Leaders Staffing LLC v. Review Board of the Indiana Dept. of Workforce Development and Jason P. Ballard

FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Sep 26 2012, 9:05 am
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE
REVIEW BOARD OF THE INDIANA
ZACHARY A. WITTE DEPARTMENT OF WORKFORCE
Locke & Witte DEVELOPMENT:
Fort Wayne, Indiana
GREGORY F. ZOELLER
Attorney General of Indiana
STEPHANIE ROTHENBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LEADERS STAFFING LLC, )
)
Appellant, )
)
vs. ) No. 93A02-1202-EX-149
)
REVIEW BOARD OF THE INDIANA )
DEPARTMENT OF WORKFORCE )
DEVELOPMENT and )
JASON P. BALLARD, )
)
Appellees. )
APPEAL FROM THE REVIEW BOARD OF THE DEPARTMENT
OF WORKFORCE DEVELOPMENT
Cause No. 12-R-146
September 26, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
Appellant Leaders Staffing LLC (“Leaders”) appeals from the Review Board of the
Indiana Department of Workforce Development’s (“Review Board”) decision that it did not
meet its burden of proving that Jason P. Ballard was discharged for just cause. We reverse.
FACTS AND PROCEDURAL HISTORY
Leaders is a staffing agency with an office in Fort Wayne. Ballard was employed by
Leaders as a painter from May 18, 2009, to November 28, 2011. Initially, Ballard was
assigned to work at a company called Rhinehart Finishing. However, after suffering a
workplace injury, Ballard was placed on “light duty” and was assigned to work at Leaders’s
office. Tr. p. 7. When Ballard began working in Leaders’s office, he signed a document
which set forth certain company rules and policies.1 Jerome Shaw, a staffing coordinator at
Leaders, claims that the document signed by Ballard stated that company computers were to
be used for “business purposes only,” and any violation of this rule could result in
termination. Tr. p. 8.
On November 28, 2011, Greg Kurtz, a salesperson for Leaders, walked in on Ballard
watching what appeared to be a pornographic video on a company computer. Kurtz
immediately notified Shaw of what he had witnessed. After discussing the matter with
Kurtz, Shaw spoke to Ballard. Ballard denied watching a pornographic video, claiming
1
A copy of the document signed by Ballard was not included in the record on review.
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instead that he had been checking to see if the computer was working properly by watching a
pre-installed family friendly video. Shaw determined that Ballard had violated the company
rule regarding use of company computers and terminated his employment.
Following the termination of his employment, Ballard submitted a claim for
unemployment insurance benefits. On December 14, 2011, a claims deputy for the Indiana
Department of Workforce Development (“Department”) determined that Ballard was not
discharged for just cause and was therefore eligible for unemployment insurance benefits.
Leaders appealed the claims deputy’s determination on December 16, 2011.
On December 22, 2011, the Department mailed a Notice of Hearing to both parties
scheduling a hearing, which would be conducted by an Administrative Law Judge (“ALJ”),
for January 3, 2012. Following the conclusion of the hearing, the ALJ reversed the
determination of the claims deputy. Ballard appealed the ALJ’s decision to the Review
Board. On January 26, 2012, the Review Board issued a decision reversing the ALJ’s
determination that Ballard was not entitled to unemployment benefits. This appeal follows.
DISCUSSION AND DECISION
On judicial review of an unemployment compensation proceeding, we determine
whether the decision of the Review Board is reasonable in light of its findings. Value World
Inc. of Ind. v. Review Bd. of Ind. Unemp’t Dept. of Workforce Dev., 927 N.E.2d 945, 947
(Ind. Ct. App. 2010). We are bound by the Review Board’s resolution of all factual matters;
thus, we neither reweigh evidence nor reassess witness credibility. Id. at 948. Rather, we
consider only the evidence most favorable to the Review Board’s decision and the reasonable
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inferences to be drawn therefrom, and if there is substantial evidence of probative value to
support the Review Board’s conclusion, it will not be set aside. Id. When, however, an
appeal involves a question of law, we are not bound by the agency’s interpretation of law,
and we will reverse a decision if the Review Board incorrectly interprets a statute. Id.In a discharge case, unemployment compensation may be denied to employees who
are discharged for just cause. Watterson v. Review Bd. of the Ind. Dep’t of Emp’t and
Training Servs., 568 N.E.2d 1102, 1104 (Ind. Ct. App. 1991). The employer bears the
burden of proving that it discharged the claimant for just cause. Stanrail Corp. v. Unemp’t
Ins. Review Bd., 734 N.E.2d 1102, 1104 (Ind. Ct. App. 2000). Indiana Code section 22-4-15-
1(d)(2) (2011) provides that the term “discharge for just cause” is defined to include any
“knowing violation of a reasonable and uniformly enforced rule of an employer.” In order to
establish a prima facie case for violation of an employer rule under Indiana Code section 22-
4-15-1(d)(2), it is necessary for the employer to show that the claimant: (1) knowingly
violated; (2) a reasonable; and (3) uniformly enforced rule. Stanrail Corp. v. Review Bd. of
the Dep’t of Workforce Dev., 735 N.E.2d 1197, 1203 (Ind. Ct. App. 2000), trans. denied.
“After an employer has met [its] burden, the claimant must present evidence to rebut the
employer’s prima facie showing.” Id.“As a matter of law, unless the parties stipulate to what the rule states, if the rule is not
reduced to writing when introduced into evidence, it is impossible for this court to fairly and
reasonably review the Board’s decision.” Blackwell v. Review Bd. of the Ind. Dep’t of Emp’t
and Training Servs., 560 N.E.2d 674, (Ind. Ct. App. 1990); see also Watterson, 568 N.E.2d
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at 1104-05. “We believe that [written documentation or a stipulation to the rule] is the
minimum evidence necessary for the employer to satisfy its burden, by substantial evidence
of probative value, that it has a rule and that that rule is reasonable and uniformly enforced.”
Watterson, 568 N.E.2d at 1105.
In the instant matter, Shaw testified during the evidentiary hearing that Ballard was
discharged after he committed a violation of Leaders’s rule regarding the use of company
computers. Leaders did not introduce a written copy of this rule into evidence. The only
evidence relating to this rule was introduced through Shaw’s oral testimony. As such, we
must determine whether Ballard stipulated to the rule as described by Shaw before we can
attempt to discern the content of this rule. See id. at 1105. If Ballard did not stipulate to the
language of the rule as described by Shaw, we will be unable to discern the content of this
rule and likewise will be unable to determine whether it is reasonable and uniformly
enforced. See id.Shaw testified that Leaders’s rule concerning the use of company computers read as
follows:
As a matter of course, Employees will have access to confidential information.
It is a condition of employment that you don’t disclose this information to third
parties during or after employment. And as far as the equipment that’s
company property, such as laser printers, copiers, computers and all production
tools are to be used for Leaders Staffing business purposes only.
Tr. p. 8. Shaw further testified that a violation of this rule could result in discharge. After
Shaw read the rule, the ALJ asked Ballard if he would stipulate to the language of the rule as
read by Shaw, and the following exchange took place:
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[Ballard] I think so. I signed a paper but I don’t remember if that was the
one that I signed.
[ALJ] Okay, so, what, what, what I’m asking you is, is, is that the
Employer’s policy? Do you stipulate that that is their policy?
[Ballard] I, I would imagine so, I, I don’t …
[ALJ] Okay.
[Ballard] Okay, ma’am?
Tr. p. 9.
Based on this exchange between Ballard and the ALJ, we conclude that Ballard’s
responses to the ALJ’s questions were sufficient to amount to a stipulation to Leaders’s rule
as read by Shaw. As such, we further conclude that the Review Board erred in reversing the
ALJ’s determination that Ballard was fired for just cause following a knowing violation of a
uniformly enforced rule relating to use of company computers.2
The judgment of the Review Board is reversed.
ROBB, C.J., and BAKER, J., concur.
2
Ballard does not dispute the ALJ’s determination that Leaders’s rule relating to usage of company
computers applied to all employees and was uniformly enforced.
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