Appeal from the Review Board of the Department of Workforce Development. Steven F. Bier, Chairperson. George H. Baker, Member. Larry A. Dailey, Member. Cause No. 14-R-1078.
ATTORNEYS FOR APPELLANT: Gregory Guevara, Philip R. Zimmerly, Bose McKinney & Evans LLP, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana, Kyle Hunter, Deputy Attorney General, Indianapolis, Indiana.
Baker, Judge. Vaidik, C.J., and Riley, J., concur.
[¶ 1] Advanced Correctional Healthcare (ACH) appeals the determination of the Review Board of the Indiana Department of Workforce Development (the Board) that M.W., a former employee of ACH, is entitled to unemployment insurance because he was not fired for just cause. Evidence was presented that eleven people from two different employers and five separate work locations had complained about inappropriate sexual comments made by M.W. Despite this evidence, and despite the fact that M.W. did not deny four of the complained-of conversations, the Board found that M.W. had not violated ACH's sexual harassment policy and was not fired for just cause. Finding a lack of substantial evidence supporting this judgment, we reverse.
[¶ 2] ACH provides healthcare services to county jail facilities throughout Central Indiana. ACH has a Sexual Harassment Policy that is set forth in both the Employee Handbook and in a separate corporate policy document. As summarized by the Administrative Law Judge, the Sexual Harassment Policy provides as follows:
that certain conduct is expressly prohibited including lewd, off-color, and sexually oriented comments or jokes, and foul or obscene language, and sexually oriented or explicit remarks including written or oral references to sexual conduct, gossip regarding one's sex life, body, sexual activities, deficiencies or prowess, and questions about one's sex life or experiences, and repeated requests for dates, and the policy further provides that offenders are subject to remedial actions including termination. The purpose of the policy is to prohibit sexual harassment.
Appellant's App. p. 9. The Sexual Harassment Policy is a zero tolerance policy--employees who are found to have violated it are subject to immediate disciplinary
action, including termination of employment. Employee Relations Manager S.N., who is directly responsible for enforcing the Sexual Harassment Policy, testified that the policy is necessary to ensure ACH's compliance with state and federal law and to protect employees of ACH and employees and inmates of the jails served by ACH from unwelcome sexual behavior. S.N. also testified that ACH uniformly enforces the Sexual Harassment Policy.
[¶ 3] M.W. began working for ACH as a nurse in June 2012. In October 2013, he was promoted to Interim Regional Nurse Manager, which was a supervisory position. As part of his employment, M.W. signed a form indicating that he had received and was aware of the Sexual Harassment Policy.
[¶ 4] On January 28, 2014, ACH received a complaint from Captain Jason Sloderbeck of the Hamilton County Jail. Captain Sloderbeck had received reports from five of his employees regarding inappropriate sexual comments that had been made by M.W. Following this complaint, ACH opened a full-scale investigation into M.W.'s conduct, interviewing ACH employees and preparing a written record of those interviews. During the investigation, ACH uncovered at least seven additional instances in which M.W. had made inappropriate comments to ACH employees. In all, ACH received reports of unwelcome sexual comments by M.W. from twelve different people who worked for two different employers and worked at five different jail locations. On January 31, 2014, ACH terminated M.W.'s employment, having concluded that he had repeatedly violated the Sexual Harassment Policy.
[¶ 5] M.W. filed a claim for unemployment insurance. The initial determination of the Department of Workforce Development was that he had been fired for just cause and was not eligible for unemployment insurance. M.W. appealed that determination. On May 1, 2014, an Administrative Law Judge (ALJ) held a telephonic hearing at which testimony was taken and evidence was submitted. S.N. testified for ACH, presenting evidence of M.W.'s violations of the Sexual Harassment Policy. Specifically, the following evidence was presented:
1. Nurse J.R. reported that M.W. showed up at her home uninvited. He later sent her " a couple naked pictures." Appellant's App. p. 34.
2. Officer K.W. had a conversation with M.W. in which M.W. commented about the " size and look" of another officer's breasts. Id. at 35.
3. The officer about whose breasts M.W. had commented reported that on one occasion, she mentioned that she was craving chicken fajitas for lunch. M.W. laughed and, when another officer asked why he was laughing, said he thought she ...