Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                         Oct 07 2014, 8:59 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


APPELLANT PRO SE:                                   ATTORNEYS FOR APPELLEE REVIEW
                                                    BOARD OF THE INDIANA DEPARTMENT
LARRY W. DUDLEY                                     OF WORKFORCE DEVELOPMENT:
Indianapolis, Indiana
                                                    GREGORY F. ZOELLER
                                                    Attorney General of Indiana

                                                    KYLE HUNTER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

LARRY W. DUDLEY,                                    )
    Appellant-Petitioner,                           )
                                                    )
               vs.                                  )   No. 93A02-1405-EX-326
                                                    )
REVIEW BOARD OF THE INDIANA                         )
DEPARTMENT OF WORKFORCE                             )
DEVELOPMENT and TC HEARTLAND, LLC,                  )
     Appellee-Respondent.                           )


                       APPEAL FROM THE REVIEW BOARD OF THE
                      DEPARTMENTOF WORKFORCE DEVELOPMENT
                               Steven F. Bier, Chairperson
                                George H. Baker, Member
                                Larry A. Dailey, Member
                                  Cause No. 14-R-673


                                          October 7, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                     Case Summary

       Larry Dudley (“Dudley”) appeals the decision of the Review Board of the Indiana

Department of Workforce Development (“the Board”), concluding that Dudley is disqualified

from receiving unemployment insurance benefits because he was discharged for just cause,

pursuant to Indiana Code Section 22-4-15-1(d), from the employment of TC Heartland, LLC

(“Heartland”). Dudley presents the sole issue of whether the decision is contrary to law

because it lacks evidentiary support. We affirm.

                             Facts and Procedural History

       On September 21, 2012, Dudley began full-time employment as a forklift operator for

Heartland. On June 26, 2013, he signed the Heartland Standards of Conduct Rules and

Regulations Policy.

       On August 12, 2013, Dudley received a written warning for alleged misuse of

company time. On August 14, 2013, he received a written warning for an alleged safety

violation. On September 5, 2013, he received a written warning outlining seven and one-half

occurrences of attendance policy violations. On October 25, 2013, he received another

written warning detailing an additional attendance policy violation. On January 29, 2014, he

received a third written warning with regard to attendance policy violations.

       On February 3, 2014, Dudley’s supervisor observed Dudley in the break room both

before and after he had clocked in and out for lunch. On that date, Dudley received written

notice that his employment was terminated. The notice stated that Dudley had been given

five written warnings and subsequently engaged in “a misuse of company time.” (Tr. 35.)


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Dudley was advised: “Based on the sustained violations of our Standards of Conduct and the

pattern of poor behavior, Heartland has no choice but to terminate your employment as of

02/03/2014.” (Tr. 35.)

         On February 9, 2014, Dudley filed for unemployment insurance benefits but a claims

deputy of the Indiana Department of Workforce Development determined that Dudley was

discharged for good cause and should be denied benefits.            Dudley appealed.      An

administrative hearing was conducted by telephone on March 11, 2014, in which Dudley

participated as well as Hope Shank (“Shank”), Heartland’s Human Resources Generalist.

Kevin Williams (“Williams”), Heartland’s Shipping Supervisor, also testified at the

telephonic hearing. The ALJ affirmed the deputy’s decision and Dudley appealed to the

Board.

         On April 17, 2014, the Board adopted and incorporated the ALJ’s findings and

affirmed the decision of the ALJ. This appeal ensued.

                                  Discussion and Decision

                                    Standard of Review

         The Indiana Unemployment Compensation Act (“the Act”), Indiana Code art. 22-4,

provides that “[a]ny decision of the review board shall be conclusive and binding as to all

questions of fact.” Ind. Code § 22-4-17-12(a). Indiana Code Section 22-4-17-12(f) provides

that when the Board’s decision is challenged as contrary to law, the reviewing court is

presented with a two part inquiry into: (1) “the sufficiency of the facts found to sustain the

decision”; and (2) “the sufficiency of the evidence to sustain the findings of facts.” Under


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this standard, courts are called upon to review (1) determinations of specific or “basic”

underlying facts, (2) conclusions or inferences from those facts, sometimes called “ultimate

facts,” and (3) conclusions of law. McClain v. Review Bd. of Ind. Dep’t of Workforce Dev.,

693 N.E.2d 1314, 1317 (Ind. 1998).

       Review of the Board’s findings of basic fact is subject to a “substantial evidence”

standard of review. Stanrail Corp. v. Review Bd. of Ind. Dep’t of Workforce Dev., 735

N.E.2d 1197, 1202 (Ind. Ct. App. 2000), trans. denied. In this analysis, the appellate court

neither reweighs the evidence nor assesses the credibility of witnesses and considers only the

evidence most favorable to the Board’s findings. Id. We will reverse the decision only if

there is no substantial evidence to support the Board’s findings.         Id.   The Board’s

determinations of ultimate facts involve an inference or a deduction based upon the findings

of basic fact, and the ultimate facts are typically reviewed to ensure that the Board’s

inference is reasonable. Id. We examine the logic of the inference drawn and impose any

applicable rule of law. Id. Some questions of ultimate fact are within the special competence

of the Board, and it is therefore appropriate for us to accord greater deference to the

reasonableness of the Board’s conclusion. Id. However, as to ultimate facts which are not

within the Board’s area of expertise, we are more likely to exercise our own judgment. Id.

       Finally, we review conclusions of law to determine whether the Board correctly

interpreted and applied the law. Id. “In sum, basic facts are reviewed for substantial

evidence, conclusions of law are reviewed for their correctness, and ultimate facts are

reviewed to determine whether the Board’s finding is a reasonable one.” Id.


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                                         Analysis

       The Act provides benefits to persons who are out of work through no fault of their

own. Giovanoni v. Review Bd. of Ind. Dep’t of Workforce Dev., 927 N.E.2d 906, 908 (Ind.

2010). Unemployment insurance benefits are not an unqualified right and may be denied to

claimants who are disqualified by an exception provided in ch. 22-4-15. Id. An individual is

disqualified if discharged for “just cause,” Ind. Code § 22-4-15-1, defined in subsection

(d)(2) to include a “knowing violation of a reasonable and uniformly enforced rule of an

employer.”

       The employer bears the initial burden of establishing that an employee was terminated

for just cause. Coleman v. Review Bd. of Indiana Dept. of Workforce Dev., 905 N.E.2d

1015, 1019 (Ind. Ct. App. 2009). Where violation of an employer’s rule is at issue, the

employer must show not merely that the employee’s conduct violated a known rule, but that

the employee knowingly violated the rule. Id. at 1020. When the employer meets its burden,

the employee must then present evidence to rebut the employer’s prima facie showing. Id.

       Heartland introduced exhibits to show Dudley’s knowledge of Heartland’s rules and

policies. Dudley had signed a copy of Heartland’s Standards of Conduct, which included the

following language:

       The following work conduct infractions are considered serious and generally
       result in corrective action:

       Failure to adhere to starting time, quitting time, or break time policies, or
       wasting time.




                                             5
(Tr. 26.) Shank testified that the rule regarding the misuse of company time was “applicable

to all employees” and that all employees were “subject to discharge for violation of that

rule.” (Tr. 5.) She further testified that Dudley had previously received a written warning for

misusing company time. With regard to the incident of February 3, 2014, she testified:

          [B]asically, on Monday, February 3rd, Larry was observed and witnessed by his
          supervisor in the break room at 1:55 p.m. He was observed again by his
          supervisor at 2:37 p.m. in the break room eating his lunch. Our time keeping
          system reflects that he clocked out for lunch at 2:00 p.m. and he clocked back
          in from lunch at 2:26 p.m., in which he continued to stay in the break room
          after clocking back in, which is a misuse of company time which is in violation
          to [sic] our Standards of Conduct.

(Tr. 5.) Williams testified briefly in corroboration, indicating that he was the person who had

seen Dudley in the break room at “1:55, before the punch out, and then at 2:37 he was still

eating his lunch.” (Tr. 12.)

          Dudley testified that Heartland employees were treated uniformly under the Standards

of Conduct. Concerning the events of February 3, 2014, Dudley testified that he had not

been in the break room at 1:55 and “was on the floor logging in my product at 1:58.” (Tr.

10.) Given the opportunity to make a closing statement, Dudley argued: “Mainly that that’s

not true about none of this, and I did everything that I was supposed to do for the company.”

(Tr. 13.)

          As such, the parties agreed that Heartland had a uniformly enforced rule prohibiting

misuse of company time;1 they disagreed as to whether Dudley was present in the break room




1
    Dudley did not challenge the reasonableness of the rule.

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while clocked in for work. In essence, the ALJ was required to make a determination of

credibility because the witnesses testified in direct contradiction to one another.

       On appeal, Dudley assumes that he was discharged for absenteeism and argues that he

had not accrued sufficient occurrences to warrant termination. He further complains that his

version of events was ignored. To the extent that Dudley argues a lack of evidentiary support

for the ALJ findings because he had not garnered seven attendance occurrences in a rolling

twelve-month period, we observe that the ALJ found that Dudley was discharged for misuse

of company time as opposed to violation of the attendance policy. To the extent that Dudley

asserts that Heartland exaggerated violations and his own explanation of conduct was

ignored, the argument does not comport with our standard of review. We may not reweigh

evidence or reassess witness credibility and we review the Board’s inferences for

reasonableness without reassessing inferences in favor of one or another party. McHugh v.

Review Bd. of Ind. Dept. of Workforce Dev., 842 N.E.2d 436, 440 (Ind. Ct. App. 2006).

       There is substantial evidence of record to support the ALJ’s basic findings of fact that

Dudley violated a reasonable and uniformly enforced company rule prohibiting misuse of

company time and that he did so knowingly. This supports the ultimate finding of fact and

conclusion of law that Dudley was discharged for good cause pursuant to Indiana Code

Section 22-4-15-1(d).

       Affirmed.

NAJAM, J., and PYLE, J., concur.




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