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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. APPELLANT PRO SE: BRADY G. MCCORD, SR. Fort Wayne, Indiana

FILED
Oct 20 2009, 8:57 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana

ELIZABETH ROGERS Deputy Attorney General Indianapolis, Indiana ______________________________________________________________________________

IN THE COURT OF APPEALS OF INDIANA
______________________________________________________________________________ BRADY MCCORD, Appellant-Petitioner, vs. REVIEW BOARD OF THE INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and MARIANE, INC., Appellee-Respondent. ) ) ) ) ) ) ) ) ) ) ) )

No. 93A02-0901-EX-65

APPEAL FROM THE REVIEW BOARD OF THE DEPARTMENT OF WORKFORCE DEVELOPMENT Steven F. Bier, Chairperson Cause No. 08-R-3922

October 20, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION BROWN, Judge

Brady McCord appeals a decision by the Review Board of the Indiana Department of Workforce Development ("Board") denying him unemployment benefits. McCord raises two issues, which we revise and restate as whether the Boards determination that McCord was terminated for just cause was reasonable. We affirm. The facts most favorable to the Boards determination follow. McCord worked as a restaurant manager for Mariane, Inc., managing two fast food restaurants. McCord was discharged on September 4, 2008 "for ,,blatant unprofessional conduct . . . and for ,,unsatisfactory performance of assigned job responsibilities and duties" based upon his performance as a restaurant manager. Appellees Appendix B at 16. On September 19, 2008, a deputy with the Indiana Department of Workforce Development determined that McCord had been discharged for just cause and therefore found McCord ineligible to receive unemployment benefits. On November 12, 2008, a hearing was conducted by an Administrative Law Judge ("ALJ"), and both McCord and his former superior, the District Manager, appeared by telephone. The ALJ reversed the deputys determination, finding that McCord "was discharged but not for just cause and therefore qualified to receive benefits under the Act." Exhibits at 40. Mariane appealed, and the matter was reviewed by the Board on December 1, 2008. On December 15, 2008, the Board

reversed the ALJs determination. In deciding that McCord was discharged for just cause and therefore ineligible for unemployment benefits, the Board entered findings of fact and conclusions thereon as follows:

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DECISION: Reversed. benefits.

[McCord] is not entitled to unemployment

FINDINGS OF FACT: [McCord] worked for the Employer, a fast food chain, as a Restaurant Store Manager from November 2004 until he was discharged on September 4, 2008. [McCord] was discharged for failing to perform assigned job duties and for unprofessional conduct. [McCord] was Restaurant Store Manager for two locations: the location at the IPFW and the location at Glenbrook Mall. [McCords] immediate supervisor was the District Manager who participated in the hearing. It was the Employers policy for District Managers to evaluate each Restaurant Store every three to four weeks; this evaluation is called a "DM Shop." The District Manager evaluated [McCords] Glenbrook Mall location July 25, 2008, and the store received a rating of 96%. Employers Ex. J. After the evaluation, the District Manager and [McCord] discussed ways to improve in certain areas. On August 28, 2008, the District Manager evaluated the Glenbrook Mall location again and left the DM Shop evaluation tacked to the bulletin board. Employers Ex. H. The overall scores in several categories went down from the previous evaluation, and the stores overall rating dropped to 75%. Employers Ex. H. On August 29, 2008, [McCord] returned to the Glenbrook Mall location after assisting the start-up of a new restaurant in another town. While he was away from his stores, other restaurant store managers alluded to problems between [McCord] and the District Manager. [McCord] e-mailed the District Manager on August 29, 2008. [McCords] subject line was "WTF," which is an abbreviation for "What the fuck?" [McCord] indicated at the hearing that he used the abbreviation, because using "fuck" would not have been professional. The body of the e-mail read as follows: So what did I do to make you mad?????? Something?????? If you have a problem let me know !!!!!! Dont talk me down behind my back ...... ...... ...... I thought you were better than that ...... ...... ...... Employers Ex. C. The District Manager telephoned [McCord] to discuss the e-mail, and, during the conversation, [McCord] hung up on the District Manager. 3

[McCord] sent another e-mail, with the subject line "Fuck Me," to the District Manager with the following message: I cant believe you ...... ...... ...... I try to talk to you and you tell me "Fuck you then quit on me too" I understand you cant be friends with me Anymore but you need to think a little bit more Before you speak ...... ...... ...... If you do want me to quit then I will ...... ...... ...... Ive already fought Tammy to keep this job ...... ...... ...... Im not doing a part 2 ...... ...... ...... Employers Ex. D. The District Manager responded that he had not told [McCord] "fuck you" and that he had instructed him to do the standards at the restaurants. He acknowledged that he had told [McCord] that he did not care if [McCord] quit. Employers Ex. E. [McCord] responded to the District Managers email that the District Manager had lied, that he did "say what you said" and that [McCord] had done the standards. Employers Ex. E. After the e-mail exchange, the District Manager attempted to call [McCord] again, but [McCord] hung up on him again. The District Manager subsequently learned that [McCord] had sent both emails to the Home Office Staff and the Above Restaurant Management. In fact, the Owner contacted the District Manager directly to ask what was going on with [McCord]. On September 2, 2008, the District Manager issued an Employee Consultation Memorandum to the Claimant for violating Work Rule #10, "blatant unprofessional conduct," by sending the e-mails to the other recipients. Employers Ex. B. [McCord] was instructed to send an apology e-mail to everyone who received the previous e-mails. Employers Ex. B. He was further informed that "[a]ny further actions of this type will result in immediate termination of employment." Employers Ex. B. In response to the directive in the Memorandum, on September 2, 2008, [McCord] sent the following e-mail with the subject line, "my unprofessional misconduct: I do believe everybodys on here": 4

I do apologize for sending out such an E-mail; I was upset that such a thing could happen and nothing would be Done about it ...... ...... ...... But I was wrong ...... ...... ...... I would get wrote up for it and be forced to send an apology out ...... ...... ...... So again, I apologize ...... ...... ...... Employers Ex. F. Approximately an hour after sending his apology email, [McCord] sent the following e-mail to the District Manager with "My job ?????? ?????? ?????" as the subject line: So where does this leave my feeling of job security ...... ...... ...... Yeah ...... ...... ..... thats kinda what I figured ...... ...... ..... Employers Ex. G. On September 4, 2008, the District Manager conducted a DM Shop at [McCords] other restaurant at IPFW. The evaluation scores were even worse than the Glenbrook Mall stores recent evaluation, and the District Manager noted that several trainings were not being done. Employers Ex. I. The IPFWs overall evaluation was 64%. Employers Ex. I. The District Manager terminated [McCord] on September 4, 2008 for "blatant unprofessional conduct" as evidenced by the tone and content of the apology e-mail and for "unsatisfactory performance of assigned job responsibilities and duties" for his failure to properly oversee the daily running of the stores under his management. Employers Ex. A. ***** CONCLUSIONS OF LAW: When an employee is discharged from employment in Indiana, the employee will not be disqualified from unemployment benefits unless the discharge was for just cause within the meaning of Indiana Code

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