Bartholomew County, Indiana v. Review Board of the Indiana Department of Workforce Development, and Robert L. Amos

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES:
PETER CAMPBELL KING GREGORY F. ZOELLER
Cline, King & King, P.C. Attorney General of Indiana
Columbus, Indiana
KATHY BRADLEY
Deputy Attorney General
Indianapolis, Indiana
Jul 30 2014, 9:54 am
IN THE
COURT OF APPEALS OF INDIANA
BARTHOLOMEW COUNTY, INDIANA, )
)
Appellant, )
)
vs. ) No. 93A02-1311-EX-986
)
REVIEW BOARD OF THE INDIANA )
DEPARTMENT OF WORKFORCE )
DEVELOPMENT, and ROBERT L. AMOS, )
)
Appellees. )
APPEAL FROM THE UNEMPLOYMENT INSURANCE REVIEW BOARD
Stephen F. Bier, Chairperson
George H. Baker, Member
Larry A. Dailey, Member
Cause No. 13-R-3524
July 30, 2014
OPINION- FOR PUBLICATION
BRADFORD, Judge
CASE SUMMARY
Appellant employer Bartholomew County (“the County”) appeals the determination
of Appellee the Review Board of the Indiana Department of Workforce Development (“the
Review Board”) that Appellee unemployed claimant Robert L. Amos was not discharged
for just cause and, therefore, is eligible for unemployment benefits. Amos was employed
as a merit deputy sheriff when he playfully shot a fellow officer in the groin with non-lethal
training ammunition. The Bartholomew County Sherriff’s Merit Board (“the Merit
Board”) found Amos to have violated six Sheriff’s Department rules and determined these
violations to be “cause” for Amos’s discharge under Indiana Code section 36-8-10-11(a).
The Review Board found that the County did not uniformly enforce its rules, as required
for “just cause” discharge under Indiana Code section 22-4-15-1(d)(2). The County argues
that (1) the issue of whether Amos was discharged for “just cause” was collaterally
estopped by the Merit Board’s determination that Amos’s rules violations were “cause” for
his discharge; (2) the Review Board erred in defining the class against which uniform rule
enforcement is measured; and (3) the Review Board abused its discretion in denying the
County’s request to present the transcript of the Merit Board hearing as additional
evidence. We affirm.
FACTS AND PROCEDURAL HISTORY
Amos was employed by the County as a merit deputy sheriff from July 22, 1974
until May 16, 2013. He is also a certified firearms instructor. On February 18, 2013, Amos
participated in an “Active Shooter” training course with several other officers, including
Hartsville Town Marshal A.J. Ross. Appellant’s App. p. 20. The course involved “live
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fire” scenarios in which the participants exchanged gunfire using non-lethal, plastic
training ammunition called “Simunition.” Appellant’s app. p. 21. Simunition fires without
gun powder and only has the capability to travel ten or fifteen feet; however, it can cause
injury if it hits a person in the eye or on bare skin. For this reason, the course participants
were required to wear helmets; throat, chest, and groin protectors; and other protective gear
during each scenario.
After one particular scenario during the February 18, 2013 training, the instructor
ordered the participants to holster their weapons and remove their helmets so they could
debrief. During this debriefing, Marshal Ross stated that he had not been hit with
Simunition during the scenario. Amos laughed and stated that he had been hit four times.
He then raised his weapon and playfully shot Marshal Ross, hitting him in his groin
protector. The instructor immediately took Amos’s weapon and admonished him for
inappropriate conduct. Marshal Ross was not injured.
As a result of the shooting, Bartholomew County Sheriff Mark Gorbett charged
Amos with violating six Sherriff’s Department rules: (1) use of non-deadly or deadly force
against a person who is merely verbally abusive; (2) conduct unbecoming to an officer; (3)
handling and carrying of a firearm in a careless or imprudent manner; (4) failure to use
equipment for its intended purpose; (5) failure to perform duties in a manner which will
maintain the highest standard of efficiency in carrying out the functions and objectives of
the Department; and (6) failure to maintain a high level of professionalism. The Merit
Board held a hearing on the charges and, on May 16, 2013, issued its findings of fact and
conclusions thereon. The Merit Board found Amos guilty of violating all six rules and
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determined these violations to be “cause” for Amos’s discharge under Indiana Code section
36-8-10-11(a). Amos was immediately discharged from County employment.
Following his discharge, Amos applied for unemployment benefits through the
Department of Workforce Development (“DWD”). On June 13, 2013, a DWD claims
deputy determined that Amos was discharged for just cause and, therefore, was ineligible
for unemployment benefits. Amos appealed the deputy’s determination, and a hearing was
held before a DWD Administrative Law Judge (“ALJ”). During the ALJ hearing, the
County presented only the Merit Board’s findings of fact and conclusions thereon as proof
that Amos was discharged for just cause. For his part, Amos testified to several instances
of other officers playfully shooting fellow employees with Siminution without being
disciplined. On September 13, 2014, the ALJ reversed the claims deputy’s determination,
finding that the County did not uniformly enforce its rules as required for “just cause”
discharge under Indiana Code section 22-4-15-1(d)(2).
On September 24, 2013, the County appealed the ALJ’s ruling to the Review Board.
The County also requested permission from the Review Board to submit the transcript of
the Merit Board hearing as additional evidence, claiming it called into question Amos’s
testimony at the ALJ hearing. On November 4, 2013, the Review Board denied the
County’s request and affirmed the decision of the ALJ. In its judgment, the Review Board
stated:
The Merit Board’s judgment does not address how other employees have
been disciplined for similar conduct, nor did the Employer present evidence
on that topic at the [ALJ] hearing. The Employer, therefore, failed to provide
any evidence that the Employer uniformly enforces its rules. The only
evidence [presented] at the unemployment hearing on the issue of uniform
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enforcement was presented by the Claimant. The Claimant’s testimony that
other officers had engaged in horseplay by shooting individuals with
simunition weapons without incident supports the [ALJ’s] finding and
conclusion that the Employer does not uniformly enforce its rules with all
employees.
Decision of the Review Bd.1
DISCUSSION AND DECISION
The County appeals the Review Board’s determination that Amos was not
discharged for “just cause” and, therefore, is eligible for unemployment benefits. “The
standard of review on appeal of a decision of the [Review] 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)).
I. Collateral Estoppel
The County argues that the issue of whether Amos was discharged for “just cause”
was collaterally estopped by the Merit Board’s determination that Amos’s violations were
“cause” for his discharge. Indiana Code section 36-8-10-11(a) provides that a sheriff “may
dismiss, demote, or temporarily suspend a county police officer for cause after preferring
charges in writing and after a fair public hearing before the board….” In this context,
“cause” means “some dereliction or general neglect of duty, or some delinquency affecting
1
The Decision of the Review Board is attached to Appellant’s Brief but numbered as if it was
included in Appellant’s Appendix. To avoid confusion, we cite to the decision independently.
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the general character of the officer, or his fitness for holding the office, or his incapacity to
discharge the duties thereof.” Coleman v. City of Gary, 220 Ind. 446, 458-59, 44 N.E.2d
101, 107 (1942). An unemployed claimant is ineligible for unemployment benefits if he is
“discharged for just cause.” Russell v. Review Bd. of Ind. Dep’t of Emp’t & Training Servs.,
586 N.E.2d 942, 948 (Ind. Ct. App. 1992); Ind. Code § 22-4-15-1. As it pertains to this
matter, “just cause” means a “knowing violation of a reasonable and uniformly enforced
rule of an employer.” Ind. Code § 22-4-15-1(d)(2).
“Collateral estoppel ‘applies where a particular issue is adjudicated and then put in
issue in a subsequent suit on a different cause of action between the same parties or their
privies.’” Ghosh v. Ind. State Ethics Comm’n, 930 N.E.2d 23, 26 (Ind. 2010) (quoting
McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d 390, 394 (Ind. 1988)).
Fundamentally, the issue sought to be estopped must be the same as the issue previously
adjudicated. Scott v. Scott, 668 N.E.2d 691, 699 (Ind. Ct. App. 1996) (citing Spearman v.
Delco Remy Div. of Gen. Motors Corp., 717 F. Supp. 1351, 1357 (S.D. Ind. 1989)). That
is not the case here.
“[W]hether an employer has reason to terminate an at-will employee involves
different concerns than whether those reasons constitute ‘just cause’ for purposes of
unemployment compensation….” Conseco, Inc. v. Review Bd. of Ind. Dep’t of Emp’t &
Training Servs., 626 N.E.2d 559, 563 (Ind. Ct. App. 1993). Here, the most notable
difference is the requirement of uniform rule enforcement for “just cause” in the
unemployment benefits context. Ind. Code § 22-4-15-1(d)(2); see Coleman v. Review Bd.
of Ind. Dep’t of Workforce Dev., 905 N.E.2d 1015, 1021-22 (Ind. Ct. App. 2009) (noting
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that although employer was clearly entitled to discharge employee, employee was not
discharged for just cause because employer failed to show uniform rule enforcement).
Because uniform rule enforcement is not a requirement for “cause” in the context of police
officer discipline, Ind. Code § 36-8-10-11(a), we conclude that collateral estoppel does not
apply.
II. Uniform Rule Enforcement
The County alternatively argues that the Review Board erred in defining the class
of persons against which it measured uniform rule enforcement. For a rule to be considered
uniformly enforced, “the enforcement must be carried out in such a way that all persons
under the same conditions and in the same circumstances are treated alike.” McClain, 693
N.E.2d at 1319. Thus, “[i]n order to evaluate uniformity one must first define the class of
persons against whom uniformity is measured.” Id. Here, the Review Board defined the
class as “other officers [who] had engaged in horseplay by shooting individuals with
simunition weapons.” Decision of the Review Bd.
The County claims that, because Amos is a certified firearms instructor, the proper
class includes only certified firearms instructors who engaged in Simunition horseplay.
This claim has no merit. Not one of the six rules Amos violated differentiates between
officers who are certified firearms instructors and those who are not. See Stanrail Corp. v.
Review Bd. of Dep’t of Workforce Dev., 735 N.E.2d 1197, 1206 (Ind. Ct. App. 2000)
(defining class of persons generally as employees who are ill for three days or more where
attendance policy did not differentiate between serious and minor illnesses). There is also
no evidence that Merit Board held certified firearms instructors to a higher standard than
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other officers under the rules. In fact, the County failed to present any evidence or
argument concerning the issue of uniform rule enforcement. We therefore find no error in
the Review Board’s class definition.
III. Additional Evidence
The County also argues that the Review Board abused its discretion in denying the
County’s request to submit the transcript of the Merit Board hearing as additional evidence.
The Indiana Administrative Code “requires a party offering additional evidence to show
good cause why such evidence should be accepted and good reason why it was not
introduced before the ALJ.” Telligman v. Review Bd. of Ind. Dep’t of Workforce Dev., 996
N.E.2d 858, 865-66 (Ind. Ct. App. 2013) (citing 646 Ind. Admin. Code 5-10-11(b) (2011)).
The County claimed the transcript called into question Amos’s testimony at the ALJ
hearing that other officers had playfully shot fellow employees with Siminution without
being disciplined. The County, however, did not offer an explanation as to why it did not
present the transcript as evidence at the ALJ hearing. Because the transcript was available
at that time and the County had the opportunity to cross-examine Amos during the ALJ
hearing, we cannot say the Review Board abused its discretion in denying the County’s
request.
The judgment of the Review Board is affirmed.
RILEY, J., and ROBB, J., concur.
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