V.T. v. Review Board of the Indiana Department of Workforce Development (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 10, 2019
• Docket: 19A-EX-1233
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 10 2019, 9:17 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE V.T. Curtis T. Hill, Jr. Gary, Indiana Attorney General of Indiana

Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

V.T., December 10, 2019 Appellant-Claimant, Court of Appeals Case No. 19A-EX-1233 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, Chairperson Appellee-Respondent. The Honorable Lawrence A. Dailey, Member The Honorable Conny Franken, Administrative Law Judge Case No. 19-R-0354

Friedlander, Senior Judge. Court of Appeals of Indiana | Memorandum Decision 19A-EX-1233 | December 10, 2019 Page 1 of 8 [1] V.T., pro se, appeals the decision of the Indiana Department of Workforce

Development Unemployment Insurance Review Board (Review Board)

affirming the finding by the Administrative Law Judge (ALJ) that V.T. was

discharged from her employment for good cause, thereby terminating her

unemployment benefits. Concluding that the ALJ’s findings are supported by

the evidence, we affirm the Review Board’s decision.

[2] The sole issue in this appeal is whether the ALJ’s finding that V.T. was

discharged for good cause is supported by the evidence.

[3] The Indiana Unemployment Compensation Act is codified at Indiana Code

article 22-4 and provides benefits to those who are out of work through no fault

of their own. To be eligible for benefits, an individual must meet the

requirements set forth in Chapter 22-4-14. Unemployment insurance benefits,

however, are not an unqualified right and may be denied to claimants who are

disqualified by any of the various exceptions provided in Chapter 22-4-15.

Specifically, an individual is disqualified if discharged for “just cause.” See Ind.

Code § 22-4-15-1(d) (2017). Just cause includes a knowing violation of a

reasonable and uniformly enforced rule and any breach of duty in connection

with work which is reasonably owed an employer by an employee. See Ind.

Code 22-4-15-1(d)(2), (9).

[4] An ALJ for the Indiana Department of Workforce Development set out the

facts and procedural history relevant to V.T.’s appeal as follows:

Court of Appeals of Indiana | Memorandum Decision 19A-EX-1233 | December 10, 2019 Page 2 of 8 [V.T.] began employment in March 2010 and was discharged for improper conduct in the workplace effective January 24, 2019. [V.T.] worked for [ ] (Employer) as a licensed practical nurse (LPN) who earned $24.66 per hour. The employer is a long term health care facility.

The employer has a handbook. One policy in the handbook reads, “3. Engaging in abusive, discourteous, profane, indecent, or unprofessional language or conduct while on duty or on facility property.” Under Disciplinary Guidelines it reads, in part, “Incidents of unacceptable behavior are handled by the facility on an individual case by case basis. Depending on such factors as the seriousness of the offense, the impact of the offense on residents, fellow employees, and/or the facility, the employee’s prior work and disciplinary record and the presence or absence of mitigating or aggravating circumstances, an employee may be given a verbal warning, a written warning, a final warning, a suspension without pay or may be discharged.”

The employer provided a copy of the handbook to [V.T.]. The policy applies to all employees. The purpose of the policy is to protect the residents from harm. Discipline is contingent upon the severity of the incident and the aforementioned factors.

On January 24, 2019 [V.T.] entered the room of an alert, oriented resident and said mother fu[ ]er. There was another nurse in the room, a certified nursing aide, and an employee from the Department of Health. The employee was a member of the team who conducted an audit of the employer’s facility. Everyone heard [V.T.] including the resident. The nurse reported the incident to Ms. Navarro [the administrator of the facility]. The nurse, certified nursing aide and the employee from the Department of Health were interviewed. All of them said that [V.T.] uttered the term upon entering the room but no one thought that [V.T.] aimed it at the resident. The employer interviewed [V.T.] who said she said the words but it was not Court of Appeals of Indiana | Memorandum Decision 19A-EX-1233 | December 10, 2019 Page 3 of 8 intended for the resident. Ms. Navarro suspended [V.T.] from employment.

The employer concluded that [V.T.] violated policy and discharged her effective January 24, 2019.

Appellant’s App. Vol. 2, pp. 3-4.

[5] Thereafter, V.T. filed a claim for unemployment benefits, which was initially

granted by a claims investigator. V.T.’s employer appealed that decision, and

the ALJ conducted a telephonic hearing in which the employer and its

witnesses participated. V.T. did not appear for the hearing. Following the

hearing, the ALJ concluded as follows:

[V.T.] had a duty to be professional at work. The duty is reasonably connected to the work and reasonably owed to the employer. [V.T.]’s conduct was a reflection upon the employer. On January 24, 2019 [V.T.] uttered a severe profanity while entering a resident’s room. A coworker, subordinate, a visitor and the resident heard [V.T.]. [V.T.]’s utterance would impact the employer’s reputation as well as impact [V.T.]’s relationships with the individuals in the room. This single incident demonstrated a substantial disregard for the employer’s and resident’s interests. [V.T.] breached the duty. [V.T.] was discharged for just cause. [V.T.] is ineligible for benefits under the Act.

Id. at 5. Accordingly, the ALJ reversed the determination of the claims

investigator. V.T. appealed that decision to the Review Board, which adopted

the ALJ’s findings and conclusions and affirmed the ALJ’s decision without a

hearing. This appeal ensued.

Court of Appeals of Indiana | Memorandum Decision 19A-EX-1233 | December 10, 2019 Page 4 of 8 [6] We first note that V.T. is proceeding pro se. It is well settled that pro se

litigants are held to the same legal standards as licensed attorneys. Lowrance v.

State, 64 N.E.3d 935 (Ind. Ct. App. 2016), trans. denied. This means that they

must follow the established rules of procedure and accept the consequences

when they fail to do so. Id.

[7] Next, we turn to the standard of review. Decisions of the Review Board are

conclusive and binding as to all questions of fact. Ind. Code § 22-4-17-12(a)

(1995). The Board’s conclusions of law may be challenged as to “the

sufficiency of the facts found to sustain the decision and the sufficiency of the

evidence to sustain the findings of facts.” Ind. Code § 22-4-17-12(f). Under this

standard, (1) the Review Board’s findings of basic fact are reviewed for

substantial evidence, (2) findings of mixed questions of law and fact (i.e.,

ultimate facts) are reviewed for reasonableness, and (3) legal propositions are

reviewed for correctness. K.S. v. Review Bd. of Ind. Dep’t of Workforce Dev., 33

N.E.3d 1195 (Ind. Ct. App. 2015). This Court neither reweighs the evidence

nor assesses witness credibility, and it considers only the evidence most

favorable to the Review Board’s findings. Id. Further, this Court will reverse

the Review Board’s decision only if there is no substantial evidence to support

the Board’s findings. J.M. v. Review Bd. of Ind. Dep’t of Workforce Dev., 975

N.E.2d 1283 (Ind. 2012).

[8] Although, as set forth above, V.T. was discharged by her employer under policy

number 3 in the employee handbook, the ALJ found the policy to be a

“guideline” rather than a rule under which an employee could be discharged for

Court of Appeals of Indiana | Memorandum Decision 19A-EX-1233 | December 10, 2019 Page 5 of 8 just cause pursuant to Indiana Code section 22-4-15-1(d)(2). Appellant’s App.

Vol. 2, p. 4. The ALJ instead based her determination on a breach of duty by

V.T. pursuant to Section 22-4-15-1(d)(9). Specifically, the ALJ determined that

V.T. was discharged for just cause based upon her breach of her duty to be

professional at work.

[9] The only discernible argument in V.T.’s brief is that the decision of the ALJ was

not based on the evidence presented by V.T.’s employer. See Appellant’s Br. p.

9. In support of this argument, she claims that her employer presented “flimsy

evidence and inconsistencies.” Id. at 10.

[10] V.T. failed to appear for the telephonic hearing. At the hearing, V.T.’s

employer presented the testimony of the facility’s director of nursing and its

administrator. Evidence was presented as to V.T.’s use of profanity on January

24, 2019 in the presence of a resident, a staff nurse, a certified nursing assistant,

and a representative from the Indiana State Department of Health. When

confronted, V.T. confirmed that she had used profanity and that she knew it

was improper. In accordance with the employer’s policy, the director of

nursing obtained a statement from V.T., and, upon receiving the statement, the

director informed V.T. that she was suspended pending investigation. In

addition, the evidence showed that employees receive an employee handbook

when they are hired and sign a form acknowledging receipt thereof. V.T.’s

employer had an acknowledgment form signed by V.T.

Court of Appeals of Indiana | Memorandum Decision 19A-EX-1233 | December 10, 2019 Page 6 of 8 [11] Approximately one and one-half to two weeks after the incident, V.T. called the

director of nursing, at which time the director informed V.T. that the

investigation was complete and that the employer was discharging her for

violating policy by using profanity in the presence of a resident. V.T.’s

employer chose to discharge her rather than issue a warning because the

incident involved a resident and because V.T. had had other disciplinary

actions in the past; however, V.T. could have been discharged solely for this

incident. The evidence further showed that the facility was issued a citation for

this incident.

[12] In Yoldash v. Review Board, an employee was discharged for insubordination

when he became enraged and called his manager and another employee names

in response to being punished for a rule violation. 438 N.E.2d 310 (Ind. Ct.

App. 1982). The Court held that the employer discharged the employee for just

cause and stated that, while the words of the employee were not necessarily

obscene or profane, they could be considered offensive and abusive and in

violation of the standards of behavior the employer had a right to expect of its

employees. Yoldash set forth several factors to be considered in determining

whether the use of offensive language is sufficient to constitute just cause,

including the quantity (i.e., number of incidents, lengthy barrage, or single, brief

incident) of vulgar or profane language, degree of severity of words used, use of

the language in the presence of other employees, and whether the language was

directed to a supervisor or to other persons. Id. The Court cautioned that none

of these considerations is conclusive or determinative and that the

Court of Appeals of Indiana | Memorandum Decision 19A-EX-1233 | December 10, 2019 Page 7 of 8 determination is fact-sensitive and thus must be made on a case-by-case basis.

Id.

[13] Here, V.T., who had prior disciplinary actions, entered a resident’s room and

uttered the words “this mother-f**ker.” Tr. Vol. 2, p. 9. V.T.’s profanity was

heard by the resident, two co-workers, and a representative from the

Department of Health. Although apparently not directed at anyone in the

room, the language V.T. used is obscene, profane, and extremely offensive.

V.T. had received a copy of the employee handbook, which sets forth the

employer’s expectation that its employees will conform their conduct to the

highest standards of professionalism as well as the employer’s policy against

such unacceptable behavior as engaging in abusive, discourteous, profane,

indecent, or unprofessional language or conduct. V.T.’s use of profanity in this

instance is sufficient to constitute just cause.

[14] The ALJ's findings of fact and conclusions of law, which the Review Board

adopted, are supported by substantial evidence of probative value in the record.

[15] Judgment affirmed.

Bailey, J., and May, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-EX-1233 | December 10, 2019 Page 8 of 8