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FOR PUBLICATION
APPELLANT PRO SE: DEWAYNE QUINCY SPIEKER Indianapolis, Indiana ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana PAMELA S. MORAN Deputy Attorney General Indianapolis, Indiana

Jan 20 2010, 9:40 am

FILED
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
DEWAYNE QUINCY SPIEKER, Appellant-Claimant, vs. REVIEW BOARD OF THE INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and SERVANT HR, Inc., Appellees-Respondents. ) ) ) ) ) ) ) ) ) ) )

CLERK

No. 93A02-0906-EX-581

APPEAL FROM THE REVIEW BOARD OF THE DEPARTMENT OF WORKFORCE DEVELOPMENT Cause No. 09-R-02117

January 20, 2010 OPINION - FOR PUBLICATION

BAKER, Chief Judge

Appellant-claimant DeWayne Quincy Spieker appeals the decision of the Review Board of the Department of Workforce Development (the Board) finding that Spieker had been discharged by his employer for just cause. Spieker argues that there is insufficient evidence supporting the Board's conclusion. Finding sufficient evidence, we affirm. FACTS Spieker was employed as a debt collector for Servant HR, Inc. (SHR), beginning on June 30, 2008. On December 3, 2008, Spieker resigned, stating in his written

resignation letter that he intended to go back to school. At some point, Spieker applied for unemployment benefits. On January 16, 2009, a claims deputy of the Department of Workforce Development determined that Spieker was discharged but not for just cause and was, therefore, eligible to receive unemployment benefits. On January 22, 2009, SHR appealed the determination of

eligibility. On May 5, 2009, an Administrative Law Judge (ALJ) held a hearing on this matter, and on May 11, 2009, the ALJ reversed the deputy's decision, finding that Spieker had been discharged for just cause. Among other things, the ALJ found and concluded as follows: his supervisor told him to submit his resignation when they became aware he was going back to school. [SHR] testified that [Spieker] would have been discharged had he not submitted his resignation. The reasons [Spieker] would have been discharged were absenteeism, problems with performance, and email abuse. [Spieker's] absences were 11/19/08, 11/20/08, and 12/2/08, and he took a 48 minute break without clocking out on 9/23/08.

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[Spieker's] performance problems were the subject [of] a disciplinary notice dated 10/14/08. [Spieker] was expected to average 100 calls per day; however, his average was 76.4 calls per day. [Spieker's] minimum level of competency (MLC) score was 66.5%, which is below the 85% MLC score that is expected. [Spieker] improved on his MLC score after the 10/14/08 write-up. [Spieker's] email and internet use was monitored. [Spieker] sent an email to a co-worker in which he discussed his future with the company, an intention to go back to school, or his job search. The co-worker made [SHR] aware of this email. [Spieker] also acknowledged that he did go on internet websites, possibly including employment sites, during his breaks and lunch. [Spieker] stated that it was possible that he was on employment websites, but he stated that he was never told that he could not view these sites. CONCLUSIONS OF LAW: . . . The ALJ concludes that substantial evidence was presented to establish that [Spieker] was using the company's computer to discuss his school and work intentions and to search for jobs while at work. An employee owes his employer the duty to use company equipment for company business and not to discuss or look for employment opportunities while at work. [Spieker] breached this duty. [Spieker] was discharged for just cause. [Spieker] is not eligible for benefits. Appellee's App. p. 3-4. On May 19, 2009, Spieker filed an appeal with the Board. In a letter to the Board, Spieker requested to submit additional evidence that had not been presented at the hearing before the ALJ. The Board refused to accept the additional evidence and did not hold a hearing. On June 23, 2009, the Board affirmed the ALJ's conclusion and adopted the ALJ's findings of fact and conclusions of law. Spieker now appeals. DISCUSSION AND DECISION As we consider Spieker's argument that there is insufficient evidence supporting the Board's conclusion, we note that the Board's decision is "conclusive and binding as 3

to all questions of fact." McClain v. Review Bd. of the Ind. Dep't of Workforce Dev., 693 N.E.2d 1314, 1316 (Ind. 1998). Thus, we are limited to a two-part inquiry into the sufficiency of the facts found to sustain the decision and the sufficiency of the evidence to sustain the findings of fact. Ind. Code

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