Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                                    Jun 27 2013, 7:20 am
before any court except for the purpose
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.
ATTORNEYS FOR APPELLANT:                    ATTORNEY FOR APPELLEE:

FRAN QUIGLEY                                MARILYN TUCKER FULLEN
RUTH TONADE, Certified Legal Intern         Tucker and Tucker, P.C.
MARYAM HASSANI, Certified Legal Intern      Paoli, Indiana
Health and Human Rights Clinic
Indianapolis, Indiana                       ATTORNEYS FOR APPELLEE,
                                            REVIEW BOARD:

                                            GREGORY F. ZOELLER
                                            Attorney General of Indiana

                                            STEPHANIE L. ROTHENBERG
                                            Deputy Attorney General
                                            Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ANGELA SPURGEON,                            )
                                            )
       Appellant,                           )
                                            )
              vs.                           )    No. 93A02-1210-EX-861
                                            )
REVIEW BOARD OF THE INDIANA                 )
DEPARTMENT OF WORKFORCE                     )
DEVELOPMENT and FRENCH LICK                 )
PROFESSIONAL MANAGEMENT, INC.,              )
                                            )
       Appellees.                           )


             APPEAL FROM THE REVIEW BOARD OF THE DEPARTMENT
                        OF WORKFORCE DEVELOPMENT
                      The Honorable Steven F. Bier, Chairperson
                               Cause No. 12-R-3427
                                     June 27, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge


      Angela Spurgeon (“Employee”) appeals a decision by the Review Board of the

Indiana Department of Workforce Development (the “Board”) denying her claim for

unemployment benefits following the termination of her employment with French Lick

Professional Management Inc. (“Employer”).        Employee raises one issue which we

restate as whether the Board erred in concluding that she was terminated for just cause.

We affirm.

                       FACTS AND PROCEDURAL HISTORY

      Employee worked for Employer as a housekeeper from August of 2008 until her

employment was terminated on June 15, 2012, at which time Employee applied for

unemployment benefits. On July 18, 2012, a claims deputy issued a determination of

eligibility finding that Employee was discharged for a breach of duty reasonably owed

Employer and thus that Employee’s employment was terminated for just cause and

suspending Employee’s unemployment benefits.         Employee appealed the deputy’s

determination.    On August 21, 2012, a telephonic hearing was held before an

administrative law judge (“ALJ”) at which Employee and Employer’s representative,

Ashlie Walls, appeared and presented testimony.

      On August 24, 2012, the ALJ issued a decision which affirmed the July 18, 2012

determination of the claims deputy that Employee was discharged for just cause. In



                                           2
concluding that Employer presented evidence of just cause for discharge, the ALJ made

the following findings of fact:

       FINDINGS OF FACT:            [Employee] worked for [Employer] at
       [Employer’s] timeshare condos and rentals business from August 8, 2008
       until June 15, 2012. [Employee] worked for [Employer] as a full-time
       housekeeping employee.      [Employee] worked full-time hours for
       [Employer].    [Employee’s] supervisor was Ashlie Walls, head of
       housekeeping. [Employee] earned an hourly rate while working for
       [Employer]. [Employee’s] job responsibilities were to get the villas
       cleaned for [Employer].

       On June 15, 2012, [Employee] arrived to work at 8:00 a.m. [Employee]
       spoke with [] Walls and complained about Cash, a linen driver employee.
       [Employee] requested that Cash be more respectful towards her. [] Walls
       told [Employee] that she was being rude. [] Walls then began assigning
       employees to work together. [Employee] did not like who she was
       assigned to work with and asked to work with a different employee.
       [Employee] went to work at villa 3 and villa 88 as she was assigned.

       At approximately 11:30 a.m., [] Walls notified [Employee] about her lunch.
       [Employee] asked [] Walls for money to buy blood pressure medicine. []
       Walls told [Employee] to go home. [Employee] clocked out for lunch and
       [] Walls left for lunch.

       At approximately 12:00 p.m., [Employee] returned from lunch after being
       told to go home by [] Walls. [] Walls told [Employee] to go home again,
       get medicine, and that that [sic] she would call [Employee] when she was
       not busy. [Employee] did not go home as originally instructed because
       [Employee] was upset with her supervisor’s direction to go home.
       [Employee] went to the housekeeping department and [] Walls was notified
       that [Employee] was being disruptive. [Employee] indicated she was going
       to be hiring an attorney and the unemployment office. [Employee] called
       Brenda Merkel [the director of operations]. [Employee] went home on
       June 15, 2012.

       [Employee] was not scheduled to work . . . after June 15, 2012. [Employer]
       discharged [Employee] on June 15, 2012.

Appellant’s Appendix at 2-3. The ALJ concluded that Employee “breached a duty owed

to [Employer] when [she] did not go home as instructed by her supervisor,” that

                                           3
Employee’s “supervisor told [Employee] to clock out and go home after [Employee]

asked for a loan to buy blood pressure medicine,” and that Employee “did not go home as

instructed and become [sic] disruptive at [Employer’s] place of business.” Id. at 4.

Employee appealed to the Board from the decision of the ALJ. On October 9, 2012, the

Board issued a decision affirming the decision of the ALJ and adopting and incorporating

the findings of fact and conclusions of law of the ALJ. Employee now appeals the

Board’s decision.

                                     DISCUSSION

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

with Employer was terminated for just cause. Employee contends that she was not

discharged for just cause because she did not breach a duty reasonably owed to

Employer, that she was discharged for asking for a personal loan from her supervisor, and

that such a request does not rise to the level of a breach of duty reasonably owed to an

employer. Employee argues that, even if she was discharged for protesting her discipline,

that protest does not rise to the level of a breach of duty to Employer, that this court

should decline to consider evidence of Employee’s acts after being discharged since they

are not relevant to the just cause inquiry, and that Employee’s statements of protest were

provoked by a patently unreasonable form of discipline imposed upon her by Employer.

Employee also argues that a reasonable reading of the ALJ’s decision was that

Employer’s testimony was believed over that of Employee’s, that thus the only possible

act that could have led to discharge was Employee’s request of money for medicine, and

that under Indiana law an individual whose unemployment is the result of a medically

                                            4
substantiated physical disability and who is involuntarily unemployed after having made

reasonable efforts to maintain the employment relationship shall not be subject to

disqualification.

       Employer argues that Employee “was insubordinate and behaved disrespectfully

by asking [] Walls for money, telling [] Walls who she wanted to work with, being loud

and rude to another employee, not going home and waiting for [] Walls to call her after

being told to do so . . . , being disruptive . . . , and by using the company phone for

personal business.” Employer’s Brief at 7. Employer argues that Employee’s conduct on

June 15, 2012, was of such a nature that a reasonable employee would recognize a

violation of the duty and would understand that such a violation of the duty would subject

him/her to discharge.

       The Board argues that the ALJ implicitly determined that Walls’s testimony was

more credible than Employee’s testimony because the ALJ found in favor of Employer,

that the ALJ had the authority to determine who was more credible and reliable and to

make findings of fact based on those determinations, and that Employee wants this court

to reweigh the evidence. The Board argues that Employee was discharged for breaching

a duty owed to Employer by failing to comply with a direct order from her supervisor to

go home. The Board further argues that it is reasonable to believe that an employer

would expect its employees to listen to clear, direct orders by their immediate supervisor

and that Employee “readily admits that she ignored a direct order from her supervisor to

go home.” Board’s Brief at 11-12. The Board also maintains that Employee’s actions

were an intentional disregard of Employer’s interests and that her conduct meets the

                                            5
standard that an individual perform a “volitional act” or have “some control” of the

circumstances surrounding the discharge in order to find the individual was discharged

for just cause. Id. at 12.

       The standard of review on appeal of a decision of the Board is threefold: (1)

findings of basic fact are reviewed for substantial evidence; (2) findings of mixed

questions of law and fact—ultimate facts—are reviewed for reasonableness; and (3) legal

propositions are reviewed for correctness.                  Recker v. Review Bd. of Ind. Dep’t of

Workforce Dev., 958 N.E.2d 1136, 1139 (Ind. 2011) (citing McClain v. Review Bd. of

Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314, 1318 (Ind. 1998), reh’g denied).

Ultimate facts are facts that involve an inference or deduction based on the findings of

basic fact. Id. (citing McClain, 693 N.E.2d at 1317). Where such facts are within the

special competence of the Board, 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).

       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
       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
“[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. Seabrook Dieckmann &

Naville, Inc. v. Review Bd. of Ind. Dep’t of Workforce Dev., 973 N.E.2d 647, 650 (Ind.

Ct. App. 2012) (citing 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. at 650-651 (citing Recker, 958 N.E.2d

at 1140 (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 651 (quoting Recker, 958 N.E.2d 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.” Id. (quoting 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. Id. (citing Spieker v. Review Bd. of

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

                                             7
from a denial of benefits, the claimant bears the burden of showing error. McCurdy v.

Dep’t of Emp’t and Training Servs., 538 N.E.2d 277, 279 (Ind. Ct. App. 1989).

       In this case, the evidence presented at the August 21, 2012 hearing reveals that

Employee worked for Employer as a housekeeper from August 7, 2008 until June 15,

2012. Walls testified that she was Employee’s supervisor and that on June 15, 2012, she

“sent [Employee] home at lunch.” Transcript at 7. Walls testified: “[Employee] was

needing medicine and I told her to get the money for her medicine and I would call her

later when I wasn’t busy, and [Employee] wouldn’t leave. And she said she was suing,

and she started all kinds of trouble to where I didn’t feel that she could stay. I didn’t let

her go, she just wouldn’t leave.”      Id.   Walls testified that Employee “come up at

lunchtime” at about 11:30 a.m. “trying to borrow money, saying that she needed this

medicine and it was so important, and I told her to go home and figure out how to get the

money and get herself her medicine and I would call her later when I wasn’t busy. But

instead of that, she cause a, some problems.” Id. at 7-8. When asked by the ALJ if she

knew why Employee was asking for certain medicine, Walls testified: “Well she had

asked me before, telling me she needed blood pressure medicine, and I had loaned her the

money, and it was just becoming a problem. So I told her she needed to go somewhere

else to try to find the money.” Id. at 8. When asked “[w]as this a personal loan or a loan

through the Employer,” Walls indicated it was a personal loan. Id. Walls indicated that

Employee would not go home. Walls testified: “[Employee] was clocked out for lunch at

that time, so I took my lunch. And whenever I come back [at 12:00 pm.], [Employee]

had went back down to her villa and I didn’t want to say all this stuff in front of all the

                                             8
other employees so I called her when she was alone, and told her that she needed to go

home, I was sending her a ride, and I would call her back later when I wasn’t busy.” Id.

      Walls further testified that, at some point while Walls was in the area of the villas,

Employee found Walls and Walls said that she was busy and that Employee “need[ed] to

go home and get [her] medicine, get [her]self straightened up” and that Walls would call

Employee later. Id. at 9. Walls testified that “that’s when [Employee] proceeded to call,

she said unemployment and attorney” and that Employee “called [Walls’s] supervisor,

and she was tying up our . . . department lines.” Id. Walls testified that, while she was

away from the housekeeping department area, she received a call from the maintenance

supervisor who stated that Employee was at the maintenance office “causing a scene” and

asked Walls to return to the maintenance office. Id. Walls testified that, by the time she

returned, Employee had left.

      The ALJ admitted into evidence a letter prepared by Employer’s maintenance

supervisor. The letter stated that Employee had arrived at the time clock which was

located next to the desk of the maintenance supervisor, that the maintenance supervisor

told Employee to do what Walls had instructed, that Employee became upset and shouted

“[d]o I need to call Jo-Anne?!,” that the maintenance supervisor said to “do whatever you

feel is necessary,” that Employee yelled “I’m calling my lawyer and suing this place!,”

and that the maintenance supervisor told her to just leave and allow Walls to call her at

home. Exhibits at 40. The letter further stated that the maintenance supervisor worked

for another fifteen minutes and that she then went to the housekeeping department and

was surprised to find that Employee was still there. The letter stated that Employee “told

                                            9
[the maintenance supervisor] that she had just spoken with Brenda [Merkel] and she was

on her way up to talk to her,” that the maintenance supervisor called to confirm with

Brenda, and that Brenda “said that was false and to ask [Employee] to leave the

property.” Id. The letter stated that Employee then told the maintenance supervisor that

Walls asked her to stay so they could talk, that she called Walls to confirm, and that

Walls stated that it was false and asked that Employee go home. The letter stated that it

became apparent that Employee “was stalling” and that Employee then “start[ed] yelling

in front of other employees, that she was suing and calling the unemployment office” and

that “she was going to visit Jo-Anne and find out how she sued the company,” that

Employee then “went to pick up the company phone and dial a number,” that the

supervisor told Employee she could not use the company line to do personal business and

that Employee “completed the call regardless,” and that [f]inally, after 50 minutes

[Employee] went to clock out and leave the property.” Id.

      Employee testified that, when she went and found Walls at about 12:30 p.m.,

Walls told her to “go home and get better and reapply at another date.” Transcript at 13.

Employee testified that she did not ask Walls for money prior to that conversion at 12:30

p.m. but that she had asked for a personal loan from Walls at an earlier date. Employee

testified that she asked Walls if she could work with a person other than the person she

was assigned, that Walls nevertheless placed Employee with the same person, that she

worked the hours of 8:00 a.m. to 12:00 p.m., and that “after that, [Walls] told me she was

firing me, to go home, get better and reapply at another date.” Id. at 15. Employee

testified that Walls “told [her] to go home,” that Employee “said why are you sending me

                                           10
home,” and that Walls said “just go home.” Id. Employee testified: “So that’s, I went,

which I was wrong, I went back to my villa, started cleaning, because I felt like I didn’t

do anything wrong.” Id. Employee further testified that Walls had a driver pick her up,

that Employee asked the driver to stop where Walls was located, that Employee was

upset and crying and asked Walls why she was sending her home, and that Walls “said no

. . . , you go home, you get better and reapply at another date.” Id. Employee testified

that she called Brenda Merkel, the director of operations, that Brenda said to just go

home, and later, when Employee called Merkel again on her cell phone, Merkel stated

“nobody’s above her but God” and then hung up. Id. at 16. Employee later testified that

“after [she] took lunch at 12:00, [Walls] told [her] to go home” and that “I was, I, I, I

thought she was right, I refused to go home cause I felt like I didn’t do anything wrong.”

Id. at 17. In her closing statement, Employee stated that she was not told to go home

because she was causing problems but because of her health.

        To the extent Employee challenges findings of basic fact, our review of the record

reveals substantial evidence of the findings of basic fact of the ALJ and the Board. See

Recker, 958 N.E.2d at 1139. The ALJ and the Board found that Employee did not go

home as originally instructed and that Employee went to the housekeeping department

and was disruptive. Further, the ultimate findings of the ALJ and the Board, including

that Employee “breached a duty owed to [Employer] when [Employee] did not go home

as instructed by her supervisor” and became “disruptive at [Employer’s] place of

business,” Appellant’s Appendix at 4, are not unreasonable. See Recker, 958 N.E.2d at

1139.

                                            11
      Based upon the evidence and testimony above and in the record, we conclude that

Employer established a prima facie showing 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

that the conduct was a violation of a duty owed Employer, and that Employee did not

rebut Employer’s case. Thus, Employee was discharged for just cause. See Seabrook,

973 N.E.2d at 651-652 (concluding that the employer showed that the employee had

breached a duty in connection with work which was reasonably owed the employer and

that employee’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 that,

accordingly, the employee had been discharged for just cause). Accordingly, we affirm

the decision of the Board that Employee was discharged for just cause.

                                    CONCLUSION

      For the foregoing reasons, we affirm.

      Affirmed.

BRADFORD, J., concurs.

RILEY, J., dissents with separate opinion.




                                             12
                              IN THE
                    COURT OF APPEALS OF INDIANA

ANGELA SPURGEON,                                  )
                                                  )
       Appellant-Petitioner,                      )
                                                  )
              vs.                                 )    No. 93A02-1210-EX-861
                                                  )
REVIEW BOARD OF THE INDIANA                       )
DEPARTMENT OF WORKFORCE                           )
DEVELOPMENT and FRENCH LICK                       )
PROFESSIONAL MANAGEMENT, INC.,                    )
                                                  )
       Appellee-Respondent.                       )


RILEY, Judge, dissenting


       I respectfully dissent from the majority’s conclusion, affirming the decision of the

Board that Employee was discharged for just cause. Even if Employee was discharged

for refusing to go home and for protesting her discipline, as determined by the majority, I

conclude that this protest does not rise to the level of a breach of duty to her Employer.

       In Ball v. Review Bd of Ind. Employment Sec. Div., 464 N.E.2d 1312, 1314, we

stated that

       [w]e are of the opinion that all of the circumstances affecting the reprimand
       in each case of voluntary quitting have to be considered, and that if there
       are other factors involved, such as provocation brought on by unjust
       reprimands . . . or any other evidentiary factors which would have strong
       influential effect upon the mind of the employee contributing to or causing
                                              13
      him to voluntarily quit his employment, such contributing factors might,
      under certain circumstances, be considered as good cause within the
      purview of the Act, sufficient to enable the employee voluntarily quitting
      his job to secure compensation under the Act without the statutory penalty.

The evidence, as found by the ALJ, reflects that Employee had worked for Employer for

the past four years. That specific morning, Employee requested her supervisor, Walls,

for money to buy blood pressure medicine. The record reflects that this was a request for

a personal loan from Walls; a request Walls had granted at least once in the past.

However, on this occasion, instead of lending the money, Walls told Employee, without

any further explanation, to go home.

      It is clear that Employee interpreted Walls’ instruction as a discharge from

employment. In light of the previous occasion where Walls had granted Employee’s

request for a personal loan, I find that the instruction Employee received, coupled with

her belief that she was about to be discharged, provoked Employee’s expressions of

frustration that followed Walls’ instruction.     Therefore, I conclude that because

Employee was provoked by the instruction of her Employer to go home, she should be

entitled to unemployment benefits.




                                           14
