                                                              FILED
                                                         Jun 27 2016, 6:06 am

                                                              CLERK
                                                          Indiana Supreme Court
                                                             Court of Appeals
                                                               and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Debra A. Mastrian                                         REVIEW BOARD
Catherine E. Sabatine                                     Gregory F. Zoeller
SmithAmundsen LLC                                         Attorney General of Indiana
Indianapolis, Indiana
                                                          Frances Barrow
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Employer,                                                 June 27, 2016
Appellant,                                                Court of Appeals Case No.
                                                          93A02-1512-EX-2182
        v.                                                Appeal from the Review Board of
                                                          the Indiana Department of
Review Board of the Indiana                               Workforce Development
Department of Workforce                                   Case No.
Development and Employee,                                 15-RB-1838
Appellees.



Brown, Judge.




Court of Appeals of Indiana | Opinion 93A02-1512-EX-2182|June 27, 2016                  Page 1 of 18
[1]   M.F. (“Employer”) appeals a decision of the Review Board of the Indiana

      Department of Workforce Development (the “Board”) in favor of C.G.

      (“Claimant”) with respect to Claimant’s claim for unemployment benefits.

      Employer raises one issue which we restate as whether the Board erred in

      concluding that Claimant was not discharged from her employment for just

      cause. We reverse.


                                       Facts and Procedural History

[2]   Claimant worked as a full-time receptionist for Employer, a health care

      provider, until August 4, 2015, when her employment was terminated. She

      filed a claim for unemployment benefits, and in September 2015, a claims

      deputy with the Indiana Department of Workforce Development (“DWD”)

      determined that she had been discharged for just cause due to a work-related

      breach of duty.


[3]   Claimant appealed, and a hearing was held on October 5, 2015, before an

      administrative law judge (“ALJ”). Employer testified that his business is a

      medical practice and that Claimant was discharged because “[s]he had multiple

      issues such as incomplete job duties, data entry problems that were incorrect

      and this happened repetitively. As well as, disruption amongst other personnel

      with (Inaudible).” Transcript at 5. When asked if there was one incident that

      led to her discharge, Employer testified that “I think it was a culmination. So,

      you will see in the written section that there was . . . a progressive number of

      letters written that finally culminated in the discharge.” Id. When asked about

      the last thing that happened, he testified “the major thing was that we had
      Court of Appeals of Indiana | Opinion 93A02-1512-EX-2182|June 27, 2016    Page 2 of 18
      multiple patient complaints about not billing insurance correctly,” “[i]n other

      words, the insurance cards, which are presented at the time of entry into the

      office, the numbers on the insurance cards were incorrectly entered,” “[a]s well

      as, incorrect insurance policies were entered,” “we have multiple persons

      within the office that have to deal with these insurance cards” and “[t]hey are

      all able to enter it correctly, but unfortunately that was kind of the final straw

      that [Claimant] was not able to correctly enter those,” and “that resulted

      directly in harm to the business by losing payments for surgeries and office

      visits.” Id. at 5-6. When asked “was [Claimant] warned,” Employer

      responded: “Yes, multiple times. And, just as a correlation, she has peers in the

      office doing the same types of duties and they were all able to perform. She was

      the only one who was not performing.” Id. at 6. Employer also testified that

      “the general gist of this is that over . . . a long period of time myself and the

      office staff attempted to write [sic] [Claimant’s] low performance by

      encouragement, by teaching, by example,” that “despite all of that, we have

      numerous different issues that were given rise to office turbulence and harm,”

      that “it was not corrected,” and that, “therefore, there was a long track record

      which culminated in this discharge. It was not an impulsive decision by any

      means. It was a slow but gradual realization that it was not working.” Id.


[4]   The ALJ admitted into evidence a number of letters and notes submitted by

      Employer related to Claimant’s job performance. A letter to Claimant dated

      July 25, 2012, stated “[p]lease put the co-pay amount on the fee slip for each

      patient in the upper right corner” and “[t]hank you so much!” Exhibits at 28.


      Court of Appeals of Indiana | Opinion 93A02-1512-EX-2182|June 27, 2016      Page 3 of 18
      A note dated August 6, 2012, states “[a]dvised [Claimant] to schedule . . .

      patients as soon as possible – advised a month is too long.” Id. at 27. A note

      dated December 20, 2012, to Claimant states “[w]hen patients have Sagamore,

      be sure to put in group number with a space and then the SAG number such as:

      . . .” and “[t]hank you.” Id. at 24. A note dated January 15, 2015, to Claimant

      states “[p]lease update these charts for demographics as [illegible] are not

      getting the bills to patients,” “this is dropping our collections despite having

      done our . . . work,” and “Thanks.” Id. at 20. A note dated February 18, 2015,

      titled “Meeting / performance / improvements,” states “[d]iscussed wide range

      of issues and also job description” and listed eight numbered items, including in

      part: “teamwork/helping others at any task,” “[n]eed to collect co-pay,”

      “[c]harts incompletely put together,” “[r]egistration of insurance cards not

      complete,” “[i]ncomplete e-mails,” “[n]o homework on job,” “[c]heck

      insurance card for exact type & enter properly,” and “[u]pdated job description

      list.” Id. at 19. A note dated April 10, 2015, states “[d]iscussed with

      [Claimant],” “[c]ontinued problems with inaccurate insurance computer

      entries,” “[t]hus, we don’t get paid or the corrective steps are taken by other

      office staff,” “[t]his decreases revenue & increases expenses,” and “[h]ave again

      asked to inspect the insurance cards to get the correct info into the computer.”

      Id. at 18.


[5]   A letter from Employer to Claimant dated May 7, 2015, which contains a

      written note that it was given to Claimant May 14, 2015, by Employer’s

      business manager and reviewed with her, states “[a]s a reminder, we would


      Court of Appeals of Indiana | Opinion 93A02-1512-EX-2182|June 27, 2016     Page 4 of 18
need to have an accurate scheduling with patients for their office visit

coordinated with hearing testing,” that “[t]hese requirements are listed at the

end of the office note,” that “[i]f they are not scheduled appropriately then great

confusion arises and patient frustration becomes an issue,” that “[y]ou are

responsible for pulling and prepping the charts,” and “[t]hank you very much

for your help in these office matters! I appreciate your contributions!” Id. at 17.

A letter from Employer to Claimant dated June 18, 2015 states, “[a]s per our

previous conversations, please refrain from overriding the new patient office

slots until the day prior to the office time,” “[a]t this present time we already

have overrides for July and August,” “[w]e need to keep those slots open for

new patients,” “[a]dditionally, we are seeing patients until 5 p.m.,” and

“[p]lease make a note of this. Thank you for your help!” Id. at 15. A letter

from Employer to Claimant dated June 25, 2015, states “[a]s per our telephone

conversation there have been some issues that have arisen once again that are

impeding the front office from properly progressing during the business day,”

“[s]pecifically, please enter all insurance demographics into the charts and

Athena system prior to the patients being seen by me,” “[i]f this does not

happen it creates great confusion,” “[a]dditionally, please make sure that the

total cash is verified and labeled,” “[l]astly, please keep a cordial and polite

conversation going with others in the front office, so that impersonal friction

does not arise,” and “Thank you very much for your help in these matters!” Id.

at 14. A note dated July 14, 2015, indicates “Reviewed w/ [Claimant]. Pulled

charts form [sic] shelf w/ her to confirm demos not entered at check in.” Id. at

16.
Court of Appeals of Indiana | Opinion 93A02-1512-EX-2182|June 27, 2016     Page 5 of 18
[6]   The ALJ questioned Employer’s business manager and the following exchange

      occurred:


              Q [ALJ]:     The most recent warning or corrective notice that I
                   see is from June of this year. Was any other warning or
                   corrective action issued to [Claimant] after June?
              A [Employer’s business manager]:      Verbal. We did a lot of
                   verbal between me and her. Then, I know [Employer] had
                   multiple conversations with her on this. And, then, we
                   obviously offered her, you know, to ask questions if she
                   wasn’t sure to put the accounts on hold.
              Q:       So, again, my question is was any other . . .
              A:       (INAUDIBLE)
              Q:       . . . correction or warning issued to [Claimant] after the
                       June 23, 2015 . . .
              A:       Correct. Me and her . . .
              Q:       . . . letter.
              A:       . . . communications about it at least weekly.
              Q:       Was she ever told that her job was in jeopardy?
              A:       Yes.
              Q:       When?
              A:       During the conversations (INAUDIBLE) we said, you
                       know, that this, you know, a jeopardy that we won’t be
                       able to continue to employee [sic] people if you can’t pay.
              Q:       Was she told that her job was in jeopardy because of her
                       job performance?
              A:       You’re saying like somebody came out straight and said if
                       you do this again you’re going to be fired? No.
              Q:       Yes.
              A:       I have not.


      Court of Appeals of Indiana | Opinion 93A02-1512-EX-2182|June 27, 2016         Page 6 of 18
              Q:       Alright. I, I don’t have any other specific questions for
                       you, [Employer’s business manager]. Is there anything
                       else, [Employer], is there anything else you’d like to
                       question [Employer’s business manager] about?
              A:       No, I took under consideration that the warning would be
                       implied. That if it didn’t get corrected that it would not,
                       you know, that you wouldn’t have a job. And, I did make
                       that statement multiple times to [Claimant] and our other
                       employees in here.

              Q:       Thank you, [Employer’s business manager]. [Employer]? .
                       . . Would you like to question [Employer’s business
                       manager] on any other areas that I didn’t cover?
              [Employer]: I think she covered her part fine.

      Transcript at 9-10.


[7]   Claimant indicated that she did not understand that her job was in jeopardy for

      her work performance. She testified that she did not feel the documents

      submitted by Employer were truthful. She testified that “[i]t was never a

      warning to me that my job was in jeopardy,” that “[t]hey and [Employer’s

      business manager] would say it to everyone in the office,” that “[s]he never

      warned me directly and said your job is in jeopardy. That you are going to be

      fired,” that “[t]hat was never stated to me,” that “the documents to me are just

      for him to build a case,” “such as today to say that this was, this did happen

      and we did tell her that,” and that “[s]ome of these documents I’ve never even

      seen before.” Id. at 11.


[8]   Claimant further testified that she worked for the company for sixteen years,

      that Employer “came in after . . . approximately five years,” that she worked

      Court of Appeals of Indiana | Opinion 93A02-1512-EX-2182|June 27, 2016       Page 7 of 18
under him and there was never a problem with her doing her job, that in the last

year of working for Employer she was overloaded with an abundant amount of

work, that she “was the only one that was doing it. Checking in, checking out,

taking copays, entering demographics, filing, prepping the charts,” that she

“was doing all of the front office work,” that she felt like Employer “did that to

squeeze [her] out” and “[t]o make [her] quit,” and that, “when he saw that

wasn’t working he decided to go to another level.” Id. at 12. Claimant testified

that Employer implemented a new software system which required input of

insurance information, that she did that, and that “some of the insurances I did

not get and that’s what he used to terminate me,” but that she “never talked to

[Employer] multiple times about [her] job.” Id. She also testified that, when

she asked Employer’s business manager about insurances, “she could never

help [her],” that the manager “would always send [her] to [] another girl that

worked in the office. And, sometimes she couldn’t get it either,” that

“therefore, she would implement the insurances and I would go to her on

numerous occasions to enter the insurances for me . . . because she was

supposed to be the one that’s going over the insurances and verifying insurances

and making sure they were correct,” and that she did not agree with the

different statements that were made by Employer and Employer’s business

manager. Id. The ALJ asked Employer if he had any questions for Claimant,

Employer asked Claimant how she can state this was made up when there is

objective evidence that shows that she did not perform, and Claimant stated: “I

wasn’t aware that I was supposed to be saying that these documents didn’t

show that I did it. [] I asked you for training. You never trained me” and
Court of Appeals of Indiana | Opinion 93A02-1512-EX-2182|June 27, 2016    Page 8 of 18
      “[y]ou told me to train myself. And, that you were not going to give me any

      training. And, I entered most of those insurances correctly. The firing and the

      termination of me was not justice. There’s no justice with it.” Id. at 13.


[9]   The ALJ issued a decision on October 9, 2015, reversing the deputy’s

      determination and finding that Employer did not have just cause to discharge

      Claimant. The ALJ’s decision provided in part:


              FINDINGS OF FACT:
              Employer operates as a medical practice. Claimant began
              working for Employer on April 1, 2011 as a receptionist.
              Employer discharged Claimant on August 4, 2015 for
              unsatisfactory work performance, specifically, issues with
              gathering patient demographic information and billing medical
              insurance companies for services provided.
              Employer provided Claimant with notes on work to be done,
              requests to update patient information, reminders, and
              instructions on tasks. Some of these notes are addressed to
              Claimant along with other co-workers. The most recent letter
              regarding direction on Claimant’s work is dated June 25, 2015,
              and ends with “Thank you very much with your help in these
              matters!” A June 18, 2015 memo to Claimant reminding
              Claimant of issues with patient scheduling ends with “Please
              make a note of this. Thank you for your help!” On May 7, 2015,
              [Employer’s] memo to Claimant reminding her of a different
              scheduling matter includes, “Thank you very much for your help
              in these office matters! I appreciate your contributions!” These
              notes and memos had been issued to Claimant and other
              employees from June 2013 to June 2015. [Employer] and
              [Employer’s business manager] met with Claimant in February
              2015, [Employer] met with Claimant in April 2015, and
              [Employer’s business manager] met with Claimant in July 2015,


      Court of Appeals of Indiana | Opinion 93A02-1512-EX-2182|June 27, 2016   Page 9 of 18
               all to provide Claimant with direction, reminders, and
               instructions regarding her work tasks.
               At no time did Employer inform Claimant that if she continued
               to make errors in updating patient demographics or in insurance
               billing that her employment would be terminated. On August 4,
               2015, Employer discharged Claimant for unsatisfactory work
               performance.

               CONCLUSIONS OF LAW:

                                                     *****

               In the instant case, Employer had been writing memos, notes,
               and reminders to Claimant since June 2013. In May and June of
               2015, memos to Claimant from [Employer] reminding her of
               scheduling tasks and updates to patient demographics included
               language thanking her for her contributions to the office rather
               than warning her that her position was in jeopardy. The [ALJ]
               concludes that a reasonable employee of Employer would not
               have understood that Claimant’s performance had violated a
               duty or that Claimant was subject to discharge for her job
               performance. Employer did not have just cause to discharge
               Claimant as defined by Ind. Code Ann. 22-4-15-1.

       Exhibits 29-31.


[10]   Employer appealed the ALJ’s decision and argued that Claimant was

       repeatedly counseled about her job performance and that Claimant’s

       unsatisfactory job performance was a breach of her duties to Employer. On

       November 17, 2015, the Board entered a decision which affirmed the ALJ’s

       decision and adopted and incorporated by reference the ALJ’s findings of fact

       and conclusions of law.


       Court of Appeals of Indiana | Opinion 93A02-1512-EX-2182|June 27, 2016   Page 10 of 18
                                                    Discussion

[11]   The issue is whether the Board erred in concluding that Claimant was not

       discharged from her employment for just cause. Employer maintains that the

       Board’s decision is unreasonable and contrary to law because the evidence

       established that Claimant repeatedly failed to perform her job responsibilities

       properly and follow Employer’s instructions, had been informed about the

       importance of entering accurate patient demographic and insurance

       information and prepping patient charges on a number of occasions, and was

       given multiple chances to correct her deficiencies. Employer further argues

       that, even if the manager did not explicitly inform Claimant that her job was in

       jeopardy, explicit notice is not required where, despite repeated correction, an

       employee demonstrates a pattern of substandard work performance. Employer

       also argues that a reasonable person would not conclude that Claimant’s

       repeated mistakes, errors, refusal to follow instructions, and inability to perform

       her job duties should be overlooked or ignored because Employer occasionally

       thanked her for her services.


[12]   The Board asserts that Employer never told Claimant she would be subject to

       discharge if she continued making mistakes, that for more than two years

       Employer chose to inform Claimant of her mistakes and at the same time thank

       her for her efforts, and that Employer’s business manager acknowledged that

       Claimant was never explicitly told that her job was in jeopardy. The Board

       argues that no warning could be implied from Employer simply correcting

       Claimant without providing any hint that her job was at stake, that “[g]iven this

       Court of Appeals of Indiana | Opinion 93A02-1512-EX-2182|June 27, 2016   Page 11 of 18
       pattern, a reasonable employee would believe that Employer was willing to

       tolerate mistakes and would simply continue bringing the errors to [Claimant’s]

       attention,” and that the notes ending with “Thank you!” show that Employer

       “wanted to soften the message contained in the list of corrections instead of

       confronting [Claimant] with a warning about her performance.” Appellee’s

       Brief at 10. The Board also argues that Employer’s general theory is that poor

       performance alone is a breach of duty providing just cause for discharge and

       that, unlike in cases cited by Employer, there is no evidence that Claimant had

       a poor attitude, was defiant, rude, confrontational, or uncooperative, disliked

       the work, or simply refused to improve.


[13]   In reply, Employer argues that an employer is not required to issue a warning

       prior to discharging an employee in order for just cause to exist, that just cause

       exists when an employee breaches a duty in connection with work which is

       reasonably owed to the employer or refuses to obey instructions, and that

       Claimant’s continuous poor performance constituted a breach of her duty to

       Employer.


[14]   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

       Court of Appeals of Indiana | Opinion 93A02-1512-EX-2182|June 27, 2016   Page 12 of 18
       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).


[15]   “Under the Unemployment Compensation System established by the General

       Assembly, an individual is disqualified from receiving benefits if discharged for

       just cause by the most recent employer.” Id. at 1140 (citing Ind. Code § 22-4-

       15-1(a)).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.” Id. “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.” Id. The breach of duty




       1
           Ind. Code § 22-4-15-1(a) provides:

                  Regarding an individual’s most recent separation from employment before filing an initial
                  or additional claim for benefits, an individual who voluntarily left the employment without
                  good cause in connection with the work or was discharged from the employment for just cause is
                  ineligible for waiting period or benefit rights for the week in which the disqualifying
                  separation occurred and until:
                  (1)      the individual has earned remuneration in employment in at least eight
                           (8) weeks; and
                  (2)      the remuneration earned equals or exceeds the product of the weekly
                           benefit amount multiplied by eight (8).
                  If the qualification amount has not been earned at the expiration of an individual’s benefit
                  period, the unearned amount shall be carried forward to an extended benefit period or to
                  the benefit period of a subsequent claim.
       (Emphasis added).

       Court of Appeals of Indiana | Opinion 93A02-1512-EX-2182|June 27, 2016                               Page 13 of 18
       “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.” 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.


[16]   In addition, 646 Ind. Administrative Code 5-8-6(b) (filed Apr. 26, 2011)

       provides that a breach of duty reasonably owed to an employer includes, but is

       not limited to, conduct which establishes that the claimant (1) damaged the

       employer’s trust and confidence in the claimant’s ability to effectively perform

       the job; (2) willfully failed to meet the employer’s reasonable expectation; (3)

       chose a course of action that the claimant knew, or should have known, would

       negatively impact the employer’s financial interests; (4) demonstrated an

       intentional or substantial disregard for the employer’s interests; (5) intentionally

       or knowingly injured, or attempted to injure, the employer’s financial interests;

       (6) intentionally chose a course of action that pitted the claimant’s interests
       Court of Appeals of Indiana | Opinion 93A02-1512-EX-2182|June 27, 2016    Page 14 of 18
       against the employer’s interests to the detriment of the employer; or (7) showed

       carelessness or negligence to such a degree, or with such recurrence, as to cause

       damage to the employer’s interests.


[17]   The record reveals that Employer testified that Claimant repeatedly failed to

       complete certain job tasks and to enter patient insurance information into

       Employer’s computer system correctly, that Employer received complaints from

       patients regarding incorrect bills, and that Claimant’s performance resulted in

       harm to the business. Employer submitted several progress notes and other

       documents which reflected the various work-performance issues, and the fact

       these issues impacted revenue and expenses was discussed with Claimant.

       Claimant worked in the front office of a medical practice, and she had notice

       regarding the expectations of her position, including with respect to the

       accurate filing of insurance claims, the collection of payments, and the filing of

       patient information. These tasks were an intrinsic part of the work

       responsibilities of an employee in Claimant’s position, and an employee

       “should reasonably expect a duty fundamental to the [employee’s] job.” See

       Recker, 958 N.E.2d at 1141.


[18]   Under the circumstances, we conclude that Claimant showed carelessness or

       negligence to such a degree or with such recurrence as to cause damage to

       Employer’s interest, breached a duty in connection with work which was

       reasonably owed Employer, and that Claimant’s conduct was of such a nature

       that a reasonable employee of Employer would understand that the conduct

       was a violation of a duty owed Employer. See Recker, 958 N.E.2d at 1141

       Court of Appeals of Indiana | Opinion 93A02-1512-EX-2182|June 27, 2016   Page 15 of 18
(noting that the ability to back up a truck was an intrinsic part of the work

responsibilities of an employee in the claimant’s position, that the claimant had

notice that the inability to perform the task would be a violation of a duty owed

to her employer, and that actual driving competence was an integral component

of the claimant’s duties); Seabrook Dieckmann & Naville, Inc. v. Rev. Bd. of Ind.

Dep’t of Workforce Dev., 973 N.E.2d 647, 651-652 (Ind. Ct. App. 2012) (observing

that the claimant’s errors were continual and included preparation of funeral

documents which contained misspellings, typographical errors, and

misidentification of family members, concluding that claimant breached a duty

in connection with work which was reasonably owed the employer and that the

claimant’s conduct was of such a nature that a reasonable employee of the

employer would understand that the conduct was a violation of a duty owed the

employer, and reversing the Board’s decision that the claimant was not

discharged for just cause) (citing VanCleave v. Rev. 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, including failures to complete an

order, to timely turn in monies collected, and to correctly mark paperwork

resulting in improper bills, and that there was sufficient evidence of a

continuing disregard of the interests of the employer to outweigh the claimant’s

explanations of a few of his errors)). Also, the statements in the notes to

Claimant thanking her for her contributions, especially when viewed together

with the work-performance instructions contained in the notes, did not change

the fact that Claimant had notice regarding the expectations of her position and

the fact that the tasks were an intrinsic part of her work responsibilities.
Court of Appeals of Indiana | Opinion 93A02-1512-EX-2182|June 27, 2016     Page 16 of 18
[19]   To the extent the Board asserts that poor performance alone does not constitute

       a breach of duty, we have previously observed that, as the Indiana Supreme

       Court has made clear, there must also be evidence that the breach of duty was

       Claimant’s fault. See Conklin v. Rev. Bd. of Ind. Dep’t of Workforce Dev., 966

       N.E.2d 761, 765 (Ind. Ct. App. 2012) (noting that “despite language in Recker

       suggesting that a ‘just cause’ discharge determination for ‘breach of duty’

       statutorily does not require any consideration of the willfulness of the

       employee’s conduct,” the Court “still deemed it necessary to address whether

       an employee’s conduct was volitional and/or whether he or she exercised

       ‘some control’ over the circumstances leading to the discharge,” that, “[a]s

       Giovanoni [v. Rev. Bd. of Ind. Dep’t of Workforce Dev., 927 N.E.2d 906 (Ind.

       2010),2] and Recker both make clear, . . . there must also be evidence that this

       breach was Conklin’s fault,” and that “[i]n other words, the accident must have

       been the result of a ‘volitional act’ or circumstances over which Conklin

       exercised ‘some control’”) (citing Recker, 958 N.E.2d at 1142), reh’g denied.

       Here, Claimant’s failure to enter patient insurance information into Employer’s

       computer system correctly or perform other payment and filing functions as

       described in the record were matters over which Claimant had “some control.”

       See Recker, 958 N.E.2d at 1142 (concluding that the claimant’s “unsuccessful




       2
         In Giovanoni v. Rev. Bd. of Ind. Dep’t of Workforce Dev., the stated reason for discharge, which was a violation
       of an employer attendance policy, statutorily required consideration of the employee’s intent in violating the
       policy, and the Indiana Supreme Court stated that “‘just cause’ determinations, as they pertain to an
       employee’s discharge, must be consistent with the legislative purpose underlying the Act—to provide
       financial assistance to an individual who had worked, was able and willing to work, but through no fault of his
       or her own, is temporarily without employment.” 927 N.E.2d 906, 910 (Ind. 2010) (emphasis added).

       Court of Appeals of Indiana | Opinion 93A02-1512-EX-2182|June 27, 2016                              Page 17 of 18
       attempts to properly back up a truck were matters over which [the claimant]

       had ‘some control’ under the Giovanoni analysis”); cf. Conklin, 966 N.E.2d at

       765 (concluding that an unexplained, involuntary act of passing out while

       driving cannot be construed as a “volitional” act or a circumstance over which

       Conklin exercised “some control”). Based upon the record, we conclude

       Claimant was discharged for just cause. See Recker, 958 N.E.2d at 1140-1142.


                                                    Conclusion

[20]   For the foregoing reasons, we reverse the decision of the Board that Claimant

       was not discharged for just cause.


[21]   Reversed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 93A02-1512-EX-2182|June 27, 2016   Page 18 of 18
