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Reed v. Review Board of Indiana Department of Workforce Development

Court of Appeals of Indiana

May 26, 2015

James E. Reed, Appellant,
v.
Review Board of the Indiana Department of Workforce Development, and A.W. Holdings, LLC, Appellees

Page 815

Appeal from the Review Board of the Indiana Department of Workforce Development. The Honorable Steven F. Bier, Chairperson. Case No. 14-R-01807.

ATTORNEY FOR APPELLANT: Norman L. Roelke, Fort Wayne, Indiana.

ATTORNEYS FOR REVIEW BOARD OF THE INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT: Gregory F. Zoeller, Attorney General of Indiana; Graham T. Youngs, Deputy Attorney General, Indianapolis, Indiana.

ATTORNEYS FOR A.W. HOLDINGS, LLC: Adrienne C. Romary, Carson Boxberger LLP, Fort Wayne, Indiana; Ragna M. Urberg, A.W. Holdings, LLC, Fort Wayne, Indiana.

Brown, Judge. Crone, J., and Pyle, J., concur.

OPINION

Page 816

Brown, Judge.

[¶1] James E. Reed (" Employee" ) appeals a decision by the Review Board of the Indiana Department of Workforce Development (the " Board" ) denying his claim for unemployment benefits. Employee raises two issues, which we revise and restate as whether the record supports the Board's decision. We reverse.

Facts and Procedural History

[¶2] Employee was employed by A.W. Holdings, LLC, (" Employer" ) as a direct support professional and provided support and assistance to individuals with developmental disabilities. Employer provided day habilitation services for disabled individuals or clients.

[¶3] On May 7, 2014, Employee was driving three of Employer's clients back to

Page 817

Employer's location after visiting a park and the library when one of the clients in the vehicle (" Client D," as he is referred to in the record), began to yell and then to beat his chest with his fists. Employee pulled the vehicle to the side of the road near a busy intersection, had the two clients who had not become upset exit the vehicle, and required Client D to remain inside the vehicle. Employee attempted to call two supervisors, was unable to reach them, and then called a co-worker who was able to contact Employee's supervisor. Employee's supervisor then called Employee, asked if the clients were out of the car safely, and stated that she would send help. Antonia Gatewood, a residential manager for Employer, was sent to assist Employee. When Gatewood arrived at the scene, she observed that Client D was inside the vehicle and that Client D was yelling. Gatewood had Employee unlock the door, Client D exited the vehicle and was upset with Employee, and Gatewood walked Client D to her vehicle. Employee's last day of work was May 7, 2014, and his employment was terminated effective May 12, 2014.

[¶4] Employee filed a claim for unemployment benefits, and a deputy for the Department of Workforce Development issued a determination that Employee was not discharged for just cause. Employer appealed the deputy's determination, and a telephonic hearing was held before an administrative law judge (the " ALJ" ) on August 21, 2014, at which testimony was heard from Employee, Joy Dennison, a human resources recruiter for Employer, and Bree Cannon, an assistant director for a day care center for Employer. Employer submitted documentary evidence which included professional conduct rules, an incident report prepared by Gatewood on May 8, 2014, certificates given to Employee in September 2014 and December 2014 for completing certain student training, the job description for the position of a direct support professional, a printout of a webpage showing the temperature inside a car over time when the outside temperature is ninety degrees, and an employee disciplinary report signed by Cannon as Employee's supervisor on May 12, 2014. The document with the subject line " Professional Conduct," stated under Paragraph A: " Employees of [Employer] will in no way exploit, neglect or inflict physical or psychological harm on a client." Exhibits at 18. Employer submitted an acknowledgement of Employee that he received a copy of the professional conduct policy in July 2011. The written job description for the position of direct support professional included a paragraph of general responsibilities, twenty-five numbered specific responsibilities, and two additional requirements for professionals working with individuals who have a behavior support plan (a " BSP" ), namely, to " [c]omply with behavior support policies and procedures, and implement approved BSP" and to " [p]rovide positive behavior supports according to individual BSP's [sic] and respond to emergency situations as trained." Id. at 27. The disciplinary report signed by Cannon included a box for " Termination," which had been marked, following the word " Action." Id. at 37. Following the phrase " Nature of Incident" on the report, a box for " Violation of Company Rules" was marked. Id. In a space for " Details of Incident/Performance Issue," the disciplinary report stated:

On 5/7/2014 it was reported that [Employee] had failed to provide appropriate support for a consumer he was serving in the community. Upon further investigation [Employee] disclosed that he had tried to keep his consumer safe by containing him in his vehicle. [Employee] neglected to follow this consumer's [BSP] or to implement MANDT de-escalation

Page 818

techniques, as trained, in response to his client who was exhibiting maladaptive behaviors. This action violates [Employer's] Professional Conduct Policy which states in letter A, " Employees of [Employer] will in no way exploit, neglect or inflict physical or psychological harm on a client." This is also a violation of [Employer's] Direct Support Professional Job Description that states that DSP's must, " Comply with behavior support policies and procedures, and implement approved BSP" and " Provide positive behavior supports according to individual BSP's [sic] and respond to emergency situations as trained."
In addition to this incident, [Employee] received one other disciplinary report on 11/20/2013 for failing to provide documentation as assigned.
As a result of his neglectful actions, [Employee] is being terminated effective immediately.

Id. Employee submitted exhibits which included a daily activity log, Employee's written statement, and a drawing showing the location of his parked car relative to the surrounding streets and the clients at the time of the incident.

[¶5] Cannon testified that Gatewood witnessed the event on May 7, 2014, that Gatewood was not available to testify, and that Gatewood's written statement of May 8, 2014, had been submitted. In her written statement, Gatewood said that she received a call to help with Client D, who was " having a behavior," and " the staff needed assistance." Id. at 20. She stated that, after she arrived, she " hear[d] a horn being blown and saw someone outside the car" and " when [she] got out [she] went up to the car to see [Client D] inside the car with the windows up and his jacket on and yelling." Id. She stated that Employee " had his car keys in the passenger door lock to keep [Client D] from getting out," that she " told [Employee] to let him out and unlock the door," that " [a]s [Employee] started to unlock the door, [t]he other client that was outside tried to get into [Gatewood's] car on the street side," and that she " ran out to get him and guided him back to the sidewalk." Id. She further stated that, after helping the client, she " went back to [Employee] to notice he still did not unlock the door or let [Client D] out of the hot car" and that she told Employee " to unlock the car now." Id. Gatewood stated that, as Employee did so, she told Client D that he was going home with her. She also stated that, " [a]s [Client D] was getting out of the car he was very upset at" Employee and " was yelling and cursing at him," she " walked [Client D] over to ...


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