in order to get him fresh air.” Id. at 18-19. He testified that Client

       D “would be pushing the car door out towards me and he was able to, in order

       to prevent him from getting hurt, I, he opened the door so far, he got fresh air

       and that, and we did that for off and on for twenty minutes.” Id. at 19. When

       asked, “[s]o other than allowing him fresh air, was he confined to the car,”

       Employee responded affirmatively. Id. When asked the temperature,

       Employee said “roughly around eighty-four to eighty-six degrees that day”

       outside the car. Id. When asked “was it hotter than eighty-four degrees inside

       the car,” Employee replied “I would say much hotter due to his activities within

       the car.” Id.


[10]   Employee testified that he had “two other consumers on the outside of the car,”

       that “[o]ne consumer if not closely supervised would have been running up and


       Court of Appeals of Indiana | Opinion 93A02-1410-EX-745 | May 26, 2015    Page 7 of 21
down and possibly may have gotten hit by a car,” that Client D “was what we

would . . . call a runner,” and that “[w]hen he got out of the car he would’ve

been into the traffic and somebody could’ve died that day.” Id. Employee

testified that the behavior started at 2:24 p.m., that he pulled off the road at 2:25

p.m., that he notified his supervisor at 2:25 p.m., that he called a second

supervisor at 2:26 p.m., and that neither responded. Employee testified that the

behavior started with Client D “just yelling” and that, within two minutes, the

client “started to beat his chest, doing with both fists, stating that he would

fight,” that “in past experiences, when he gets to this stage, he will start to hit

people,” and that Employee pulled the car over to avoid “being in an accident

in case [he] got hit” and “got to [sic] individuals out of the car safely.” Id. at 20.

When asked if the other two clients in the car were flight risks, Employee said

that one of them had “a track record and history of it.” Id. When asked about

Client D’s height and weight, Employee stated Client D was “[a]bout five five,

five six” and weighed “[b]etween a hundred and seventy-five to maybe a

hundred and eighty-five.” Id. Employee testified that, at 2:35 p.m., he called a

co-worker, who contacted Employee’s supervisor. He testified that his

supervisor called him back at 2:38 p.m., his supervisor asked “did you get the

other two out safely,” he said “yes,” and that the supervisor said “I’ll send

help.” Id. He further testified that assistance arrived at 3:00 p.m., and that the

car was stopped three houses from “one of the heaviest traveled intersections in

Fort Wayne.” Id. at 21.




Court of Appeals of Indiana | Opinion 93A02-1410-EX-745 | May 26, 2015      Page 8 of 21
[11]   When asked if he considered calling the police, Employee said “no” and that he

       had “to go through a supervisor” to do so. Id. He stated that Client D had a

       history of fighting and running, and that, in 2012, there was a “violent episode

       at the workshop” and “while [h]e was trying to protect a staff member,” Client

       D “punched [him] in the face and then bit [him] in the back.” Id. at 22.

       Employee also testified that he gave Client D water while he was in the car.

       When asked if he knowingly failed to follow Client D’s BSP, Employee replied

       “[n]o, I did not fail to follow it.” Id. at 26. When asked if he knew that

       physically restraining Client D was an option, Employee replied “I am five foot

       four, sixty-two years old” and “I could not physically do it.” Id. Employee

       testified “[a] supervisor must give permission and a Mandt hold cannot be used

       longer than three minutes, which would’ve then endangered the other two

       clients.” Id.


[12]   Employee indicated that he was unable physically to restrain Client D and that,

       the last time he was involved in a physical restraint of the individual, “it took

       two people to physically restrain him with . . . supervisor permission . . . and it

       was all both of us could do is to hold him.” Id. When asked why he did not

       permit Client D out of the vehicle and keep the other two clients in the car with

       the windows down or air conditioner on, Employee testified “[f]irst hand

       knowledge of his running” and that he “would never [have] been able to keep

       up with them as I cannot run any longer.” Id. at 27. When asked “[d]oes the

       intermediate Mandt teach holds and blocking to keep a consumer from running




       Court of Appeals of Indiana | Opinion 93A02-1410-EX-745 | May 26, 2015     Page 9 of 21
       away,” Employee replied that “Mandt[] is taught in order to use only if the

       individual is endangering to hurt someone else or himself.” Id.


[13]   Cannon testified that Client D and one of the other clients were flight risks and

       that Client D has a history of physical aggression. She stated that Employee

       did not require permission to call the police and that she would have allowed

       him to call the police. She also testified that Employee did not need

       authorization from a supervisor to perform Mandt. When asked, if Client D

       “had gotten away” from Employee and ran, “could [Employee] have chased

       him down,” Cannon replied “I have no idea.” Id. at 31-32.


[14]   Employee then testified that he was not aware of any direct support person ever

       being allowed to call the police in the community. When asked whether

       Employer had given him any written documentation of directives that

       prohibited him from calling the police, Employee answered that “[t]here is no

       documentation on . . . using the police either way.” Id. at 33. Employee

       testified: “I chose to keep, to do the best I could under the circumstances

       because I did not want to live the rest of my life knowing that I caused

       someone’s death because they were in a behavior and got hit by a car.” Id. at

       34.


[15]   In a closing statement, Dennison said that Employee could have at any time

       called 911, that Employer has “several individuals that have behaviors,” and

       “that is why we use the Mandt system” and “have the behavior support plan.”

       Id. She said that Employee “chose to not use either one” and to lock a


       Court of Appeals of Indiana | Opinion 93A02-1410-EX-745 | May 26, 2015     Page 10 of 21
       consumer in a hot car, that she understood that Employee “thought it was safer

       to not let the client get hit, but you also don’t lock them in a car at ninety degree

       temp with the possibility of a heat stroke,” and that if Employee “would’ve just

       followed the plan, did what he was taught, or called 911, then this situation

       would’ve been different.” Id. at 34-35. In his closing statement, Employee

       stated that he “did the best [he] could under the circumstances of keeping

       people safe with no help until thirty-five minutes after this incident started” and

       that he “did not want . . . to have on [his] conscious [sic] that one or two people

       were seriously injured or might’ve been killed by an oncoming car.” Id. at 35.


[16]   The ALJ entered a decision on August 21, 2014, reversing the deputy’s

       determination and finding that Employer discharged Employee from

       employment for just cause in connection with work and that Employee is

       ineligible to receive unemployment benefits. In its decision, the ALJ found in

       part:

               [Employer] employed [Employee] as a direct care professional.
               [Employer’s] written rule prohibits client neglect. [Employee] received
               the rule on July 05, 2011.
               On May 07, 2014, [Employee] drove three clients in an automobile to
               complete errands. [Client D] became upset, complaining that another
               client took his library book bag. [Client D] was an escape risk. [Client
               D] had a history of aggressive behavior, and in fact in the past had
               punched and bit [Employee]. [Client D] began beating his own chest,
               an indication that [he] was about to become physically violent.
               Had [Client D] become physically violent, [Employee] would have
               been unable to restrain him. Likewise, had [Client D] attempted to
               flee, [Employee] would have been unable to restrain him. The
               incident took place at the intersection of two busy city streets. One of
               the remaining clients was also an escape risk. In order to prevent

       Court of Appeals of Indiana | Opinion 93A02-1410-EX-745 | May 26, 2015         Page 11 of 21
        [Client D] from attacking others, and to prevent the two clients who
        posed an escape risk from running into traffic of a busy intersection,
        [Employee] removed the other clients from the automobile, and
        confined [Client D] in the automobile.
        The temperature outside the automobile was 84 degrees Fahrenheit.
        The temperature inside of the automobile exceeded 90 degrees
        Fahrenheit.
        [Employee] did not call the police to assist with [Client D].
        [Employee] testified that [Employer’s] policy prohibited him from
        calling the police without the approval of a supervisor. [Employer]
        never provided [Employee] with a written policy that prohibited him
        from calling the police without the approval of a supervisor.
        [Employer’s] witness denied that [Employer’s] policy prohibited
        [Employee] from calling the police without the approval of a
        supervisor. [Employer’s] policy did not prohibit [Employee] from
        calling the police without the approval of a supervisor.
        The purpose of the rule is to prevent neglect of the [Employer’s]
        disabled clients.
        [Employer] would discharge all employees who violate the rule.
                                               *****
        [Employee] received the rule on July 05, 2011. [Employee’s]
        subsequent violation would be a knowing violation of the rule.
                                               *****
         [Employee] is ineligible to receive unemployment insurance benefits.

Exhibits at 42-44. Employee appealed from the decision of the ALJ, and the

Board issued a decision which adopted and incorporated by reference the

decision of the ALJ and affirmed the ALJ’s determination. Employee appeals

the decision of the Board.




Court of Appeals of Indiana | Opinion 93A02-1410-EX-745 | May 26, 2015           Page 12 of 21
                                                           Discussion

[17]   The issue is whether the record supports the Board’s decision that Employee

       was discharged for just cause. The standard of review on appeal of a decision

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

       N.E.2d 1314, 1318 (Ind. 1998), reh’g denied). Ultimate facts are facts that

       involve an inference or deduction based on the findings of basic fact. Id. (citing

       McClain, 693 N.E.2d at 1317). Where such facts are within the special

       competence of the Board, this court will give greater deference to the Board’s

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

       (citing McClain, 693 N.E.2d at 1318).


[18]   In Indiana, an employee is ineligible for unemployment benefits if he or she is

       discharged for just cause. Stanrail Corp. v. Review Bd. of Dep’t of Workforce Dev.,

       735 N.E.2d 1197, 1202 (Ind. Ct. App. 2000), trans. denied; Ind. Code § 22-4-15-

       1.1 Ind. Code § 22-4-15-1(d) provides that “[d]ischarge for just cause” is defined




       1
           At the time of Employee’s discharge, Ind. Code § 22-4-15-1(a) provided in part:
                  [A]n individual who has voluntarily left the individual’s most recent employment without
                  good cause in connection with the work or who was discharged from the individual’s most
                  recent employment for just cause is ineligible for waiting period or benefit rights for the week
                  in which the disqualifying separation occurred and until the individual has earned

       Court of Appeals of Indiana | Opinion 93A02-1410-EX-745 | May 26, 2015                                  Page 13 of 21
       to include a “knowing violation of a reasonable and uniformly enforced rule of

       an employer . . . .”


[19]   Employee contends that he did not neglect Client D and was not discharged for

       just cause. He points to evidence that he attempted to contact his supervisor

       immediately, that when his supervisor called him back the question to him was

       whether he had gotten the other two clients out safely, he was told the

       supervisor was sending help, no directions were given to him to remove Client

       D from the car or to call the police, the supervisor did not call the police, and

       that another staff person arrived twenty-two minutes later. He argues the car

       door was not locked, Client D was constantly pushing the door open, two doors

       could always be opened from inside the car whether a key was in the door or

       not, Client D was provided fresh air and water, Employee continued to

       supervise Client D for his own safety until the help arrived that his immediate

       supervisor said was coming, and this constituted restraint until assistance

       arrived. Employee further asserts that the ALJ interjected calling the police

       into the record and that this was not a reason for which his employment was

       terminated. He also argues that Employee’s supervisor knew that two clients

       were removed from the car and that Client D was still restrained in the car, that

       the supervisor did not direct Employee to remove Client D from the car, to




               remuneration in employment equal to or exceeding the weekly benefit amount of the
               individual’s claim in each of eight (8) weeks.
       Ind. Code § 22-4-15-1 (subsequently amended by Pub. L. No. 121-2014, § 12 (eff. Jul. 1, 2014)) (emphasis
       added).

       Court of Appeals of Indiana | Opinion 93A02-1410-EX-745 | May 26, 2015                        Page 14 of 21
       attempt Mandt techniques on Client D, or to call the police, and that thus the

       supervisor was negligent of Employer’s rule and the rule was not uniformly

       enforced.


[20]   The Board and Employer maintain that, besides calling the police, Employee

       could have placed Client D in a Mandt hold. The Board also contends that the

       rule prohibiting neglect was uniformly enforced and that a classification that

       places direct care professionals and their supervisors in the same class would

       unreasonably collapse the meaningful distinction between direct care

       professionals and their supervisors.


[21]   Employer asserted that it fired Employee for a knowing violation of a

       reasonable and uniformly enforced work rule; therefore, we limit our analysis to

       that issue and do not consider other grounds for Employee’s discharge. See

       Coleman v. Review Bd. of Ind. Dep’t of Workforce Dev., 905 N.E.2d 1015, 1019 (Ind.

       Ct. App. 2009). The employer bears the initial burden of establishing that an

       employee was terminated for just cause.2 Id. at 1019-1020. To establish a prima

       facie case for just cause discharge for violation of an employer rule, the

       employer has to show that the claimant: (1) knowingly violated; (2) a

       reasonable; and (3) uniformly enforced rule. Id. at 1020 (citing Stanrail, 735

       N.E.2d at 1203). To have knowingly violated an employer’s rules, the




       2
         Ind. Code § 22-4-1-2(c), which became effective on July 1, 2014, provides that “[a]n applicant’s entitlement
       to unemployment benefits is determined based on the information that is available without regard to a burden
       of proof.” This provision was not in effect at the time of Employer’s termination of Employee’s employment.
       Pub. L. No. 121-2014, § 5 (eff. Jul. 1, 2014) (enacting Ind. Code § 22-4-1-2).

       Court of Appeals of Indiana | Opinion 93A02-1410-EX-745 | May 26, 2015                          Page 15 of 21
       employee must: (1) know of the rule; and (2) know his conduct violated the

       rule. Stanrail, 735 N.E.2d at 1203. If an employer meets this burden, the

       claimant must present evidence to rebut the employer’s prima facie showing.

       Coleman, 905 N.E.2d at 1020; Stanrail, 735 N.E.2d at 1203. The reason for

       requiring uniform enforcement of a known and reasonable rule is to give notice

       to employees about what punishment they can reasonably anticipate if they

       violate the rule and to protect employees against arbitrary enforcement.

       Coleman, 905 N.E.2d at 1020.


[22]   A uniformly enforced rule is one that is carried out in such a way that all

       persons under the same conditions and in the same circumstances are treated

       alike. Gen. Motors Corp. v. Review Bd. of Ind. Dep’t of Workforce Dev., 671 N.E.2d

       493, 498 (Ind. Ct. App. 1996). In order to evaluate uniformity one must first

       define the class of persons against whom uniformity is measured. Stanrail, 735

       N.E.2d at 1203. Also, an employer’s asserted work rule must be reduced to

       writing and introduced into evidence to enable this court to fairly and

       reasonably review the determination that an employee was discharged for “just

       cause” for the knowing violation of a rule. Id. at 1205 (citation omitted).


[23]   In its disciplinary report, Employer indicated that its reason for terminating the

       employment of Employee was violation of company rules, and Employer stated

       that Employee violated Paragraph A of its professional conduct policy as well

       as statements in the written job description for direct support professionals. As

       to Employer’s argument that Employee’s actions violated Client D’s BSP, we

       observe that Employer does not point to the record to show that it introduced

       Court of Appeals of Indiana | Opinion 93A02-1410-EX-745 | May 26, 2015    Page 16 of 21
       an approved BSP for Client D or that Employee stipulated to the contents of

       Client D’s approved BSP at the hearing.3 Thus, we cannot determine which

       provisions of Client D’s approved BSP Employer believed Employee failed to

       follow, were knowingly violated by Employee, or may have provided a basis for

       Employer’s decision to terminate Employee’s employment.


[24]   We turn to the professional conduct rule of Employer providing that employees

       “will in no way exploit, neglect or inflict physical or psychological harm on a

       client.” Exhibits at 18. To have knowingly violated an employer’s rules, the

       employee must know his conduct violated the rule. Stanrail, 735 N.E.2d at

       1203.


[25]   Employer and the Board emphasize that Employee did not call the police and

       did not perform a Mandt hold. Employer did not present evidence that

       Employee was required to call the police, and Employee testified that Employer

       had “no documentation on . . . using the police either way.” Transcript at 33.

       While Employee may have had the option of calling the police after pulling to

       the side of the road, and although situations can arise which would require a

       reasonable employee to call the police, the focus with respect to Employee’s

       application for unemployment benefits is on whether the actions or inactions

       taken by Employee under the circumstances arising on May 7, 2014,

       constituted a knowing violation of Employer’s rule against neglect of a client.



       3
        At the hearing, when asked if he knowingly failed to follow Client D’s BSP, Employee testified: “No, I did
       not fail to follow it.” Transcript at 26.

       Court of Appeals of Indiana | Opinion 93A02-1410-EX-745 | May 26, 2015                         Page 17 of 21
       Moreover, Employer’s disciplinary report did not state that Employee was

       discharged because he failed to call the police; rather it states that Employee

       neglected to follow Client D’s BSP or “to implement MANDT de-escalation

       techniques . . . .” Exhibits at 37. Further, although Employer argues that

       Employee “should have removed the client from the vehicle and utilized a

       physical restraint,” Appellee Employer’s Brief at 8, it did not submit any

       document related to a Mandt hold or restraint, the circumstances under which

       such a restraint would be appropriate, or the length of time such a restraint was

       to be used, and specifically as to Client D, would have been safe or appropriate.

       Employee testified a Mandt hold cannot be used longer than three minutes, and

       Employer does not point to the record to show it responded to this testimony or

       presented specific evidence that it would have been safe for Client D and the

       other two clients for Employee to place Client D in a Mandt hold until

       Gatewood arrived at the scene. In addition, we note, similar to the option of

       calling the police, that while Employee may have had the option of placing

       Client D in a Mandt hold for some period, the focus with respect to Employee’s

       application for unemployment benefits is on whether Employee’s actions or

       inactions under these particular circumstances establish that he knowingly

       violated Employer’s rule against neglect of clients. See Stanrail, 735 N.E.2d at

       1203. We thus turn to whether the evidence establishes that Employee

       knowingly violated Employer’s rule as to neglect of a client.


[26]   The record reveals that Employee was driving with three clients in his vehicle

       when Client D began to yell, beat his chest with his fists, and state that he


       Court of Appeals of Indiana | Opinion 93A02-1410-EX-745 | May 26, 2015   Page 18 of 21
       would fight. Employee knew based on his experiences with Client D that

       “when he gets to this stage, he will start to hit people.” Transcript at 20. Client

       D was a flight risk and had a history of physical aggression, and another of the

       clients with Employee was also a flight risk. Client D had “punched

       [Employee] in the face and then bit [him] in the back” on a previous occasion in

       2012. Id. at 22. Client D had started to yell at approximately 2:24 p.m., and

       Employee pulled the vehicle to the side of the road at 2:25 p.m. Employee

       pulled the vehicle over near a busy intersection, had two of the clients exit the

       vehicle, and required Client D to remain inside the vehicle. Employee called

       supervisors at 2:25 p.m. and 2:26 p.m. and was unable to reach them. He then

       called a co-worker who was able to contact a supervisor, and the supervisor

       called him at 2:38 p.m. and asked “did you get the other two out safely,”

       Employee responded affirmatively, and the supervisor said “I’ll send help.” Id.

       at 20. There is no indication that Employee’s supervisor directed Employee to

       remove Client D from the car, to hold Client D in a Mandt hold, to call police,

       or to take any other action, nor did the supervisor contact the police.


[27]   Employee gave water to Client D and allowed him to open and close the car

       door so that he had fresh air. Employee was the sole employee present with

       Client D and the two other clients until Gatewood arrived at 3:00 p.m. If

       Employee had Client D exit the car and attempted to hold him in a Mandt

       hold, it is possible that Employee would have been compelled to try to continue

       to physically restrain him until 3:00 p.m. when Gatewood arrived, something

       Employee was physically unable to do. Employee was required to supervise


       Court of Appeals of Indiana | Opinion 93A02-1410-EX-745 | May 26, 2015    Page 19 of 21
       Client D as well as the other two clients, one of whom was also a flight risk.

       Employee testified that Client D was “[a]bout five, five six” and weighed

       “[b]etween a hundred and seventy-five to maybe a hundred and eighty-five.”

       Id. at 20. When asked if he knew that physically restraining Client D was an

       option, Employee replied that he was “five foot four, sixty-two years old” and

       “could not physically do it.” Id. at 26. Employee also testified that a Mandt

       hold could not be used longer than three minutes, that using the Mandt hold on

       Client D would have endangered the other two clients, that the last time he was

       involved in a physical restraint of Client D “it took two people to physically

       restrain him,” “it was all both of us could do is to hold him,” and that if Client

       D were able to run away he “would never been able to keep up” as Employee

       could not “run any longer.” Id. at 26-27.


[28]   We conclude that the record lacks substantial evidence to support a finding that

       Employee knew that his conduct violated Employer’s professional conduct rule

       that employees “in no way exploit, neglect or inflict physical or psychological

       harm on a client.” Exhibits at 18. The record does not establish Employee

       knew or could be charged with the knowledge or reasonably anticipate that his

       action to restrain Client D in the vehicle under the circumstances could result in

       the termination of his employment. We reverse the decision of the Board that

       Employee was terminated for just cause and denying Employee unemployment

       benefits and remand for further proceedings consistent with this opinion.




       Court of Appeals of Indiana | Opinion 93A02-1410-EX-745 | May 26, 2015   Page 20 of 21
                                                    Conclusion

[29]   For the foregoing reasons, we reverse the Board’s decision and remand for

       further proceedings consistent with this opinion.


[30]   Reversed and remanded.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 93A02-1410-EX-745 | May 26, 2015   Page 21 of 21
