MEMORANDUM DECISION
                                                                      Aug 07 2015, 8:20 am
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 of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Richard L. Darst                                          Gregory F. Zoeller
Cohen Garelick & Glazier                                  Attorney General of Indiana
Indianapolis, Indiana
                                                          Kristin Garn
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

A.R.,                                                    August 7, 2015

Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         93A02-1411-EX-800
        v.                                               Appeal from the Review Board of the
                                                         Department of Workforce
                                                         Development.
Review Board of the Indiana
                                                         The Honorable Steven F. Bier,
Department of Workforce                                  Chairperson.
Development and Housing
                                                         Case No. 14-R-0277
Authority of the City of
Kokomo,
Appellee-Respondent.




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision | 93A02-1411-EX-800 | August 7, 2015       Page 1 of 14
                                      STATEMENT OF THE CASE

[1]   Appellant, Angela R. Riley (Riley), 1 appeals the decision of the Unemployment

      Insurance Review Board (the Review Board) of the Indiana Department of

      Workforce Development (DWD), which upheld the decision of the

      administrative law judge (ALJ) denying her claim for unemployment

      compensation benefits on the basis that she had been terminated from her

      employment for just cause.


[2]   We affirm.


                                                       ISSUES

[3]   Riley raises two issues on appeal, which we restate as follows:

      (1) Whether there is sufficient evidence to support the Review Board’s

      determination that Riley is ineligible for unemployment compensation benefits

      because she was discharged for just cause; and

      (2) Whether Riley’s due process rights were violated.


                             FACTS AND PROCEDURAL HISTORY

[4]   On November 3, 2008, the Housing Authority of the City of Kokomo

      (Employer) hired Riley as a full-time Application Processing Clerk. Riley



      1
         The parties refer to Riley using her initials. However, our court has previously found that, notwithstanding
      the confidentiality mandate of Indiana Code section 22-4-19-6 and Indiana Administrative Rule 9(G), “it is
      appropriate for this [c]ourt to use the full names of parties in routine appeals from the Review Board.” Moore
      v. Review Bd. of Ind. Dep’t of Workforce Development, 951 N.E.2d 301, 306 (Ind. Ct. App. 2011). See also J.M. v.
      Review Bd. of Ind. Dep’t of Workforce Development, 975 N.E.2d 1283, 1285 n.1 (Ind. 2012) (noting that the
      court’s practice “going forward will be to keep the[] parties confidential only if they make an affirmative
      request”). Therefore, as we did not receive an affirmative request, we will utilize Riley’s name.

      Court of Appeals of Indiana | Memorandum Decision | 93A02-1411-EX-800 | August 7, 2015             Page 2 of 14
      described that her job duties included maintaining the waiting list of applicants

      seeking housing. Once a housing unit became available, Riley was responsible

      for assigning the unit to the next eligible applicant.


[5]   On May 7, 2014, Riley learned from a maintenance worker that individuals

      were in the process of moving into an apartment which had not been authorized

      for occupancy. Just two months earlier, Riley had received a written warning

      for similarly arranging a housing transfer without first having an inspection

      conducted. Upon learning of the unauthorized move-in, Riley contacted

      Employer’s chief executive officer, Debra Cook (CEO Cook), and requested an

      immediate meeting in order to demand “an answer” as to why these tenants

      were being permitted to move into an unpainted, dirty unit. (Tr. p. 25). CEO

      Cook informed Riley that she was in a meeting and could not see her right

      away. CEO Cook advised Riley to discuss the issue with her immediate

      supervisor. Instead, Riley contacted the Indianapolis office to report that

      tenants had been permitted to move into an apartment that was still “on

      administrative hold.” (Tr. p. 25).


[6]   Riley “was agitated that the tenants had been allowed to move into the

      apartment.” (Appellant’s App. p. 4). Riley’s supervisor, Property Manager

      Tina Bellis (Property Manager Bellis), spoke with CEO Cook and learned that

      management was aware of the unauthorized tenants and was handling the

      issue. Property Manager Bellis relayed this information to Riley, but Riley

      “became very loud and irritable” and complained to other employees about her

      dissatisfaction with Employer’s procedures. (Tr. p. 21). Because Riley was

      Court of Appeals of Indiana | Memorandum Decision | 93A02-1411-EX-800 | August 7, 2015   Page 3 of 14
      causing a disturbance throughout the office, CEO Cook suspended her meeting

      and asked an assistant property manager to send Riley into her office. Instead

      of reporting to CEO Cook’s office as instructed, Riley called CEO Cook and

      “said she would not come to [her] office” because it “wouldn’t do any good.”

      (Tr. p. 12). According to Riley, she had already handled the issue by reporting

      the matter to the Indianapolis office, so “there was no reason for [her] to [go]

      down to [CEO Cook’s] office.” (Tr. p. 26).


[7]   Employer’s Personnel Policy Manual provides that an employee “may be

      subject to discharge upon the first offense” for committing “insubordination –

      [f]ailing to follow or comply with instructions or work orders in a timely

      manner.” (Appellant’s App. p. 15). After Riley refused CEO Cook’s directive

      to come to her office, CEO Cook resolved to terminate Riley’s employment.

      However, the director of human resources was out of the office and could not

      process Riley’s termination until the following morning. In addition, Riley did

      not report to work for the two days following the incident, taking one day off

      under the Family and Medical Leave Act (FMLA) and one vacation day.

      Thus, it was not until Riley returned to work the following Monday, May 12,

      2014, that she was notified of the termination.


[8]   Riley subsequently filed a claim with the DWD for unemployment

      compensation benefits. On July 31, 2014, a DWD deputy rendered an initial

      determination that Riley had not been terminated for just cause and was

      therefore eligible for unemployment compensation benefits. On August 9,

      2014, Employer appealed the deputy’s ruling to an ALJ. On September 23,

      Court of Appeals of Indiana | Memorandum Decision | 93A02-1411-EX-800 | August 7, 2015   Page 4 of 14
       2014, the ALJ conducted a hearing by a telephone conference call, and on

       September 26, 2014, the ALJ issued a decision, reversing the DWD deputy and

       finding Riley ineligible for unemployment compensation benefits. In particular,

       the ALJ concluded that Riley “knowingly violated reasonable and uniformly

       enforced rules. [Riley] was insubordinate when [she] refused to go to [CEO

       Cook’s] office. The request by [CEO Cook] was a reasonable request. [Riley]

       was discharged for just cause as defined by [Indiana Code section] 22-4-15-1.”

       (Appellant’s App. p. 5).


[9]    On October 10, 2014, Riley appealed the ALJ’s decision to the Review Board.

       On October 27, 2014, the Review Board affirmed the ALJ’s decision, adopting

       and incorporating by reference the ALJ’s findings of fact and conclusions of

       law. The Review Board added a specific finding that CEO Cook possessed the

       “authority to require [Riley] to report to her office” and despite the fact that

       CEO Cook’s instruction was “reasonable[,]” Riley “refused to do so.”

       (Appellant’s App. p. 2).


[10]   Riley now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                             I. Standard of Review

[11]   “Any decision of the [R]eview [B]oard shall be conclusive and binding as to all

       questions of fact.” Ind. Code § 22-4-17-12(a). The Review Board’s decision

       may only be challenged on appeal “as being contrary to law, in which case we

       examine the sufficiency of the facts found to sustain the decision and the


       Court of Appeals of Indiana | Memorandum Decision | 93A02-1411-EX-800 | August 7, 2015   Page 5 of 14
       sufficiency of the evidence to sustain the findings of facts.” Coleman v. Review

       Bd. of Ind. Dep’t of Workforce Development, 905 N.E.2d 1015, 1019 (Ind. Ct. App.

       2009). Pursuant to this standard, “we review determinations of specific or basic

       underlying facts, conclusions or inferences drawn from those facts, and legal

       conclusions.” Id.


[12]   Our standard of review 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.” Reed v. Review Bd. of Ind. Dep’t of Workforce Development, 32

       N.E.3d 814, 822 (Ind. Ct. App. 2015). We will consider only the evidence most

       favorable to the Review Board’s findings, without reweighing evidence or

       assessing the credibility of witnesses. J.M., 975 N.E.2d at 1286. We will affirm

       the decision of the Review Board unless there is no substantial evidence to

       support its findings. Id.


                                         II. Sufficiency of the Evidence

[13]   The Indiana Unemployment Compensation Act was enacted, in part, “to

       provide for payment of benefits to persons unemployed through no fault of their

       own.” I.C. § 22-4-1-1. Accordingly, an unemployed claimant is ineligible for

       unemployment benefits if she is discharged for just cause. I.C. § 22-4-15-1(a).

       “Discharge for just cause” is defined to include, but is not limited to:

               (1) separation initiated by an employer for falsification of an
                   employment application to obtain employment through subterfuge;



       Court of Appeals of Indiana | Memorandum Decision | 93A02-1411-EX-800 | August 7, 2015   Page 6 of 14
               (2) knowing violation of a reasonable and uniformly enforced rule of an
                   employer, including a rule regarding attendance;
               (3) if an employer does not have a rule regarding attendance, an
                   individual’s unsatisfactory attendance, if the individual cannot
                   show good cause for absences or tardiness;
               (4) damaging the employer’s property through willful negligence;
               (5) refusing to obey instructions;
               (6) reporting to work under the influence of alcohol or drugs or
                   consuming alcohol or drugs on employer’s premises during
                   working hours;
               (7) conduct endangering safety of self or coworkers;
               (8) incarceration in jail following conviction of a misdemeanor or
                   felony by a court of competent jurisdiction; or
               (9) any breach of duty in connection with work which is reasonably
                   owed an employer by an employee.
       I.C. § 22-4-15-1(d) (emphasis added). When an employer alleges that an

       employee has been discharged for just cause, “the employer bears the burden of

       establishing a prima facie case of discharge for just cause.” Albright v. Review

       Bd. of Ind. Dep’t of Workforce Development, 994 N.E.2d 745, 750 (Ind. Ct. App.

       2013). Once the employer has satisfied its burden, the onus “shifts to the

       employee to rebut the employer’s evidence.” Id.


[14]   In this case, the Review Board found that Riley was discharged for just cause

       under subsection (d)(2) based on her violation of Employer’s rule against

       insubordination. Riley now claims that there is insufficient evidence to support

       this determination. First, she argues that there is a lack of substantial evidence

       that she was insubordinate on March 6, 2014, for which she received a written

       warning on March 7, 2014, for arranging an improper housing transfer. We,

       however, find no merit or relevancy in this argument because the March 7,
       Court of Appeals of Indiana | Memorandum Decision | 93A02-1411-EX-800 | August 7, 2015   Page 7 of 14
       2014 warning was not the basis for Riley’s termination. Rather, at the hearing

       before the ALJ, Employer relied on the May 7, 2014 incident—in which Riley

       refused CEO Cook’s instruction to report to her office—as its reason for

       terminating Riley’s employment and only briefly mentioned that Riley had

       been insubordinate on a prior occasion. Furthermore, neither the ALJ nor the

       Review Board cited Riley’s previous warning for insubordination as a just cause

       for discharge. Instead, both the ALJ and the Review Board exclusively found

       that Riley violated Employer’s rule against insubordination by refusing to go to

       CEO Cook’s office. Likewise, we will limit our review solely to whether there

       is substantial evidence of just cause to terminate Riley based on her

       insubordinate behavior on May 7, 2014.


[15]   “To knowingly violate an employer’s rule, the employee must (1) know of the

       rule and (2) know his conduct violated the rule.” Id. A review of the record

       reveals that Riley had received a copy of Employer’s Personnel Policy Manual,

       which identifies “insubordination—[f]ailing to follow or comply with

       instructions or work orders in a timely manner”—as an offense for which an

       employee is subject to discharge in the first instance. (Appellant’s App. p. 15).

       On May 7, 2014, CEO Cook, who is undisputedly Riley’s superior, asked an

       assistant property manager to send Riley into her office because of the

       disturbance Riley was creating throughout the workplace. When the assistant

       property manager told Riley that CEO Cook “would like to see her,” Riley

       instead called CEO Cook and “said she would not come to [her] office.” (Tr.

       pp. 12, 20). During the hearing before the ALJ, Riley admitted that she saw


       Court of Appeals of Indiana | Memorandum Decision | 93A02-1411-EX-800 | August 7, 2015   Page 8 of 14
       “no reason . . . to [go] down to [CEO Cook’s] office” because “the situation

       had already been tak[en] care of.” (Tr. p. 26). By directly refusing to comply

       with CEO Cook’s instruction, we find sufficient evidence that Riley knowingly

       violated Employer’s rule against insubordination. Nevertheless, Riley attempts

       to redirect the blame, asserting that it was Employer who violated the policy

       against allowing tenants to move into an unprepared apartment and that it was

       CEO Cook who initially refused Riley’s request for a meeting. Ultimately,

       these allegations have no bearing on the fact that Riley—as the employee—was

       subject to Employer’s rule against insubordination, and Riley violated this rule

       when she disregarded CEO Cook’s instruction.


[16]   In order for an employee’s rule violation to merit “[d]ischarge for just cause[,]”

       the employer’s rule must be “reasonable and uniformly enforced.” I.C. § 22-4-

       15-1(d)(2). A work rule will be found to be reasonable if it:

               (1) is lawful;
               (2) is related to the employer’s business operations;
               (3) is intended by the employer to broadly apply to classes, categories,
                   or all employees;
               (4) does not create a harsh or unconscionable requirement for
                   employees.
       646 Ind. Admin. Code § 5-8-5. Riley contends that Employer’s rule is

       unreasonable because it “is enforced in a discriminatory or retaliatory manner

       based on FMLA leave, sex, race, or disability.” (Appellant’s Br. p. 21). We

       disagree. Employer’s director of human resources testified that the policy

       against insubordination applies to and is enforced equally against all employees.


       Court of Appeals of Indiana | Memorandum Decision | 93A02-1411-EX-800 | August 7, 2015   Page 9 of 14
       CEO Cook testified that the rule exists because “insubordination will impact

       the effective and efficient operations of this agency, and it negatively affects

       employee moral[e].” (Tr. p. 13). The Personnel Policy Manual further explains

       that the rules are intended “to insure continuous and successful [Employer]

       operations.” (Appellant’s App. p. 14). We therefore find that Employer’s rule

       against insubordination is reasonable.


[17]   Riley also argues that Employer’s rule is not a uniformly enforced policy. “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.”

       City of Carmel v. Review Bd. of Ind. Dep’t of Workforce Development, 970 N.E.2d

       239, 245 (Ind. Ct. App. 2012). More specifically, Riley contends that

       “Employer presented no evidence that it terminated anyone for going ‘over the

       head’ of the CEO and complaining to the Indianapolis office” or for improper

       housing transfers. (Appellant’s Br. 23). Yet, neither of these reasons were

       proffered as Employer’s grounds for terminating Riley. As previously stated,

       the ALJ and Review Board found that Riley was terminated for

       insubordination because she disregarded CEO Cook’s instruction to report to

       her office, and the ALJ concluded that “[a]ny employee who committed the

       same action as [Riley] would also be discharged.” (Appellant’s App. p. 4).


[18]   With respect to uniform enforcement, our supreme court has found:

               Uniform enforcement gives notice to employees about what
               punishment they can reasonably anticipate if they violate the rule and
               it protects employees against arbitrary enforcement. This is important
               to ensure that employees who are denied compensation under this
       Court of Appeals of Indiana | Memorandum Decision | 93A02-1411-EX-800 | August 7, 2015   Page 10 of 14
               subsection are only those who lost their jobs for reasons within their
               control. Here, the purposes were met if . . . [Riley] knew of the
               violation, knew or can be fairly charged with knowledge that it could
               result in termination, and there was no arbitrary enforcement.
       McClain v. Review Bd. of Ind. Dep’t of Workforce Development, 693 N.E.2d 1314,

       1319-20 (Ind. 1998) (internal citation omitted), reh’g denied. Here, Employer’s

       written Personnel Policy Manual was introduced into evidence and clearly

       states that an employee may be subject to discharge for a first offense of

       insubordination. See City of Carmel, 970 N.E.2d at 245 (requiring a rule to 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”). Additionally, Employer’s

       director of human resources testified that the rule against insubordination

       applies equally to all employees—regardless of whether full-time or part-time.

       See id. (“In order to evaluate uniformity one must first define the class of

       persons against whom uniformity is measured.”). Thus, there is sufficient

       evidence to support the determination that Employer’s rule is uniformly

       enforced.


[19]   Riley further contends that her alleged insubordination was merely “a pretext

       for discrimination and retaliation against [her] for her disability and for her

       taking substantial FMLA leave that she was entitled to by law.” (Appellant’s

       Br. p. 13). 2 During the hearing, CEO Cook repeatedly stated that Riley’s




       2
         We decline to address the numerous arguments posited by Riley which have no relevance or basis in the
       record, such as her bald assertion that CEO Cook failed “to engage in an interactive process to find a

       Court of Appeals of Indiana | Memorandum Decision | 93A02-1411-EX-800 | August 7, 2015       Page 11 of 14
       discharge was based entirely on her insubordination and was in no way related

       to her FMLA leave. Thus, Riley’s argument is nothing more than a request

       that we reweigh the evidence and judge witness credibility, which we will not

       do. It was entirely within the discretion of the ALJ—and, in turn, the Review

       Board—to find CEO Cook’s testimony to be more credible than Riley’s.


                                                  III. Due Process

[20]   Riley next claims that she was “denied her rights to a fair hearing and an

       impartial tribunal.” (Appellant’s Br. p. 28). We find her argument is

       tantamount to a claim that she was denied due process. It is well established

       that “[t]he fundamental requirement of due process is the opportunity to be

       heard at a meaningful time and in a meaningful manner.” Wolf Lake Pub, Inc. v.

       Review Bd. of Ind. Dep’t of Workforce Development, 930 N.E.2d 1138, 1141 (Ind.

       Ct. App. 2010) (alteration in original). Whether a party was denied due process

       is a question of law, which our court reviews de novo. Id.


[21]   First, Riley asserts that the ALJ improperly excluded and ignored evidence

       regarding the “real reasons” behind Riley’s termination—i.e., Riley’s disability,

       retaliation for Riley taking FMLA leave, and retaliation for Riley “going ‘over

       the head’” of CEO Cook by complaining to the Indianapolis office.

       (Appellant’s Br. pp. 28-29). “In general, the Indiana Rules of Trial Procedure

       and the Indiana Rules of Evidence shall govern proceedings before an [ALJ] or




       reasonable accommodation for [Riley’s] bipolar disorder, especially when it was aggravated by the CEO, and
       the retaliation against [Riley] because of her complaints.” (Appellant’s Br. p. 18).

       Court of Appeals of Indiana | Memorandum Decision | 93A02-1411-EX-800 | August 7, 2015       Page 12 of 14
       the [R]eview [B]oard.” 646 IAC § 5-10-5(a). The parties are afforded an

       opportunity to “present evidence as the [ALJ] deems necessary for determining

       the substantial rights of the parties.” 646 IAC § 5-10-5(a). In this case, the ALJ

       considered Employer’s testimony that Riley was fired for insubordination based

       on her failure to report to CEO Cook’s office, and the ALJ also heard Riley’s

       testimony that she believed she was terminated out of retaliation and

       discrimination. Because it is the role of the ALJ, not this court, to weigh the

       evidence, it was within the discretion of the ALJ to find Employer’s testimony

       more credible and to subsequently limit the testimony to the events directly

       relating to Riley’s discharge. See Ind. Evidence Rule 401 (stating that evidence

       is relevant, in part, if “the fact is of consequence in determining the action”);

       Evid. R. 402 (excluding irrelevant evidence).


[22]   Second, Riley alleges that the ALJ “failed to be impartial by repeatedly asking

       leading questions in favor of the Employer” and “refused to allow [Riley] to ask

       questions on the same subjects.” (Appellant’s Br. p. 29). We find no merit in

       this argument. It is the prerogative of the ALJ to “examine all witnesses” in

       order to resolve the case. 646 IAC § 5-10-5(a)(1). In determining whether

       information concerning Riley’s FMLA leave was relevant, the ALJ directly

       asked Employer whether the FMLA leave had any bearing on its decision to

       terminate Riley. In turn, the ALJ also questioned Riley as to why she believed

       she was terminated and afforded Riley an ample opportunity to explain her

       opinion that she was fired in retaliation for contacting the Indianapolis office

       and for taking FMLA leave. We again reiterate that it was within the discretion


       Court of Appeals of Indiana | Memorandum Decision | 93A02-1411-EX-800 | August 7, 2015   Page 13 of 14
       of the hearing officer to credit Employer’s testimony that Riley was terminated

       solely due to her insubordination. It is well settled that “[d]ue process requires

       a neutral, unbiased decision maker in” administrative determinations. Perry-

       Worth Concerned Citizens v. Bd. of Comm’rs of Boone Cnty., 723 N.E.2d 457, 460

       (Ind. Ct. App. 2000), trans. denied. Here, we find that Riley has failed to

       demonstrate that the ALJ acted in a biased or prejudicial manner; thus, there is

       no due process violation.


                                               CONCLUSION

[23]   Based on the foregoing, we conclude that there is substantial evidence to

       establish that Riley was terminated for just cause and is therefore ineligible for

       unemployment compensation benefits. We further conclude that Riley’s due

       process rights were not violated.


[24]   Affirmed.


[25]   Bailey, J. and Barnes, J. concur




       Court of Appeals of Indiana | Memorandum Decision | 93A02-1411-EX-800 | August 7, 2015   Page 14 of 14
