MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                Aug 25 2015, 10:13 am
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Abigail Seif                                            Gregory F. Zoeller
Epstein, Cohen, Seif & Porter                           Attorney General of Indiana
Indianapolis, Indiana                                   Kristin Garn
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

K.L.,                                                   August 25, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        93A02-1409-EX-682
        v.                                              Appeal from the Review Board of
                                                        the Department of Workforce
Review Board of the Indiana                             Development
Department of Workforce                                 Steven F. Bier, Chairperson
Development and Indiana                                 George H. Baker, Member
University Health
                                                        Lawrence A. Dailey, Member
Appellee-Plaintiff
                                                        Cause No. 14-R-01546



Friedlander, Judge.




Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015   Page 1 of 19
[1]   K.L. appeals from the decision of the Review Board of the Indiana Department

      of Workforce Development (the Review Board) denying her application for

      unemployment benefits. K.L. presents four issues for our review, which we

      consolidate and restate as:

              1. Whether the Review Board applied the appropriate standard in
              evaluating the evidence?
              2. Whether enactment of Ind. Code Ann. § 22-4-1-2 (West, Westlaw
              current with all 2015 First Regular Session of the 119th General
              Assembly legislation), which redefined the burden-shifting framework
              previously applied in making determinations as to unemployment
              benefits, violates an applicant’s due process rights?
              3. Whether the Review Board properly concluded that K.L. was
              terminated for just cause and therefore was ineligible for
              unemployment benefits?
[2]   We affirm.

[3]   K.L. was employed by Indiana University Health (IU Health) in Indianapolis

      from October 11, 2010 until May 20, 2014. At the time of her termination,

      K.L.’s job title was Strategic Value Analyst. The Director of Contracting and

      Value Analysis for IU Health, Linda York, cited K.L.’s failure to meet

      deadlines, to use critical thinking abilities, and her overall inability to perform

      the functions of the job as reasons for her termination. After her termination,

      K.L. sought unemployment benefits. On June 30, 2014, a claims deputy with

      the Indiana Department of Workforce Development determined that K.L. was

      not discharged for just cause and therefore was eligible for unemployment

      benefits. On July 10, 2014, IU Health appealed the claims deputy’s

      determination. An Administrative Law Judge (ALJ) conducted an evidentiary


      Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015   Page 2 of 19
      hearing on July 30, 2014, at which K.L., York, and Stacey Slott, a Team

      Leader with IU Health, testified.

[4]   On August 1, 2014, the ALJ issued a decision. The facts as determined by the

      ALJ and subsequently adopted by the Review Board are as follows:

              The claimant began work with the employer on October 11, 2010.
              The claimant was transferred to the contracting department in January
              2013. The claimant’s job title was strategic value analyst and she was
              a full time salaried employee. The claimant was discharged on May
              20, 2014.
              When the claimant came to the new department, Ms. Slott continually
              repeatedly trained the claimant on the programs and procedures for
              the department. The claimant’s responsibility was to do cost analysis
              information for supplies, negotiate contracts and keep track of this
              information. The employer works with hospitals. For example if the
              hospitals needed more ID bracelets, it was the claimant’s obligation to
              gather the information, obtain quotes from vendors and negotiate the
              contact and the pricing. The employer became increasingly concerned
              regarding the claimant’s performance in January, 2014. By this time,
              the claimant had been relieved of her duties of her old job, but was still
              not performing her new job duties adequately. The employer was
              receiving complaints that the claimant was repeatedly requesting the
              same information, not following instructions and failing to follow up
              on information.
              Ms. Slott began to have one-on-ones with the claimant to discuss her
              performance. Ms. Slott testified and the Administrative Law Judge
              finds, that the claimant’s attitude improved but she continued to fail to
              follow up on her items and to get work done. She would repeatedly
              not meet deadlines or utilize tools that Ms. Slott had made available to
              her. In April 2014, the employer sent the claimant an[] email
              requesting that she set out timelines for completing some work that the
              employer was concerned about. This included a project involving
              batteries. However, the claimant never read the email even if she had
              admits [sic] receiving it from her supervisor. The employer met with
              the claimant to discuss the timelines on April 24th. At that time, the
              claimant admitted she had not read the email and had not drafted any

      Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015   Page 3 of 19
        timelines. The employer was concerned by this and gave the claimant
        a warning. The claimant was warned that she was given until May 2
        to draft a timeline and deadlines for her work assignments. The
        claimant was also spoken to about using appropriate procedures and
        initiative.
        On May 2nd, the claimant presented her timelines. However, the
        timelines failed to follow procedures the employer utilizes for their
        work. It did not include any deadlines. The claimant was given a
        continued performance improvement plan on May 5, 2014 regarding
        these concerns. The employer was concerned that the timelines did
        not include any deadlines. The employer also expressed concerns
        about the claimant’s continued lack of understanding the processes
        despite multiple training sessions and the claimant had repeatedly
        signed off admitting that she understood the information. She did not
        understand the process of initiatives and continued to have vendor
        complaints. For example, the claimant had failed to use forms and
        information on proper procedures found on the F drive. The claimant
        alleged she was never told of these documents on the F drive.
        However, the claimant had been repeatedly trained on them and
        signed off, acknowledging having been trained on them. The
        expectations for improvement included that the claimant needed to
        meet deadlines immediately, demonstrate the ability to correct price
        discrepancies and to provide project plans for ongoing initiatives. On
        May 6, 2014, the employer sent a follow up email, with the claimant’s
        timelines attached, reminding the claimant that “it is the expectation
        that you will have all of the initiatives listed well under way with clear
        progress or completion” within the next two weeks. On May 20th, the
        employer met with the claimant again. The claimant had not
        completed the projects. The claimant continued to fail to utilize the
        appropriate steps and procedures for completing work. The claimant
        was discharged.
        The claimant argued at the hearing that her poor performance was
        caused by lack of training or other employee’s errors. For example,
        she claims she was never told of forms and procedures available on the
        F drive. However, the employer testified and the Administrative Law
        Judge finds that the claimant was repeatedly trained on them and
        signed off that she knew and understood the procedures. The claimant
        blamed other employees for giving her poor information. However,
        the employer noted that one of the claimant’s job duties is to manage

Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015   Page 4 of 19
              her timeline and making sure she’s obtaining correct and timely
              information. The claimant argues that she had shown improvement
              between the May 5th and the May 20th discharge. However, the
              employer testified and the Administrative Law Judge finds, that the
              claimant continued to fail to understand procedures, follow initiatives
              and complete work in a timely manner.
      Appellee’s Appendix at 2-3. Based on these findings, the ALJ concluded that K.L.

      was terminated for just cause1 and therefore was ineligible for unemployment

      benefits. K.L. appealed the ALJ’s decision to the Review Board. On August

      29, 2014, the Review Board issued its decision in which it affirmed and adopted

      as its own the decision previously rendered by the ALJ. K.L. now appeals.

                                                           1.

[5]   K.L. argues that the Review Board did not properly apply the law with regard

      to burden of proof. Specifically, K.L. asserts that the Review Board erred by

      retroactively applying I.C. § 22-4-1-2(c), which provision redefined the burden-

      shifting framework that had been previously articulated in case law by

      reviewing courts such that now both parties are required to present their

      evidence as to whether termination was for just cause and a decision is to be

      made thereon “without regard to a burden of proof.”




      1
        Reading the ALJ’s conclusions in total, it is clear that the ALJ, and ultimately the Review Board,
      determined that K.L. was discharged for “just cause” because she breached a duty “in connection with work
      which is reasonably owed an employer by an employee.” Appellee’s Appendix at 4; see also Ind. Code Ann. §
      22-4-15-1 (West, Westlaw current with all 2015 First Regular Session of the 119th General Assembly
      legislation) (“[d]ischarge for just cause . . . is . . . any breach of duty in connection with work which is
      reasonably owed an employer by an employee”).

      Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015            Page 5 of 19
[6]   A general rule of statutory construction is that unless there are strong and

      compelling reasons, statutes will not be applied retroactively. See Holding Co. v.

      Mitchell, 589 N.E.2d 217 (Ind. 1992); Chestnut v. Roof, 665 N.E.2d 7 (Ind. Ct.

      App. 1996). In other words, a statute will be applied prospectively in the

      absence of an express statement by the legislature that it be applied

      retroactively. Ind. Dep’t of Envtl. Mgmt. v. Chem. Waste Mgmt. of Ind., Inc., 604

      N.E.2d 1199 (Ind. Ct. App. 1992), trans. denied. “An exception to this general

      rule exists for remedial statutes, i.e. statutes intended to cure a defect or

      mischief that existed in a prior statute.” Bourbon Mini-Mart, Inc. v. Gast Fuel &

      Servs., Inc., 783 N.E.2d 253, 260 (Ind. 2003). The issue of retroactivity is a

      question of law which this court reviews de novo. Ind. Dep’t of Envtl. Mgmt. v.

      Chem. Waste Mgmt. of Ind., Inc., 604 N.E.2d 1199; Bellows v. Bd. of Comm’rs of

      Cnty. of Elkhart, 926 N.E.2d 96 (Ind. Ct. App. 2010).


[7]   The legislature enacted I.C. § 22-4-1-2, which went into effect July 1, 2014, and

      redefined the burden of proof to be used in making determinations about

      eligibility for unemployment compensation. Specifically, in subsection (c), the

      legislature provided that “[a]n applicant’s entitlement to unemployment benefits

      is determined based on the information that is available without regard to a burden

      of proof.” (Emphasis supplied.) Subsection (c) superseded existing case law

      which, prior to the enactment of I.C. § 22-4-1-2, set forth a burden-shifting

      framework in the unemployment context whereby the employer who alleged

      that an employee was discharged for just cause carried the burden of

      establishing a prima facie case of discharge for just cause. See Albright v. Review

      Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015   Page 6 of 19
      Bd. of Ind. Dep’t of Workforce Dev., 994 N.E.2d 745 (Ind. Ct. App. 2013). Only

      after the employer met its burden did the burden then shift to the employee to

      rebut the employer’s evidence. Id.


[8]   Here, K.L. was terminated from her position and filed her application for

      unemployment benefits prior to July 1, 2014. The claims deputy granted K.L.’s

      application for unemployment benefits on June 30, 2014. I.C. § 22-4-1-2 went

      into effect the following day. IU Health appealed and the ALJ conducted a

      hearing and issued findings of fact and conclusions of law on August 1, 2014, a

      month after I.C. § 22-4-1-2 went into effect. At the start of the July 10 review

      hearing and in her order denying K.L. unemployment benefits, the ALJ set

      forth the new standard set out in I.C. § 22-4-1-2, specifically noting that the

      burden of proof had been redefined and that there was no longer a presumption

      of entitlement to unemployment benefits.2 The ALJ then made findings and

      conclusions based upon the evidence submitted by both sides. The Review

      Board affirmed the ALJ’s findings and conclusions with the following

      addendum:

              In her opening remarks, the Administrative Law Judge initially began
              to instruct the parties as to which party had the burden of proof, but
              the Administrative Law Judge corrected herself and explained that
              there is no longer a burden of proof in unemployment cases. The
              Administrative Law Judge did not assign the burden of proof to either



      2
       In subsection (d) the legislature provided: “There is no presumption of entitlement or nonentitlement to
      unemployment benefits. There is no equitable or common law allowance for or denial of unemployment
      benefits.”



      Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015           Page 7 of 19
               party after correcting herself on the record. Furthermore, the
               Administrative Law Judge correctly explained in her decision that the burden of
               proof has been eliminated and did not apply the burden of proof to either party
               in her decision.
       Appellee’s Appendix at 1 (emphasis supplied).


[9]    On appeal, K.L. argues that the Review Board “violated a time-honored

       presumption against retroactive application of laws absent clear legislative

       intent to the contrary.” Appellant’s Brief at 6. K.L. notes that the initial decision

       granting her unemployment benefits was made applying the burden of proof to

       the employer to establish that K.L. was terminated for just cause. K.L.

       maintains that she was not given notice that a different standard would be

       applied and that the application of the different standard midway through her

       case is unfair. In response, the Review Board asserts that I.C. § 22-1-4-2(c) is

       directed at the administrative appeals process, and thus, maintains that it

       correctly applied the law in effect at the time the administrative appeals process

       was initiated, i.e., July 10, 2014, which was after I.C. § 22-1-4-2 took effect.

[10]   We need not delve into the parties’ competing arguments because under either

       standard, the result is the same. We begin by noting that both parties were

       present during the telephonic hearing with the ALJ, were permitted to present

       testimony and cross-examine witnesses, and each submitted documentation in

       support of their respective positions. K.L. testified on her own behalf and

       explained her understanding of the events leading up to her termination. York

       and Slott testified on behalf of IU Health. The ALJ considered all of the

       evidence presented and found that the evidence tipped the scales in favor of IU


       Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015   Page 8 of 19
       Health. Thus, even if the burden-shifting framework that existed prior to the

       enactment of I.C. § 22-4-1-2 had been applied, the outcome would have been

       the same. To be sure, the Review Board’s evidence would have satisfied its

       burden of proof had the burden been attributed to the Review Board, and K.L.’s

       evidence did not rebut the evidence presented by IU Health. We therefore

       conclude that if the Review Board incorrectly applied the new standard set forth

       in I.C. § 22-4-1-2, any resulting error was harmless. See Ind. State Highway

       Comm’n v. Ind. Civil Rights Comm’n, 424 N.E.2d 1024 (Ind. Ct. App. 1981)

       (applying the doctrine of harmless error in appellate review of an administrative

       decision).


                                                         2.

[11]   K.L. argues I.C. § 22-4-1-2 in its current form is unconstitutional as it deprives

       the applicant for unemployment benefits due process of law. Specifically, K.L.

       asserts that the legislature’s enactment of I.C. § 22-4-1-2 redefining “the long

       standing burden on the employer to prove ‘just cause’ and ‘breach of duty forces

       ALJ’s [sic] to make arbitrary and unpredictable decisions.” Appellant’s Brief at

       15. K.L. further assets that the change brought about by I.C. § 22-4-1-2

       essentially gives absolute discretion to ALJs and the Review Board in deciding

       who may receive unemployment benefits. K.L. maintains that the result will be

       a “loss of any predictability or protection for the employee” and an increase in

       erroneous deprivation of unemployment benefits. Appellee’s Brief at 14. K.L.

       requests a new hearing at which IU Health should be required to bear the

       burden of proving that she was discharged for just cause.

       Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015   Page 9 of 19
[12]   When a statute is challenged as an alleged violation of the Indiana

       Constitution, our standard of review is well-established. Every statute stands

       before us clothed with the presumption of constitutionality until clearly

       overcome by a contrary showing. Boehm v. Town of St. John, 675 N.E.2d 318

       (Ind. 1996). The party challenging the constitutionality of the statute bears the

       burden of proof, and all doubts are resolved against that party. Id. If there are

       two reasonable interpretations of a statute, one of which is constitutional and

       the other not, we will choose that path which permits upholding the statute

       because we will not presume that the legislature violated the constitution unless

       such is required by the unambiguous language of the statute. Id. This court

       reviews the constitutionality of statutes with the understanding that “‘[t]he

       legislature has wide latitude in determining public policy, and we do not

       substitute our belief as to the wisdom of a particular statute for those of the

       legislature.’” Id. at 321 (quoting State v. Rendleman, 603 N.E.2d 1333, 1334

       (Ind. 1992)).

[13]   The Due Process Clause of the Fourteenth Amendment declares that no State

       shall “deprive any person of life, liberty, or property, without due process of

       law.” U.S. Const. amend. XIV, § 1. Due process contains both substantive

       and procedural elements. The issue presented concerns a burden of proof,

       which is a procedural matter.

[14]   In analyzing a procedural due process claim, we engage in a two-part inquiry:

       “‘The first inquiry in every due process challenge is whether the plaintiff has

       been deprived of a protected interest in property or liberty. Only after finding

       Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015   Page 10 of 19
       the deprivation of a protected interest do we look to see if the State’s procedures

       comport with due process.’” Perdue v. Gargano, 964 N.E.2d 825, 832 (Ind. 2012)

       (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999)). Further, we

       note that “the fundamental requirement of procedural due process is the

       opportunity to be heard at a meaningful time and in a meaningful manner.” Id.

       When a deprivation is contemplated, “these principles require ... an effective

       opportunity to defend by confronting any adverse witnesses and by presenting

       his own arguments and evidence orally.” Id. Whether a party was denied due

       process is a question of law that we review de novo. NOW Courier, Inc. v. Review

       Bd. of Ind. Dep’t of Workforce Dev., 871 N.E.2d 384.


[15]   Here, the legislature simply redefined the burden of proof and expressly

       provided that new procedure for determining entitlement to unemployment

       compensation is to consider all the information brought forth by the parties. A

       review of the statutes comprising Indiana’s Unemployment Compensation Act

       shows that there are numerous procedural safeguards to protect against

       arbitrary decisions by ALJs and any erroneous deprivation of unemployment

       benefits. By statute, ALJs are trained and required to ensure that a case is fully

       presented. To be sure, ALJs must be trained annually concerning

       unemployment law, rules for the conduct of hearings and appeals, and rules of

       conduct for ALJs and other individuals who adjudicate claims. I.C. § 22-4-17-

       4(b) (West, Westlaw current with all 2015 First Regular session of the 119th

       General Assembly legislation). The Department of Workforce Development is

       charged with monitoring hearings and decisions of ALJs, review board


       Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015   Page 11 of 19
       members, and other adjudicators to ensure that they follow the law. I.C. § 22-4-

       17-4(c). To safeguard against arbitrary decisions by an ALJ, the Review Board

       is statutorily charged with reviewing decisions of ALJs and has discretion to

       decide whether additional information is necessary. I.C. § 22-4-17-5(b) (West,

       Westlaw current with all 2015 First Regular Session of the 119th General

       Assembly legislation).

[16]   During the hearing, the ALJ took care to allow both parties to present their

       evidence. K.L. and representatives from IU Health, including K.L. ’s direct

       supervisor and a team leader, appeared at and participated in the July 30

       hearing regarding K.L. ’s entitlement to unemployment benefits. The ALJ

       conducted direct examination of K.L. , York, and Slott, and K.L. was given

       the opportunity to cross-examine them. The ALJ asked K.L. whether she

       objected to inclusion in the record of documents establishing the ALJ’s

       jurisdiction and K.L. responded that she had no objection. K.L. also

       confirmed that she had been provided with IU Health’s exhibits prior to hearing

       and that she had no objection to consideration thereof. K.L. was also given the

       opportunity to rebut the evidence provided in the exhibits. Additionally, the

       ALJ ensured that K.L. understood the procedures to be employed during the

       hearing and that she understood her appeal rights. After the ALJ rendered the

       decision, K.L. appealed to the Review Board. The Review Board reviewed the

       matter and affirmed the ALJ’s determination.

[17]   K.L. does not argue that she was deprived of her right to be heard or that the

       hearing was conducted improperly. To the contrary, K.L. was unquestionably

       Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015   Page 12 of 19
       afforded a meaningful opportunity to be heard. Moreover, the elimination of

       the burden of proof would have had no impact on the conclusion as the ALJ’s,

       and subsequently the Review Board’s, determination was based on all of the

       evidence presented.

[18]   On yet another ground, we conclude that I.C. § 22-4-1-2 does not violate

       principles of due process. As noted above, prior to enactment of I.C. § 22-4-1-2,

       case law had long placed the burden of proof upon the employer to make a

       prima facie showing that an employee was discharged for just cause. See P.K.E.

       v. Review Bd. of Ind. Dep’t of Workforce Dev., 942 N.E.2d 125 (Ind. Ct. App. 2011),

       trans. denied; Indus. Laundry v. Review Bd. of Ind. Employment Sec. Div., 147

       Ind.App. 40, 258 N.E.2d 160 (1970). In redefining the manner in which

       unemployment decisions are to be made, the legislature was exercising its

       constitutional prerogative to determine public policy relating to unemployment

       benefits and to enact legislation in furtherance thereof. We will not second-

       guess the legislature’s decision in this regard. K.L. has not shown that she was

       denied due process in this matter.

                                                         3.

[19]   K.L. argues that the Review Board failed to make appropriate findings to

       support its determination that she breached a duty in connection with her work,

       which duty she reasonably owed to IU Health as her employer. In any event,

       K.L. also argues that there is insufficient evidence to support the Review

       Board’s determination that K.L. was terminated for just cause.


       Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015   Page 13 of 19
[20]   The Indiana Unemployment Compensation Act provides that any decision of

       the Review Board shall be conclusive and binding as to all questions of

       fact. I.C. § 22-4-17-12(a) (West, Westlaw current with all 2015 First Regular

       Session of the 119th General Assembly legislation effective through June 28,

       2015). When the Review Board’s decision is challenged as being contrary to

       law, our review 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.’” Recker v. Review Bd. of Ind. Dep’t of Workforce Dev.,

       958 N.E.2d 1136, 1139 (Ind. 2011) (quoting I.C. § 22-4-17-12(f)); McClain v.

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

       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.” Recker v. Review Bd. Of Ind.

       Dep’t of Workforce Dev., 958 N.E.2d 1139.


[21]   The Review Board’s findings of basic fact are subject to a “substantial

       evidence” standard of review. 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. McClain v. Review Bd.

       of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314. 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. at 1317-18 (citation and quotation marks omitted). We review

       Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015   Page 14 of 19
       the Review Board’s conclusions of law using a de novo standard. Ind. State

       Univ. v. LaFief, 888 N.E.2d 184, 186 (Ind. 2008).


[22]   In Indiana, an individual is ineligible to receive unemployment benefits if

       he/she was discharged for “just cause.” I.C. § 22-4-15-1(a). Discharge for just

       cause is defined, in pertinent part, as “any breach of duty in connection with

       work which is reasonably owed an employer by an employee.” I.C. § 22-4-15-

       1(d)(9). “[T]he ‘breach of duty’ ground for just cause discharge is an

       amorphous one, without clearly ascertainable limits or definition, and with few

       rules governing its utilization.” Hehr v. Review Bd. of Ind. Employment Sec. Div.,

       534 N.E.2d 1122, 1126 (Ind. Ct. App. 1989). When applying a breach of duty

       analysis in this context, the Review Board must ascertain whether the action of

       the employee was considered a breach of a duty reasonably owed to the

       employer, and second, the Review Board must determine if the employee was

       at fault for the breach. Recker v. Review Bd. of Ind. Dep’t of Workforce Dev., 958

       N.E.2d at 1140. Whether a person beaches a duty owed to the employer “is a

       very fact-sensitive determination which must be made on a case by case basis.”

       Hehr v. Review Bd. of Ind. Employment Sec. Div., 534 N.E.2d at 1127.




       Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015   Page 15 of 19
[23]   Here, the ALJ concluded, and the Review Board affirmed, that IU Health

       discharged K.L. for just cause within the meaning of I.C. § 22-4-15-1(d)(9).3

       Specifically, it was determined that

               the claimant failed repeatedly to perform her job duties adequately.
               The ALJ concludes the claimant’s failure to perform adequately was
               within the claimant’s control, because she was failing to follow such
               simple steps such as reading emails, utilizing available forms, meeting
               deadlines, and following the employer’s instructions. The claimant
               was given adequate training and assistance to meet her requirements,
               but failed to do so. Therefore, the Administrative Law Judge
               concludes the claimant was discharged for just cause as defined by
               Chapter 15-1 of the Act.
       Appellee’s Appendix at 4-5.


[24]   K.L. first argues that the Review Board did not make appropriate findings to

       support its conclusion. Although the Review Board, in adopting the ALJ’s

       findings and conclusions, did not explicitly state its conclusion that she was

       terminated for just cause in terms of I.C. § 22-4-15-1(d)(9), such does not

       necessitate reversal. A reading of the Review Board’s decision in its entirety

       and the reasonable inferences drawn therefrom demonstrate that the Review

       Board determined that K.L. breached a duty in connection with her work,

       which duty she reasonably owed to IU Health as her employer.




       3
         K.L. argues that the Review Board failed to make specific findings relating to I.C. § 22-4-15-1(d). Upon
       reading the ALJ’s order, which the Review Board adopted, it is clear in context that a determination was
       made that K.L. was discharged for just cause because she “breach[ed] a duty in connection with work which
       is reasonably owed an employer by an employee.” I.C. § 22-4-15-1(d)(9).

       Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015         Page 16 of 19
[25]   K.L. also argues that the Review Board’s factual findings do not support its

       conclusion that she was terminated for just cause. Specifically, K.L. argues that

       her actions, which she does not dispute, did not constitute breach of a duty

       reasonably owed to her employer. Further, K.L. directs us to evidence that she

       claims supports her belief that she was discharged in retaliation for a letter she

       wrote criticizing the manner in which she was evaluated.

[26]   The record demonstrates that K.L. performed substandard work, despite

       repeated training and correction. As noted in the Review Board’s findings,

       K.L. failed to follow such simple steps such as reading emails, utilizing

       available forms, meeting deadlines, and following specific instructions. In

       January 2014, K.L.’s supervisors reviewed K.L.’s work and informed her that

       she was not meeting expectations in taking initiative and developing expertise.

       Over the course of the next few months, K.L.’s work performance did not

       improve despite additional training and assistance. We have before held that a

       pattern of substandard work performance, despite repeated correction, may

       constitute a breach of duty in connection with work that was reasonably owed

       to an employer and is of such a nature that a reasonable employee would

       understand that the conduct was a violation of a duty owed to the employer.

       Seabrook Dieckmann & Naville, Inc. v. Review Bd. of Ind. Dep’t of Workforce Dev., 973

       N.E.2d 647 (Ind. Ct. App. 2012) (citing Van Cleave v. Review Bd. of Ind.

       Employment Sec. Div., 517 N.E.2d 1260 (Ind. Ct. App. 1988) (noting that the

       claimant persisted in a pattern of substandard work performance even though

       he knew what his duties were, had received training and assistance, and had


       Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015   Page 17 of 19
       been disciplined for substandard performance, and affirming the Board’s

       decision denying the employee benefits)).

[27]   In addition to the above, K.L. asserts that IU Health did not establish that its

       expectations relating to K.L.’s work product were reasonable. K.L., however,

       did not argue and does not now challenge that IU Health’s expectations were

       unreasonable. The facts demonstrate that K.L. was adequately trained and

       received assistance in completing tasks related to her position. K.L.

       acknowledged that she understood IU Health’s policies and that she understood

       the requirements of her position. K.L. never indicated that IU Health’s

       expectations of her in her position were unreasonable.

[28]   Further, we note that K.L. does not claim her inability to adequately perform

       the functions of her job was the result of factors not within her control. See, e.g.,

       Giovanoni v. Review Bd. of Ind. Dep’t of Workforce Dev., 927 N.E.2d 906 (Ind.

       2010) (holding that claimant’s violation of employer’s attendance policy due to

       debilitating medical condition subjected claimant to discharge, but such did not

       disqualify employee from unemployment compensation because employee was

       discharged through no fault of his own). Indeed, K.L. acknowledged that she

       had been trained on how to perform her job and admitted that she could have

       done a better job with certain aspects of her position. She offered no

       explanation for her inability to follow procedures, contact appropriate parties

       for necessary information, or timely complete tasks. K.L. simply did not follow

       procedures, use appropriate forms, read emails, meet deadlines, or follow

       instructions.

       Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015   Page 18 of 19
[29]   Having reviewed the record that was before the ALJ and the Review Board,

       including the testimony of the parties, we conclude that IU Health adequately

       demonstrated that K.L. breached a duty in connection with work, which duty

       was reasonably owed IU Health, and that a reasonable employee of IU Health

       would understand that the conduct at issue was a violation of the duty owed.

       Accordingly, the Review Board’s determination that K.L. was terminated for

       just cause is affirmed. To the extent K.L. asserts on appeal a different reason

       for her termination, we will not reweigh the evidence.

[30]   Judgment affirmed.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015   Page 19 of 19
