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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. ATTORNEY FOR APPELLANT: MARK K. PHILLIPS Boonville, Indiana

FILED
Dec 31 2009, 10:24 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana Indianapolis, Indiana STEPHANIE ROTHENBERG Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
DAVID BAUMBERGER, ) ) Appellant-Defendant, ) ) vs. ) ) REVIEW BOARD OF THE INDIANA ) DEPARTMENT OF WORKFORCE ) DEVELOPMENT and BEST BUY STORES LP., ) ) Appellees-Plaintiffs. )

No. 93A02-0906-EX-0587

APPEAL FROM THE REVIEW BOARD OF THE DEPARTMENT OF WORKFORCE DEVELOPMENT The Honorable Steven F. Bier, Chairperson The Honorable George H. Baker, Member The Honorable Lawrence A. Dailey, Member Cause No. 09-R-01667

DECEMBER 31, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION BARTEAU, Senior Judge

STATEMENT OF THE CASE Claimant-Appellant David Baumberger appeals the Indiana Review Board of the Department of Workforce Development's determination that he was discharged for just cause from Employer-Appellee Best Buy Stores LP. instructions. ISSUE The following restated issue is dispositive: whether the Board erred in determining that Baumberger knowingly violated a reasonable and uniformly enforced rule of an employer. FACTS AND PROCEDURAL HISTORY Baumberger worked for Best Buy before being discharged for violating Best Buy's employee discount purchasing policy. On December 4, 2008, a Workforce Development claims deputy determined that Baumberger "was not discharged for just cause" and that Baumberger was e ligible for unemployment insurance benefits. Best Buy appealed, and an Administrative Law Judge reversed the claims deputy's decision. The Administrative Law Judge made findings of fact that were adopted by the Review Board. The facts as found by the ALJ, and adopted by the Review Board, are as follows: 2 We reverse and remand with

The claimant worked with his employer from October 21, 2003, until November 10, 2008. The claimant was last employed as a double agent performing in-home computer repair services. The claimant was discharged due to violation of company rules. The Administrative Law Judge finds that the employer had an employee discount policy. Such policy had been liberal in the past. However, effective September 25, 2006, the employer revised its policy to limit the use of employee discounts to an employee, the employee's spouse and any dependent children. The employer's policy specifically excluded parents, parents-in-law and domestic partners from the discount program. The claimant received a copy of the employer's revised policy. The policy stated in part "employees must be present and pay for the purchase in order for the eligible family members to use the employee discount." Violation of such policy subjected employees to disciplinary action up to and including termination. All employees found to be in violation of such policy in a similar manner as the claimant received similar disciplinary treatment. The employer instituted the restrictive policy to prevent excessive use of the company discount policy. The Administrative Law Judge finds that on October 22, 2008, the claimant and his mother entered the employer's store and presented some items for purchase. The sales clerk told the claimant the amount of the purchase. The claimant then conveyed such information to his mother. The claimant's mother then removed cash from her purse and handed it to the claimant. The claimant then handed the cash to the sales clerk and used his employee discount for such purchase. The claimant subsequently provided a written statement to the employer indicating that his mother had paid for the purchase. The claimant alleged that the cash actually belonged to him, and his mother was simply holding it for him. The claimant did not bring such information to the employer's attention until the time of the hearing. (Appellee's Confidential Supplemental Appendix at 16-17). Based upon these facts, the ALJ made the following conclusions of law: In matters involving discharge, the burden of proof is on the employer to show that the separation was for just cause. Wakshlag v. Review Board, 413 N.E.2d 1078 (Ind. Ct. App. 1980). In defining discharge for just cause, the statute includes the knowing violation of a reasonable and uniformly enforced rule of an employer. IC 22-4-15-1(d)(2). To find that a discharge 3

was for just cause under this section, it must be found that there was a rule, the rule was reasonable, the rule was uniformly enforced, the claimant knew of the rule, and the claimant knowingly violated the rule. Barnett v. Review Board, 419 N.E.2d 249 (Ind. Ct. App. 1981). The Administrative Law Judge concludes that the employer had a policy that was reasonable in so far as it clearly designated who was eligible for an employee discount and how such a policy was utilized. The employer's policy we uniformly enforced in so far as all similarly situated employees received similar disciplinary treatment. The claimant was made aware of the employer's policy when it was revised. The Administrative Law Judge concludes that credibility does not lie with the claimant in this instance. The claimant had ample opportunity before the time of the hearing to advise the employer that the cash used for the purchase was actually his own and not his mother's. The evidence that the actual cash used to make the purchase came from the purse of the claimant's mother would indicate that the mother was actually making the purchase and not the claimant. The Administrative Law Judge concludes that the claimant did knowingly violate the employer's policy in this instance. The employer has carried its burden of proof in this matter. For the above stated reasons, the Administrative Law Judge concludes that the claimant was discharged for just cause within the meaning of Chapter 15, Section 1 of the Indiana Unemployment Compensation Act. DISCUSSION AND DECISION An appellate court reviews the Review Board's findings of basic fact under a "substantial evidence" standard of review. McClain v. Review Bd. of the Indiana

Department of Workforce Development, 693 N.E.2d 1314, 1317 (Ind. 1998); Ind. Code

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