MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Nov 20 2015, 8:37 am
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 M.B. Gregory F. Zoeller Dubois, Indiana Attorney General of Indiana Aaron T. Craft Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
M.B., November 20, 2015 Appellant, Court of Appeals Case No. 93A02-1504-EX-255 v. Appeal from the Review Board of the Department of Workforce Review Board of the Indiana Development Department of Workforce The Honorable Steven F. Bier, Development, and Company, Chairperson, The Honorable George H. Baker, Member, and Appellees The Honorable Larry A. Dailey, Member Cause No. 15-R-422
Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-255 | November 20, 2015 Page 1 of 7 Baker, Judge.
[1] M.B. appeals the order of the Review Board of the Indiana Department of
Workforce Development (Review Board), which found that he voluntarily left
his employment, disqualifying him from receiving unemployment benefits.
Finding substantial evidence from which the Review Board could make this
determination, we affirm.
Facts [2] M.B. worked as a truck driver for Employer1 from March 7, 2014, until October
31, 2014. At the end of his employment, M.B. filed for unemployment benefits,
and on December 8, 2014, a claims deputy for the Department of Workforce
Development approved his claim. The claims deputy framed the case as
whether there was “discharge for just cause,” and found that “[i]t has not been
established that the claimant was warned that the job was in jeopardy, nor that
specific warnings were issued.” Appellee’s App. 16.2
[3] On December 17, 2014, Employer appealed the claims deputy’s determination.
In the notice of hearing, the Administrative Law Judge (ALJ) stated the issues
1 Under the newly amended Administrative Rule 9, the default rule is of confidentiality unless waived. Ind. Administrative Rule 9(G)(6). Therefore, we will use initials for the employee and “Employer” for the employer in this case. 2 M.B.’s Appellant’s Appendix is lacking several materials required by the Indiana Appellate Rules. Specifically, it does not include a chronological case summary, nor the order being appealed. App. R. v50(a)(2). Although M.B. is proceeding pro se, “pro se plaintiffs are held to the same rules of procedure as licensed attorneys.” Nesses v. Specialty Connectors Co., 564 N.E.2d 322, 326 (Ind. Ct. App. 1990). Nevertheless, we are able to adequately resolve this case on the merits because the Review Board has graciously supplemented the record with its own appendix. We thank the Review Board for this courtesy.
Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-255 | November 20, 2015 Page 2 of 7 as follows: “Whether the employer discharged the claimant for just cause. IC
22-4-15-1(d)(1-9). Whether the claimant voluntarily left the employment
without good cause in connection with the work. IC 22-4-15-1(a)-(b).” Id. at
17. On January 29, 2015, M.B. requested “a continuance do [sic] to the fact
that I need more time to get my evidence and exhibits ready for the hearing.”
Id. at 10. The ALJ denied this request on the grounds that “Claimant did not
show good cause.” Id. at 11.
[4] The ALJ heard the case on February 3, 2015. Present at this telephonic hearing
were Employer’s operations manager, Employer’s safety director, M.B., and
M.B.’s wife. The parties presented conflicting narratives of M.B.’s final day
with Employer.
[5] Both of Employer’s witnesses testified that M.B. was called in to discuss several
deliveries he had made behind schedule. Employer planned on giving M.B. a
warning. M.B. angrily requested proof that his deliveries were behind schedule,
but before the safety director returned with the files, M.B. rushed out of the
building, called the police, and never contacted Employer again until the filing
of his unemployment claim.
[6] M.B. agreed that he was called in for a meeting, but said that Employer
summarily fired him. M.B. alleged that Employer was retaliating after M.B.
filed a workman’s compensation claim. He said that he called the police
because the operations manager and safety director followed him aggressively
when he walked outside. M.B. also claimed that he had called his wife just
Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-255 | November 20, 2015 Page 3 of 7 before being summoned into the meeting, and that she was on speaker phone
during the entire conversation. She claimed to have heard the operations
manager tell M.B. that M.B. was fired. At the hearing, the ALJ repeatedly told
M.B. to stay on the topic of whether he was discharged, but M.B. was more
interested in attempting to impeach the documents showing his check-in times.
M.B. explained, “I thought . . . this hearing was over whether I was late or not.
I didn’t know it was over whether I was discharged or not.” Tr. p. 27.
[7] On February 9, 2015, the ALJ reversed the claims deputy’s determination that
M.B. was entitled to unemployment benefits. The ALJ found the Employer’s
narrative more credible:
It was within the scope of the employer’s authority to discuss customer complaints with the claimant. There is no evidence that the employer was being unduly harsh or threatening during the meeting. The employer’s testimony is credible due to the claimant demonstrating that he was not able to follow completely what was being told to him during the hearing. The claimant may have felt he was being discharged but may have misunderstood what the employer was discussing. The claimant would not be eligible for unemployment benefits.
Appellee’s App. 4. M.B. appealed the ALJ’s decision to the Review Board.
The Review Board adopted the ALJ’s findings of fact and conclusions of law,
and affirmed the ALJ’s decision. M.B. now appeals.
Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-255 | November 20, 2015 Page 4 of 7 Discussion and Decision [8] In considering M.B.’s challenge, we must review the sufficiency of the facts
found to sustain the decision and the sufficiency of the evidence to sustain the
findings of fact. Ind. Code § 22-4-17-12(f). We apply a three-part standard of
review: (1) findings of basic fact are reviewed for substantial evidence; (2)
findings of mixed questions of law and fact—ultimate facts—are reviewed for
reasonableness; and (3) legal propositions are reviewed for correctness.
Advanced Corr. Healthcare, Inc. v. Review Bd. of Ind. Dep’t of Workforce Dev., 27
N.E.3d 322, 327 (Ind. Ct. App. 2015). We will neither reweigh the evidence
nor assess witness credibility, and we consider only the evidence most favorable
to the Review Board’s findings. Chrysler Grp. v. Review Bd. of Ind. Dep’t of
Workforce Dev., 960 N.E.2d 118, 122 (Ind. 2012).
[9] In Indiana, an employee is not eligible for unemployment benefits if he
voluntarily leaves his employment without good cause in connection with the
work. Ind.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Nov 20 2015, 8:37 am
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 M.B. Gregory F. Zoeller Dubois, Indiana Attorney General of Indiana Aaron T. Craft Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
M.B., November 20, 2015 Appellant, Court of Appeals Case No. 93A02-1504-EX-255 v. Appeal from the Review Board of the Department of Workforce Review Board of the Indiana Development Department of Workforce The Honorable Steven F. Bier, Development, and Company, Chairperson, The Honorable George H. Baker, Member, and Appellees The Honorable Larry A. Dailey, Member Cause No. 15-R-422
Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-255 | November 20, 2015 Page 1 of 7 Baker, Judge.
[1] M.B. appeals the order of the Review Board of the Indiana Department of
Workforce Development (Review Board), which found that he voluntarily left
his employment, disqualifying him from receiving unemployment benefits.
Finding substantial evidence from which the Review Board could make this
determination, we affirm.
Facts [2] M.B. worked as a truck driver for Employer1 from March 7, 2014, until October
31, 2014. At the end of his employment, M.B. filed for unemployment benefits,
and on December 8, 2014, a claims deputy for the Department of Workforce
Development approved his claim. The claims deputy framed the case as
whether there was “discharge for just cause,” and found that “[i]t has not been
established that the claimant was warned that the job was in jeopardy, nor that
specific warnings were issued.” Appellee’s App. 16.2
[3] On December 17, 2014, Employer appealed the claims deputy’s determination.
In the notice of hearing, the Administrative Law Judge (ALJ) stated the issues
1 Under the newly amended Administrative Rule 9, the default rule is of confidentiality unless waived. Ind. Administrative Rule 9(G)(6). Therefore, we will use initials for the employee and “Employer” for the employer in this case. 2 M.B.’s Appellant’s Appendix is lacking several materials required by the Indiana Appellate Rules. Specifically, it does not include a chronological case summary, nor the order being appealed. App. R. v50(a)(2). Although M.B. is proceeding pro se, “pro se plaintiffs are held to the same rules of procedure as licensed attorneys.” Nesses v. Specialty Connectors Co., 564 N.E.2d 322, 326 (Ind. Ct. App. 1990). Nevertheless, we are able to adequately resolve this case on the merits because the Review Board has graciously supplemented the record with its own appendix. We thank the Review Board for this courtesy.
Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-255 | November 20, 2015 Page 2 of 7 as follows: “Whether the employer discharged the claimant for just cause. IC
22-4-15-1(d)(1-9). Whether the claimant voluntarily left the employment
without good cause in connection with the work. IC 22-4-15-1(a)-(b).” Id. at
17. On January 29, 2015, M.B. requested “a continuance do [sic] to the fact
that I need more time to get my evidence and exhibits ready for the hearing.”
Id. at 10. The ALJ denied this request on the grounds that “Claimant did not
show good cause.” Id. at 11.
[4] The ALJ heard the case on February 3, 2015. Present at this telephonic hearing
were Employer’s operations manager, Employer’s safety director, M.B., and
M.B.’s wife. The parties presented conflicting narratives of M.B.’s final day
with Employer.
[5] Both of Employer’s witnesses testified that M.B. was called in to discuss several
deliveries he had made behind schedule. Employer planned on giving M.B. a
warning. M.B. angrily requested proof that his deliveries were behind schedule,
but before the safety director returned with the files, M.B. rushed out of the
building, called the police, and never contacted Employer again until the filing
of his unemployment claim.
[6] M.B. agreed that he was called in for a meeting, but said that Employer
summarily fired him. M.B. alleged that Employer was retaliating after M.B.
filed a workman’s compensation claim. He said that he called the police
because the operations manager and safety director followed him aggressively
when he walked outside. M.B. also claimed that he had called his wife just
Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-255 | November 20, 2015 Page 3 of 7 before being summoned into the meeting, and that she was on speaker phone
during the entire conversation. She claimed to have heard the operations
manager tell M.B. that M.B. was fired. At the hearing, the ALJ repeatedly told
M.B. to stay on the topic of whether he was discharged, but M.B. was more
interested in attempting to impeach the documents showing his check-in times.
M.B. explained, “I thought . . . this hearing was over whether I was late or not.
I didn’t know it was over whether I was discharged or not.” Tr. p. 27.
[7] On February 9, 2015, the ALJ reversed the claims deputy’s determination that
M.B. was entitled to unemployment benefits. The ALJ found the Employer’s
narrative more credible:
It was within the scope of the employer’s authority to discuss customer complaints with the claimant. There is no evidence that the employer was being unduly harsh or threatening during the meeting. The employer’s testimony is credible due to the claimant demonstrating that he was not able to follow completely what was being told to him during the hearing. The claimant may have felt he was being discharged but may have misunderstood what the employer was discussing. The claimant would not be eligible for unemployment benefits.
Appellee’s App. 4. M.B. appealed the ALJ’s decision to the Review Board.
The Review Board adopted the ALJ’s findings of fact and conclusions of law,
and affirmed the ALJ’s decision. M.B. now appeals.
Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-255 | November 20, 2015 Page 4 of 7 Discussion and Decision [8] In considering M.B.’s challenge, we must review the sufficiency of the facts
found to sustain the decision and the sufficiency of the evidence to sustain the
findings of fact. Ind. Code § 22-4-17-12(f). We apply a three-part standard of
review: (1) findings of basic fact are reviewed for substantial evidence; (2)
findings of mixed questions of law and fact—ultimate facts—are reviewed for
reasonableness; and (3) legal propositions are reviewed for correctness.
Advanced Corr. Healthcare, Inc. v. Review Bd. of Ind. Dep’t of Workforce Dev., 27
N.E.3d 322, 327 (Ind. Ct. App. 2015). We will neither reweigh the evidence
nor assess witness credibility, and we consider only the evidence most favorable
to the Review Board’s findings. Chrysler Grp. v. Review Bd. of Ind. Dep’t of
Workforce Dev., 960 N.E.2d 118, 122 (Ind. 2012).
[9] In Indiana, an employee is not eligible for unemployment benefits if he
voluntarily leaves his employment without good cause in connection with the
work. Ind. Code § 22-4-15-1. This accords with the purpose of unemployment
benefits—“to provide benefits to those who were involuntarily out of
employment, and not to finance those who were willingly and deliberately
refusing to work. . . .” Walter Bledsoe Coal Co. v. Review Bd. of Emp’t Sec. Div. of
Dep’t of Treasury, 221 Ind. 16, 21, 46 N.E.2d 477, 479 (1943).
[10] In his brief, M.B. simply repeats his argument, already made to the ALJ, that
he was fired at the October 31, 2014, meeting. His appendix consists mostly of
Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-255 | November 20, 2015 Page 5 of 7 doctor’s notes stating that he was injured.3 But whether he was injured is not
relevant to Employer’s claim that he left that meeting intending to quit his
employment. What is relevant to that issue is M.B.’s testimony that he was
fired and Employer’s testimony that he was not fired. Resolving the conflicting
stories offered by the parties is within the ALJ’s and the Review Board’s
bailiwick, not ours. As our standard of review makes clear, we will not reweigh
the evidence or reassess witness credibility.
[11] There was substantial evidence from which the ALJ could make its findings of
fact, which were adopted by the Review Board. Employer’s witnesses testified
that M.B. simply left in the middle of a meeting. He never returned to work,
nor did he communicate with Employer to tell them he intended to return to
work. He never told Employer that he was staying home because of an injury.
Based on these facts, the ALJ’s finding of mixed questions of law and fact—
namely, that M.B. voluntarily left his employment without good cause—was
reasonable.
[12] M.B. also mentions, in passing and without cogent argumentation, that he
“would have had [more evidence] in the first hearing but the Administrated
[sic] Law Judge would not give me a continuance to get repaired [sic].”
Appellant’s Br. 7. The Indiana Administrative Code provides that a request for
continuance in the context of a disputed benefits hearing “must set forth good
3 We note that most of these materials were not admitted into evidence, nor are they anywhere in the record. Appellate courts do not receive new evidence. Melloh v. Gladis, 261 Ind. 647, 659, 309 N.E.2d 433, 440 (1974).
Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-255 | November 20, 2015 Page 6 of 7 cause for the granting of the request.” 646 Ind. Admin. Code 5-10-6(a). The
decision whether to grant such a request is within the discretion of the ALJ, and
will be reversed only for an abuse of that discretion. J.W.B. v. Review Bd. of Ind.
Dept. of Workforce Dev., 952 N.E.2d 843, 846 (Ind. Ct. App. 2011). In this case,
the ALJ was well within his discretion in determining that M.B. had not set
forth good cause. Indeed, the only “cause” provided in the request for why
M.B. needed more time was tautological—he needed more time because he
needed more time. Moreover, none of this additional evidence appears to relate
to the central findings of the ALJ: that M.B. voluntarily left his employment
and the Employer never told him that he was fired. The ALJ did not abuse its
discretion to deny this request.
[13] In sum, the ALJ and the Review Board had substantial evidence from which
they could find that M.B. voluntarily left his employment without good cause.
[14] The decision of the Review Board is affirmed.
Bailey, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-255 | November 20, 2015 Page 7 of 7