                                                                          FILED
                                                                     Aug 24 2016, 9:46 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      A. David Hutson                                           Lucy R. Dollens
      Natalie N. Short                                          Jacob V. Bradley
      Hutson Legal                                              Quarles & Brady, LLP
      Jeffersonville, Indiana                                   Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Brian Fuchs,                                              August 24, 2016
      Appellant-Respondent,                                     Court of Appeals Cause No.
                                                                10A01-1602-PO-501
              v.                                                Appeal from the Clark Circuit
                                                                Court
      Riverbend Assisted Living,                                The Honorable William Dawkins,
      Appellee-Petitioner.                                      Magistrate
                                                                Trial Court Cause No.
                                                                10C02-1512-PO-555



      Barnes, Judge.


                                              Case Summary
[1]   Brian Fuchs appeals the trial court’s issuance of three workplace violence

      restraining orders on behalf of employees of Riverbend Assisted Living

      (“Riverbend”). We affirm.



      Court of Appeals of Indiana | Opinion 10A01-1602PO-501 | August 24, 2016                Page 1 of 11
                                                      Issues
[2]   Fuchs raises three issues, which we consolidate and restate as whether the trial

      court properly issued the workplace violence restraining orders.


                                                      Facts
[3]   Riverbend is an assisted living facility in Jeffersonville. Beginning in June 2014,

      Fuchs’s mother was a resident at the facility. Fuchs’s mother had appointed

      Fuchs and Cherie May as her co-attorneys in fact.


[4]   Alexa Wheeler is the executive director of Riverbend, and she oversees the

      operations of the facility. On February 16, 2015, Wheeler learned that Fuchs

      was upset and wanted to talk to her. Wheeler called Fuchs, and he was very

      upset and angry that his mother was missing a box of Q-tips. In the beginning

      of April, Wheeler received another phone call from Fuchs. He was “extremely

      upset” that his mother had not received a shower. Tr. p. 40. He was

      “screaming at the top of his lungs,” and he would not stop screaming. Id. For

      the first time in her twenty-five years as an executive director, Wheeler had to

      hang up on a resident’s family member. Fuchs called back a few minutes later

      and asked for the phone number of Wheeler’s supervisor, which she gave to

      him. On August 3, 2015, Fuchs called Wheeler at 11:15 p.m. while she was

      asleep. Fuchs “was screaming and hollering” about his mother not getting a

      pain pill from Melissa Gahl, a certified nursing assistant, in a timely manner.

      Id. at 43. Fuchs threatened to “come up and take care of it.” Id. at 66. In early

      August 2015, Wheeler was also approached by a resident, who asked that


      Court of Appeals of Indiana | Opinion 10A01-1602PO-501 | August 24, 2016   Page 2 of 11
      Fuchs not be allowed in the dining room because he was “interrogating them”

      about a resident counsel meeting. Id. at 49. Wheeler spoke to Fuchs and

      reminded him that he was not supposed to talk to other residents and family

      members and upset them. Fuchs got six inches from Wheeler’s face, screamed,

      “B**ch,” and walked away. Id. at 49. Fuchs’s face was “blood red,” and

      Wheeler thought he was going to push her. Id. at 50. According to Wheeler,

      four long-term employees of Riverbend have threatened to leave their

      employment because of Fuchs’s behavior.


[5]   Carrie Smith is a qualified medication assistant at Riverbend, and her job

      requires her to pass medications to residents and help them with their showers,

      laundry, and daily living activities. On July 29, 2015, Fuchs’s mother asked

      Smith for a food tray in her room. Smith told Fuchs’s mother that there would

      be a charge for the tray, and Fuchs’s mother got “quite upset.” Id. at 29. That

      evening, Fuchs started “yelling, saying, this is bulls**t, I’m calling the Vice

      President.” Id. at 30. Fuchs was “towering” over Smith and was in her

      personal space, and Smith told Fuchs to stop yelling and that she was just

      following the policy. Id. at 31. Fuchs “just kept screaming and yelling,” and

      “there was no calming him down.” Id. Smith walked out of the room and

      walked away. She was “[v]ery intimidated” by Fuchs and was “scared.” Id. at

      32. Smith now avoids Fuchs and goes the other way when she sees him

      because she is afraid.


[6]   Angela Rice is the business office director at Riverbend. On August 4, 2015,

      Fuchs came to Rice’s office and demanded that she stop an automatic

      Court of Appeals of Indiana | Opinion 10A01-1602PO-501 | August 24, 2016   Page 3 of 11
      deduction that was being used to pay his mother’s bill. Rather than sit in a

      chair in front of Rice’s desk, Fuchs came around Rice’s desk and was “literally,

      right on top of [her]” and “towering” over her. Id. at 18. Fuchs bumped Rice’s

      chair and arm, and she had to move out of his way. Fuchs was irate, and Rice

      was afraid of him. She was backed into a corner and could not get away from

      him. Rice felt intimidated and like she was in danger.


[7]   In August 2015, Riverbend’s counsel sent Fuchs a letter informing him that he

      was no longer permitted at the facility except “for the purpose of removing [his]

      mother from the facility for visits within the facility’s normal visiting hours . . .

      .” Appellee’s Supplemental App. p. 10. On September 10, 2015, Riverbend

      personnel had an informal meeting with Fuchs. They met with the

      ombudsman for over two hours, but the issues were not resolved. Riverbend

      then filed a petition with the Indiana State Department of Health to

      involuntarily transfer Fuchs’s mother. After a hearing, an administrative law

      judge determined, on November 4, 2015, that Riverbend had met its burden to

      “show that the Facility staff and other Facility residents are endangered by

      Resident A’s POA, Fuchs.” Id. at 11. However, the Facility failed to

      demonstrate that “the Resident’s medical record has been documented, that a

      discharge location has been identified, and that a discharge planning meeting

      has been held as required.” Id. at 12. Consequently, the ALJ denied

      Riverbend’s transfer request. The ALJ, however, suggested an alternative

      option of seeking a workplace violence restraining order under Indiana Code

      Chapter 34-26-6 to protect Riverbend’s employees.


      Court of Appeals of Indiana | Opinion 10A01-1602PO-501 | August 24, 2016     Page 4 of 11
[8]    On December 17, 2015, Riverbend filed petitions for workplace violence

       restraining orders against Fuchs on behalf of four employees, Wheeler, Rice,

       Smith, and Gahl. On December 29, 2015, Fuchs approached another

       employee, Sonja Lewis, as she was taking the trash outside and started

       screaming at her. Wheeler directed Lewis to call the police, and Fuchs was

       asked to leave the facility.


[9]    As of the January 2016 consolidated hearing on the petitions, Fuchs’s mother

       no longer resided at Riverbend. The petition on behalf of Gahl was dismissed

       at the hearing. After the hearing, the trial court granted the workplace violence

       restraining orders against Fuchs on behalf of Wheeler, Rice, and Smith. The

       restraining orders prevented Fuchs from entering Riverbend’s facility, among

       other things. Fuchs now appeals.


                                                    Analysis
[10]   Fuchs argues that the trial court erred by granting Riverbend’s request for the

       workplace violence restraining orders pursuant to Indiana Code Chapter 34-26-

       6. The restraining orders at issue here are similar to orders of protection issued

       under Indiana Code Chapter 34-26-5. In such actions, the petitioner must

       establish the allegations in the petition by a preponderance of the evidence.

       A.S. v. T.H., 920 N.E.2d 803, 806 (Ind. Ct. App. 2010). In determining the

       sufficiency of the evidence on appeal, we neither weigh the evidence nor resolve

       questions of credibility. Id. We look only to the evidence of probative value

       and reasonable inferences that support the trial court’s judgment. Id.


       Court of Appeals of Indiana | Opinion 10A01-1602PO-501 | August 24, 2016   Page 5 of 11
[11]   Indiana Code Section 34-26-6-6 provides that:


               An employer may seek a temporary restraining order or
               injunction on behalf of an employee to prohibit further violence
               or threats of violence by a person if:


               (1) the employee has suffered unlawful violence or a credible
               threat of violence from the person; and


               (2) the unlawful violence has been carried out at the employee’s
               place of work or the credible threat of violence can reasonably be
               construed to be carried out at the employee’s place of work by
               the person.


       A “credible threat of violence” is “a knowing and willful statement or course of

       conduct that does not serve a legitimate purpose and that causes a reasonable

       person to fear for the person’s safety or for the safety of the person’s immediate

       family.” Ind. Code § 34-26-6-2. The term “‘unlawful violence,’ except for

       lawful acts of self-defense or defense of others, means battery under IC 35-42-2

       or stalking under IC 35-45-10.” I.C. § 34-26-6-5.


[12]   The workplace violence restraining order statute, however, may not be

       construed to:

                        (1)      permit a court to issue a temporary restraining order
                                 or an injunction that prohibits speech or any other
                                 activity that is constitutionally protected or
                                 otherwise protected by another law;


                        (2)      prevent either party from representation by private
                                 counsel or from pro se representation; or

       Court of Appeals of Indiana | Opinion 10A01-1602PO-501 | August 24, 2016        Page 6 of 11
                        (3)      expand, diminish, alter, or modify the duty, if any,
                                 of an employer to provide a safe workplace for an
                                 employee or another person.


       I.C. § 34-26-6-15.


[13]   Fuchs first argues that the trial court did not have authority to issue the

       workplace violence restraining orders because Fuchs is his mother’s attorney in

       fact. Fuchs relies on 410 Indiana Administrative Code Section 16.2-5-1.2(cc),

       which provides that “[t]he facility shall not restrict visits from the resident’s

       legal representative . . . except at the request of the resident.” “Legal

       representative” includes an attorney in fact. 410 Ind. Admin. Code § 16.2-1.1-

       34. According to Fuchs, the restraining orders violate Indiana Code Section 34-

       26-6-15(1) because visiting his mother as her legal representative is protected by

       the administrative code.


[14]   Riverbend contends that we need not address the argument because Fuchs’s

       mother no longer lives in the facility, and the argument is moot. Fuchs does

       not dispute that his mother no longer is a resident at the facility. We agree that,

       because Fuchs’s mother is no longer a resident of the facility, the facility is not

       restricting visits from a resident’s attorney in fact, and Fuchs’s argument is

       moot. Consequently, we need not address Fuchs’s contention that a resident’s




       Court of Appeals of Indiana | Opinion 10A01-1602PO-501 | August 24, 2016         Page 7 of 11
       attorney in fact cannot be prevented from visiting the resident by a workplace

       violence restraining order.1


[15]   Next, Fuchs argues that the evidence was insufficient to grant the workplace

       violence restraining orders. Riverbend was required to demonstrate that its

       employees suffered unlawful violence or a credible threat of violence from

       Fuchs. I.C. § 34-26-6-6. In demonstrating that Wheeler, Rice, and Smith

       suffered a credible threat of violence, Riverbend was required to show that

       Fuchs engaged in a knowing and willful statement or course of conduct that did

       not serve a legitimate purpose and that caused a reasonable person to fear for

       the person’s safety or for the safety of the person’s immediate family.2 I.C. § 34-

       26-6-2. According to Fuchs, the incidents were not credible threats of violence

       because his conduct served a legitimate purpose and because the women did

       not reasonably fear for their safety.


[16]   We addressed a similar situation in Torres v. Indiana Family & Soc. Servs. Admin.,

       905 N.E.2d 24 (Ind. Ct. App. 2009). There, Teresa Torres was a member of the

       Indiana Council on Independent Living (“ICOIL”) and regularly attended its




       1
        We further note that Fuchs was a co-attorney in fact, and the workplace violence restraining order did not
       prevent Fuchs’s mother from meeting with her other attorney in fact.
       2
         Fuchs also argues that, with respect to Rice, he did not commit battery when he bumped into her in her
       office. Riverbend was required to demonstrate either that Rice suffered unlawful violence or that she suffered
       a credible threat of violence. I.C. § 34-26-6-6. Riverbend alleged in its petition that Fuchs had made a
       “credible threat of violence” against Rice. Appellant’s App. p. 32. Riverbend did not allege that Rice was
       battered by Fuchs, although it did discuss the incident in its closing argument. We conclude Riverbend
       presented sufficient evidence that Fuchs made a credible threat of violence against Rice. Consequently, we
       need not decide whether Fuchs battered Rice.

       Court of Appeals of Indiana | Opinion 10A01-1602PO-501 | August 24, 2016                         Page 8 of 11
       meetings. Carole Baker was a member of ICOIL and was the only FSSA

       employee permitted to attend. Baker and other ICOIL personnel witnessed

       outbursts from Torres during various ICOIL meetings. Baker and several

       ICOIL members heard Torres yell and curse at various attendees, and she once

       overturned a chair. One member witnessed Torres throw objects and engage in

       verbal outbursts during at least fifteen meetings. During several meetings,

       Baker had to have Capitol Police intervene.


[17]   At a meeting on April 9, 2008, Torres complained that her assistive listening

       device was not working. She threw the hearing device at the table and stated,

       “this piece of sh*t doesn’t work and I’m tired of telling you.” Torres, 905

       N.E.2d at 26. Torres stood up, continued to yell, and began pacing the room

       with clenched fists. At some point, Torres picked up the end of an eight-foot

       table and dropped it to the floor. She then threw or kicked a chair into the table

       to get everyone’s attention. Torres screamed, “damn every one of you to hell”

       and “f* * * every one of you motherfu* * * *g sons of b* * * *es, I hope you all

       die. Do you hear me. I hope you die.” Id. ICOIL personnel adjourned the

       meeting, and Torres jumped from her seat, started to yell again, and

       approached the table. Torres threw the listening device and charged toward

       Baker. Torres then leaned toward Baker and screamed: “And, you. You sit

       there just staring at me and not blinking. At least I don’t have your disability.

       I’m not ugly. I just can’t hear well.” Id. Torres jerked a microphone from the

       table and grabbed a computer out of the hands of ICOIL’s president, who is

       legally blind, and demanded to know who had purchased the equipment.


       Court of Appeals of Indiana | Opinion 10A01-1602PO-501 | August 24, 2016   Page 9 of 11
[18]   The trial court granted the restraining order, and on appeal, we rejected

       Torres’s argument that a reasonable person would not fear her conduct.

       Participants at the meetings testified that they were afraid of Torres, her

       conduct was increasing in intensity and severity, and police intervention was

       necessary on several occasions. Torres also argued that there was no “credible

       threat of violence” because of her mere “protests” or “advocacy” on behalf of

       herself and others. Id. at 30. We noted that “yelling, threatening, using

       profanity, throwing metal devices, knocking over chairs, or charging people,

       constitute behavior far beyond mere protestations or any type of advocacy

       contemplated in the workplace.” Id. at 30. We concluded that the trial court

       properly entered the workplace violence restraining orders.


[19]   As in Torres, we conclude that Fuchs’s conduct qualifies as a credible threat of

       violence with respect to Wheeler, Rice, and Smith. Fuchs repeatedly harassed,

       screamed at, and intimidated Riverbend employees. Although Fuchs may have

       been protesting the care his mother was receiving, his behavior went far beyond

       advocating for his mother. Repeatedly screaming, threatening, cursing, getting

       in employees’ faces, and backing employees into corners does not serve a

       legitimate purpose. Further, Rice and Smith testified that they were scared of

       Fuchs, and Wheeler testified that she was afraid Fuchs was going to initiate a

       physical altercation with her. Given Fuchs’s repeated conduct, a reasonable

       person would fear for his or her safety. Fuchs’s arguments to the contrary are

       merely requests that we reweigh the evidence, which we cannot do. Riverbend

       presented sufficient evidence to demonstrate that the employees suffered


       Court of Appeals of Indiana | Opinion 10A01-1602PO-501 | August 24, 2016   Page 10 of 11
       credible threats of violence from Fuchs at their place of employment. The trial

       court properly entered the workplace violence restraining orders. 3


                                                    Conclusion
[20]   The trial court properly granted the workplace violence restraining orders

       against Fuchs. We affirm.


[21]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       3
         Fuchs also argues that the trial court abused its discretion by admitting written statements of Melissa Gahl
       and Sonia Lewis regarding their interactions with Fuchs. However, we must disregard any error or defect in
       the proceeding that does not affect the substantial rights of the parties. Ind. Trial Rule 61. Riverbend
       presented sufficient evidence to support the granting of the restraining orders on behalf of Wheeler, Rice, and
       Smith without consideration of Gahl’s and Lewis’s statements. Any error in the admission of the statements
       of Gahl and Lewis is harmless.

       Court of Appeals of Indiana | Opinion 10A01-1602PO-501 | August 24, 2016                         Page 11 of 11
