Tressa Bailey v. Review Board of the Indiana Department of Workforce Development (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 11, 2019
• Docket: 18A-EX-2638
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Jul 11 2019, 8:50 am Memorandum Decision shall not be regarded as CLERK precedent or cited before any court except for the Indiana Supreme Court Court of Appeals purpose of establishing the defense of res judicata, and Tax Court collateral estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Tressa Bailey Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Natalie F. Weiss Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Tressa Bailey, July 11, 2019

Appellant-Petitioner Court of Appeals Cause No. 18A-EX-2638 v. Appeal from the Review Board of the Department of Workforce Development Review Board of the Indiana The Honorable Steven F. Bier, Department of Workforce Chairperson Development, Case No. 18R-0932 Appellee-Respondent.

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-EX-2638 | July 11, 2019 Page 1 of 12 STATEMENT OF THE CASE [1] Appellant-Petitioner, Tressa Bailey (Bailey) 1, appeals the decision of the

Appellee-Respondent, Review Board of the Indiana Department of Workforce

Development (Review Board), affirming the Administrative Law Judge (ALJ)

decision to suspend her unemployment benefits.

[2] We affirm.

ISSUE [3] Bailey presents a single issue on appeal, which we restate as: Whether Bailey’s

due process rights were violated when she failed to participate in a telephonic

hearing due to poor cellphone reception.

1 The parties refer to Bailey using her initials. However, our court has previously found that, notwithstanding the confidentiality mandate of Indiana Code section 22-4-19-6 and Indiana Administrative Rule 9(G), “it is appropriate for this [c]ourt to use the full names of parties in routine appeals from the Review Board.” Moore v. Review Bd. of Ind. Dep’t of Workforce Dev., 951 N.E.2d 301, 306 (Ind. Ct. App. 2011). See also J.M. v. Review Bd. of Ind. Dep’t of Workforce Dev., 975 N.E.2d 1283, 1285 n. 1 (Ind. 2012) (noting that the court’s practice “going forward will be to keep the [ ] parties confidential only if they make an affirmative request”). Because we did not receive an affirmative request, we will utilize Bailey’s name. Court of Appeals of Indiana | Memorandum Decision 18A-EX-2638 | July 11, 2019 Page 2 of 12 FACTS AND PROCEDURAL HISTORY [4] In April 2018, Bailey worked full time as an administrative assistant for two

lawyers who operated their individual law practices in South Bend, Indiana.

On June 12, 2018, the lawyers summoned Bailey for a meeting due to Bailey’s

unsatisfactory work. Prior to that meeting, one of the lawyers had accepted a

position in a law firm in Georgia. At the meeting, the lawyer who was leaving

informed Bailey that she would not need Bailey’s services other than for closing

out her legal files in Indiana. The remaining lawyer, operating a law practice as

Cole Law Firm LLC (Cole), then informed Bailey that she was exploring

another practice that would be willing to split time with Bailey so that Bailey

would not see a decrease in her pay. Bailey “abruptly left” after the meeting

and did not return to work the following day. (Exh. Vol. III, p. 4).

[5] On July 20, 2018, a claims investigator for the Indiana Department of

Workforce Development (IDWD) determined that Bailey had not been

discharged for just cause and awarded Bailey unemployment benefits. On July

24, 2018, Cole filed an appeal of the grant of unemployment benefits to Bailey.

[6] On August 9, 2018, the IDWD mailed Bailey a “Notice of TELEPHONE

Hearing” (Notice) which was accompanied by hearing instructions. The Notice

stated that a hearing by telephone was scheduled for August 21, 2018 at 10:00

a.m. The hearing instructions instructed Bailey as follows:

Court of Appeals of Indiana | Memorandum Decision 18A-EX-2638 | July 11, 2019 Page 3 of 12 BEFORE THE DATE OF THE HEARING Contact Number: Return the enclosed Acknowledgment Sheet or call the Appeals office to provide ONE contact number to reach you. If your hearing is by telephone, this is the number the judge will call for the hearing . . . . It is your responsibility to ensure that the judge has your contact telephone number. . . . If you are scheduled for a telephone hearing and have not provided your telephone number, the judge may attempt to call you at the number provided on your appeal statement. However, the judge is not required to search for a valid contact number. If the judge is not able to reach you, regardless of the cause, it may be considered as a lack of response and participation in the hearing. A decision or dismissal may be issued by the judge even if you do not participate.

****

DURING THE HEARING **** If your Notice [] indicates your hearing is by telephone, these considerations apply. If your telephone disconnects during the hearing, the judge will attempt to call you back. Please speak clearly during the hearing. Try to be in a quiet area where you will not be interrupted. If you use a [cellphone] or cordless phone, you must have adequate minutes, a fully charged battery, and good reception. The judge’s number may not display on your caller ID, or may show as “private”, “blocked”, or from another state. Disable Privacy Manager and similar screening devices prior to the hearing. Do not interrupt when others are speaking. The judge may dismiss your case if the party who filed the appeal cannot be reached within fifteen (15) minutes of the scheduled start time of your hearing. The judge may be behind in their hearing schedule, so please be patient. If you do not have a telephone, ask a friend or a neighbor if you may use theirs. Court of Appeals of Indiana | Memorandum Decision 18A-EX-2638 | July 11, 2019 Page 4 of 12 You may also visit your local WorkOne center to use their telephone. You cannot call in and be connected to a hearing that is already in progress.

(Exh. Vol. III, pp. 12, 14).

[7] The hearing took place on the scheduled day. Cole participated at the hearing.

The ALJ attempted to reach Bailey on her cellphone at 10:05 a.m. and 10:11

a.m. Both times, the ALJ’s call went straight to voicemail. The hearing

commenced at 10:24 a.m. At approximately 10:26 a.m., Bailey called seeking

to participate in the hearing but was denied an opportunity. Following that

hearing, the ALJ issued the following relevant findings of fact and conclusions

of law thereon:

FINDINGS OF FACT: [Cole] operates a law office. Cole hired [Bailey] along with a different employer to work between their two law offices. [Bailey] started working on April 2, 2018. [Bailey] worked as a secretary.

In early June 2018, the other employer mentioned that she was moving to Georgia to accept a position with a different practice. On June 12, 2018, the other employer informed [Bailey] that she would not be needed to purpose of [sic] closing out her files in Indiana. During the meeting, Cole discussed the fact that she was exploring another practice that might be willing to split time with [Bailey] so that she wouldn’t see a decrease in her pay. [Bailey] left after the meeting ended because it was the end of the day. [Bailey] never returned back to work again. [Bailey]

Court of Appeals of Indiana | Memorandum Decision 18A-EX-2638 | July 11, 2019 Page 5 of 12 provided [Cole] with no explanation for her decision not to return after the position ended with the other attorney office.

CONCLUSIONS OF LAW: An individual may not receive unemployment compensation benefits if he voluntarily left his most recent employment without good cause. See Ind. Code [§]22-4-15-1(a).

**** Here, [Bailey] abandoned her job by leaving after the meeting on June 12, 2018 and not returning back to work again or providing any explanation for her absence. [Bailey’s] employment with the other employer ended when the employer stated she would not be needed while she closed out her remaining files. [Bailey] still was employed with [Cole] at that time and ended that employment by not returning back to work despite there still being work available. [Bailey] voluntarily left employment but not for good cause in connection with work as defined by Indiana Code [section] 22-4-15-1(a).

DECISION: ****

The initial determination dated July 20, 2018 is MODIFIED from a discharge issue to a voluntarily left employment issue and is REVERSED. [Bailey] voluntarily left the employment without good cause. [Bailey’s] benefits rights are suspended effective the week ending 6/16/2018, until the claimant has earned remuneration in employment in at least eight (8) weeks equal to or exceeding eight (8) times the weekly benefit amount. If eligible, a relief of charges is granted to the employer.

(Exh. Vol. III, pp. 20-22). Court of Appeals of Indiana | Memorandum Decision 18A-EX-2638 | July 11, 2019 Page 6 of 12 [8] On August 24, 2018, Bailey appealed the ALJ’s decision to the Review Board.

Without holding a hearing or allowing additional evidence from Bailey, on

September 28, 2018, the Review Board adopted the ALJ’s findings of fact and

conclusions thereon denying Bailey unemployment benefits.

[9] Bailey now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION [10] Bailey argues she was denied due process because the ALJ failed to give her a

reasonable opportunity to participate in the hearing.

[11] “The Review Board, while an administrative body, is vested with quasi-judicial

powers. Accordingly, while the Review Board is allowed wide latitude in

conducting its hearings, due process must be accorded a party whose rights will

be affected.” Art Hill, Inc. v. Review Bd. of the Ind. Dep’t. of Workforce Dev., 898

N.E.2d 363, 367 (Ind. Ct. App. 2008) (quotation omitted). “The fundamental

requirement of due process is the opportunity to be heard at a meaningful time

and in a meaningful manner.” Id. Nevertheless, “a party to an unemployment

hearing may voluntarily waive the opportunity for a fair hearing where the

party received actual notice of the hearing and failed to appear at or participate

in the hearing. Id. at 368. Whether the requirements of due process have been

satisfied is a question of law; therefore, we review the issue de novo. Id. at 367.

[12] An individual denied unemployment benefits may seek a hearing on the issue

before an ALJ. Ind. Code § 22-4-17-2; 646 Ind. Admin. Code 3-12-1. The Court of Appeals of Indiana | Memorandum Decision 18A-EX-2638 | July 11, 2019 Page 7 of 12 ALJ, “after affording the parties a reasonable opportunity for a fair hearing,

shall affirm, modify, or reverse the findings of fact and decision of the deputy.”

I.C.§ 22-4-17-3. The ALJ may hold the hearing by telephone absent an

objection from an interested party and after determining that a hearing by

telephone is proper and just. I.C. § 22-4-17-8.5(b)(4). “Each party to a hearing

before an [ALJ] held under [Indiana Code section 22-4-17-3] shall be mailed a

notice of the hearing at least ten (10) days before the date of the hearing

specifying the place and time of the hearing and identifying the issues to be

decided.” I.C. § 22-4-17-6. The Review Board may affirm, modify, set aside,

remand, or reverse the findings, conclusions, or orders of an ALJ. I.C. § 22-4-

17-5.

[13] In compliance with Indiana Code section 22-4-17-6 and 646 Indiana

Administrative Code 3-12-21(d), the ALJ in the instant case provided notice of

the telephone hearing and instructions to both parties that required each party

to provide a single telephone number where the party could be contacted at the

time of the hearing. Bailey provided a single contact telephone number, i.e., her

cellphone number, to the ALJ. The instructions in the Notice required Bailey

to have “good reception” at the time of the hearing. (Exh. Vol. III, p. 12).

[14] When Bailey appealed the ALJ’s ruling, Bailey sent two letters to the Review

Board explaining her non-participation in the hearing. Specifically, Bailey

claimed that shortly before the hearing, she had moved in with her 77-year-old

mother and she was unaware that her mother’s home, which “is the closest Court of Appeals of Indiana | Memorandum Decision 18A-EX-2638 | July 11, 2019 Page 8 of 12 thing to a valley in [the South Bend] area,” had poor cellphone reception.

(Appellant’s App. p. 11). Bailey added that on the day of the scheduled

hearing, her “mobile phone carrier, T-Mobile, had diminished signal during the

hearing when the South Bend area was experiencing severe weather.”

(Appellant’s App. p. 12). Bailey then claimed that when she gained better

service, she immediately called the ALJ at 10:26 a.m., two minutes after the

hearing had begun, and requested to participate in the hearing but was denied

an opportunity. In both letters, Bailey concluded that she had now obtained

permission from her mother to use her landline telephone number as an

“alternate number” if granted a second hearing. (Appellant’s App. p. 14).

[15] In Wolf Lake Pub, Inc. v. Review Board of the Indiana Department of Workforce

Development, 930 N.E.2d 1138, 1140 (Ind. Ct. App. 2010), this court denied an

employer’s due process challenge where the employer had provided a cell

phone number, the ALJ had called it twice at the time of the hearing, and the

employer had never answered. The employer subsequently explained that he

had been on vacation the day of the hearing and was without reliable cell phone

reception. Id. In finding no due process violation, this court reasoned that it

was the employer’s choice to go on vacation in an area without reliable

reception and to stay in a hotel without telephones in the rooms. Id. In the

court's view, these elective decisions did not alter the fact that the employer had

been given a reasonable opportunity to participate in the hearing. Id. at 1142.

Court of Appeals of Indiana | Memorandum Decision 18A-EX-2638 | July 11, 2019 Page 9 of 12 [16] Bailey makes no cognizable argument that she did not receive Notice. Instead,

the record clearly indicates that Bailey did receive Notice indicating that the

hearing was scheduled for 10:00 a.m. and that the parties would receive a

telephone call from the ALJ to participate in the hearing.

[17] Notwithstanding the fact that Bailey provided an alternate telephone number

when she appealed the ALJ’s decision, when Bailey returned the

Acknowledgment Sheet to the ALJ, she only included her cellphone number.

On the date of the hearing, the ALJ attempted to telephone Bailey on her

cellphone at 10:05 a.m. and 10:11 a.m. Both times, the ALJ’s phone calls went

straight to voicemail. While Bailey provides a reasonable explanation about

why she missed the calls, arguing that it was storming that day, as in Wolf Lake,

it was up to Bailey to ensure that she could be reached at the cellphone number

she provided. See Wolf Lake, 930 N.E.2d at 1142; see also Art Hill, Inc., 898

N.E.2d at 368 (where employer received notice of the hearing, but ALJ was

unable to contact employee at telephone number provided by the employer, the

employer was considered to have voluntarily failed to participate and was not

denied due process when the ALJ conducted the hearing without the

employer’s participation). In S.S. v. Review Board of Indiana Department of

Workforce Development, 941 N.E.2d 550, 555 (Ind. Ct. App. 2011), parties who

confused time zones and thus failed to participate in a hearing were not denied

an opportunity to be heard. However, in A.Y. v. Review Board of Indiana

Department of Workforce Development, 948 N.E.2d 373, 379 (Ind. Ct. App. 2011),

Court of Appeals of Indiana | Memorandum Decision 18A-EX-2638 | July 11, 2019 Page 10 of 12 trans. denied, we reversed and remanded for a determination of whether a

claimant, who alleged that she provided her correct telephone number yet did

not receive a call from the ALJ and thereafter called within the time allotted for

her hearing, had shown good cause for reinstatement of her appeal. Indeed, the

foregoing cases illustrate that matters within the control of the party that

prevent them from participation in a hearing do not deprive that party of a fair

hearing.

[18] Here, Bailey was given notice of the hearing, and based on the explicit language

of the hearing instructions associated with the Notice, Bailey knew that any

telephonic difficulties could result in the ALJ deciding the case without her

attendance, but she chose to appear telephonically. Bailey’s arguments to the

contrary are unavailing as her inability to attend the hearing stems from her

inattentiveness to the hearing instructions which required her to have good

cellphone reception at the time of the hearing. Because Bailey had an

opportunity to be heard, and voluntarily failed to participate in the hearing, we

hold that Bailey was not denied due process when the ALJ conducted a hearing

without her participation. Under these facts and circumstances, we must affirm

the decision of the Review Board.

CONCLUSION [19] Based on the foregoing, we conclude that Bailey was afforded due process and a

reasonable opportunity to participate in a telephonic hearing. The Review

Court of Appeals of Indiana | Memorandum Decision 18A-EX-2638 | July 11, 2019 Page 11 of 12 Board’s decision adopting the ALJ’s findings and conclusions denying Bailey’s

unemployment benefits is therefore affirmed.

[20] Affirmed.

[21] Bailey, J. and Pyle, J. concur

Court of Appeals of Indiana | Memorandum Decision 18A-EX-2638 | July 11, 2019 Page 12 of 12