MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),                                 Jun 30 2016, 5:52 am
this Memorandum Decision shall not be
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regarded as precedent or cited before any                              Indiana Supreme Court
                                                                          Court of Appeals
court except for the purpose of establishing                                and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Mary M. Runnells                                         REVIEW BOARD
Bloomington, Indiana                                     Gregory F. Zoeller
Jacqueline B. Ponder                                     Attorney General of Indiana
Indianapolis, Indiana                                    Aaron T. Craft
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Company,                                                 June 30, 2016
Appellant,                                               Court of Appeals Case No.
                                                         93A02-1511-EX-1941
        v.                                               Appeal from the Review Board of
                                                         the Department of Workforce
Review Board of the Indiana                              Development
Department of Workforce                                  Case No.
Development and C.H.,                                    15-RB-1692
Appellees




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 93A02-1511-EX-1941 | June 30, 2016           Page 1 of 9
[1]   Company appeals the decision of the Review Board of the Indiana Department

      of Workforce Development (the Review Board) affirming an administrative law

      judge’s determination that C.H., a former employee of Company, is entitled to

      unemployment compensation. Finding no error, we affirm.


                                                     Facts
[2]   C.H. worked as a laborer for Company, which operates a coal mine, between

      February 2014 and May 2015. Company has a written attendance policy

      stating, in relevant part, as follows:


              Attendance is a key factor in your job performance. . . . Excessive
              absence, whether excused or unexcused, tardiness, leaving earlier
              is unacceptable. An employee who cannot work a scheduled
              shift for any reason must contact the . . . office by 6:00 a.m. for
              the day shift employees and 3:00 p.m. for night shift employees.


      Tr. p. 9-10. C.H. missed work on June 13, 2014, because of the birth of his son

      on June 11. He was late for work on March 21, May 7, and May 27, 2015, and

      stated that he had been late because his son was ill. Throughout this time, C.H.

      received verbal and written warnings regarding his attendance at work. On

      May 27, 2015, Company terminated C.H.’s employment because of his

      attendance issues.


[3]   C.H. sought unemployment compensation following the termination of his

      employment. On July 23, 2015, a claims deputy for the Department of

      Workforce Development determined that C.H. was entitled to unemployment

      compensation because he had not been discharged for good cause. Company

      Court of Appeals of Indiana | Memorandum Decision 93A02-1511-EX-1941 | June 30, 2016   Page 2 of 9
      appealed that determination. Following a hearing, an administrative law judge

      (ALJ) affirmed the claims deputy’s determination. Company again appealed,

      this time to the Review Board, and on October 9, 2015, the Review Board

      affirmed the ALJ’s determination. The Review Board adopted the findings and

      conclusions of the ALJ, which read, in pertinent part, as follows:


              . . . Here, the [ALJ] concludes that the employer’s attendance
              policy is not a rule but a guideline as it does not define excessive
              [absences] or provide any guidance to employees as to when
              termination may occur.


              The [ALJ] concludes that the employer discharged the claimant
              for unsatisfactory attendance. The claimant received verbal
              warnings and two written warnings regarding his attendance,
              specifically late arrivals. The [ALJ] concludes that the employer
              informed the claimant during the second written warning that his
              job was in jeopardy due to attendance issues. The claimant was
              late on May 27, 2015 due to his son being ill. The evidence
              shows that the other attendance issues related to the claimant’s
              son’s birth or the claimant’s son’s illnesses. As such, the [ALJ]
              concludes that the evidence shows the claimant had good cause
              for the absences and late arrivals, including the final attendance
              issue.


              Therefore, the [ALJ] concludes that the employer discharged the
              claimant but not for just cause . . . .


[4]   Appellant’s App. p. 6. Company now appeals.




      Court of Appeals of Indiana | Memorandum Decision 93A02-1511-EX-1941 | June 30, 2016   Page 3 of 9
                                   Discussion and Decision
                                     I. Standard of Review
[5]   The decisions of the Review Board may be reviewed for legal error, but they are

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

      McClain v. Rev. Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314, 1316-17

      (Ind. 1998). Our review is limited to the sufficiency of the facts supporting the

      decision and the sufficiency of the evidence to sustain the findings of fact. I.C.

      § 22-4-17-12(f); McClain, 693 N.E.2d at 1317. We will review the Review

      Board’s findings of basic fact for substantial evidence, findings of ultimate fact

      (mixed questions of law and fact) for reasonableness, and legal conclusions de

      novo. Chrysler Group, LLC v. Rev. Bd. of Ind. Dep’t of Workforce Dev., 960 N.E.2d

      118, 122-23 (Ind. 2012). In conducting our review, we will neither reweigh the

      evidence nor assess witness credibility. Id. at 122.


                                             II. Just Cause
[6]   A claimant who has been discharged from his employment for just cause is

      ineligible for unemployment benefits. I.C. § 22-4-15-1-(a). The fact that an

      employer may have had a legitimate reason to terminate the claimant’s

      employment is not sufficient to establish just cause. Conklin v. Rev. Bd. of Ind.

      Dep’t of Workforce Dev., 966 N.E.2d 761, 766 (Ind. Ct. App. 2012). Instead,

      there are nine nonexclusive statutory grounds that may constitute discharge for

      just cause. I.C. § 22-4-15-1(d)(1) – (d)(9). In relevant part, the statute defines

      “discharge for just cause” as:


      Court of Appeals of Indiana | Memorandum Decision 93A02-1511-EX-1941 | June 30, 2016   Page 4 of 9
              (2)      knowing violation of a reasonable and uniformly enforced
                       rule of an employer, including a rule regarding attendance;


              (3)      if an employer does not have a rule regarding attendance,
                       an individual’s unsatisfactory attendance, if good cause for
                       absences or tardiness is not established . . . .


      I.C. § 22-4-15-1(d). The Review Board found as follows: first, Company’s

      attendance policy is not a uniformly enforced rule such that subsection (d)(2)

      applies; and second, C.H. had good cause for his absences and tardiness such

      that subsection (d)(3) does not apply. Company contends that both of these

      conclusions were erroneous.


                    A. Uniformly Enforced Attendance Rule
[7]   Subsection (d)(2) applies if substantial evidence establishes that (1) there was a

      rule; (2) the rule was reasonable; (3) the rule was uniformly enforced; (4) the

      claimant knew of the rule; and (5) the claimant knowingly violated the rule.

      S.S. LLC v. Rev. Bd. of Ind. Dep’t of Workforce Dev., 953 N.E.2d 597, 603 (Ind. Ct.

      App. 2011). In this case, the Review Board affirmed the ALJ’s conclusion that

      Company’s attendance policy is a guideline, not a rule.


[8]   This Court has held that “[v]iolation of a vague work rule that fails to provide

      employees notice of precisely what conduct could lead to termination is not just

      cause for discharge in the context of unemployment compensation.” Coleman v.

      Rev. Bd. of Ind. Dep’t of Workforce Dev., 905 N.E.2d 1015, 1021 (Ind. Ct. App.

      2009). An “open-ended standard” that fails to give employees “notice of what


      Court of Appeals of Indiana | Memorandum Decision 93A02-1511-EX-1941 | June 30, 2016   Page 5 of 9
      precisely was prohibited and what was acceptable” under the policy does not

      constitute a rule for the purpose of subsection (d)(2). Id. To be considered a

      rule, the policy must be uniformly enforced such that it “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. Rev. Bd. of Ind. Dep’t of Workforce Dev.,

      671 N.E.2d 493, 498 (Ind. Ct. App. 1996).


[9]   Company’s attendance policy contains the following statements:


           “Excessive absence, whether excused or unexcused, tardiness, leaving
            earlier is unacceptable.” Tr. p. 9.
           “If an employee does not call in and report to someone that he or she
            will not be at work the absence will be considered unexcused.
            Unexcused absences can result in termination of employment.” Id.

      The policy does not define “excessive absence,” nor does it explain at what

      point termination may occur for excessive excused or unexcused absences.

      Likewise, it does not state how many “unexcused absences” will, in fact, result

      in termination of employment. We find that the absence of clear, explicit

      explanations in this policy renders it impossible to enforce uniformly.

      Employees do not have notice of what, precisely, is prohibited and acceptable

      under this policy. Consequently, we agree with the Review Board that this




      Court of Appeals of Indiana | Memorandum Decision 93A02-1511-EX-1941 | June 30, 2016   Page 6 of 9
       policy is a guideline, rather than a rule, such that subsection (d)(2) does not

       apply.1


                      B. Good Cause for Absences or Tardiness
[10]   Having affirmed the Review Board’s conclusion that subsection (d)(2) does not

       apply, we must consider whether Company terminated C.H.’s employment for

       just cause under subsection (d)(3). As noted above, subsection (d)(3) provides

       that where, as here, the employer does not have a “rule” regarding attendance,

       “an individual’s unsatisfactory attendance” will constitute just cause for

       termination “if good cause for absences or tardiness is not established[.]” I.C.

       22-4-15-1(d)(3). Here, the Review Board affirmed the ALJ’s finding that C.H.

       had established good cause for his absences and tardiness.


[11]   As a general rule, “[p]ersonal and family health issues are generally considered

       to be legitimate substantive reasons for missing work.” P.M.T. v. Rev. Bd. of Ind.

       Dep’t of Workforce Dev., 956 N.E.2d 764, 768 (Ind. Ct. App. 2011). We afford

       this latitude to employees because “‘[m]ost every wage earner, at various

       periods during his productive life, faces family emergencies and matters of

       urgent personal nature. Such absences may if reasonable and not habitual be



       1
         Company directs our attention to multiple verbal and written warnings provided to C.H., arguing that he
       knew he would be terminated if he was tardy or absent again. Our inquiry under subsection (d)(2) is an
       objective one, however, rather than a subjective one. We must examine the language of the relevant policy
       on its face to determine whether it qualifies as a rule; consequently, any specific, subjective knowledge C.H.
       may have had is irrelevant to this inquiry. See Giovanoni v. Rev. Bd. of Ind. Dep’t of Workforce Dev., 927 N.E.2d
       906, 909 (Ind. 2010) (holding that “discharge for excessive absenteeism pursuant to an attendance policy
       analyzed under subsection (d)(2) does not . . . require . . . individualized analysis, but instead looks only to
       the reasonableness of the [employer’s] rule”).

       Court of Appeals of Indiana | Memorandum Decision 93A02-1511-EX-1941 | June 30, 2016                  Page 7 of 9
       excused.’” Giovanoni, 927 N.E.2d at 909 (quoting White v. Rev. Bd. of Ind. Emp.

       Sec. Div., 151 Ind. App. 426, 431, 280 N.E.2d 64, 67 (1972)).


[12]   Here, the record supports the finding that C.H. was absent on June 13, 2014,

       because of the birth of his son on June 11. He was late on March 21, May 7,

       and May 27, 2015. C.H. testified that he was late on May 27 because his son

       was ill and he was trying to decide whether to take him to the doctor. And

       although C.H. did not specifically remember the reasons for his tardiness on

       March 21 and May 7, he testified that “[n]ormally,” if he was late, “it was

       because of my son. I just had him and it was around when he was teething and

       I was up all night with him over that or, you know, sickness. Things of that

       nature.” Tr. p. 17. C.H.’s direct supervisor testified that there were other days

       C.H. was late, but the supervisor did not have specifics about which days those

       were or how many times it occurred. Thus, there is nothing in the record

       establishing that C.H. was absent or late aside from the above three dates.


[13]   As noted above, we may not assess witness credibility on appeal. The ALJ

       found C.H.’s explanation for his absences and tardiness to be credible, and the

       Review Board affirmed that determination. We may not and will not second

       guess that. We find that the above evidence is sufficient to conclude that the

       Review Board’s determination that C.H. established good cause for his

       attendance issues was reasonable.


[14]   Company contends that even if we were to agree with the Review Board that

       C.H. had established good cause for his absences and tardiness, we should still


       Court of Appeals of Indiana | Memorandum Decision 93A02-1511-EX-1941 | June 30, 2016   Page 8 of 9
       reverse because the absences were habitual and unreasonable. It has been

       established, however, that whether a claimant’s absenteeism or tardiness for

       personal or family issues is chronic or habitual so as to make it unreasonable is

       a question of ultimate fact for the Review Board. White, 151 Ind. App. at 432,

       280 N.E.2d at 67. As noted above, the only specific dates in the record are one

       absence and three days of tardiness within a fifteen-month period. While C.H.

       may have been absent or tardy on other days, without specific evidence as to

       how many times that occurred, we cannot conclude that the Review Board was

       unreasonable in determining that C.H.’s attendance issues were not habitual.

       Therefore, we decline to reverse for this reason.


[15]   In sum, we find that the Review Board did not err by determining that

       Company did not terminate C.H. for just cause and, consequently, that C.H. is

       entitled to unemployment compensation.


[16]   The judgment of the Review Board is affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 93A02-1511-EX-1941 | June 30, 2016   Page 9 of 9
