Beene v. Review Board of the Indiana Department of Employment & Training Services

528 N.E.2d 842, 1988 Ind. App. LEXIS 721
CourtIndiana Court of Appeals
DecidedSeptember 28, 1988
DocketNo. 93A02-8710-EX-00435
StatusPublished
Cited by7 cases

This text of 528 N.E.2d 842 (Beene v. Review Board of the Indiana Department of Employment & Training Services) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beene v. Review Board of the Indiana Department of Employment & Training Services, 528 N.E.2d 842, 1988 Ind. App. LEXIS 721 (Ind. Ct. App. 1988).

Opinion

BUCHANAN, Judge.

CASE SUMMARY

This appeal arises from a decision of the Review Board of the Indiana Department of Employment and Training Services (Review Board) finding appellant-claimant Carolyn A. Beene (Beene) ineligible for unemployment compensation benefits after she was discharged for violating her employer’s attendance policy.

We affirm.

FACTS

Beene was employed at Heritage Cablev-ision (Employer) from July 25, 1983 through March 26, 1987 as a customer service representative. An attendance policy went into effect on September 1, 1983. Beene was aware of this policy, which provided that employees who violated the attendance policy would be subjected to various steps of discipline, with a greater “punishment” as the number of violations increased. The first violation would result in a verbal warning, the second in a written warning, the third would subject the employee to a three-day suspension without pay, and the fourth violation resulted in the discharge of the employee.

In order to determine violations, the attendance policy set forth three classifications of absences, i.e., exempt, counted, or unexcused. Exempt absences were those required for court appearance or military leave, and were not counted for any purpose under the policy and were not subject to discipline. Counted absences included those for personal illness, child care problems, illness of spouses or other family members, and transportation associated problems. While counted absences were sometimes referred to as “excused” by the Employer, they were nonetheless noted, and would subject the employee to the four steps of discipline. Unexcused absences subjected the employee to immediate discipline at the second level (written warning). Thus, both counted and unexcused absences could result in discipline under the policy-

The general policy toward counting the absences was that if the employee had two or more counted absences in any thirty-day period or five or more in any ninety-day period, the employee would be subject to discipline. Two instances of tardiness or “early quit” were counted as one absence.

Finally, the attendance policy provided that the employee could be moved back one step in the disciplinal progression for each six-month period with no discipline. The program also offered some latitude for verified cases of long-term illness or extreme emergencies.

Beene was discharged after she had accumulated six counted absences and seven incidents of tardiness in a six-month period, and had progressed through the four levels of discipline. The evidence before the appeals referee revealed that the counted absences were caused by the illness of Beene’s children or Beene herself. Six instances of tardiness were explained as two occurrences of car problems, three instances in which her children became sick before she went to work, and one occasion when she had to take her husband to the emergency room. On the days Beene was tardy, she arrived at work not more than fifteen minutes late.

Beene was found ineligible for unemployment compensation on April 23, 1987, because she was discharged for just cause for poor attendance. After a hearing by the appeals referee, the decision of the claims deputy that Beene was discharged for just cause was affirmed. On August 27, 1987, the Review Board affirmed the decision of the appeals referee, and adopted its findings of fact and conclusions of law which read in pertinent part:

“FINDINGS OF FACT: The Referee finds the following: The claimant worked for the subject employer for a period from July 25, 1983, through March 26, [844]*8441987, as a customer service representative. Her rate of pay at the time of separation was $6.76 per hour. The claimant was discharged on March 26, 1987.
The claimant was discharged in accordance with a uniformly enforced attendance policy of the employer. The claimant was well aware of that policy, had been given a verbal warning, written warning, and a three day suspension pri- or to her actual termination. Some of the claimant’s reasons for tardiness and absence were for sickness or the sickness of her children, and were considered excused by the employer, however, there were others that were the result of car problems and various other reasons which, all taken into consideration, counted as occurrences in accordance with the employer’s policy. While the employer’s policy might at first glance appear to be somewhat harsh, nonetheless, upon reviewing the policy it appears to clearly be fair in that an employee could have disciplinary steps removed for periods of a clear record without discipline. The claimant’s attendance record continued to worsen rather than improve during the period of the disciplinary action taken by the employer. As a result the claimant was discharged effective March 26, 1987.
CONCLUSION: From the foregoing findings it must be concluded from the best evidence available that the claimant was, in fact, discharged for just cause within the meaning and intent of Chapter 15, Section 1, of the Act.”

Record at 58 (emphasis supplied).

ISSUES

Beene raises three issues; the following two issues, as restated, are dispositive:

1. Were the Review Board’s findings of fact supported by sufficient evidence?
2. Was the Employer’s attendance policy a “reasonable rule,” the violation of which supported the discharge of Beene and the denial of unemployment compensation benefits?

DECISION

ISSUE ONE — Were the Review Board’s findings of fact supported by sufficient evidence?

PARTIES’ CONTENTIONS — Beene argues that the findings made by the Review Board regarding her absences, her worsening attendance record, and the reasonableness of the Employer’s attendance policy were unsupported by the evidence and therefore contrary to law.

The Employer replies that the three findings were supported by sufficient evidence. CONCLUSION — The Review Board’s findings of fact were supported by sufficient evidence.

When faced with a challenge that findings are unsupported by the evidence, we consider the evidence and reasonable inferences therefrom in a light most favorable to the Review Board’s decision. Love v. Heritage House Convalescent Center (1983), Ind.App., 463 N.E.2d 478. We will disturb the decision only if reasonable persons would reach a different conclusion based on the evidence in the record. Id.

Beene first attacks the Board’s finding that “[s]ome of the claimant’s reasons for tardiness and absence were for sickness or the sickness of her children, and were considered excused by the employer, however, there were others that were the result of car problems and various other reasons which, all taken into consideration, counted as occurrences in accordance with the Employer’s policy.” Record at 58. Although Beene contends that this finding implies that some of her absences or incidents of tardiness were unexcused and that only the unexcused absences were counted under the policy, we cannot conclude that the finding was unsupported or erroneous.

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528 N.E.2d 842, 1988 Ind. App. LEXIS 721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beene-v-review-board-of-the-indiana-department-of-employment-training-indctapp-1988.