FOR PUBLICATION

ATTORNEY FOR APPELLANT:                    ATTORNEY FOR APPELLEES:

PETER CAMPBELL KING                        GREGORY F. ZOELLER
Cline, King & King, P.C.                   Attorney General of Indiana
Columbus, Indiana
                                           KATHY BRADLEY
                                           Deputy Attorney General
                                           Indianapolis, Indiana

                                                                     Jul 30 2014, 9:54 am

                            IN THE
                  COURT OF APPEALS OF INDIANA

BARTHOLOMEW COUNTY, INDIANA,               )
                                           )
     Appellant,                            )
                                           )
            vs.                            )      No. 93A02-1311-EX-986
                                           )
REVIEW BOARD OF THE INDIANA                )
DEPARTMENT OF WORKFORCE                    )
DEVELOPMENT, and ROBERT L. AMOS,           )
                                           )
     Appellees.                            )


       APPEAL FROM THE UNEMPLOYMENT INSURANCE REVIEW BOARD
                        Stephen F. Bier, Chairperson
                         George H. Baker, Member
                          Larry A. Dailey, Member
                           Cause No. 13-R-3524


                                  July 30, 2014


                           OPINION- FOR PUBLICATION


BRADFORD, Judge
                                    CASE SUMMARY

       Appellant employer Bartholomew County (“the County”) appeals the determination

of Appellee the Review Board of the Indiana Department of Workforce Development (“the

Review Board”) that Appellee unemployed claimant Robert L. Amos was not discharged

for just cause and, therefore, is eligible for unemployment benefits. Amos was employed

as a merit deputy sheriff when he playfully shot a fellow officer in the groin with non-lethal

training ammunition.     The Bartholomew County Sherriff’s Merit Board (“the Merit

Board”) found Amos to have violated six Sheriff’s Department rules and determined these

violations to be “cause” for Amos’s discharge under Indiana Code section 36-8-10-11(a).

The Review Board found that the County did not uniformly enforce its rules, as required

for “just cause” discharge under Indiana Code section 22-4-15-1(d)(2). The County argues

that (1) the issue of whether Amos was discharged for “just cause” was collaterally

estopped by the Merit Board’s determination that Amos’s rules violations were “cause” for

his discharge; (2) the Review Board erred in defining the class against which uniform rule

enforcement is measured; and (3) the Review Board abused its discretion in denying the

County’s request to present the transcript of the Merit Board hearing as additional

evidence. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       Amos was employed by the County as a merit deputy sheriff from July 22, 1974

until May 16, 2013. He is also a certified firearms instructor. On February 18, 2013, Amos

participated in an “Active Shooter” training course with several other officers, including

Hartsville Town Marshal A.J. Ross. Appellant’s App. p. 20. The course involved “live

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fire” scenarios in which the participants exchanged gunfire using non-lethal, plastic

training ammunition called “Simunition.” Appellant’s app. p. 21. Simunition fires without

gun powder and only has the capability to travel ten or fifteen feet; however, it can cause

injury if it hits a person in the eye or on bare skin. For this reason, the course participants

were required to wear helmets; throat, chest, and groin protectors; and other protective gear

during each scenario.

       After one particular scenario during the February 18, 2013 training, the instructor

ordered the participants to holster their weapons and remove their helmets so they could

debrief. During this debriefing, Marshal Ross stated that he had not been hit with

Simunition during the scenario. Amos laughed and stated that he had been hit four times.

He then raised his weapon and playfully shot Marshal Ross, hitting him in his groin

protector. The instructor immediately took Amos’s weapon and admonished him for

inappropriate conduct. Marshal Ross was not injured.

       As a result of the shooting, Bartholomew County Sheriff Mark Gorbett charged

Amos with violating six Sherriff’s Department rules: (1) use of non-deadly or deadly force

against a person who is merely verbally abusive; (2) conduct unbecoming to an officer; (3)

handling and carrying of a firearm in a careless or imprudent manner; (4) failure to use

equipment for its intended purpose; (5) failure to perform duties in a manner which will

maintain the highest standard of efficiency in carrying out the functions and objectives of

the Department; and (6) failure to maintain a high level of professionalism. The Merit

Board held a hearing on the charges and, on May 16, 2013, issued its findings of fact and

conclusions thereon. The Merit Board found Amos guilty of violating all six rules and

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determined these violations to be “cause” for Amos’s discharge under Indiana Code section

36-8-10-11(a). Amos was immediately discharged from County employment.

          Following his discharge, Amos applied for unemployment benefits through the

Department of Workforce Development (“DWD”). On June 13, 2013, a DWD claims

deputy determined that Amos was discharged for just cause and, therefore, was ineligible

for unemployment benefits. Amos appealed the deputy’s determination, and a hearing was

held before a DWD Administrative Law Judge (“ALJ”). During the ALJ hearing, the

County presented only the Merit Board’s findings of fact and conclusions thereon as proof

that Amos was discharged for just cause. For his part, Amos testified to several instances

of other officers playfully shooting fellow employees with Siminution without being

disciplined. On September 13, 2014, the ALJ reversed the claims deputy’s determination,

finding that the County did not uniformly enforce its rules as required for “just cause”

discharge under Indiana Code section 22-4-15-1(d)(2).

          On September 24, 2013, the County appealed the ALJ’s ruling to the Review Board.

The County also requested permission from the Review Board to submit the transcript of

the Merit Board hearing as additional evidence, claiming it called into question Amos’s

testimony at the ALJ hearing. On November 4, 2013, the Review Board denied the

County’s request and affirmed the decision of the ALJ. In its judgment, the Review Board

stated:

          The Merit Board’s judgment does not address how other employees have
          been disciplined for similar conduct, nor did the Employer present evidence
          on that topic at the [ALJ] hearing. The Employer, therefore, failed to provide
          any evidence that the Employer uniformly enforces its rules. The only
          evidence [presented] at the unemployment hearing on the issue of uniform

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       enforcement was presented by the Claimant. The Claimant’s testimony that
       other officers had engaged in horseplay by shooting individuals with
       simunition weapons without incident supports the [ALJ’s] finding and
       conclusion that the Employer does not uniformly enforce its rules with all
       employees.

Decision of the Review Bd.1

                               DISCUSSION AND DECISION

       The County appeals the Review Board’s determination that Amos was not

discharged for “just cause” and, therefore, is eligible for unemployment benefits. “The

standard of review on appeal of a decision of the [Review] Board is threefold: (1) findings

of basic 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)).

                                     I. Collateral Estoppel

       The County argues that the issue of whether Amos was discharged for “just cause”

was collaterally estopped by the Merit Board’s determination that Amos’s violations were

“cause” for his discharge. Indiana Code section 36-8-10-11(a) provides that a sheriff “may

dismiss, demote, or temporarily suspend a county police officer for cause after preferring

charges in writing and after a fair public hearing before the board….” In this context,

“cause” means “some dereliction or general neglect of duty, or some delinquency affecting



       1
          The Decision of the Review Board is attached to Appellant’s Brief but numbered as if it was
included in Appellant’s Appendix. To avoid confusion, we cite to the decision independently.
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the general character of the officer, or his fitness for holding the office, or his incapacity to

discharge the duties thereof.” Coleman v. City of Gary, 220 Ind. 446, 458-59, 44 N.E.2d

101, 107 (1942). An unemployed claimant is ineligible for unemployment benefits if he is

“discharged for just cause.” Russell v. Review Bd. of Ind. Dep’t of Emp’t & Training Servs.,

586 N.E.2d 942, 948 (Ind. Ct. App. 1992); Ind. Code § 22-4-15-1. As it pertains to this

matter, “just cause” means a “knowing violation of a reasonable and uniformly enforced

rule of an employer.” Ind. Code § 22-4-15-1(d)(2).

       “Collateral estoppel ‘applies where a particular issue is adjudicated and then put in

issue in a subsequent suit on a different cause of action between the same parties or their

privies.’” Ghosh v. Ind. State Ethics Comm’n, 930 N.E.2d 23, 26 (Ind. 2010) (quoting

McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d 390, 394 (Ind. 1988)).

Fundamentally, the issue sought to be estopped must be the same as the issue previously

adjudicated. Scott v. Scott, 668 N.E.2d 691, 699 (Ind. Ct. App. 1996) (citing Spearman v.

Delco Remy Div. of Gen. Motors Corp., 717 F. Supp. 1351, 1357 (S.D. Ind. 1989)). That

is not the case here.

       “[W]hether an employer has reason to terminate an at-will employee involves

different concerns than whether those reasons constitute ‘just cause’ for purposes of

unemployment compensation….” Conseco, Inc. v. Review Bd. of Ind. Dep’t of Emp’t &

Training Servs., 626 N.E.2d 559, 563 (Ind. Ct. App. 1993). Here, the most notable

difference is the requirement of uniform rule enforcement for “just cause” in the

unemployment benefits context. Ind. Code § 22-4-15-1(d)(2); see Coleman v. Review Bd.

of Ind. Dep’t of Workforce Dev., 905 N.E.2d 1015, 1021-22 (Ind. Ct. App. 2009) (noting

                                               6
that although employer was clearly entitled to discharge employee, employee was not

discharged for just cause because employer failed to show uniform rule enforcement).

Because uniform rule enforcement is not a requirement for “cause” in the context of police

officer discipline, Ind. Code § 36-8-10-11(a), we conclude that collateral estoppel does not

apply.

                              II. Uniform Rule Enforcement

         The County alternatively argues that the Review Board erred in defining the class

of persons against which it measured uniform rule enforcement. For a rule to be considered

uniformly enforced, “the enforcement must be carried out in such a way that all persons

under the same conditions and in the same circumstances are treated alike.” McClain, 693

N.E.2d at 1319. Thus, “[i]n order to evaluate uniformity one must first define the class of

persons against whom uniformity is measured.” Id. Here, the Review Board defined the

class as “other officers [who] had engaged in horseplay by shooting individuals with

simunition weapons.” Decision of the Review Bd.

         The County claims that, because Amos is a certified firearms instructor, the proper

class includes only certified firearms instructors who engaged in Simunition horseplay.

This claim has no merit. Not one of the six rules Amos violated differentiates between

officers who are certified firearms instructors and those who are not. See Stanrail Corp. v.

Review Bd. of Dep’t of Workforce Dev., 735 N.E.2d 1197, 1206 (Ind. Ct. App. 2000)

(defining class of persons generally as employees who are ill for three days or more where

attendance policy did not differentiate between serious and minor illnesses). There is also

no evidence that Merit Board held certified firearms instructors to a higher standard than

                                              7
other officers under the rules. In fact, the County failed to present any evidence or

argument concerning the issue of uniform rule enforcement. We therefore find no error in

the Review Board’s class definition.

                                III. Additional Evidence

       The County also argues that the Review Board abused its discretion in denying the

County’s request to submit the transcript of the Merit Board hearing as additional evidence.

The Indiana Administrative Code “requires a party offering additional evidence to show

good cause why such evidence should be accepted and good reason why it was not

introduced before the ALJ.” Telligman v. Review Bd. of Ind. Dep’t of Workforce Dev., 996

N.E.2d 858, 865-66 (Ind. Ct. App. 2013) (citing 646 Ind. Admin. Code 5-10-11(b) (2011)).

The County claimed the transcript called into question Amos’s testimony at the ALJ

hearing that other officers had playfully shot fellow employees with Siminution without

being disciplined. The County, however, did not offer an explanation as to why it did not

present the transcript as evidence at the ALJ hearing. Because the transcript was available

at that time and the County had the opportunity to cross-examine Amos during the ALJ

hearing, we cannot say the Review Board abused its discretion in denying the County’s

request.

       The judgment of the Review Board is affirmed.

RILEY, J., and ROBB, J., concur.




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