Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                             FILED
before any court except for the purpose                     Jan 29 2013, 9:07 am
of establishing the defense of res
judicata, collateral estoppel, or the law                          CLERK
                                                                 of the supreme court,

of the case.                                                     court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

JOHN P. REED                                      GREGORY F. ZOELLER
Abrahamson Reed & Bilse                           Attorney General of Indiana
Hammond, Indiana
                                                  STEPHANIE ROTHENBERG
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana

                               IN THE
                     COURT OF APPEALS OF INDIANA

ACCESSABILITIES, INC.,                            )
                                                  )
        Appellant,                                )
                                                  )
               vs.                                )       No. 93A02-1207-EX-551
                                                  )
REVIEW BOARD OF THE INDIANA                       )
DEPARTMENT OF WORKFORCE                           )
DEVELOPMENT,                                      )
                                                  )
        Appellee.                                 )


            APPEAL FROM THE REVIEW BOARD OF THE DEPARTMENT OF
                         WORKFORCE DEVELOPMENT
                              Case No. 12-R-1869


                                       January 29, 2013

                MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                    Case Summary

      AccessAbilities, Inc., (“Employer”) appeals decision of the Review Board of the

Indiana Department of Workforce Development (“Review Board”) regarding

unemployment benefits for Michele Norris. We affirm.

                                          Issue

      Employer raises one issue, which we restate as whether the Review Board

properly determined that Norris was not discharged for just cause.

                                          Facts

      Employer provides people with developmental disabilities and the aged with

residential habilitation, community habilitation, and day services. Norris was employed

as a developmental instructor with Employer beginning on February 4, 2008. Employer

has a written policy and procedures manual, which includes a provision that:

              Any employee who receives three disciplinary reports, for
              any reason, in a three month period, will be subject to
              termination following the receipt of another Disciplinary
              Report (the 4th). Each of the Disciplinary Reports, up to the
              final report resulting in termination, will follow the
              procedures for discipline as delineated in this manual.

App. p. 38.

      Norris received a Disciplinary Report on April 7, 2011, for using white-out on

documentation after having been warned not to use white-out.         Norris submitted a

corrective action plan, acknowledged that she had used white-out, and agreed that she

would not use white-out on Employer’s forms again.




                                            2
       On June 8, 2011, Norris was observed raising her voice toward a consumer and

using a “verbally abusive tone” with the consumer. Tr. p. 29. Employer learned that

Norris was maintaining possession of the consumer’s debit card and cash. Employer

filed a report with the State of Indiana and began a state-mandated investigation because

the allegations involved abuse or exploitation. The allegations of abuse and exploitation

could not be substantiated in the investigation, but Employer determined that Norris’s

tone with the consumer was not appropriate. Norris was given another Disciplinary

Report as a result of the inappropriate verbal interactions with the consumer.

       During the investigation of the June 8th incident, Norris was suspended from her

employment and was not allowed to provide services to Employer’s consumers. Separate

from her employment, Norris was a representative payee for one of Employer’s

consumers.    Norris sent repeated disrespectful and inappropriate text messages to a

supervisor, Heather Opperman, regarding the consumer’s care. Employer gave Norris a

third Disciplinary Report as a result of the text messages. That Disciplinary Report

informed Norris that “one more Disciplinary Report, in the month of June 2011, will

result in termination from her position . . . .” App. p. 85.

       Norris was to remain suspended until she attended a New Employee Training class

at 10:00 a.m. on June 29, 2011. However, Norris arrived late to the training. Employer

contends that Norris arrived at 10:15 a.m., while Norris argues that she arrived at 10:04

a.m. Norris was given a fourth Disciplinary Report because she was late for the training,

and her employment was terminated by Employer.



                                              3
      Norris filed for unemployment benefits, and on February 27, 2012, a claims

deputy of the Department of Workforce Development found that Norris was not

discharged for just cause and was eligible for benefits. Employer appealed the deputy’s

determination, and a hearing was held before an administrative law judge (“ALJ”). After

the hearing, the ALJ issued findings of fact and conclusions thereon affirming the claims

deputy’s determination. The Employer appealed the ALJ’s determination to the Review

Board, which adopted and incorporated the ALJ’s findings of fact and conclusions

thereon and affirmed the ALJ’s decision, which provided, in part:

             The employer did not present any documentary evidence to
             show that the fourth disciplinary report which resulted in the
             claimant’s discharge had followed the procedures for
             discipline as delineated in the manual. The employer did not
             present any evidence to show that a warning was to be issued
             to an individual who was four minutes late in reporting for a
             training. The other disciplinary reports did not deal with
             attendance issues.

                                        *****

             It is concluded that the rule that the employer was enforcing
             in this case was having greater than three disciplinary reports
             in a three month period. The last disciplinary report which
             brought about her discharge involved an alleged tardiness
             violation. It is concluded that the employer did not produce
             documentary evidence to show that the attendance policy was
             properly enforced. This procedure concerning greater than
             three disciplinary reports requires the employer to follow the
             procedures for discipline as delineated in the manual. The
             claimant was determined to be tardy because of arriving four
             minutes late for training. It is concluded that the employer
             did not present any documentary evidence to show that one
             incident of tardiness should result in a discharge.

             Further, the employer has admitted that the allegations made
             in the employee disciplinary report concerning the incident of

                                           4
             June 8 through June 10, 2011, (Employer’s Exhibit 10), were
             not substantiated. Therefore, the claimant did not accumulate
             more than three valid disciplinary reports during a three
             month period.

             It is concluded that the claimant did not violate the
             employer’s rule. It is concluded that the employer failed to
             meet its burden of proof to show that the claimant knowingly
             violated a reasonable and uniformly enforced rule concerning
             greater than three disciplinary reports in a three month period.
             Therefore, it is concluded that the claimant was discharged
             but not for just cause within the meaning and intent of I.C.
             22-4-15-1.

Id. at 5-6. Employer now appeals.

                                        Analysis

      Employer argues that the Review Board erred when it found that Norris was

eligible to receive unemployment benefits. On appeal, we review the Review Board’s (1)

determinations of specific or basic underlying facts; (2) conclusions or inferences from

those facts, or determinations of ultimate facts; and (3) conclusions of law. McClain v.

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

The Review Board’s findings of basic fact are subject to a “substantial evidence”

standard of review. Id. In this analysis, we neither reweigh the evidence nor assess the

credibility of witnesses and consider only the evidence most favorable to the Review

Board’s findings. Id. Reversal is warranted only if there is no substantial evidence to

support the Review Board’s findings. Id. (citing KBI, Inc. v. Review Bd. of Indiana

Dep’t of Workforce Dev., 656 N.E.2d 842, 846 (Ind. Ct. App. 1995)). Next, the Review

Board’s determinations of ultimate facts, which involve an inference or deduction based

upon the findings of basic fact, are generally reviewed to ensure that the Review Board’s

                                            5
inference is reasonable.    Id. at 1317-18.       Finally, we review conclusions of law to

determine whether the Review Board correctly interpreted and applied the law. McHugh

v. Review Bd. of Indiana Dep’t of Workforce Dev., 842 N.E.2d 436, 440 (Ind. Ct. App.

2006).

         In Indiana, an employee is ineligible for unemployment benefits if he or she is

discharged for just cause. Recker v. Review Bd. of Ind. Dep’t of Workforce Dev., 958

N.E.2d 1136, 1140-41 (Ind. 2011); Ind. Code § 22-4-15-1. Indiana Code Section 22-4-

15-1(d) delineates nine non-exclusive scenarios that can amount to “[d]ischarge for just

cause,” which include “any breach of duty in connection with work which is reasonably

owed an employer by an employee.”          The 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.” Recker, 958 N.E.2d at 1140 (quoting Hehr v.

Review Bd. of Ind. Emp’t. Sec. Div., 534 N.E.2d 1122, 1126 (Ind. Ct. App. 1989)).

               In considering whether an employer may utilize this provision
               as a basis for justifying its action, the Board should consider
               whether the conduct which is said to have been a breach of a
               duty reasonably owed to the employer is of such a nature that
               a reasonable employee of the employer would understand that
               the conduct in question was a violation of a duty owed the
               employer and that he would be subject to discharge for
               engaging in the activity or behavior.

Recker, 958 N.E.2d at 1140-41 (quoting Hehr, 534 N.E.2d at 1126). The employer bears

the burden of establishing a prima facie showing of just cause for termination, and if that

burden is met, the burden shifts to the employee to introduce competent evidence to rebut

the employer’s case. Herr, 534 N.E.2d at 1124.


                                              6
       Employer argues that the Review Board’s findings are clearly erroneous regarding

the tardiness incident and associated fourth Disciplinary Report. Employer’s manual

provided that “[e]ach of the Disciplinary Reports, up to the final report resulting in

termination, will follow the procedures for discipline as delineated in this manual.” App.

p. 38. The Review Board concluded that Employer failed to produce documentary

evidence regarding its attendance policy and the procedures for discipline regarding

attendance. The portions of the manual that were admitted did not address attendance

policies and whether a Disciplinary Report was an appropriate response to being fifteen

minutes late to a training.

       Employer argues that the ALJ improperly limited the admission of the entire

manual. However, the ALJ emphasized that Employer should move to admit only the

policies that brought about Norris’s discharge. Employer apparently did not move to

admit the attendance policy at issue here. The ALJ could not err by failing to admit a

policy that Employer did not request to have admitted.

       Employer failed to meet its burden of demonstrating that the fourth Disciplinary

Report was proper. As a result, Norris did not receive four valid Disciplinary Reports in

a three month period to justify her discharge. Because the Review Board’s findings and

conclusions regarding the validity of the fourth Disciplinary Report are not clearly

erroneous, we need not address Employer’s arguments regarding the Disciplinary Report

for the June 8th through June 10th incident.




                                               7
                                    Conclusion

      The Review Board’s findings and conclusions are not clearly erroneous, and the

Review Board properly concluded that Norris was entitled to unemployment benefits.

We affirm.

      Affirmed.

BAKER, J., and RILEY, J., concur.




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