MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                              Apr 20 2018, 8:50 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
A.U.                                                     Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Andrea E. Rahman
                                                         Patricia C. McMath
                                                         Deputy Attorneys General
                                                         Heather D. Cummings
                                                         Review Board Staff Attorney
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

A.U.,                                                    April 20, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         93A02-1708-EX-1968
        v.                                               Appeal from the Review Board of
                                                         the Indiana Department of
Anonymous Company and                                    Workforce Development
Review Board of the Department                           Case No.
of Workforce Development,                                17-R-0823
Appellee-Plaintiff.



Mathias, Judge.



Court of Appeals of Indiana | Memorandum Decision 93A02-1708-EX-1968 | April 20, 2018          Page 1 of 7
[1]   A.U. appeals pro se the Indiana Department of Workforce Development

      Review Board’s (“the Board”) Decision terminating his unemployment benefits

      after concluding that he was discharged for just cause. A.U. claims the Board’s

      decision is not supported by the evidence.


[2]   We affirm.


                                  Facts and Procedural History
[3]   A.U. was employed by a car wash company (“the Company”) for nearly three

      years when his employment was terminated on May 6, 2017 for insubordinate

      behavior. A.U. filed a claim for unemployment benefits. A claims deputy made

      an initial determination that A.U. was not discharged for just cause. The

      Company appealed the determination, and a telephonic hearing was held on

      July 5, 2017.


[4]   During the hearing, the Company explained that A.U.’s employment was

      terminated for two reasons. First, A.U., who was a supervisor and trained to

      close the store, was scheduled to close the store on a Saturday. Typically, stores

      are closed by shift managers on Saturdays, but the shift managers were

      attending the annual company banquet on Saturday, May 20. A.U. wrote “no”

      on the schedule where it stated that he was responsible for closing the store,

      indicating A.U.’s refusal to close the store that evening. A.U. believed that one

      of the newly hired managers should have been asked to close the store. And,

      A.U. claimed he asked to be reclassified as an associate (and would therefore




      Court of Appeals of Indiana | Memorandum Decision 93A02-1708-EX-1968 | April 20, 2018   Page 2 of 7
      not have the authority to open or close a store) instead of a supervisor because

      he wanted to find a second job.1


[5]   The Company also terminated A.U.’s employment because he refused to offer

      feedback on an anonymous survey every employee is required to complete.

      A.U. did not want to complete the survey because he believed that the survey

      responses had not remained anonymous in the past, and the feedback A.U. had

      offered about his coworkers and managers had been shared with those

      individuals.


[6]   The Administrative Law Judge (“the ALJ”) concluded that A.U. was

      insubordinate because he wrote on the schedule that “he was not going to work

      an assigned shift instead of addressing his issues in a private manner with the

      general manager.” Ex. Vol. p. 22. The ALJ also found that A.U. was

      insubordinate because he failed to complete “the required surveys honestly

      regardless of whether or not a coworker became upset about hearing true

      feedback of an issue.” Id. The ALJ concluded that A.U.’s insubordination

      justified his discharge and reversed the decision of the claims deputy.


[7]   A.U. appealed the ALJ’s determination to the full Board. On August 2, 2017,

      the Board adopted and affirmed the ALJ’s decision that the Company




      1
          The Company’s policy prohibited supervisors and managers from having additional employment.


      Court of Appeals of Indiana | Memorandum Decision 93A02-1708-EX-1968 | April 20, 2018         Page 3 of 7
      discharged A.U. for just cause, and therefore, he was not entitled to

      unemployment benefits. A.U. now appeals pro se.2


                                        Discussion and Decision
[8]   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.


[9]   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




      2
        Pro se litigants are held to the same standard as trained attorneys. See T.R. v. Review Bd. of Ind. Dep’t of
      Workforce Development, 950 N.E.2d 792, 795 (Ind. Ct. App. 2011). A.U. included exhibits in his Appendix
      that were not submitted to the A.L.J during the hearing on his claim for unemployment benefits. We are
      prohibited from considering the exhibits in A.U.’s appendix that were not submitted during A.U.’s hearing
      before the A.L.J. See T.R., 950 N.E.2d at 797–98. Also, in his statement of the issues, A.U. states that he
      requested a hearing before the full Board and wanted to submit these exhibits, but his request was not
      granted. But A.U. does not argue that the Board erred by failing to hold an additional hearing and does not
      cite to any authority that would support that claim. Therefore, we do not address this issue on appeal. See
      Ind. Appellate Rule 46(A)(8)(a).

      Court of Appeals of Indiana | Memorandum Decision 93A02-1708-EX-1968 | April 20, 2018                Page 4 of 7
       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 includes “any breach of duty in connection

       with work which is reasonably owed an employer by an employee[.]” When we

       apply a breach of duty analysis in this context:


               The Board should consider whether the conduct which is said to
               have been a breach 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 (citation omitted).


[10]   Moreover, the Department of Workforce Development has promulgated the

       following administrative rule defining “duty” and “breach of duty:”


               (a) In order to qualify as a breach of duty for unemployment
               insurance purposes, the duty must be:

                        (1) reasonably connected to the work;

                        (2) reasonably owed to the employer by the employee; and

                        (3) of such a nature that a reasonable employee would
                        recognize a violation of the duty, and would understand
                        that such a violation of the duty would subject the
                        individual to discharge.

               (b) A breach of duty reasonably owed to an employer includes,
               but is not limited to, conduct which establishes that the claimant:

                        (1) damaged the employer’s trust and confidence in the
                        claimant’s ability to effectively perform the job;


       Court of Appeals of Indiana | Memorandum Decision 93A02-1708-EX-1968 | April 20, 2018   Page 5 of 7
                        (2) willfully failed to meet the employer's reasonable
                        expectation;

                        (3) chose a course of action that the claimant knew, or
                        should have known, would negatively impact the
                        employer’s financial interests;

                        (4) demonstrated an intentional or substantial disregard for
                        the employer’s interests;

                        (5) intentionally or knowingly injured, or attempted to
                        injure, the employer’s financial interests;

                        (6) intentionally chose a course of action that pitted the
                        claimant’s interests against the employer’s interests to the
                        detriment of the employer; or

                        (7) showed carelessness or negligence to such a degree, or
                        with such recurrence, as to cause damage to the
                        employer’s interests.

       648 I.A.C. 5-8-6.


[11]   The Company reasonably required A.U. to work his scheduled shifts absent

       illness or planned time off. The Company reasonably scheduled A.U. to close

       the store because A.U. had the requisite training and experience to do so. The

       Company also reasonably required all of its employees to periodically

       participate in an anonymous survey for the purpose of reviewing the employee’s

       ability to serve customers, ability to work with co-worker’s and overall job

       satisfaction. Tr. p. 9.


[12]   A.U. refused to meet the Company’s reasonable expectations when he refused

       to work the scheduled shift with the responsibility of closing the store and

       refused to provide feedback on the required survey. This evidence sufficiently

       establishes that A.U. breached a duty in connection with work which was

       Court of Appeals of Indiana | Memorandum Decision 93A02-1708-EX-1968 | April 20, 2018   Page 6 of 7
       reasonably owed to the Company. For these reasons, the Board did not err

       when it concluded that A.U. was discharged for just cause.


[13]   Affirmed.


       Najam, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 93A02-1708-EX-1968 | April 20, 2018   Page 7 of 7
