Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
                                                             FILED
                                                           Feb 06 2013, 9:12 am
before any court except for the purpose
of establishing the defense of res                                CLERK
                                                                of the supreme court,
judicata, collateral estoppel, or the law                       court of appeals and
                                                                       tax court

of the case.
ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

JEFFREY S. WRAGE                                 GREGORY F. ZOELLER
Blachly Tabor Bozik & Hartman, LLC               Attorney General of Indiana
Valparaiso, Indiana
                                                 JANINE STECK HUFFMAN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JAMES NEWMAN,                                    )
                                                 )
       Appellant,                                )
                                                 )
              vs.                                )       No. 93A02-1206-EX-466
                                                 )
REVIEW BOARD OF THE INDIANA                      )
DEPARTMENT OF WORKFORCE                          )
DEVELOPMENT and GAGAN LLC,                       )
                                                 )
       Appellees.                                )


                APPEAL FROM THE REVIEW BOARD OF THE INDIANA
                  DEPARTMENT OF WORKFORCE DEVELOPMENT
                      The Honorable Steven F. Bier, Chairperson
                               Cause No. 12-R-1425



                                      February 6, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       James Newman (“Newman”) appeals a decision by the Review Board of the

Indiana Department of Workforce Development (the “Board”) denying his claim for

unemployment benefits following the termination of his employment with Gagan LLC

(“Employer,” and together with the Board, “Appellees”). Newman raises three issues

which we consolidate and restate as whether the Board erred in concluding that Newman

was terminated for just cause. We affirm.

       The relevant facts follow. Employer, which is owned by James Gagan (“James”),

operates a wholesale club where club members have access to manufacturer catalogs.

Laurie Gagan (“Laurie”) worked for Employer as a manager and was a salaried

employee. Newman was initially hired by Employer in May 2010 as an accounting

business analyst. In January 2011, Newman began a leave of absence. The accounting

position held by Newman was eliminated in May 2011. On June 21, 2011, Newman

returned to work for Employer, but in a different position as assistant marketing room

manager as an hourly employee who would assist in the marketing room and perform

outbound calling.    After returning to work, Newman received disciplinary warnings

related to his tardiness in arriving at work, the length of a break, and combative behavior.

On June 28, 2011, Employer terminated Newman’s employment, and Newman applied

for unemployment benefits.

       On August 26, 2011, a claims deputy issued a determination of eligibility finding

that Newman was not discharged for just cause and was eligible for unemployment

benefits. Employer appealed the deputy’s determination. A hearing was initially held

before an administrative law judge (“ALJ”) on November 1, 2011, and the ALJ issued a


                                             2
decision. On December 9, 2011, the Board entered an Order of Remand which stated that

the Board reviewed the file, found that the ALJ handled Newman’s exhibits improperly,

vacated the ALJ’s decision, and remanded for a hearing de novo before a different judge.

       On January 6 and 20, 2012, telephonic hearings were held before a different ALJ

at which the parties appeared and were represented by counsel, provided testimony, and

presented exhibits. On January 20, 2012, the ALJ issued a decision which affirmed the

deputy’s initial August 26, 2011 determination that Newman was not discharged for just

cause. Employer appealed, and on March 12, 2012, the Board entered an Order of

Remand which found that a factual finding of the ALJ that there was no “consensus as to

the number of disciplines that are to be issued prior to termination” was not supported by

the record and that the ALJ failed to mark an exhibit offered by Employer and failed to

indicate on the exhibit list that the document was offered but not admitted. Exhibits at

82. The Board remanded the matter to the ALJ to reconsider its findings and conclusions

after reviewing certain testimony and to modify the exhibit list.

       On April 2, 2012, the ALJ issued a corrected decision which affirmed the deputy’s

initial August 26, 2011 determination.           In concluding that Employer presented

insufficient evidence of just cause for discharge, the April 2, 2012 decision found that

Employer’s unwritten policy is to issue three disciplines and on the third warning to

discharge the employee, that there was no notice to the employee of the written policy of

termination upon a third warning, that there was insufficient evidence that Newman was

placed on notice that his job was in jeopardy based upon a specific number of warnings

prior to discharge, and that there was insufficient evidence that Employer has uniformly


                                             3
enforced violations of the rules utilized to discharge Newman. Employer appealed the

ALJ’s decision to the Board.

       After listening to the recording of the testimony before the ALJ and examining the

documents in the record, the Board issued a decision on May 10, 2012, reversing the

decision of the ALJ and finding that Newman was not entitled to unemployment benefits.

The Board’s conclusions provide in part:

       The Employer’s policies regarding punctuality and conduct are rules,
       because the policies clearly define the employee’s expected conduct –
       reporting to work on time and behaving in a professional manner.
       Furthermore, the rules are capable of uniform enforcement.             The
       Employer’s rules are reasonable, because an employer should reasonably
       expect its employees to arrive on time and to conduct themselves in a
       reasonable, professional manner. [Newman] was aware of the Employer’s
       rules. [Newman] knowingly violated the rules, when he refused to
       relinquish his cell phone and loudly asked, “Are you rescinding your offer?
       Are you rescinding your offer?” on the showroom floor in front of
       customers and coworkers and when he continued to be late to work after
       receiving disciplinary warnings for his tardiness issues. The Employer
       uniformly enforces its policies by terminating all marketing room
       employees who receive three written warnings. [Newman] was aware that
       he could be discharged after three written warnings, as is evidenced by his
       e-mailed comments to [James] that he had received his third strike and
       expected to be terminated the next day. In this instance, [Newman]
       received leniency, because he was allowed to accumulate five written
       warnings during the week he worked in the marketing room before he was
       discharged. The Employer discharged [Newman] for just cause.

Appellant’s Appendix at 4. Newman now appeals the Board’s decision.

       The issue is whether the Board erred in concluding that Newman was discharged

from his employment with Employer for just cause. 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. Recker v.
                                             4
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), reh’g denied). Ultimate facts are facts that involve an inference or deduction

based on the findings of basic fact. Id. (citing McClain, 693 N.E.2d 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. Id. (citing McClain, 693 N.E.2d at 1318).

       In Indiana, an employee is ineligible for unemployment benefits if he or she is

discharged for just cause. Stanrail Corp. v. Review Bd. of Dep’t of Workforce Dev., 735

N.E.2d 1197, 1202 (Ind. Ct. App. 2000), trans. denied; Ind. Code § 22-4-15-1.1 Ind.

Code § 22-4-15-1(d) provides that “[d]ischarge for just cause” is defined to include a

“knowing violation of a reasonable and uniformly enforced rule of an employer . . . .”

       Newman contends that the Board erred in determining that Employer met its

burden of proof that it discharged him for just cause because Newman’s violations were

not knowing, Employer’s rules were not uniformly enforced, and the Board failed to

adequately inquire into the reasonableness of the policy. Newman points to a statement

in the rules distributed to employees providing that “[t]hese are guidelines subject to

management discretion and enforcement and subject to change without notice” and
       1
           Ind. Code § 22-4-15-1(a) provides in part:

       [A]n individual who has voluntarily left the individual’s most recent employment without
       good cause in connection with the work or who was discharged from the individual’s
       most recent employment for just cause is ineligible for waiting period or benefit rights for
       the week in which the disqualifying separation occurred and until the individual has
       earned remuneration in employment equal to or exceeding the weekly benefit amount of
       the individual’s claim in each of eight (8) weeks.

(Emphasis added).
                                                        5
argues that “[b]y its own terms, this statement vests in management discretion to enforce

and change the rules without notice to employees” and that “[t]his discretion resulted in

an unwritten policy of enforcement of which Newman was not aware.” Appellant’s Brief

at 10. Newman argues that “as to the class determination, Employer’s rules fail to

provide a distinction between employees on any metric,” that “[b]y its terms, the rules

and policies must apply equally to all employees for the purposes of a uniform

enforcement analysis,” that Laurie was a member of management, that James testified

that Laurie was exempt from the attendance requirements based upon the sentence

providing management with discretion, and that “[t]his management discretion,

especially considering its prevalence, creates an unwritten and unpublished policy that

distinguishes employee attendance and discipline issues subject to any discretion solely

determined by” James and Laurie. Id. at 11-12.

      Newman further argues that the Board characterized the last two warnings as

leniency, that the pertinent law does not contemplate leniency as an exception to uniform

enforcement, and that rather the leniency is simply proof of the lack of uniform

enforcement. Newman also asserts that the Board failed to adequately inquire into the

reasonableness of the absence policy, that the fact that an employer may use a no-fault

attendance policy does not overcome the statutory mandate to determine whether an

employee’s absenteeism is the result of circumstances beyond the employee’s control

under the totality of the circumstances, that the Board discussed the five written warnings

that Newman received but notes the reason for tardiness for only two of the three

warnings, that the Board failed to make the requisite finding in light of the fact that


                                            6
termination was purportedly based on continuing tardiness, and that should this court fail

to determine that Newman is entitled to compensation this court should remand to the

Board for additional fact-finding with respect to the reasons for tardiness as required by

statute.

       Appellees maintain that the Board’s decision should be affirmed and that Newman

was discharged for just cause. Appellees argue that Employer’s policies were known to

Newman as he received copies of the written policies and procedures when he began his

employment in May 2010 and the specific rules relevant to the marketing room in June

2011. Appellees argue that the sentence in Employer’s policy stating that rules were

subject to management discretion does not preclude a conclusion that the rules could be

uniformly enforced, that Newman was aware of Employer’s three strikes rule which

would result in his termination, and that the Board appropriately concluded that

Newman’s violation of the rules resulted in his termination.        Appellees argue that

Employer properly met its burden that Newman was aware of the policies for which he

was discharged on June 28, 2011, and that his continued tardiness and combative

behavior were properly documented in five written warnings. Appellees further argue

that Employer’s rules were reasonable, that laws govern the timeframe during which

marketing calls can be made, that the record established that Employer’s policies are

necessary because of federal telemarketing guidelines which require calls to be conducted

only during specific periods of the day, and that the Board correctly determined that

Employer’s punctuality and conduct policies were reasonable. Appellees also argue that

the Board correctly found that Employer’s policies and rules were capable of uniform


                                            7
enforcement, that Laurie was in a full-time management position and not a part-time

hourly marketing employee, that Laurie had not violated any policies or rules, and that

the purpose of the uniform enforcement and the unemployment compensation legislation

was met.

       In his reply brief, Newman argues that as a matter of law he could not have

committed a knowing violation since Employer did not publish a policy governing its

exercise of discretion as to disciplinary matters, that the case should be remanded because

the Board failed to sufficiently address the reasonableness of Employer’s policies, and

that the Board did not determine that Employer uniformly enforced its polices.

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

terminated for just cause. Coleman v. Review Bd. of Ind. Dep’t of Workforce Dev., 905

N.E.2d 1015, 1019-1020 (Ind. Ct. App. 2009). To establish a prima facie case for just

cause discharge for violation of an employer rule, the employer has to show that the

claimant: (1) knowingly violated; (2) a reasonable; and (3) uniformly enforced rule. Id.

at 1020; Stanrail, 735 N.E.2d at 1203. To have knowingly violated an employer’s rules,

the employee must: (1) know the rule; and (2) know his conduct violated the rule.

Stanrail, 735 N.E.2d at 1203. If an employer meets this burden, the claimant must

present evidence to rebut the employer’s prima facie showing. Coleman, 905 N.E.2d at

1020; Stanrail, 735 N.E.2d at 1203.

       A uniformly enforced rule is one that is carried out in such a way that all persons

under the same conditions and in the same circumstances are treated alike. Gen. Motors

Corp. v. Review Bd. of Ind. Dep’t of Workforce Dev., 671 N.E.2d 493, 498 (Ind. Ct.


                                            8
App. 1996). “In order to evaluate uniformity one must first define the class of persons

against whom uniformity is measured.” Stanrail, 735 N.E.2d at 1203. This court has

often stated that “[a]n employer’s asserted work rule must be reduced to writing and

introduced into evidence to enable this court to fairly and reasonably review the

determination that an employee was discharged for ‘just cause’ for the knowing violation

of a rule.” Id. at 1205 (citing KBI, Inc. v. Review Bd. of the Ind. Dep’t of Workforce

Dev., 656 N.E.2d 842, 844 (Ind. Ct. App 1995)); see also Doughty v. Review Bd. of

Dep’t of Workforce Dev., 784 N.E.2d 524, 527 (Ind. Ct. App. 2003) (citing Watterson v.

Review Bd. of Ind. Dep’t of Emp’t & Training Serv., 568 N.E.2d 1102, 1105 (Ind. Ct.

App. 1991) (stating that reducing a rule to writing and introducing it into evidence is “the

minimum evidence necessary for the employer to satisfy its burden that it has a rule and

that that rule is reasonable and uniformly enforced”)). The reason for requiring uniform

enforcement of a known and reasonable rule is to give notice to employees about what

punishment they can reasonably anticipate if they violate the rule and to protect

employees against arbitrary enforcement. Coleman, 905 N.E.2d at 1020.

       On appeal from a denial of benefits, the claimant bears the burden of showing

error. McCurdy v. Dep’t of Emp’t and Training Servs., 538 N.E.2d 277, 279 (Ind. Ct.

App. 1989).

       Here, evidence was presented that when Newman began his employment with

Employer in May 2010 he received a Policies and Procedures book and acknowledged

receipt of the book by providing his signature. The evidence shows that each policy or




                                             9
procedure was set forth on a separate page of the book. The policies included the

following:

      Reporting for Schedule
      Employees will report to work at their scheduled time, on time, and will be
      physically and mentally fit to perform their job responsibilities.

                                        *****

      Conduct
      All employees are to be courteous to one another. They shall be tactful in
      the performance of their job responsibilities, shall control their tempers and
      exercise the utmost patience and discretion, shall not engage in
      argumentative discussions, even in the face of extreme provocation. In the
      performance of their job responsibilities, employees shall not use coarse,
      violent, profane or insolent language or gestures, and shall not express any
      prejudice concerning race, religion, politics, national origin, life style or
      similar personal characteristics. Conversation between employees shall not
      be of ill intent such as the spreading of rumors or the defaming of one’s
      character.

                                        *****

      Discipline
      Any violations of the directives of this manual or any violation of other
      department directives or requests will be grounds for initiating disciplinary
      procedures.

                                        *****

      Receiving Complaints
      No employee will harass, verbally abuse, or threaten any other employee or
      member. Complaints from members will be handled with a supportive and
      reassuring tone and with the utmost professionalism. Criticisms or
      directives from management will be accepted without argument in the
      constructive manor [sic] they are given. Directives shall be followed
      immediately or as the manager has requested.

                                        *****

      Disciplinary Action



                                           10
       If a complaint is found to be sustained, disciplinary action will be taken.
       Discipline may be administered by the department managers. Such action
       may include, but will not necessarily be limited to:

             A.     Verbal reprimand
             B.     Written reprimand
             C.     Suspension without pay
             D.     Loss of privileges
             E.     Lowering of a promotion
             F.     Termination of employment

Exhibits at 42-46. Language at the bottom of each page setting forth the policies or

procedures above stated: “These are guidelines subject to management discretion and

enforcement and subject to change without notice.        If you have questions, consult

management.” Id. The page of the book containing Newman’s signature also contained

the following language:

       Signature

       The Policies and Procedures book is designed to provide you with some of
       the policies affecting your employment here at [Employer]. You should
       read and comply with all the provisions of this book.

       This book in no way includes every situation, but should be used as a guide
       for the normal day to day processes. [Employer] reserves the right to
       revise, supplement or rescind any policies or portion of this book from time
       to time as it deems appropriate. Employees will, of course, be notified of
       such changes to the policies as they occur.

       I hereby acknowledge receipt of [Employer] “Policies and Procedures.[”] I
       understand it is part of my job to read, understand and comply with all the
       guidelines set forth in this book.

Id. at 47.

       On June 21, 2011, when Newman returned to work and reported to Employer’s

marketing room, he was provided with a copy of the rules for that area which provided:

                                        RULES
                                           11
       1:   MUST BE ON TIME FOR WORK! THAT MEANS TO HAVE
       YOUR BEVRAGE [sic], GO TO THE BATHROOM AND BE READY
       TO DIAL BY START TIME.

       2:     15 MINUTE BREAK

       3:   ABSOLUTELY NO ONE WILL BE OFF THE PHONE AT PRIME
       TIME 7:00 TO 8:30 NO EXCEPTIONS.

       4:  EVERYONE IS RESPONSIBLE FOR THEIR OWN, SALE ADS,
       BREAK, DESKS AND ATITUDE [sic]

       5:     EVERYONE MUST CONTACT ALL INVENTORIES 4 TIME
       [sic] DAY

       6:    CELL PHONES MUST BE PUT IN JAR BEFORE YOU START
       WORK AND AFTER BREAK UNLESS PRE APPROVED BY LAURIE
       OR [the marketing room manager].

       7:   NO FOOD IN MARKETROOM [sic] (LEAVE ALL LUNCHES IN
       KITCHEN)

       IF ANY RULE IS BROKEN YOU WILL BE SENT HOME!!!!

Id. at 48.

       During his testimony, James testified that Newman was not required to clock in

while he held the accountant position because it was a salaried position and the company

did not clock in salaried employees but that Newman’s new position as a marketing room

manager required him, like all marketing room employees, to clock in. The marketing

room manager testified that the marketing room rules were applied equally, that without

the rules the marketing room did not function at all let alone at optimum ability, and that

the typical progression for employees in the marketing room is that an employee would

receive three warnings and then the employee’s employment would be terminated.



                                            12
Laurie indicated that “the standard progression [is] two warnings and then termination.”

Transcript at 24.

       With respect to the marketing room rules, James testified:

       [W]e pay for lead generation programs. They’re very expensive and we
       consider each lead inventory. The inventory has to be worked within forty-
       eight hours before it starts to go bad or in the sense of I guess our numbers
       reflect that, that anything over forty-eight hours it starts to degrade the
       quality of that lead. People lose interest. Because of the federal calling
       guidelines, we are required to, we are required to only call during a certain
       period of time and there are better times for us to call. So we try to work
       that inventory as efficiently as possible. Every minute that we lose costs us
       money and every time an employee shows up late or uses a cell phone or
       any of the other items on that list impacts their ability to be on the phone
       and, and to efficiently work that position and that lead that we paid for.
       When they violate those rules, it also costs the company money because it
       involves managers’ time. We have to document things. We have to have
       conversations with the employees and it, all of it takes away from
       efficiency in the business, which was hurting at that time, still is.

Id. at 40.

       The evidence shows that Newman received five written warnings from Employer

between June 22 and June 28, 2011, the day Newman’s employment was terminated.

Each of the five written warnings received by Newman were entitled “REPORT OF

EMPLOYEE GUIDANCE/DISCIPLINE,” included the statement “SUPERVISOR’S

REPORT OF CIRCUMSTANCES REQUIRING CORRECTIVE ACTION,” and

included information related to a description of the nature of the problem/situation, a

summary of previous counseling or discipline, any comments given to the employee and

the employee’s response, a description of what the employee needed to do to improve,

whether there was a mutual agreement between the supervisor and the employee, and

whether there was a follow-up counseling session. See Exhibits at 49-59. In addition,


                                            13
each of the five written warnings included a statement in bold at the bottom of the page

which stated: “EMPLOYEE IS HEREBY ADVISED THAT FAILURE TO SHOW

IMPROVEMENT MAY BE GROUNDS FOR DISCIPLINARY ACTION INCLUDING

TERMINATION.” See Exhibits at 49, 51, 54, 56, 59.

       The evidence further shows that Laurie sent an e-mail message to Newman on

June 20, 2011, informing him that he should arrive by 1:25 p.m. on June 21, 2011, so that

he could be shown “how to finger print in” and indicating that training would begin that

day and that they would discuss the policies of the marketing room. Exhibits at 75.

Laurie testified that Newman “walked into the building approximately, well at one, 1:35

‘cause we had been waiting for him since 1:25.” Transcript at 23. Newman testified that

he arrived at 1:37 p.m. Newman was verbally counseled about his tardiness. On June 22,

2011, Newman received a written warning related to his tardiness on June 21, 2011. The

warning indicated that Newman “reported to work 10 minutes late on 6/21/11 without

calling in advance to discuss any issues surrounding his late arrival,” that June 21, 2011,

was Newman’s first day as a member of the marketing room, that Newman “indicated

that his watch must be wrong,” and that “[a]ll employees are expected to report to work

on time and [Newman] shall do so as well.” Exhibits at 49. The following sentence was

handwritten on the discipline form: “After, I set my watch to [the marketing room

manager’s] so that it would not be a problem again.” Id.

       On June 22, 2011, Newman received a second written warning. In describing the

nature of the problem/situation, the warning stated:

       During training on 6/21/11 [Newman] was asked to remove his bag and
       place it in his office and to also place his cellular phone in the storage area
                                             14
      where all marketing room staff place their cellular phones while on the job.
      [Newman] initially refused to do either and became combative with Laurie
      [], raising his voice and repeatedly inquiring: “Are you rescinding my
      offer.” This was done in the club in front of customers and other staff of
      [Employer].

Id. at 55. In describing what the employee needed to do to improve, the warning stated:

“All employees, including [Newman], are expected to: follow procedures and policies of

the company; use an appropriate tone with supervisors and managers; and follow

reasonable direction provided by such managers and supervisors.” Id.

      On June 23, 2011, Newman received a third written warning because he reported

to work one hour late. The warning stated that Newman indicated that he was having car

issues. The warning further stated that all employees are expected to report to work on

time and that Newman shall do so as well and indicated that there was mutual agreement

between the supervisor and Newman to that statement. Newman was sent home for the

day. During his testimony, when asked “[a]nd when [Newman] asked whether that was,

that’s my third strike, termination tomorrow, is that evident [sic] to you[r] knowledge on

his part that the company policy is a three rule violation then termination,” James

answered affirmatively. Transcript at 41.

      On June 28, 2011, Newman received two written warnings. One of the warnings,

in describing the nature of the problem/situation, stated: “On 6/24/11, [Newman] took a

23 minute break. [Newman] has been previously instructed that breaks are to be 15

minutes in duration. Marketing room rules provide: ‘15 minute break.’” Exhibits at 58.

The warning also stated that Newman had “been previously advised that all employees

are expected to report to work on time and follow prescribed rules and policies.” Id.


                                            15
      The other warning received on June 28, 2011, in describing the nature of the

problem/situation, stated: “On 6/25/11, [Newman] logged into his computer ready to

work subsequent to 9:30AM when he was scheduled to be logged in and ready to work.

[Newman] has been previously instructed that he is to be logged into his computer ready

to work at his scheduled start time each day.” Id. at 53. In providing the comments of

employee, the warning form stated that Newman “indicated that the time on the time

clock was incorrect.” Id. In describing what the employee needs to do to improve, the

warning stated that Newman “has been previously advised that all employees are

expected to report to work on time after arriving late to work on two prior occasions.” Id.

Employer discharged Newman on June 28, 2011.

      The record reveals substantial evidence which demonstrates that Employer met its

initial burden of establishing a prima facie case for just cause discharge for the reason

that Newman knowingly violated reasonable and uniformly enforced rules of Employer

related to punctuality or tardiness, the length of employee breaks, and prohibited conduct

related to tactfulness and engaging in argumentative discussions.

      To the extent Newman asserts that the evidence shows that Employer’s policies

were not applied to or enforced against Laurie and that the policies were thus not or

incapable of being uniformly enforced, we note that Newman does not point to the record

to show that she held a position similar to Newman’s position in the marketing room or

that she violated Employer’s attendance or other rules and that the rules were not

enforced. Further, Laurie was a manager and held a salaried position rather than an

hourly position in the marketing room. James testified that he set Laurie’s schedule and


                                            16
that he had not observed any tardiness or attendance violations by Laurie. Testimony

was presented that Newman was not required to clock in while he held the accountant

position because it was a salaried position and the company did not clock in salaried

employees and that Newman’s new position in the marketing room required him, like all

hourly marketing room employees, to clock in. James testified that Laurie was never an

hourly employee of Employer and had never been required to clock in as the hourly

employees were required to do. We cannot say based upon the record that Newman has

demonstrated that Employer’s rules as they were applied and enforced with respect to

Laurie’s employment resulted in the workplace policies of Employer not being uniformly

enforced as applied to hourly employees or that the rules were incapable of being

uniformly enforced.

       To the extent Newman points to the language at the bottom of each page of the

policies in the record which state that the “guidelines [are] subject to management

discretion and enforcement and subject to change without notice” in support of his

assertion that the rules were not uniformly enforced, we note that James testified that

“[t]hese were rules that were posted and signed off on so there was no grey area for the

employee and was to make it easier for them” and so that there would not be “any grey

area in showing up on time, or not using a cell phone when your job is to be calling on

our phone.” Id. at 48. James testified “[t]hese are the types of things that have come up

over the past few years and we post it so that there was clarity for our employees, and it is

governed by . . . the position itself and in the rules book or the employee handbook where

it states that management will give you direction and you’re to follow it or be subject to


                                             17
termination.” Id. Newman does not show that other employees of the marketing room

violated the written policies admitted into evidence and yet were not disciplined. Based

upon the record, we cannot say that Newman has demonstrated that the phrase at the

bottom of the rules pages referring to “management discretion” resulted in the workplace

policies of Employer not being uniformly enforced as applied to hourly employees of the

marketing room or that the rules were incapable of being uniformly enforced.

       Also, to the extent Newman argues that Employer’s attendance or punctuality

policies do not adequately permit a determination of whether an employee’s absenteeism

is the result of circumstances beyond the employee’s control, we note that, while

Newman asserted that his late arrival at work on July 23, 2011 was due to having car

issues, Newman does not point to evidence showing that all of the violations which were

the subject of the written warnings issued by Employer were for reasons beyond his

control. We cannot say that Newman has presented evidence, where Newman as the

claimant bears the burden of showing error on appeal, to rebut Employer’s prima facie

showing that he was discharged for just cause on this basis.

       With respect to Newman’s argument that the Board failed to adequately inquire

into the reasonableness of the policy, we note that James testified that it was important

for employees working in the marketing room to be efficient, that federal rules governed

the periods of time callers could call each lead inventory, that there were better times for

the company to make calls, and that inefficiency in the marketing room costs the business

money. The marketing room manager testified that the marketing room rules were

applied equally and that without the rules the marketing room did not function at all let


                                            18
alone at optimum ability. Also, Laurie testified that the marketing room rules were

necessary because rules governed what times shifts could begin and end, that the leads

were paid leads, that the company only had a certain timeframe that the leads could be

called, that a marketing room employee “not showing up or . . . showing up late causes a

lot of extra work for not only their co-workers, but for the marketing room manager to

redistribute all of the paid leads so that we can call all of those leads . . . ,” and that the

rules promote the efficiency of the business. Id. at 24-25. We cannot say based upon the

evidence before the ALJ and Board that Newman has demonstrated that Employer’s

workplace policies were unreasonable.

       With respect to Newman’s assertion that Employer’s rule was not uniformly

enforced because it did not immediately terminate his employment after he received a

third warning and instead waited until after he received a fifth warning, we note that

testimony was admitted that the marketing room rules were applied equally and that the

typical progression for employees in the marketing room is that an employee would

receive three warnings and then the employee’s employment would be terminated. James

indicated that the marketing room rules were uniformly enforced against all hourly

marketing room employees. Newman indicated that he understood that his employment

would be terminated following the receipt of his third warning in stating “that’s my third

strike, termination tomorrow” to James.        See id. at 31.     We cannot say under the

circumstances presented in the record that the fact that Employer did not terminate

Newman following the third written warning on June 23, 2011, and waited until June 28,




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2011, to terminate Newman’s employment dictates a finding that Employer’s rules were

not uniformly enforced.

         In addition, even if Newman was the first employee to be terminated under the

specific tardiness or other policies set forth in Employer’s book, we note that the Indiana

Supreme Court has stated:

         A policy that has not been the basis for termination of an employee in the
         past may nonetheless be “uniformly enforced” even if only one person is
         the subject of an enforcement action, so long as the purposes underlying
         uniform enforcement are met. Uniform enforcement gives notice to
         employees about what punishment they can reasonably anticipate if they
         violate the rule and it protects employees against arbitrary enforcement.

McClain, 693 N.E.2d at 1319. The purposes underlying uniform enforcement were met

if, as the Board found, Newman knew of the violation, knew or could be fairly charged

with knowledge that it could result in termination, and there was no arbitrary

enforcement.      These factual determinations are supported by substantial evidence

presented at the hearing.     See McClain, 693 N.E.2d at 1319-1320 (noting that the

purposes were met as McClain knew of the violation, knew or could be fairly charged

with knowledge that it could result in termination, and there was no arbitrary

enforcement, and holding that those factual determinations were supported by substantial

evidence).

         Based upon the record, we conclude that there is substantial evidence supporting

the Board’s findings and conclusions that Employer demonstrated that Newman violated

reasonable and uniformly enforced rules of Employer.             Accordingly, Employer

demonstrated just cause for discharging Newman, and we affirm the decision of the

Board.
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      For the foregoing reasons, we affirm the decision of the Board.

      Affirmed.

BAILEY, J., and VAIDIK, J., concur.




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