Bradley D. Benard v. Review Board of the Indiana Department of Workforce Development and Rolls-Royce Corporation

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE
REVIEW BOARD:
JAY MEISENHELDER
Employment & Civil Rights Legal Services GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
KYLE HUNTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BRADLEY D. BENARD, )
Appellant-Claimant, )
) Oct 08 2013, 10:24 am
vs. )
)
REVIEW BOARD OF THE INDIANA )
DEPARTMENT OF WORKFORCE )
DEVELOPMENT, ) No. 93A02-1303-EX-237
Statutory Appellee, 1
)
)
and )
)
ROLLS-ROYCE CORPORATION, )
Appellee-Employer. )
APPEAL FROM THE REVIEW BOARD
OF THE DEPARTMENT OF WORKFORCE DEVELOPMENT
The Honorable Steven F. Bier, Chairperson
The Honorable George H. Baker and The Honorable Larry A. Dailey, Members
Case No. 13-R-00518
October 8, 2013
OPINION - FOR PUBLICATION
KIRSCH, Judge
1
“In every appeal from a decision of the Review Board of the Indiana Department of Workforce
Development, the Board ‘shall be made a party appellee.’” Recker v. Review Bd. of Ind. Dep’t of Workforce
Dev., 958 N.E.2d 1136, 1136 (Ind. 2011) (quoting Ind. Code § 22-4-17-12(b)).
Bradley D. Benard (“Benard”)2 appeals from an adverse determination of his claim for
unemployment benefits by the Unemployment Insurance Review Board (“Review Board”) of
the Indiana Department of Workforce Development (“the Department”) contending that the
evidence does not support the conclusion that he was discharged for just cause.
We affirm.
FACTS AND PROCEDURAL HISTORY
Benard worked for Rolls-Royce Corporation (“Rolls-Royce”), an aircraft engine
manufacturer, as a machine repair electrician from September 16, 1996 until the time of his
discharge on August 20, 2012. Rolls-Royce discharged Benard for leaving a threatening
message on a fellow employee’s voicemail.
More specifically, on the evening of August 16, 2012, Benard left a voicemail
message for N.H., Benard’s team leader. The message was laced with profanity, and
included passages in which Benard, who identified himself in the phone message, called
2
The amendment to Administrative Rule 9(G), which incorporates by reference Indiana Code section
22-4-19-6, does not prohibit the use of full names of parties in routine appeals from the Review Board where it
is essential to (1) the resolution of litigation; or (2) the establishment of precedent or development of the law.
Moore v. Review Bd. of Ind. Dep’t of Workforce Dev., 951 N.E.2d 301, 305-06 (Ind. Ct. App. 2011). We also
acknowledge our Supreme Court’s resolution of an issue involving confidentiality of the identities of parties to
such an appeal in Recker, 958 N.E.2d 1136. In Recker, the supreme court noted that Indiana Administrative
Rule 9(G) provides that when information is presented in court proceedings open to the public, such as judicial
proceedings, “the information shall remain excluded from public access only if a party or a person affected by
the release of the information, prior to or contemporaneously with its introduction into evidence, affirmatively
requests that the information remain excluded from public access.” 958 N.E.2d at 1138 n4 (quoting Admin. R
9(G)(1.2)(emphasis added)). Here, the decisions subject to our review were labeled “Confidential Record”
with citations to the Indiana Code. Benard’s Appellant’s Case Summary indicates in the affirmative that the
entire trial court or agency record was sealed or excluded from public access, citing Indiana Administrative
Rule 9(G)(1)(b)(xviii) (“All records of the Department of [W]orkforce Development as declared confidential
by Ind. Code § 22-4-19-6.”). Nonetheless, the cover of the Appellant’s Appendix contains the full name of the
claimant and the full name of the employer. Initials were used in some instances in the briefs. However, in the
absence of an affirmative request for continued confidentiality of the identities of the employee and the
employing entity, we fully identify the parties. Recker, 958 N.E.2d at 1138 n4.
2
N.H. derogatory names. The message included statements such as “you better pray we never
cross paths in the street,” “that’s not a threat, it’s a promise,” and “I want to bite your throat
out and spit it into your mouth.” Appellant’s App. at ii. N.H., who was “very disturbed by
it,” brought the recording to Rolls-Royce’s attention. Tr. at 6. Benard had grown
increasingly upset over what he perceived to be his supervisor’s decision not to support or
promote one of Benard’s suggestions to management. If the suggestion had been adopted or
accepted for use by Rolls-Royce, Benard could have received an incentive payment.
After his discharge, Benard filed a claim for unemployment benefits. The claims
deputy for the Department found that Benard was discharged for just cause and denied him
benefits. Benard appealed that denial on November 8, 2012. A hearing was held before an
administrative law judge (“the ALJ”) on January 15, 2013. The ALJ reversed the decision of
the claims deputy, finding Benard eligible for benefits, having not been discharged for just
cause in connection with work. Rolls-Royce appealed the ALJ’s decision to the Review
Board. The Review Board reversed the ALJ’s decision and found that Benard was ineligible
for benefits because he had been discharged for just cause. Benard now appeals. Additional
facts will be supplied.
DISCUSSION AND DECISION
Benard contends that we must reverse the decision of the Review Board on the
following grounds:
First, because Rolls-Royce failed to meet its burden of proving that B.B. was
discharged for just cause; second, because the Review Board erred in
concluding that Rolls-Royce did not have to prove just cause under its rule,
because B.B.’s actions were, allegedly, “unlawful,” and finally, because even if
3
B.B. threatened his co-workers, the Review Board did not find, based on
substantial evidence, that B.B. owed a duty in connection with work to refrain
from threatening his co-workers.
Appellant’s Br. at 4 (emphasis in original).
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.
McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314,
1318 (Ind. 1998). Ultimate facts are facts that “involve an inference or
deduction based on the findings of basic fact.” Id. at 1317. Where such facts
are within the “special competence of the Board,” the Court will give greater
deference to the Board’s conclusions, broadening the scope of what can be
considered reasonable. See id. at 1318.
Recker, 958 N.E.2d at 1139. We do not reweigh the evidence or assess the credibility of
witnesses and consider only the evidence most favorable to the Review Board’s findings.
McHugh v. Review Bd. of Ind. Dept. of Workforce Dev., 842 N.E.2d 436, 440 (Ind. Ct. App.
2006). We will reverse the Review Board’s decision only if there is no substantial evidence
to support the Board’s findings. Id.
Benard was denied unemployment benefits because he was found to have been
discharged for just cause. Indiana Code section 22-4-15-1 provides that a claimant is
ineligible for unemployment benefits if he is discharged for just cause. When a claimant is
denied benefits, he bears the burden of showing error. Russell v. Review Bd. of Ind. Dep’t of
Emp’t & Training Servs, 586 N.E.2d 942, 947 (Ind. Ct. App. 1992). Should the employer
allege that a discharged employee who was seeking unemployment benefits was discharged
for just cause, the employer bears the burden of establishing a prima facie case of showing
just cause. Id. at 947-48. If the employer makes that showing, the burden then shifts to the
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employee to produce evidence rebutting the employer’s case. Id. at 948. Further, “the
determination of whether an employer had just cause to discharge an employee for purposes
of determining the employee’s eligibility for unemployment compensation benefits is a
question of fact for the [Review] Board to determine in each case on its particular facts; the
[Review] Board’s decision regarding all questions of fact is conclusive and binding on an
appellate tribunal if supported by the evidence.” Id.
Indiana Code section 22-4-15-1(d)(9) defines “discharge for just cause” as including
but not limited to “any breach of duty in connection with work which is reasonably owed an
employer by an employee.” In Hehr v. Review Board of the Indiana Employment Security
Division, 534 N.E.2d 1122, 1126 (Ind. Ct. App. 1989), we acknowledged the following:
We realize that the “breach of duty” ground for just discharge is an amorphous
one, without clearly ascertainable limits or definition, and with few rules
governing its utilization. As such, it is subject to potential abuse by an
employer as a convenient ground upon which to justify a discharge, unless the
Board carefully exercises its discretion and limits its application where
necessary. In considering whether an employer may utilize this provision as a
basis for justifying its action, the Board should consider whether the conduct
which is said to have been a breach of a duty reasonably owed to the employer
is of such a nature that a reasonable employee of the employer would
understand that the conduct in question was a violation of a duty owed the
employer and that he would be subject to discharge for engaging in the activity
or behavior.
Further, the Review Board is afforded wide latitude to determine issues and hear theories not
heard by the ALJ, and that latitude includes using any applicable statutory definition to find
that a claimant was discharged for just cause. Trigg v. Review Bd. of Ind. Emp’t Sec. Div.,
445 N.E.2d 1010, 1013 (Ind. Ct. App. 1983). Our review, therefore, is limited to whether the
5
Review Board made sufficient findings to support the decision it reached upon the definition
it chose to apply. Id.
Benard claims that the Review Board’s decision was not supported by sufficient
findings under the definition of “just cause” found in Indiana Code section 22-4-15-1(d)(9).
He argues that Rolls-Royce’s failure to introduce into evidence a copy of “Shop Rule 20”
was fatal to its position, and renders the Review Board’s decision unsupported by sufficient
findings. Rolls-Royce has a rule which prohibits “threatening, intimidating, coercing or
interfering with employees or supervision at any time.” Tr. at 5. Shop Rule 20 was not
introduced as an exhibit in evidence, but was read into the record of the proceedings. The
Labor Relations Representative for Rolls-Royce also stated that the reason behind the policy,
which he claimed was uniformly applied to all employees, was to “maintain order and
discipline so our[sic] and keep a work, work environment free from harassment and
intimidating and threatening.” Id. Benard, however, refused to stipulate to the contents of
the rule.
Without regard to the evidentiary value of the work rule, we find that the Review
Board reached a conclusion supported by sufficient findings. The record reflects that Rolls-
Royce had an employee incentive program to promote employee suggestions that have
positive effects on its business. Benard learned that his supervisor, N.H., had not
recommended one of his suggestions to upper management. Upon learning this, Benard
returned to work and “stewed on it all day long.” Id. at 10. Benard became increasingly
more irritated about the fact after he went home and began to drink alcoholic beverages.
6
Benard ultimately made the telephone call to N.H.’s work telephone and left the voicemail
message. Benard claims that he bore no duty to Rolls-Royce to refrain from that behavior.
In Smithson v. Review Board of Indiana Employment Security Division, 446 N.E.2d
1014, 1016 (Ind. Ct. App. 1983), a case relied upon by the Review Board here, we concluded
that employees owe a duty to their employers to refrain from particularly grievous acts such
as fighting. We quoted from Kilpatrick v. Unemployment Compensation Board of Review,
429 A.2d 133, 134 (Pa. Commw. Ct. 1981), for the following proposition:
“[P]articipation in a fight during working hours is willful misconduct, whether
it is in violation of a stated company policy or not, since at a minimum it rises
to the level of a disregard of justiciably expected standards of behavior and of
the employer’s interests. Unemployment Compensation Board of Review v.
Vojtas, 23 Pa. Comwlth. 431, 351 A.2d 700 (1976).”
We reversed the Review Board’s decision in Smithson, however, after finding that the
Review Board had not addressed Smithson’s claims of self-defense.
The Review Board, here, drew an analogy between the duty found in Smithson, to the
situation where a “reasonable employee would innately know that he would be subject to
discharge for threatening another employee.” Appellant’s App. at iii. We agree and find
further support in Yoldash v. Review Board of Indiana Employment Security Division, 438
N.E.2d 310 (Ind. Ct. App. 1982). In Yoldash, we found that an employee was in violation of
standards of behavior reasonably expected of him by his employer, and thus, discharged for
just cause, by directing abusive and offensive language, such as “drunk,” “suck-ass,”
“communist,” and “fascist,” toward superiors. 438 N.E.2d at 314-15. In the present case,
7
Benard’s abusive and offensive language constituted the criminal offense of intimidation,
and the Review Board correctly concluded as much. Ind. Code § 35-45-2-1.
Benard, on the other hand, argues that the Review Board’s decision, as was the case in
Smithson, should be reversed, because the Review Board failed to consider his defense, that
of voluntary intoxication, such that he did not possess the mens rea required to place N.H. in
fear of retaliation. First, voluntary intoxication is not a defense and “may not be taken into
consideration in determining the existence of a mental state that is an element of the offense.”
Ind. Code § 31-41-2-5. Thus, Benard’s defense he claims was overlooked, in fact, does not
exist.
Benard contends that the decision should be reversed because there was no connection
between his actions and his work. Benard correctly asserts that a duty to an employer must
be “reasonably connected to work.” 646 I.A.C. 5-8-6(a)(1). Accordingly, he claims, that in
the absence of evidence that he or N.H. were at work at the time of the telephone call,
Benard’s behavior was not reasonably connected to work. We disagree.
Benard’s own testimony established that his actions were in direct response to N.H.’s
decision not to support his suggestion, which he had submitted to Roll-Royce’s incentive
program. Furthermore, Benard left the voicemail message on N.H.’s work telephone.
Regardless of the time the call was placed, it is undisputed that the call concerned a matter
connected to work. The record supports the Review Board’s findings that Benard’s actions
were reasonably connected to work, that his discharge was for just cause, and that he was
ineligible to receive unemployment benefits.
8
In sum, for each of the reasons stated above, we conclude that the Review Board made
sufficient findings to support the decision it reached upon the definition of just cause it chose
to apply.
Affirmed.
ROBB, C.J., and RILEY, J., concur.
9