MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              Dec 31 2015, 9:07 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher R. Erickson                                  Gregory F. Zoeller
SPANGLER, JENNINGS & DOUGHERTY, P.C.                     Attorney General of Indiana
Merrillville, Indiana
                                                         Andrea E. Rahman
                                                         Deputy Attorney General



                                           IN THE
     COURT OF APPEALS OF INDIANA

CM Sunshine Home Healthcare,                             December 31, 2015
Appellant,                                               Court of Appeals Case No.
                                                         93A02-1505-EX-397
        v.                                               Appeal from the Review Board of
                                                         the Department of Workforce
Review Board of the Indiana                              Development
Department of Workforce                                  Steven F. Bier, Chairperson
Development and Kimberly                                 George H. Baker, Member
McClam,                                                  Lawrence A. Dailey, Member
Appellees
                                                         Case No.
                                                         15-RB-747



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-397 | December 31, 2015   Page 1 of 10
                                                Case Summary

[1]   CM Sunshine Home Healthcare (Employer) appeals from the grant of

      unemployment insurance benefits to Kimberly McClam (Claimant) after

      Claimant was discharged from employment. The Review Board of the Indiana

      Department of Workforce Development (the Review Board) concluded that

      Claimant was terminated without just cause.


[2]   We affirm.


                                        Facts & Procedural History


[3]   Claimant began working for Employer in February 2014 as an administrative

      assistant. She was an outstanding employee and was quickly promoted to

      assistant administrator. Employer hired a secretary to handle entry-level work

      formerly done by Claimant. The new secretary was a relative of Employer’s

      owners.


[4]   In September 2014, Claimant’s live-in boyfriend suffered an aneurysm and was

      hospitalized for an extended period. Claimant continued to work throughout

      her boyfriend’s serious illness but did attend to some minimal personal business

      during work. Claimant received a fax while at work from her boyfriend’s

      doctor regarding disability. Employer found the form and gave it to Claimant.


      Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-397 | December 31, 2015   Page 2 of 10
      At some point, Claimant also received a call from her boyfriend’s doctor

      regarding the outcome of a procedure. The call came during an office meeting,

      and Claimant had to excuse herself. Employer offered Claimant time off to

      deal with the situation, but aside from one day when her boyfriend underwent

      surgery, Claimant declined the offer because she needed to work.


[5]   Between September and October, Employer went through Claimant’s desk.

      Employer considered the desk unorganized and found several items that

      appeared to be overdue for processing. Claimant explained at the hearing that

      she was waiting for information from nursing staff to complete these items.

      Claimant typically completed items within a few days of receiving them,

      although a few documents were nearly sixty days old.


[6]   On October 17, 2014, Employer met with Claimant to discuss her performance.

      Employer reminded Claimant of the importance of the timeliness of documents

      and told her not to conduct personal business while at work. Claimant did not

      conduct any further personal business on company time.


[7]   Thereafter, on November 20, 2014, Employer asked Claimant about some

      overdue therapy for a patient. This conversation included the nurse responsible

      for the patient. The nurse had yet to provide necessary paperwork to Claimant

      in order to process the therapy. This resulted in a delay of approximately seven

      to ten days for this patient.


[8]   As a result of the delay, Employer again went through Claimant’s desk and

      found many duplicates of documents and old documents. Claimant explained

      Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-397 | December 31, 2015   Page 3 of 10
       at the hearing that the documents were organized in a way that she understood

       and any overdue documents had been received from others that week and

       would have been processed by the end of the week. Employer, however, did

       not give her an opportunity to explain at the time why there were duplicates or

       which items were waiting on action from another employee.


[9]    Employer discharged Claimant on November 21, 2014, sending a termination

       letter about a month later. Claimant applied for unemployment benefits, which

       were initially denied by a claims deputy. Claimant appealed and a hearing was

       held before the Administrative Law Judge (the ALJ) on February 5, 2015. The

       ALJ reversed the initial determination and concluded that Claimant was not

       terminated for just cause. Employer appealed to the Review Board.


[10]   On March 2, 2015, the Review Board vacated the ALJ’s decision and remanded

       with instructions for the ALJ to include appropriate findings of fact and

       conclusions of law. On remand, the ALJ reviewed the evidence, without

       reopening the case, and issued a new decision on March 27, 2015. Once again,

       the ALJ found that Employer did not discharge Claimant for just cause. On

       April 17, 2015, the Review Board affirmed the ALJ’s decision and adopted the

       ALJ’s findings and conclusions. Employer now appeals. Additional facts will

       be provided below as necessary.


                                           Discussion & Decision

[11]   The Indiana Unemployment Compensation Act provides that any decision of

       the Review Board shall be conclusive and binding as to all questions of fact.

       Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-397 | December 31, 2015   Page 4 of 10
       Ind. Code § 22-4-17-12(a). “The standard of review on appeal of a decision of

       the [Review] 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). In the analysis of the Review Board’s findings of basic

       fact, we neither reweigh the evidence nor judge witness credibility; rather, we

       consider only the evidence most favorable to the Review Board’s findings.

       McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314, 1317 (Ind.

       1998).


[12]   In Indiana, an individual is ineligible to receive unemployment benefits if he or

       she was discharged for “just cause.” Ind. Code § 22-4-15-1(a). Discharge for

       just cause is defined, in pertinent part, as “any breach of duty in connection

       with work which is reasonably owed an employer by an employee.” I.C. § 22-4-

       15-1(d)(9). When applying a breach of duty analysis in this context:

                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.


[13]   Recker, 958 N.E.2d at 1140 (quoting Hehr v. Review Bd. of Ind. Employment Sec.

       Div., 534 N.E.2d 1122, 1126 (Ind. Ct. App. 1989)). Whether an employee

       breaches a duty owed to the employer “is a very fact-sensitive determination

       Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-397 | December 31, 2015   Page 5 of 10
       which must be made on a case by case basis.” Hehr, 534 N .E.2d at 1127. See

       also P.K.E. v. Review Bd. of Ind. Dep’t. of Workforce Dev., 942 N.E.2d 125, 132

       (Ind. Ct. App. 2011) (“duties reasonably owed to the employer by the employee

       may vary considerably depending on the circumstances”), trans. denied.


[14]   The Indiana Department of Workforce Development has promulgated a

       regulation interpreting the term “breach of duty” as used in I.C. § 22-4-15-

       1(d)(9). The regulation presents several non-exclusive examples of “breach of

       duty reasonably owed to an employer”, including that the claimant: “damaged

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

       perform the job”, “willfully failed to meet the employer’s reasonable

       expectation”, and “showed carelessness or negligence to such a degree, or with

       such recurrence, as to cause damage to the employer’s interests.” 646 Ind.

       Admin. Code 5-8-6(b)(1), (2), (7).


[15]   After setting out its findings of fact and the pertinent law, the ALJ concluded in

       relevant part:

               Claimant owed Employer a reasonable duty to meet her
               Employer’s reasonable expectation for job performance.
               Employer identified two main areas where Employer was
               unsatisfied with Claimant’s work performance. The first was
               completing [personal] business on company time. The second
               was failing to complete her responsibilities in a timely manner.


               The [ALJ] concludes that Claimant did not willfully fail to meet
               Employer’s reasonable expectation by completing personal
               business on company time. Claimant did perform a minimal
               amount of personal business while at work. Claimant’s

       Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-397 | December 31, 2015   Page 6 of 10
        boyfriend suffered a life-threatening illness. Claimant at times
        needed to address the issue while at work. This included
        receiving a minimal amount of faxes and taking a call from her
        boyfriend’s doctor concerning his surgery. Claimant kept
        personal business to a minimum and only conducted the business
        that was critical to the perilous condition of her boyfriend. When
        [Employer] told Claimant to stop conducting the business at
        work, Claimant stopped.


        The second noted deficiency in Claimant’s performance was her
        timeliness of completing documents. Employer alleged that
        Claimant’s desk was unorganized and that she had many
        duplicate items. Employer went through Claimant’s desk when
        Claimant was not there in September or October. Claimant did
        admit she had multiple copies of items. There were also items
        waiting on a response from Claimant’s coworkers. Employer
        went through the desk when Claimant was not present, and thus
        Claimant did not have the opportunity to explain why there were
        duplicates or items waiting on a response from others.


        Employer pointed to a specific example that Claimant caused a
        7-10 day delay in therapy for a particular patient. [A] nurse
        rather than Claimant was responsible for ordering the therapy.
        The other nurse did not provide Claimant with the order or any
        indication that Claimant should have ordered therapy for this
        patient. This was beyond Claimant’s control.


        Claimant did her best to meet Employer’s expectation. Claimant
        committed no volitional act against Employer. When any
        deficiency was brought to Claimant’s attention, she did her best
        to correct it. Overdue paperwork in the Claimant’s desk was
        waiting for action from other employees. The failure of other
        coworkers to provide Claimant with timely action was beyond
        Claimant’s control. The [ALJ] concludes that Claimant did not
        willfully fail to meet Employer’s reasonable expectation.


Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-397 | December 31, 2015   Page 7 of 10
               Employer discharged Claimant but not for just cause as defined
               by Ind. Code 22-4-15-1(d)(9) and 646 Ind. Admin. Code 5-8-6.


       Appellant’s Appendix at 7-8.


[16]   Employer initially argues on appeal that the ALJ erred by applying only 646

       I.A.C. 5-8-6(b)(2) to determine whether Claimant breached a duty reasonably

       owed to Employer. Specifically, Employer contends that the ALJ should have

       also considered whether Claimant’s performance of personal tasks on company

       time damaged Employer’s trust and confidence in her ability to effectively

       perform her job and whether her lack of organization and multiple unprocessed

       referral orders showed carelessness or negligence to such a degree, or with such

       recurrence, as to damage Employer’s interests.

[17]   Although the record reveals that Employer filed a twenty-three-page appeal

       with the Review Board, Employer has not provided that document on appeal.

       Accordingly, we cannot determine whether Employer raised these alternative

       grounds for finding a breach of duty (646 I.A.C. 5-8-6(b)(1) and (7)) below.


[18]   Further, even though the ALJ focused its attention on 646 I.A.C. 5-8-6(b)(2), it

       is evident that the ALJ did not agree with Employer’s assessment of Claimant’s

       job performance. The ALJ expressly found that Claimant performed only a

       minimal amount of personal business while at work and stopped doing so once

       Employer addressed the issue. Such a finding is clearly contrary to Employer’s

       assertion that this conduct damaged Employer’s trust and confidence in her

       ability to effectively perform her job.


       Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-397 | December 31, 2015   Page 8 of 10
[19]   With respect to the allegations regarding Claimant’s organizational skills and

       untimely processing of referral orders, the ALJ determined that Employer never

       provided Claimant with an opportunity to explain her organization system or

       why there appeared to be unprocessed orders. Moreover, to the extent there

       were delays in processing orders for therapy, the ALJ concluded that this was

       due to the failure of other coworkers to provide Claimant with necessary orders

       or information. These delays, according to the ALJ, were beyond Claimant’s

       control. Thus, our review of the ALJ’s findings and conclusions, which were

       expressly adopted by the Review Board, indicates that Claimant was not

       careless or negligent to such a degree, or with such recurrence, as to damage

       Employer’s interests.

[20]   In addition to the argument based on 646 I.A.C. 5-8-6(b), Employer contends

       that the ALJ’s decision ignored competent evidence. Employer asserts, “the

       ALJ appears to support his decision solely on the Claimant’s testimony without

       addressing the Employer’s admitted exhibits and testimony contrary to

       Claimant’s.” Appellant’s Brief at 8. Specifically, Employer directs us to evidence

       indicating that Claimant conducted more than a minimal amount of personal

       business while working and continued to do so after being warned by Employer.

       Employer also notes contrary testimony regarding the cause of a delayed

       referral order and evidence that Claimant failed to properly train the new

       secretary.


[21]   We reject Employer’s invitation to reweigh the evidence and judge witness

       credibility. See McClain, 693 N.E.2d at 1317. Employer and Claimant, the only

       Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-397 | December 31, 2015   Page 9 of 10
       witnesses to testify, presented vastly conflicting evidence. The ALJ did not

       ignore competent evidence. It simply believed Claimant, which was within the

       ALJ’s discretion.


[22]   Decision affirmed.


       Robb, J., and Barnes, J., concur.




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