*1 BECKINGHAM, M. Appellant- Lisa
Petitioner,
v. BOARD
REVIEW OF the INDIANA
DEPARTMENT OF WORKFORCE Corpo
DEVELOPMENT and Cenveo
ration, Appellees-Respondents.
No. 93A02-0808-EX-771. Appeals
Court of of Indiana.
March 2009. July
Transfer Granted *2 IN, Withers, At- Indianapolis, L.
Karen torney Appellant. Zoeller, Attorney General F.
Grеgory At- Barrow, Deputy Indiana, H. Frances IN, Attor- General, Indianapolis, torney Board. Appellee Review neys for OPINION HOFFMAN, Judge. Senior Beckingham M. Lisa Plaintiff-Appellant Unemployment of the the decision appeals ("the Board") de- Insurance Review unemployment nying application We affirm. benefits. for our two issues
Beckingham presents as: review, we restate which Beckingham was I. Whether dis- just cause. charged Beckingham's Whether II. been reviewed have should 22-4-15-1(d)(2). than Ind.Code employed by Cenveo Beckingham was to Janu- August from Corporаtion discharged for 30, 2008, she was when ary policy. attendance of Cenveo's violation unem- filed for Thereafter, Beckingham 2008, a claims April benefits. ployment had determined deputy due to her just cause been terminated poli- employer's of the violation cy. Beckingham appealed decision, She had occurrences days. 3% On and, June an Administrative the claimant 1/9/08 received a final writ- ("ALJ") Judge Law held evidentiary ten warning for three occurrences within *3 hearing. Following the hearing, the ALJ days and occurrences 8% within 6 findings entered of fact and conclusions of months. She was §/8/07; late ill because law affirming the decision of the claims of a 9/14; child on 9/28; late left early deputy, as follows: personal unscheduled 10/2/07; on left (Ad- FINDINGS OF FACT: The ALJ early child 10/3/07; sick on ill because of ministrative Law Judge) finds the claim- various illnesses of child 11/28, on 12/4, ant worked for this employer from 12/27, and On 1/4/07. was 1/30/08 through as a purchasing 8/14/97 1/80/08 terminated for 14 occurrences. % agent at per hour. $138.26 She was dis- The claimant asserts the defense firstly, charged for violation of the employer's that she is a single mother, and there- attendаnce policy. fore a special exception should be made The ALJ finds the employer has an for her and the policy should not apply excuse-based policy. provides It to her. Her second defense is that al- termination will occur on the fourth oc- though there is a policy, she feels that currence of unexcused absence in a 12- the excessive absence for good excuse month period. It provides also that an section should apply rather than pol- the employee may be terminated for exces- icy section of the act. She further feels sive excused absences or tardies within a that Ms. Foster missed more work than 12-month period. It in particular states her. Claimant is not a custodian of ree- "Disciplinary action for excessive ex- ords and did not subpoena Ms. Foster's cused absences and tardiness will be records, yet claims her ver- taken based upon an employee's total bal statement that Ms. Foster was ab- occurrences of absences and tardiness sent her, more than should establish
within any consecutive period. 12-month lack of uniformity of enforcement. Each excused absence and tardy will constitute a separate occurrence ... 13 Employer's response is that they have = any occurrences in 9-12 month period many single mothers, they are able Termination." Claimant had received get to work. They try did to work policies The 12/2/03 3/22/06. with claimant, and she should have ALJ finds policies known to the been terminated at 13 occurrences, but claimant, reasonable, and uniformly en- was actually terminated at ocсur- 14% forced. rences. The claimant received a written verbal CONCLUSIONS OF LAW: In defining warning on for three 3/5/07 occurrences just cause, the statute in- within days. She had to leave early cludes the knowing violation of a reason- on February 13th because the babysitter able and uniformly enforced rule of an sick; was ill herself on February employer. 22-4-1541(d0(@Q) IC 15th; and had no sitter on February 28rd. Claimant received a first To written find that a discharge was for just warning on October 2007 for illness of cause section, it must be 9/14, child on being late due to a found that there rule, was a the rule wаs flat 9/28; tire on for leaving early for reasonable, the rule was uniformly en- unscheduled personal 10/2, time on forced, the claimant rule, knew of the leaving early for a sick child on and the 10/3. claimant knowingly violated the sufficiency of court considers "ing (1981), Review v. Barnett
rule. the decision sustain found to facts Ind.App., to sustain the evidence sufficiency of has concludes ALJ The 224-17 facts. findings by prepon- proof its burden sustained ex reviewing court 12(f). Accordingly, ALJ con- The evidence. of the derance or (1) specific determinations claim- amines: known policy is cludes (2) facts; conclusions underlying uniformly enforced. basic reasonable, and ant, facts, or determina those from inferences claimant's conclude cannot ALJ The (8) conclusions facts; and ultimate tions any substantia- without assertion verbal *4 Bd. Courier, Review Inc. v. lack of any NOW of law. establishes support tion to Develop Dept. Indiana ALJ The enforcement. uniformity of of Workforce of (Ind.Ct.App. 384, 887 ment, N.E.2d is 871 the that conclude cannot 2007). for exception special make to required ap- claimant, policy their should findings Board's the review We status "special her of her because ply to evidence" "substantial under a fact of basic con- ALJ The single mother." aas v. Re Quakenbush of review. standard compe- provided Foster that Ms. cludes Devel Dept. Ind. Bd. view Workforce of of her deals with that she evidence tent (Ind.Ct. 1051, 1053 N.E.2d 891 opment, her on issues and childcare neither we analysis, In this App.2008). her work than on hour lunch eredi- the assess nor the evidence reweigh the do could the claimant felt time. She only witnesses, consider and we bility of therеfore, held, It is thing. same the Board's to favorable most evidence cause just for discharged claimant only if is warranted Id. Reversal findings. 22-4-15-1. under IC support to evidence no substantial is there af- is determination The DECISION: Next, we review Id. findings. the Board's 22-4-15-1 of IC penalties The firmed. determi the Board's of the reasonableness are rights benefit The claimant's apply. in facts These facts. ultimate of nation ending effective week suspended upon based or deduction inference volve until suspended so and remain 2/2/2008 fact. basic of findings Board's weekly bеn- has earned claimant Dept. Indiana Bd. v. Review McHugh of of eight of in each greater amount or efit 842 Development, is Workforce amount (8) benefit Maximum weeks. conclu Finally, (Ind.Ct.App.2006). by 25%. reduced determine reviewed law are of sions at 3-4. Appendix
Appellant's interpreted correctly the Board whether ap- filed subsequently Beckingham Id. the law. applied Board. to the decision the ALJ's of peal without the case examined Board The that contends Beckingham decision the ALJ's affirmed hearing and that Cenveo determined improperly Board decision from this It is July A claimant just cause. her for terminated appeals. now that if benefits unemployment for ineligible is Ind.Code cause. just discharged Com Unemployment Indiana The 22-4-15-1(a). determined Board The any decision provides Act pensation just discharged Beckingham was binding conclusive shall be § 22-4-15- Ind.Code pursuant cause § 22- Ind.Code of fact. questions to all as the stat 1(d)(2). this subsection Under decision 4-17-12(a). Board's When as defined cause is just ute, discharge law, review- contrary to as challenged the "knowing violation of a ® rеasonable and Disaster directly affecting the employ- uniformly enforced rule of an employer." ee or his/her immediate family (Le., § 22-4-15-1(d)(2). Ind.Code fire, flood, tornado) The employ er bears the initial burden of establishing ®Child care emergencies or other family that an employee has been terminated for emergencies just cause. Owen County ex rel. Owen County Bd. Cenveo Com'rs v. Attendance Indiana Dept. Policy, Appellant's App. at Development, 48. The policy provides also Workforce employees may up incur (Ind.Ct.App.2007). 13 occurrences To establish prima facie case for excused violation of an employ tardies and/or over a 12-month period er rule under before being terminated 22-4-15-1(d)(@2), employer must show that excessive absenteeism. claimant: Cenveo At- (1) knowingly (2) violated; tendance Policy, a reasonable; Appellant's App. at 46. (8) addition, uniformly Cenveo's policy provides that enforced rule. Id. Once the employer has met excused burden, its absence which occurs over con- *5 claimant must present secutive days evidence to will rebut be counted as a single the employer's prima facie occurrence. showing. Id. Cenveo Attendance Policy, Appellant's App. at 46.
In challenging her discharge for just cause, Beckingham specifically asserts that Cenveo's attendance records show that Cenveo's attendance policy is not reason- Beckingham left early on February 13, able and not uniformly enforced. We will 2007 because her babysitter sick; was address each contention in turn. was sick on February 15; and she had nо
Here, babysitter the ALJ on February 28, 2007. Beck- admitted into evidence a copy of a portion of ingham Cenveo's employee received a verbal warning written/ handbook containing its on 5, attendance March policy, 2007 for having 3 occurrences as well as Beckingham's (80) attendance within record thirty days. On August 3, and the paperwork showing 2007, the progres- Beckingham was late to work; on sion of discipline. Cenveo's September 14, attendance Beckingham did not go to policy classifies absences as either "ex- work due to a sick child; she was late due cused" or "unexcused" and lists a follow- flat tire on September 28; she left ing as "excused" absences: work early for personal unscheduled time * Hospital confinement on 2, October 2007; and she left early due
® to a sick child on Injury job 3, October 2007. On 5, October 2007, Beckingham e received a Jury duty written warning for accumulating oc- © 3% absence authorized in (80) currences in thirty days. Thereafter, writing, in advance Beckingham did not go to work due to a e Military obligations sick child on 28, November 2007, Decem- ®Bereavement leave as authorized by ber December and January 4, 2008. this handbook On January 9, 2008, Beckingham received ®Serious illness or injury of a member a final written warning for 3 occurrences of the employee's immediate family within days 30 and occurrences 8% within @Personal leave of absence authorized 6 months. She was terminated for 14% in writing, in advance occurrences on January 30, 2008 after not ®Personal illness or injury going to work on January 2008 due to a ®Approved FMLA absences sick child. 482 toward included to be illness by caused at that Cenveo's argues has been employee an at which it benchmark because unreasonable is policy
tendance discharged. will be and absent excessively of regardless her to subjected al- program attendance Jeffboat, As was In her absences. reason of days nine up to employee an panel a recently by lowed most out pointed contract per absence personal Review v. unverified in Giovanoni this Court tenth theOn consequence. year without Department Indiana Workforce absence, repri- days through twеlfth (2009), there 487 N.E.2d 900 Development, insti- was rea procedure regarding suspension and in this Court mand split ais absence poli day of thirteenth tuted, "no-fault" sonableness day of defining House Heritage v. discharge. Love Compare resulted cies. "out- (Ind. that two stated absence, program Center, Convalescent sub leaving rule which work (holding issued Ct.App.1983) passes, of-gate" excused, as day of discharge for of one equivalent employee jects early, were un se absences, per ab- reason as unexcused employee's absence, well However, River v. James reasonable), irrelevant. Parkison generally sence (Ind.Ct.App. an illness Corporation, verify could employee when sub rule that 1996) (holding that consec- more three or causing absence for both termination employees jects "Illness became absence days, the utive unrea unexcused excused thir- toward count and did Leave" § 224-15- sonable limitation. absence day personal teen v. Review Inc. 1(d)(2)), Jeffboat, with *6 pres- the in policy attendance Cenveo's Security Employment Indiana Board of in that found similar is case ent Jeffboat. (Ind.Ct.App. Division, 377 464 N.E.2d employees that provides policy Cenveo's of Love dictum 1984) the broad (rejecting excused of 13 occurrences up to may incur per not is plan attendance holding that and a 12-month over tardies absences and/or some it allows because unreasonable se for exces- terminated being before period to dis to lead illness by caused absences addition, Cenveo's In absenteeism. sive the v. Review Board and Beene charge), of absence excused an that provides policy and Employment Department Indiana of days bewill consecutive over occurs which (Ind.Ct. Services, 842 N.E.2d 528 Training defin- In occurrence. single as a counted attend employer's (holding that App.1988) states policy occurrence, Cenveo's ing ab excused permitted which policy, ance 1 hour in clocks employee if an that toward counted to be for illnesses sences one occurrence. as counted late, it is more for dis needed of absences total number 4 from any time in clocks employee If an not unreason was employee, charge of as late, counted it is 1 hour up to minutes Giovanoni, this Court of able). panel a In Pol- Attendance Cenveo an occurrence. %in forth thinking set line of the followed at 44-45. App. Appellant's icy, employer's that the determined and Love caselaw, be unreasonable was relevant policy the attendance Having examined in to termination forth employees reasoning set exposed it cause the that believe we employee's the for rationale the reason of the better regardless is Beene and Jeffboat an of reasonableness the determining absence. See policy. attendance employer's Jeff determined it Beene was and In Jeffboat Beene, 380; also see at boat, N.E.2d not 464 is plan attendance employer's that pro Jeffboat's Like at al- it simply because se unreasonable per in- certain protected policy Cenveo's gram, absences excused and/or lows both de- employee resources human and a the em- and both of terests super- Beckingham's allegation. this nied policy employer, For ployees. that, manager, as a testified further abuses visor who employee against protects hour lunch longer take able "I1." was she frequently being by policy More- arrangements. by different make employees and safeguards turn, policy offered similar she ill- that long-term over, testified latitude some providing her to use Beckingham occurrences arrangements to 13 up provides and nesses ALJ and the gradu- The sоught, with hour. is lunch termination before supervisor oc- as the both testimony action disciplinary found steps of ated credi- The employee number. in resources human increase currences at- the credibili- Cenveo's reconsider that not ble, do and we determination Board's sup- the basic was review reasonable in our was policy ty of witnesses tendance determination Board's The evidence. id. See by substantial facts. ported enforced was uniformly was policy that the Beckingham's Next, examine we Fur- evidence. by substantiаl supported is policy Cenveo's that claim at- that Cenveo's ther, having determined en uniformly "A uniformly enforced. reasonable both was policy tendance in out carried one rule is forced conclude enforced, therefore we uniformly under persons all way such just discharged Beckingham circum same in the conditions same § 22-4-15- Ind.Code pursuant cause Corp. Stanrail alike." treated are stances 1(d)(2). Devel Dept. Bd. v. Review Workforce by raised final issue (Ind.Ct.App.2000), The second 1197, 1203 opment, whether presented As denied. ns. tra Ind.Cоde reviewed been inquiry have should enforcement case, uniform Ind.Code Accordingly, than fact. basic question ais § 22-4-15- 22-4-15-1(d)(2). for sub decision Board's review we 1(d) Quakenbush, provides: See evidence. stantial *7 in 1053. as used at N.E.2d cause" just for "Discharge not but include to defined section testified supervisor Beckingham's Here, to: limited be only twice, recorded she onee, maybe that by an (1) initiated occur- than two separation occurrence, one oc- appli- Beckingham employment when rences, against falsification for through сontinuing employment to obtain the same cation for were currences children. Beckingham's one subterfuge: illness at App. Appellant's Hearing, Transcript reasonable of a (2) knowing violation ac- these that argues Beckingham 18-19. em- rule of uniformly enforced to believe her led supervisor by her tions ployer; exception or modification special that attendance, if the unsatisfactory (3) When her situation. made for being was good cause show cannot individual attend- Cenveo's modifying about asked tardiness; or testi- suрervisor Beckingham's policy, ance property employer's (4) damaging policy. modify the they do fied negligence; through willful at App. Appellant's Hearing, Transcript instructions; obey (5) refusing to al- Beckingham although Additionally, influ- under (6) to work reporting more had missed supervisor her leged consuming or drugs of alcohol ence had, supervisor than she time work alcohol or drugs on employer's premises Brown stated that statute, as it is now during working hours; written, does not require attendance issues (7) conduct endangering safety of self or to be addrеssed under § Ind.Code 22-4- coworkers; or 15-1(d)(8). Rather, the statute is written (8) jail incarceration in following the disjunctive convic- such that we may ana tion of a misdemeanor lyze or felony by attendance issue under section court of competent jurisdiction or for (d)(2) (d)(8). or section Moreover, Judge any breach of duty in connection with Brown noted that it is up to legislature work reasonably which is owed an em- to change the wording of the statute if it ployer by an employee. (d)(2) determines that Section should not apply (Emphasis supplied). Beсkingham issues. See asserts Giovano ni, discharge should have been re- (Brown, J., dissenting). Thus, viewed pursuant § Ind.Code Board's 22-4-15- determination that 1(d)(8), and, was discharged that had her just cause been so reviewed, she could pursuant have good shown Ind.Code proper. cause for her absences because they were "excused" under Cenveo's policy. There- upon Based the foregoing discussion and fore, continues, she would have been authorities, we conclude that Beckingham entitled to unemployment compensation. was dischargеd just cause under Ind. mayWe not interpret a statute § 22-4-15-1(d)(2) Code and that, based that is clear and unambiguous on its face. upon the language of statute, the at- v. Sellersburg Council, Town Schafer tendance issue in this case was not re- 215 (Ind.Ct.App.1999), quired trams. to be reviewed under Ind.Code Rather, denied. the words of the statute § 22-4-15-1(d)(8). are to be given their plain, ordinary and Affirmed. usual meaning. Id. 22-4-15- 1(d) is written in disjunctive. Accord DARDEN, J., concurs. ingly, discharge just cause can be es tablished any of the eight subsec NAJAM, J., dissents with separate tions. point This was addressed in Beene opinion. when the same argument that Beckingham NAJAM, Judge, presents dissenting. here presented by Beene. A panel of this Court noted: I respectfully dissent. The majority *8 The [] conclusion that Beene could be holds that "the reasoning set forth in Jeff- discharged and denied benefits for vio- boat and Beene is the better rationale for
lating the Employer's uniformly en- determining the reasonableness of an em-
forced, reasonable attendance policy ob- ployer's
attendance policy," and that
viates the need to determine whether
Indiana Cоde
22-4-15-1(d)
Section
"is
there
good
cause for
poor
at- written in
disjunctive
the
such that we
tendance under
IC
as may analyze an attendance issue under
that statute lists several disjunctive defi-
(d)(2)
section
(d)(8)"
or section
Op. at
nitions
just cause,
of
any one of which 482, 484. In
Beene,
and
this court
Jeffboat
would support the discharge and denial
analyzed a claimant's entitlement to unem-
of benefits.
ployment
benefits
under
(d)(@2),
Section
Beene,
485 if the em benefits unemployment from Review Beene v. See issues. sence-related We good cause. show cannot ployee & Train Employment Dep't Ind. Bd. of of employee the protects that Love believe (Ind.Ct.App. Servs., N.E.2d 842 528 ing good where of benefits from a denial Em Ind. Bd. 1988); v. Review of Jeffboat tardiness, and (Ind. for absences cause exists Div., N.E.2d 377 See. ployment employer's not restrict does yet Heritage Love v. but see Ct.App.1984); who vio employee an terminate right to Ctr., 463 NE.2d House Convalescent contrast, In rule. "(al аttendance lates its (holding that (Ind.Ct.App.1983) employee an expose Beene and to dis employee an subjects rule which Jeffboat of bene a denial unexcused{,] and disqualification to exeused, as as well for charge is absent employee even where fits purposes for unreasonable" absences[ ] and suffers good cause tardy with or (d)(2)). agree with I cannot Section of fault of his own. through no termination I to reverse vote holdings, majority's of inconsistent that the risk think Beck- We of determination Board's the Review due discharges if be reduced results will and remand for benefits claim ingham's attendance, whether unsatisfactory to claim it consider her that instructions with rule, are to an attendance pursuant (d)(8). Section under (d)(8) as was under Section analyzed ma- reasoning of follow I would Thus, agree Judge with we done in Love. There, this opinion Giovaronmi. jority for unsatisfac Mathias that termination follows: held as court analyzed solely be attendance must tory law, case the relevant Having examined (d)(8).[1] Section [Unemployment of the mindful Dep't Ind. Bd. v. Review Giovanoni of provide to purpose Act's] Compensation Dev., 443-44 unem Workforce are who to individuals benefits see original); (emphasis (Ind.Ct.App.2009) own, their we through no ployed fault of that the (stating § 22-4-1-1 also Ind.Code Love, Jeffboait, than that believe Compensa Unemployment of the purpose model for deter the sounder provides payment "provide to Act is tion ben unemployment mining eligibility through unemployed persons benefits discharged employee is an efits when added). ") (emphasis their own no fault Love, an at Under attendance issues. Giovanoni, majority employee subjects that In contrast rule tendance holdings of applies here unex as as excused well discharge for Jeffboat so, majority asserts doing unreasonable, Beene. se per cused holdings "pro will following those discharged iswho employee but employee against employer] tect[ ] [an disqualified bewill problem with ("'Even are correct assuming parties viewpoint in expressed this 1. JudgeMathias the hold- conflicting nature of respect to the names. See of similar separate cаses two Love, we must decline ings in Dep't Bd. Ind. Corp. v. Review Stanrail Jeffboat Instead, conflict."). to resolve invitation Dev., 1206-07 Workforce (Ind.Ct.App.2000) erred for Review Board *9 we held J., (Mathias, concurring in employment policies basing its decision denied; Corp. result), v. Unem Stanrail trans. 1102, termination Bd., to the stated reason unrelated 734 N.E.2d ployment Ins. Review by the found disregarding the facts J., and for (Mathias, con (Ind.Ct.App.2000) 1106-07 case, ("In the Board this I"). at 1106 ('Stanrail ALJ. Id. I also curring), denied trans. reason for going beyond the stated I, in erred separately, not albeit in Stanrail conсurred opportunity to re- taking did not address expressly we I and note employment poli- all facets of Stanrail's view in that and Love conflict between Jeffboat I, cies."). N.E.2d at 1105-06 case. Stanrail policy by who being frequently abuses 22-4-15-1(d)(@). § ance. See Ind.Code omitted). But Yet the General Assembly still included a ill." Op. (quotations at 483 unemployment benefits do not strip specific provision pertaining to "unsatisfac right of its to terminate an tory em § attendance." Ind.Code 22-4-15- ployment relationship on the basis of ab 1(d)(8). Another rule of statutory con Rathеr, they merely senteeism. provide struction "directs that a more specific stat employees terminated with relief in the ute will supersede a general more one." event that their absenteeism "through (Ind. State v. Downey, 794, 770 N.E.2d 2002). no fault of their own." 22-4- Here, application of that rule of 1-1; statutory construction requires that Beck- see also Ind.Code (stating employees terminated for ab- ingham's claim for analyzed benefits be senteecism unemployment are entitled to specific the more provision of See benefits if that "goоd absenteeism is for (d)(8) tion than under the more cause"). (d)(2). general provision, Section
The majority also holds Indiana The ALJ and the Review Board here 22-4-15-1(d) Code Section "is written in only considered Beckingham's claim in disjunctive," and, accordingly, (d)(2). light of Section only Because the (d)(2) court apply must Section give issue is whether Beckingham is entitled to effect to the plain meaning. statute's See unemployment in light benefits of her ab- op. 488-84; Giovanoni, at see also 900 senteeism, hold, I would in accordance (Brown, (not J., N.E.2d at 445 dissenting) with Giovanoni and our rules of statutory ing that up it is to the General Assembly construction, that the ALJ and the Review to change wording of the statute if Board erred as a matter by of law (d)(2) Section is not intended apply to considering (d)(8). her claim under Section issues). Undoubtedly, an un such, As I vote to reverse the Review ambiguous given statute must be plain its Board's decision and remand for consider- meaning. But applying (d)(2), Section ation Beckingham's claim light which applies only generally to "enforced (d)(8). Section employer," of an rule[s] to attendance is (d)(8),
sues nullifies Section applies which
specifically to "unsatisfactory attendance." statute, interpreting we must "strive avoid construction that any renders part of the meaningless statute super April LACY, Appellant-Defendant, fluous." Vanderburgh County Election Bd. v. Vanderburgh County Democratic v. Comm., (Ind.Ct. Cent. 833 N.E.2d Indiana, Appellee-Plaintiff. STATE of
App.2005). majority's The construction of No. 31A04-0810-CR-571. 22-4-15-1(d) Indiana Code Section renders (d)(8) Section both meaningless and super Appeals Court of of Indiana. (d)(2). fluous to Section March 2009. Finally, the General Assembly, in draft- Transfer May Denied ing Indiana 22-4-15-1(d), Code Section must have been aware of the likelihood
that the "enforced employer" rule[s] of an *10 generally
would include rules on attend-