FOR PUBLICATION


ATTORNEY FOR APPELLANT:                ATTORNEYS FOR APPELLEE
                                       REVIEW BOARD:
JUSTIN E. ENDRES
New Albany, Indiana                    GREGORY F. ZOELLER
                                       Attorney General of Indiana

                                       STEPHANIE ROTHENBERG
                                       Deputy Attorney General
                                       Indianapolis, Indiana
                                                                     FILED
                                                                 Aug 31 2012, 8:41 am

                             IN THE                                      CLERK
                   COURT OF APPEALS OF INDIANA                         of the supreme court,
                                                                       court of appeals and
                                                                              tax court




SEABROOK DIECKMANN & NAVILLE,          )
INC.,                                  )
                                       )
      Appellant,                       )
                                       )
             vs.                       )       No. 93A02-1202-EX-100
                                       )
REVIEW BOARD OF THE INDIANA            )
DEPARTMENT OF WORKFORCE                )
DEVELOPMENT and MONICA HILBERT,        )
                                       )
      Appellees.                       )


                  APPEAL FROM THE REVIEW BOARD OF THE
             INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT
                            Cause No. 11-R-5955



                             August 31, 2012


                       OPINION - FOR PUBLICATION


BROWN, Judge
       Seabrook Dieckmann & Naville, Inc. (“Employer”) appeals a decision by the

Review Board of the Indiana Department of Workforce Development (the “Board”) in

favor of Monica Hilbert (“Employee”) with respect to Employee’s claim for

unemployment benefits. Employer raises several issues which we restate as whether the

Board erred in concluding that Employee’s employment was not terminated for just

cause. We reverse and remand.

       The relevant facts follow. Employee worked as a full-time clerical worker for

Employer, a funeral home business, from September 2006 until December 2, 2010, when

Employee was discharged for poor work performance and unprofessional conduct.

Employee filed a claim for unemployment benefits, and on December 27, 2010, a deputy

with the Board determined that Employee was discharged for just cause due to a work-

related breach of duty.

       Employee appealed, and an administrative law judge (“ALJ”) held a hearing and

issued a decision on February 14, 2011, reversing the deputy’s determination and finding

that Employer failed to show that Employee was discharged for just cause. Following an

appeal by Employer the Board entered a decision on March 29, 2011, which summarily

affirmed the ALJ’s decision. Employer appealed to this court, this court issued an order

of remand, and pursuant to this court’s order the Board vacated the decisions of the ALJ

and Board and remanded the case to the appellate division for a de novo hearing on the

merits of Employee’s claim for benefits.

       On December 1, 2011, a second hearing was held before an ALJ at which

Employee, her husband, and Employer’s representatives were present in person. In a


                                           2
decision issued on December 5, 2011, the ALJ reversed the deputy’s initial determination

dated December 27, 2010. The ALJ’s decision provided in part:

      FINDINGS OF FACT: The Employer is a funeral home. [Employee]
      worked for the Employer from September of 2006 until December 2nd,
      2010, as a full-time clerical worker. [Employee] was discharged from
      employment. The cited reason is poor job performance in the form of a
      plethora of proofreading mistakes on printed materials for distribution at
      funerals, rudeness, insubordination, and personality conflicts with co-
      workers.

      For roughly four years and two months [Employee] occasionally made
      some clerical errors while performing work for the Employer. Some of
      these errors, mistaken facts or misspellings on printed materials, caused the
      waste of a large amount of the printed materials and extra money to be
      spent to replace the materials. Employees in [Employee’s] position are
      expected to make some such mistakes.

      The Employer began to document mistakes that were made in the office on
      or about November 8th, 2009.             Employer’s Exhibit Three.           The
      documentation does not evidence that [Employee] was responsible for all of
      the listed mistakes. It is possible that at least some of the listed errors were
      committed by other employees.

      For roughly four years and two months, two of [Employee’s] co-workers
      found her to be rude, uncooperative, unprofessional, and did not enjoy her
      presence in the office.     [Employee’s] attitude, demeanor, and job
      performance remained the same during the entire period of employment.

      The Employer documented one meeting with [Employee] concerning her
      job status. The date of this meeting is listed as January 26th, 2010.
      Employer’s Exhibit Three. The content of the meeting is listed as follows:
      “Employee . . . is told that it is her job to print all of the necessary
      paperwork associated with respective death call and that if she wasn’t going
      to get that done, she would be terminated . . . .” Id. No meetings about the
      errors, demeanor, or insubordination cited as the reason for discharge were
      documented. [Employee] asserted no such meetings occurred while the
      Employer asserted such meetings did occur. The Administrative Law
      Judge determines the Employer’s testimony is not credible on this subject.

      CONCLUSIONS OF LAW: . . . .

                                         *****
                                             3
       The Employer proved [Employee] was possibly difficult to work with and a
       prickly character, but the Employer did not prove [Employee] committed
       all of the errors it alleged [Employee] committed. Further, the Employer
       did not prove [Employee] was aware that her job was in jeopardy for
       proofreading errors, insubordination, or unprofessional demeanor, which
       were cited as the main reasons for discharge. The Employer acquiesced to
       the same performance from [Employee] for over four years.                  If
       [Employee’s] performance and attitude was really as poor as the Employer
       alleged, and [Employee’s] mistakes caused such a large financial liability, a
       reasonable Employer would have discharged [Employee] much sooner.
       Therefore, the Administrative Law Judge concludes that [Employee] was
       not aware her job was in jeopardy for the cited reasons of discharge, did not
       commit all of the alleged breaches of duty cited as the cumulative reason
       for discharge, and was not discharged for just cause pursuant to Ind. Code §
       22-4-15-1.

Appellant’s Appendix at 3-4; Exhibits at 67-68. Employer appealed, and the Board

summarily affirmed the decision of the ALJ without a hearing. Employer now appeals

the decision of the Board.

       The issue is whether the Board erred in concluding that Employee’s employment

with Employer was not terminated for just cause. Employer maintains that the decisions

of the ALJ and Board are contrary to law, use an erroneous legal standard, are against the

undisputed and overwhelming evidence, and are not supported by substantial evidence.

Employer specifically argues that the undisputed evidence compels a finding of dismissal

for just cause due to Employee’s unprofessional behavior, name calling, use of racial

slurs, refusal to obey instructions, a pattern of errors, and leaving work early, and that

Employer did not acquiesce in Employee’s actions. The Board asserts that the ALJ

presided over an in-person hearing and was in a position to make credibility

determinations, that this court may not reweigh the evidence or reassess the credibility of

witnesses, that if Employee were making financially harmful mistakes as alleged and had
                                            4
been creating such an unpleasant working environment Employer would not have

continued to employ Employee for four years, that the only documented warning issued

to Employee was on January 26, 2010, regarding Employee’s failure to print out all

necessary documents for an upcoming funeral, and that Employer failed to place

Employee on notice that she could be discharged for making typographical errors, for her

attitude, or for her rudeness. In its reply brief, Employer argues that the facts found by

the ALJ show that Employee breached duties owed by the Employee to Employer, that

the Board did not state that there was any evidence contradicting that Employee used

racial slurs, was uncooperative, or rude, that Employer is not asking this court to reweigh

the evidence, and that the undisputed evidence in the record demonstrates that Employer

met its burden of showing 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, and internal quotation marks

omitted). “Where such facts are within the ‘special competence of the Board,’ the 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).


                                            5
       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) delineates nine non-exclusive scenarios that can amount to

“[d]ischarge for just cause,” which include “any breach of duty in connection with work

which is reasonably owed an employer by an employee.” This basis for a just cause

discharge does not explicitly condition a claimant’s ineligibility on a requirement that the

breach of duty must have been knowing, willful, or intentional. Recker, 958 N.E.2d at

1140. 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.” Id. (quoting Hehr v. Review Bd. of Ind. Emp’t Sec. Div., 534 N.E.2d 1122,

1126 (Ind. Ct. App. 1989)).

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

Id. at 1140-1141 (quoting Hehr, 534 N.E.2d at 1126). “The duties reasonably owed to

the employer by the employee may vary considerably depending on the circumstances.”
       1
           Ind. Code § 22-4-15-1(a) provides 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 remuneration in employment equal to or exceeding the weekly benefit amount of
       the individual’s claim in each of eight (8) weeks.

(Emphasis added).
                                                        6
P.K.E. v. Review Bd. of Ind. Dep’t of Workforce Dev., 942 N.E.2d 125, 132 (Ind. Ct.

App. 2011), trans. denied. The employer bears the burden of establishing a prima facie

showing of just cause for termination, and if that burden is met, the burden shifts to the

employee to introduce competent evidence to rebut the employer’s case. Spieker v.

Review Bd. of Ind. Dep’t of Workforce Dev., 925 N.E.2d 376, 378 (Ind. Ct. App. 2010).

      In this case, evidence and testimony presented at the December 1, 2011 hearing

reveals that Employee was employed by Employer in a clerical position and was

responsible for preparing death certificates, register books, memorial folders, and other

items. Employee delivered poor work performance and would not cooperate with other

employees. Employee’s supervisors repeatedly discussed with Employee the mistakes

she had made, that her accuracy must improve, that every document must be proofread

before it is printed, and that the mistakes “would happen over, and over, and over again.”

Transcript at 15. Employee was hired for the technical skills she presented and because

she was efficient on the computer and was ultimately fired for the lack of those technical

skills, her inaccuracy, and the fact that she was unable to get along with the other

employees. The errors by Employee involved misspelling, incorrectly identifying, or

failing to include family members’ names on a registry book, a laminated bookmark, or a

memorial folder.

      Employer presented testimony that Employee’s errors were continual and did not

improve, and in about November 2009 Employer began to keep a record of the errors.

Employer presented testimony and documentation related to seventeen examples of

Employee’s performance-related issues. The documentation of the errors submitted by


                                            7
Employer included, in part, source documents or forms provided by customers or others

which Employee would use to prepare Employer’s documents and funeral provisions and

the documents created or prepared by Employee which contained the errors. The errors

related to a number of misspellings, typographical errors, misidentification of family

members, and other mistakes. Employer counseled Employee about some of the errors.

       On at least two occasions, Employee failed to transfer phones to an answering

service when she left the office and later lied to Employer and said that she had

transferred the phones. On one occasion, on January 26, 2010, Employer informed

Employee that her job was to print all of the necessary paperwork associated with a death

call and that, if she was not going to perform the work, that her employment would be

terminated. Employee left work early, was subsequently instructed several times not to

leave the funeral home early or transfer the phones to the answering service prior to

closing, and nevertheless left early again.

       One employee for Employer stated that Employee had a very poor attitude towards

co-workers, vendors and sometimes clients, that Employee would become very defensive

regarding mistakes, that two companies had stated they preferred to talk to someone

besides Employee because she was rude anytime she spoke with them, that Employee

would not help clean the building or empty her trash can as all employees were expected

to do, that Employer wasted money on documents and paper products due to Employee’s

continual mistakes, and that Employee would treat her superiors like her enemies and

would call them derogatory names.




                                              8
      Another employee indicated that Employee stated that everyone working with

Employer were liars, that Employee would have a confrontation with a supervisor/owner

and later state to the other employee “I ain’t nobody’s n----r, and he can do things

himself,” that the supervisor was “such an idiot- I refuse to kiss his ass like you and

[other employees],” and “I can’t understand why they don’t fire me so I can just go home

and collect unemployment.” Exhibits at 58.

      An employee who shared an office with Employee was told by Employee that

“there would be no more eating at [the employee’s] desk, no more chewing gum, and no

more wearing perfume.” Id. at 62. The employee stated that she had worked with

nursing homes and rehab centers as clients for a long time and that soon after Employee

started answering the phone those clients reported that Employee was “so rude.” Id.

Employee was “always very confrontational” and made “many, many, many[] mistakes

in printed material” which were “always someone else’s fault.” Id. On one occasion, a

supervisor asked the employee who shared an office with Employee to tell Employee to

put paper in his office fax machine, that when Employee received the message she said

“you are kidding me I am not going to do that,” and that Employee obtained a package of

paper from the supply room and placed the paper on the supervisor’s desk but did not

load the fax machine. Id. at 63.

      Based upon the evidence and testimony above and in the record before the ALJ

and Board, we conclude that Employer showed that Employee breached a duty in

connection with work which was reasonably owed Employer and that Employee’s

conduct was of such a nature that a reasonable employee of Employer would understand


                                             9
that the conduct was a violation of a duty owed Employer. Accordingly, Employee was

discharged for just cause. See VanCleave v. Review Bd. of Ind. Emp’ Sec. Div., 517

N.E.2d 1260, 1264 (Ind. Ct. App. 1988) (noting that the claimant persisted in a pattern of

substandard work performance even though he knew what his duties were, had received

training and assistance, and had been disciplined for substandard work performance and

affirming the Board’s decision denying the employee benefits). Accordingly, we reverse

the decision of the Board that Employee was not discharged for just cause and remand for

further proceedings consistent with this opinion.

       Reversed and remanded.

FRIEDLANDER, J., and PYLE, J., concur.




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