MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Feb 14 2017, 10:36 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES Kathrine J. Rybak Curtis T. Hill, Jr. Evansville, Indiana Attorney General of Indiana Adam E. Taylor Andrea E. Rahman South Bend, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
J.G., February 14, 2017 Appellant-Petitioner, Court of Appeals Case No. 93A02-1607-EX-1579 v. Appeal from the Review Board of the Indiana Department of Review Board of the Indiana Workforce Development Department of Workforce The Honorable Steven F. Bier, Development and Morgan Chairperson Graham, Inc., Case No. 16-R-797 Appellee-Respondent.
Riley, Judge. STATEMENT OF THE CASE [1] Appellant-Petitioner, J.G., appeals the decision reached by Appellee-
Respondent, the Review Board of the Indiana Department of Workforce
Development (Review Board), that J.G. was discharged for just cause and
therefore should be denied unemployment compensation benefits.
[2] We affirm.
ISSUE [3] J.G. raises four issues which we consolidate and restate as the following single
issue: Whether there is sufficient evidence to support the Review Board’s
decision that J.G. was discharged for just cause because she knowingly violated
three reasonable and uniformly enforced workplace rules by failing to supervise
a client at all times.
FACTS AND PROCEDURAL HISTORY [4] J.G. was employed as a caregiver by Morgan Graham, Inc. d/b/a/Around the
Clock Care (Employer) from April 2013 until she was terminated on December
9, 2015. Employer provides non-medical attendant care to individuals in
facilities and in their homes. On December 6, 2015, J.G. was working in the
home of a client who required a specific protocol to protect her and her
husband, who was also residing in the residence. The client’s husband suffered
from chronic obstructive pulmonary disease and used oxygen. A hospice nurse,
employed by a different agency, provided care to him; the hospice nurse did not
have any healthcare responsibilities towards Employer’s client. Employer’s client suffered from dementia and had a smoking habit. Due to the client’s
husband’s oxygen tank, a strict protocol was in place that placed client under
constant supervision. The client was not restricted in her ability to move about
the home.
[5] That day, there was little food in the house. Client’s husband requested J.G. to
pick up some food at a specific restaurant. The hospice nurse, who was at the
residence to provide care to client’s husband, agreed to remain in the house
until J.G. returned. J.G. did not notify Employer prior to leaving the house.
When J.G. returned to the home after approximately twenty minutes, the
hospice nurse was on the phone attempting to fill a prescription order for
client’s husband.
[6] Employer discharged J.G., citing a violation of the following workplace rules
included in the employee handbook:
The Company has determined that the following (although not exhaustive) are, by their very nature activities so harmful to the successful operation of any business that involvement may be grounds for immediate dismissal, disciplinary action and/or legal consequences to remedy:
1. Negligence, carelessness, or acts which result, or could result in damage to Around the Clock Care or client property or equipment, or defying the authority of supervision, or other displays of conduct that harm or injure operations or jeopardize the successful operation of Around the Clock Care.
**** 10. Refusal or failure to perform work assigned, or refusal or failure to follow the direction or instructions of supervisors, unless such assignment is later established to have been a violation of Around the Clock Care policy, or constitutes a safety hazard.
****
14. Being absent from work area without authorization, loitering in work areas or departments, distracting or interfering with another employee’s work duties.
19. Any other action deemed not in the best interest of the Company.
(Appellant’s App. Vol. II, pp. 9, 10, 11). J.G. was aware of these rules of
conduct as she had received a copy of the employee handbook on April 23,
2013.
[7] On December 21, 2015, J.G. filed her claim for unemployment benefits. On
January 28, 2016, a claims deputy with the Department of Workforce
Development concluded that J.G. was discharged for just cause and was not
entitled to unemployment benefits. On February 5, 2016, J.G. appealed this
decision.
[8] On May 9, 2016, an Administrative Law Judge (ALJ) conducted a hearing
regarding J.G.’s appeal. The ALJ affirmed the deputy’s determination that J.G.
was discharged with just cause for knowingly violating reasonable and uniformly enforced workplace rules numbers 1, 10, and 14. On May 25, 2016,
J.G. appealed the ALJ’s decision to the Review Board. After reviewing the
ALJ’s findings of fact and conclusions of law, the Review Board affirmed the
ALJ’s decision that J.G. was discharged for just cause:
[J.G.] demonstrated significant poor judgment amounting to carelessness or negligence in leaving the client in the home with the belief that a non-employee would perform [J.G.’s] supervisory responsibilities for the client. It was not reasonable for [J.G.] to expect or believe that the hospice nurse would be able to provide constant supervision of the [] client if she was distracted on the telephone attempting to get prescriptions filled, [J.G.] did not act in a reasonable manner when she failed to make any attempt to contact the [E]mployer before leaving the client without direct supervision by a company employee for approximately 20 minutes.
(Appellant’s App. Vol. II, p. 8).
[9] J.G. now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION [10] J.G. contends that she did not knowingly violate her Employer’s workplace
rules and therefore could not be discharged with good cause. The Indiana
Unemployment Compensation Act provides that any decision of the Review
Board shall be conclusive and binding as to all questions of fact. Ind. Code §
22-4-17-12(a). When the Review Board’s decision is challenged as being
contrary to law, our review is limited to a two-part inquiry: “(1) the sufficiency
of the facts found to sustain the decision; and (2) the sufficiency of the evidence to sustain the findings of fact.” Albright v. Review Bd. of Ind. Dep’t of Workforce
Dev., 994 N.E.2d 745, 749 (Ind. Ct. App. 2013). Applying this standard, we
review “(1) determinations of specific or basic underlying facts, (2) conclusions
or inferences from those facts, sometimes called ‘ultimate facts,’ and (3)
conclusions of law.” Id. at 750. The Review Board’s findings of basic fact are
subject to a substantial evidence standard of review. Id. The Review Board’s
conclusions regarding ultimate facts involve an inference or deduction based on
the findings of basic fact, and we typically review them to ensure that the
Review Board’s inference is “reasonable” or “reasonable in light of its
findings.” Id. We review the Review Board’s conclusions of law using a de
novo standard. Id. In conducting our analysis, we neither reweigh evidence nor
judge witness credibility; rather, we consider only the evidence most favorable
to the Review Board’s findings. Id.
[11] In Indiana, an employee is ineligible for unemployment benefits if he or she is
discharged for just cause. I.C. § 22-4-15-1. “Discharge for just cause” is
defined to include “a knowing violation of a reasonable and uniformly enforced
rule of an employer[.]” I.C. § 22-4-15-1(d). “An applicant’s entitlement to
unemployment benefits is determined based on the information that is available
without regard to a burden of proof.” I.C. § 22-1-1-2(c). “There is no
presumption of entitlement or nonentitlement to unemployment benefits.” I.C.
§ 22-4-1-2(d). Although the employer has no statutory burden of proof, case
law has divided Indiana Code section 22-4-15-1(d)(2) into three main parts “to
show that the claimant: (1) knowingly violated; (2) a reasonable; and (3) uniformly enforced rule.” City of Carmel v. Review Bd. of Ind. Dep’t of Workforce
Dev., 970 N.E.2d 239, 245 (Ind. Ct. App. 2014). The reason for requiring
uniform enforcement of a known and reasonable rule is to give notice to
employees about what punishment they can reasonably anticipate if they violate
the rule and to protect employees against arbitrary enforcement. Coleman v.
Review Bd. of Ind. Dep’t of Workforce Dev., 905 N.E.2d 1015, 1020 (Ind. Ct. App.
2009). We will address each component in turn.
I. Reasonable Rules
[12] The ALJ and the Review Board concluded that J.G. violated workplace rules 1,
10, and 14 of the employee handbook. The determination of whether a
workplace rule is reasonable is a question of ultimate fact and deference should
be given to the Review Board’s conclusion. See McClain v. Review Bd. of Ind.
Dep’t of Workforce Dev., 693 N.E.2d 1314, 1318 (Ind. 1998) (“An example of
such an ultimate fact would be whether the workplace rule is reasonable”). A
work rule is reasonable “if it protects the interests of the employees as well as
those of the employer.” Russell v. Review Bd. of Ind. Dep’t of Employment &
Training Servs, 586 N.E.2d 942, 949 (Ind. Ct. App. 1992).
[13] With respect to the reasonableness of the workplace rules, J.G. only challenges
workplace rule 14, which states that “[b]eing absent from work area without
authorization, loitering in work areas or departments, distracting or interfering
with another employee’s work duties” may be grounds for immediate dismissal.
(Appellant’s App. Vol. II, p. 10). The ALJ, as affirmed by the Review Board, concluded that “the [E]mployer’s rules were reasonable in so far as an employer
has a legitimate business interest in preventing carelessness or negligent acts by
employees, insuring that employees perform their assigned work and that
employees remain in their assigned work area unless authorized to leave.”
(Appellant’s App. Vol. II, p. 8). J.G. now contends that the Employer’s
interpretation and application of rule 14, in light of the Employer’s instruction
to maintain constant supervision of the client, is unreasonable. Specifically, she
asserts that “a rule prohibiting J.G. from running a client-requested errand for
the client’s welfare is unreasonable. Such a rule does not make sense
considering Employer’s business needs.” (Appellant’s Br. p. 19).
[14] Employer is in the business of assigning caregivers to provide non-medical
attendant care. The specific instructions to be followed by each caregiver will
therefore depend on the unique needs of the client. Here, the record reflects
that J.G. had been instructed by Employer’s client care instruction coordinator
to constantly supervise client because of a safety concern. Both client and her
husband wanted to smoke in the house although client’s husband was required
to use liquid oxygen due to a health condition. As testified to by Employer:
“[A]nyone who is aware of how liquid oxygen and a lighter and fire relate to
each other, you know that that is a perilous situation.” (Transcript p. 18).
Because client suffered from dementia, Employer had devised specific
“protocols” to maintain the safety of everyone in the residence. (Tr. p. 18).
One of these protocols was the constant supervision of client by the assigned
caregiver. [15] The record supports, and J.G. admitted during testimony, that she left the
house to pick up food for the client and the client’s husband. However,
contrary to J.G.’s argument, on December 6, 2015, J.G. did not run a “client-
requested errand.” (Appellant’s Br. p. 19). Our review of the record indicates
that it was client’s husband—not client herself—that requested J.G. to pick up
food from a local restaurant. Moreover, Employer testified that the company
employed “a hired helper who, if we needed anything outside of the home, and
to this day, it’s still policy, we can call her and she will go pick up groceries,
food. She’ll even – would take people on assist with errands running, that type
of thing.” (Tr. p. 19). Even if a caregiver had to leave the home, the Employer
required the caregiver “to contact the office and stipulate to us why they feel
they need to leave and they know they are given direct instructions that you
never leave a shift and you never leave a client alone until you have somebody
to relieve you. . . . They don’t do it without notification to the office, nor in this
case, was it necessary for her to leave.” (Tr. p. 17). Even though a hospice
nurse was in the house, the hospice nurse was not employed by Employer, nor
did she have any supervisory duties over client. J.G. never contacted the office
or the hired helper prior to leaving the client and the residence.
[16] Accordingly, due to client’s unique circumstances and in light of Employer’s
business, it was reasonable to prohibit J.G. from “[b]eing absent from work area
without authorization.” (Appellant’s App. Vol. II, p. 10)
II. Uniform Enforcement [17] The ALJ, as affirmed by the Review Board, concluded that
the [E]mployer had policies which represented rules in so far as they placed employees on notice of what would be considered unacceptable behavior and because, at least with respect to rule numbers 1, 10, and 14, were capable of being uniformly enforced. [] Further, the [ALJ] concludes that the [E]mployer’s rules were uniformly enforced in so far as all employees found to be in violation of such rules by the [E]mployer have been terminated.
[18] A uniformly enforced rule is one that is carried out in such a way that all
persons under the same conditions and in the same circumstances are treated
alike. Gen. Motors Corp. v. Review Bd. of Ind. Dep’t of Workforce Dev., 671 N.E.2d
493, 498 (Ind. Ct. App. 1996). “In order to evaluate uniformity one must first
define the class of persons against whom uniformity is measured.” Stanrail Corp.
v. Review Bd. of Dep’t of Workforce Dev., 735 N.E.2d 1197, 1203 (Ind. Ct. App.
2000). “Once the class is defined, the question whether the employer treats the
persons within the class consistently is a basic factual inquiry and is reviewed
subject to the substantial evidence test and for conformity to law.” McClain,
693 N.E.2d at 1319.
[19] Employer testified that in the past other employees have “been found in
violation of these same rules that the [E]mployer felt that [J.G.] violated.” (Tr.
p. 16). She confirmed that all employees in that situation “have been
terminated.” (Tr. p. 16). “These rules [applied] to all employees of the
company.” (Tr. p. 16). See McClain, 693 N.E.2d at 1319 (testimony by the supervisor and employer’s representative that “it was standard practice to
discharge employees who violated the timecard policy” was substantial
evidence to show that the policy was uniformly enforced).
[20] J.G. now focuses her argument that the rules are not uniformly enforced on the
language of the workplace rules, which state that a violation “may” subject the
employee to discharge.” (Appellant’s App. Vol. II, p. 9) (emphasis added). In
this light, she refers to Employer’s testimony that a violation could lead to
“ramifications up to and including termination.” (Tr. p. 16). Accordingly, she
maintains that “Employer has unbridled discretion to determine the
consequences of violating the applicable Rules of Conduct.” (Appellant’s Br. p.
18). However, in Albright, we held that no arbitrary enforcement exists when a
rule provides that discharge was a possible consequence of a violation of the
workplace attendance policy, the employee knew about the rule, and she
knowingly violated the rule. Albright, 994 N.E.2d at 751-52.
[21] Furthermore, J.G.’s mere assertion that she had “performed similar errands
previously, without specific Employer approval, and [] [without being]
reprimanded or disciplined for this,” does not establish that Employer had been
aware of this and had condoned the behavior. (Appellant’s Br. p. 18). Rather,
the Employer’s testimony was unequivocal that similar employees in similar
circumstances had previously been terminated. Therefore, the ALJ and the
Review Board properly concluded that the workplace rules were uniformly
enforced. III. A Knowing Violation
[22] To have knowingly violated an employer’s rule, the employee must know of the
rule and must know that his conduct violated the rule. Stanrail Corp., 735
N.E.2d at 1203. The Review Board must make a finding as to whether an
employee knew that his conduct violated an employer rule because the text of
Indiana Code Section 22-4-15-1(d)(2) requires a “knowing violation” of a rule
rather than merely a violation of a known rule. Id.
[23] The Employer presented evidence that J.G. had received a copy of the
employee handbook which included the workplace rules 1, 10, and 14. J.G.
testified that she knew and understood that the client could never be left
unsupervised due to safety concerns. “J.G. does not dispute that leaving a
client alone and unsupervised would have been a breach of the Employer’s
rule.” (Appellant’s Br. p. 15). Rather, she alleges that the meaning of the
Employer’s requirement for constant supervision, and the interpretation of that
requirement within the meaning of rules 1, 10, and 14 was not specific enough
to be clearly understood and therefore, she was unaware that the behavior
violated the rule. In essence, J.G.’s entire argument amounts to the fact that
client was not left alone when J.G. left the residence to purchase food because
the hospice nurse was present to provide supervision.
[24] J.G. likens her situation to Reed v. Review Bd. of Ind. Dep’t of Workforce Dev., 32
N.E.3d 814 (Ind. Ct. App. 2015). Reed was a direct support professional and
provided support and assistance to individuals with developmental disabilities. Id. at 816. While driving three clients back to his Employer’s location after
visiting a park, one of the clients began to yell and beat his chest. Id. at 817.
Reed pulled the vehicle to the side of the road and had the two other clients exit
the vehicle. Id. He then called his supervisor who asked if the clients were out
of the car safely and who stated that she would send help. Id. Reed was
terminated for violating the rule that “Employees [] will in no way exploit,
neglect or inflict physical or psychological harm on a client.” Id. The
Employer emphasized that Reed should have called the police and placed the
client in a “Mandt hold.” Id. at 824. Upon review, this court held that Reed
did not knowingly violate the rule because the “Employer did not present
evidence that [Reed] was required to call the police, and [Reed] testified that
Employer had ‘no documentation on . . . using the police either way.” Id.
Neither did we find that Employer had submitted any document related to a
Mandt hold or restraint, “the circumstances under which such a restraint would
be appropriate, or the length of time such a restraint was to be used[.]” Id.
Accordingly, we concluded “that the record lacks substantial evidence to
support a finding that [Reed] knew his conduct violated Employer’s
professional conduct rule.” Id. at 825.
[25] We find Reed inapposite to the situation at hand. Unlike J.G., Reed called his
supervisor to receive instructions on how to handle the volatile situation.
Furthermore, while J.G. recognized Employer’s work rules and the need for
constant supervision, Reed had never been informed that the situation should
have been handled by calling the police and placing the client in a restraint. [26] There is ample evidence in the record to support J.G.’s knowing violation of the
workplace rule. J.G. had received a copy of the handbook and knew of the
workplace rules instructing her of the consequences by failing to perform the
work assigned and being absent from the work area. When questioned whether
the client “was ever supposed to be left alone,” in contravention of the specific
protocol in place, she replied, “Oh no [] [b]ecause we didn’t want her lighting
up cigarettes around the oxygen, and if it wasn’t for the oxygen, we still didn’t
leave her alone.” (Tr. p. 39). J.G. also understood that client’s husband was
“with hospice [] [and we] weren’t supposed to care for him.” (Tr. p. 39). While
J.G. claims she did not know she was required to contact her Employer if she
needed to leave the house, she did acknowledge the importance of constant
supervision.
[27] J.G. left her client to run an errand for client’s husband—for whom J.G. had no
responsibilities—and as such, she left “the work area” and “fail[ed] to perform
work assigned.” (Appellant’s App. Vol II, pp. 9, 10). Although the hospice
nurse was present in the residence while J.G. ran the errand, the hospice nurse
was not employed by Employer, nor did she have any responsibility to
supervise Employer’s client. As recognized properly by the ALJ and the
Review Board, “[J.G.] demonstrated poor judgment amounting to carelessness
or negligence in leaving the client in the home with the belief that a non-
employee would perform the claimant’s supervisory responsibilities to the
client.” (Appellant’s App. Vol. II, p. 8). We affirm the Review Board’s
conclusion that J.G. knowingly violated Employer’s workplace rules. CONCLUSION [28] Based on the foregoing, we conclude that there is substantial evidence to
establish that J.G. was discharged for just cause and is therefore ineligible for
unemployment compensation benefits.
[29] Affirmed.
[30] Crone, J. and Altice, J. concur