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Tuesday, March 03, 2015

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 3 NFP memorandum decisions)

For publication opinions today (2):

In Gordon A. Etzler v. Indiana Department of Revenue, a 9-page opinion, Judge Robb writes:

Gordon Etzler, pro se, appeals the trial court’s award of summary judgment in favor of the Indiana Department of Revenue (the “Department”). Etzler raises two issues for our review: (1) whether the trial court abused its discretion by denying Etzler’s motion to strike an affidavit designated by the Department in support of its motion for summary judgment; and (2) whether the trial court erred by awarding summary judgment to the Department. * * *

We conclude that Etzler had priority in the breeder’s award proceeds and that the Department did not have statutory authority to levy upon those proceeds in the manner it did. Therefore, the trial court erred by awarding summary judgment to the Department and denying Etzler’s motion for summary judgment. Reversed.

In Advanced Correctional Healthcare, Inc. v. Review Board of the Indiana Department of Workforce Development, et al. , a 14-page opinion, Judge Baker writes:
Advanced Correctional Healthcare (ACH)[1] appeals the determination of the Review Board of the Indiana Department of Workforce Development (the Board) that M.W., a former employee of ACH, is entitled to unemployment insurance because he was not fired for just cause. Evidence was presented that eleven people from two different employers and five separate work locations had complained about inappropriate sexual comments made by M.W. Despite this evidence, and despite the fact that M.W. did not deny four of the complained-of conversations, the Board found that M.W. had not violated ACH’s sexual harassment policy and was not fired for just cause. Finding a lack of substantial evidence supporting this judgment, we reverse. * * *

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. We find that the Board erred by concluding that M.W. was not fired for just cause.
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[1] As of January 13, 2015, Administrative Rule 9 has been amended. In the past, parties to unemployment compensation proceedings were required to make an affirmative request to remain confidential in court records. See Recker v. Review Bd. of Ind. Dep’t of Workforce Dev., 958 N.E.2d 1136, 1138 n.4 (Ind. 2011). The newly amended Rule 9 has a default position of confidentiality such that parties need no longer make an affirmative request in that regard. Ind. Administrative Rule 9(G)(6). The corollary, however, is that the party or person affected by the release of the protected personal information may waive the right to exclude the court record from public access. Id. Here, ACH used its own name in its appellate pleadings and did not file any of its briefs or appendix on green paper. Consequently, we find that it has waived the right to have its name excluded from the court record. Because M.W. is not taking part personally in this appeal, we decline to find that he has waived confidentiality and will refer to him by initials.

ILB: For more on this footnote re Rule 9, see the ILB note after the Sept. 12, 2013 Albright opinion.

NFP civil decisions today (1):

Carol Hanquier and Jose Hanquier v. Joseph Hall and Pekin Insurance (mem. dec.)

NFP criminal decisions today (2):

Sidney Lamour Tyson v. State of Indiana (mem. dec.)

Elijah Moore v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on March 3, 2015 12:43 PM
Posted to Ind. App.Ct. Decisions