MEMORANDUM DECISION
                                                                Jul 10 2015, 9:49 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be 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
John R. Maley                                             REVIEW BOARD
Barnes & Thornburg LLP                                    Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Aaron T. Craft
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Wernle Youth & Family                                     July 10, 2015
Treatment Center, Inc.,                                   Court of Appeals Case No.
                                                          93A02-1501-EX-19
Appellant,
                                                          Appeal from the Review Board of the
        v.                                                Department of Workforce
                                                          Development

Review Board of the Indiana                               Case No. 73921
Department of Workforce
Development and C.B.,
Appellees




Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 93A02-1501-EX-19 | July 10, 2015      Page 1 of 9
                                                 Case Summary 1
[1]   Wernle Youth & Family Treatment Center, Inc., (“Wernle”) appeals the

      decision of the Review Board of the Indiana Department of Workforce

      Development (“Review Board”) affirming an administrative law judge’s

      (“ALJ”) determination that Wernle’s discharge of employee C.B. was not for

      just cause. Concluding that there is substantial evidence to support the Board’s

      decision and that the decision is not unreasonable, we affirm.


                                    Facts and Procedural History 2
[2]   The evidence favorable to the findings of fact adopted by the Review Board

      indicates that in June of 2012, C.B. began working for Wernle as a therapeutic

      behavior specialist responsible for overseeing the care of children and

      adolescents with emotional, behavioral, and/or mental health issues at

      Wernle’s residential treatment facility. C.B. worked full time and was paid

      $9.00 per hour.



      1
        Pursuant to Indiana Administrative Rule 9, the names of parties to unemployment compensation
      proceedings are confidential. However, the party or person affected by the release of protected personal
      information may waive the right to exclude the court record from public access. Ind. Administrative Rule
      9(G)(6). Here, Wernle used its own name in its appellate pleadings and did not file any of its briefs or
      appendix on green paper. Thus, Wernle has waived the right to have its name excluded from the court
      record. See Advanced Corr. Healthcare, Inc. v. Review Bd. of Ind. Dep’t of Workforce Dev., 27 N.E.3d 322, 324 n.1
      (Ind. Ct. App. 2015). Although not individually taking part in this appeal, C.B. has demonstrated no intent
      to waive confidentially, and consequently we will refer to her by her initials.
      2
        As noted by the Review Board, Wernle’s statement of facts is not “in accordance with the standard of
      review appropriate to the judgment or order being appealed.” Ind. Appellate Rule 46(A)(6)(b). Wernle also
      improperly refers to additional evidence that was submitted to the Review Board following the ALJ’s
      decision even though that evidence was specifically not accepted or considered by the Review Board. See
      Appellant’s App. at 5. Finally, Wernle inappropriately refers to C.B. by her full name despite the fact that
      C.B. has not waived her entitlement to confidentiality. See Advanced Corr. Healthcare, Inc., 27 N.E.3d at 324
      n.1.

      Court of Appeals of Indiana | Memorandum Decision 93A02-1501-EX-19 | July 10, 2015                     Page 2 of 9
[3]   On September 3, 2014, C.B. was working at Wernle when she became aware

      that a fourteen-year-old male resident had stolen a breakfast bar. C.B.

      confronted the resident, and the resident became angry. The resident

      responded by getting close to C.B. and balling his fists. C.B. said to the

      resident, “You need to get the hell out of my boundaries.” Appellant’s App. at

      28. A coworker of C.B.’s reported the incident, and Wernle investigated. As

      part of the investigation, coworker Brittney McGuire provided a written

      statement. In the statement, McGuire alleged that C.B. took off her jacket,

      threatened to fight the resident, and used profanity. McGuire’s statement was

      not specific regarding what profanity C.B. allegedly used. Wernle discharged

      C.B. on September 5, 2014, for engaging in prohibited conduct in violation of

      company policy.


[4]   A claims deputy with the Indiana Department of Workforce Development

      determined that Wernle discharged C.B. for just cause and consequently that

      C.B. was ineligible for unemployment benefits. C.B. appealed that

      determination. A telephonic hearing was subsequently held by an ALJ.

      Wernle’s director of human resources, Gretchen Johnson, and Wernle’s senior

      program manager, John Claiborne, testified on behalf of Wernle. C.B. testified

      on her own behalf. 3 During the hearing, C.B. denied threatening to fight the

      resident. C.B. claimed that she was attempting to redirect the angry teen and

      handle the situation pursuant to her training. C.B. also denied that her actions



      3
          Neither Wernle nor C.B. was represented by counsel during the hearing.

      Court of Appeals of Indiana | Memorandum Decision 93A02-1501-EX-19 | July 10, 2015   Page 3 of 9
      were mentally abusive to the resident. Johnson testified that she reviewed

      surveillance video of the incident, which did not include audio. Johnson stated

      that her main concern was C.B.’s physical behavior toward the resident, rather

      than any statements that C.B. may have made. Johnson noted that the video

      showed that C.B. took off her jacket during the incident. Johnson felt this was

      a sign that C.B. wanted to fight the resident. Johnson also noted that C.B.

      made a motion with her shoulders that Johnson described as “she was like

      lunging towards” the resident. Id. at 18. Johnson testified that she considered

      this to be a threat to the resident. C.B. disagreed with Johnson’s description

      and stated that although she “was fully in an assertive motion,” she did not

      “physically lunge at him at all.” Id. at 29. C.B. further explained that she used

      verbal and physical prompts to redirect the resident in accordance with her

      training.


[5]   In support of Wernle’s decision to discharge C.B., Johnson cited to Wernle’s

      employee manual and certain relevant company policies. Under the heading

      “Prohibited Conduct” the manual provides:

              Certain conduct may result in immediate termination. The
              management at Wernle will investigate reports of prohibited conduct
              and will determine responses based upon the findings on a case-by-
              case basis. Some acts of prohibited conduct that may result in
              immediate termination include but are not limited to:
                   • Deliberate acts that threaten the health, safety and well-being of
                     residents, employees or guests of Wernle
               …
                   • Acts of physical, emotional or mental abuse
               …
      Court of Appeals of Indiana | Memorandum Decision 93A02-1501-EX-19 | July 10, 2015   Page 4 of 9
                   • Fighting, assaulting, threatening or intimidating residents, co-
                     workers or guests
               …
                   • Use of profanity or abusive language


      Id. at 62-63. Johnson testified that although the incident on September 3, 2014,

      was sufficient by itself to warrant C.B.’s immediate discharge, Johnson did

      undertake a review of C.B.’s prior history of discipline before discharging her.


[6]   At the conclusion of the hearing, the ALJ took the matter under advisement.

      Thereafter, the ALJ issued findings of fact and conclusions thereon reversing

      the deputy’s determination and concluding that Wernle’s discharge of C.B. was

      not for just cause and thus that C.B. was entitled to benefits. The ALJ

      concluded in relevant part as follows:

              [T]here is insufficient evidence in the record to demonstrate that [C.B.]
              violated the Employer’s rule. The main concern the Employer had
              with the September 3, 2014 incident was [C.B.’s] actions, which the
              Employer felt were threatening or intimidating to the resident. [C.B.]
              denies that she was threatening to fight the resident. Ms. Johnson
              based her conclusion on the review of the video coverage. [C.B.’s]
              removal of her jacket during the altercation is not conclusive evidence
              of a threat to fight. The Employer also considered [C.B.’s] movement
              of her shoulders to be a lunge toward the resident. [C.B.] disagrees,
              testifying that she was attempting to redirect the resident and handle
              the situation pursuant to her training. Although [C.B.] acknowledges
              that she told the [resident] to “get the hell out of her boundaries,”
              [C.B.] disputes the fact that she threatened to fight the resident or that
              her actions were mentally abusive. In this case the testimony conflicts
              between the parties as to the characterization of [C.B.’s] actions. The
              Administrative Law Judge concludes that testimony that [C.B.] made
              a shoulder movement indicative of a desire to fight and took off her
              jacket is not enough evidence to prove that [C.B.] was in violation of

      Court of Appeals of Indiana | Memorandum Decision 93A02-1501-EX-19 | July 10, 2015   Page 5 of 9
              the Employer’s policies. The record does not support a conclusion
              that [C.B.] knowingly violated a reasonable and uniformly enforced
              rule. The employer discharged [C.B.], but not for just cause, as
              defined by Indiana Code Section 22-4-15-1(d).
      Id. at 4.


[7]   Wernle appealed the ALJ’s decision to the Review Board. On December 15,

      2014, the Review Board affirmed the ALJ’s decision and adopted and

      incorporated the ALJ’s findings and conclusions. Wernle now appeals to this

      Court. 4


                                      Discussion and Decision
[8]   The Indiana Unemployment Compensation Act provides that “[a]ny decision

      of the review board shall be conclusive and binding as to all questions of fact.”

      Ind. Code § 22-4-17-12(a). Our standard of review on appeal of the Review

      Board’s decision is threefold: (1) findings of 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. Recker v. Review Bd. of Ind. Dep’t of Workforce Dev., 958 N.E.2d 1136,

      1139 (Ind. 2011) (citing McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693

      N.E.2d 1314, 1318 (Ind. 1998)).




      4
       We note that Wernle made a request for oral argument in the conclusion paragraph of its appellant’s brief.
      The proper procedure for requesting oral argument is to file a motion with this Court pursuant to Indiana
      Appellate Rule 52. In any event, oral argument is not warranted in this case, and we deny Wernle’s request.

      Court of Appeals of Indiana | Memorandum Decision 93A02-1501-EX-19 | July 10, 2015              Page 6 of 9
[9]    We review the Review Board’s findings of basic facts under a “substantial

       evidence” standard, and we neither reweigh the evidence nor assess its

       credibility. Chrysler Group, LLC v. Review Bd. of Ind. Dep’t of Workforce Dev., 960

       N.E.2d 118, 122 (Ind. 2012). We consider only the evidence most favorable to

       the Review Board’s findings and, absent limited exceptions, treat those findings

       as conclusive and binding. Id. “Such exceptions include if the evidence ‘was

       devoid of probative value,’ or ‘was so proportionally meager as to lead to the

       conviction that the finding does not rest upon a rational basis,’ or the result of

       the proceedings was unduly influenced, fraudulent, or arbitrary.” Id. at 122 n.2

       (quoting McClain, 693 N.E.2d at 1317 n.2).


[10]   Ultimate facts are reviewed to ensure that the Review Board has drawn a

       reasonable inference in light of its findings on the basic, underlying facts. Id.

       We examine the logic of the inference drawn and impose any rules of law that

       may drive the result. Id. at 123. Finally, we are not bound by the Review

       Board’s interpretation of the law and we determine de novo whether the

       Review Board correctly interpreted and applied the applicable law. S.S. v.

       Review Bd. of Ind. Dep’t of Workforce Dev., 941 N.E.2d 550, 554 (Ind. Ct. App.

       2011).


[11]   Pursuant to Indiana Code Section 22-4-15-1(a), an individual is disqualified

       from receiving unemployment benefits if he or she is discharged for just cause

       by the most recent employer. “Discharge for just cause” includes the “knowing

       violation of a reasonable and uniformly enforced rule of an employer….” Ind.

       Code § 22-4-15-1(d)(2). An applicant’s entitlement to unemployment benefits is

       Court of Appeals of Indiana | Memorandum Decision 93A02-1501-EX-19 | July 10, 2015   Page 7 of 9
       determined based on the information that is available without regard to a

       burden of proof. Ind. Code § 22-4-1-2(c). “There is no presumption of

       entitlement or nonentitlement to benefits. There is no equitable or common

       law allowance for or denial of unemployment benefits.” Ind. Code § 22-4-1-

       2(d).


[12]   On appeal, Wernle contends that the Review Board’s decision to allow C.B.

       unemployment benefits is unsupported by substantial evidence and

       unreasonable. We cannot agree. As clearly indicated by the ALJ, there was

       conflicting evidence regarding C.B.’s behavior and whether that behavior could

       be characterized as a deliberate act that threatened the well-being of the

       resident, an act of physical, emotional or mental abuse, or an act that was

       threatening or intimidating to the resident, in violation of Wernle’s prohibited

       conduct policies. In finding that the record does not support a conclusion that

       C.B. knowingly violated a reasonable and uniformly enforced rule, the ALJ,

       and in turn, the Review Board, resolved the evidentiary conflict in favor of C.B.

       Contrary to Wernle’s assertions, we cannot say that the evidence supporting the

       Board’s finding was devoid of probative value or was so proportionally meager

       as to convince us that the finding does not rest upon a rational basis. See

       Chrysler Group, 960 N.E. 2d at 122 n.2. Indeed, consistent with our standard of

       review, we do not reweigh that evidence or reassess witness credibility. Id. The

       Review Board’s conclusion that C.B. was not discharged for just cause was




       Court of Appeals of Indiana | Memorandum Decision 93A02-1501-EX-19 | July 10, 2015   Page 8 of 9
       based upon a reasonable inference in light of its findings on the basic,

       underlying facts. 5


[13]   In sum, there is substantial evidence in the record to support the basic finding

       that C.B. did not knowingly violate a reasonable and uniformly enforced rule.

       This supports the ultimate finding of fact and conclusion that C.B. was not

       discharged for just cause pursuant to Indiana Code Section 22-4-15-1(d). The

       decision of the Review Board is affirmed.


[14]   Affirmed.


       Brown, J., and Pyle, J., concur.




       5
         Wernle also references C.B.’s undisputed use of profanity (“hell”) and argues that “[t]his by itself, is
       sufficient for termination, particularly given her prior policy violations.” Appellant’s Br. at 11. However,
       whether Wernle could have discharged C.B. for using the word “hell” is irrelevant because Wernle
       admittedly did not discharge C.B. on those grounds. See Voss v. Review Bd. of Emp’t & Training Servs., 533
       N.E.2d 1020, 1021 (Ind. Ct. App. 1989). (“Whether or not other grounds may have existed for [the
       claimant’s] discharge is irrelevant because [the employer] did not exercise its discretion to discharge [the
       claimant] on those grounds and neither the Board nor this court can assume it would have done so.”); but see
       Alebro, LLC v. Review Bd. of Ind. Dep’t of Workforce Dev., 968 N.E.2d 236, 240 (Ind. Ct. App. 2012) (slightly
       limiting breadth of Voss to avoid illogical or absurd results). Wernle concedes this point in its reply brief and
       states that “[a]lthough the termination was not based on the profanity itself, this undisputed hostility
       confirms [C.B.’s] other violations.” Appellant’s Reply Br. at 3. The Review Board clearly did not make the
       same inference from the evidence, and we disagree with Wernle’s assertion that the inference the Board did
       make was unreasonable.

       Court of Appeals of Indiana | Memorandum Decision 93A02-1501-EX-19 | July 10, 2015                    Page 9 of 9
