FOR PUBLICATION
                                                                        Jul 22 2014, 10:22 am




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEES:

NICHOLAS A. SNOW                              GREGORY F. ZOELLER
Harris Law Firm, P.C.                         Attorney General
Crown Point, Indiana
                                              KATHY BRADLEY
                                              Deputy Attorney General
                                              Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

CITY OF GARY,                                 )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )
                                              )      No. 93A02-1312-EX-1016
REVIEW BOARD OF THE INDIANA                   )
DEPARTMENT OF WORKFORCE                       )
DEVELOPMENT and GUADALUPE T.                  )
FRANCO,                                       )
                                              )
      Appellees-Plaintiffs.                   )


                     APPEAL FROM THE INDIANA DEPARTMENT
                         OF WORKFORCE DEVELOPMENT
                       The Honorable Steven F. Bier, Chairperson
                               Cause No. 13-R-04073



                                     July 22, 2014


                              OPINION - FOR PUBLICATION

BROWN, Judge
          The City of Gary, Indiana (the “City”), appeals a decision by the Review Board of the

Indiana Department of Workforce Development (the “Board”) in connection with Guadalupe

Franco’s application for unemployment benefits finding that Franco had been discharged but

not for just cause and was entitled to unemployment benefits. The City raises two issues,

which we consolidate and restate as whether the record supports the Board’s decision. We

affirm.

                               FACTS AND PROCEDURAL HISTORY

          Franco worked as an electro-mechanic for the City’s Sanitary District from July 16,

2010, to August 14, 2013.1 On August 5, 2013, Franco was injured in an accident while

working to close an overhead valve which had not been operated for some time, and he

received treatment the following day at Comprehensive Care. While at Comprehensive Care,

he received an injection and other treatment for pain and provided a urine sample for drug

testing. An initial screening was performed at Comprehensive Care, and the results of the

initial on-site testing were “non-negative.” Transcript at 30. The sample was then sent to

MedTox Laboratories Inc. (“MedTox”) for additional testing. The results of the MedTox

testing were positive for cocaine metabolite. The City terminated Franco’s employment for

failing a drug test on August 14, 2013.

          Franco filed a claim for unemployment benefits, and on September 11, 2013, a deputy

for the Indiana Department of Workforce Development issued a Determination of Eligibility

which found that Franco had not been discharged for just cause, that sufficient information


          1 Franco previously worked for a contractor for the Sanitary District from June 2003 until he began working
                                                          2
had not been provided to sustain the City’s burden of proof, and that Franco was not

disqualified from unemployment benefits. The City appealed the deputy’s determination, and

a telephonic hearing was held on October 21, 2013, before an administrative law judge (the

“ALJ”). The City presented evidence of its workplace policies related to drug testing, and

the ALJ heard the testimony of several representatives of the City, Franco, and Dr. Frank

Messana, the Medical Review Officer for Comprehensive Care.

         The City presented an on-site screening custody form, which contained instructions

and fields to be completed with respect to six steps. According to the custody form, step one

related to obtaining donor information and consent, step two was to be completed by the

collector and involved identifying the temperature of the specimen, the lot number, and the

reason for the accident, and step three included certifications by the collector and tester that

the on-site test was performed utilizing standard procedures. Following step three, there was

a portion of the form to be completed by the Medical Review Officer, or the “MRO.”

Exhibits at 27. The form stated that step five was to be completed only if the specimen was

sent to the lab for testing, and step five included fields to provide the date and the printed

name and signature of the tester and a field below the words “received by printed name /

signature” with a box next to the words “seal intact.” Id. Step six stated “To be completed

by MEDTOX” and provided a field for the date and a field below the words “released by

printed name / signature.” Id.




directly for the City in July 2010.
                                               3
       In the custody form admitted into evidence, steps one through three were completed,

and Dr. Messana signed the section to be completed by the MRO. In the fields for step five,

the date of August 6, 2013, is identified along with the printed name and signature of the

tester. However, in step five, the field below the words “received by printed name /

signature” and the box next to the words “seal intact” were not completed. Id. In addition,

the fields in step 6 on the custody form, which was to be completed by MedTox, were not

completed.

       The record also includes a Laboratory Report, included in the exhibit together with the

on-site screening custody form, which indicates the report was completed by MedTox on

behalf of Comprehensive Care, that the sample was collected on August 6, 2013, that it was

received on August 7, 2013, and that it was reported on August 10, 2013. The Laboratory

Report, which contained identification numbers matching those on the custody form, lists the

tests requested, indicates that the result of the test for cocaine metabolite was positive, and

states that “alternative explanations should be explored for any positive result.” Id. at 28.

The record also includes a letter dated August 13, 2013, addressed to the City and signed by

Dr. Messana stating that Franco had tested positive for cocaine.

       Franco testified that he was shocked that there was a positive test result for cocaine,

that he had not been using any drugs, and that he was dumbfounded and did not know why

that result occurred. He further testified that he had stated to the individuals who were in the

room when his employment was terminated that he would do anything possible to clear his

name including taking a polygraph or submitting to alternative testing such as a hair follicle

                                               4
test, but the City refused. When asked if he had any prior random drug tests in the previous

ten years working at the location, Franco testified that he had random drug tests given to all

employees a few times and also several tests in connection with a few incidents in which he

had been hurt, and when asked how many prior drug tests he had or if he ever had a positive

drug test, Franco replied that he had approximately six or seven prior drug screens and that

he never had a positive test. Franco’s counsel argued that the City as the employer must

submit into evidence reliable documentation from the laboratory establishing that the

specimen was received intact and that the chain of custody was maintained by the laboratory

and that no such evidence had been submitted in this case. In response, the City called Dr.

Messana.

       Dr. Messana testified regarding the screening custody form and the practices of

Comprehensive Care.        He testified that, if an initial screening test is performed at

Comprehensive Care and there is a “non-negative,” then the sample is sent to the laboratory

and step five of the custody form is completed. Id. at 30. Dr. Messana further testified that

the laboratory receives the specimen, confirms that the seal is unbroken, and performs

another screening. Dr. Messana also testified that the initial screening “is very sensitive so it

may pick up some false positives, and when it’s sent to the laboratory, it is very specific, []

the follow-up testing they do. So we call it non-negative because there is a potential for it to

go to the laboratory and when they do the [] very sensitive testing, . . . it may come back as

being a negative test. So we don’t refer to them as a positive test, it’s just a non-negative . . .

.” Id. at 31.

                                                5
The following exchange occurred on cross-examination of Dr. Messana:

Q.    And this on-site screening custody form . . . does this show that . . .
      Medtox indeed received the sample with the seal intact?

A.    This form itself does not. They would have a form, there’s actually
      several copies so the first copy the donor takes, copy two is kept for the
      medical review officer, in this case myself. There’s another copy that’s
      sent to the laboratory and they would have that and they would sign off,
      you know, stating, in the section 6 where they received it and the date
      so they actually have a copy of that for their records.

Q.    So . . . the laboratory itself generates documentation if the specimen
      was received intact and that the chain of custody was maintained by the
      laboratory?

A.    Correct.

Q.    But we don’t have that here, do we?

A.    I, I do not have that. You’d have to get that, we’d have to get that from
      the laboratory.

                                  *****

Q.    . . . At the bottom of [the Laboratory Report], it says . . . alternate
      explanations should be explored for any positive result. Do you see
      that?

A.    Correct, yes.

Q.    Do you know whether that was done in this case?

A.    Yes it was. He was interviewed and asked if he’s on any medication, if
      he’s had any dental procedures, or had, or any other situation that
      could’ve resulted in a positive test. And he did not have any alternative
      explanation.

                                  *****

Q.    Could [] improper chain of custody possibly explain that?

                                      6
       A.     Only if somebody actually intentionally substituted a specimen with one
              that was containing this metabolite of cocaine. That would be about the
              only way I could see that. Even if you put, actually put cocaine in the
              thing it wouldn’t come up because you’re testing for the metabolite . . .
              .

       Q.     Or, or if you confuse the name of the donors.

       A.     Well I don’t know how that could happen though because in this case,
              it’s, the chain of custody is with the specimen, he’s initialed, he’s
              signed off on it and he’s initialed the bottle that has his urine in it . . . .

Id. at 33-35. On re-direct examination, Dr. Messana indicated that, in the event there was a

leak or there was an issue, MedTox would find there was an invalid specimen and it would

be refused for testing.

       The City argued that there was “a failed test and it’s gone through a very reasonable

and reputable mechanism for ensuring that there are not errors, there are not things wrong,”

that “[w]e have all the documentation that, you know, is [] possessed by our local office here

to show the court,” and that “we feel, and the doctor seems to certainly feel that that has a

very high degree of reliability.” Id. at 37-38. Franco by counsel argued that the City must

submit documentation from the laboratory establishing that the specimen was received intact

and that the chain of custody was maintained by the laboratory and that, although Dr.

Messana testified that there was proper chain of custody at Comprehensive Care, that “from

then forward we don’t have any evidence of that.” Id. at 38. Franco’s counsel further argued

that Franco was a ten-year employee, that he had undergone drug testing on at least six or

seven other occasions, that he was adamant that he was not a drug user, and that he had asked

for alternate methods of testing. Franco’s counsel also argued that “[w]here there’s a zero

                                                7
tolerance policy there should be adequate substantiation of the [] test and in this case there

wasn’t.” Id.

       The ALJ issued a decision which affirmed the deputy’s determination and concluded

that Franco was discharged but not for just cause. The ALJ’s decision provides in part:

       Decision – Affirmed

       FINDINGS OF FACT: . . . [Franco] worked as an Electrol Mechanic 2
       fulltime. [Franco] was discharged on August 14, 2013, for a failed drug test.

       [The City] has a drug testing policy which allows for an employee to be drug
       tested if the employee is involved in an accident while working. (Employer’s
       Exhibit 1). If the drug test is proven to be positive the employee is discharged.
        (Employer’s Exhibit 1). [Franco] received and knew of the policy.
       (Employer’s Exhibit 2). The policy is enforced on all employees. The policy
       is in place to ensure the safety of employees.

       On August 5, 2013, [Franco] was injured in an accident while working.
       [Franco] was sent to Comprehensive Care for medical treatment. [Franco]
       received some treatment then gave a urine sample for drug testing. The sample
       returned as a non-negative. The sample was then sent to Medtox Laboratories
       for further testing. The test was returned as positive for cocaine. (Employer’s
       Exhibit 4). All portions of the Screening Custody Form were filled except for
       the portion that was to be completed by Medtox. (Employer’s Exhibit 4).
       [Franco] was then discharged on August 14, 2013, for violation of [the City’s]
       drug policy.

       CONCLUSIONS OF LAW: . . .

       The Administrative Law Judge concludes [the City’s] rule meets the above
       standards and is reasonable. The policy is also enforced on all employees.
       [Franco] knew of the policy. However, in the present case, [the City] failed to
       show [Franco] actually violated the policy. [The City] failed to provide
       sufficient evidence that the drug test was properly performed. The test result
       form was not completed by the lab that performed the actual test showing the
       test was positive for cocaine. There is insufficient evidence to show the chain
       of command [sic] was reliable. Therefore, the Administrative Law Judge
       concludes [the City] did not meet its burden of proof to show [Franco]

                                              8
       knowingly violated a reasonable and uniformly enforced rule. [Franco] was
       discharged but not for just cause as defined by Ind. Code § 22-4-15-1.

       DECISION: On August 14, 2013, [the City] discharged [Franco] but not for
       just cause in connection with work. The Deputy’s Determination of Eligibility
       dated September 11, 2013, is AFFIRMED. Effective the week ending August
       17, 2013, [Franco] is qualified to receive unemployment insurance benefits.
       Ind. Code § 22-4-15-1(a).

       DATED AT INDIANA, THIS 21st DAY OF OCTOBER, 2013[.]

Exhibits at 31-32.

       The City filed an appeal from the decision of the ALJ, and on December 2, 2013, the

Board, in a two-to-one vote, affirmed the ALJ’s decision. In its decision, the Board adopted

and incorporated by reference the findings and conclusions of the ALJ and included the

following addendum:

       At the hearing, [Franco] questioned the reliability of the test results submitted
       by MedTox Laboratories Inc. given that there was no completed chain of
       custody demonstrating that the sample submitted to it was intact and
       unadulterated. The Medical Review Officer (“MRO”), who is affiliated with
       the Comprehensive Care Clinic (“clinic”), testified regarding the practices of
       the clinic, but he had no personal knowledge regarding the practices of
       MedTox Laboratories Inc. or its receipt and testing of [Franco’s] sample. In
       Owen County v. Indiana Department of Workforce Development, 861 N.E.2d
       1282 (Ind. Ct. App. 2007), the court concluded that when a claimant seems
       credible and the issue boils down to the credibility of the claimant or unknown
       people in a lab and the reliability of the test results, “the evidence fails to
       establish just case [sic] for [the Clamaint’s] discharge within the meaning of
       Indiana Code 22-4-15-1.” Id. at 1291.

Appellee’s Appendix at 7.

       In a dissenting opinion, Review Board Chairperson Steven F. Bier, wrote:

       I disagree with the [ALJ’s] decision. [Franco] does not dispute that the urine
       sample he provided was initialed by him as his sample, and the chain of
       custody demonstrates that it was handled properly within the clinic. The MRO
                                              9
       asked [Franco] if he had an explanation for why the test would have been
       positive for cocaine, and [he] had no explanation other than that he had
       received an injection for back pain prior to producing his urine sample. The
       MRO credibly testified that the injection for pain would not have caused
       [Franco] to test positive for cocaine metabolites. The drug screening
       performed at the clinic resulted in a non-negative result for cocaine
       metabolites. The confirmatory test performed by MedTox Laboratories Inc.
       simply confirmed the results already found by the clinic. The chain of custody
       was sufficient to demonstrate that the sample had not been adulterated. The
       [ALJ] and the other members of the Review Board are imposing an impossible
       burden on [the City] to present witnesses at every step of the process to
       demonstrate that the sample was properly handled. I would reverse to
       conclude that [the City] demonstrated just cause for discharging [Franco].

Id. at 7-8.

                                        DISCUSSION

       The issue is whether the record supports the decision of the Board that Franco was

discharged but not for just cause. 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). However, Ind. Code § 22-4-17-12(f) provides that when

the Board’s decision is challenged as contrary to law, the reviewing court is limited to a two

part inquiry into: (1) “the sufficiency of the facts found to sustain the decision;” and (2) “the

sufficiency of the evidence to sustain the findings of facts.” McClain v. Review Bd. of Ind.

Dep’t of Workforce Dev., 693 N.E.2d 1314, 1317 (Ind. 1998), reh’g denied. The Indiana

Supreme Court clarified our standard of review of the Board’s decisions in McClain:

              Review of the Board’s findings of basic fact [is] subject to a
       “substantial evidence” standard of review. In this analysis the appellate court
       neither reweighs the evidence nor assesses the credibility of witnesses and
       considers only the evidence most favorable to the Board’s findings.


                                               10
               The Board’s conclusions as to ultimate facts involve an inference or
       deduction based on the findings of basic fact. These questions of ultimate fact
       are sometimes described as “questions of law.” They are, however, more
       appropriately characterized as mixed questions of law and fact. As such, they
       are typically reviewed to ensure that the Board’s inference is “reasonable” or
       “reasonable in light of [the Board’s] findings.” The term “reasonableness” is
       conveniently imprecise. Some questions of ultimate fact are within the special
       competence of the Board. If so, it is appropriate for a court to exercise greater
       deference to the “reasonableness” of the Board’s conclusion. . . . However,
       not all ultimate facts are within the Board’s area of expertise. As to these, the
       reviewing court is more likely to exercise its own judgment. In either case the
       court examines the logic of the inference drawn and imposes any rules of law
       that may drive the result. That inference still requires reversal if the
       underlying facts are not supported by substantial evidence or the logic of the
       inference is faulty, even where the agency acts within its expertise, or if the
       agency proceeds under an incorrect view of the law.

Id. at 1317-1318 (citations and footnotes omitted).

       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. 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 . . . .”

       The City argues that Owen Cnty. is distinguishable from the present case because the

evidence in the present case is more comprehensive and that the Board imposed an

unreasonable burden of proof on employers in general. The City further argues that Dr.

Messana reviewed the test result and that Franco had no alternative explanations for the test

result. The City asserts that “if Franco’s argument is to be believed, the logical result would

be that in order for [the City] to be able to rely on the positive test result received from the

laboratory, it would have to be in possession of conclusive evidence that (A) there was no
                                              11
tampering with the sample, which could essentially be done only by pouring urine containing

the cocaine metabolite into [the City’s] sample, and that (B) there was no inadvertent

substitution of samples or other mishandling of [the City’s] sample.” Appellant’s Brief at 19.

The City argues that “[t]his is evidence that even the local testing facility does not receive,”

that the “fact that the laboratory tested the sample and sent back results indicates its honest

belief in an unbroken chain of custody,” and that “it is highly unlikely that any evidence of

intentional tampering with a substance . . . or inadvertent substitution of samples . . . would

even be reflected in the laboratory’s records.” Id. at 19-20.

       The Board maintains that its determination that Franco was not discharged for just

cause is supported by the evidence and that the City failed to prove a proper chain of custody

and thus did not show that Franco violated the City’s workplace rule. The Board argues that

there is no dispute the proper chain of custody was followed at Comprehensive Care, but that

there was evidence that initial screenings turn up some false positives and that any sample

that is non-negative is sent to a lab to be more thoroughly tested. The Board asserts that

MedTox was responsible for filling in step six on the chain of custody form to confirm the

sample was received intact, and that the form does not indicate the seal was intact when it

was received. The Board notes Dr. Messana’s testimony that the chain of custody form

comes in triplicate, that his copy of the form was not signed by MedTox, and that the copy

signed by MedTox would have to be obtained from MedTox. In response to the City’s claim

that the Board placed an extraordinarily high burden on it to produce evidence of discharge

for just cause, the Board posits that “[t]his is simply not the case,” that the City “could have

                                              12
obtained the chain of custody form from MedTox showing that it received the sample intact,”

that “[i]nstead, it submitted an incomplete form,” that “[i]f the form no longer existed, [the

City] could have obtained an affidavit from someone at MedTox showing that the proper

chain of custody was observed,” and that “[t]his is not an impossibly high burden; it is merely

one additional step to complete the process of providing evidence that the chain of custody

was followed.” Appellee’s Brief at 7.

       In its reply brief, the City argues that, “[g]ranted, the chain of custody form in

question does not have the signature of a person at the laboratory confirming receipt of the

urine sample” but that “the form [] is completed by a second piece of evidence: the certified

laboratory report received from the laboratory” and “[b]oth the chain of custody form and the

laboratory report contain matching identifiers, including the donor’s name, social security

number, date of collection and unique specimen ID number.” Appellant’s Reply Brief at 3.

The City argues that “[t]hese two documents, coupled with the testimony of Dr. Messana and

the application of very basic logic [], reasonably lead to the conclusion that the proper

procedures were followed at the laboratory.” Id. at 4.

       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

                                              13
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. App. 1996).

       Here, the evidence reveals that the purpose of steps five and six of the on-site

screening custody form, according to the testimony before the ALJ and Board and the

language of the form itself, was to document and establish when a specimen was properly

transferred to and received by the laboratory, in this case MedTox, to provide the names and

signature verifications of the persons who released and received the specimen, to confirm the

dates the specimen was released and received by Comprehensive Care and MedTox,

respectively, and to substantiate that the vial or other container holding the specimen was

received by the laboratory with its seal intact. In this case, the relevant information on the

copy of the screening custody form admitted into evidence established only that the specimen

was collected and released by Comprehensive Care. The fields on the custody form which

would have certified and established whether and when the specimen was received by

MedTox, the person who provided a signature on the form to confirm receipt of the sample,

and whether the seal of the vial holding the specimen was intact were not completed and are

all blank.



                                             14
       Dr. Messana testified that the initial screening performed at Comprehensive Care was

not as specific as the tests performed by MedTox and thus that Comprehensive Care could

establish only that the results were non-negative. Dr. Messana further indicated that the

custody form in his possession and admitted into evidence did not show that MedTox

received Franco’s sample with the seal intact and that MedTox would have a copy of the

form with the information in step six completed. While Dr. Messana testified regarding his

belief that MedTox would not test a sample if there was an issue, the Board in its decision

stated that Dr. Messana “had no personal knowledge regarding the practices of MedTox

Laboratories Inc. or its receipt and testing of [Franco’s] sample,” and this finding is

supported by the evidence. Appellee’s Appendix at 7. In addition, the City did not present

evidence that Franco appeared to be under the influence of drugs on the day he was tested,

the evidence reveals that Franco had previously submitted to six or seven drug screens and

never had a positive result, and Franco offered to submit to alternative testing which the City

refused.

       Given the fact that relevant fields of steps five and six were not completed, the

importance of these steps in the chain of custody, and the serious consequence for an

employee of a positive drug test result, we decline to infer, from the fact that test results

identifying Franco were sent by MedTox to Comprehensive Care, that the seal must have

been intact and that the City met its burden with respect to the chain of custody. This does

not have the effect of imposing an impossible burden on the City as it could have produced a

copy of the custody form with the relevant fields completed or the testimony or an affidavit

                                              15
of the persons who received, checked the seal of, and tested Franco’s sample. The City bore

the initial burden of establishing that Franco was terminated for just cause. Moreover, it is

the Board’s responsibility to weigh the evidence and determine the credibility of the

witnesses and, to the extent questions of ultimate fact found by the Board were within its

special competence, we exercise greater deference to the reasonableness of the Board’s

conclusion. See McClain, 693 N.E.2d at 1317-1318. The deputy, the ALJ, and the Board

concluded sufficient information had not been provided to sustain the City’s burden of proof

or to show the chain of custody was reliable. There is sufficient evidence to support the

Board’s findings and sufficient facts to support its decision, and we cannot say the Board’s

conclusion is unreasonable.

       Under the circumstances and in light of our standard of review, we do not disturb the

Board’s determination. See Owen Cnty., 861 N.E.2d at 1292-1293 (noting that the employer

had the initial burden of showing the former employee knowingly violated a workplace rule,

that the employer presented only a document that showed a certain level of marijuana

metabolite was found in the employee’s specimen, that there was no evidence establishing

the reliability or trustworthiness of the tests or the basis for or an explanation of the results,

that no one from the lab nor the review officer testified, and there was no testimony that the

employee appeared to be under the influence of drugs on the day he was tested, and holding

that it is the Board’s responsibility to weigh the evidence and determine the credibility of the

witnesses, that the Board determined that as between a document with no supporting

testimony and the employee’s testimony denying drug use the employee was the more

                                               16
credible, that the employer was asking us to reweigh the evidence, and that there was

sufficient evidence to support the Board’s findings and the decision).

                                     CONCLUSION

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

       Affirmed.

VAIDIK, C.J., and NAJAM, J., concur.




                                            17
