MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Aug 25 2015, 10:13 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 Abigail Seif Gregory F. Zoeller Epstein, Cohen, Seif & Porter Attorney General of Indiana Indianapolis, Indiana Kristin Garn Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
K.L., August 25, 2015 Appellant-Defendant, Court of Appeals Case No. 93A02-1409-EX-682 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 Indiana George H. Baker, Member University Health Lawrence A. Dailey, Member Appellee-Plaintiff Cause No. 14-R-01546
Friedlander, Judge.
Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015 Page 1 of 19 [1] K.L. appeals from the decision of the Review Board of the Indiana Department
of Workforce Development (the Review Board) denying her application for
unemployment benefits. K.L. presents four issues for our review, which we
consolidate and restate as:
1. Whether the Review Board applied the appropriate standard in evaluating the evidence? 2. Whether enactment of Ind. Code Ann. § 22-4-1-2 (West, Westlaw current with all 2015 First Regular Session of the 119th General Assembly legislation), which redefined the burden-shifting framework previously applied in making determinations as to unemployment benefits, violates an applicant’s due process rights? 3. Whether the Review Board properly concluded that K.L. was terminated for just cause and therefore was ineligible for unemployment benefits? [2] We affirm.
[3] K.L. was employed by Indiana University Health (IU Health) in Indianapolis
from October 11, 2010 until May 20, 2014. At the time of her termination,
K.L.’s job title was Strategic Value Analyst. The Director of Contracting and
Value Analysis for IU Health, Linda York, cited K.L.’s failure to meet
deadlines, to use critical thinking abilities, and her overall inability to perform
the functions of the job as reasons for her termination. After her termination,
K.L. sought unemployment benefits. On June 30, 2014, a claims deputy with
the Indiana Department of Workforce Development determined that K.L. was
not discharged for just cause and therefore was eligible for unemployment
benefits. On July 10, 2014, IU Health appealed the claims deputy’s
determination. An Administrative Law Judge (ALJ) conducted an evidentiary
Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015 Page 2 of 19 hearing on July 30, 2014, at which K.L., York, and Stacey Slott, a Team
Leader with IU Health, testified.
[4] On August 1, 2014, the ALJ issued a decision. The facts as determined by the
ALJ and subsequently adopted by the Review Board are as follows:
The claimant began work with the employer on October 11, 2010. The claimant was transferred to the contracting department in January 2013. The claimant’s job title was strategic value analyst and she was a full time salaried employee. The claimant was discharged on May 20, 2014. When the claimant came to the new department, Ms. Slott continually repeatedly trained the claimant on the programs and procedures for the department. The claimant’s responsibility was to do cost analysis information for supplies, negotiate contracts and keep track of this information. The employer works with hospitals. For example if the hospitals needed more ID bracelets, it was the claimant’s obligation to gather the information, obtain quotes from vendors and negotiate the contact and the pricing. The employer became increasingly concerned regarding the claimant’s performance in January, 2014. By this time, the claimant had been relieved of her duties of her old job, but was still not performing her new job duties adequately. The employer was receiving complaints that the claimant was repeatedly requesting the same information, not following instructions and failing to follow up on information. Ms. Slott began to have one-on-ones with the claimant to discuss her performance. Ms. Slott testified and the Administrative Law Judge finds, that the claimant’s attitude improved but she continued to fail to follow up on her items and to get work done. She would repeatedly not meet deadlines or utilize tools that Ms. Slott had made available to her. In April 2014, the employer sent the claimant an[] email requesting that she set out timelines for completing some work that the employer was concerned about. This included a project involving batteries. However, the claimant never read the email even if she had admits [sic] receiving it from her supervisor. The employer met with the claimant to discuss the timelines on April 24th. At that time, the claimant admitted she had not read the email and had not drafted any
Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015 Page 3 of 19 timelines. The employer was concerned by this and gave the claimant a warning. The claimant was warned that she was given until May 2 to draft a timeline and deadlines for her work assignments. The claimant was also spoken to about using appropriate procedures and initiative. On May 2nd, the claimant presented her timelines. However, the timelines failed to follow procedures the employer utilizes for their work. It did not include any deadlines. The claimant was given a continued performance improvement plan on May 5, 2014 regarding these concerns. The employer was concerned that the timelines did not include any deadlines. The employer also expressed concerns about the claimant’s continued lack of understanding the processes despite multiple training sessions and the claimant had repeatedly signed off admitting that she understood the information. She did not understand the process of initiatives and continued to have vendor complaints. For example, the claimant had failed to use forms and information on proper procedures found on the F drive. The claimant alleged she was never told of these documents on the F drive. However, the claimant had been repeatedly trained on them and signed off, acknowledging having been trained on them. The expectations for improvement included that the claimant needed to meet deadlines immediately, demonstrate the ability to correct price discrepancies and to provide project plans for ongoing initiatives. On May 6, 2014, the employer sent a follow up email, with the claimant’s timelines attached, reminding the claimant that “it is the expectation that you will have all of the initiatives listed well under way with clear progress or completion” within the next two weeks. On May 20th, the employer met with the claimant again. The claimant had not completed the projects. The claimant continued to fail to utilize the appropriate steps and procedures for completing work. The claimant was discharged. The claimant argued at the hearing that her poor performance was caused by lack of training or other employee’s errors. For example, she claims she was never told of forms and procedures available on the F drive. However, the employer testified and the Administrative Law Judge finds that the claimant was repeatedly trained on them and signed off that she knew and understood the procedures. The claimant blamed other employees for giving her poor information. However, the employer noted that one of the claimant’s job duties is to manage
Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015 Page 4 of 19 her timeline and making sure she’s obtaining correct and timely information. The claimant argues that she had shown improvement between the May 5th and the May 20th discharge. However, the employer testified and the Administrative Law Judge finds, that the claimant continued to fail to understand procedures, follow initiatives and complete work in a timely manner. Appellee’s Appendix at 2-3. Based on these findings, the ALJ concluded that K.L.
was terminated for just cause1 and therefore was ineligible for unemployment
benefits. K.L. appealed the ALJ’s decision to the Review Board. On August
29, 2014, the Review Board issued its decision in which it affirmed and adopted
as its own the decision previously rendered by the ALJ. K.L. now appeals.
1.
[5] K.L. argues that the Review Board did not properly apply the law with regard
to burden of proof. Specifically, K.L. asserts that the Review Board erred by
retroactively applying I.C. § 22-4-1-2(c), which provision redefined the burden-
shifting framework that had been previously articulated in case law by
reviewing courts such that now both parties are required to present their
evidence as to whether termination was for just cause and a decision is to be
made thereon “without regard to a burden of proof.”
1 Reading the ALJ’s conclusions in total, it is clear that the ALJ, and ultimately the Review Board, determined that K.L. was discharged for “just cause” because she breached a duty “in connection with work which is reasonably owed an employer by an employee.” Appellee’s Appendix at 4; see also Ind. Code Ann. § 22-4-15-1 (West, Westlaw current with all 2015 First Regular Session of the 119th General Assembly legislation) (“[d]ischarge for just cause . . . is . . . any breach of duty in connection with work which is reasonably owed an employer by an employee”).
Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015 Page 5 of 19 [6] A general rule of statutory construction is that unless there are strong and
compelling reasons, statutes will not be applied retroactively. See Holding Co. v.
Mitchell, 589 N.E.2d 217 (Ind. 1992); Chestnut v. Roof, 665 N.E.2d 7 (Ind. Ct.
App. 1996). In other words, a statute will be applied prospectively in the
absence of an express statement by the legislature that it be applied
retroactively. Ind. Dep’t of Envtl. Mgmt. v. Chem. Waste Mgmt. of Ind., Inc., 604
N.E.2d 1199 (Ind. Ct. App. 1992), trans. denied. “An exception to this general
rule exists for remedial statutes, i.e. statutes intended to cure a defect or
mischief that existed in a prior statute.” Bourbon Mini-Mart, Inc. v. Gast Fuel &
Servs., Inc., 783 N.E.2d 253, 260 (Ind. 2003). The issue of retroactivity is a
question of law which this court reviews de novo. Ind. Dep’t of Envtl. Mgmt. v.
Chem. Waste Mgmt. of Ind., Inc., 604 N.E.2d 1199; Bellows v. Bd. of Comm’rs of
Cnty. of Elkhart, 926 N.E.2d 96 (Ind. Ct. App. 2010).
[7] The legislature enacted I.C. § 22-4-1-2, which went into effect July 1, 2014, and
redefined the burden of proof to be used in making determinations about
eligibility for unemployment compensation. Specifically, in subsection (c), the
legislature provided that “[a]n applicant’s entitlement to unemployment benefits
is determined based on the information that is available without regard to a burden
of proof.” (Emphasis supplied.) Subsection (c) superseded existing case law
which, prior to the enactment of I.C. § 22-4-1-2, set forth a burden-shifting
framework in the unemployment context whereby the employer who alleged
that an employee was discharged for just cause carried the burden of
establishing a prima facie case of discharge for just cause. See Albright v. Review
Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015 Page 6 of 19 Bd. of Ind. Dep’t of Workforce Dev., 994 N.E.2d 745 (Ind. Ct. App. 2013). Only
after the employer met its burden did the burden then shift to the employee to
rebut the employer’s evidence. Id.
[8] Here, K.L. was terminated from her position and filed her application for
unemployment benefits prior to July 1, 2014. The claims deputy granted K.L.’s
application for unemployment benefits on June 30, 2014. I.C. § 22-4-1-2 went
into effect the following day. IU Health appealed and the ALJ conducted a
hearing and issued findings of fact and conclusions of law on August 1, 2014, a
month after I.C. § 22-4-1-2 went into effect. At the start of the July 10 review
hearing and in her order denying K.L. unemployment benefits, the ALJ set
forth the new standard set out in I.C. § 22-4-1-2, specifically noting that the
burden of proof had been redefined and that there was no longer a presumption
of entitlement to unemployment benefits.2 The ALJ then made findings and
conclusions based upon the evidence submitted by both sides. The Review
Board affirmed the ALJ’s findings and conclusions with the following
addendum:
In her opening remarks, the Administrative Law Judge initially began to instruct the parties as to which party had the burden of proof, but the Administrative Law Judge corrected herself and explained that there is no longer a burden of proof in unemployment cases. The Administrative Law Judge did not assign the burden of proof to either
2 In subsection (d) the legislature provided: “There is no presumption of entitlement or nonentitlement to unemployment benefits. There is no equitable or common law allowance for or denial of unemployment benefits.”
Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015 Page 7 of 19 party after correcting herself on the record. Furthermore, the Administrative Law Judge correctly explained in her decision that the burden of proof has been eliminated and did not apply the burden of proof to either party in her decision. Appellee’s Appendix at 1 (emphasis supplied).
[9] On appeal, K.L. argues that the Review Board “violated a time-honored
presumption against retroactive application of laws absent clear legislative
intent to the contrary.” Appellant’s Brief at 6. K.L. notes that the initial decision
granting her unemployment benefits was made applying the burden of proof to
the employer to establish that K.L. was terminated for just cause. K.L.
maintains that she was not given notice that a different standard would be
applied and that the application of the different standard midway through her
case is unfair. In response, the Review Board asserts that I.C. § 22-1-4-2(c) is
directed at the administrative appeals process, and thus, maintains that it
correctly applied the law in effect at the time the administrative appeals process
was initiated, i.e., July 10, 2014, which was after I.C. § 22-1-4-2 took effect.
[10] We need not delve into the parties’ competing arguments because under either
standard, the result is the same. We begin by noting that both parties were
present during the telephonic hearing with the ALJ, were permitted to present
testimony and cross-examine witnesses, and each submitted documentation in
support of their respective positions. K.L. testified on her own behalf and
explained her understanding of the events leading up to her termination. York
and Slott testified on behalf of IU Health. The ALJ considered all of the
evidence presented and found that the evidence tipped the scales in favor of IU
Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015 Page 8 of 19 Health. Thus, even if the burden-shifting framework that existed prior to the
enactment of I.C. § 22-4-1-2 had been applied, the outcome would have been
the same. To be sure, the Review Board’s evidence would have satisfied its
burden of proof had the burden been attributed to the Review Board, and K.L.’s
evidence did not rebut the evidence presented by IU Health. We therefore
conclude that if the Review Board incorrectly applied the new standard set forth
in I.C. § 22-4-1-2, any resulting error was harmless. See Ind. State Highway
Comm’n v. Ind. Civil Rights Comm’n, 424 N.E.2d 1024 (Ind. Ct. App. 1981)
(applying the doctrine of harmless error in appellate review of an administrative
decision).
2.
[11] K.L. argues I.C. § 22-4-1-2 in its current form is unconstitutional as it deprives
the applicant for unemployment benefits due process of law. Specifically, K.L.
asserts that the legislature’s enactment of I.C. § 22-4-1-2 redefining “the long
standing burden on the employer to prove ‘just cause’ and ‘breach of duty forces
ALJ’s [sic] to make arbitrary and unpredictable decisions.” Appellant’s Brief at
15. K.L. further assets that the change brought about by I.C. § 22-4-1-2
essentially gives absolute discretion to ALJs and the Review Board in deciding
who may receive unemployment benefits. K.L. maintains that the result will be
a “loss of any predictability or protection for the employee” and an increase in
erroneous deprivation of unemployment benefits. Appellee’s Brief at 14. K.L.
requests a new hearing at which IU Health should be required to bear the
burden of proving that she was discharged for just cause.
Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015 Page 9 of 19 [12] When a statute is challenged as an alleged violation of the Indiana
Constitution, our standard of review is well-established. Every statute stands
before us clothed with the presumption of constitutionality until clearly
overcome by a contrary showing. Boehm v. Town of St. John, 675 N.E.2d 318
(Ind. 1996). The party challenging the constitutionality of the statute bears the
burden of proof, and all doubts are resolved against that party. Id. If there are
two reasonable interpretations of a statute, one of which is constitutional and
the other not, we will choose that path which permits upholding the statute
because we will not presume that the legislature violated the constitution unless
such is required by the unambiguous language of the statute. Id. This court
reviews the constitutionality of statutes with the understanding that “‘[t]he
legislature has wide latitude in determining public policy, and we do not
substitute our belief as to the wisdom of a particular statute for those of the
legislature.’” Id. at 321 (quoting State v. Rendleman, 603 N.E.2d 1333, 1334
(Ind. 1992)).
[13] The Due Process Clause of the Fourteenth Amendment declares that no State
shall “deprive any person of life, liberty, or property, without due process of
law.” U.S. Const. amend. XIV, § 1. Due process contains both substantive
and procedural elements. The issue presented concerns a burden of proof,
which is a procedural matter.
[14] In analyzing a procedural due process claim, we engage in a two-part inquiry:
“‘The first inquiry in every due process challenge is whether the plaintiff has
been deprived of a protected interest in property or liberty. Only after finding
Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015 Page 10 of 19 the deprivation of a protected interest do we look to see if the State’s procedures
comport with due process.’” Perdue v. Gargano, 964 N.E.2d 825, 832 (Ind. 2012)
(quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999)). Further, we
note that “the fundamental requirement of procedural due process is the
opportunity to be heard at a meaningful time and in a meaningful manner.” Id.
When a deprivation is contemplated, “these principles require ... an effective
opportunity to defend by confronting any adverse witnesses and by presenting
his own arguments and evidence orally.” Id. Whether a party was denied due
process is a question of law that we review de novo. NOW Courier, Inc. v. Review
Bd. of Ind. Dep’t of Workforce Dev., 871 N.E.2d 384.
[15] Here, the legislature simply redefined the burden of proof and expressly
provided that new procedure for determining entitlement to unemployment
compensation is to consider all the information brought forth by the parties. A
review of the statutes comprising Indiana’s Unemployment Compensation Act
shows that there are numerous procedural safeguards to protect against
arbitrary decisions by ALJs and any erroneous deprivation of unemployment
benefits. By statute, ALJs are trained and required to ensure that a case is fully
presented. To be sure, ALJs must be trained annually concerning
unemployment law, rules for the conduct of hearings and appeals, and rules of
conduct for ALJs and other individuals who adjudicate claims. I.C. § 22-4-17-
4(b) (West, Westlaw current with all 2015 First Regular session of the 119th
General Assembly legislation). The Department of Workforce Development is
charged with monitoring hearings and decisions of ALJs, review board
Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015 Page 11 of 19 members, and other adjudicators to ensure that they follow the law. I.C. § 22-4-
17-4(c). To safeguard against arbitrary decisions by an ALJ, the Review Board
is statutorily charged with reviewing decisions of ALJs and has discretion to
decide whether additional information is necessary. I.C. § 22-4-17-5(b) (West,
Westlaw current with all 2015 First Regular Session of the 119th General
Assembly legislation).
[16] During the hearing, the ALJ took care to allow both parties to present their
evidence. K.L. and representatives from IU Health, including K.L. ’s direct
supervisor and a team leader, appeared at and participated in the July 30
hearing regarding K.L. ’s entitlement to unemployment benefits. The ALJ
conducted direct examination of K.L. , York, and Slott, and K.L. was given
the opportunity to cross-examine them. The ALJ asked K.L. whether she
objected to inclusion in the record of documents establishing the ALJ’s
jurisdiction and K.L. responded that she had no objection. K.L. also
confirmed that she had been provided with IU Health’s exhibits prior to hearing
and that she had no objection to consideration thereof. K.L. was also given the
opportunity to rebut the evidence provided in the exhibits. Additionally, the
ALJ ensured that K.L. understood the procedures to be employed during the
hearing and that she understood her appeal rights. After the ALJ rendered the
decision, K.L. appealed to the Review Board. The Review Board reviewed the
matter and affirmed the ALJ’s determination.
[17] K.L. does not argue that she was deprived of her right to be heard or that the
hearing was conducted improperly. To the contrary, K.L. was unquestionably
Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015 Page 12 of 19 afforded a meaningful opportunity to be heard. Moreover, the elimination of
the burden of proof would have had no impact on the conclusion as the ALJ’s,
and subsequently the Review Board’s, determination was based on all of the
evidence presented.
[18] On yet another ground, we conclude that I.C. § 22-4-1-2 does not violate
principles of due process. As noted above, prior to enactment of I.C. § 22-4-1-2,
case law had long placed the burden of proof upon the employer to make a
prima facie showing that an employee was discharged for just cause. See P.K.E.
v. Review Bd. of Ind. Dep’t of Workforce Dev., 942 N.E.2d 125 (Ind. Ct. App. 2011),
trans. denied; Indus. Laundry v. Review Bd. of Ind. Employment Sec. Div., 147
Ind.App. 40, 258 N.E.2d 160 (1970). In redefining the manner in which
unemployment decisions are to be made, the legislature was exercising its
constitutional prerogative to determine public policy relating to unemployment
benefits and to enact legislation in furtherance thereof. We will not second-
guess the legislature’s decision in this regard. K.L. has not shown that she was
denied due process in this matter.
3.
[19] K.L. argues that the Review Board failed to make appropriate findings to
support its determination that she breached a duty in connection with her work,
which duty she reasonably owed to IU Health as her employer. In any event,
K.L. also argues that there is insufficient evidence to support the Review
Board’s determination that K.L. was terminated for just cause.
Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015 Page 13 of 19 [20] The Indiana Unemployment Compensation Act provides that any decision of
the Review Board shall be conclusive and binding as to all questions of
fact. I.C. § 22-4-17-12(a) (West, Westlaw current with all 2015 First Regular
Session of the 119th General Assembly legislation effective through June 28,
2015). When the Review Board’s decision is challenged as being contrary to
law, our review is limited to a two-part inquiry into: “(1) ‘the sufficiency of the
facts found to sustain the decision;’ and (2) ‘the sufficiency of the evidence to
sustain the findings of facts.’” Recker v. Review Bd. of Ind. Dep’t of Workforce Dev.,
958 N.E.2d 1136, 1139 (Ind. 2011) (quoting I.C. § 22-4-17-12(f)); McClain v.
Review Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314 (Ind. 1998).
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.” Recker v. Review Bd. Of Ind.
Dep’t of Workforce Dev., 958 N.E.2d 1139.
[21] The Review Board’s findings of basic fact are subject to a “substantial
evidence” standard of review. 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. McClain v. Review Bd.
of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314. 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. at 1317-18 (citation and quotation marks omitted). We review
Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015 Page 14 of 19 the Review Board’s conclusions of law using a de novo standard. Ind. State
Univ. v. LaFief, 888 N.E.2d 184, 186 (Ind. 2008).
[22] In Indiana, an individual is ineligible to receive unemployment benefits if
he/she was discharged for “just cause.” I.C. § 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). “[T]he ‘breach of duty’ ground for just cause discharge is an
amorphous one, without clearly ascertainable limits or definition, and with few
rules governing its utilization.” Hehr v. Review Bd. of Ind. Employment Sec. Div.,
534 N.E.2d 1122, 1126 (Ind. Ct. App. 1989). When applying a breach of duty
analysis in this context, the Review Board must ascertain whether the action of
the employee was considered a breach of a duty reasonably owed to the
employer, and second, the Review Board must determine if the employee was
at fault for the breach. Recker v. Review Bd. of Ind. Dep’t of Workforce Dev., 958
N.E.2d at 1140. Whether a person beaches a duty owed to the employer “is a
very fact-sensitive determination which must be made on a case by case basis.”
Hehr v. Review Bd. of Ind. Employment Sec. Div., 534 N.E.2d at 1127.
Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015 Page 15 of 19 [23] Here, the ALJ concluded, and the Review Board affirmed, that IU Health
discharged K.L. for just cause within the meaning of I.C. § 22-4-15-1(d)(9).3
Specifically, it was determined that
the claimant failed repeatedly to perform her job duties adequately. The ALJ concludes the claimant’s failure to perform adequately was within the claimant’s control, because she was failing to follow such simple steps such as reading emails, utilizing available forms, meeting deadlines, and following the employer’s instructions. The claimant was given adequate training and assistance to meet her requirements, but failed to do so. Therefore, the Administrative Law Judge concludes the claimant was discharged for just cause as defined by Chapter 15-1 of the Act. Appellee’s Appendix at 4-5.
[24] K.L. first argues that the Review Board did not make appropriate findings to
support its conclusion. Although the Review Board, in adopting the ALJ’s
findings and conclusions, did not explicitly state its conclusion that she was
terminated for just cause in terms of I.C. § 22-4-15-1(d)(9), such does not
necessitate reversal. A reading of the Review Board’s decision in its entirety
and the reasonable inferences drawn therefrom demonstrate that the Review
Board determined that K.L. breached a duty in connection with her work,
which duty she reasonably owed to IU Health as her employer.
3 K.L. argues that the Review Board failed to make specific findings relating to I.C. § 22-4-15-1(d). Upon reading the ALJ’s order, which the Review Board adopted, it is clear in context that a determination was made that K.L. was discharged for just cause because she “breach[ed] a duty in connection with work which is reasonably owed an employer by an employee.” I.C. § 22-4-15-1(d)(9).
Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015 Page 16 of 19 [25] K.L. also argues that the Review Board’s factual findings do not support its
conclusion that she was terminated for just cause. Specifically, K.L. argues that
her actions, which she does not dispute, did not constitute breach of a duty
reasonably owed to her employer. Further, K.L. directs us to evidence that she
claims supports her belief that she was discharged in retaliation for a letter she
wrote criticizing the manner in which she was evaluated.
[26] The record demonstrates that K.L. performed substandard work, despite
repeated training and correction. As noted in the Review Board’s findings,
K.L. failed to follow such simple steps such as reading emails, utilizing
available forms, meeting deadlines, and following specific instructions. In
January 2014, K.L.’s supervisors reviewed K.L.’s work and informed her that
she was not meeting expectations in taking initiative and developing expertise.
Over the course of the next few months, K.L.’s work performance did not
improve despite additional training and assistance. We have before held that a
pattern of substandard work performance, despite repeated correction, may
constitute a breach of duty in connection with work that was reasonably owed
to an employer and is of such a nature that a reasonable employee would
understand that the conduct was a violation of a duty owed to the employer.
Seabrook Dieckmann & Naville, Inc. v. Review Bd. of Ind. Dep’t of Workforce Dev., 973
N.E.2d 647 (Ind. Ct. App. 2012) (citing Van Cleave v. Review Bd. of Ind.
Employment Sec. Div., 517 N.E.2d 1260 (Ind. Ct. App. 1988) (noting that the
claimant persisted in a pattern of substandard work performance even though
he knew what his duties were, had received training and assistance, and had
Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015 Page 17 of 19 been disciplined for substandard performance, and affirming the Board’s
decision denying the employee benefits)).
[27] In addition to the above, K.L. asserts that IU Health did not establish that its
expectations relating to K.L.’s work product were reasonable. K.L., however,
did not argue and does not now challenge that IU Health’s expectations were
unreasonable. The facts demonstrate that K.L. was adequately trained and
received assistance in completing tasks related to her position. K.L.
acknowledged that she understood IU Health’s policies and that she understood
the requirements of her position. K.L. never indicated that IU Health’s
expectations of her in her position were unreasonable.
[28] Further, we note that K.L. does not claim her inability to adequately perform
the functions of her job was the result of factors not within her control. See, e.g.,
Giovanoni v. Review Bd. of Ind. Dep’t of Workforce Dev., 927 N.E.2d 906 (Ind.
2010) (holding that claimant’s violation of employer’s attendance policy due to
debilitating medical condition subjected claimant to discharge, but such did not
disqualify employee from unemployment compensation because employee was
discharged through no fault of his own). Indeed, K.L. acknowledged that she
had been trained on how to perform her job and admitted that she could have
done a better job with certain aspects of her position. She offered no
explanation for her inability to follow procedures, contact appropriate parties
for necessary information, or timely complete tasks. K.L. simply did not follow
procedures, use appropriate forms, read emails, meet deadlines, or follow
instructions.
Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015 Page 18 of 19 [29] Having reviewed the record that was before the ALJ and the Review Board,
including the testimony of the parties, we conclude that IU Health adequately
demonstrated that K.L. breached a duty in connection with work, which duty
was reasonably owed IU Health, and that a reasonable employee of IU Health
would understand that the conduct at issue was a violation of the duty owed.
Accordingly, the Review Board’s determination that K.L. was terminated for
just cause is affirmed. To the extent K.L. asserts on appeal a different reason
for her termination, we will not reweigh the evidence.
[30] Judgment affirmed.
Baker, J., and Najam, J., concur.
Court of Appeals of Indiana | Memorandum Decision 93A02-1409-EX-682 | August 25, 2015 Page 19 of 19