MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 31 2015, 9:07 am 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 Christopher R. Erickson Gregory F. Zoeller SPANGLER, JENNINGS & DOUGHERTY, P.C. Attorney General of Indiana Merrillville, Indiana Andrea E. Rahman Deputy Attorney General
IN THE COURT OF APPEALS OF INDIANA
CM Sunshine Home Healthcare, December 31, 2015 Appellant, Court of Appeals Case No. 93A02-1505-EX-397 v. Appeal from the Review Board of the Department of Workforce Review Board of the Indiana Development Department of Workforce Steven F. Bier, Chairperson Development and Kimberly George H. Baker, Member McClam, Lawrence A. Dailey, Member Appellees Case No. 15-RB-747
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-397 | December 31, 2015 Page 1 of 10 Case Summary
[1] CM Sunshine Home Healthcare (Employer) appeals from the grant of
unemployment insurance benefits to Kimberly McClam (Claimant) after
Claimant was discharged from employment. The Review Board of the Indiana
Department of Workforce Development (the Review Board) concluded that
Claimant was terminated without just cause.
[2] We affirm.
Facts & Procedural History
[3] Claimant began working for Employer in February 2014 as an administrative
assistant. She was an outstanding employee and was quickly promoted to
assistant administrator. Employer hired a secretary to handle entry-level work
formerly done by Claimant. The new secretary was a relative of Employer’s
owners.
[4] In September 2014, Claimant’s live-in boyfriend suffered an aneurysm and was
hospitalized for an extended period. Claimant continued to work throughout
her boyfriend’s serious illness but did attend to some minimal personal business
during work. Claimant received a fax while at work from her boyfriend’s
doctor regarding disability. Employer found the form and gave it to Claimant.
Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-397 | December 31, 2015 Page 2 of 10 At some point, Claimant also received a call from her boyfriend’s doctor
regarding the outcome of a procedure. The call came during an office meeting,
and Claimant had to excuse herself. Employer offered Claimant time off to
deal with the situation, but aside from one day when her boyfriend underwent
surgery, Claimant declined the offer because she needed to work.
[5] Between September and October, Employer went through Claimant’s desk.
Employer considered the desk unorganized and found several items that
appeared to be overdue for processing. Claimant explained at the hearing that
she was waiting for information from nursing staff to complete these items.
Claimant typically completed items within a few days of receiving them,
although a few documents were nearly sixty days old.
[6] On October 17, 2014, Employer met with Claimant to discuss her performance.
Employer reminded Claimant of the importance of the timeliness of documents
and told her not to conduct personal business while at work. Claimant did not
conduct any further personal business on company time.
[7] Thereafter, on November 20, 2014, Employer asked Claimant about some
overdue therapy for a patient. This conversation included the nurse responsible
for the patient. The nurse had yet to provide necessary paperwork to Claimant
in order to process the therapy. This resulted in a delay of approximately seven
to ten days for this patient.
[8] As a result of the delay, Employer again went through Claimant’s desk and
found many duplicates of documents and old documents. Claimant explained
Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-397 | December 31, 2015 Page 3 of 10 at the hearing that the documents were organized in a way that she understood
and any overdue documents had been received from others that week and
would have been processed by the end of the week. Employer, however, did
not give her an opportunity to explain at the time why there were duplicates or
which items were waiting on action from another employee.
[9] Employer discharged Claimant on November 21, 2014, sending a termination
letter about a month later. Claimant applied for unemployment benefits, which
were initially denied by a claims deputy. Claimant appealed and a hearing was
held before the Administrative Law Judge (the ALJ) on February 5, 2015. The
ALJ reversed the initial determination and concluded that Claimant was not
terminated for just cause. Employer appealed to the Review Board.
[10] On March 2, 2015, the Review Board vacated the ALJ’s decision and remanded
with instructions for the ALJ to include appropriate findings of fact and
conclusions of law. On remand, the ALJ reviewed the evidence, without
reopening the case, and issued a new decision on March 27, 2015. Once again,
the ALJ found that Employer did not discharge Claimant for just cause. On
April 17, 2015, the Review Board affirmed the ALJ’s decision and adopted the
ALJ’s findings and conclusions. Employer now appeals. Additional facts will
be provided below as necessary.
Discussion & Decision
[11] The Indiana Unemployment Compensation Act provides that any decision of
the Review Board shall be conclusive and binding as to all questions of fact.
Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-397 | December 31, 2015 Page 4 of 10 Ind. Code § 22-4-17-12(a). “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). In the analysis of the Review Board’s findings of basic
fact, we neither reweigh the evidence nor judge witness credibility; rather, we
consider only the evidence most favorable to the Review Board’s findings.
McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314, 1317 (Ind.
1998).
[12] In Indiana, an individual is ineligible to receive unemployment benefits if he or
she was discharged for “just cause.” Ind. Code § 22-4-15-1(a). Discharge for
just cause is defined, in pertinent part, as “any breach of duty in connection
with work which is reasonably owed an employer by an employee.” I.C. § 22-4-
15-1(d)(9). When applying a breach of duty analysis in this context:
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.
[13] Recker, 958 N.E.2d at 1140 (quoting Hehr v. Review Bd. of Ind. Employment Sec.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 31 2015, 9:07 am 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 Christopher R. Erickson Gregory F. Zoeller SPANGLER, JENNINGS & DOUGHERTY, P.C. Attorney General of Indiana Merrillville, Indiana Andrea E. Rahman Deputy Attorney General
IN THE COURT OF APPEALS OF INDIANA
CM Sunshine Home Healthcare, December 31, 2015 Appellant, Court of Appeals Case No. 93A02-1505-EX-397 v. Appeal from the Review Board of the Department of Workforce Review Board of the Indiana Development Department of Workforce Steven F. Bier, Chairperson Development and Kimberly George H. Baker, Member McClam, Lawrence A. Dailey, Member Appellees Case No. 15-RB-747
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-397 | December 31, 2015 Page 1 of 10 Case Summary
[1] CM Sunshine Home Healthcare (Employer) appeals from the grant of
unemployment insurance benefits to Kimberly McClam (Claimant) after
Claimant was discharged from employment. The Review Board of the Indiana
Department of Workforce Development (the Review Board) concluded that
Claimant was terminated without just cause.
[2] We affirm.
Facts & Procedural History
[3] Claimant began working for Employer in February 2014 as an administrative
assistant. She was an outstanding employee and was quickly promoted to
assistant administrator. Employer hired a secretary to handle entry-level work
formerly done by Claimant. The new secretary was a relative of Employer’s
owners.
[4] In September 2014, Claimant’s live-in boyfriend suffered an aneurysm and was
hospitalized for an extended period. Claimant continued to work throughout
her boyfriend’s serious illness but did attend to some minimal personal business
during work. Claimant received a fax while at work from her boyfriend’s
doctor regarding disability. Employer found the form and gave it to Claimant.
Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-397 | December 31, 2015 Page 2 of 10 At some point, Claimant also received a call from her boyfriend’s doctor
regarding the outcome of a procedure. The call came during an office meeting,
and Claimant had to excuse herself. Employer offered Claimant time off to
deal with the situation, but aside from one day when her boyfriend underwent
surgery, Claimant declined the offer because she needed to work.
[5] Between September and October, Employer went through Claimant’s desk.
Employer considered the desk unorganized and found several items that
appeared to be overdue for processing. Claimant explained at the hearing that
she was waiting for information from nursing staff to complete these items.
Claimant typically completed items within a few days of receiving them,
although a few documents were nearly sixty days old.
[6] On October 17, 2014, Employer met with Claimant to discuss her performance.
Employer reminded Claimant of the importance of the timeliness of documents
and told her not to conduct personal business while at work. Claimant did not
conduct any further personal business on company time.
[7] Thereafter, on November 20, 2014, Employer asked Claimant about some
overdue therapy for a patient. This conversation included the nurse responsible
for the patient. The nurse had yet to provide necessary paperwork to Claimant
in order to process the therapy. This resulted in a delay of approximately seven
to ten days for this patient.
[8] As a result of the delay, Employer again went through Claimant’s desk and
found many duplicates of documents and old documents. Claimant explained
Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-397 | December 31, 2015 Page 3 of 10 at the hearing that the documents were organized in a way that she understood
and any overdue documents had been received from others that week and
would have been processed by the end of the week. Employer, however, did
not give her an opportunity to explain at the time why there were duplicates or
which items were waiting on action from another employee.
[9] Employer discharged Claimant on November 21, 2014, sending a termination
letter about a month later. Claimant applied for unemployment benefits, which
were initially denied by a claims deputy. Claimant appealed and a hearing was
held before the Administrative Law Judge (the ALJ) on February 5, 2015. The
ALJ reversed the initial determination and concluded that Claimant was not
terminated for just cause. Employer appealed to the Review Board.
[10] On March 2, 2015, the Review Board vacated the ALJ’s decision and remanded
with instructions for the ALJ to include appropriate findings of fact and
conclusions of law. On remand, the ALJ reviewed the evidence, without
reopening the case, and issued a new decision on March 27, 2015. Once again,
the ALJ found that Employer did not discharge Claimant for just cause. On
April 17, 2015, the Review Board affirmed the ALJ’s decision and adopted the
ALJ’s findings and conclusions. Employer now appeals. Additional facts will
be provided below as necessary.
Discussion & Decision
[11] The Indiana Unemployment Compensation Act provides that any decision of
the Review Board shall be conclusive and binding as to all questions of fact.
Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-397 | December 31, 2015 Page 4 of 10 Ind. Code § 22-4-17-12(a). “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). In the analysis of the Review Board’s findings of basic
fact, we neither reweigh the evidence nor judge witness credibility; rather, we
consider only the evidence most favorable to the Review Board’s findings.
McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314, 1317 (Ind.
1998).
[12] In Indiana, an individual is ineligible to receive unemployment benefits if he or
she was discharged for “just cause.” Ind. Code § 22-4-15-1(a). Discharge for
just cause is defined, in pertinent part, as “any breach of duty in connection
with work which is reasonably owed an employer by an employee.” I.C. § 22-4-
15-1(d)(9). When applying a breach of duty analysis in this context:
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.
[13] Recker, 958 N.E.2d at 1140 (quoting Hehr v. Review Bd. of Ind. Employment Sec.
Div., 534 N.E.2d 1122, 1126 (Ind. Ct. App. 1989)). Whether an employee
breaches a duty owed to the employer “is a very fact-sensitive determination
Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-397 | December 31, 2015 Page 5 of 10 which must be made on a case by case basis.” Hehr, 534 N .E.2d at 1127. See
also P.K.E. v. Review Bd. of Ind. Dep’t. of Workforce Dev., 942 N.E.2d 125, 132
(Ind. Ct. App. 2011) (“duties reasonably owed to the employer by the employee
may vary considerably depending on the circumstances”), trans. denied.
[14] The Indiana Department of Workforce Development has promulgated a
regulation interpreting the term “breach of duty” as used in I.C. § 22-4-15-
1(d)(9). The regulation presents several non-exclusive examples of “breach of
duty reasonably owed to an employer”, including that the claimant: “damaged
the employer’s trust and confidence in the claimant’s ability to effectively
perform the job”, “willfully failed to meet the employer’s reasonable
expectation”, and “showed carelessness or negligence to such a degree, or with
such recurrence, as to cause damage to the employer’s interests.” 646 Ind.
Admin. Code 5-8-6(b)(1), (2), (7).
[15] After setting out its findings of fact and the pertinent law, the ALJ concluded in
relevant part:
Claimant owed Employer a reasonable duty to meet her Employer’s reasonable expectation for job performance. Employer identified two main areas where Employer was unsatisfied with Claimant’s work performance. The first was completing [personal] business on company time. The second was failing to complete her responsibilities in a timely manner.
The [ALJ] concludes that Claimant did not willfully fail to meet Employer’s reasonable expectation by completing personal business on company time. Claimant did perform a minimal amount of personal business while at work. Claimant’s
Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-397 | December 31, 2015 Page 6 of 10 boyfriend suffered a life-threatening illness. Claimant at times needed to address the issue while at work. This included receiving a minimal amount of faxes and taking a call from her boyfriend’s doctor concerning his surgery. Claimant kept personal business to a minimum and only conducted the business that was critical to the perilous condition of her boyfriend. When [Employer] told Claimant to stop conducting the business at work, Claimant stopped.
The second noted deficiency in Claimant’s performance was her timeliness of completing documents. Employer alleged that Claimant’s desk was unorganized and that she had many duplicate items. Employer went through Claimant’s desk when Claimant was not there in September or October. Claimant did admit she had multiple copies of items. There were also items waiting on a response from Claimant’s coworkers. Employer went through the desk when Claimant was not present, and thus Claimant did not have the opportunity to explain why there were duplicates or items waiting on a response from others.
Employer pointed to a specific example that Claimant caused a 7-10 day delay in therapy for a particular patient. [A] nurse rather than Claimant was responsible for ordering the therapy. The other nurse did not provide Claimant with the order or any indication that Claimant should have ordered therapy for this patient. This was beyond Claimant’s control.
Claimant did her best to meet Employer’s expectation. Claimant committed no volitional act against Employer. When any deficiency was brought to Claimant’s attention, she did her best to correct it. Overdue paperwork in the Claimant’s desk was waiting for action from other employees. The failure of other coworkers to provide Claimant with timely action was beyond Claimant’s control. The [ALJ] concludes that Claimant did not willfully fail to meet Employer’s reasonable expectation.
Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-397 | December 31, 2015 Page 7 of 10 Employer discharged Claimant but not for just cause as defined by Ind. Code 22-4-15-1(d)(9) and 646 Ind. Admin. Code 5-8-6.
Appellant’s Appendix at 7-8.
[16] Employer initially argues on appeal that the ALJ erred by applying only 646
I.A.C. 5-8-6(b)(2) to determine whether Claimant breached a duty reasonably
owed to Employer. Specifically, Employer contends that the ALJ should have
also considered whether Claimant’s performance of personal tasks on company
time damaged Employer’s trust and confidence in her ability to effectively
perform her job and whether her lack of organization and multiple unprocessed
referral orders showed carelessness or negligence to such a degree, or with such
recurrence, as to damage Employer’s interests.
[17] Although the record reveals that Employer filed a twenty-three-page appeal
with the Review Board, Employer has not provided that document on appeal.
Accordingly, we cannot determine whether Employer raised these alternative
grounds for finding a breach of duty (646 I.A.C. 5-8-6(b)(1) and (7)) below.
[18] Further, even though the ALJ focused its attention on 646 I.A.C. 5-8-6(b)(2), it
is evident that the ALJ did not agree with Employer’s assessment of Claimant’s
job performance. The ALJ expressly found that Claimant performed only a
minimal amount of personal business while at work and stopped doing so once
Employer addressed the issue. Such a finding is clearly contrary to Employer’s
assertion that this conduct damaged Employer’s trust and confidence in her
ability to effectively perform her job.
Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-397 | December 31, 2015 Page 8 of 10 [19] With respect to the allegations regarding Claimant’s organizational skills and
untimely processing of referral orders, the ALJ determined that Employer never
provided Claimant with an opportunity to explain her organization system or
why there appeared to be unprocessed orders. Moreover, to the extent there
were delays in processing orders for therapy, the ALJ concluded that this was
due to the failure of other coworkers to provide Claimant with necessary orders
or information. These delays, according to the ALJ, were beyond Claimant’s
control. Thus, our review of the ALJ’s findings and conclusions, which were
expressly adopted by the Review Board, indicates that Claimant was not
careless or negligent to such a degree, or with such recurrence, as to damage
Employer’s interests.
[20] In addition to the argument based on 646 I.A.C. 5-8-6(b), Employer contends
that the ALJ’s decision ignored competent evidence. Employer asserts, “the
ALJ appears to support his decision solely on the Claimant’s testimony without
addressing the Employer’s admitted exhibits and testimony contrary to
Claimant’s.” Appellant’s Brief at 8. Specifically, Employer directs us to evidence
indicating that Claimant conducted more than a minimal amount of personal
business while working and continued to do so after being warned by Employer.
Employer also notes contrary testimony regarding the cause of a delayed
referral order and evidence that Claimant failed to properly train the new
secretary.
[21] We reject Employer’s invitation to reweigh the evidence and judge witness
credibility. See McClain, 693 N.E.2d at 1317. Employer and Claimant, the only
Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-397 | December 31, 2015 Page 9 of 10 witnesses to testify, presented vastly conflicting evidence. The ALJ did not
ignore competent evidence. It simply believed Claimant, which was within the
ALJ’s discretion.
[22] Decision affirmed.
Robb, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-397 | December 31, 2015 Page 10 of 10