Curtis Cole v. Review Board of the Indiana Dept. of Workforce Development, and Owen County ( 2012 )

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
FILED
Feb 20 2012, 8:36 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
MARC O. ABPLANALP RICHARD W. LORENZ
Student Legal Services Hickam & Lorenz, PC
Bloomington, Indiana Spencer, Indiana
ATTORNEYS FOR APPELLEE
REVIEW BOARD:
GREGORY F. ZOELLER
Attorney General of Indiana
STEPHANIE ROTHENBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CURTIS COLE, )
)
Appellant, )
)
vs. ) No. 93A02-1106-EX-510
)
REVIEW BOARD OF THE )
INDIANA DEPARTMENT OF )
WORKFORCE DEVELOPMENT, )
)
and )
)
OWEN COUNTY, )
)
Appellees. )
)
APPEAL FROM THE REVIEW BOARD OF THE INDIANA
DEPARTMENT OF WORKFORCE DEVELOPMENT
Cause No. 11-R-01759
February 20, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
Curtis Cole appeals the decision of the Unemployment Insurance Review Board of
the Indiana Department of Workforce Development (“Review Board”) denying him
unemployment benefits. Finding that the Review Board properly determined that Cole
was discharged for just cause, we affirm.
Facts and Procedural History
Cole was employed by the Owen County Sheriff’s Department (“Department”) as
a jail officer from January 2009 until December 2010. Officer John Lowder was Cole’s
immediate supervisor. The Department’s time-keeping policy was circulated to all
employees and they were all given “their own disk” containing the policy. Tr. p. 15. The
policy states that “[a]ccurately recording time worked is the responsibility of every non-
exempt employee” and that “falsifying . . . time records . . . may result in disciplinary
action, up to and including termination of employment.” Ex. p. 81. However, employees
regularly would show up fifteen minutes early for their shifts and not record that as time
worked, and also would leave the facility with the knowledge of supervisors to get food
or run other errands for short periods of time without indicating so on their time sheets.
Id. at 166. Both practices were well known of and implicitly approved of by the
employer. Id.
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In October 2010, Cole attended jailer school in Plainfield along with one other jail
officer from the Department. While he was at the school, the Owen County Auditor
contacted Cole and told him that on days when he was serving in the Indiana National
Guard, he would not receive any pay from Owen County because he made more from the
National Guard than he did from the Department. Cole was unhappy about this and
called Officer Lowder, telling him “he was gonna to [sic] make sure he put down any
time hours he could on his time sheet to make sure he would, we would, pick up the
difference.” Appellee’s App. p. 2. This alerted Officer Lowder that he needed to pay
attention to Cole’s timesheets. Tr. p. 18.
In November 2010, Officer Lowder noticed that Cole recorded his work as ten
hours per day when he was at jailer school when everyone else who had ever attended
jailer school only reported eight hours per day. Appellee’s App. p. 2. Officer Lowder
informed Cole that if any future time-keeping records were falsified, Cole would be
terminated. Id. at 4.
In December 2010, Officer Lowder noticed another irregularity on Cole’s
timesheet from November 2, 2010. He watched the video from that day and found that
Cole recorded that he had worked forty-four minutes longer than he actually worked on
that date. Consistent with his previous warning, Cole was given notice and terminated
from the Department.
Cole filed for unemployment compensation against Owen County and was
determined to be ineligible because he was terminated for just cause. Cole appealed.
The Administrative Law Judge (ALJ) conducted a hearing and determined that Cole had
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been terminated for just cause for violating his employer’s policy against falsifying time
sheets. Ex. p. 167. The finding was upheld by the Review Board, which adopted the
findings and conclusions of the ALJ.
Cole now appeals.
Discussion and Decision
The Indiana Unemployment Compensation Act (“the 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 contrary
to law, the reviewing court 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 fact. Ind. Code § 22-4-17-12(f). Under this standard, courts are called upon
to review: (1) determination of specific or basic underlying facts; (2) conclusions or
inferences from those facts, or determinations of ultimate facts; and (3) conclusions of
law. Chrysler Group, LLC v. Review Bd. of Ind. Dep’t of Workforce Dev., 960 N.E.2d
118 (Ind. 2012). The Review Board’s findings of basic fact are subject to a “substantial
evidence” standard of review. Id. In this analysis, the appellate court neither reweighs
the evidence nor assesses the credibility of witnesses and considers only the evidence
most favorable to the Review Board’s findings. Id. The Review Board’s conclusions as
to ultimate facts involve an inference or deduction based on the findings of basic fact. Id.Accordingly, they are typically reviewed to ensure that the Review Board’s inference is
“reasonable” or “reasonable in light of [the Review Board’s] findings.” Id. at 1318.
Legal propositions are reviewed for their correctness. Id.4
The Act was enacted to “provide for payment of benefits to persons unemployed
through no fault of their own.” Ind. Code § 22-4-1-1; P.K.E. v. Review Bd. of Ind. Dep’t
of Workforce Dev., 942 N.E.2d 125, 130 (Ind. Ct. App. 2011), trans. denied. An
individual is disqualified for unemployment benefits if he or she is discharged for “just
cause.” Ind. Code § 22-4-15-1; P.K.E., 942 N.E.2d at 130. As set forth in Indiana Code
section 22-4-15-1,
(d) “Discharge for just cause” as used in this section is defined to include but not
be limited to:
* * * * *
(2) knowing violation of a reasonable and uniformly enforced rule of an
employer. . . .
When an employee is alleged to have been discharged for just cause, the employer
bears the burden of proof to make a prima facie showing of just cause. P.K.E., 942
N.E.2d at 130. Once the employer meets its burden, the burden shifts to the employee to
rebut the employer’s evidence. Id.Here, the ALJ found that Cole was terminated for violating Owen County
Personnel Policy 913 that prohibits the falsification of time sheets. The Review Board
adopted the ALJ’s findings and conclusions. Cole contends that the Review Board erred
in determining that he was terminated for just cause because he did not knowingly violate
one of his employer’s rules, and the rule that he is alleged to have violated is not
uniformly enforced. We disagree.
At the hearing before the ALJ, Officer Lowder, the jail commander for the
Department, testified that the time-keeping policy was circulated to all employees and
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they were all given “their own disk” containing the policy. Tr. p. 15. A memo
articulating the policy admitted at the hearing states that “[a]ccurately recording time
worked is the responsibility of every non-exempt employee,” and that “falsifying . . . time
records . . . may result in disciplinary action, up to and including termination of
employment.” Ex. p. 81. It was concluded that Cole was aware of the policies that were
in place regarding time-keeping. Id. at 165.
Cole, however, contends that he did not knowingly violate the time-keeping
policy. Rather, he argues that he had a known routine of filling out his time card at the
end of the week or the pay period and that he must have just made a simple mistake. Tr.
p. 60, 63. However, in October 2010, Cole had been informed by the County Auditor
that he would not be receiving additional compensation from the County on days when he
was in the Indiana National Guard because he made more with that agency than at his job
with the Department. Cole’s reaction was to tell Officer Lowder that “he was gonna to
[sic] make sure he put down any time hours he could on his time sheet to make sure he
would, we would, pick up the difference.” Appellee’s App. p. 2. Cole then recorded his
work as ten hours per day when he was at jailer school when everyone else who had ever
attended jailer school reported only eight hours per day. Id. Officer Lowder informed
Cole that if any future time-keeping records were falsified, Cole would be terminated. Id.
at 4.
Just one month later, Officer Lowder noticed that there were irregularities with
Cole’s time sheet again. After watching the video from the day in question, Officer
Lowder realized that Cole had actually worked forty-four minutes less than he had
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recorded working. After observing the witnesses testifying to these facts and in light of
the timing of this alleged mistake, the ALJ made a reasonable inference that Cole
knowingly violated his employer’s time-keeping policy. The Review Board did not err in
adopting this finding.
Finally, Cole contends that the time-keeping policy was not uniformly enforced.
In General Motors Corporation v. Review Board of Indiana Department of Workforce
Development, we held that enforcement is uniform when it “is carried out in such a way
that all persons under the same conditions and in the same circumstances are treated
alike.” 671 N.E.2d 493, 498 (Ind. Ct. App. 1996). In this case, “[t]he evidence does not
establish the employer had knowledge of anyone else reporting hours worked which were
before they started work or after they left for the day, so the rule was uniformly
enforced.” Ex. p. 167. Therefore, there were no other employees were under the same
circumstances as Cole and not terminated, so there is no evidence that the rule was not
uniformly enforced.
Cole, however, argues that this cannot be true because other individuals falsified
their time and were not terminated from their positions. Appellant’s Br. p. 14-15. But, at
the hearing it was found that
even though the claimant and other employees worked the extra fifteen
minutes [before their shifts began], it was not accurately reported on their
time cards. The employer was aware that employees were working an
extra fifteen minutes and not reporting it, but the employer was not aware
of anyone who was reporting hours as worked that they were not working.
Employees frequently left the facility with the knowledge of supervisors to
get food or run other errands for short periods of time and they were never
disciplined for that.
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Ex. p. 166 (emphasis added). The employer, therefore, was not aware of and had not
implicitly approved of Cole’s behavior of showing up late and leaving early, as he had
done for employees showing up early for shifts and leaving the facility with knowledge
of supervisors to get food or run other errands.
Since the employer was aware of these practices and therefore implicitly approved
of them, it was found that “while [it] is not ethical or perhaps even legal, if the employer
believed it was proper and had directed employees to report time in that manner it would
not be a falsification . . . .” Id. at 167. Considering the evidence most favorable to the
Review Board’s decision and the reasonable inferences drawn from that evidence, we
cannot say that it was error to find that this rule was uniformly enforced. The Review
Board properly found that Cole falsified his time sheet and was therefore discharged for
just cause.
Affirmed.
ROBB, C.J., and NAJAM, J., concur.
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