Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
                                                             FILED
                                                           Apr 18 2012, 9:01 am
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,                         CLERK
                                                                of the supreme court,
                                                                court of appeals and
collateral estoppel, or the law of the case.                           tax court




ATTORNEY FOR APPELLANT:                         ATTORNEY FOR APPELLEE:

MITCHELL A. PETERS                              GREGORY F. ZOELLER
Miller Fisher Law, LLC                          Attorney General of Indiana
Merrillville, Indiana
                                                STEPHANIE ROTHENBERG
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

MARGARET M. HAMMOND,                            )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )      No. 93A02-1110-EX-956
                                                )
REVIEW BOARD OF THE INDIANA                     )
DEPARTMENT OF WORKFORCE                         )
DEVELOPMENT and PORTER COUNTY                   )
COMMISSIONERS,                                  )
                                                )
       Appellees-Respondents.                   )


                       APPEAL FROM THE REVIEW BOARD
               OF THE DEPARTMENT OF WORKFORCE DEVELOPMENT
                       The Honorable Steven F. Bier, Chairperson
                               Cause No. 11-R-04094


                                      April 18, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge

                             STATEMENT OF THE CASE

       Appellant-Claimant, Margaret Hammond (Hammond), appeals the decision by the

Review Board of the Indiana Department of Workforce Development (Review Board),

which found her to be ineligible for unemployment benefits.

       We affirm.

                                         ISSUE

       Hammond raises one issue on appeal, which we restate as: Whether Hammond

was discharged for just cause.

                       FACTS AND PROCEDURAL HISTORY

       Hammond worked at the Portage, Indiana office of the Porter County Circuit

Court Clerk as the Deputy of Records. Her duties entailed document handling and

locating files for the courts or attorneys. Karen Martin (Martin) is the Porter County

Circuit Clerk and was Hammond’s supervisor. Martin worked at the Clerk’s office in

Valparaiso.

       On June 20, 2011, Hammond worked at the Valparaiso office and Martin told

Hammond to attend document scanning training at the same office.             Training was

scheduled for 8:30 a.m., June 24, 2011. The day before, June 23, 2011, Hammond told

Martin that she could not attend the training on time because of difficulties in getting up

earlier for travel to the Valparaiso office. A heated argument ensued. Martin informed

Hammond that document scanning duties were required for her position at the Portage

                                            2
office. Although Hammond had received training previously, she was admittedly not

sufficiently proficient. Hammond asked how long the training would take and Martin

responded that it depended on her ability to learn document scanning. Hammond refused

to take the training and Martin ordered Hammond to attend the training. Hammond said

“I don’t think so,” and Martin repeated her instruction. Hammond then walked out of

Martin’s office, slamming the door. (Appellant’s App. p. 17).

      Hammond did not return to work for the remainder of the day. Hammond also did

not report for training the following day at 8:30 a.m. Instead, Hammond sent Martin a

text message that she was ill and would not report to work that day. Later that day,

Hammond sent another text message to Martin informing her that she would report to

training on Monday, June 27, 2011, as Martin had instructed.         On June 27, 2011,

Hammond arrived at the Valparaiso office where she was escorted to Martin’s office.

Hammond was handed a termination letter discharging her for insubordination.

      On July 14, 2011, a claims deputy with the Department of Workforce

Development determined that Hammond was discharged for just cause. On July 19,

2011, Hammond appealed the deputy’s determination.              On August 3, 2011, an

administrative law judge (ALJ) held a hearing, attended by both Hammond and Martin.

That same day, the ALJ upheld the claims deputy’s decision, concluding that Hammond

was discharged for just cause and therefore was not entitled to unemployment benefits.

On August 12, 2011, Hammond appealed the ALJ's conclusion to the Review Board and



                                           3
also requested that the Review Board accept new evidence. On September 13, 2011, the

Review Board affirmed the ALJ’s decision without considering any new evidence.

      Hammond now appeals. Additional facts will be provided as necessary.

                            DISCUSSION AND DECISION

                                 I. Standard of Review

      Our supreme court has recently stated the applicable standard of review:

              The standard of review on appeal of a decision of the [Review]
      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. Ultimate facts are facts that “involve an inference or
      deduction based on the findings of basic fact.” Where such facts are within
      the “special competence of the [Review] Board,” the [reviewing court] will
      give greater deference to the [Review] Board's conclusions, broadening the
      scope of what can be considered reasonable.

Recker v. Review Bd. of Ind. Dep’t of Workforce Development, 958 N.E.2d 1136, 1139

(Ind. 2011). Under the substantial evidence review, “the appellate court neither reweighs

the evidence nor assesses the credibility of witnesses and considers only the evidence

most favorable to the [Review] Board’s findings.” McClain v. Review Bd. of Indiana

Dep’t of Workforce Dev., 693 N.E.2d 1314, 1317 (Ind. 1998).

                              II. Discharge for Just Cause

      Hammond contends that the Review Board’s decision that she was discharged for

just cause was not supported by the evidence. Under Ind. Code § 22-4-15-1(a), an

employee discharged for just cause is ineligible for unemployment benefits. Recker, 958

N.E.2d at 1140. The employer has the burden to show that the employee was discharged

                                           4
for just cause. Sloan v. Review Bd. of the Ind. Employment Security Div., 444 N.E.2d

862, 865 (Ind. Ct. App. 1983). If the employer meets its burden, the burden shifts to the

claimant to rebut the employer’s case. Id.

       I.C. § 22-4-15-1(d)(4) provides that an employee’s refusal to obey instructions

constitutes just cause for that employee’s discharge. Jones v. Review Bd. of Indiana

Dep’t of Employment and Training, 583 N.E.2d 196, 199 (Ind. Ct. App. 1991). Further,

“[w]hen the authority of those in whom the employer has confided responsibility for day-

to-day operations is flouted by an employee’s willful disregard of reasonable directives,

just cause for discharge of that employee exists.” Graham v. Review Bd. of Indiana

Employment Security Div., 386 N.E.2d 699, 702 (Ind. Ct. App. 1979). Here, the ALJ

concluded that Hammond willfully disregarded Martin’s reasonable instructions to attend

training in Valparaiso. We agree.

       Martin testified that Hammond had difficulties with document scanning and that

certain co-workers at the Portage office had complained about these difficulties. Martin

testified that she never considered discharging Hammond. Martin instructed Hammond

to attend training to better perform her duties. Although Hammond asserted that she

could scan, she admitted that her abilities were deficient. When instructed again to attend

training again, Hammond said, “we’ll see about that,” and left Martin’s office, slamming

the door shut. (Appellant’s App. p. 17). Hammond left work and did not return that day.

Training was to occur the following day and Hammond failed to attend. We therefore

find that substantial evidence supports the determination that Hammond willfully

                                             5
disobeyed a reasonable instruction of her employer. Accordingly, Hammond’s discharge

was for just cause.

       Hammond makes three arguments that the evidence was insufficient to prove that

Martin discharged her with just cause.      First, Hammond argues that her testimony

establishes that she did not refuse to attend training in Valparaiso, but instead sought a

postponement of the training sessions. Hammond had an ill father for whose care she

was responsible and the extra hour or two required for travel to the Valparaiso office was

difficult given these responsibilities. As a result, she did not demonstrate a willful

disregard of Martin’s instructions. However, Hammond’s argument here requires us to

revisit the ALJ’s determination of witness credibility and weight of the evidence. We

decline Hammond’s invitation to do so. See McClain, 693 N.E.2d at 1317.

       Next, Hammond argues that she was discharged for a violation of employment

rules governing employee insubordination and absenteeism. During the hearing, Martin

questioned Hammond about her knowledge and compliance with the Porter County

Government Employee Personnel Policy Manual, specifically Section 11.03, addressing

termination based on employee insubordination, as well as other sections of the manual

addressing employee absenteeism. Because this employment manual was not in evidence

and Martin could not establish Hammond’s knowledge of its provisions, Hammond

contends that Martin failed to meet her burden to prove a “knowing violation of a

reasonable and uniformly enforced rule of an employer, including a rule regarding

attendance.” I.C. § 22-4-15-1(d)(2). Meeting this burden required Martin to show that

                                            6
Hammond “(1) knowingly violated; (2) a reasonable; and (3) uniformly enforced rule.”

Brown v. Indiana Dep’t of Workforce Dev., 919 N.E.2d 1147, 1151 (Ind. Ct. App. 2009).

      However, “[w]hile the [Review] Board’s task is to use any applicable definition in

[I.C. § 22-4-15-1(d)] to determine whether an employee was discharged for just cause,

our review is limited to determining whether the [Review] Board made sufficient findings

to support the definition it selected to apply.” Ryan v. Review Bd. of Indiana Dep’t of

Employment and Training Svcs., 560 N.E.2d 112, 114 (Ind. Ct. App. 1990). Here, the

Review Board’s conclusion expressly rests upon a determination that Hammond was

discharged for just cause under I.C. § 22-4-15-1(d)(5), insubordination. Accordingly, our

review is limited to whether the Review Board’s findings support its conclusion, which

we have concluded in the affirmative. See Ryan, 560 N.E.2d at 114.

      Finally, Hammond contends that the ALJ was negligent in her duties by failing to

independently conduct further inquiry or solicit evidence into those areas tending to

support Hammond’s version of events, including her medical records, her father’s illness,

and Porter County’s employment policies. Given that Hammond appeared at the hearing

pro se, she argues that the ALJ “had a special responsibility in shepherding the case and

following up on all presented evidence.” (Reply Br. p. 9).

      646 Ind. Admin. Code § 5-10-5(a)(3) sets out the duties of the ALJ in this regard:

      Where either party fails to appear or where either party is not represented
      by an attorney or duly authorized agent, [the ALJ] shall have the duty to
      examine the party's witnesses, and to cross-examine all witnesses of the
      other party, in order to ensure complete presentation of the case.


                                            7
Further, we have recognized the “affirmative duty” placed upon the ALJ to ensure that

pro se claimants are afforded the opportunity to present their cases. Steele v. Dep’t of

Workforce Dev., 853 N.E.2d 179, 180 (Ind. Ct. App. 2006). We have also recognized the

limitations of that duty:

       The [ALJ] does not have to explore every minute aspect of a claimant’s
       termination and her work conditions. [The ALJ] should question all parties
       and witnesses with a view toward eliciting testimony necessary to ferret out
       the issues. Sufficient facts should be obtained during [the ALJ’s]
       questioning to allow for a reasonable disposition of this issue.

Richey v. Review Bd. of Indiana Employment Securities Div., 480 N.E.2d 968, 971 (Ind.

Ct. App. 1985). Further, the ALJ is not an advocate for the claimant; instead, the ALJ

“must sufficiently develop the facts and issues to allow for a reasonable disposition of the

claim.” Jones, 583 N.E.2d at 200.

       Hammond attended the hearing without an attorney. The ALJ questioned both

Martin and Hammond, giving both an opportunity to ask questions of the other. Instead

of testifying as to facts regarding the discharge, the extent of her care-giving, and her

medical condition, Hammond chose to focus on the argument and apparently difficult

relationship between her and Martin. The hearing transcript also contains a number of

attempts by the ALJ to restrain both sides from engaging in argument, rather than

questioning, as well as focusing both parties’ testimony on the issue at hand, Hammond’s

alleged insubordination. In sum, we conclude that the ALJ satisfied her obligation to

develop the facts and issue of whether Hammond was discharged for just cause.

                                     CONCLUSION

                                             8
      Based on the foregoing, we conclude that the Review Board properly affirmed the

ALJ’s decision that Hammond was discharged for just cause and thus not eligible to

receive unemployment benefits.

      Affirmed.

NAJAM, J. and DARDEN, J. concur




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