McClain v. Review Bd. of Indiana Dept. of Workforce Development
| Decision Date | 19 March 1997 |
| Docket Number | No. 93A02-9602-EX-72,93A02-9602-EX-72 |
| Citation | 677 N.E.2d 1084 |
| Parties | Charles H. McCLAIN, Sr., Appellant, v. REVIEW BOARD OF THE INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT, and Iupui Human Resources Department, Appellees. |
| Court | Indiana Appellate Court |
Appellant, Charles H. McClain, Sr. (McClain), appeals the decision of the Unemployment Insurance Review Board (Board) determining that McClain was fired by IUPUI for just cause under I.C. 22-4-15-1 (Burns Code Ed. Supp.1996). In makings its determination, the Board adopted the findings and conclusions of the Administrative Law Judge (ALJ).
We reverse.
McClain presents one issue for review: whether he violated a known, reasonable and uniformly enforced policy of his employer IUPUI, and was therefore fired for just cause.
The facts before us are as follows: McClain was a full-time custodian at the Indiana University Medical Center in Indianapolis and was working on the night of January 20, 1995. On that evening, Jess Carrasquillo (Carrasquillo), McClain's supervisor, was near the time clock room at 11:00 p.m. He sat down next to another employee, James Jones (Jones) and noticed that Jones was holding four time cards. The shift ended at 11:30 p.m., whereupon Carrasquillo observed Jones clock out two of the time cards before Carrasquillo stopped him. Jones had clocked out himself and McClain at that point and had yet to clock out the other two employees.
McClain claimed that he asked Jones to clock him out at around 11:25 p.m. and that he was in the area with Jones at least two times between 11:00 and 11:29 p.m. However, Carrasquillo testified that McClain never entered the area and Jones had McClain's time card from 11:00 p.m. until clocking out. McClain said that he gave Jones his time card because he was assisting another employee, Diane McGraw, with her frozen car doors in the parking lot. McClain and the other three employees involved were ultimately discharged for the incident.
IUPUI claims and the Board held that McClain was fired for just cause. I.C. 22-4-15-1(d)(2) states that discharge for just cause includes a "[k]nowing violation of a reasonable and uniformly enforced rule of an employer." The burden is upon the employer to establish a prima facie showing of just cause for termination. Hehr v. Review Bd. of Ind. Emp. Sec. Div. (1989) Ind.App., 534 N.E.2d 1122, 1124. In order to establish a prima facie showing in the present situation, IUPUI must demonstrate that McClain: "(1) knowingly violated, (2) a reasonable, and (3) uniformly enforced rule." Id. at 1125.
The rule upon which McClain's termination was based is found in an employee information receipt signed by McClain when he started working for IUPUI. The sheet reads, in relevant part:
I understand that all of my job assignments include the following:
1. I must use the Sign-In Sheet to sign in and sign out for each shift I work.
2. I must always use my time card to clock in when beginning work and clock out when ending/leaving work (including lunch break) for each shift I work.
3. I will sign my time card at the end of each payroll period thereby stating my agreement with the hours reported on the time card.
There is no dispute that McClain knew about the policy. At one point in the hearing before the ALJ, he was asked if he knew about the policy "regarding clocking out your own time card[.]" McClain responded that he did. He was also asked "[d]id you have any idea having some[one] else clock out your time card could cause you to lose your job[.]" Again, McClain responded in the affirmative. Record at 43.
McClain later testified that employees clocking each other out did take place at IUPUI. He even stated that Carrasquillo had witnessed such an incident before. He also acknowledged that clocking out another employee was "not the right thing to do"; however, he pointed out that "supervisors at least give you a warning not to do that if they catch you." Record at 46.
Carrasquillo denied that he had ever previously witnessed one employee clocking out another employee. 1 He said that the incident involving McClain and a subsequent incident (in which the employee involved was fired) were the only experiences he had with employees "falsifying their records or their timecards." Record at 51.
There is little doubt that McClain knew about the rule and that the rule was reasonable. We now turn to whether IUPUI established that the rule in question was uniformly enforced. IUPUI's only witness at the hearing was Carrasquillo, McClain's supervisor. He testified that he knew of no incidents involving one employee clocking out another employee except for the incident in question and one subsequent incident. He also testified that Jones, McClain, and the other two employees involved in the present incident were fired. Finally, when asked if any employee would lose his job if he followed incorrect procedures like McClain, et. al., Carrasquillo responded: Record at 34. Mr. Heid also noted in his final statement that it is standard practice to discharge employees "when there's been falsification of time records." Record at 52.
From the above, the ALJ concluded that this was a uniformly enforced rule. However, so far as the record reflects, this is the first time ever that an employee has been discharged for having someone else clock out his or her time card. An employer may not establish uniform enforcement of a rule merely by reference to simultaneous and subsequent events. 2 Therefore, any time an employer disciplines the first employee for violating a rule, he may not accurately state that the rule is uniformly enforced.
We noted this problem in dicta in Hehr, when we said that Hehr, supra 534 N.E.2d at 1128, n. 6. Hence, we hold here that an employer will not be required to show uniform enforcement for the first violation of a rule. We will, however, hold the employer to a higher standard regarding the rule itself.
The purpose for requiring an employer to uniformly enforce a rule is twofold. First, it provides that the employer does not discriminate in the enforcement of its rule thereby using the rule as a subterfuge for its true reasons behind dismissal. Second, uniform enforcement apprises the employee of the employer's intent regarding the rule so that the employee is aware of the consequences of violating the rule. When an employer first discovers a violation of a rule, it is not the discriminatory enforcement scenario which troubles this court because the employer will be held to that standard from then on. Rather, it is the employee's expectations as to his punishment which presents the problem.
In order to alleviate the above misgivings, we hold that an employer may, in lieu of showing uniform enforcement on its first discovery of a rule violation, establish a uniform policy by a plain and clear written rule which establishes what does and what does not constitute a violation and the punishment which will accompany a violation. If the employer establishes such a policy and adheres to it, an employee caught violating the rule cannot successfully complain that he was caught unaware and thus fired without just cause.
In KBI, Inc. v. Review Bd. (1995) Ind.App., 656 N.E.2d 842, we held that when the provisions...
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