MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Dec 10 2019, 9:17 am
regarded as precedent or cited before any
court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
V.T.                                                    Curtis T. Hill, Jr.
Gary, Indiana                                           Attorney General of Indiana

                                                        Monika Prekopa Talbot
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

V.T.,                                                   December 10, 2019
Appellant-Claimant,                                     Court of Appeals Case No.
                                                        19A-EX-1233
        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,                                            Chairperson
Appellee-Respondent.                                    The Honorable Lawrence A.
                                                        Dailey, Member
                                                        The Honorable Conny Franken,
                                                        Administrative Law Judge
                                                        Case No. 19-R-0354




Friedlander, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1233 | December 10, 2019                Page 1 of 8
[1]   V.T., pro se, appeals the decision of the Indiana Department of Workforce

      Development Unemployment Insurance Review Board (Review Board)

      affirming the finding by the Administrative Law Judge (ALJ) that V.T. was

      discharged from her employment for good cause, thereby terminating her

      unemployment benefits. Concluding that the ALJ’s findings are supported by

      the evidence, we affirm the Review Board’s decision.


[2]   The sole issue in this appeal is whether the ALJ’s finding that V.T. was

      discharged for good cause is supported by the evidence.


[3]   The Indiana Unemployment Compensation Act is codified at Indiana Code

      article 22-4 and provides benefits to those who are out of work through no fault

      of their own. To be eligible for benefits, an individual must meet the

      requirements set forth in Chapter 22-4-14. Unemployment insurance benefits,

      however, are not an unqualified right and may be denied to claimants who are

      disqualified by any of the various exceptions provided in Chapter 22-4-15.

      Specifically, an individual is disqualified if discharged for “just cause.” See Ind.

      Code § 22-4-15-1(d) (2017). Just cause includes a knowing violation of a

      reasonable and uniformly enforced rule and any breach of duty in connection

      with work which is reasonably owed an employer by an employee. See Ind.

      Code 22-4-15-1(d)(2), (9).


[4]   An ALJ for the Indiana Department of Workforce Development set out the

      facts and procedural history relevant to V.T.’s appeal as follows:




      Court of Appeals of Indiana | Memorandum Decision 19A-EX-1233 | December 10, 2019   Page 2 of 8
        [V.T.] began employment in March 2010 and was discharged for
        improper conduct in the workplace effective January 24, 2019.
        [V.T.] worked for [ ] (Employer) as a licensed practical nurse
        (LPN) who earned $24.66 per hour. The employer is a long term
        health care facility.


        The employer has a handbook. One policy in the handbook
        reads, “3. Engaging in abusive, discourteous, profane, indecent,
        or unprofessional language or conduct while on duty or on
        facility property.” Under Disciplinary Guidelines it reads, in
        part, “Incidents of unacceptable behavior are handled by the
        facility on an individual case by case basis. Depending on such
        factors as the seriousness of the offense, the impact of the offense
        on residents, fellow employees, and/or the facility, the
        employee’s prior work and disciplinary record and the presence
        or absence of mitigating or aggravating circumstances, an
        employee may be given a verbal warning, a written warning, a
        final warning, a suspension without pay or may be discharged.”


        The employer provided a copy of the handbook to [V.T.]. The
        policy applies to all employees. The purpose of the policy is to
        protect the residents from harm. Discipline is contingent upon
        the severity of the incident and the aforementioned factors.


        On January 24, 2019 [V.T.] entered the room of an alert, oriented
        resident and said mother fu[ ]er. There was another nurse in the
        room, a certified nursing aide, and an employee from the
        Department of Health. The employee was a member of the team
        who conducted an audit of the employer’s facility. Everyone
        heard [V.T.] including the resident. The nurse reported the
        incident to Ms. Navarro [the administrator of the facility]. The
        nurse, certified nursing aide and the employee from the
        Department of Health were interviewed. All of them said that
        [V.T.] uttered the term upon entering the room but no one
        thought that [V.T.] aimed it at the resident. The employer
        interviewed [V.T.] who said she said the words but it was not
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1233 | December 10, 2019   Page 3 of 8
              intended for the resident. Ms. Navarro suspended [V.T.] from
              employment.


              The employer concluded that [V.T.] violated policy and
              discharged her effective January 24, 2019.


      Appellant’s App. Vol. 2, pp. 3-4.


[5]   Thereafter, V.T. filed a claim for unemployment benefits, which was initially

      granted by a claims investigator. V.T.’s employer appealed that decision, and

      the ALJ conducted a telephonic hearing in which the employer and its

      witnesses participated. V.T. did not appear for the hearing. Following the

      hearing, the ALJ concluded as follows:


              [V.T.] had a duty to be professional at work. The duty is
              reasonably connected to the work and reasonably owed to the
              employer. [V.T.]’s conduct was a reflection upon the employer.
              On January 24, 2019 [V.T.] uttered a severe profanity while
              entering a resident’s room. A coworker, subordinate, a visitor
              and the resident heard [V.T.]. [V.T.]’s utterance would impact
              the employer’s reputation as well as impact [V.T.]’s relationships
              with the individuals in the room. This single incident
              demonstrated a substantial disregard for the employer’s and
              resident’s interests. [V.T.] breached the duty. [V.T.] was
              discharged for just cause. [V.T.] is ineligible for benefits under
              the Act.


      Id. at 5. Accordingly, the ALJ reversed the determination of the claims

      investigator. V.T. appealed that decision to the Review Board, which adopted

      the ALJ’s findings and conclusions and affirmed the ALJ’s decision without a

      hearing. This appeal ensued.

      Court of Appeals of Indiana | Memorandum Decision 19A-EX-1233 | December 10, 2019   Page 4 of 8
[6]   We first note that V.T. is proceeding pro se. It is well settled that pro se

      litigants are held to the same legal standards as licensed attorneys. Lowrance v.

      State, 64 N.E.3d 935 (Ind. Ct. App. 2016), trans. denied. This means that they

      must follow the established rules of procedure and accept the consequences

      when they fail to do so. Id.


[7]   Next, we turn to the standard of review. Decisions of the Review Board are

      conclusive and binding as to all questions of fact. Ind. Code § 22-4-17-12(a)

      (1995). The Board’s conclusions of law may be challenged as to “the

      sufficiency of the facts found to sustain the decision and the sufficiency of the

      evidence to sustain the findings of facts.” Ind. Code § 22-4-17-12(f). Under this

      standard, (1) the Review Board’s findings of basic fact are reviewed for

      substantial evidence, (2) findings of mixed questions of law and fact (i.e.,

      ultimate facts) are reviewed for reasonableness, and (3) legal propositions are

      reviewed for correctness. K.S. v. Review Bd. of Ind. Dep’t of Workforce Dev., 33

      N.E.3d 1195 (Ind. Ct. App. 2015). This Court neither reweighs the evidence

      nor assesses witness credibility, and it considers only the evidence most

      favorable to the Review Board’s findings. Id. Further, this Court will reverse

      the Review Board’s decision only if there is no substantial evidence to support

      the Board’s findings. J.M. v. Review Bd. of Ind. Dep’t of Workforce Dev., 975

      N.E.2d 1283 (Ind. 2012).


[8]   Although, as set forth above, V.T. was discharged by her employer under policy

      number 3 in the employee handbook, the ALJ found the policy to be a

      “guideline” rather than a rule under which an employee could be discharged for

      Court of Appeals of Indiana | Memorandum Decision 19A-EX-1233 | December 10, 2019   Page 5 of 8
       just cause pursuant to Indiana Code section 22-4-15-1(d)(2). Appellant’s App.

       Vol. 2, p. 4. The ALJ instead based her determination on a breach of duty by

       V.T. pursuant to Section 22-4-15-1(d)(9). Specifically, the ALJ determined that

       V.T. was discharged for just cause based upon her breach of her duty to be

       professional at work.


[9]    The only discernible argument in V.T.’s brief is that the decision of the ALJ was

       not based on the evidence presented by V.T.’s employer. See Appellant’s Br. p.

       9. In support of this argument, she claims that her employer presented “flimsy

       evidence and inconsistencies.” Id. at 10.


[10]   V.T. failed to appear for the telephonic hearing. At the hearing, V.T.’s

       employer presented the testimony of the facility’s director of nursing and its

       administrator. Evidence was presented as to V.T.’s use of profanity on January

       24, 2019 in the presence of a resident, a staff nurse, a certified nursing assistant,

       and a representative from the Indiana State Department of Health. When

       confronted, V.T. confirmed that she had used profanity and that she knew it

       was improper. In accordance with the employer’s policy, the director of

       nursing obtained a statement from V.T., and, upon receiving the statement, the

       director informed V.T. that she was suspended pending investigation. In

       addition, the evidence showed that employees receive an employee handbook

       when they are hired and sign a form acknowledging receipt thereof. V.T.’s

       employer had an acknowledgment form signed by V.T.




       Court of Appeals of Indiana | Memorandum Decision 19A-EX-1233 | December 10, 2019   Page 6 of 8
[11]   Approximately one and one-half to two weeks after the incident, V.T. called the

       director of nursing, at which time the director informed V.T. that the

       investigation was complete and that the employer was discharging her for

       violating policy by using profanity in the presence of a resident. V.T.’s

       employer chose to discharge her rather than issue a warning because the

       incident involved a resident and because V.T. had had other disciplinary

       actions in the past; however, V.T. could have been discharged solely for this

       incident. The evidence further showed that the facility was issued a citation for

       this incident.


[12]   In Yoldash v. Review Board, an employee was discharged for insubordination

       when he became enraged and called his manager and another employee names

       in response to being punished for a rule violation. 438 N.E.2d 310 (Ind. Ct.

       App. 1982). The Court held that the employer discharged the employee for just

       cause and stated that, while the words of the employee were not necessarily

       obscene or profane, they could be considered offensive and abusive and in

       violation of the standards of behavior the employer had a right to expect of its

       employees. Yoldash set forth several factors to be considered in determining

       whether the use of offensive language is sufficient to constitute just cause,

       including the quantity (i.e., number of incidents, lengthy barrage, or single, brief

       incident) of vulgar or profane language, degree of severity of words used, use of

       the language in the presence of other employees, and whether the language was

       directed to a supervisor or to other persons. Id. The Court cautioned that none

       of these considerations is conclusive or determinative and that the


       Court of Appeals of Indiana | Memorandum Decision 19A-EX-1233 | December 10, 2019   Page 7 of 8
       determination is fact-sensitive and thus must be made on a case-by-case basis.

       Id.


[13]   Here, V.T., who had prior disciplinary actions, entered a resident’s room and

       uttered the words “this mother-f**ker.” Tr. Vol. 2, p. 9. V.T.’s profanity was

       heard by the resident, two co-workers, and a representative from the

       Department of Health. Although apparently not directed at anyone in the

       room, the language V.T. used is obscene, profane, and extremely offensive.

       V.T. had received a copy of the employee handbook, which sets forth the

       employer’s expectation that its employees will conform their conduct to the

       highest standards of professionalism as well as the employer’s policy against

       such unacceptable behavior as engaging in abusive, discourteous, profane,

       indecent, or unprofessional language or conduct. V.T.’s use of profanity in this

       instance is sufficient to constitute just cause.


[14]   The ALJ's findings of fact and conclusions of law, which the Review Board

       adopted, are supported by substantial evidence of probative value in the record.


[15]   Judgment affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-EX-1233 | December 10, 2019   Page 8 of 8
