MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               Mar 21 2018, 9:11 am

regarded as precedent or cited before any                                CLERK
                                                                     Indiana Supreme Court
court except for the purpose of establishing                            Court of Appeals
                                                                          and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
D.S.                                                     Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General

                                                         David E. Corey
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

D.S.,                                                    March 21, 2018
Appellant,                                               Court of Appeals Case No.
                                                         93A02-1711-EX-2600
        v.                                               Appeal from the Indiana
                                                         Department of Workforce
Review Board of the Indiana                              Development
Department of Workforce                                  Steven F. Bier, Chairperson
Development,                                             Lawrence A. Dailey, Member
                                                         Conny Franken, Administrative
Appellee                                                 Law Judge

                                                         Case No. 17-R-1182



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 93A02-1711-EX-2600 | March 21, 2018        Page 1 of 7
                                             Case Summary
[1]   D.S., pro se, appeals the decision of the Review Board of the Indiana

      Department of Workforce Development (“the Review Board”) affirming an

      administrative law judge’s (“ALJ”) determination that D.S. was discharged

      from his employment for just cause and is therefore ineligible for

      unemployment benefits. Concluding that there is substantial evidence to

      support the Review Board’s decision and that the decision is not unreasonable,

      we affirm.


                                 Facts and Procedural History
[2]   D.S.’s employment was terminated in July 2017. D.S. sought unemployment

      benefits and, on August 25, 2017, a claims deputy with the Indiana Department

      of Workforce Development determined that D.S. was not discharged for just

      cause and that D.S. was entitled to benefits. The employer appealed that

      determination. On October 3, 2017, an ALJ conducted a hearing during which

      both parties participated by telephone. That same day, the ALJ issued findings

      of fact and conclusions thereon reversing the claim deputy’s determination

      regarding just cause. On October 6, 2017, D.S. appealed the ALJ’s decision to

      the Review Board. The Review Board adopted and incorporated the ALJ’s

      findings of fact and conclusions thereon, affirming that decision on October 27,

      2017.


[3]   The ALJ’s relevant findings of fact and conclusions thereon adopted by the

      Review Board are as follows:


      Court of Appeals of Indiana | Memorandum Decision 93A02-1711-EX-2600 | March 21, 2018   Page 2 of 7
        [D.S.] began employment on October 23, 2015[,] and was
        discharged for lack of respect for the individual effective July 31,
        2017. [D.S.] worked as the assistant store manager.

        [D.S.] transferred to [Store Manager]’s store in January 2017. In
        February 2017, [D.S.] and the Produce Manager became
        involved in an argument because [D.S.] questioned why he did
        not place the cardboard in the container. The Produce Manager
        had placed the cardboard on the ground. [D.S.] and the Produce
        Manager took their argument to the front office and proceeded to
        argue. The employer discharged the Produce Manger for his
        conduct and issued a warning to [D.S.] because he told the
        Produce Manager “bye” in an argumentative tone.

        In early July 2017[,] [Store Manager] directed [D.S.] to sweep the
        floors since maintenance did not do it the prior evening. Keeping
        the store clean is one of [D.S.]’s duties. It was near the end of
        [D.S]’s shift, and he had plans. [D.S.] left despite [Store
        Manager] calling out to him to return and do the task. [Store
        Manager] issued a warning that [D.S.] acknowledged on-line.

        On July 28, 2017[,] the Market Manager questioned [D.S.] as to
        whether he attempted to stock the shelves with the items that
        were found in the back room. [D.S.] told the Market Manager
        that it was back stock; he had completed unloading and stocking
        the shelves. The Market Manager disagreed. In front of [Store
        Manager] who was present, [D.S.] told the Market Manager that
        he could stock the shelves. The Market Manager directed [D.S.]
        to leave. [D.S.] left pending termination. Later, the employer
        notified [D.S.] that he was discharged from employment for lack
        of respect for individuals.


        ….


        [D.S] chose to argue with a subordinate and his superiors. [D.S.]
        exercised control over the circumstances that resulted in his

Court of Appeals of Indiana | Memorandum Decision 93A02-1711-EX-2600 | March 21, 2018   Page 3 of 7
              discharge. By being disrespectful, [D.S.] undermines morale
              which could impact work output. [D.S.] breached a relevant
              duty. [D.S.] was discharged for just cause. [D.S.] is ineligible for
              benefits under the Act.


      Ex. Vol. 59-64. Accordingly, the Review Board affirmed the ALJ’s decision.

      This pro se appeal ensued.


                                     Discussion and Decision
[4]   The Indiana Unemployment Compensation Act 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). Our standard of review on appeal of the Review

      Board’s decision is threefold: (1) findings of 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)).


[5]   We review the Review Board’s findings of basic facts under a “substantial

      evidence” standard, and we neither reweigh the evidence nor assess its

      credibility. Chrysler Group, LLC v. Review Bd. of Ind. Dep’t of Workforce Dev., 960

      N.E.2d 118, 122 (Ind. 2012). We consider only the evidence most favorable to

      the Review Board’s findings and, absent limited exceptions, treat those findings

      as conclusive and binding. Id. “Such exceptions include if the evidence ‘was

      devoid of probative value,’ or ‘was so proportionally meager as to lead to the

      Court of Appeals of Indiana | Memorandum Decision 93A02-1711-EX-2600 | March 21, 2018   Page 4 of 7
      conviction that the finding does not rest upon a rational basis,’ or the result of

      the proceedings was unduly influenced, fraudulent, or arbitrary.” Id. at 122 n.2

      (quoting McClain, 693 N.E.2d at 1317 n.2).


[6]   Ultimate facts are reviewed to ensure that the Review Board has drawn a

      reasonable inference in light of its findings on the basic, underlying facts. Id.

      We examine the logic of the inference drawn and impose any rules of law that

      may drive the result. Id. at 123. Finally, we are not bound by the Review

      Board’s interpretation of the law and we determine de novo whether the

      Review Board correctly interpreted and applied the applicable law. S.S. v.

      Review Bd. of Ind. Dep't of Workforce Dev., 941 N.E.2d 550, 554 (Ind. Ct. App.

      2011).


[7]   Pursuant to Indiana Code Section 22-4-15-1(a), an individual is disqualified

      from receiving unemployment benefits if he or she is discharged for just cause

      by the most recent employer. “Discharge for just cause” includes “any breach of

      duty in connection with work which is reasonably owed an employer by an

      employee.” Ind. Code § 22-4-15-1(d)(9). An applicant’s entitlement to

      unemployment benefits is determined based on the information that is available

      without regard to a burden of proof. Ind. Code § 22-4-1-2(c). “There is no

      presumption of entitlement or nonentitlement to benefits. There is no equitable

      or common law allowance for or denial of unemployment benefits.” Ind. Code

      § 22-4-1-2(d).




      Court of Appeals of Indiana | Memorandum Decision 93A02-1711-EX-2600 | March 21, 2018   Page 5 of 7
[8]   Here, there is substantial evidence to support the Review Board’s basic finding

      that D.S. behaved disrespectfully on multiple occasions and that such behavior

      constituted a breach of duty in connection with work which he reasonably

      owed to his employer. D.S. does not dispute his employer’s accounts of his

      behavior toward both subordinates and superiors, or the fact that he was

      discharged for that reason. He simply offers explanations and justifications for

      his behavior and argues that his actions were “misinterpreted as disrespect.”

      Appellant’s Br. at 8.1 This is essentially a request for us to reweigh the evidence

      and reassess witness credibility in his favor, a task not within our prerogative on

      appeal. See Chrysler Group, 960 N.E.2d at 122. Under the circumstances

      presented, we cannot say that the evidence supporting the Review Board’s

      finding was devoid of probative value or was so proportionally meager as to

      convince us that the finding does not rest upon a rational basis. Id. at 122 n.2.


[9]   Moreover, the Review Board’s ultimate finding of fact and conclusion that D.S.

      was discharged for just cause was reasonable in light of its findings on the basic,

      underlying facts. D.S. does not challenge the reasonableness of this ultimate




      1
        We note that D.S. is proceeding pro se. Our supreme court has explained that “a pro se litigant is held to
      the same standards as a trained attorney and is afforded no inherent leniency simply by virtue of being self-
      represented.” In re G.P., 4 N.E.3d 1158, 1164 (Ind. 2014). Accordingly, we will not “indulge in any
      benevolent presumption” on behalf of a pro se litigant, nor will we “waive any rule for the orderly and proper
      conduct of his appeal.” Foley v. Mannor, 844 N.E.2d 494, 496 n.1 (Ind. Ct. App. 2006). D.S. failed to file an
      appendix, and the arguments in his brief are written in a stream-of-consciousness fashion and are difficult to
      discern. He inappropriately refers to evidence outside the record below, and his briefs contain no citation to
      case law or the appellate record. Although we could have deemed his arguments waived for lack of cogent
      argument, see Ind. Appellate Rule 46(A)(8) (requiring contentions in appellant’s brief be supported by cogent
      reasoning and citations to relevant authority), we have instead done our best to address the merits of this
      appeal.

      Court of Appeals of Indiana | Memorandum Decision 93A02-1711-EX-2600 | March 21, 2018              Page 6 of 7
       finding based on the underlying facts; he simply invites us to look to the

       “totality” of the facts and “reweigh the evidence provided.” Appellant’s Reply

       Br. at 4. Again, we must decline. In sum, there is substantial evidence in the

       record to support the basic finding that D.S. behaved disrespectfully. This

       supports the ultimate finding of fact and conclusion that D.S. was discharged

       for just cause pursuant to Indiana Code Section 22-4-15-l(d)(9). The decision of

       the Review Board is affirmed.


[10]   Affirmed.


       Robb, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 93A02-1711-EX-2600 | March 21, 2018   Page 7 of 7
