MEMORANDUM DECISION
                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),                  Feb 14 2017, 10:36 am
this Memorandum Decision shall not be                        CLERK
regarded as precedent or cited before any                Indiana Supreme Court
                                                            Court of Appeals
                                                              and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                        ATTORNEYS FOR APPELLEES
Kathrine J. Rybak                              Curtis T. Hill, Jr.
Evansville, Indiana                            Attorney General of Indiana
Adam E. Taylor                                 Andrea E. Rahman
South Bend, Indiana                            Deputy Attorney General
                                               Indianapolis, Indiana



                                    IN THE
    COURT OF APPEALS OF INDIANA

J.G.,                                          February 14, 2017
Appellant-Petitioner,                          Court of Appeals Case No.
                                               93A02-1607-EX-1579
        v.                                     Appeal from the Review Board of
                                               the Indiana Department of
Review Board of the Indiana                    Workforce Development
Department of Workforce                        The Honorable Steven F. Bier,
Development and Morgan                         Chairperson
Graham, Inc.,                                  Case No. 16-R-797
Appellee-Respondent.




Riley, Judge.
                               STATEMENT OF THE CASE
[1]   Appellant-Petitioner, J.G., appeals the decision reached by Appellee-

      Respondent, the Review Board of the Indiana Department of Workforce

      Development (Review Board), that J.G. was discharged for just cause and

      therefore should be denied unemployment compensation benefits.


[2]   We affirm.


                                          ISSUE
[3]   J.G. raises four issues which we consolidate and restate as the following single

      issue: Whether there is sufficient evidence to support the Review Board’s

      decision that J.G. was discharged for just cause because she knowingly violated

      three reasonable and uniformly enforced workplace rules by failing to supervise

      a client at all times.


                    FACTS AND PROCEDURAL HISTORY
[4]   J.G. was employed as a caregiver by Morgan Graham, Inc. d/b/a/Around the

      Clock Care (Employer) from April 2013 until she was terminated on December

      9, 2015. Employer provides non-medical attendant care to individuals in

      facilities and in their homes. On December 6, 2015, J.G. was working in the

      home of a client who required a specific protocol to protect her and her

      husband, who was also residing in the residence. The client’s husband suffered

      from chronic obstructive pulmonary disease and used oxygen. A hospice nurse,

      employed by a different agency, provided care to him; the hospice nurse did not

      have any healthcare responsibilities towards Employer’s client. Employer’s
      client suffered from dementia and had a smoking habit. Due to the client’s

      husband’s oxygen tank, a strict protocol was in place that placed client under

      constant supervision. The client was not restricted in her ability to move about

      the home.


[5]   That day, there was little food in the house. Client’s husband requested J.G. to

      pick up some food at a specific restaurant. The hospice nurse, who was at the

      residence to provide care to client’s husband, agreed to remain in the house

      until J.G. returned. J.G. did not notify Employer prior to leaving the house.

      When J.G. returned to the home after approximately twenty minutes, the

      hospice nurse was on the phone attempting to fill a prescription order for

      client’s husband.


[6]   Employer discharged J.G., citing a violation of the following workplace rules

      included in the employee handbook:

            The Company has determined that the following (although not
            exhaustive) are, by their very nature activities so harmful to the
            successful operation of any business that involvement may be
            grounds for immediate dismissal, disciplinary action and/or legal
            consequences to remedy:


            1. Negligence, carelessness, or acts which result, or could result
            in damage to Around the Clock Care or client property or
            equipment, or defying the authority of supervision, or other
            displays of conduct that harm or injure operations or jeopardize
            the successful operation of Around the Clock Care.


            ****
              10. Refusal or failure to perform work assigned, or refusal or
              failure to follow the direction or instructions of supervisors,
              unless such assignment is later established to have been a
              violation of Around the Clock Care policy, or constitutes a safety
              hazard.


              ****


              14. Being absent from work area without authorization, loitering
              in work areas or departments, distracting or interfering with
              another employee’s work duties.


              ****


              19. Any other action deemed not in the best interest of the
              Company.


      (Appellant’s App. Vol. II, pp. 9, 10, 11). J.G. was aware of these rules of

      conduct as she had received a copy of the employee handbook on April 23,

      2013.


[7]   On December 21, 2015, J.G. filed her claim for unemployment benefits. On

      January 28, 2016, a claims deputy with the Department of Workforce

      Development concluded that J.G. was discharged for just cause and was not

      entitled to unemployment benefits. On February 5, 2016, J.G. appealed this

      decision.


[8]   On May 9, 2016, an Administrative Law Judge (ALJ) conducted a hearing

      regarding J.G.’s appeal. The ALJ affirmed the deputy’s determination that J.G.

      was discharged with just cause for knowingly violating reasonable and
       uniformly enforced workplace rules numbers 1, 10, and 14. On May 25, 2016,

       J.G. appealed the ALJ’s decision to the Review Board. After reviewing the

       ALJ’s findings of fact and conclusions of law, the Review Board affirmed the

       ALJ’s decision that J.G. was discharged for just cause:

             [J.G.] demonstrated significant poor judgment amounting to
             carelessness or negligence in leaving the client in the home with
             the belief that a non-employee would perform [J.G.’s]
             supervisory responsibilities for the client. It was not reasonable
             for [J.G.] to expect or believe that the hospice nurse would be
             able to provide constant supervision of the [] client if she was
             distracted on the telephone attempting to get prescriptions filled,
             [J.G.] did not act in a reasonable manner when she failed to
             make any attempt to contact the [E]mployer before leaving the
             client without direct supervision by a company employee for
             approximately 20 minutes.


       (Appellant’s App. Vol. II, p. 8).


[9]    J.G. now appeals. Additional facts will be provided as necessary.


                          DISCUSSION AND DECISION
[10]   J.G. contends that she did not knowingly violate her Employer’s workplace

       rules and therefore could not be discharged with good cause. The Indiana

       Unemployment Compensation Act provides that any decision of the Review

       Board shall be conclusive and binding as to all questions of fact. Ind. Code §

       22-4-17-12(a). When the Review Board’s decision is challenged as being

       contrary to law, our review is limited to a two-part inquiry: “(1) the sufficiency

       of the facts found to sustain the decision; and (2) the sufficiency of the evidence
       to sustain the findings of fact.” Albright v. Review Bd. of Ind. Dep’t of Workforce

       Dev., 994 N.E.2d 745, 749 (Ind. Ct. App. 2013). Applying this standard, we

       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.” Id. at 750. The Review Board’s findings of basic fact are

       subject to a substantial evidence standard of review. Id. The Review Board’s

       conclusions regarding ultimate facts involve an inference or deduction based on

       the findings of basic fact, and we typically review them to ensure that the

       Review Board’s inference is “reasonable” or “reasonable in light of its

       findings.” Id. We review the Review Board’s conclusions of law using a de

       novo standard. Id. In conducting our analysis, we neither reweigh evidence nor

       judge witness credibility; rather, we consider only the evidence most favorable

       to the Review Board’s findings. Id.


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

       discharged for just cause. I.C. § 22-4-15-1. “Discharge for just cause” is

       defined to include “a knowing violation of a reasonable and uniformly enforced

       rule of an employer[.]” I.C. § 22-4-15-1(d). “An applicant’s entitlement to

       unemployment benefits is determined based on the information that is available

       without regard to a burden of proof.” I.C. § 22-1-1-2(c). “There is no

       presumption of entitlement or nonentitlement to unemployment benefits.” I.C.

       § 22-4-1-2(d). Although the employer has no statutory burden of proof, case

       law has divided Indiana Code section 22-4-15-1(d)(2) into three main parts “to

       show that the claimant: (1) knowingly violated; (2) a reasonable; and (3)
       uniformly enforced rule.” City of Carmel v. Review Bd. of Ind. Dep’t of Workforce

       Dev., 970 N.E.2d 239, 245 (Ind. Ct. App. 2014). 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 v.

       Review Bd. of Ind. Dep’t of Workforce Dev., 905 N.E.2d 1015, 1020 (Ind. Ct. App.

       2009). We will address each component in turn.


                                       I. Reasonable Rules


[12]   The ALJ and the Review Board concluded that J.G. violated workplace rules 1,

       10, and 14 of the employee handbook. The determination of whether a

       workplace rule is reasonable is a question of ultimate fact and deference should

       be given to the Review Board’s conclusion. See McClain v. Review Bd. of Ind.

       Dep’t of Workforce Dev., 693 N.E.2d 1314, 1318 (Ind. 1998) (“An example of

       such an ultimate fact would be whether the workplace rule is reasonable”). A

       work rule is reasonable “if it protects the interests of the employees as well as

       those of the employer.” Russell v. Review Bd. of Ind. Dep’t of Employment &

       Training Servs, 586 N.E.2d 942, 949 (Ind. Ct. App. 1992).


[13]   With respect to the reasonableness of the workplace rules, J.G. only challenges

       workplace rule 14, which states that “[b]eing absent from work area without

       authorization, loitering in work areas or departments, distracting or interfering

       with another employee’s work duties” may be grounds for immediate dismissal.

       (Appellant’s App. Vol. II, p. 10). The ALJ, as affirmed by the Review Board,
       concluded that “the [E]mployer’s rules were reasonable in so far as an employer

       has a legitimate business interest in preventing carelessness or negligent acts by

       employees, insuring that employees perform their assigned work and that

       employees remain in their assigned work area unless authorized to leave.”

       (Appellant’s App. Vol. II, p. 8). J.G. now contends that the Employer’s

       interpretation and application of rule 14, in light of the Employer’s instruction

       to maintain constant supervision of the client, is unreasonable. Specifically, she

       asserts that “a rule prohibiting J.G. from running a client-requested errand for

       the client’s welfare is unreasonable. Such a rule does not make sense

       considering Employer’s business needs.” (Appellant’s Br. p. 19).


[14]   Employer is in the business of assigning caregivers to provide non-medical

       attendant care. The specific instructions to be followed by each caregiver will

       therefore depend on the unique needs of the client. Here, the record reflects

       that J.G. had been instructed by Employer’s client care instruction coordinator

       to constantly supervise client because of a safety concern. Both client and her

       husband wanted to smoke in the house although client’s husband was required

       to use liquid oxygen due to a health condition. As testified to by Employer:

       “[A]nyone who is aware of how liquid oxygen and a lighter and fire relate to

       each other, you know that that is a perilous situation.” (Transcript p. 18).

       Because client suffered from dementia, Employer had devised specific

       “protocols” to maintain the safety of everyone in the residence. (Tr. p. 18).

       One of these protocols was the constant supervision of client by the assigned

       caregiver.
[15]   The record supports, and J.G. admitted during testimony, that she left the

       house to pick up food for the client and the client’s husband. However,

       contrary to J.G.’s argument, on December 6, 2015, J.G. did not run a “client-

       requested errand.” (Appellant’s Br. p. 19). Our review of the record indicates

       that it was client’s husband—not client herself—that requested J.G. to pick up

       food from a local restaurant. Moreover, Employer testified that the company

       employed “a hired helper who, if we needed anything outside of the home, and

       to this day, it’s still policy, we can call her and she will go pick up groceries,

       food. She’ll even – would take people on assist with errands running, that type

       of thing.” (Tr. p. 19). Even if a caregiver had to leave the home, the Employer

       required the caregiver “to contact the office and stipulate to us why they feel

       they need to leave and they know they are given direct instructions that you

       never leave a shift and you never leave a client alone until you have somebody

       to relieve you. . . . They don’t do it without notification to the office, nor in this

       case, was it necessary for her to leave.” (Tr. p. 17). Even though a hospice

       nurse was in the house, the hospice nurse was not employed by Employer, nor

       did she have any supervisory duties over client. J.G. never contacted the office

       or the hired helper prior to leaving the client and the residence.


[16]   Accordingly, due to client’s unique circumstances and in light of Employer’s

       business, it was reasonable to prohibit J.G. from “[b]eing absent from work area

       without authorization.” (Appellant’s App. Vol. II, p. 10)


                                     II. Uniform Enforcement
[17]   The ALJ, as affirmed by the Review Board, concluded that

             the [E]mployer had policies which represented rules in so far as
             they placed employees on notice of what would be considered
             unacceptable behavior and because, at least with respect to rule
             numbers 1, 10, and 14, were capable of being uniformly enforced.
             [] Further, the [ALJ] concludes that the [E]mployer’s rules were
             uniformly enforced in so far as all employees found to be in
             violation of such rules by the [E]mployer have been terminated.


       (Appellant’s App. Vol. II, p. 8).


[18]   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. App. 1996). “In order to evaluate uniformity one must first

       define the class of persons against whom uniformity is measured.” Stanrail Corp.

       v. Review Bd. of Dep’t of Workforce Dev., 735 N.E.2d 1197, 1203 (Ind. Ct. App.

       2000). “Once the class is defined, the question whether the employer treats the

       persons within the class consistently is a basic factual inquiry and is reviewed

       subject to the substantial evidence test and for conformity to law.” McClain,

       693 N.E.2d at 1319.


[19]   Employer testified that in the past other employees have “been found in

       violation of these same rules that the [E]mployer felt that [J.G.] violated.” (Tr.

       p. 16). She confirmed that all employees in that situation “have been

       terminated.” (Tr. p. 16). “These rules [applied] to all employees of the

       company.” (Tr. p. 16). See McClain, 693 N.E.2d at 1319 (testimony by the
       supervisor and employer’s representative that “it was standard practice to

       discharge employees who violated the timecard policy” was substantial

       evidence to show that the policy was uniformly enforced).


[20]   J.G. now focuses her argument that the rules are not uniformly enforced on the

       language of the workplace rules, which state that a violation “may” subject the

       employee to discharge.” (Appellant’s App. Vol. II, p. 9) (emphasis added). In

       this light, she refers to Employer’s testimony that a violation could lead to

       “ramifications up to and including termination.” (Tr. p. 16). Accordingly, she

       maintains that “Employer has unbridled discretion to determine the

       consequences of violating the applicable Rules of Conduct.” (Appellant’s Br. p.

       18). However, in Albright, we held that no arbitrary enforcement exists when a

       rule provides that discharge was a possible consequence of a violation of the

       workplace attendance policy, the employee knew about the rule, and she

       knowingly violated the rule. Albright, 994 N.E.2d at 751-52.


[21]   Furthermore, J.G.’s mere assertion that she had “performed similar errands

       previously, without specific Employer approval, and [] [without being]

       reprimanded or disciplined for this,” does not establish that Employer had been

       aware of this and had condoned the behavior. (Appellant’s Br. p. 18). Rather,

       the Employer’s testimony was unequivocal that similar employees in similar

       circumstances had previously been terminated. Therefore, the ALJ and the

       Review Board properly concluded that the workplace rules were uniformly

       enforced.
                                     III. A Knowing Violation


[22]   To have knowingly violated an employer’s rule, the employee must know of the

       rule and must know that his conduct violated the rule. Stanrail Corp., 735

       N.E.2d at 1203. The Review Board must make a finding as to whether an

       employee knew that his conduct violated an employer rule because the text of

       Indiana Code Section 22-4-15-1(d)(2) requires a “knowing violation” of a rule

       rather than merely a violation of a known rule. Id.


[23]   The Employer presented evidence that J.G. had received a copy of the

       employee handbook which included the workplace rules 1, 10, and 14. J.G.

       testified that she knew and understood that the client could never be left

       unsupervised due to safety concerns. “J.G. does not dispute that leaving a

       client alone and unsupervised would have been a breach of the Employer’s

       rule.” (Appellant’s Br. p. 15). Rather, she alleges that the meaning of the

       Employer’s requirement for constant supervision, and the interpretation of that

       requirement within the meaning of rules 1, 10, and 14 was not specific enough

       to be clearly understood and therefore, she was unaware that the behavior

       violated the rule. In essence, J.G.’s entire argument amounts to the fact that

       client was not left alone when J.G. left the residence to purchase food because

       the hospice nurse was present to provide supervision.


[24]   J.G. likens her situation to Reed v. Review Bd. of Ind. Dep’t of Workforce Dev., 32

       N.E.3d 814 (Ind. Ct. App. 2015). Reed was a direct support professional and

       provided support and assistance to individuals with developmental disabilities.
       Id. at 816. While driving three clients back to his Employer’s location after

       visiting a park, one of the clients began to yell and beat his chest. Id. at 817.

       Reed pulled the vehicle to the side of the road and had the two other clients exit

       the vehicle. Id. He then called his supervisor who asked if the clients were out

       of the car safely and who stated that she would send help. Id. Reed was

       terminated for violating the rule that “Employees [] will in no way exploit,

       neglect or inflict physical or psychological harm on a client.” Id. The

       Employer emphasized that Reed should have called the police and placed the

       client in a “Mandt hold.” Id. at 824. Upon review, this court held that Reed

       did not knowingly violate the rule because the “Employer did not present

       evidence that [Reed] was required to call the police, and [Reed] testified that

       Employer had ‘no documentation on . . . using the police either way.” Id.

       Neither did we find that Employer had submitted any document related to a

       Mandt hold or restraint, “the circumstances under which such a restraint would

       be appropriate, or the length of time such a restraint was to be used[.]” Id.

       Accordingly, we concluded “that the record lacks substantial evidence to

       support a finding that [Reed] knew his conduct violated Employer’s

       professional conduct rule.” Id. at 825.


[25]   We find Reed inapposite to the situation at hand. Unlike J.G., Reed called his

       supervisor to receive instructions on how to handle the volatile situation.

       Furthermore, while J.G. recognized Employer’s work rules and the need for

       constant supervision, Reed had never been informed that the situation should

       have been handled by calling the police and placing the client in a restraint.
[26]   There is ample evidence in the record to support J.G.’s knowing violation of the

       workplace rule. J.G. had received a copy of the handbook and knew of the

       workplace rules instructing her of the consequences by failing to perform the

       work assigned and being absent from the work area. When questioned whether

       the client “was ever supposed to be left alone,” in contravention of the specific

       protocol in place, she replied, “Oh no [] [b]ecause we didn’t want her lighting

       up cigarettes around the oxygen, and if it wasn’t for the oxygen, we still didn’t

       leave her alone.” (Tr. p. 39). J.G. also understood that client’s husband was

       “with hospice [] [and we] weren’t supposed to care for him.” (Tr. p. 39). While

       J.G. claims she did not know she was required to contact her Employer if she

       needed to leave the house, she did acknowledge the importance of constant

       supervision.


[27]   J.G. left her client to run an errand for client’s husband—for whom J.G. had no

       responsibilities—and as such, she left “the work area” and “fail[ed] to perform

       work assigned.” (Appellant’s App. Vol II, pp. 9, 10). Although the hospice

       nurse was present in the residence while J.G. ran the errand, the hospice nurse

       was not employed by Employer, nor did she have any responsibility to

       supervise Employer’s client. As recognized properly by the ALJ and the

       Review Board, “[J.G.] demonstrated poor judgment amounting to carelessness

       or negligence in leaving the client in the home with the belief that a non-

       employee would perform the claimant’s supervisory responsibilities to the

       client.” (Appellant’s App. Vol. II, p. 8). We affirm the Review Board’s

       conclusion that J.G. knowingly violated Employer’s workplace rules.
                                      CONCLUSION
[28]   Based on the foregoing, we conclude that there is substantial evidence to

       establish that J.G. was discharged for just cause and is therefore ineligible for

       unemployment compensation benefits.


[29]   Affirmed.


[30]   Crone, J. and Altice, J. concur
