FOR PUBLICATION


ATTORNEY FOR APPELLANT:                                 ATTORNEYS FOR APPELLEE
                                                        REVIEW BOARD:
JAY MEISENHELDER
Employment & Civil Rights Legal Services                GREGORY F. ZOELLER
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        KYLE HUNTER
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana

                               IN THE
                     COURT OF APPEALS OF INDIANA
BRADLEY D. BENARD,                               )
    Appellant-Claimant,                          )
                                                 )                    Oct 08 2013, 10:24 am
            vs.                                  )
                                                 )
REVIEW BOARD OF THE INDIANA                      )
DEPARTMENT OF WORKFORCE                          )
DEVELOPMENT,                                     )     No. 93A02-1303-EX-237
     Statutory Appellee, 1
                                                 )
                                                 )
            and                                  )
                                                 )
ROLLS-ROYCE CORPORATION,                         )
     Appellee-Employer.                          )
                           APPEAL FROM THE REVIEW BOARD
              OF THE DEPARTMENT OF WORKFORCE DEVELOPMENT
                         The Honorable Steven F. Bier, Chairperson
      The Honorable George H. Baker and The Honorable Larry A. Dailey, Members
                                  Case No. 13-R-00518

                                           October 8, 2013

                                OPINION - FOR PUBLICATION

KIRSCH, Judge

        1
         “In every appeal from a decision of the Review Board of the Indiana Department of Workforce
Development, the Board ‘shall be made a party appellee.’” Recker v. Review Bd. of Ind. Dep’t of Workforce
Dev., 958 N.E.2d 1136, 1136 (Ind. 2011) (quoting Ind. Code § 22-4-17-12(b)).
        Bradley D. Benard (“Benard”)2 appeals from an adverse determination of his claim for

unemployment benefits by the Unemployment Insurance Review Board (“Review Board”) of

the Indiana Department of Workforce Development (“the Department”) contending that the

evidence does not support the conclusion that he was discharged for just cause.

        We affirm.

                            FACTS AND PROCEDURAL HISTORY

        Benard worked for Rolls-Royce Corporation (“Rolls-Royce”), an aircraft engine

manufacturer, as a machine repair electrician from September 16, 1996 until the time of his

discharge on August 20, 2012. Rolls-Royce discharged Benard for leaving a threatening

message on a fellow employee’s voicemail.

        More specifically, on the evening of August 16, 2012, Benard left a voicemail

message for N.H., Benard’s team leader. The message was laced with profanity, and

included passages in which Benard, who identified himself in the phone message, called


        2
           The amendment to Administrative Rule 9(G), which incorporates by reference Indiana Code section
22-4-19-6, does not prohibit the use of full names of parties in routine appeals from the Review Board where it
is essential to (1) the resolution of litigation; or (2) the establishment of precedent or development of the law.
Moore v. Review Bd. of Ind. Dep’t of Workforce Dev., 951 N.E.2d 301, 305-06 (Ind. Ct. App. 2011). We also
acknowledge our Supreme Court’s resolution of an issue involving confidentiality of the identities of parties to
such an appeal in Recker, 958 N.E.2d 1136. In Recker, the supreme court noted that Indiana Administrative
Rule 9(G) provides that when information is presented in court proceedings open to the public, such as judicial
proceedings, “the information shall remain excluded from public access only if a party or a person affected by
the release of the information, prior to or contemporaneously with its introduction into evidence, affirmatively
requests that the information remain excluded from public access.” 958 N.E.2d at 1138 n4 (quoting Admin. R
9(G)(1.2)(emphasis added)). Here, the decisions subject to our review were labeled “Confidential Record”
with citations to the Indiana Code. Benard’s Appellant’s Case Summary indicates in the affirmative that the
entire trial court or agency record was sealed or excluded from public access, citing Indiana Administrative
Rule 9(G)(1)(b)(xviii) (“All records of the Department of [W]orkforce Development as declared confidential
by Ind. Code § 22-4-19-6.”). Nonetheless, the cover of the Appellant’s Appendix contains the full name of the
claimant and the full name of the employer. Initials were used in some instances in the briefs. However, in the
absence of an affirmative request for continued confidentiality of the identities of the employee and the
employing entity, we fully identify the parties. Recker, 958 N.E.2d at 1138 n4.

                                                        2
N.H. derogatory names. The message included statements such as “you better pray we never

cross paths in the street,” “that’s not a threat, it’s a promise,” and “I want to bite your throat

out and spit it into your mouth.” Appellant’s App. at ii. N.H., who was “very disturbed by

it,” brought the recording to Rolls-Royce’s attention. Tr. at 6. Benard had grown

increasingly upset over what he perceived to be his supervisor’s decision not to support or

promote one of Benard’s suggestions to management. If the suggestion had been adopted or

accepted for use by Rolls-Royce, Benard could have received an incentive payment.

       After his discharge, Benard filed a claim for unemployment benefits. The claims

deputy for the Department found that Benard was discharged for just cause and denied him

benefits. Benard appealed that denial on November 8, 2012. A hearing was held before an

administrative law judge (“the ALJ”) on January 15, 2013. The ALJ reversed the decision of

the claims deputy, finding Benard eligible for benefits, having not been discharged for just

cause in connection with work. Rolls-Royce appealed the ALJ’s decision to the Review

Board. The Review Board reversed the ALJ’s decision and found that Benard was ineligible

for benefits because he had been discharged for just cause. Benard now appeals. Additional

facts will be supplied.

                              DISCUSSION AND DECISION

       Benard contends that we must reverse the decision of the Review Board on the

following grounds:

       First, because Rolls-Royce failed to meet its burden of proving that B.B. was
       discharged for just cause; second, because the Review Board erred in
       concluding that Rolls-Royce did not have to prove just cause under its rule,
       because B.B.’s actions were, allegedly, “unlawful,” and finally, because even if

                                                3
       B.B. threatened his co-workers, the Review Board did not find, based on
       substantial evidence, that B.B. owed a duty in connection with work to refrain
       from threatening his co-workers.

Appellant’s Br. at 4 (emphasis in original).

       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.
       McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314,
       1318 (Ind. 1998). Ultimate facts are facts that “involve an inference or
       deduction based on the findings of basic fact.” Id. 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. See id. at 1318.

Recker, 958 N.E.2d at 1139. We do not reweigh the evidence or assess the credibility of

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

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

2006). We will reverse the Review Board’s decision only if there is no substantial evidence

to support the Board’s findings. Id.

       Benard was denied unemployment benefits because he was found to have been

discharged for just cause. Indiana Code section 22-4-15-1 provides that a claimant is

ineligible for unemployment benefits if he is discharged for just cause. When a claimant is

denied benefits, he bears the burden of showing error. Russell v. Review Bd. of Ind. Dep’t of

Emp’t & Training Servs, 586 N.E.2d 942, 947 (Ind. Ct. App. 1992). Should the employer

allege that a discharged employee who was seeking unemployment benefits was discharged

for just cause, the employer bears the burden of establishing a prima facie case of showing

just cause. Id. at 947-48. If the employer makes that showing, the burden then shifts to the

                                               4
employee to produce evidence rebutting the employer’s case. Id. at 948. Further, “the

determination of whether an employer had just cause to discharge an employee for purposes

of determining the employee’s eligibility for unemployment compensation benefits is a

question of fact for the [Review] Board to determine in each case on its particular facts; the

[Review] Board’s decision regarding all questions of fact is conclusive and binding on an

appellate tribunal if supported by the evidence.” Id.

       Indiana Code section 22-4-15-1(d)(9) defines “discharge for just cause” as including

but not limited to “any breach of duty in connection with work which is reasonably owed an

employer by an employee.” In Hehr v. Review Board of the Indiana Employment Security

Division, 534 N.E.2d 1122, 1126 (Ind. Ct. App. 1989), we acknowledged the following:

       We realize that the “breach of duty” ground for just discharge is an amorphous
       one, without clearly ascertainable limits or definition, and with few rules
       governing its utilization. As such, it is subject to potential abuse by an
       employer as a convenient ground upon which to justify a discharge, unless the
       Board carefully exercises its discretion and limits its application where
       necessary. 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.

Further, the Review Board is afforded wide latitude to determine issues and hear theories not

heard by the ALJ, and that latitude includes using any applicable statutory definition to find

that a claimant was discharged for just cause. Trigg v. Review Bd. of Ind. Emp’t Sec. Div.,

445 N.E.2d 1010, 1013 (Ind. Ct. App. 1983). Our review, therefore, is limited to whether the



                                              5
Review Board made sufficient findings to support the decision it reached upon the definition

it chose to apply. Id.

       Benard claims that the Review Board’s decision was not supported by sufficient

findings under the definition of “just cause” found in Indiana Code section 22-4-15-1(d)(9).

He argues that Rolls-Royce’s failure to introduce into evidence a copy of “Shop Rule 20”

was fatal to its position, and renders the Review Board’s decision unsupported by sufficient

findings. Rolls-Royce has a rule which prohibits “threatening, intimidating, coercing or

interfering with employees or supervision at any time.” Tr. at 5. Shop Rule 20 was not

introduced as an exhibit in evidence, but was read into the record of the proceedings. The

Labor Relations Representative for Rolls-Royce also stated that the reason behind the policy,

which he claimed was uniformly applied to all employees, was to “maintain order and

discipline so our[sic] and keep a work, work environment free from harassment and

intimidating and threatening.” Id. Benard, however, refused to stipulate to the contents of

the rule.

       Without regard to the evidentiary value of the work rule, we find that the Review

Board reached a conclusion supported by sufficient findings. The record reflects that Rolls-

Royce had an employee incentive program to promote employee suggestions that have

positive effects on its business.    Benard learned that his supervisor, N.H., had not

recommended one of his suggestions to upper management. Upon learning this, Benard

returned to work and “stewed on it all day long.” Id. at 10. Benard became increasingly

more irritated about the fact after he went home and began to drink alcoholic beverages.


                                             6
Benard ultimately made the telephone call to N.H.’s work telephone and left the voicemail

message. Benard claims that he bore no duty to Rolls-Royce to refrain from that behavior.

       In Smithson v. Review Board of Indiana Employment Security Division, 446 N.E.2d

1014, 1016 (Ind. Ct. App. 1983), a case relied upon by the Review Board here, we concluded

that employees owe a duty to their employers to refrain from particularly grievous acts such

as fighting. We quoted from Kilpatrick v. Unemployment Compensation Board of Review,

429 A.2d 133, 134 (Pa. Commw. Ct. 1981), for the following proposition:

       “[P]articipation in a fight during working hours is willful misconduct, whether
       it is in violation of a stated company policy or not, since at a minimum it rises
       to the level of a disregard of justiciably expected standards of behavior and of
       the employer’s interests. Unemployment Compensation Board of Review v.
       Vojtas, 23 Pa. Comwlth. 431, 351 A.2d 700 (1976).”

We reversed the Review Board’s decision in Smithson, however, after finding that the

Review Board had not addressed Smithson’s claims of self-defense.

       The Review Board, here, drew an analogy between the duty found in Smithson, to the

situation where a “reasonable employee would innately know that he would be subject to

discharge for threatening another employee.” Appellant’s App. at iii. We agree and find

further support in Yoldash v. Review Board of Indiana Employment Security Division, 438

N.E.2d 310 (Ind. Ct. App. 1982). In Yoldash, we found that an employee was in violation of

standards of behavior reasonably expected of him by his employer, and thus, discharged for

just cause, by directing abusive and offensive language, such as “drunk,” “suck-ass,”

“communist,” and “fascist,” toward superiors. 438 N.E.2d at 314-15. In the present case,




                                              7
Benard’s abusive and offensive language constituted the criminal offense of intimidation,

and the Review Board correctly concluded as much. Ind. Code § 35-45-2-1.

         Benard, on the other hand, argues that the Review Board’s decision, as was the case in

Smithson, should be reversed, because the Review Board failed to consider his defense, that

of voluntary intoxication, such that he did not possess the mens rea required to place N.H. in

fear of retaliation. First, voluntary intoxication is not a defense and “may not be taken into

consideration in determining the existence of a mental state that is an element of the offense.”

Ind. Code § 31-41-2-5. Thus, Benard’s defense he claims was overlooked, in fact, does not

exist.

         Benard contends that the decision should be reversed because there was no connection

between his actions and his work. Benard correctly asserts that a duty to an employer must

be “reasonably connected to work.” 646 I.A.C. 5-8-6(a)(1). Accordingly, he claims, that in

the absence of evidence that he or N.H. were at work at the time of the telephone call,

Benard’s behavior was not reasonably connected to work. We disagree.

         Benard’s own testimony established that his actions were in direct response to N.H.’s

decision not to support his suggestion, which he had submitted to Roll-Royce’s incentive

program. Furthermore, Benard left the voicemail message on N.H.’s work telephone.

Regardless of the time the call was placed, it is undisputed that the call concerned a matter

connected to work. The record supports the Review Board’s findings that Benard’s actions

were reasonably connected to work, that his discharge was for just cause, and that he was

ineligible to receive unemployment benefits.


                                               8
       In sum, for each of the reasons stated above, we conclude that the Review Board made

sufficient findings to support the decision it reached upon the definition of just cause it chose

to apply.

       Affirmed.

ROBB, C.J., and RILEY, J., concur.




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