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FILED
Jan 29 2009, 10:03 am

FOR PUBLICATION
ATTORNEY FOR APPELLANT: DELMAR P. KUCHAES II Bargersville, Indiana

of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE REVIEW BOARD OF THE INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT: STEVE CARTER Attorney General of Indiana FRANCES H. BARROW Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JOHN D. GIOVANONI II, Appellant, vs. REVIEW BOARD OF THE INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and CLARIAN HEALTH PARTNERS, INC., Appellees. ) ) ) ) ) ) ) ) ) ) ) )

No. 93A02-0806-EX-545

APPEAL FROM THE UNEMPLOYMENT INSURANCE REVIEW BOARD Cause No. 08-R-01092 January 29, 2009 OPINION - FOR PUBLICATION CRONE, Judge

Case Summary John D. Giovanoni II appeals the decision of the Unemployment Insurance Review Board of the Indiana Department of Workforce Development ("the Board") denying his application for unemployment benefits. We reverse. Issue Giovanoni raises one issue on appeal, which we restate as follows: whether he was discharged for just cause. Facts and Procedural History Clarian Health Partners, Inc. ("Clarian"), discharged Giovanoni, a pharmacy technician, after he accumulated eight absences in violation of its no-fault attendance policy. In deciding that Giovanoni was discharged for just cause and therefore ineligible for unemployment benefits, the Board adopted and affirmed the following order of the Administrative Law Judge ("ALJ"), which was issued after an evidentiary hearing: FINDINGS OF FACT: The employer operation in question is the in-patient pharmacy at Riley Hospital for Children. [Giovanoni] worked for [Clarian] from 11/15/06 through 12/26/07 as a pharmacy technician. [Clarian] discharged [Giovanoni] for a violation of its written attendance policy, a copy of which is given to all employees of [Clarian], including [Giovanoni], and the provisions of which are applicable to all employees of [Clarian]. [Clarian] enforces this policy uniformly with regard to all employees. This is a no-fault policy. The policy is essential to [Clarian] as attendance is critical as patients need to be able to receive their medications when necessary. [Giovanoni] began to experience a severe medical situation, seizures with complicated migraines. The initial medications given to [Giovanoni] were not working, and he was often not able to function and come to work as he desired. He would try to come to work as much as possible, even when his medical condition was such that he really could not do his job, but he knew what the attendance system was, and he did not wish to lose his job.
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[Clarians] policy provides for progressive discipline, with four levels, Level I being 5 occurrences, Level II being 6 occurrences, Level III being 7 occurrences, and the fourth level being termination at 8 occurrences. This policy provides for a rolling 12-month period, so that any warning would be removed after having been on the employees record for one year. [Giovanoni] received his first written warning on 5/23/07. [Giovanoni] received a second written warning on 5/31/07. [Giovanoni] then received a third written warning on [7/11/07], which indicated that one additional occurrence would result in termination. [Clarian] discussed the warnings with [Giovanoni] at each stage. At the time of the third written warning, [Clarians] pharmacy manager discussed [Giovanonis] situation with him. She was very concerned that he was not going to be able to maintain attendance, would incur an additional occurrence, and become discharged. [Giovanoni] had not been eligible to meet FMLA requirements, but could have been eligible after one year of employment. [Giovanoni] indicated that he believed that he could make it through; however, he then had an occurrence on 12/16/07. [Clarian] does payroll every two weeks, and [Clarians] pharmacy technician supervisor discovered that [Giovanoni] had an occurrence subsequent to his third written warning. As she did not have authority to issue the termination, she waited until the pharmacy manager returned from vacation, and [Clarian] then discharged [Giovanoni] under its attendance policy, by notice dated 12/26/07. CONCLUSIONS OF LAW: According to IC 22-4-15-1(d): "Discharge for just cause [a]s used in this section is defined to include but not be limited to:...(2) knowing violation of a reasonable and uniformly enforced rule of an employer." The burden of establishing that the discharge of the employee is for just cause is upon the employer. The burden is upon the employer to establish a prima facie showing [of] just cause for [termination]. In the present case, [Clarian] discharged [Giovanoni] for a violation of its written attendance policy, a no-fault policy, a copy of which is given to all employees of [Clarian], including [Giovanoni], and the provisions of which are applicable to all employees of [Clarian]. [Clarian] uniformly enforces the provisions of this policy with regard to all employees. The policy provides for a progressive disciplinary procedure in four stages. [Giovanoni] received the first written warning dated 5/23/07, a second written warning dated 5/31/07, and a third written warning dated [7/11/07]. [Clarian] counseled [Giovanoni] at each stage of the progressive disciplinary action. At the time [Clarian] gave [Giovanoni] the third written warning, he was informed that his job was in jeopardy if he had one more occurrence. [Giovanoni] had not been eligible for FMLA. In addition, [Clarians] policy provides for a rolling 12-month period
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of coverage. [Clarians] pharmacy manager discussed possible options with [Giovanoni]; however, he believed that he could make it through and remain in his job. [Giovanoni] then had an attendance incident on 12/16/07. When [Clarian] did its payroll check, and [Clarians] pharmacy manager returned from vacation, [Giovanoni] was discharged by written notice dated 12/26/07. Attendance is essential in [Clarians] operation, as it is the in-patient pharmacy for a hospital. [Giovanoni] began experiencing a severe medical condition, and was being treated by various doctors. [Giovanoni] was aware of [Clarians] policy, and that his job was in jeopardy, and he tried his best to remain within the parameters of the policy to retain his employment. However, [Giovanoni] then had the subsequent attendance occurrence after the issuance of this third written warning, and was discharged by [Clarian]. Under these circumstances, the Administrative Law Judge finds that the discharge was for violation of a known, reasonable, and uniformly enforced policy, and that it was therefore for just cause under Indiana unemployment law. DECISION: The initial determination of the deputy is reversed. [Giovanoni] was discharged for just cause. Appellants App. at 5-6 (citations omitted). Giovanoni appeals. Discussion and Decision Giovanoni challenges the Boards conclusion that he was discharged for just cause. As such, we are called upon to review only the Boards conclusions of law, which we do under a de novo standard. See Penny v. Review Bd. of the Ind. Dep't of Workforce Dev., 852 N.E.2d 954, 957 (Ind. Ct. App. 2006), trans. denied (2007). Giovanonis claim is governed by the Unemployment Compensation Act ("UCA"), Indiana Code Article 22-4, which was enacted to "provide for payment of benefits to persons unemployed through no fault of their own." Ind. Code

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