Beckingham v. Review Bd. of Indiana

• Citation: 903 N.E.2d 477
• Decision Date: 20 March 2009
• Docket Number: No. 93A02-0808-EX-771.,93A02-0808-EX-771.
• Parties: Lisa M. BECKINGHAM, Appellant-Petitioner, v. REVIEW BOARD OF the INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and Cenveo Corporation, Appellees-Respondents.
• Court: Court of Appeals of Indiana

903 N.E.2d 477

Lisa M. BECKINGHAM, Appellant-Petitioner, v. REVIEW BOARD OF the INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and Cenveo Corporation, Appellees-Respondents.

No. 93A02-0808-EX-771.

Court of Appeals of Indiana.

March 20, 2009.

Karen L. Withers, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Frances H. Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee Review Board.

OPINION

HOFFMAN, Senior Judge.

Plaintiff-Appellant Lisa M. Beckingham appeals the decision of the Unemployment Insurance Review Board ("the Board") denying her application for unemployment benefits. We affirm.

Beckingham presents two issues for our review, which we restate as:

I. Whether Beckingham was discharged for just cause.

II. Whether Beckingham's discharge should have been reviewed under Ind.Code § 22-4-15-1(d)(3) rather than Ind.Code § 22-4-15-1(d)(2).

Beckingham was employed by Cenveo Corporation from August 14, 1997 to January 30, 2008, when she was discharged for violation of Cenveo's attendance policy. Thereafter, Beckingham filed for unemployment benefits. In April 2008, a claims deputy determined that Beckingham had been terminated for just cause due to her violation of the employer's attendance policy. Beckingham appealed this decision, and, on June 17, 2008, an Administrative Law Judge ("ALJ") held an evidentiary hearing. Following the hearing, the ALJ entered findings of fact and conclusions of law affirming the decision of the claims deputy, as follows:

FINDINGS OF FACT: The ALJ (Administrative Law Judge) finds the claimant worked for this employer from 8/14/97 through 1/30/08 as a purchasing agent at $13.26 per hour. She was discharged for violation of the employer's attendance policy.

The ALJ finds the employer has an excuse-based policy. It provides that termination will occur on the fourth occurrence of unexcused absence in a 12-month period. It also provides that an employee may be terminated for excessive excused absences or tardies within a 12-month period. It states in particular "Disciplinary action for excessive excused absences and tardiness will be taken based upon an employee's total occurrences of absences and tardiness within any consecutive 12-month period. Each excused absence and tardy will constitute a separate occurrence ... 13 occurrences in any 9-12 month period = Termination." Claimant had received the policies on 12/2/03 and 3/22/06. The ALJ finds the policies known to the claimant, reasonable, and uniformly enforced.

The claimant received a written verbal warning on 3/5/07 for three occurrences within 30 days. She had to leave early on February 13th because the babysitter was sick; was ill herself on February 15th; and had no sitter on February 23rd. Claimant received a first written warning on October 5, 2007 for illness of her child on 9/14, for being late due to a flat tire on 9/28; for leaving early for unscheduled personal time on 10/2, and leaving early for a sick child on 10/3. She had 3½ occurrences in 30 days. On 1/9/08 the claimant received a final written warning for three occurrences within 30 days and 8½ occurrences within 6 months. She was late 8/3/07; ill because of a child on 9/14; late 9/28; left early for unscheduled personal on 10/2/07; left early child sick on 10/3/07; ill because of various illnesses of child on 11/28, 12/4, 12/27, and 1/4/07. On 1/30/08 she was terminated for 14 ½ occurrences.

The claimant asserts the defense firstly, that she is a single mother, and therefore a special exception should be made for her and the policy should not apply to her. Her second defense is that although there is a policy, she feels that the excessive absence for good excuse section should apply rather than the policy section of the act. She further feels that Ms. Foster missed more work than her. Claimant is not a custodian of records and did not subpoena Ms. Foster's attendance records, yet claims her verbal statement that Ms. Foster was absent more than her, should establish lack of uniformity of enforcement.

Employer's response is that they have many single mothers, and they are able to get to work. They did try to work with the claimant, and she should have been terminated at 13 occurrences, but was actually terminated at 14½ occurrences.

CONCLUSIONS OF LAW: In defining discharge for just cause, the statute includes the knowing violation of a reasonable and uniformly enforced rule of an employer. IC 22-4-15-1(d)(2)

To find that a discharge was for just cause under this section, it must be found that there was a rule, the rule was reasonable, the rule was uniformly enforced, the claimant knew of the rule, and the claimant knowingly violated the rule. Barnett v. Review Board (1981), Ind.App., 419 N.E.2d 249.

The ALJ concludes the employer has sustained its burden of proof by preponderance of the evidence. The ALJ concludes the policy is known to the claimant, reasonable, and uniformly enforced. The ALJ cannot conclude that claimant's verbal assertion without any substantiation to support establishes any lack of uniformity of enforcement. The ALJ cannot conclude that the employer is required to make special exception for claimant, and their policy should not apply to her because of her "special status as a single mother." The ALJ concludes that Ms. Foster provided competent evidence that she deals with her attendance and childcare issues on her lunch hour rather than on her work time. She felt the claimant could do the same thing. It is held, therefore, the claimant was discharged for just cause under IC 22-4-15-1.

DECISION: The determination is affirmed. The penalties of IC 22-4-15-1 apply. The claimant's benefit rights are suspended effective week ending 2/2/2008 and remain so suspended until the claimant has earned her weekly benefit amount or greater in each of eight (8) weeks. Maximum benefit amount is reduced by 25%.

Appellant's Appendix at 3-4.

Beckingham subsequently filed an appeal of the ALJ's decision to the Board. The Board examined the case without a hearing and affirmed the ALJ's decision on July 29, 2008. It is from this decision that Beckingham now appeals.

The Indiana Unemployment Compensation Act provides that any decision of the Board shall be conclusive and binding as to all questions of fact. Ind.Code § 22-4-17-12(a). When the Board's decision is challenged as contrary to law, the reviewing court considers the sufficiency of the facts found to sustain the decision and the sufficiency of the evidence to sustain the findings of facts. Ind.Code § 22-4-17-12(f). Accordingly, the reviewing court examines: (1) determinations of specific or basic underlying facts; (2) conclusions or inferences from those facts, or determinations of ultimate facts; and (3) conclusions of law. NOW Courier, Inc. v. Review Bd. of Indiana Dept. of Workforce Development, 871 N.E.2d 384, 387 (Ind.Ct.App. 2007).

We review the Board's findings of basic fact under a "substantial evidence" standard of review. Quakenbush v. Review Bd. of Ind. Dept. of Workforce Development, 891 N.E.2d 1051, 1053 (Ind.Ct. App.2008). In this analysis, we neither reweigh the evidence nor assess the credibility of witnesses, and we consider only the evidence most favorable to the Board's findings. Id. Reversal is warranted only if there is no substantial evidence to support the Board's findings. Id. Next, we review the reasonableness of the Board's determination of ultimate facts. These facts involve an inference or deduction based upon the Board's findings of basic fact. McHugh v. Review Bd. of Indiana Dept. of Workforce Development, 842 N.E.2d 436, 440 (Ind.Ct.App.2006). Finally, conclusions of law are reviewed to determine whether the Board correctly interpreted and applied the law. Id.

Beckingham contends that the Board improperly determined that Cenveo terminated her for just cause. A claimant is ineligible for unemployment benefits if she is discharged for just cause. Ind.Code § 22-4-15-1(a). The Board determined that Beckingham was discharged for just cause pursuant to Ind.Code § 22-4-15-1(d)(2). Under this subsection of the statute, discharge for just cause is defined as the "knowing violation of a reasonable and uniformly enforced rule of an employer." Ind.Code § 22-4-15-1(d)(2). The employer bears the initial burden of establishing that an employee has been terminated for just cause. Owen County ex rel. Owen County Bd. of Com'rs v. Indiana Dept. of Workforce Development, 861 N.E.2d 1282, 1292 (Ind.Ct.App.2007). To establish a prima facie case for violation of an employer rule under Ind.Code § 22-4-15-1(d)(2), the employer must show that the claimant: (1) knowingly violated; (2) a reasonable; and (3) uniformly enforced rule. Id. Once the employer has met its burden, the claimant must present evidence to rebut the employer's prima facie showing. Id.

In challenging her discharge for just cause, Beckingham specifically asserts that Cenveo's attendance policy is not reasonable and not uniformly enforced. We will address each contention in turn.

Here, the ALJ admitted into evidence a copy of a portion of Cenveo's employee handbook containing its attendance policy, as well as Beckingham's attendance record and the paperwork showing the progression of discipline. Cenveo's attendance policy classifies absences as either "excused" or "unexcused" and lists the following as "excused" absences:

• Hospital confinement

• Injury on the job

• Jury duty

• Pre-arranged absence authorized in writing, in advance

• Military obligations

• Bereavement leave as authorized by this handbook

• Serious illness or injury of a member of the employee's immediate family

• Personal leave of absence authorized in writing, in advance

• Personal illness or injury

• Approved FMLA absences

• Disaster directly affecting the employee or his/her immediate family (i.e., fire, flood, tornado)

• Child care emergencies or other family...