KOEWLER v. DEPT. OF WORKFORCE DEVELOPMENT
951 N.E.2d 272 (2011)
Nolan KOEWLER, Appellant,
v.
REVIEW BOARD OF the INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and Dillards, Inc., Appellees.
No. 93A02-1012-EX-1431.
Court of Appeals of Indiana.
July 7, 2011.
OPINIONBAILEY, Judge.
Case SummaryNolan Koewler ("Koewler") appeals the decision of the Review Board of the Indiana Department of Workforce Development ("the Board"), concluding that Koewler is disqualified from receiving unemployment insurance benefits because he was discharged for just cause from the employment of Dillards, Inc. ("Dillards"). Koewler presents the sole issue of whether the decision is contrary to law. We reverse.
Facts and Procedural HistoryOn July 4, 2010, Dillards conducted a cookout, offering employees food, including hamburgers and hotdogs, which had been purchased using Dillard's credit card. Dock Manager Mike Marz ("Marz") intended the leftovers to be "saved for Labor Day."1 (Tr. 12.) He told employees "to carry it up and put it in the freezers in the break room for storage" and he "believed" Koewler had heard this instruction. (Tr. 13.) On the following day, Koewler removed two leftover hotdogs from the refrigerator and consumed them. Marz reviewed a surveillance video and reported to the store manager that Koewler was a suspected hotdog thief. At a meeting with the store manager, Koewler admitted the truth of the allegation. A police officer was summoned, and the store manager advised Koewler that he had a choice: sign a statement that he stole two leftover hotdogs from the Fourth of July independence celebration for employees or spend the night in jail. Koewler signed a statement admitting theft. He was then discharged from his employment.
1. Marz testified that the food was to be saved for Labor Day, but did not testify that he had specifically informed any employee of the intended use date. According to the testimony, the employees were merely told to transport the food and put it in freezers. Apparently, the instruction was unclear or disregarded because the food was retrieved from the refrigerator and not the freezer. Six employees had access to the refrigerator; at least one other employee was also accused of leftover food theft.
2. Ind.Code § 22-4-15-1(d)(9).
3. As for asset value, Store Manager Robert Putnam testified, "we had him on camera taking company food" and, when asked to assign a dollar amount to that specific food, testified "there, there'd be no way to tell. I couldn't give you exact dollar amount." (Tr. 8.) It is unclear what "value or use," a requisite element of our Theft statute, Ind.Code § 35-43-4-2, the leftover hotdogs placed into the refrigerator would have had. Although Marz told employees to place leftover hotdogs in a freezer, the hotdogs at issue were in fact stored in and retrieved from a refrigerator. We assume that two hotdogs in said storage lacked great market value and that the intrinsic value to Dillards was diminishing as the safe consumption date approached.
4. The Board adopted the findings of fact of the ALJ except to the extent inconsistent with the Board decision.