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: ATTORNEYS FOR APPELLEE:

JOHN P. REED GREGORY F. ZOELLER

Abrahamson Reed & Bilse Attorney General of Indiana

Hammond, Indiana

STEPHANIE ROTHENBERG

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

ACCESSABILITIES, INC., )

)

Appellant, )

)

vs. ) No. 93A02-1207-EX-551

)

REVIEW BOARD OF THE INDIANA )

DEPARTMENT OF WORKFORCE )

DEVELOPMENT, )

)

Appellee. )

APPEAL FROM THE REVIEW BOARD OF THE DEPARTMENT OF 

WORKFORCE DEVELOPMENT

Case No. 12-R-1869

January 29, 2013

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
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Case Summary

AccessAbilities, Inc., (“Employer”) appeals decision of the Review Board of the 

Indiana Department of Workforce Development (“Review Board”) regarding 

unemployment benefits for Michele Norris. We affirm.

Issue

Employer raises one issue, which we restate as whether the Review Board 

properly determined that Norris was not discharged for just cause.

Facts

Employer provides people with developmental disabilities and the aged with 

residential habilitation, community habilitation, and day services. Norris was employed 

as a developmental instructor with Employer beginning on February 4, 2008. Employer 

has a written policy and procedures manual, which includes a provision that: 

Any employee who receives three disciplinary reports, for 

any reason, in a three month period, will be subject to 

termination following the receipt of another Disciplinary 

Report (the 4th). Each of the Disciplinary Reports, up to the 

final report resulting in termination, will follow the 

procedures for discipline as delineated in this manual.

App. p. 38. 

Norris received a Disciplinary Report on April 7, 2011, for using white-out on 

documentation after having been warned not to use white-out. Norris submitted a 

corrective action plan, acknowledged that she had used white-out, and agreed that she 

would not use white-out on Employer’s forms again.
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On June 8, 2011, Norris was observed raising her voice toward a consumer and 

using a “verbally abusive tone” with the consumer. Tr. p. 29. Employer learned that 

Norris was maintaining possession of the consumer’s debit card and cash. Employer 

filed a report with the State of Indiana and began a state-mandated investigation because 

the allegations involved abuse or exploitation. The allegations of abuse and exploitation 

could not be substantiated in the investigation, but Employer determined that Norris’s 

tone with the consumer was not appropriate. Norris was given another Disciplinary 

Report as a result of the inappropriate verbal interactions with the consumer.

During the investigation of the June 8th incident, Norris was suspended from her 

employment and was not allowed to provide services to Employer’s consumers. Separate 

from her employment, Norris was a representative payee for one of Employer’s 

consumers. Norris sent repeated disrespectful and inappropriate text messages to a 

supervisor, Heather Opperman, regarding the consumer’s care. Employer gave Norris a 

third Disciplinary Report as a result of the text messages. That Disciplinary Report 

informed Norris that “one more Disciplinary Report, in the month of June 2011, will 

result in termination from her position . . . .” App. p. 85. 

Norris was to remain suspended until she attended a New Employee Training class

at 10:00 a.m. on June 29, 2011. However, Norris arrived late to the training. Employer 

contends that Norris arrived at 10:15 a.m., while Norris argues that she arrived at 10:04 

a.m. Norris was given a fourth Disciplinary Report because she was late for the training, 

and her employment was terminated by Employer. 
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Norris filed for unemployment benefits, and on February 27, 2012, a claims 

deputy of the Department of Workforce Development found that Norris was not 

discharged for just cause and was eligible for benefits. Employer appealed the deputy’s 

determination, and a hearing was held before an administrative law judge (“ALJ”). After 

the hearing, the ALJ issued findings of fact and conclusions thereon affirming the claims 

deputy’s determination. The Employer appealed the ALJ’s determination to the Review 

Board, which adopted and incorporated the ALJ’s findings of fact and conclusions 

thereon and affirmed the ALJ’s decision, which provided, in part:

The employer did not present any documentary evidence to 

show that the fourth disciplinary report which resulted in the 

claimant’s discharge had followed the procedures for 

discipline as delineated in the manual. The employer did not 

present any evidence to show that a warning was to be issued 

to an individual who was four minutes late in reporting for a 

training. The other disciplinary reports did not deal with 

attendance issues.

* * * * *

It is concluded that the rule that the employer was enforcing 

in this case was having greater than three disciplinary reports 

in a three month period. The last disciplinary report which 

brought about her discharge involved an alleged tardiness 

violation. It is concluded that the employer did not produce 

documentary evidence to show that the attendance policy was 

properly enforced. This procedure concerning greater than 

three disciplinary reports requires the employer to follow the 

procedures for discipline as delineated in the manual. The 

claimant was determined to be tardy because of arriving four 

minutes late for training. It is concluded that the employer 

did not present any documentary evidence to show that one 

incident of tardiness should result in a discharge.

Further, the employer has admitted that the allegations made 

in the employee disciplinary report concerning the incident of 
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June 8 through June 10, 2011, (Employer’s Exhibit 10), were 

not substantiated. Therefore, the claimant did not accumulate 

more than three valid disciplinary reports during a three 

month period.

It is concluded that the claimant did not violate the 

employer’s rule. It is concluded that the employer failed to 

meet its burden of proof to show that the claimant knowingly 

violated a reasonable and uniformly enforced rule concerning 

greater than three disciplinary reports in a three month period. 

Therefore, it is concluded that the claimant was discharged 

but not for just cause within the meaning and intent of I.C. 

22-4-15-1.

Id. at 5-6. Employer now appeals.

Analysis

Employer argues that the Review Board erred when it found that Norris was 

eligible to receive unemployment benefits. On appeal, we review the Review Board’s (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 Indiana 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, we neither reweigh the evidence nor assess the 

credibility of witnesses and consider only the evidence most favorable to the Review 

Board’s findings. Id. Reversal is warranted only if there is no substantial evidence to 

support the Review Board’s findings. Id. (citing KBI, Inc. v. Review Bd. of Indiana 

Dep’t of Workforce Dev., 656 N.E.2d 842, 846 (Ind. Ct. App. 1995)). Next, the Review 

Board’s determinations of ultimate facts, which involve an inference or deduction based 

upon the findings of basic fact, are generally reviewed to ensure that the Review Board’s 
6

inference is reasonable. Id. at 1317-18. Finally, we review conclusions of law to 

determine whether the Review Board correctly interpreted and applied the law. McHugh 

v. Review Bd. of Indiana Dep’t of Workforce Dev., 842 N.E.2d 436, 440 (Ind. Ct. App. 

2006). 

In Indiana, an employee is ineligible for unemployment benefits if he or she is 

discharged for just cause. Recker v. Review Bd. of Ind. Dep’t of Workforce Dev., 958 

N.E.2d 1136, 1140-41 (Ind. 2011); Ind. Code § 22-4-15-1. Indiana Code Section 22-4-

15-1(d) delineates nine non-exclusive scenarios that can amount to “[d]ischarge for just 

cause,” which include “any breach of duty in connection with work which is reasonably 

owed an employer by an employee.” The breach of duty “ground for just [cause] 

discharge is an amorphous one, without clearly ascertainable limits or definition, and 

with few rules governing its utilization.” Recker, 958 N.E.2d at 1140 (quoting Hehr v. 

Review Bd. of Ind. Emp’t. Sec. Div., 534 N.E.2d 1122, 1126 (Ind. Ct. App. 1989)). 

In considering whether an employer may utilize this provision 

as a basis for justifying its action, the Board should consider 

whether the conduct which is said to have been a breach of a 

duty reasonably owed to the employer is of such a nature that 

a reasonable employee of the employer would understand that 

the conduct in question was a violation of a duty owed the 

employer and that he would be subject to discharge for 

engaging in the activity or behavior. 

Recker, 958 N.E.2d at 1140-41 (quoting Hehr, 534 N.E.2d at 1126). The employer bears 

the burden of establishing a prima facie showing of just cause for termination, and if that 

burden is met, the burden shifts to the employee to introduce competent evidence to rebut 

the employer’s case. Herr, 534 N.E.2d at 1124.
7

Employer argues that the Review Board’s findings are clearly erroneous regarding 

the tardiness incident and associated fourth Disciplinary Report. Employer’s manual 

provided that “[e]ach of the Disciplinary Reports, up to the final report resulting in 

termination, will follow the procedures for discipline as delineated in this manual.” App. 

p. 38. The Review Board concluded that Employer failed to produce documentary 

evidence regarding its attendance policy and the procedures for discipline regarding 

attendance. The portions of the manual that were admitted did not address attendance 

policies and whether a Disciplinary Report was an appropriate response to being fifteen 

minutes late to a training. 

Employer argues that the ALJ improperly limited the admission of the entire 

manual. However, the ALJ emphasized that Employer should move to admit only the 

policies that brought about Norris’s discharge. Employer apparently did not move to 

admit the attendance policy at issue here. The ALJ could not err by failing to admit a 

policy that Employer did not request to have admitted. 

Employer failed to meet its burden of demonstrating that the fourth Disciplinary 

Report was proper. As a result, Norris did not receive four valid Disciplinary Reports in 

a three month period to justify her discharge. Because the Review Board’s findings and 

conclusions regarding the validity of the fourth Disciplinary Report are not clearly

erroneous, we need not address Employer’s arguments regarding the Disciplinary Report 

for the June 8th through June 10th incident. 
8

Conclusion

The Review Board’s findings and conclusions are not clearly erroneous, and the 

Review Board properly concluded that Norris was entitled to unemployment benefits. 

We affirm.

Affirmed.

BAKER, J., and RILEY, J., concur.