Trigg v. Review Board of the Indiana Employment Security Division

445 N.E.2d 1010, 9 Educ. L. Rep. 657, 1983 Ind. App. LEXIS 2656
CourtIndiana Court of Appeals
DecidedFebruary 23, 1983
Docket2-782A209
StatusPublished
Cited by16 cases

This text of 445 N.E.2d 1010 (Trigg v. Review Board of the Indiana Employment Security Division) 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
Trigg v. Review Board of the Indiana Employment Security Division, 445 N.E.2d 1010, 9 Educ. L. Rep. 657, 1983 Ind. App. LEXIS 2656 (Ind. Ct. App. 1983).

Opinions

STATON, Judge.

The Ft. Wayne Community School System (School) fired Hattie Trigg. Later, Hattie Trigg applied for unemployment benefits. After a hearing, the School appealed the referee’s grant to Trigg of unemployment benefits. The Review Board (Board) reversed the decision of the appeals referee and found that Trigg was discharged for a knowing violation of a School work rule prohibiting excessive tardiness.1

[1012]*1012Therefore, the Board concluded that Trigg was. not entitled to unemployment benefits. On appeal, she raises the following issues:

(1) Does IC 22-4-15-l(e)(2) (Burns Code Ed.Supp.1982) require the Board to find uniform enforcement of a violated work rule before it can conclude that Trigg was discharged for just cause?
(2) Did the Board prejudice Trigg’s due process rights by its failure to directly notify her attorney that briefs could be filed even though Trigg had notice and her attorney did not seek to file a brief?
(3) Is the Board’s decision contrary to law?2

Reversed and remanded for a finding of whether the violated work rule prohibiting excessive tardiness was uniformly enforced.

This Court is bound by the Board’s factual determinations. City of Indianapolis v. Review Board of the Indiana Employment Security Division (1982), Ind.App., 441 N.E.2d 36, 37. We will neither weigh the evidence nor judge the credibility of the witnesses. Skirvin v. Review Board of the Indiana Employment Security Division (1976), 171 Ind.App. 139, 355 N.E.2d 425, 428. We will disturb the decision only if reasonable men would reach a different result. Molina v. Review Board of the Indiana Employment Security Division (1981), Ind.App., 418 N.E.2d 1198, 1200. This Court may only consider the evidence, together with its reasonable inferences, most favorable to the Board’s decision. City of Indianapolis, supra at 37.

The facts most favorable to the Board’s decision are as follows: From September, 1979 until February 11, 1980, Trigg worked for the School as a teachers aide to Janet Perez. In September, 1979, Perez and Trigg agreed that Trigg’s work hours would be from 7:30 a.m. to 4:30 p.m. Despite an unsatisfactory evaluation, Trigg arrived after 7:30 a.m. sixteen times within a three month period. After a second unsatisfactory evaluation, the School discharged Trigg for violating the School’s work rule prohibiting excessive tardiness. The Board made the following findings and conclusions:

“The Review Board finds that claimant was employed until February 11, 1980, and was discharged for violation of employer work rules Nos. 12 and 17, ‘Insubordination’ and ‘Excessive tardiness or absenteeism.’
“It further finds that the evidence indicates that claimant had knowledge of employer work rules in question as indicated by the evidence.
“It further finds that the evidence submitted by employer fails to allow this Board to make a finding of ultimate fact that claimant was insubordinate thus violating employer work rule No. 12.
“It further finds that due to the testimony of claimant relative to her reporting back from her lunch break late we cannot make a finding of ultimate fact that claimant reported back from her lunch break late as often as her supervisor alleges in that on occasion, the claimant’s supervisor reported back to work after claimant.
“It further finds that claimant’s tardiness in the morning was the result of bad weather conditions and traffic jams which was documented by her supervisor who had first hand knowledge of claimant’s attendance.
“It further finds that although claimant alleges that she, on occasion, arrived at work prior to her starting time of 7:30 a.m., she failed to dispute the testimony of her supervisor that she would not make an entry on claimant’s attendance record in the morning when she arrived [1013]*1013at work after claimant thus indicating that the only documented evidence of claimant’s tardiness was when claimant’s supervisor was present on claimant’s arrival and had first hand knowledge.
“The Review Board concludes that the evidence of probative value submitted by employer is lacking in content to support their allegation that claimant was insubordinate thus violating employer work rule No. 12 or that claimant was in violation of employer work rule No. 17 excessively returning tardy from her lunch break.
“It further concludes that evidence of probative value was submitted by employer to support the allegation that claimant was excessively tardy in the morning in which claimant has failed to show good cause for being tardy within the meaning of Chapter 15-1 of the Act, in that claimant’s stated reasons for her tardies in the morning were due to situations (bad weather, traffic jams) that could have been remedied by her starting to work earlier in order to eliminate her tardiness problem, therefore, claimant was discharged for knowingly violating employer work rule No. 17.”

I.

Uniform Enforcement

Trigg contends that the Board’s findings are insufficient to support its conclusion that she was discharged for just cause.

Pursuant to IC 22-4-15-1, a claimant is ineligible for unemployment benefits if he is discharged for just cause. Barnett v. Review Board of the Indiana Employment Security Division (1981), Ind.App., 419 N.E.2d 249, 251. Discharge for just cause includes but is not limited to the following definitions:

“(1) separation initiated by an employer for falsification of an employment application to obtain employment through subterfuge;
“(2) knowing violation of a reasonable and uniformly enforced rule of an employer;
“(8) unsatisfactory attendance, if the individual cannot show good cause for absences or tardiness;
“(4) damaging the employer’s property through wilful negligence;
“(5) refusing to obey instructions;
“(6) reporting to work under the influence of alcohol or drugs or consuming alcohol or drugs on employer’s premises during working hours;
“(7) conduct endangering safety of self or coworkers; or
“(8) incarceration in jail following conviction of a misdemeanor or felony by a court of competent jurisdiction or for any breach of duty in connection with work which is reasonably owned an employer by an employee.”

IC 22 — 4-15-1 (Burns Code Ed.Supp.1982). The Board has wide latitude to determine issues and hear theories not heard by the appeals referee. Ervin v.

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Braun v. Review Board of the Indiana Employment Security Division
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Trigg v. Review Board of the Indiana Employment Security Division
445 N.E.2d 1010 (Indiana Court of Appeals, 1983)

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Bluebook (online)
445 N.E.2d 1010, 9 Educ. L. Rep. 657, 1983 Ind. App. LEXIS 2656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trigg-v-review-board-of-the-indiana-employment-security-division-indctapp-1983.