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.

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEES: 

ABHISHEK CHAUDHARY GREGORY F. ZOELLER 

ADAM MUELLER Attorney General of Indiana 

Indiana Legal Services Indianapolis, Indiana 

STEPHANIE ROTHENBERG 

 Deputy Attorney General 

 Indianapolis, Indiana 

IN THE 

COURT OF APPEALS OF INDIANA

TONYA J. CLARK ) 

 ) 

Appellant, ) 

 ) 

vs. ) No. 93A02-1108-EX-800 

 ) 

REVIEW BOARD OF THE DEPARTMENT OF ) 

WORKFORCE DEVELOPMENT and ) 

PCI HOLDINGS, LLC, ) 

 ) 

Appellees. ) 

APPEAL FROM THE INDIANA WORKER’S COMPENSATION BOARD 

Steven F. Bier, Chairperson 

Cause No. 11-R-3152 

March 2, 2012 

MEMORANDUM DECISION - NOT FOR PUBLICATION 

FRIEDLANDER, Judge 
2 

 Tonya Clark (Clark) appeals from the decision of the Review Board of the Indiana 

Department of Workforce Development (Review Board) affirming an Administrative Law 

Judge’s (ALJ) denial of unemployment benefits to Clark upon a finding that Clark was 

discharged for good cause. Clark presents one issue for our review: Is the Review Board’s 

decision denying Clark unemployment benefits contrary to law? 

 We affirm. 

 Clark was employed as a lead machine operator from 2002 until April 12, 2011, when 

she was terminated for violating her employer’s anti-harassment policy, which states: 

[Employer] is committed to maintaining a work environment, which is free of 

harassment of any kind including sexual harassment and/or intimidation. We 

pledge to investigate any complaint promptly and thoroughly. Harassment of 

any kind, be it of a sexual, racial, national origin or any other nature, is 

absolutely prohibited. 

* * * 

It is against the policy of [employer] for any employee, whether a manager, 

supervisor, or coworker, to harass another employee. Prohibited harassment 

occurs when verbal or physical conduct that defames or shows hostility toward 

an individual because of his or her race, color, religion, gender, national origin, 

age, or disability . . . creates or is intended to create an intimidating, hostile, or 

offensive environment . . . . 

Harassing conduct includes, but is not limited to . . . [e]pithets, slurs, negative 

stereotyping, or threatening, intimidating, or hostile acts, which relate to race, 

color, religion, gender, national origin, age, or disability. 

Exhibit Volume at 34-35. Clark admitted that she was familiar with her employer’s 

harassment policy. 

 On the morning of April 11, Clark was listening to music while working when a song 

played on her iPod that seemed to promote a racist message and included the racial slur 
3 

“nigger.” Transcript at 27. Clark had never heard the song before as she had asked someone 

else to put music on her iPod because she did not know how to do it herself. Clark discussed 

the lyrics of the song with D.B., a co-worker, and repeated the offensive lyrics to D.B. at 

least four times during the discussion. 

 Later that day, W.H., another co-worker of Clark’s, approached Clark and asked if she 

had called D.B. “the N word” earlier in the day. Id. at 16. Clark denied that she had, but 

explained that she was merely repeating lyrics to a song. While giving her version of events, 

Clark repeated the offensive lyrics three to four times to W.H. W.H. was offended by the use 

of the actual word and asked Clark to instead say “the N word.” Id. 

 W.H. and another employee complained to the plant manager about Clark’s conduct, 

i.e., her repeated use of the word “nigger” albeit in reference to the lyrics of a song, and the 

matter was investigated. The investigation consisted of interviewing W.H., D.B., and others 

who had overheard Clark’s use of the offending language. At least three employees claimed 

that they were personally offended by Clark’s conduct. The following day, Clark was 

terminated from her employment. 

 On May 4, 2011, Clark filed for unemployment benefits, but a claims deputy denied 

her application. Clark appealed this denial, and a hearing was held before an ALJ on June 

13, 2011. Both Clark and her former employer participated in the hearing. The ALJ issued a 

decision on June 14, 2011, finding that Clark had been discharged for just cause and 

therefore was not eligible to receive unemployment benefits. In addition to the facts set out 

above, the ALJ recognized Clark’s testimony as part of its findings of fact: 
4 

According to Claimant’s own testimony, she was listening to music on her 

iPod when a song came of [sic] that shocked her because it seemed to promote 

a racist message. Because Claimant was so surprised that there was song [sic] 

like this out there she wanted to share it with a coworker, [D.B.], who she 

shared music with before. Claimant therefore told the other employee, who 

was African American, that the song said that the signer [sic] put so much 

money into his home but now he can’t get anything out because the ‘niggers’ 

are taking over. The coworker did not seem to be upset or respond negatively 

so the day continued as normal. A little while later however, another 

employee named [W.H.] asked Claimant if she called [D.B.] the ‘n-word’. 

Claimant denied calling [D.B.] anything and instead tried to explain why she 

used the word. In doing so, Claimant repeated the lyrics of the song about 

three more times, each time saying ‘nigger’ as the artist had done. At some 

point [W.H.] told Claimant to stop saying that word and eventually Claimant 

changed to saying ‘n-word’ instead of the actual word. 

This incident was reported to Employer by [W.H.] and another employee who 

overheard Claimant use the racial slur. All parties agreed that Claimant did 

not call anyone that name she just used it to relay the lyrics of a song. 

However, four employees, including [W.H.] who was a party to the hearing, 

reported being offended by hearing Claimant use the word so Employer 

discharged Claimant on April 12, 2011. 

Appellant’s Appendix at 6. The ALJ further acknowledged evidence presented by Clark that 

on other occasions she had been propositioned, called at inappropriate times, that a 

photograph of her had been defaced, and that she had been called offensive names, but that 

no action was taken to punish the offenders. Based on these incidents, Clark maintained that 

the employer’s harassment policy was not uniformly enforced. 

 The ALJ ultimately concluded that the employer had met its burden in establishing 

that Clark knowingly1

 violated a uniformly enforced2 rule and was therefore terminated for 

 

1

 The ALJ’s finding in this regard was based upon the fact that CLARK had signed a document indicating 

that she had read the employer’s handbook and intended to comply with the terms of the harassment policy. 

2 The ALJ specifically found: “Claimant failed to provide any evidence that another employee in the same 

position as herself uttered the same racial slur as she did and was not discharge [sic] as she was.” Appellant’s 

Appendix at 6. 
5 

just cause. The Review Board adopted and incorporated the ALJ’s findings and conclusions 

with an addendum that stated in pertinent part: 

The Claimant knowingly violated the rule when she continued to repeat the 

word “nigger” after [W.H.] told her that she was offended by the word and 

asked her to stop saying it. 

[B.E.], Financial Controller and Human Resources oversight, testified that 

complaints of harassment are investigated. The Employer conducts an 

investigation by interviewing witnesses to determine what was said and the 

context. Disciplinary decisions are made on a case-by-case basis after the 

investigation is concluded. The disciplinary decision is not always discharge. 

While he confirmed that words such as “nasty ho,” “dyke,” and “bitch” could 

be offensive and could be in violation of the policy, he had not been involved 

in investigations where complaints of those words being used had been 

alleged. The Review Board finds that the Employer’s harassment policy is 

uniformly enforced in that complaints are investigated and violations are 

disciplined. 

Appellant’s Appendix at 13-14.3

 Clark filed her notice of appeal on August 5, 2011. Clark 

argues that the Review Board erred in concluding that her employer discharged her for just 

cause, thereby rendering her ineligible for unemployment benefits. 

 We begin by noting that the Review Board reviews ALJ decisions for errors of fact, 

law, or procedure based on the record before the ALJ. Ind. Code Ann. § 22-4-17-5(e) (West, 

Westlaw current through 2011 1st Regular Sess.). The Review Board may “affirm, modify, 

set aside, remand, or reverse the findings, conclusions, or orders of an administrative law 

judge.” Id. Under Indiana’s Unemployment Compensation Act (the Act), “[a]ny decision of 

the review board shall be conclusive and binding as to all questions of fact.” I.C. § 22-4-17-

12(a) (West, Westlaw current through 2011 1st Regular Sess.). Review Board decisions 

 

3 The Review Board did not hold a hearing or consider additional evidence. 
6 

may, however, be challenged as contrary to law, in which case a court on 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. I.C. § 22-4-17-12(f). Under 

this standard, courts are called upon to review (1) determinations of specific or “basic” 

underlying facts, (2) conclusions or inferences from those facts, sometimes called “ultimate 

facts,” and (3) conclusions thereon. McClain v. Review Bd. of Ind. Dep’t of Workforce Dev.,

693 N.E.2d 1314, 1317 (Ind. 1998). 

The Review Board’s findings of basic fact are subject to a “substantial evidence” 

standard of review. Id. In this analysis the appellate court neither reweighs the evidence nor 

assesses the credibility of witnesses and considers only the evidence most favorable to the 

Review Board’s findings. McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693 

N.E.2d 1314. The Review Board’s conclusions as to ultimate facts involve an inference or 

deduction based on the findings of basic fact. Id. As such, they are typically reviewed to 

ensure that the Review Board’s inference is “reasonable” or “reasonable in light of [the 

Review Board’s] findings.” Id. at 1318. 

Where the matter lies within the particular expertise of the administrative agency, we 

afford the finding a greater level of deference. McClain v. Review Bd. of Indiana Dep’t of 

Workforce Dev., 693 N.E.2d 1314. Where the matter does not lie within the particular 

expertise of the agency, however, “the reviewing court is more likely to exercise its own 

judgment.” Id. at 1318. We are not bound by the Review Board’s conclusions of law, 

though “[a]n interpretation of a statute by an administrative agency charged with the duty of 

enforcing the statute is entitled to great weight, unless this interpretation would be 
7 

inconsistent with the statute itself.” Chrysler Grp., LLC v. Review Bd. of Ind. Dep’t of 

Workforce Dev., 960 N.E.2d 118 (Ind. 2012). 

Clark argues that the Review Board’s decision is contrary to law. The employer bears 

the burden of establishing that an employee has been terminated for just cause. Owen Cnty. 

v. Ind. Dep’t of Workforce Dev., 861 N.E.2d 1282 (Ind Ct. App. 2007). To establish a prima 

facie case for violation of a rule under I.C. § 22-4-15-1(d)(2) (West, Westlaw current through 

2011 1st Regular Sess.), the employer must show that the claimant (1) knowingly violated; 

(2) a reasonable;4

 and (3) uniformly enforced rule. Id. Once the employer has met his 

burden, the claimant must then come forward with evidence to rebut the employer’s prima 

facie showing. Id. 

Clark first challenges the Review Board’s finding that she knowingly violated the 

employer’s rule against harassment. Clark contends that she was discharged pursuant to an 

unwritten stipulation of the harassment policy that someone had to be offended by her 

conduct. 

To have “knowingly” violated an employer’s rule, the employee must: (1) know of 

the rule; and (2) know her conduct violated the rule. Stanrail Corp. v. Review Bd. of Dept. of 

Workforce Dev., 735 N.E.2d 1197 (Ind. Ct. App. 2000), trans. denied. The Review Board 

must make a finding as to whether an employee knew that his conduct violated an employer 

rule because the text of I.C. § 22-4-15-1(d)(2) requires a “knowing violation” of a rule rather 

than merely a violation of a known rule. Id. Furthermore, we have previously held that 

 

4

 Clark does not challenge the reasonableness of the employer’s harassment policy. 
8 

misconduct which will justify discharge of an employee so as to make the employee 

ineligible for unemployment compensation is the “wanton or willful disregard of the 

employer’s interests, a deliberate violation of the employer’s rule, or wrongful intent.” 

Merkle v. Review Bd. of Ind. Emp’t Sec. Div., 120 Ind.App. 108, 90 N.E.2d 524, 526 (1950). 

The employer presented evidence that all employees are presented with the employee 

handbook and that the first four pages of the handbook set forth the harassment policy for the 

company. Further, Clark admitted that she was aware of the harassment policy. Clark also 

testified that when she heard the offensive lyrics she was “shocked” and that she felt the song 

was “nasty.” Transcript at 27. Clark agreed that the song could be characterized as “racist” 

and admitted that she was offended by it. Id. Despite her own recognition of the 

inappropriateness of the lyrics, Clark repeatedly attempted to share her disbelief of the 

content of the song by repeating the lyrics, including the use of the word “nigger”, to a coworker several times. When later confronted about her use of the offensive term, Clark, in 

attempting to explain the lyrics to the song, again used the actual offending language several 

times. The co-worker explicitly told Clark that her use of that term was offensive and asked 

Clark to say “the n word” instead of the actual word, and yet, Clark continued to say the 

actual word. Transcript at 16. Clearly, Clark’s conduct created an intimidating, hostile, or 

offensive environment. Clark’s own testimony proves that she was well aware of the 

offensive nature of lyrics, but nonetheless, she continued to repeat them out loud. This 

evidence supports the Review Board’s determination that Clark knowingly violated the 

employer’s harassment policy. 
9 

 Clark next argues that the evidence does not support the Review Board’s 

determination that the employer’s harassment policy was uniformly enforced. Our Supreme 

Court has explained our review of such a determination as follows: 

The standard of review of the Board’s decision depends in the first instance on 

whether uniform enforcement is a question of basic fact, ultimate fact, or a 

question of law. In order to evaluate uniformity one must first define the class 

of persons against whom uniformity is measured. This is usually a rule of law 

but it may be informed by appropriate findings as to employer practices, etc. 

McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d at 1319. Once the class 

is defined, the question of whether the employer treats the persons within the class 

consistently is a basic factual inquiry and is reviewed subject to the substantial evidence test 

and for conformity to law. McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693 

N.E.2d 1314. The question to be addressed is whether the enforcement “‘is carried out in 

such a way that all persons under the same conditions and in the same circumstances are 

treated alike.’” McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d at 1319 

(quoting General Motors Corp. v. Review Bd. of the Ind. Dep’t of Workforce Dev., 671 

N.E.2d 493, 498 (Ind. Ct. App. 1996)). 

Clark first argues that the Review Board erroneously defined the class of persons 

against whom uniformity is measured as employees in the same position as Clark who uttered 

the same racial slur as she did. Clark asserts that the harassment policy as set forth in the 

employee handbook should apply to “any employee, whether a manager, supervisor, or 

coworker” and to all types of harassment including “race, color, religion, gender, national 

origin, age, or disability.” Appellant’s Appendix at 7. Under this class definition, Clark 

maintains that the employer did not uniformly enforce the harassment policy and specifically 
10 

directs us to testimony of a witness on her behalf in which the witness claimed to have been 

harassed while working for Clark’s employer, but claims that nothing was ever done about it. 

 We agree with Clark that under the harassment policy, the class is any employee that 

engages in any type of harassing behavior that creates or is intended to create an intimidating, 

hostile, or offensive environment. Testimony from the Plant Manager, the Financial 

Controller/Human Resources Manager, and W.H., an employee for over fifteen years, 

demonstrates that the harassment policy is effective as against all employees and that the 

employer takes seriously its role of investigating complaints. 

 The Plant Manager testified that Clark was discharged for violating the harassment 

policy of the employer and that he was unaware of any instance where an employee had 

violated the harassment policy. The Financial Controller/Human Resources Manager also 

testified that he did not know of any employee that had violated the policy and been 

terminated for it. In any event, the Financial Controller/Human Resources Manager 

explained that any type of derogatory word harassment would be investigated on a “case by 

case basis” and that the use of the derogatory words would be examined in light of the 

circumstances of each case. Transcript at 20. The Financial Controller/Human Resources 

Manager indicated that an investigation would be launched no matter what type of derogatory 

term (e.g., the N word, dyke, or nasty ho) was used. The Financial Controller/Human 

Resources Manager was not aware of any incidents in which such other terms may have been 

used, nor were any complaints filed informing him of such incidents. 

 Further, even though this was the first incident of an employee using the term “nigger” 

in the workplace, such does not mean the harassment policy was not uniformly enforced. “A 
11 

policy that has not been the basis for termination of an employee in the past may nonetheless 

be ‘uniformly enforced’ even if only one person is the subject of an enforcement action, so 

long as the purposes underlying uniform enforcement are met.” McClain v. Review Bd. of 

Ind. Dep’t of Workforce Dev., 693 N.E.2d at 1319. Here, even though this is the first known 

violation, there is substantial evidence in the record to support the Review Board’s 

conclusion that the employer’s harassment policy is uniformly enforced, that Clark violated 

the employer’s harassment policy, and that Clark was terminated for just cause. 

 To rebut the employer’s prima facie showing, Clark presented her own testimony and 

testimony of a former co-worker that they had both made complaints about harassing 

behavior directed at each of them individually and both claimed that the employer took no 

action and their complaints were never investigated. There was no written documentation, 

however, to show that they had made complaints to the employer. Financial 

Controller/Human Resources Manager testified that he was working during the time that 

Clark’s witness was employed and that he never received any complaints from her or any 

reports made on her behalf. With regard to Clark, the only evidence was her testimony and a 

defaced picture of her. Financial Controller/Human Resources Manager stated that if he had 

been made aware of what Clark now claims was harassment directed toward her, he would 

have investigated such matter as he did in the instant case and would have taken appropriate 

action as the circumstances may have warranted. 

 The ALJ acknowledged Clark’s testimony regarding other incidents of harassment she 

claims were never investigated. The Review Board adopted the ALJ’s findings and 

conclusions and included an addendum in which the Review Board stated: 
12 

While he [Financial Controller/Human Resources Manager] confirmed that 

words such as “nasty ho,” “dyke,” and “bitch” could be offensive and could be 

in violation of the policy, he had not been involved in investigations where 

complaints of those words being used had been alleged. The Review Board 

finds that the Employer’s harassment policy is uniformly enforced in that 

complaints are investigated and violations are disciplined. 

Appellant’s Appendix at 14. The Review Board’s addendum clearly shows the Review Board 

found that the harassment Clark claims went uninvestigated was a product of non-reporting, 

not a result of the employer’s failure to investigate. Implicit in the Review Board’s 

conclusion is that the employer would have investigated any and all alleged violations of the 

harassment policy and meted out discipline accordingly if the alleged violations had been 

reported. The Review Board’s determination is consistent with its conclusion that the 

employer’s harassment policy is uniformly enforced in that complaints are investigated and 

violations are disciplined. 

 The Review Board’s determination that Clark was terminated for just cause and 

therefore is ineligible to receive unemployment benefits is not contrary to law. 

 Judgment affirmed. 

RILEY, J., and MATHIAS, J., concur.