Opinion
No. 93A02-1107-EX-586
12-19-2011
MAGNOLIA HEALTH SYSTEMS, Appellant-Respondent, v. REVIEW BOARD OF THE INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and EMMA J. JOHNSON, Appellees-Petitioners.
ATTORNEY FOR APPELLANT : CAROL M. WYATT Baker & Daniels LLP Indianapolis, Indiana ATTORNEYS FOR APPELLEES : GREGORY F. ZOELLER Attorney General of Indiana KATHY BRADLEY Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
CAROL M. WYATT
Baker & Daniels LLP
Indianapolis, Indiana
ATTORNEYS FOR APPELLEES:
GREGORY F. ZOELLER
Attorney General of Indiana
KATHY BRADLEY
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM REVIEW BOARD OF THE
INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT
Cause No. 11-R-02280
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM , Judge
STATEMENT OF THE CASE
Magnolia Health Systems, Inc. d/b/a Washington Nursing Home ("the Nursing Home") appeals the decision of the Review Board of the Indiana Department of Workforce Development ("Review Board") in favor of Emma Johnson on her claim for unemployment benefits. The Nursing Home raises two issues for our review, which we reorder as follows:
1. Whether the Review Board abused its discretion when it refused to consider additional evidence on appeal submitted by the Nursing Home; and
2. Whether the Review Board's decision that Johnson was discharged without just cause is supported by the evidence.
We affirm.
FACTS AND PROCEDURAL HISTORY1
Johnson applied for unemployment compensation benefits following the Nursing Home's termination of her employment. A deputy of the Indiana Department of Workforce Development issued an initial determination that Johnson was not eligible for unemployment benefits. Johnson appealed, and the Administrative Law Judge ("ALJ") who presided over the appeal concluded that the Nursing Home had not discharged Johnson for just cause and, therefore, she was entitled to unemployment benefits.
The Nursing Home appealed the ALJ's decision to the Review Board. Thereafter, the Review Board adopted and incorporated the ALJ's findings of fact and conclusions of law in favor of Johnson. In particular, the Review Board stated as follows:
FINDINGS OF FACT: The [ALJ] enters the following findings of fact. Claimant was employed by this employer from October of 2010[] to January 28, 2011. At the time of separation the claimant was employed as a CNA [certified nursing assistant]. This employer was the claimant's last separating employer prior to the claimant applying for unemployment benefits. Throughout the claimant's employment the employer had a handbook[,] which prohibited abuse of residents. It defined abuse as demeaning or embarrassing a resident, or saying anything to a resident that might cause him or her to become alarmed. The employer also had a list of other types of violations and generally an employee would be discharged after one verbal or three written warning[s] of any kind in . . . one year, but some policies could result in more serious disciplinary action based upon the seriousness of the offense. The evidence does not establish whether resident abuse was one of those offenses that resulted in a stronger disciplinary action. The evidence also does not establish . . . the employer had any rule against cursing that was not abuse.Appellant's App. at 4-5. This appeal ensued.
On January 28, 2011, the claimant was assisting a resident who had thrown up on himself, apparently while asleep. They were trying to get him up and cleaned up to get him ready for supper and the claimant said something to the [e]ffect that he was really nasty and that they needed to clean him up for supper. Another CNA, who was in the room, thought that the claimant called the resident "a nasty mother fucker." That CNA reported that to the employer and the employer considered that verbal abuse and that was one of the reasons for the claimant's termination. The claimant and another CNA were cleaning that same resident up [in] the shower and he was not being cooperative. The claimant was afraid that he was going to slip and fall and the claimant told him that he needed to stand up so he did not fall on his ass. The other CNA thought the claimant told him that he needed to "stand his crazy ass up" and reported that to the employer. Since both comments that were reported would be verbal abuse the employer terminated the claimant's employment.
CONCLUSIONS OF LAW: The [ALJ] concludes that the employer discharged the claimant, but not for proven just cause within the meaning of Indiana Code [§] 22-4-15-1. The evidence does not establish that the first comment that was actually made by the claimant was verbal abuse because she just told the resident that he had the vomit on him, which was nasty[,] and that they were cleaning him up. That was not demeaning to the resident nor designed to deliberately embarrass the resident, so it was not abuse and it has not been established to have warranted disciplinary action. During the second comment the claimant did curse in the presence of a resident, but again the statement was not directed at the resident. Clearly cursing in the presence of a resident is unprofessional and would warrant
disciplinary action[;] however, the employer normally requires a verbal warning and several written warning[s] before termination and the mere use of a cuss word in the presence of a resident that was not directed at the resident, while offensive, would not be severe enough to warrant termination for the first offense absent a specific rule providing for that, so, the evidence does not establish just cause for the claimant's discharge within the meaning of Indiana Code [§] 22-4-15-1.
DISCUSSION AND DECISION
Issue One: Submission of Evidence to Review Board
The Nursing Home first contends that the Review Board committed reversible error when it denied the Nursing Home's submission of additional evidence on appeal. The Nursing Home acknowledges that whether to accept the additional evidence was a decision left to the Review Board's discretion. See Appellant's Br. at 11. "The rule 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." Smitty's Painting, Inc. v. Review Bd. of Workforce Dev., 908 N.E.2d 244, 247 (Ind. Ct. App. 2009).
The Nursing Home sought to admit two incident reports it had submitted to the State Department of Health in conjunction with this case. According to those incident reports, Johnson orally abused the resident and also handled him "in a rough manner during" the incidents. See Appellant's App. at 52, 54. The Review Board refused to accept those documents.
Here, the Nursing Home first states that the documents "are the State of Indiana['s] investigative findings relating to Johnson's conduct . . . ." Appellant's Br. at 12. That is incorrect and, at best, a mischaracterization of the documents. It is obvious that the documents were created by the Nursing Home, not by an agency of the State. Relatedly, the Nursing Home baldly proclaims that the documents, or the information contained within them, were "not available to it prior to the hearing" before the Review Board. Id. at 11-12. That assertion is unsupported by the evidence. The documents were created by the Nursing Home, and the information contained within them was available to the Nursing home at all times and before its appeal to the Review Board. Accordingly, the Nursing Home cannot demonstrate "a good reason" as to why this evidence was not submitted to the ALJ in the first instance. See Smitty's Painting, 908 N.E.2d at 247.
Further, the Nursing Home declares that the documents demonstrate that Johnson physically abused the resident. But the documents expressly state that, while an allegation of physical abuse was levied against Johnson, no evidence of physical trauma was found on the resident at the time of the allegation. Accordingly, even if this information had been newly discovered, which it was not, the Nursing Home cannot show "good cause" as to why this evidence should have been accepted by the Review Board. See id. Thus, the Nursing Home's arguments on this issue are without merit.
Issue Two: Sufficient Evidence
The Nursing Home next contends that the Review Board's conclusion is not supported by the record. In Stanrail Corp. v. Review Board of the Department of Workforce Development, 735 N.E.2d 1197, 1201-02 (Ind. Ct. App. 2000), trans. denied,this court set out the applicable standard of review:
The Indiana Unemployment Compensation Act [ ] provides that "[a]ny 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 Board's decision is challenged as contrary to law, the reviewing court is limited to a two-part inquiry into 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). Under this standard, we are called upon to review: (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. McClain v. Review Bd. of the Ind. Dep't of Workforce Dev., 693 N.E.2d 1314, 1317 (Ind. 1998).
Review of the Board's findings of basic fact is subject to a "substantial evidence" standard of review. Id. In this analysis, we neither reweigh the evidence nor assess the credibility of witnesses and consider only the evidence most favorable to the Board's findings. General Motors Corp. v. Review Bd. of the Ind. Dep't of Workforce Dev., 671 N.E.2d 493, 496 (Ind. Ct. App. 1996). We will reverse the decision only if there is no substantial evidence to support the Board's findings. KBI, Inc. v. Review Bd. of the Ind. Dep't of Workforce Dev., 656 N.E.2d 842, 846 (Ind. Ct. App. 1995).
The Board's determinations of ultimate facts involve an inference or deduction based upon the findings of basic fact and [are] typically reviewed to ensure that the Board's inference is reasonable. McClain, 693 N.E.2d at 1317-18. We examine the logic of the inference drawn and impose any applicable rule of law. Id. at 1318. Some questions of ultimate fact are within the special competence of the Board, and it is therefore appropriate for us to accord greater deference to the reasonableness of the Board's conclusion. Id. However, as to ultimate facts which are not within the Board's area of expertise, we are more likely to exercise our own judgment. Id.
In Indiana, an unemployed claimant is ineligible for unemployment benefits if she is discharged for "just cause." See Russell v. Review Bd. of Ind. Dep't of Emp't & Training Servs., 586 N.E.2d 942, 948 (Ind. Ct. App. 1992). Just cause includes discharge for a knowing violation of a reasonable and uniformly enforced rule of an employer. Ind. Code § 22-4-15-1(d)(2). An employer's asserted work rule must be reduced to writing and introduced into evidence to enable this court to fairly and reasonably review the determination that an employee was discharged for just cause for the knowing violation of a rule. Stanrail Corp., 735 N.E.2d at 1205. To have knowingly violated an employer's rule, the employee must know of the rule and must know that his conduct violated the rule. Id. at 1203. The Board must make a finding as to whether an employee knew that her conduct violated an employer rule because the text of Indiana Code Section 22-4-15-1(d)(2) requires a "knowing violation" of a rule rather than merely a violation of a known rule. Id.
Here, Johnson argued, the ALJ found, and the Review Board affirmed that Johnson was discharged without just cause. In particular, the ALJ credited Johnson's testimony that, although she had used unprofessional language in the presence of the resident, her language had not been directed at the resident. The ALJ likewise did not credit the Nursing Home's evidence to the contrary. And the ALJ concluded that Johnson's behavior, while "unprofessional," did not "fall within the definition of abuse" under the Nursing Home's policy handbook. Appellant's App. at 5.
On appeal, the Nursing Home presents each of the following arguments in support of its position that the Review Board erred when it affirmed the ALJ's decision: (1) "[t]wo eye[-]witnesses testified that Johnson called the resident 'nasty' and a 'nasty motherfucker' after he had vomited on himself and that she then proceeded to tell him to 'stand his crazy ass up' in the shower"; (2) Johnson's alleged behavior "breached a duty owed to [the Nursing Home] and was independently terminable under Indiana Code [§] 22-4-15-1(d)(9)"; and (3) Johnson's alleged use of "abusive language and cursing at a resident . . . show[s] a deliberate disregard of the standards of behavior that the company has a right to expect of its employees." Appellant's Br. at 5, 8, 9.
The Nursing Home's first and third arguments require this court to credit the Nursing Home's evidence over Johnson's. The ALJ did otherwise and we are not at liberty to revisit that decision. See Stanrail Corp., 735 N.E.2d at 1202 (citing General Motors Corp., 671 N.E.2d at 496). And the Nursing Home's other argument was not presented to either the ALJ or the Review Board. Rather, the Nursing Home's only argument below was that Johnson's alleged conduct constituted terminable oral abuse of a resident. See Transcript at 18. We are a court of review, and we will not entertain arguments raised for the first time on appeal that could have been raised below. See, e.g., Showalter v. Town of Thorntown, 902 N.E.2d 338, 342-43 (Ind. Ct. App. 2009), trans. denied.
In sum, we affirm the Review Board's decision in favor of Johnson. The Review Board did not abuse its discretion when it refused to consider the Nursing Home's additional evidence, and the Review Board's conclusion that the Nursing Home terminated Johnson's employment without just cause is supported by the record.
Affirmed.
ROBB, C.J., concurs.
VAIDIK, J., concurs with separate opinion.
MAGNOLIA HEALTH SYSTEMS, Appellant-Respondent,
vs.
REVIEW BOARD OF THE INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and EMMA J. JOHNSON, Appellees-Petitioners.
No. 93A02-1107-EX-586
VAIDIK, Judge, concurring.
I agree with my colleagues that the Review Board's decision should be affirmed. However, I respectfully disagree with the decision to include the parties' full names in the opinion. Instead, I would use the parties' initials to identify them.
I believe that Indiana Code section 22-4-19-6(b) and Indiana Administrative Rule 9(G)(1)(b)(xviii) mandate confidentiality, requiring us to exclude the parties' names from the opinion. Further, I am not persuaded that Administrative Rule 9(G)(4)(d) permits the use of names. See S.S. LLC v. Review Bd. of the Ind. Dep't of Workforce Dev., 953 N.E.2d 597, 604-07 (Ind. Ct. App. 2011) (Crone, J., concurring).
As a result, while I agree with the substance of the opinion, I disagree with the decision to disclose the parties' full names in the opinion.
1 The Nursing Home's statement of facts in its appellate brief is not consistent with our standard of review, as required by Indiana Appellate Rule 46(A)(6)(b).