Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose                                             Aug 26 2014, 9:47 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.
ATTORNEYS FOR APPELLANT:                              ATTORNEYS FOR APPELLEES:

THOMAS M. FROHMAN                                     GREGORY F. ZOELLER
JAMIE L. ANDREE                                       Attorney General of Indiana
Indiana Legal Services, Inc.
Bloomington, Indiana                                  KRISTIN GARN
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DESTINY SKEEN,                                        )
                                                      )
       Appellant,                                     )
                                                      )
               vs.                                    )       No. 93A02-1401-EX-57
                                                      )
REVIEW BOARD OF THE INDIANA                           )
DEPARTMENT OF WORKFORCE                               )
DEVELOPMENT and                                       )
HUB RESTAURANT LLP,                                   )
                                                      )
       Appellees.                                     )


                    APPEAL FROM THE REVIEW BOARD OF THE
               INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT
                               Cause No. 14-R-44



                                            August 26, 2014


                 MEMORANDUM DECISION - NOT FOR PUBLICATION


ROBB, Judge
                                Case Summary and Issue

       Destiny Skeen was discharged from her employment as a server and assistant

manager with Hub Restaurant LLP (“Hub”). An administrative law judge (“ALJ”) of the

Department of Workforce Development determined that she was discharged for just

cause, and the Review Board adopted and affirmed that decision. Skeen raises two issues

on appeal from the Review Board’s decision, of which we find the following dispositive:

whether the Review Board’s decision is supported by substantial evidence. Concluding

the Review Board’s decision is not supported by substantial evidence, we reverse.

                              Facts and Procedural History

       Howard Hinman and his wife are the owners of the Hub. Skeen was hired in June

of 2012 as a full-time server/assistant manager of the restaurant. On March 12, 2013,

Skeen signed a document titled “Hub Restaurant Server’s Policy.” Exhibit D, Exhibits

Volume at 21-22. The document begins, “Because of the important [sic] of a Server’s

job, it is important that you carefully READ AND UNDERSTAND this policy . . . .” Id.

at 21. The policy includes the following:

       You are not to operate the cash register in any fashion including opening
       the cash drawer unless you have been designated as the cashier during your
       shift. Violation of this policy will result in disciplinary action including
       possible immediate termination. If it is determined that you have
       inappropriately taken money from the register you WILL be both
       prosecuted and terminated immediately.

Id. Several of the policies include a reference to the manager in charge or “MIC.” See

id. For instance, the document states, “If another server takes a table out of turn you are

to report such immediately to the MIC,” and “If you have any issue with another


                                            2
employee or management, you will bring it directly to the attention of the MIC.” Id. It

seems clear, then, that the “you” referred to in the policy does not include a manager in

charge. By her signature, Skeen affirmed that she had read and understood the policies,

accepted them, and understood that “any violation of these policies may result in

disciplinary action up to and including immediate termination.” Id. at 22.

       Both Skeen and Hinman agree that on June 22, 2013, Skeen opened the register at

the Hub and removed cash. Skeen claims she did so to pay herself and another employee

for working an earlier off-site catering event and also to exchange with Hinman for

smaller bills in order to settle customer checks. Hinman claims he knew nothing of this

and learned what Skeen had done when he reviewed videotape upon arriving at the

restaurant later that day. Skeen was discharged as of that date.

       Skeen filed a claim for unemployment benefits with the Indiana Department of

Workforce Development. A claims deputy found she was discharged for just cause and

ineligible for benefits. Skeen filed an appeal of this eligibility determination and a

hearing was held before an ALJ at which Hinman and Skeen appeared telephonically. In

addition to testifying about the incident with the cash register, Hinman testified that

Skeen’s time card was often incorrect and submitted as an exhibit her time card from the

week beginning Monday, May 27, 2013. He also testified that Skeen had given food to

friends and family without charging them and had given away dishes belonging to the

restaurant without permission. Finally, Hinman testified as follows:

       Q. Is the, who is the manager in charge for a given shift? How is that
       designated?


                                             3
      A. So she could be one of the managers in charge as an assistant manager,
      Your Honor . . . .
      Q. So was she the manager in charge for the week of May, it looks like the
      twenty-fifth through the twenty-ninth?
      A. Well the manager in charge would be her, her dad, who was the general
      manager when he was on site, and if he was not on site and, if she was the
      only person on site, she would become the manager in charge.
      Q. So do you know whether she was the manager in charge for that week?
      A. She was not for that week. Her father worked that week as well. So
      there were times when she was there by herself, preferably in, or
      purportedly in the late evenings, but during the first parts of her shift, her
      father was there as the manager in charge, but she picked that duty up
      whenever he left the restaurant basically.
      Q. Do the policies that you’ve provided apply to all of your employees?
      A. They do.
      Q. Do you discharge all employees for violating your polices in the same
      way that Ms. Skeen did?
      A Yes.

Transcript of Evidence and Proceedings at 18-19. When cross-examining Skeen, Hinman

asked what the policy for taking money out of the register is, and she replied, “That a

manager does it.” Id. at 25. The ALJ issued a written decision affirming the decision of

the claims deputy. Relevant to this appeal, the ALJ found:

      [Hub] did not give [Skeen] permission to remove the cash . . . . [Skeen]
      was not the manager in charge or the designated cashier on June 22, 2013.

      [Hub] has a work rule stating that servers are not to “operate the cash
      register in any fashion including opening the cash drawer” unless
      designated as the cashier for the shift. “If it is determined that you have
      inappropriately taken money from the register . . .” [Hub] will discharge the
      employee and seek criminal action. . . . [Skeen] received a copy of the
      work rules on March 12, 2013. The work rules apply to all employees of
      [Hub]. [Hub] discharges all employees who violate its work rules.

Appellant’s Appendix at 3-4. Accordingly, the ALJ concluded:

      In matters involving discharge, the employer bears the burden of proving of
      just cause for termination. Just cause for discharge includes a “knowing


                                            4
        violation of a reasonable and uniformly enforced rule of an employer . . . .”
        Ind. Code 22-4-15-1(d)(2).

        ***

        As to [Skeen] removing cash from the register on June 22, 2013, [Skeen]
        had already received a copy of [Hub’s] work rules over three months prior.
        [Hub’s] policy regarding operation of the cash register is lawful. The
        policy is related to [Hub’s] business operations in that it protects its
        financial interests. The policy applies to all employees of [Hub]. The
        policy does not create a harsh or unconscionable requirement for
        employees. Therefore, [Hub’s] policy is reasonable. [Hub] discharges all
        employees who inappropriately remove cash from the cash register.
        Therefore, the policy is uniformly enforced.

        The [ALJ] concludes that [Skeen] knowingly violated a reasonable and
        uniformly enforced rule. [Hub] discharged [Skeen] for just cause as
        defined by Ind. Code 22-4-15-1.

Id. at 4.1

        Skeen appealed the ALJ’s decision to the Review Board, which did not hold a

hearing or accept additional evidence. “After examining the record, the Review Board

adopts and incorporates by reference the findings of fact and conclusion of law of the

[ALJ] and affirms the [ALJ’s] decision . . . .” Id. at 2. Skeen now appeals the Review

Board’s denial of her claim for unemployment benefits.

                                         Discussion and Decision

                                           I. Standard of Review

        The Indiana Unemployment Compensation Act (“Act”) provides that any decision

of the Review Board shall be conclusive and binding as to all questions of fact. Ind.

Code § 22-4-17-12(a). “The standard of review on appeal of a decision of the [Review]

        1
            As for the allegation that Skeen provided free meals to friends and family, the ALJ found there was not
sufficient evidence to establish that Skeen knowingly violated an employer policy. Id. The ALJ made no findings
about the remaining allegations.
                                                        5
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). In

conducting the “substantial evidence” analysis, we neither reweigh evidence nor judge

witness credibility; rather, we consider only the evidence most favorable to the Review

Board’s findings. McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d

1314, 1317 (Ind. 1998). We will reverse only if there is no substantial evidence to

support the Review Board’s findings.       Coleman v. Review Bd. of Ind. Dep’t of

Workforce Dev., 905 N.E.2d 1015, 1019 (Ind. Ct. App. 2009).

      The Act provides unemployment benefits to individuals who are “unemployed

through no fault of their own.” Ind. Code § 22-4-1-1.       We give the Act a liberal

construction in favor of employees “because it is social legislation with underlying

humanitarian purposes.” Coleman, 905 N.E.2d at 1019. Under the Act, an individual is

disqualified for unemployment benefits if he or she is discharged for “just cause.” Ind.

Code § 22-4-15-1(a).    Discharge for just cause includes a “knowing violation of a

reasonable and uniformly enforced rule of an employer . . . .” Ind. Code § 22-4-15-

1(d)(2). When the employer alleges that the employee was discharged for just cause, the

employer bears the burden of establishing a prima facie case of discharge for just cause.

Alebro, LLC v. Review Bd. of Ind. Dep’t of Workforce Dev., 968 N.E.2d 236, 238 (Ind.

Ct. App. 2012). “Once the employer meets its burden, the burden shifts to the employee

to rebut the employer’s evidence.” Id.

                                           6
                                II. Substantial Evidence

      Skeen alleges there is not substantial evidence supporting the Review Board’s

finding that she was not a manager in charge or the designated cashier on June 22, 2013,

and the Review Board relied on this finding in making the determination that she was

discharged for just cause because she had violated Hub’s reasonable and uniformly

enforced rule that only a manager or the designated cashier could open the cash drawer.

We agree.

      The “Hub Restaurant Server’s Policy” does include a rule that servers other than

the server designated as cashier during a shift are not to operate the cash register.

Because the policy is directed to servers and references the manager in charge separately,

by its own terms, the policy applies only to servers. Skeen testified that a manager may

take cash from the register. Hinman testified that as an assistant manager, Skeen became

the manager in charge when the general manager was not there during her shift. To

prove Skeen had been discharged for just cause, the burden of proof was on Hinman to

show that on June 22, 2013, she was acting as a server without authorization to open the

cash drawer and knowingly violated that rule. Hinman testified that Skeen was not the

manager in charge the week of May 25-29, 2013, see tr. at 18, but there was no testimony

regarding her status on June 22, 2013, the date in question. Therefore, although there is

evidence of a reasonable and uniformly enforced work rule, there is no evidence to

support the Review Board’s finding that Skeen was not a manager in charge or the

designated cashier such that the rule applied to Skeen on the relevant date. Hinman

therefore failed to meet his initial burden of making a prima facie showing of just cause.

                                            7
Additionally, because the Review Board found that Skeen was not authorized to open the

cash drawer in the first place, there are no findings with regard to whether Skeen actually

stole from the Hub when she removed cash from the register as Hinman alleged or

whether she took cash for authorized purposes as Skeen alleged. Without evidence

supporting the finding that Skeen was not the manager in charge or the designated cashier

and therefore violated the server’s policy by operating the cash register or a finding that

regardless of her status that night, she inappropriately took money from the cash register,

there are no findings to support the Review Board’s ultimate decision that Skeen was

discharged for just cause.

                                       Conclusion

       The record lacks substantial evidence that Skeen was terminated for just cause.

We reverse the Review Board’s decision denying Skeen’s unemployment compensation

benefits.

       Reversed.

BAKER, J., and KIRSCH, J., concur.




                                            8
