Indiana Court Decisions – Feb. 18 to Mar. 3, 2015

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7th Circuit Court of Appeals

Feb. 19

Criminal – Prison Discipline/Due Process

Timothy W. Austin v. Andrew Pazera


An Indiana inmate’s punishment for allegedly trafficking in tobacco was snuffed out when the 7th Circuit Court of Appeals found he was convicted without evidence of guilt.

Timothy Austin was docked good-time credit and assigned extra work after correctional officers accused him of putting cigarette papers and a plastic bag of loose tobacco in a crawl space. Austin petitioned for federal habeas corpus on the ground that the disciplinary proceeding denied him due process of law by convicting him without sufficient evidence.

The 7th Circuit agreed, reversing the judgment by the U.S. District Court for the Northern District of Indiana and remanding with instructions to order the relief sought by Austin.

“For when the imposition of prison discipline is not supported by even ‘some evidence,’ which we think the proper characterization of the scanty record in this case, the prisoner is entitled to a writ of habeas corpus commanding that the discipline be rescinded,” Judge Richard Posner wrote.

At the disciplinary hearing, Austin claimed that on the only day he had worked in the crawl space, four other inmates also worked there, cutting and removing pipes. The 7th Circuit noted Austin’s testimony was never contradicted by the prison.

“If it’s assumed that any of the five could have placed the tobacco in the crawl space, then, as we know nothing about the other four, we could conclude only that Austin had a 20 percent probability of being the culprit,” Posner wrote. “The district court deemed this sufficient evidence of his guilt to place the disciplinary sanctions imposed on him beyond judicial authority to reserve. Yet it seems odd, to say the least, that someone should be punished when there is an 80 percent probability that he is innocent.”

Feb. 20

Civil – Social Security/Disability

Daniel J. Hall v. Carolyn W. Colvin


An administrative law judge’s denial of Social Security disability benefits for a man who the Veterans Administration determined was totally disabled cannot be sustained, the 7th Circuit Court of Appeals ruled.

The Circuit Court reversed the District Court with directions to remand the case to the Social Security Administration for further proceedings consistent with the analysis in its opinion.

“Several doctors noted that Hall had been in pain when examined, and this was some corroboration of his testimony. The administrative law judge could have resolved her doubts by ordering an MRI or directing a further examination by a medical expert,” Judge Richard Posner wrote for the panel.

“Her failure to do either leaves her determination that Hall is not disabled without a foundation in substantial evidence. Her failure to analyze and weigh the Veteran Administration’s determination that the applicant is totally disabled was a further oversight.”

March 2

Civil – Racketeering/Jurisdiction

Mir S. Iqbal v. Tejaskumar M. Patel, et al.


The 7th Circuit Court of Appeals reversed the decision of a federal judge to dismiss a man’s lawsuit because it is barred by the Rooker-Feldman doctrine. A man who had his gas station foreclosed upon claimed the defendants acted in cahoots to defraud him out of his business.

Mir Iqbal purchased the gasoline service station and hired Tejaskumar Patel to operate the business. He hired Patel based on the recommendation of S-Mart Petroleum’s president. Iqbal contracted with S-Mart for gasoline. But Patel never paid for the gas, leading S-Mart to sue in state court. When Iqbal failed to pay the judgment, his property was sold in a foreclosure auction.

Iqbal then sued in federal court, alleging racketeering and seeking treble damages from S-Mart and Patel. The District Court dismissed based on the Rooker-Feldman doctrine, finding Iqbal’s claims intertwined with the previous state court decisions.

Federal courts do, however, retain jurisdiction to award damages for fraud that imposes extrajudicial inquiry, Judge Frank Easterbrook wrote. But the federal court cannot set aside the state court’s judgment.

Iqbal claimed that the defendants conducted a racketeering enterprise that predates the state court judgments and that he was “set up” so that the defendants could take over his business and reap the profits he anticipated.

“Because Iqbal seeks damages for activity that (he alleges) predates the state litigation and caused injury independently of it, the Rooker-Feldman doctrine does not block this suit. It must be reinstated,” Easterbrook wrote.

The matter is remanded for further proceedings.

Indiana Supreme Court

March 2

Criminal – Traffic Stop/Evidence

State of Indiana v. Michael E. Cunningham


In a 4-1 decision, the Indiana Supreme Court ruled it is not inherently coercive for police to give conditional permission to step out of a vehicle during a traffic stop, subject to the motorist’s consent to a pat-down search.

The state appealed the grant of Michael Cunningham’s motion to suppress drug evidence found in his pocket and in his car during a traffic stop. Police pulled Cunningham’s truck over because the red lens over one of his taillights was missing. Cunningham asked if he could step out of his truck to look at it and the officer told him that he would be pat down for any weapons for safety reasons. Cunningham agreed and got out of the car. The officer patted him down and found a pill bottle in his front pocket. Cunningham freely admitted that it was marijuana. He also said he had a pipe in the car.

The trial court granted his motion to suppress, finding that Indiana statute only requires one red taillight, so the traffic stop was invalid. The COA affirmed 2-1 on Cunningham’s other claim, that his consent was not valid since the officer had no reasonable suspicion of danger.

Chief Justice Loretta Rush, writing for the majority, noted that it is not inherently coercive to choose whether to get out of a car and be frisked or to stay inside the vehicle unsearched. The majority also held that Cunningham’s right to refuse consent to search was implicit in his choice to get out of the truck or stay inside.

“The circumstances of Defendant’s request, and the officer’s response, reflect Defendant’s knowledge that he could avoid an unwanted search simply by choosing not to get out of his truck. It may have been preferable in retrospect if the officer had stated that choice explicitly. But regardless of any imprecision in the officer’s language, Defendant recognized from the circumstances that he could refuse the search simply by changing his mind about inspecting the taillight. Accordingly, his choice to step out of the truck and submit to the pat-down it entailed was free and voluntary,” Rush wrote in reversing the trial court.

Justice Robert Rucker dissented, finding Cunningham’s purported consent to the pat-down search was constitutionally invalid.

“It is of course the case that police officers have the authority to maintain control of a traffic stop, including ordering someone to either stay in or exit a vehicle. However, it goes too far to permit a police officer to be able to barter an individual’s constitutional right to be free from warrantless, unreasonable searches in exchange for the individual to verify he in fact was committing a minor traffic infraction as the officer alleged,” he wrote.

Indiana Court of Appeals

Feb. 18

Civil Plenary – Attorney Fees/Dissolution

Richard A. Clem v. Paul J. Watts


An attorney who filed a lien for attorney fees prior to judgment being entered in a dissolution proceeding lost his case before the Court of Appeals after it determined Indiana statute requires the lien be filed after a judgment in the case is entered.

Paul Watts represented a woman in her dissolution proceeding for 14 months until she discharged him. In September 2012, he filed a notice of attorney fee lien in the court where he sought to hold a lien on all money and property awarded to the woman in order to collect $5,649.48.

Judgment was entered in the dissolution proceeding in September 2013. Richard Clem, who represented the husband in the matter, did not distribute any of the funds awarded to the wife from the husband to Watts to cover the lien. Watts then filed a complaint against Clem and the wife for the lien amount.

The trial court granted Watts’ motion for summary judgement.

Clem argued, and the appeals court agreed, that the statute does not allow for an attorney to file the lien prior to judgment being entered.

Watts argued that a 2004 amended version of the statute allows him to do so because the language changed from “within 60 days from the time such judgment shall have been rendered” to “not later than 60 days after the judgment is rendered.”

The judges rejected his argument, citing the legislative intent and the courts’ construction of the mechanic’s lien statutes, where a person who seeks a lien must file notice of his or her intent in the recorder’s office not later than 60 days after performing labor or furnishing materials. That 60-day period begins when a subcontractor “finishes task for which it was hired.”

“Similarly, the sixty-day period for filing a notice of intention to file an attorney fee lien commences when the judgment is entered,” Senior Judge John Sharpnack wrote.

Feb. 19

Criminal – Theft

Natasha R. Hill v. State of Indiana


A department store sales clerk who was convicted of two counts of theft is entitled to a rebate on her convictions and restitution amount, the Indiana Court of Appeals has ruled.

The Court of Appeals reversed and remanded Natasha Hill’s dual convictions for theft and her restitution order for $2,526,83. Under the ruling, the Marion Superior Court must vacate the restitution order as well as vacate one of Hill’s convictions and amend the sentence.

Hill, a clerk at Macy’s, was caught after she conspired with a friend to process phony returns in order to take money and housewares from the retailer. She was convicted at a bench trial of two counts of theft, both Class D felonies.

At sentencing, the trial court reduced Hill’s convictions as allowed by the alternative misdemeanor sentencing statute and ordered concurrent one-year sentences to be suspended to probation. Also, the court ordered Hill pay restitution.

On appeal, the COA found Hill’s twin theft convictions violated the single larceny rule. The totality of her theft occurred at the same cash register during the same transaction which constitutes a single offense. The unanimous panel ruled Hill could only be convicted on one count of theft.

In addition, the court overturned the restitution order because it was not totally based on an actual loss.

When Macy’s loss prevention officers confronted Hill, she admitted to stealing other items during past incidents. She then signed a promissory note agreeing to pay for all the products she took including losses from allegations of theft unrelated to her convictions.

The Court of Appeals held the restitution order was improperly based on uncharged act and was not based on evidence of an actual loss suffered by Macy’s.

Feb. 20

Criminal – Prescription Records/Government Agency

Angela Lundy v. State of Indiana


A woman charged with possession of a controlled substance who claimed she had a prescription may seek information from the state prescription database, the Indiana Court of Appeals held in a reversal.

The panel on interlocutory appeal reversed a court order quashing a subpoena Angela Lundy sought to serve on the Indiana Board of Pharmacy for her prescription records in the INSPECT RX database.

A Marion Superior trial court granted the state’s motion to quash because Lundy had not made a showing that she could not get her prescription records elsewhere before she was entitled to an INSPECT report.

“The Board argues that because Lundy knew where she could ‘possibly’ obtain her prescription records, they were readily available. ‘Readily available,’ however, does not equate to knowledge. That is, just because Lundy knew where she could ‘possibly’ obtain her prescription records does not mean that they were ‘readily available’ to her,” Chief Judge Nancy Vaidik wrote for the panel. “(W)e conclude that the trial court abused its discretion in granting the Board’s motion to quash Lundy’s subpoena.”

The state argued that the records were confidential pursuant to statute, which Vaidik wrote, “Notably, the patient is not listed as a person who is authorized to receive information from the INSPECT database.”

As in Williams v. State, 959 N.E.2d 360, 363 (Ind. Ct. App. 2012), however, Lundy had waived confidentiality by requesting the information, and she was entitled to her INSPECT report, the COA held. The panel also ruled that the particularity of her request should be administered to maximize pretrial discovery.

“As for the Board’s concern that such a holding ‘would significantly alter the function and purpose of the INSPECT program’ by transforming it into a ‘clearing house for any criminal defendant charged with a possession crime to obtain his or her prescription records,’ … we note that the Board’s attorney stated at the hearing that the Board already requires a low threshold before it will turn over an INSPECT report: ‘And just as I’ve said before, a really low bar of “I simply don’t recall” I think satisfies and my client would comply [by turning over the INSPECT report].’

“Accordingly, the trial court abused its discretion in granting the Board’s motion to quash Lundy’s subpoena. We therefore reverse and remand this case to the trial court.”

Feb. 25

Criminal – Search/Probable Cause

David B. Cartwright v. State of Indiana


The Indiana Court of Appeals held that a probable cause affidavit allowing police to search the home of a man suspected of manufacturing methamphetamine did not establish a confidential informant’s credibility and lacked probable cause. The majority also concluded that the good-faith exception would not be applicable in David Cartwright’s case.

Cartwright was convicted of several felonies relating to the manufacture of methamphetamine after police searched his Posey County home in March 2013. The probable cause affidavit for the search warrant was based on detective Jeremy Fortune’s meeting with a confidential informant in the county jail. That person told Fortune that someone he knew as “Dave” was making meth in the county, he bought the drug off of him three or four months ago, and he identified the location of the home on a map. Fortune four years prior had tried to obtain a search warrant for the same home – that of Cartwright – after driving by and smelling ammonia, but the warrant was denied for lack of probable cause.

This time, the magistrate issued a search warrant for Cartwright’s property based on the affidavit that included the CI’s information. Fortune left out in the probable cause affidavit that the CI was in jail on a warrant for a drug charge in Illinois.

The search warrant led to a discovery of digital scales, firearms and other evidence of methamphetamine manufacturing. Cartwright admitted to making meth, but not selling it. He filed a motion to suppress all evidence obtained as a result of the search warrant, but that was denied.

He claimed on appeal that all of the evidence resulting from the search of the house is inadmissible because there was no probable cause to issue the search warrant in the first place. The Court of Appeals agreed. Fortune did not adequately determine the credibility of the CI in the probable cause affidavit. Uncorroborated hearsay from a source whose credibility is unknown, standing alone, cannot support a finding of probable cause to issue a search warrant, Senior Judge Carr Darden wrote. The majority declined to apply the good-faith exception, finding it inapplicable because Fortune’s affidavit was so lacking in indicia of probable cause as to render an official belief in the existence of the warrant unreasonable. The majority reversed and remanded with instructions.

Judge John Baker dissented, agreeing that the affidavit did not establish the CI’s credibility and lacked probable cause, but that the good-faith exception should apply in this case.

Feb. 26

Domestic Relation – Premarital Agreement

Julie M. Fetters v. Jay M. Fetters


A premarital agreement entered into by a pregnant teenage girl and her future husband who was twice her age was unconscionable when the agreement was executed in 1995, the Indiana Court of Appeals held in an issue of first impression.

Julie Fetters filed for divorce from Jay Fetters in 2011 after 15 years of marriage. The two met when Julie Fetters was 14 and Jay Fetters was 29. She became pregnant at age 15 and in an attempt to circumvent criminal charges, Jay Fetters asked Julie Fetters to marry him. He also asked her to sign a premarital agreement prepared by his attorney that stated each party would retain their own separate property in the event of the divorce.

Julie Fetters and her mother went to the attorney’s office to sign the agreement. She signed it despite a lack of education and not understanding the agreement. She dropped out of school and eventually worked as a nurses’ aide. Jay Fetters continued to work as a school janitor and has a PERF pension. She has two vehicles in her name and he has the marital home, two vehicles and one motorcycle in his name.

The trial court divided property in accordance to the prenuptial agreement, denying Julie Fetters’ request to invalidate it. She was only awarded her two vehicles in the divorce.

The case required the Indiana Court of Appeals to look at the Uniform Premarital Agreement Act that went into effect July 1, 1995. No reported Indiana decision has interpreted the Act since its adoption and there apparently are no other cases remotely similar to this one in Indiana or elsewhere. The Act says the agreement is not enforceable if the party did not execute the agreement voluntarily or the agreement was unconscionable when the agreement was executed.

The appeals court found the second reason applicable in this case. Julie Fetters was a minor when she executed the agreement, was not highly educated and did not understand the agreement. She was not represented by legal counsel and her mother also seemed to not understand the agreement, Judge Michael Barnes wrote. Jay Fetters benefited greatly from the agreement, as he got to keep his assets and avoid criminal prosecution whereas Julie Fetters ended up dropping out of school and working at low-wage jobs. She also brought no assets into the marriage.

The COA also held the trial judge erred when he concluded that she was time-barred from challenging the agreement because she did not attempt to invalidate it for 15 years.

“We believe it is clear from the statutory language, along with the caselaw definitions of laches and estoppel, that the mere fact that Julie stayed married to Jay from approximately fifteen years and did not attempt to disavow the premarital agreement before she filed for divorce is not a bar to her disavowal. Rather, there must at least be some evidence or proof of Jay’s detrimental reliance on Julie’s failure to disavow the agreement, and there is none in this case,” Barnes wrote. The case is remanded for further proceedings.  

Civil Plenary – Indiana Antitrust Act

Skyline Roofing & Sheet Metal Company, Inc. v. Ziolkowski Construction, Inc. and United Union Roofers, Waterproofers and Allied Workers Local #26


A non-union subcontractor presented evidence establishing a genuine issue of material fact that the company awarded a contract to build a new school violated Indiana’s Antitrust Act by unlawfully restraining open and free competition for the public project, the Court of Appeals held.

With the support of local unions, the Kankakee Valley School Corporation passed a referendum to fund a new middle school project. The superintendent of Kankakee Valley, Glenn Krueger, specified at the time it advertised bids for the project that he did not want to see non-union contractors on the bid list. Ziolkowski Construction Inc. was the successful bidder on the project, but its bid included Skyline Roofing & Sheet Metal Co. Inc., a non-union subcontractor, to work on the roofing system.

After learning Skyline was non-union, Krueger talked to the school corporation’s construction attorney and also let Ziolkowski know that there were issues that Skyline is non-union and he “was not happy with this situation.” This led to a meeting with Bill Favors, president of Ziolkowski, who later determined that the roof system would need switched out because of construction in the winter months and sought bids from three union companies. A different company was eventually awarded the roof subcontract, leading to the lawsuit filed by Skyline.

In 2011, the trial court dismissed Skyline’s complaint, but the COA reversed and remanded for further proceedings. This is the second time this case has made its way to the appeals court. This time, the trial court found no genuine issues of material fact and entered summary judgment in favor of the defendants.

“Viewing the designated evidence in favor of the nonmoving party, we conclude that the evidence amounts to more than ‘speculation’ and ‘innuendo’ and raises at a minimum a genuine issue of material fact that Ziolkowski colluded to substitute a non-union contractor with a union contractor,” Judge Patricia Riley wrote.

“Serving as a catalyst, Krueger’s disgruntled emails about selecting a non-union roofing contractor and his two cautions of ‘discussing [his] legal actions,’ spurred Ziolkowski into action to save the Project and ensure a ‘smooth construction.’ Ziolkowski turned to Midland, a union roofing contractor, to replace Skyline, despite having publicly submitted Skyline as its roofing subcontractor in its subcontractor list. With financial incentives received from Local #26 and a change order for the roofing specifications, Ziolkowski entered into an agreement with Midland. In this light, we conclude that the trial court erred in granting summary judgment to Ziolkowski. We reverse the trial court’s grant of summary judgment and remand this cause for further proceedings.”

Miscellaneous – Driver’s License/Proof of Financial Responsibility

Indiana Bureau of Motor Vehicles v. Jennifer M. Gurtner


Because an Indiana driver did not take advantage of an available statutory method for challenging the suspension of her license before filing a petition for judicial review, the Court of Appeals reversed the grant of judicial review that ruled in her favor.

Jennifer Gurtner struck a deer while driving and she reported the damage to the police. The Bureau of Motor Vehicles contacted her and needed proof of automobile insurance on the car at the time of the accident. Gurtner believed the car had coverage, but because of a mistake on the part of her insurance agent, the car involved in the accident was not covered.

The BMV then told her the driver’s license would be suspended pursuant to I.C. 9-25-6-3 for not providing the insurance coverage information. Gurtner then filed a verified petition for judicial review, which the trial court granted. The judge found the BMV does not allow drivers an administrative hearing to dispute or explain problems with complying with proof of financial responsibility and then ordered the BMV to not suspend her license and immediately reinstate her full driving privileges.

But this was an error, the COA held. It does not appear that the BMV would have been statutorily authorized to disregard the clear language of the statute requiring her license suspension, even if the BMV provided Gurtner with the opportunity to request a hearing to present her evidence, Judge Paul Mathias wrote.

“Here, the BMV suspended Gurtner’s license before the petition for judicial review could be heard. However, Gurtner failed to request any stay of the suspension of her license. Perhaps more importantly, neither did she request a ‘hardship’ license. At the time Gurtner’s suspension was pending, Indiana Code section 9-24-15-1(1) provided that a trial court could grant a hardship license to an individual who failed to provide proof of financial responsibility after receiving a request for such proof following an accident ‘if the individual shows by a preponderance of the evidence that the failure to maintain financial responsibility was inadvertent.’

“Had Gurtner availed herself of this provision, she could have demonstrated that her failure to maintain her financial responsibility was inadvertent and thereby have been able to maintain some, or all, of her driving privileges. In other words, a statutory method was available for Gurtner to present her claim – via a request for a hardship license. Yet Gurtner failed to avail herself of this available statutory method. Under these facts and circumstances, we cannot say that Gurtner was denied procedural due process.”

Civil Plenary – Town Council Appointment/Timely Claim

Thomas L. Arflack v. Town of Chandler, Indiana; Chandler Town Council; and Town of Chandler Advisory Plan Commission


The member of a town’s advisory plan commission who was appointed to a four-year term, then unanimously recalled, will be allowed to go forward with his lawsuit stemming from his removal, the Indiana Court of Appeals ruled.

Thomas Arflack was appointed by the Chandler Town Council to fill a vacant position on the town’s Advisory Plan Commission. The council then voted to reappoint him Jan. 6, 2014, after his previous term ended. Two weeks later, the council unanimously recalled its vote approving him to the commission and appointed his replacement on March 17, 2014.

Arflack filed a complaint for declaratory and injunctive relief, asserting due process violations because the town council did not provide him with notice. He also claimed that the removal was invalid under I.C. 34-14-1-2. He sought to complete his four-year term. The trial court granted Chandler’s motion to dismiss.

Chandler asserted that Arflack failed to timely file his complaint pursuant to I.C. 34-13-6-1. It claimed that since he was removed from the commission on Jan. 21, 2014, he had 30 days from that date to file his complaint. Since he filed it April 4, it argued he filed outside the statutory period.

But no cause of action accrued on Jan. 21 because the town council failed to notify Arflack in writing of the vote to remove him and he statutorily continued to serve until his successor was appointed. Therefore, his complaint was well within the 30-day period, Judge Patricia Riley wrote.

Chief Judge Nancy Vaidik wrote in a separate concurring opinion that the majority went beyond testing the legal sufficiency of his complaint and resolved in his favor Arflack’s claim that he could only be removed for cause and was entitled to written notice. She would simply reject the town council’s claim that his complaint is untimely and leave it up to the trial court to determine for-cause removal.

The judges found that Arflack’s complaint sufficiently asserted a factual scenario in which a legally actionable injury has occurred and his failure to comply with the pleading requirements of T.R. 9.2(A) does not warrant dismissal of his complaint. The case is remanded for further proceedings.

March 3

Civil Plenary – Tax Warrant/Funds

Gordon A. Etzler v. Indiana Department of Revenue


A Marshall County trial court erred when it granted summary judgment in favor of the Indiana Department of Revenue on a man’s attempt to collect breeder’s award proceeds owed to another man who had outstanding tax warrants.

The Department of Revenue filed four tax warrants in Marshall County against Dale Dodson in 2000 and 2010 for unpaid income taxes he owed. Gordon Etzler filed a UCC financing statement later in 2010 asserting an interest in the breeder’s award proceeds owed to Dodson by the Indiana Horse Racing Commission. More than $11,000 in breeder’s awards were levied against Dodson and were intercepted by the state to pay his outstanding tax liabilities.

Etzler demanded from the revenue department those funds. When the state refused to pay them, Etzler sued in Porter County. The case was transferred to Marshall County, where the trial court ruled in favor of the state.

The Court of Appeals concluded that Etzler is entitled to summary judgment, so it reversed the lower court. The department argued that since it filed the tax warrants before Etzler filed his UCC financing statement, it was entitled to the breeder’s award proceeds.

Indiana Code 6-8.1-8-8 limits the department’s authority to collect upon its lien “without judicial proceedings” to the property “in the county” in which the tax warrant was issued and a judgment created pursuant to I.C. 6-8.1-8-2. The state only filed a tax warrant in Marshall County and did not attempt to enforce the judgment by any action available to it in order to satisfy the judgment.

“We conclude that because the judgment resulting from the Department’s Marshall County tax warrant only creates a lien on property ‘in the county,’ Ind. Code § 6-8.1-8-2(e), and because the Department did not take measures to establish a lien on property located in any other county, the Department’s ability to levy on Dodson’s property was limited to Marshall County,” Judge Margret Robb wrote.

“The Department levied on the breeder’s award proceeds prior to their deposit in Dodson’s bank account and thus prior to the Department’s ability to collect directly from a financial institution under Indiana Code section 6-8.1-8-8(1). The Department does not dispute that the funds were located outside of Marshall County at the time they were seized. Consequently, we conclude that the Department did not have authority to levy on the breeder’s award proceeds and that it is not entitled to summary judgment.”

Agency Action – Employment Termination

Advanced Correctional Healthcare, Inc. v. Review Board of the Indiana Department of Workforce Development, et al.


The Indiana Court of Appeals reversed the decision by an administrative law judge that a nurse was not fired for just cause. The COA noted surprise that the man’s claims he was joking when he made sexually inappropriate comments to co-workers led the ALJ to decide the actions did not amount to violation of his employer’s sexual harassment policy.

M.W. worked as a nurse for Advanced Correction Healthcare. He signed a form stating he was aware of the company’s sexual harassment policy, which is a zero-tolerance policy. Less than two years after he joined the company, ACH received reports of unwelcome sexual comments by M.W. from people who worked for two different employers and worked at five different jail locations. The company fired him in January 2014 for repeatedly violating the sexual harassment policy.

An administrative law judge determined that M.W. was not fired for cause and thus eligible for unemployment benefits. Of the 12 complaints, he admitted to or could not deny making four of them: a comment about an officer’s breasts; telling an inmate that T.W. “was his woman”; telling K.H. that “if [her] husband isn’t cuttin’ it for [her], he could show [her] a few things”; and being flirtatious with S.W., whom he supervised.

“There is virtually no evidence in the record supporting the ALJ’s conclusion that these four instances did not constitute violations of ACH’s Sexual Harassment Policy. We also note our reluctance to accede to the ALJ’s decision to discredit and disbelieve each and every one of the eleven complainants. We also note our surprise, in this day and age, that a judicial officer would find that if the speaker is merely joking, or if the person about whom the speaker is making lewd comments is not present, that such actions do not violate a sexual harassment policy. All of that said, the four instances that M.W. did not deny clearly violate both the spirit and letter of ACH’s sexual harassment policy,” Judge John Baker wrote.

“We note, again, that ACH was not required to prove that M.W. committed actionable sexual harassment, and we have not made any findings in that regard in this opinion. As aptly noted by ACH, it should not have to wait until M.W.’s actions became so egregious that they were legally actionable to terminate his employment. Instead, ACH was merely required to show that M.W. was terminated for just cause; specifically, that he was terminated for violating the Sexual Harassment Policy.”•

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