Evonne Carrillo v. Review Board of the Ind. Dept. of Workforce Development and Skozen & Skozen, LLP

• Court: Indiana Court of Appeals
• Decided: July 24, 2012
• Docket: 93A02-1108-EX-794
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE: ATTORNEYS FOR APPELLEES:

EVONNE CARRILLO GREGORY F. ZOELLER Munster, Indiana Attorney General of Indiana

JANINE STECK HUFFMAN Deputy Attorney General Indianapolis, Indiana

IN THE FILED Jul 24 2012, 9:13 am COURT OF APPEALS OF INDIANA CLERK of the supreme court, court of appeals and EVONNE CARRILLO, ) tax court

) Appellant-Petitioner, ) ) vs. ) No. 93A02-1108-EX-794 ) REVIEW BOARD OF THE INDIANA ) DEPARTMENT OF WORKFORCE ) DEVELOPMENT and ) SKOZEN & SKOZEN, LLP, ) ) Appellees-Respondents. )

APPEAL FROM THE REVIEW BOARD OF THE INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT The Honorable Steven F. Bier, Chairperson The Honorable George H. Baker and The Honorable Larry A. Dailey, Members Cause No. 11-R-2886

July 24, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge Evonne Carrillo1 (“Carrillo”) appeals the decision of the Unemployment Insurance

Review Board of the Indiana Department of Workforce Development (“Review Board”),

which affirmed the Administrative Law Judge’s decision that Carrillo was discharged for

just cause and was not eligible to receive unemployment insurance benefits. Carrillo raises

two issues; however, we find the following restated issue to be dispositive: whether the

Review Board’s decision that Carrillo was discharged from her employment for just cause

was reasonable.

We affirm.

FACTS AND PROCEDURAL HISTORY

Skozen & Skozen, LLP (“Skozen”) is a law practice, consisting of two partners: Lisa

K. Misner-Skozen and Joseph Skozen. Carrillo was hired at Skozen on or around January 3,

2006 and worked full-time as a legal assistant. In October 2010, Carrillo received a

reprimand for violating the office policy concerning computer usage and for failing to

follow written instructions for completion of work. Tr. at 3 (Employer’s Ex. 2). In January

2011, she was disciplined again for poor work performance. Id. After that happened,

Carrillo expressed her desire that Skozen only communicate with her “in written form

through written work instructions or emails to her.” Tr. at 8.

1 Neither Carrillo nor her employer has sought to maintain their confidentiality in these proceedings; accordingly, we use their full names in this decision. See Conklin v. Review Bd. of Ind. Dep’t of Workforce Dev., 966 N.E.2d 761, 762 n.1 (Ind. Ct. App. 2012) (citing Recker v. Review Bd. of Ind. Dep’t of Workforce Dev., 958 N.E.2d 1136, 1138 n.4 (Ind. 2011)); Moore v. Review Bd. of Ind. Dep’t of Workforce Dev., 951 N.E.2d 301, 304-06 (Ind. Ct. App. 2011) (discussing Indiana Administrative Rule 9(G) and Indiana Code section 22-4-19-6 and holding it is appropriate for appellate court to use full names of parties in routine appeals from the Review Board).

2 On Friday, March 18, 2011, Carrillo received a typed written work assignment from

Misner-Skozen that directed Carrillo to pay the inheritance taxes due on a specified client’s

estate. The work assignment was marked “RUSH” multiple times, and it directed Carrillo to

prepare a cover letter and “Send certified to the Lake County Treasurer” on March 18. Id. at

44 (Employer’s Ex. 4). Misner-Skozen also gave Carrillo a handwritten note stating,

“Evonne, Here is the check for the Inheritance Taxes. Make certain it is mailed certified to

the Lake County Treasurer today.” Id. at 48 (Employer’s Ex. 6) (emphasis in original). The

attached check was payable to the Lake County Treasurer.

Carrillo prepared a cover letter on March 18 and presented it to Misner-Skozen, who

signed it. Misner-Skozen did not notice that the address typed on the letter was to the

Indiana Department of Revenue (“INDOR”) in Indianapolis. Carrillo mailed the letter and

check by certified mail to the INDOR in Indianapolis, not the Lake County Treasurer in

Crown Point, Indiana. Later that day, Carrillo realized that she had sent the tax payment to

the wrong location and discussed the matter with fellow employee Mildred M. Luebbe

(“Luebbe”), who suggested that perhaps the INDOR would record the payment and notify

the proper Lake County office. Id. at 49. Carrillo did not notify Misner-Skozen or Skozen

that the inheritance check was mailed to the wrong entity. The following Wednesday,

Misner-Skozen saw the certified mail receipt from the postal service and realized the tax

check and letter were sent to the wrong location. As a result, Skozen suffered consequences

with the client. Skozen terminated Carrillo’s employment on March 29, 2011.

3 Thereafter, Carrillo filed an application for unemployment benefits. A claims deputy

(“Deputy”) of the Indiana Department of Workforce Development determined that Carrillo’s

discharge was not for just cause and that she was eligible for unemployment benefits.

Skozen appealed to an administrative law judge (“ALJ”), who, after a telephonic hearing at

which all parties participated, reversed the Deputy’s determination and found that Carrillo

was terminated for just cause and was not eligible for unemployment benefits. Carrillo

appealed, and the Review Board adopted the ALJ’s decision and incorporated her order by

reference. Carrillo now appeals.

DISCUSSION AND DECISION

Carrillo, pro se, claims that the Review Board’s decision was erroneous and that her

unemployment benefits should be reinstated. Initially, we note that pro se litigants are held

to the same standard as are licensed attorneys. Moore v. Review Bd. of Ind. Dep’t of

Workforce Dev., 951 N.E.2d 301, 306 (Ind. Ct. App. 2011). Consequently, a litigant who

chooses to proceed pro se must, like trained legal counsel, be prepared to accept the

consequences of her action if she fails to adhere to procedural rules. Ramsey v. Review Bd.

of Ind. Dep’t of Workforce Dev., 789 N.E.2d 486, 487 (Ind. Ct. App. 2003). Indiana

Appellate Rule 46(A)(8) provides in part that the argument section of the appellant’s brief

“must contain the contentions of the appellant on the issues presented, supported by cogent

reasoning,” along with citations to the authorities, statutes, and parts of the record relied

upon, and a clear showing of how the issues and contentions in support thereof relate to the

4 particular facts of the case under review. Moore, 951 N.E.2d at 306. Failure to comply with

this rule results in waiver of the argument on appeal. See Ramsey, 789 N.E.2d at 490.

Here, in the argument section of her brief, Carrillo raises several alleged errors and

highlights conflicts in the evidence presented to the ALJ; however, she fails to support her

arguments with relevant authority of any sort. She thereby has waived her claims that the

Review Board’s decision was in error. However, because we prefer to dispose of cases on

their merits, see Moore, 951 N.E.2d at 306, and because the parties’ briefs provide us with

sufficient information to discern Carrillo’s arguments, we consider the merits of her appeal.

The purpose of Indiana’s Unemployment Compensation Act (the “Act”), Indiana

Code article 22-4, is “‘to provide benefits to those who are involuntarily out of work,

through no fault of their own, for reasons beyond their control.’” Davis v. Review Bd. of

Ind. Dep’t of Workforce Dev., 900 N.E.2d 488, 492 (Ind. Ct. App. 2009) (quoting Wasylk v.

Review Bd. of Ind. Emp’t Sec. Div., 454 N.E.2d 1243, 1245 (Ind. Ct. App. 1983)).

Unemployment insurance benefits, however, are not an unqualified right and may be denied

to claimants who are disqualified by any of the various exceptions provided in the Act. For

example, an unemployed claimant is ineligible for unemployment benefits if he or she was

terminated for “just cause.” Ind. Code § 22-4-15-1. An employer seeking to deny

unemployment benefits to a fired employee bears the burden of establishing a prima facie

case that the discharge was for “just cause.” Nersessian v. Review Bd. of Ind. Dep’t of

Workforce Dev., 798 N.E.2d 480, 482 (Ind. Ct. App. 2003). Once this burden is met, the

employee bears the burden of producing evidence to rebut the employer’s evidence. Id.

5 Among the definitions of just cause contained in Indiana Code section 22-4-15-1(d)(5) is

“refusing to obey instructions,” which is the basis upon which Skozen relied to terminate

Carrillo’s employment. The ALJ agreed with Skozen and determined that Carrillo was

discharged for just cause, and the Review Board affirmed that determination.

When reviewing a decision of the Review Board, our analysis is threefold: (1) we

review findings of basic fact for substantial evidence; (2) we review findings of mixed

questions of law and fact—ultimate facts—for reasonableness; and (3) we review legal

propositions for correctness. Recker v. Review Bd. of Ind. Dep’t of Workforce Dev., 958

N.E.2d 1136, 1139 (Ind. 2011). “Ultimate facts are facts that ‘involve an inference or

deduction based on the findings of basic fact.’” Id. (quoting McClain v. Review Bd. of Ind.

Dep’t of Workforce Dev., 693 N.E.2d 1314, 1317 (Ind. 1998)). Whether Skozen discharged

Carrillo from her employment for “just cause,” thus disqualifying her from eligibility for

unemployment benefits, presents a question of ultimate fact that we review for

reasonableness. Conklin v. Review Bd. of Ind. Dep’t of Workforce Dev., 966 N.E.2d 761,

763 (Ind. Ct. App. 2012). We will not reverse the Review Board’s decision unless

reasonable people would be bound to reach a different conclusion. Davis, 900 N.E.2d at

492.

Here, the evidence most favorable to the decision is that Skozen terminated Carrillo

from her employment because, contrary to two separate written instructions directing that

the tax payment be sent to the Lake County Treasurer’s Office, Carrillo mailed the letter and

tax payment check to the INDOR in Indianapolis, and further, she realized that same day

6 that she had sent it to the wrong entity but did not report it to Skozen. Instead, she attempted

contact with INDOR to inquire about or rectify the matter. At no time did she advise

Skozen of the situation. We recognize that Carrillo presented evidence asserting that

Misner-Skozen provided Carrillo with the Indianapolis address and thus she, not Carrillo,

was at fault for sending it to Indianapolis; Misner-Skozen presented evidence to the

contrary. Carrillo’s argument, then, is an invitation for us to reweigh the evidence and

consider evidence that is not favorable to the Review Board’s decision. Our standard of

review precludes that course. See McClain, 693 N.E.2d at 1317 (appellate court does not

reweigh evidence or assess credibility of witnesses and considers only evidence most

favorable to Review Board’s findings).

Furthermore, to the extent Carrillo asserts that her act of sending the tax payment to

the wrong location was not intentional, the relevant inquiry is not whether the incorrect

mailing was intentional, but rather whether it was the result of a “volitional act” or

circumstances over which Carrillo “exercised some control.” Conklin, 966 N.E.2d at 765

(citing Recker, 958 N.E.2d at 1142). Clearly, Carrillo’s preparation and mailing of the tax

payment was not an involuntary act or one over which she exercised no control. Cf.

Conklin, 966 N.E.2d at 765-66 (employee truck driver’s involuntary loss of consciousness

while driving did not constitute volitional act or circumstance over which he exercised

control, and thus Review Board’s finding that he was discharged for just cause was

unreasonable).

7 Carrillo also argues that she did not “conceal” anything because the INDOR address

was typed on the letter that Misner-Skozen signed. See Appellant’s Br. at 4. We

acknowledge that Misner-Skozen retained the responsibility to her client for the letter, and

indeed suffered negative consequences because the tax payment was sent to the wrong entity

and thus was deemed delinquent; however, Carrillo knew on Friday March 18, the date that

she mailed the letter and check, that she had sent it to the wrong entity but she nevertheless

did not disclose that to Misner-Skozen. In fact, nothing was said of it until Misner-Skozen

discovered the problem five days later, upon return of the certified mail receipt from the

postal service. In so doing, Carrillo breached the duty of basic honesty and truthfulness to

her employer. See McHugh v. Review Bd. of Ind. Dep’t of Workforce Dev., 842 N.E.2d 436,

442 (Ind. Ct. App. 2006) (employee breached duty of honesty and truthfulness to employer

when she requested time off to take care of specified personal matters but instead attended

Carburetion Day at Indianapolis Motor Speedway, which constituted just cause for her

termination).

As stated, the burden of establishing that the discharge was for just cause is upon the

employer. Wakshlag v. Review Bd. of Ind. Emp’t Sec. Div., 413 N.E.2d 1078, 1082 (Ind. Ct.

App. 1980). However, upon review to this court, the burden is upon the claimant to show

that reversible error exists. Id. Here, the Review Board determined that Skozen discharged

Carrillo for just cause, and Carrillo has failed to establish otherwise. Based on the record

before us, we cannot say that reasonable people would have been bound to find a different

result. See id. (affirming Review Board’s decision that legal secretary was fired for just

8 cause where employer had held meetings with employee about mistakes in her work and her

failure to perform tasks pursuant to instructions).

Affirmed.

BAKER, J., and BROWN, J., concur.