V.T. v. Review Board of the Indiana Department of Workforce Development (mem. dec.) ( 2019 )

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.
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[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:
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[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
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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.
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[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
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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.
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[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
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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.
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