Court of Appeals of Indiana | Memorandum Decision 20A-EX-996 | November 13, 2020 Page 1 of 8

MEMORANDUM DECISION

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

Sheila M. Sullivan

Flynn & Sullivan PC

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

INDIANA DEPARTMENT OF 

WORKFORCE DEVELOPMENT

Curtis T. Hill, Jr.

Attorney General

Frances Barrow

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

S.F.,

Appellant,

v.

Review Board of the Indiana 

Department of Workforce 

Development;

Federal Express Corporation,

Appellees

November 13, 2020

Court of Appeals Case No.

20A-EX-996

Appeal from the Review Board of 

the Department of Workforce 

Development

The Honorable Larry A. Dailey, 

Chairperson

The Honorable Heather D. 

Cummings, Member

Review Board No.

20-R-0369

Vaidik, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-EX-996 | November 13, 2020 Page 2 of 8

Case Summary

[1] S.F. appeals the decision of the Review Board of the Indiana Department of 

Workforce Development affirming the decision of the Administrative Law 

Judge (“ALJ”) that he was discharged for just cause and therefore not entitled 

to unemployment benefits. We reverse and remand.

Facts and Procedural History

[2] S.F. worked as a manager at FedEx from April 15, 1996, to July 6, 2019. He

was discharged on July 6, 2019, because he received “three letters of 

deficiencies within a 12 month period.” Ex. p. 94. 

[3] S.F. filed for unemployment benefits, and a claims investigator with the 

Department of Workforce Development found S.F. “was discharged due to a 

violation of [FedEx’s] policy. [However,] [i]nformation available establishes the 

policy was not uniformly enforced.” Id. at 4; see Ind. Code § 22-4-15-1(d)(2).

The claims investigator concluded S.F. was not discharged for just cause and 

therefore entitled to unemployment benefits.

[4] FedEx appealed, and a hearing was held before an ALJ in October 2019. At the 

hearing, Linda Mallender, Senior Manager of Internal Operations at FedEx,

testified about FedEx’s progressive-discipline policy. Although FedEx didn’t

introduce the written policy into evidence, Mallender testified it consists of 

these six steps: (1) verbal counseling; (2) written counseling; (3) letter of 
Court of Appeals of Indiana | Memorandum Decision 20A-EX-996 | November 13, 2020 Page 3 of 8

concern; (4) warning letter;

1

(5) performance reminder;

2 and (6) termination. 

According to Mallender, an employee is discharged if they receive three

performance reminders or any combination of three warning letters and 

performance reminders in twelve months.

3 Mallender testified S.F. was 

discharged because he received three letters in twelve months: (1) a warning 

letter on April 11, 2019; (2) a performance reminder on June 15; and (3) a 

warning letter on June 19.

[5] S.F. testified about the circumstances of each letter and why he didn’t think the

letters were justified. He also testified FedEx doesn’t discharge “everybody” 

who receives three letters in twelve months. Tr. p. 28. S.F. said he knew a 

manager, C.L., who received “three letters” in twelve months but was allowed 

to “step down” to an hourly position. Id. S.F. testified if C.L. hadn’t stepped

down, he would’ve been discharged. Id. at 29. S.F. said after he received his 

second letter, he asked Mallender if he could step down, but she said he didn’t 

need to do so because he would be “fine.” Id. at 28.

[6] Mallender took the stand again and disputed S.F.’s testimony that he asked her 

about stepping down:

1 A warning letter is for “unacceptable conduct.” Tr. p. 12.

2 A performance reminder is for “not performing their job.” Id.

3 However, Mallender testified an employee can be terminated for receiving just one warning letter

“depending on the severity . . . of the infraction.” Id. at 21. 
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[A]t no time did [S.F.] come and ask me if he could step down, 

because had he had done that, then I would’ve gone back to 

H.R., and my Director, and talked to them. 

Id. at 32. Although Mallender didn’t know “why [C.L.] received his letters, or 

what they were about,” she acknowledged C.L. was still employed at FedEx

and didn’t otherwise dispute S.F.’s claim that managers may step down to an 

hourly position after receiving three letters in twelve months. Id.

[7] On October 29, the ALJ issued a decision reversing the claims investigator’s 

award of unemployment benefits. Ex. pp. 53-56. S.F. appealed this decision to 

the Review Board, and the Review Board, for reasons not relevant here,

remanded the case for the ALJ to “rewrite her decision” and hold a hearing if 

necessary. Id. at 61.

[8] The ALJ conducted a second hearing in February 2020. S.F. appeared by 

counsel. Because S.F. was now represented by counsel, FedEx declined to 

participate. See Tr. pp. 36-41. S.F. testified that just because an employee 

receives three letters in twelve months doesn’t mean they are “automatically” 

discharged. Id. at 44. S.F. again discussed C.L., who was “going to be let go, 

[but FedEx] allowed him to step down into an hourly job.” Id. S.F. said other 

managers were allowed to step down, but he couldn’t remember their names. 

Id. During closing statement, S.F.’s attorney argued FedEx’s policy that an 

employee is discharged after receiving three letters in twelve months was not 

uniformly enforced because FedEx allowed managers to step down to an hourly 

position after receiving three letters in twelve months. Id. at 54. 
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[9] On February 21, the ALJ again issued a decision reversing the claims 

investigator’s award of unemployment benefits. Specifically, the ALJ found that 

“[a]ll employees who had received three letters of deficiencies within a 12

month period have been discharged.” Ex. p. 92. The ALJ then concluded 

FedEx “uniformly enforced the policy,” S.F. knowingly violated the policy 

because he received three letters in twelve months, each letter was justified, and 

therefore S.F. was discharged for just cause. Id. at 93.

[10] S.F. appealed the ALJ’s decision to the Review Board, which adopted the 

ALJ’s findings and conclusions and affirmed the ALJ. Appellant’s App. Vol. II 

p. 32. 

[11] S.F. now appeals.

Discussion and Decision

[12] The Indiana Unemployment Compensation Act provides that any decision of 

the Review Board is conclusive and binding as to all questions of fact. Ind. 

Code § 22-4-17-12(a). Review Board decisions may be challenged as contrary to 

law, in which case we examine the sufficiency of the facts found to sustain the 

decision and the sufficiency of the evidence to sustain the findings of facts. I.C. 

§ 22-4-17-12(f). Under this standard, we review (1) findings of basic fact to 

ensure “substantial evidence” supports those findings, (2) conclusions of law for 

correctness, and (3) inferences or conclusions from basic facts, often called 
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“mixed questions of law and fact,” for reasonableness. Q.D.-A., Inc. v. Ind. Dep’t 

of Workforce Dev., 114 N.E.3d 840, 845 (Ind. 2019).

[13] S.F. contends “[t]he record does not support the [Review] Board’s decision that 

[he] was discharged for just cause.” Appellant’s Br. p. 11. A claimant 

discharged from employment for just cause is ineligible for unemployment 

benefits. I.C. § 22-4-15-1(a). “Discharge for just cause” includes a “knowing 

violation of a reasonable and uniformly enforced rule of an employer, including 

a rule regarding attendance.” Id. at (d)(2). Subsection (d)(2) applies if 

substantial evidence establishes that (1) there was a rule; (2) the rule was 

reasonable; (3) the rule was uniformly enforced; (4) the claimant knew of the 

rule; and (5) the claimant knowingly violated the rule. Co. v. Review Bd. of Ind.

Dep’t of Workforce Dev., 58 N.E.3d 175, 178 (Ind. Ct. App. 2016). “[A]n 

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’” under subsection (d)(2). Reed 

v. Review Bd. of Ind. Dep’t of Workforce Dev., 32 N.E.3d 814, 823 (Ind. Ct. App. 

2015).

[14] S.F. makes two arguments on appeal. First, he argues FedEx’s progressivediscipline policy wasn’t uniformly enforced because other managers were 

allowed to step down to an hourly position after receiving three letters in twelve 

months. Second, he argues that even if the policy was uniformly enforced, he 

didn’t “knowingly violate” it because his three letters weren’t justified.
Court of Appeals of Indiana | Memorandum Decision 20A-EX-996 | November 13, 2020 Page 7 of 8

Appellant’s Br. p. 13. Because we find the first issue dispositive, we don’t

address the second. 

[15] The reason for requiring uniform enforcement of a rule is to (1) give notice to 

employees about what punishment they can reasonably anticipate if they violate 

the rule and (2) protect employees against arbitrary enforcement. Coleman, 905 

N.E.2d at 1020. A uniformly enforced rule is carried out so all persons under 

the same conditions and in the same circumstances are treated alike. Reed, 32 

N.E.3d 814, 823 (Ind. Ct. App. 2015). 

[16] We first note it’s difficult for us to say what FedEx’s progressive-discipline 

policy states. This is because FedEx didn’t introduce its written policy into 

evidence at the hearing. In addition, FedEx didn’t participate in the second 

hearing, when S.F. gave additional testimony about FedEx’s policy.4 Had 

FedEx participated, perhaps the record would be clearer on this point. In any 

event, S.F. claims the ALJ’s finding that “[a]ll employees who had received 

three letters of deficiencies within a 12 month period have been discharged” is 

not supported by substantial evidence. He highlights that other managers, 

including C.L., were allowed to step down to an hourly position after receiving 

three letters in twelve months. At the first hearing, Mallender didn’t dispute 

S.F.’s testimony that C.L. had been allowed to step down; rather, she claimed 

S.F. didn’t ask her. But as S.F. points out on appeal, Mallender’s testimony that 

4

FedEx also has not filed a brief in this case. 
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S.F. didn’t ask her is “further evidence that such an exception to the rule 

existed.”Appellant’s Reply Br. p. 5. And S.F. testified at the second hearing 

that more managers had been allowed to step down, and FedEx wasn’t present

to dispute this claim. We agree with S.F. that substantial evidence doesn’t

support the ALJ’s finding that “all” employees who receive three letters in 

twelve months are discharged, which is the basis of the ALJ’s conclusion that 

FedEx uniformly enforced its policy. Accordingly, the record lacks substantial 

evidence that S.F. was discharged for just cause. We reverse the Review 

Board’s denial of unemployment benefits and remand for further proceedings.

[17] Reversed and remanded.

Bailey, J., and Weissmann, J., concur.