James E. Reed v. Review Board of the Indiana Department of Workforce Development, and A.W. Holdings, LLC , 2015 Ind. App. LEXIS 417 ( 2015 )

May 26 2015, 9:13 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR REVIEW BOARD
Norman L. Roelke OF THE INDIANA DEPARTMENT OF
Fort Wayne, Indiana WORKFORCE DEVELOPMENT
Gregory F. Zoeller
Attorney General of Indiana
Graham T. Youngs
Deputy Attorney General
Indianapolis, Indiana
ATTORNEYS FOR A.W. HOLDINGS,
LLC
Adrienne C. Romary
Carson Boxberger LLP
Fort Wayne, Indiana
Ragna M. Urberg
A.W. Holdings, LLC
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James E. Reed, May 26, 2015
Appellant, Court of Appeals Case No. 93A02-
1410-EX-745
v. Appeal from the Review Board of the
Indiana Department of Workforce
Development
Review Board of the Indiana
The Honorable Steven F. Bier,
Department of Workforce Chairperson
Development, and A.W.
Case No. 14-R-01807
Holdings, LLC,
Appellees.
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Brown, Judge.
[1] James E. Reed (“Employee”) appeals a decision by the Review Board of the
Indiana Department of Workforce Development (the “Board”) denying his
claim for unemployment benefits. Employee raises two issues, which we revise
and restate as whether the record supports the Board’s decision. We reverse.
Facts and Procedural History
[2] Employee was employed by A.W. Holdings, LLC, (“Employer”) as a direct
support professional and provided support and assistance to individuals with
developmental disabilities. Employer provided day habilitation services for
disabled individuals or clients.
[3] On May 7, 2014, Employee was driving three of Employer’s clients back to
Employer’s location after visiting a park and the library when one of the clients
in the vehicle (“Client D,” as he is referred to in the record), began to yell and
then to beat his chest with his fists. Employee pulled the vehicle to the side of
the road near a busy intersection, had the two clients who had not become
upset exit the vehicle, and required Client D to remain inside the vehicle.
Employee attempted to call two supervisors, was unable to reach them, and
then called a co-worker who was able to contact Employee’s supervisor.
Employee’s supervisor then called Employee, asked if the clients were out of
the car safely, and stated that she would send help. Antonia Gatewood, a
residential manager for Employer, was sent to assist Employee. When
Gatewood arrived at the scene, she observed that Client D was inside the
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vehicle and that Client D was yelling. Gatewood had Employee unlock the
door, Client D exited the vehicle and was upset with Employee, and Gatewood
walked Client D to her vehicle. Employee’s last day of work was May 7, 2014,
and his employment was terminated effective May 12, 2014.
[4] Employee filed a claim for unemployment benefits, and a deputy for the
Department of Workforce Development issued a determination that Employee
was not discharged for just cause. Employer appealed the deputy’s
determination, and a telephonic hearing was held before an administrative law
judge (the “ALJ”) on August 21, 2014, at which testimony was heard from
Employee, Joy Dennison, a human resources recruiter for Employer, and Bree
Cannon, an assistant director for a day care center for Employer. Employer
submitted documentary evidence which included professional conduct rules, an
incident report prepared by Gatewood on May 8, 2014, certificates given to
Employee in September 2014 and December 2014 for completing certain
student training, the job description for the position of a direct support
professional, a printout of a webpage showing the temperature inside a car over
time when the outside temperature is ninety degrees, and an employee
disciplinary report signed by Cannon as Employee’s supervisor on May 12,
2014. The document with the subject line “Professional Conduct,” stated under
Paragraph A: “Employees of [Employer] will in no way exploit, neglect or
inflict physical or psychological harm on a client.” Exhibits at 18. Employer
submitted an acknowledgement of Employee that he received a copy of the
professional conduct policy in July 2011. The written job description for the
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position of direct support professional included a paragraph of general
responsibilities, twenty-five numbered specific responsibilities, and two
additional requirements for professionals working with individuals who have a
behavior support plan (a “BSP”), namely, to “[c]omply with behavior support
policies and procedures, and implement approved BSP” and to “[p]rovide
positive behavior supports according to individual BSP’s [sic] and respond to
emergency situations as trained.” Id. at 27. The disciplinary report signed by
Cannon included a box for “Termination,” which had been marked, following
the word “Action.” Id. at 37. Following the phrase “Nature of Incident” on
the report, a box for “Violation of Company Rules” was marked. Id. In a space
for “Details of Incident/Performance Issue,” the disciplinary report stated:
On 5/7/2014 it was reported that [Employee] had failed to provide
appropriate support for a consumer he was serving in the community.
Upon further investigation [Employee] disclosed that he had tried to
keep his consumer safe by containing him in his vehicle. [Employee]
neglected to follow this consumer’s [BSP] or to implement MANDT
de-escalation techniques, as trained, in response to his client who was
exhibiting maladaptive behaviors. This action violates [Employer’s]
Professional Conduct Policy which states in letter A, “Employees of
[Employer] will in no way exploit, neglect or inflict physical or
psychological harm on a client.” This is also a violation of
[Employer’s] Direct Support Professional Job Description that states
that DSP’s must, “Comply with behavior support policies and
procedures, and implement approved BSP” and “Provide positive
behavior supports according to individual BSP’s [sic] and respond to
emergency situations as trained.”
In addition to this incident, [Employee] received one other disciplinary
report on 11/20/2013 for failing to provide documentation as
assigned.
As a result of his neglectful actions, [Employee] is being terminated
effective immediately.
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Id. Employee submitted exhibits which included a daily activity log,
Employee’s written statement, and a drawing showing the location of his
parked car relative to the surrounding streets and the clients at the time of the
incident.
[5] Cannon testified that Gatewood witnessed the event on May 7, 2014, that
Gatewood was not available to testify, and that Gatewood’s written statement
of May 8, 2014, had been submitted. In her written statement, Gatewood said
that she received a call to help with Client D, who was “having a behavior,”
and “the staff needed assistance.” Id. at 20. She stated that, after she arrived,
she “hear[d] a horn being blown and saw someone outside the car” and “when
[she] got out [she] went up to the car to see [Client D] inside the car with the
windows up and his jacket on and yelling.” Id. She stated that Employee “had
his car keys in the passenger door lock to keep [Client D] from getting out,” that
she “told [Employee] to let him out and unlock the door,” that “[a]s
[Employee] started to unlock the door, [t]he other client that was outside tried
to get into [Gatewood’s] car on the street side,” and that she “ran out to get him
and guided him back to the sidewalk.” Id. She further stated that, after helping
the client, she “went back to [Employee] to notice he still did not unlock the
door or let [Client D] out of the hot car” and that she told Employee “to unlock
the car now.” Id. Gatewood stated that, as Employee did so, she told Client D
that he was going home with her. She also stated that, “[a]s [Client D] was
getting out of the car he was very upset at” Employee and “was yelling and
cursing at him,” she “walked [Client D] over to [her] car,” Employee had the
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other clients enter his vehicle, Client D “did not get into [Gatewood’s] car until
[Employee] was gone,” and that once Employee was gone, she and Client D
left for the group home. Id. at 21.
[6] Cannon testified that she spoke to Employee on May 8, 2014, and that he had
responded affirmatively when asked if he had locked a client in a car and if the
car was hot. She testified that Employee indicated that he thought he was
keeping the client safe. She testified that Employee said Client D “was upset so
he had redirected the other client[s] out of the car and contained [Client D] in
the car.” Transcript at 11. She further testified that Employee stated that Client
D “was upset because he thought another client that was with them had taken
his library bag.” Id. When asked if her policies in any way allow for physical
restraint or confinement of clients, Cannon testified: “Physical restraint, yes.
Confinement of clients, no.” Id. Cannon testified that she was not aware of
other employees who engaged in conduct similar to Employee’s conduct and
that, if she were aware of such conduct, that employee’s employment would
also be terminated.
[7] When asked what Employee “was supposed to do,” Cannon testified that “[h]e
should’ve followed Mandt, which he should have used, he should have taken
[Client D] out of the car and he should have used a Mandt hold.” Id. at 12.
She testified a “Mandt hold, maybe you would refer to that as restraint” and
that “[y]ou would never . . . seclude someone in a hot car.” Id. She indicated
that, even if it had not been hot, it would not have been appropriate to lock
Client D in a car because “we do not seclude people.” Id. at 13. When asked
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what might have happened if he locked an angry client in a car, Cannon said
“he could’ve died” and “[i]t was very hot that day.” Id.
[8] Dennison testified that the certificates submitted by Employer show that
Employee received “basic Mandt training” and “intermediate Mandt that is a
little bit more” and “[i]t teaches more on the holds that [] Cannon was talking
about.” Id. at 14.
[9] Employee testified that on May 7, 2014, he was engaging with Client D. When
asked if he locked Client D in a car, Employee indicated that “[t]he keys were
in the car on the passenger side in the front door,” that he did not lock Client D
in the car, and that the client “had been pushing the door open and I was letting
him open it in order to get him fresh air.” Id. at 18-19. He testified that Client
D “would be pushing the car door out towards me and he was able to, in order
to prevent him from getting hurt, I, he opened the door so far, he got fresh air
and that, and we did that for off and on for twenty minutes.” Id. at 19. When
asked, “[s]o other than allowing him fresh air, was he confined to the car,”
Employee responded affirmatively. Id. When asked the temperature,
Employee said “roughly around eighty-four to eighty-six degrees that day”
outside the car. Id. When asked “was it hotter than eighty-four degrees inside
the car,” Employee replied “I would say much hotter due to his activities within
the car.” Id.
[10] Employee testified that he had “two other consumers on the outside of the car,”
that “[o]ne consumer if not closely supervised would have been running up and
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down and possibly may have gotten hit by a car,” that Client D “was what we
would . . . call a runner,” and that “[w]hen he got out of the car he would’ve
been into the traffic and somebody could’ve died that day.” Id. Employee
testified that the behavior started at 2:24 p.m., that he pulled off the road at 2:25
p.m., that he notified his supervisor at 2:25 p.m., that he called a second
supervisor at 2:26 p.m., and that neither responded. Employee testified that the
behavior started with Client D “just yelling” and that, within two minutes, the
client “started to beat his chest, doing with both fists, stating that he would
fight,” that “in past experiences, when he gets to this stage, he will start to hit
people,” and that Employee pulled the car over to avoid “being in an accident
in case [he] got hit” and “got to [sic] individuals out of the car safely.” Id. at 20.
When asked if the other two clients in the car were flight risks, Employee said
that one of them had “a track record and history of it.” Id. When asked about
Client D’s height and weight, Employee stated Client D was “[a]bout five five,
five six” and weighed “[b]etween a hundred and seventy-five to maybe a
hundred and eighty-five.” Id. Employee testified that, at 2:35 p.m., he called a
co-worker, who contacted Employee’s supervisor. He testified that his
supervisor called him back at 2:38 p.m., his supervisor asked “did you get the
other two out safely,” he said “yes,” and that the supervisor said “I’ll send
help.” Id. He further testified that assistance arrived at 3:00 p.m., and that the
car was stopped three houses from “one of the heaviest traveled intersections in
Fort Wayne.” Id. at 21.
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[11] When asked if he considered calling the police, Employee said “no” and that he
had “to go through a supervisor” to do so. Id. He stated that Client D had a
history of fighting and running, and that, in 2012, there was a “violent episode
at the workshop” and “while [h]e was trying to protect a staff member,” Client
D “punched [him] in the face and then bit [him] in the back.” Id. at 22.
Employee also testified that he gave Client D water while he was in the car.
When asked if he knowingly failed to follow Client D’s BSP, Employee replied
“[n]o, I did not fail to follow it.” Id. at 26. When asked if he knew that
physically restraining Client D was an option, Employee replied “I am five foot
four, sixty-two years old” and “I could not physically do it.” Id. Employee
testified “[a] supervisor must give permission and a Mandt hold cannot be used
longer than three minutes, which would’ve then endangered the other two
clients.” Id.
[12] Employee indicated that he was unable physically to restrain Client D and that,
the last time he was involved in a physical restraint of the individual, “it took
two people to physically restrain him with . . . supervisor permission . . . and it
was all both of us could do is to hold him.” Id. When asked why he did not
permit Client D out of the vehicle and keep the other two clients in the car with
the windows down or air conditioner on, Employee testified “[f]irst hand
knowledge of his running” and that he “would never [have] been able to keep
up with them as I cannot run any longer.” Id. at 27. When asked “[d]oes the
intermediate Mandt teach holds and blocking to keep a consumer from running
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away,” Employee replied that “Mandt[] is taught in order to use only if the
individual is endangering to hurt someone else or himself.” Id.
[13] Cannon testified that Client D and one of the other clients were flight risks and
that Client D has a history of physical aggression. She stated that Employee
did not require permission to call the police and that she would have allowed
him to call the police. She also testified that Employee did not need
authorization from a supervisor to perform Mandt. When asked, if Client D
“had gotten away” from Employee and ran, “could [Employee] have chased
him down,” Cannon replied “I have no idea.” Id. at 31-32.
[14] Employee then testified that he was not aware of any direct support person ever
being allowed to call the police in the community. When asked whether
Employer had given him any written documentation of directives that
prohibited him from calling the police, Employee answered that “[t]here is no
documentation on . . . using the police either way.” Id. at 33. Employee
testified: “I chose to keep, to do the best I could under the circumstances
because I did not want to live the rest of my life knowing that I caused
someone’s death because they were in a behavior and got hit by a car.” Id. at
34.
[15] In a closing statement, Dennison said that Employee could have at any time
called 911, that Employer has “several individuals that have behaviors,” and
“that is why we use the Mandt system” and “have the behavior support plan.”
Id. She said that Employee “chose to not use either one” and to lock a
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consumer in a hot car, that she understood that Employee “thought it was safer
to not let the client get hit, but you also don’t lock them in a car at ninety degree
temp with the possibility of a heat stroke,” and that if Employee “would’ve just
followed the plan, did what he was taught, or called 911, then this situation
would’ve been different.” Id. at 34-35. In his closing statement, Employee
stated that he “did the best [he] could under the circumstances of keeping
people safe with no help until thirty-five minutes after this incident started” and
that he “did not want . . . to have on [his] conscious [sic] that one or two people
were seriously injured or might’ve been killed by an oncoming car.” Id. at 35.
[16] The ALJ entered a decision on August 21, 2014, reversing the deputy’s
determination and finding that Employer discharged Employee from
employment for just cause in connection with work and that Employee is
ineligible to receive unemployment benefits. In its decision, the ALJ found in
part:
[Employer] employed [Employee] as a direct care professional.
[Employer’s] written rule prohibits client neglect. [Employee] received
the rule on July 05, 2011.
On May 07, 2014, [Employee] drove three clients in an automobile to
complete errands. [Client D] became upset, complaining that another
client took his library book bag. [Client D] was an escape risk. [Client
D] had a history of aggressive behavior, and in fact in the past had
punched and bit [Employee]. [Client D] began beating his own chest,
an indication that [he] was about to become physically violent.
Had [Client D] become physically violent, [Employee] would have
been unable to restrain him. Likewise, had [Client D] attempted to
flee, [Employee] would have been unable to restrain him. The
incident took place at the intersection of two busy city streets. One of
the remaining clients was also an escape risk. In order to prevent
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[Client D] from attacking others, and to prevent the two clients who
posed an escape risk from running into traffic of a busy intersection,
[Employee] removed the other clients from the automobile, and
confined [Client D] in the automobile.
The temperature outside the automobile was 84 degrees Fahrenheit.
The temperature inside of the automobile exceeded 90 degrees
Fahrenheit.
[Employee] did not call the police to assist with [Client D].
[Employee] testified that [Employer’s] policy prohibited him from
calling the police without the approval of a supervisor. [Employer]
never provided [Employee] with a written policy that prohibited him
from calling the police without the approval of a supervisor.
[Employer’s] witness denied that [Employer’s] policy prohibited
[Employee] from calling the police without the approval of a
supervisor. [Employer’s] policy did not prohibit [Employee] from
calling the police without the approval of a supervisor.
The purpose of the rule is to prevent neglect of the [Employer’s]
disabled clients.
[Employer] would discharge all employees who violate the rule.
*****
[Employee] received the rule on July 05, 2011. [Employee’s]
subsequent violation would be a knowing violation of the rule.
*****
[Employee] is ineligible to receive unemployment insurance benefits.
Exhibits at 42-44. Employee appealed from the decision of the ALJ, and the
Board issued a decision which adopted and incorporated by reference the
decision of the ALJ and affirmed the ALJ’s determination. Employee appeals
the decision of the Board.
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Discussion
[17] The issue is whether the record supports the Board’s decision that Employee
was discharged for just cause. The standard of review on appeal of a decision
of the Board is threefold: (1) findings of basic fact are reviewed for substantial
evidence; (2) findings of mixed questions of law and fact—ultimate facts—are
reviewed for reasonableness; and (3) legal propositions are reviewed for
correctness. Recker v. Review Bd. of Ind. Dep’t of Workforce Dev., 958 N.E.2d 1136,
1139 (Ind. 2011) (citing McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693
N.E.2d 1314, 1318 (Ind. 1998), reh’g denied). Ultimate facts are facts that
involve an inference or deduction based on the findings of basic fact. Id. (citing
McClain, 693 N.E.2d at 1317). Where such facts are within the special
competence of the Board, this court will give greater deference to the Board’s
conclusions, broadening the scope of what can be considered reasonable. Id.
(citing McClain, 693 N.E.2d at 1318).
[18] In Indiana, an employee is ineligible for unemployment benefits if he or she is
discharged for just cause. Stanrail Corp. v. Review Bd. of Dep’t of Workforce Dev.,
735 N.E.2d 1197, 1202 (Ind. Ct. App. 2000), trans. denied; Ind. Code § 22-4-15-
1.1 Ind. Code § 22-4-15-1(d) provides that “[d]ischarge for just cause” is defined
1
At the time of Employee’s discharge, Ind. Code § 22-4-15-1(a) provided in part:
[A]n individual who has voluntarily left the individual’s most recent employment without
good cause in connection with the work or who was discharged from the individual’s most
recent employment for just cause is ineligible for waiting period or benefit rights for the week
in which the disqualifying separation occurred and until the individual has earned
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to include a “knowing violation of a reasonable and uniformly enforced rule of
an employer . . . .”
[19] Employee contends that he did not neglect Client D and was not discharged for
just cause. He points to evidence that he attempted to contact his supervisor
immediately, that when his supervisor called him back the question to him was
whether he had gotten the other two clients out safely, he was told the
supervisor was sending help, no directions were given to him to remove Client
D from the car or to call the police, the supervisor did not call the police, and
that another staff person arrived twenty-two minutes later. He argues the car
door was not locked, Client D was constantly pushing the door open, two doors
could always be opened from inside the car whether a key was in the door or
not, Client D was provided fresh air and water, Employee continued to
supervise Client D for his own safety until the help arrived that his immediate
supervisor said was coming, and this constituted restraint until assistance
arrived. Employee further asserts that the ALJ interjected calling the police
into the record and that this was not a reason for which his employment was
terminated. He also argues that Employee’s supervisor knew that two clients
were removed from the car and that Client D was still restrained in the car, that
the supervisor did not direct Employee to remove Client D from the car, to
remuneration in employment equal to or exceeding the weekly benefit amount of the
individual’s claim in each of eight (8) weeks.
Ind. Code § 22-4-15-1 (subsequently amended by Pub. L. No. 121-2014, § 12 (eff. Jul. 1, 2014)) (emphasis
added).
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attempt Mandt techniques on Client D, or to call the police, and that thus the
supervisor was negligent of Employer’s rule and the rule was not uniformly
enforced.
[20] The Board and Employer maintain that, besides calling the police, Employee
could have placed Client D in a Mandt hold. The Board also contends that the
rule prohibiting neglect was uniformly enforced and that a classification that
places direct care professionals and their supervisors in the same class would
unreasonably collapse the meaningful distinction between direct care
professionals and their supervisors.
[21] Employer asserted that it fired Employee for a knowing violation of a
reasonable and uniformly enforced work rule; therefore, we limit our analysis to
that issue and do not consider other grounds for Employee’s discharge. See
Coleman v. Review Bd. of Ind. Dep’t of Workforce Dev., 905 N.E.2d 1015, 1019 (Ind.
Ct. App. 2009). The employer bears the initial burden of establishing that an
employee was terminated for just cause.2 Id. at 1019-1020. To establish a prima
facie case for just cause discharge for violation of an employer rule, the
employer has to show that the claimant: (1) knowingly violated; (2) a
reasonable; and (3) uniformly enforced rule. Id. at 1020 (citing Stanrail, 735
N.E.2d at 1203). To have knowingly violated an employer’s rules, the
2
Ind. Code § 22-4-1-2(c), which became effective on July 1, 2014, provides 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.” This provision was not in effect at the time of Employer’s termination of Employee’s employment.
Pub. L. No. 121-2014, § 5 (eff. Jul. 1, 2014) (enacting Ind. Code § 22-4-1-2).
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employee must: (1) know of the rule; and (2) know his conduct violated the
rule. Stanrail, 735 N.E.2d at 1203. If an employer meets this burden, the
claimant must present evidence to rebut the employer’s prima facie showing.
Coleman, 905 N.E.2d at 1020; Stanrail, 735 N.E.2d at 1203. The reason for
requiring uniform enforcement of a known and reasonable rule is to give notice
to employees about what punishment they can reasonably anticipate if they
violate the rule and to protect employees against arbitrary enforcement.
Coleman, 905 N.E.2d at 1020.
[22] A uniformly enforced rule is one that is carried out in such a way that all
persons under the same conditions and in the same circumstances are treated
alike. Gen. Motors Corp. v. Review Bd. of Ind. Dep’t of Workforce Dev., 671 N.E.2d
493, 498 (Ind. Ct. App. 1996). In order to evaluate uniformity one must first
define the class of persons against whom uniformity is measured. Stanrail, 735
N.E.2d at 1203. Also, an employer’s asserted work rule must be reduced to
writing and introduced into evidence to enable this court to fairly and
reasonably review the determination that an employee was discharged for “just
cause” for the knowing violation of a rule. Id. at 1205 (citation omitted).
[23] In its disciplinary report, Employer indicated that its reason for terminating the
employment of Employee was violation of company rules, and Employer stated
that Employee violated Paragraph A of its professional conduct policy as well
as statements in the written job description for direct support professionals. As
to Employer’s argument that Employee’s actions violated Client D’s BSP, we
observe that Employer does not point to the record to show that it introduced
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an approved BSP for Client D or that Employee stipulated to the contents of
Client D’s approved BSP at the hearing.3 Thus, we cannot determine which
provisions of Client D’s approved BSP Employer believed Employee failed to
follow, were knowingly violated by Employee, or may have provided a basis for
Employer’s decision to terminate Employee’s employment.
[24] We turn to the professional conduct rule of Employer providing that employees
“will in no way exploit, neglect or inflict physical or psychological harm on a
client.” Exhibits at 18. To have knowingly violated an employer’s rules, the
employee must know his conduct violated the rule. Stanrail, 735 N.E.2d at
1203.
[25] Employer and the Board emphasize that Employee did not call the police and
did not perform a Mandt hold. Employer did not present evidence that
Employee was required to call the police, and Employee testified that Employer
had “no documentation on . . . using the police either way.” Transcript at 33.
While Employee may have had the option of calling the police after pulling to
the side of the road, and although situations can arise which would require a
reasonable employee to call the police, the focus with respect to Employee’s
application for unemployment benefits is on whether the actions or inactions
taken by Employee under the circumstances arising on May 7, 2014,
constituted a knowing violation of Employer’s rule against neglect of a client.
3
At the hearing, when asked if he knowingly failed to follow Client D’s BSP, Employee testified: “No, I did
not fail to follow it.” Transcript at 26.
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Moreover, Employer’s disciplinary report did not state that Employee was
discharged because he failed to call the police; rather it states that Employee
neglected to follow Client D’s BSP or “to implement MANDT de-escalation
techniques . . . .” Exhibits at 37. Further, although Employer argues that
Employee “should have removed the client from the vehicle and utilized a
physical restraint,” Appellee Employer’s Brief at 8, it did not submit any
document related to a Mandt hold or restraint, the circumstances under which
such a restraint would be appropriate, or the length of time such a restraint was
to be used, and specifically as to Client D, would have been safe or appropriate.
Employee testified a Mandt hold cannot be used longer than three minutes, and
Employer does not point to the record to show it responded to this testimony or
presented specific evidence that it would have been safe for Client D and the
other two clients for Employee to place Client D in a Mandt hold until
Gatewood arrived at the scene. In addition, we note, similar to the option of
calling the police, that while Employee may have had the option of placing
Client D in a Mandt hold for some period, the focus with respect to Employee’s
application for unemployment benefits is on whether Employee’s actions or
inactions under these particular circumstances establish that he knowingly
violated Employer’s rule against neglect of clients. See Stanrail, 735 N.E.2d at
1203. We thus turn to whether the evidence establishes that Employee
knowingly violated Employer’s rule as to neglect of a client.
[26] The record reveals that Employee was driving with three clients in his vehicle
when Client D began to yell, beat his chest with his fists, and state that he
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would fight. Employee knew based on his experiences with Client D that
“when he gets to this stage, he will start to hit people.” Transcript at 20. Client
D was a flight risk and had a history of physical aggression, and another of the
clients with Employee was also a flight risk. Client D had “punched
[Employee] in the face and then bit [him] in the back” on a previous occasion in
2012. Id. at 22. Client D had started to yell at approximately 2:24 p.m., and
Employee pulled the vehicle to the side of the road at 2:25 p.m. Employee
pulled the vehicle over near a busy intersection, had two of the clients exit the
vehicle, and required Client D to remain inside the vehicle. Employee called
supervisors at 2:25 p.m. and 2:26 p.m. and was unable to reach them. He then
called a co-worker who was able to contact a supervisor, and the supervisor
called him at 2:38 p.m. and asked “did you get the other two out safely,”
Employee responded affirmatively, and the supervisor said “I’ll send help.” Id.
at 20. There is no indication that Employee’s supervisor directed Employee to
remove Client D from the car, to hold Client D in a Mandt hold, to call police,
or to take any other action, nor did the supervisor contact the police.
[27] Employee gave water to Client D and allowed him to open and close the car
door so that he had fresh air. Employee was the sole employee present with
Client D and the two other clients until Gatewood arrived at 3:00 p.m. If
Employee had Client D exit the car and attempted to hold him in a Mandt
hold, it is possible that Employee would have been compelled to try to continue
to physically restrain him until 3:00 p.m. when Gatewood arrived, something
Employee was physically unable to do. Employee was required to supervise
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Client D as well as the other two clients, one of whom was also a flight risk.
Employee testified that Client D was “[a]bout five, five six” and weighed
“[b]etween a hundred and seventy-five to maybe a hundred and eighty-five.”
Id. at 20. When asked if he knew that physically restraining Client D was an
option, Employee replied that he was “five foot four, sixty-two years old” and
“could not physically do it.” Id. at 26. Employee also testified that a Mandt
hold could not be used longer than three minutes, that using the Mandt hold on
Client D would have endangered the other two clients, that the last time he was
involved in a physical restraint of Client D “it took two people to physically
restrain him,” “it was all both of us could do is to hold him,” and that if Client
D were able to run away he “would never been able to keep up” as Employee
could not “run any longer.” Id. at 26-27.
[28] We conclude that the record lacks substantial evidence to support a finding that
Employee knew that his conduct violated Employer’s professional conduct rule
that employees “in no way exploit, neglect or inflict physical or psychological
harm on a client.” Exhibits at 18. The record does not establish Employee
knew or could be charged with the knowledge or reasonably anticipate that his
action to restrain Client D in the vehicle under the circumstances could result in
the termination of his employment. We reverse the decision of the Board that
Employee was terminated for just cause and denying Employee unemployment
benefits and remand for further proceedings consistent with this opinion.
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Conclusion
[29] For the foregoing reasons, we reverse the Board’s decision and remand for
further proceedings consistent with this opinion.
[30] Reversed and remanded.
Crone, J., and Pyle, J., concur.
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