Albright v. Review Bd. of the Ind. Dep't of Workforce Dev.

• Decision Date: 12 September 2013
• Docket Number: No. 93A02–1301–EX–81.,93A02–1301–EX–81.
• Citation: 994 N.E.2d 745
• Parties: Gina ALBRIGHT, Appellant–Petitioner, v. REVIEW BOARD OF the INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and the Starke County Sheriff's Department, Appellees–Respondents.
• Court: Indiana Appellate Court

994 N.E.2d 745

Gina ALBRIGHT, Appellant–Petitioner,

v.REVIEW BOARD OF the INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and the Starke County Sheriff's Department, Appellees–Respondents.

No. 93A02–1301–EX–81.

Court of Appeals of Indiana.

Sept. 12, 2013.

Nicholas A. Snow, Harris Law Firm, P.C., Crown Point, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Kyle Hunter, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee Review Board.

Martin R. Lucas, North Judson, IN, Attorney for Appellee Starke County Sheriff's Department.

OPINION

CRONE, Judge.

Case Summary

Gina Albright worked as a 911 dispatcher for the Starke County Sheriff's Department (“the Department”).¹ After a firecracker exploded behind her, she experienced hearing loss, vertigo, and tinnitus. She received sick leave and worker's compensation. After her doctor determined that she was capable of returning to work, Albright did not return to work by taking sick days, vacation days, and bereavement days. After Albright failed to show up for her scheduled shift and call the Department to inform it of her absence, the Department terminated her employment.

Albright filed a claim for unemployment benefits with the Indiana Department of Workforce Development (“DWD”), which found that she was discharged for just cause and ineligible for unemployment benefits. The denial of her claim for unemployment benefits was ultimately affirmed by the DWD Review Board (“Review Board”).

Albright appeals the denial of her claim for unemployment benefits, arguing that the Review Board's decision is contrary to law. Specifically, she contends that there was insufficient evidence to support its finding that she was discharged for just cause because she knowingly violated a reasonable and uniformly enforced rule. She also argues that the Review Board erred in failing to find that she had a medically substantiated physical disability and therefore was not subject to disqualification for unemployment benefits. We conclude that the Review Board's denial of her claim is not contrary to law and therefore affirm.

Facts and Procedural History

The evidence most favorable to the Review Board's decision shows that on January 1, 1995, Albright began working at the Department as an office manager. The Department's employee handbook provides in relevant part, “If tardiness exceeds two hours, it will be considered unscheduled time off if the employee notifies the Responsible Elected Official, or where appropriate, Department Head. If the employee does not notify the Responsible Elected Official, or where appropriate, Department Head, the employee may be discharged for absence without notification.” Claimant's Ex. 1 at 36.² Albright was aware of this policy.

In January 2011, the Department reassigned Albright to work as one of eight 911 dispatchers, under the supervision of a chief dispatcher. Albright's duties included answering emergency calls and dispatching emergency medical, fire, and police services. The dispatchers worked twelve-hour shifts, four days on and four days off, with two dispatchers working each shift. Albright worked 6:00 p.m. to 6:00 a.m. The Department's standard policy was that all dispatchers were required to call the chief dispatcher or the sheriff if they were unable to work as scheduled. Id. at 35; Tr. at 17.

On April 15, 2011, the chief dispatcher gave Albright an oral reprimand for failing to answer calls in a timely manner and prioritize calls. On April 13, 2012, the chief dispatcher gave Albright a written reprimand for jeopardizing the welfare of a caller.

On May 23, 2012, Albright was at work when an on-duty police officer lit a firework and threw it into the dispatcher's office. The firework exploded behind Albright. She experienced hearing loss and applied for and received sick leave and worker's compensation. On June 20, 2012, Dr. Doug Liepert examined Albright and reported that she had symmetrical mild hearing loss at higher frequencies, benign positional vertigo, and tinnitus, and that she would need further treatment, but nevertheless concluded that she should be able to continue with work. Claimant's Ex. 2 at 44. Albright knew that the doctor had cleared her to return to work. Albright was referred to a therapist for treatment of her symptoms, which she completed in October 2012.

Albright's four-day work week was scheduled to begin June 25, 2012, but she did not return to work. She took sick days for June 25 and 26 and requested and was granted vacation days for June 26 and 27. She was next scheduled to work July 3 through 6, 2012. She took sick days for July 3 and 4. Albright requested vacation days for July 5 and 6, but the chief dispatcher denied her request and told Albright that she would have to use her sick days. On July 5, 2012, Albright had a death in the family. Instead of using sick days for July 5 and 6, she used two of the three bereavement days available to employees. In a telephone conversation, the chief dispatcher informed Albright that her next four-day work week would begin on July 11, 2012. Id. at 16, 33–34, 61–62. Albright told the chief dispatcher that she would use her last bereavement day on July 11. Albright asked to take vacation days for July 12, 13, and 14. The chief dispatcher told Albright that she “could not approve her vacation since she had been off work since May 23rd.” Id. at 16. On July 12, 2012, Albright's husband called the Department and reported that she had a migraine and would not be working. On July 13, 2012, Albright attempted to apply for unpaid leave pursuant to the Family Medical Leave Act. She did not show up to work her shift, nor did she talk to the chief dispatcher or the sheriff to report her absence. This was the first time that one of the dispatchers had failed to show up as scheduled and call in to report an absence. Id. at 59.

On July 14, 2012, Albright received a letter from the Department informing her that her employment was terminated. The letter did not provide the reason for her termination. Albright applied with DWD for unemployment benefits. A claims deputy found that she was discharged for just cause and was therefore ineligible for unemployment benefits. Albright appealed the denial of benefits to the administrative law judge (“ALJ”). Following a hearing, the ALJ found that Albright was aware that she was scheduled to work July 13, 2012, did not show up for work, and did not call in to report her absence. It further found that the Department had a policy prohibiting unexcused absences that was reasonable and uniformly enforced, and that Albright was discharged for violating this policy. The ALJ concluded that Albright knowingly violated a reasonable and uniformly enforced rule and therefore was discharged for just cause and was ineligible for unemployment benefits. Albright appealed the ALJ's decision to the Review Board, which adopted and incorporated the ALJ's findings of fact and conclusions of law and affirmed its decision. Albright appeals.

Discussion and Decision

Albright appeals the Review Board's denial of her claim for unemployment benefits. 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 being contrary to law, our review 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 facts.’ ” McClain v. Review Bd. of Ind. Dep't of Workforce Dev., 693 N.E.2d 1314, 1317 (Ind.1998) (quoting Ind.Code § 22–4–17–12(f)). Applying this standard, we review “(1) determinations of specific or ‘basic’ underlying facts, (2) conclusions or inferences from those facts, sometimes called ‘ultimate facts,’ and (3) conclusions of law.” Id. The Review Board's findings of basic fact are subject to a “substantial evidence” standard of review. Id. In conducting our analysis, we neither reweigh evidence nor judge witness credibility; rather, we consider only the evidence most favorable to the Review Board's findings. Id. The Review Board's conclusions regarding ultimate facts involve an inference or deduction based on the findings of basic fact, and we typically review them to ensure that the Review Board's inference is “reasonable” or “reasonable in light of its findings.” Id. at 1317–18 (citation and quotation marks omitted). We review the Review Board's conclusions of law using a de novo standard. Ind. State Univ. v. LaFief, 888 N.E.2d 184, 186 (Ind.2008).

The Act provides unemployment benefits to individuals who are “unemployed through no fault of their own.” Ind.Code § 22–4–1–1. Under the Act, an individual is disqualified for unemployment benefits if he or she is discharged for “just cause.” Ind.Code § 22–4–15–1(a). Discharge for just cause includes a “knowing violation of a reasonable and uniformly enforced rule of an employer, including a rule regarding attendance.” Ind.Code § 22–4–15–1(d)(2). When the employer alleges that the employee was discharged for just cause, the employer bears the burden of establishing a prima facie case of discharge for just cause. Alebro, LLC v. Review Bd. of Ind. Dep't of Workforce Dev., 968 N.E.2d 236, 238 (Ind.Ct.App.2012). “Once the employer meets its burden, the burden shifts to the employee to rebut the employer's evidence.” Id.

The Department's policy provides that an employee who takes an unscheduled absence and fails to notify the Department of such an absence “may be discharged for absence without notification.” Claimant's Ex. 1 at 36. Albright argues that there is insufficient evidence to support the Review Board's finding that she knowingly violated the Department's policy. To knowingly violate an employer's rule, the employee must (1) know of the rule and (2) know his conduct violated the rule....