Whitney Bishop v. Review Board of the Indiana Department of Workforce Development, and Extra Help, Inc. (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Sep 20 2019, 8:47 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Thomas J. Gaunt Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General
David E. Corey
Deputy Attorney General
Matthew J. Goldsmith
Certified Legal Intern
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Whitney Bishop, September 20, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-EX-1605
v. Appeal from the Review Board of
the Indiana Department of
Review Board of the Indiana Workforce Development
Department of Workforce The Honorable Steven F. Bier,
Development, and Chairperson
Extra Help, Inc., The Honorable Lawrence A.
Appellees-Respondents Dailey, Member
The Honorable Suzanne Manning,
Administrative Law Judge
Case No. 18-R-529
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Vaidik, Chief Judge.
Case Summary
[1] Whitney Bishop appeals a decision of the Review Board of the Indiana
Department of Workforce Development (“Review Board”). We reverse the
Review Board’s decision and remand for further proceedings consistent with
this opinion.
Facts and Procedural History
[2] Bishop1 was employed by Carrier from May 19, 2016, to January 14, 2018,
when she and many others were laid off. From July 22, 2017, until she was laid
off, Bishop was on medical disability at Carrier due to injuries she sustained in
a car accident while pregnant. Bishop gave birth on February 1, 2018.
[3] In late January or early February, Bishop filed for unemployment benefits due
to her layoff from Carrier. Tr. pp. 9-10, 59. Although it is not in the record,
Bishop apparently received a letter from the Indiana Department of Workforce
Development (“DWD”) stating that her application for unemployment benefits
due to her January 2018 layoff from Carrier was being denied because “she
1
Bishop has waived any confidentiality by using her name in documents filed with this Court. See Advanced
Corr. Healthcare, Inc. v. Review Bd. of Ind. Dep’t of Workforce Dev., 27 N.E.3d 322, 324 n.1 (Ind. Ct. App. 2015).
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walked off quitting without reason, from a company called [Staffing Agency 2]
the same month.” Appellant’s Br. p. 5; see also Tr. pp. 11, 18. According to
Bishop, however, she had never worked for Staffing Agency, and the denial
letter was the first time she had ever heard of it. See Tr. p. 11 (“Because when I
filed [for unemployment with Carrier] and the letter came back, I’m like, what?
I didn’t know nothing about [Staffing Agency] until I filed for unemployment.
I wasn’t aware of nobody out there working . . . under my name until I filed.”).
[4] On Friday, March 2, Bishop called the Indianapolis Metropolitan Police
Department to report that her identity had been stolen and that someone had
been working at Staffing Agency using her information. Ex. pp. 8-10. Then on
Monday, March 5, Bishop went to Staffing Agency to inquire about the person
who had been using her identity. Staffing Agency told Bishop that the person
had given the address of 2210 White Oaks Drive in Indianapolis when they
applied, and it gave her the following letter:
Whitney Bishop was in our office today, inquiring about her
identity theft. We are unable to provide information due to this
being a criminal investigation. We have provided her with
homeland security contact information.
Ex. p. 12; see also id. at 11 (name and contact information of special agent with
the United States Department of Homeland Security).
2
Staffing Agency is a “Professional Employment Organization,” which provides staffing and payroll services
to other businesses. Tr. pp. 12-13.
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[5] Also on March 5, a DWD claims investigator issued a Determination of
Eligibility regarding a claim by “Whitney Bishop” for unemployment benefits
based on employment with Staffing Agency:
Circumstances of Case
The employer states the claimant quit. The claimant denies the
allegation. The employer has provided information that supports
the allegation.
Conclusion of Case
The claimant voluntarily left without good cause in connection
with the work. The information provided supports the
employer’s allegation the claimant voluntarily quit. The
claimant is ineligible for benefits in accordance with IC 22-4-15-
1.
Ex. p. 3.
[6] On March 8, three days after the DWD issued its Determination of Eligibility,
Bishop sent a letter to the DWD stating that she had never worked for Staffing
Agency:
I did not work for [Staffing Agency]. Someone worked under my
name getting me disqualified for benefits. I have filed a police
report. I was in the office at [Staffing Agency] to see if they
could give me any information on who it may be they said no.
So IMPD did do a investigation with [Staffing Agency]. And
they found out it wasn’t me. Last job Carrier Corp.
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Ex. p. 5. Thereafter, the DWD sent to Bishop and Staffing Agency a notice of
an in-person hearing to be held before an administrative law judge on March
29. Id. at 37.
[7] At the March 29 hearing, Bishop appeared in person, but Staffing Agency did
not. The ALJ called Staffing Agency, which then participated by phone.
Bishop testified that her most recent employer was Carrier, she had “[n]ever in
[her] life” worked for Staffing Agency, and her identity had been stolen. Tr. p.
11. She explained that she had been robbed in December 2017 as well as “a
year ago” and that her wallet had been taken. Id. at 11-12. Bishop also testified
that she didn’t receive a W-2 from Staffing Agency and therefore didn’t report
those wages on her taxes. Finally, Bishop testified that an IMPD detective
went to the White Oaks address and told her that “an African with a heavy
accent” lived there but that he needed to investigate more. Id. at 11.
[8] Staffing Agency testified that it hired a person by the name of Whitney Bishop
in late September 2017, it placed the person at a logistics company called
Geodis in Indianapolis, and the person worked full time at Geodis from
October 1, 2017, to January 25, 2018, when they quit because “they [didn’t]
want to work there anymore.” Id. at 14. Staffing Agency testified that the
person gave the address of 2210 White Oaks Drive in Indianapolis when they
applied but then called in early January 2018 to change the address to 3440 East
38th Street in Indianapolis (Bishop’s address) so that the W-2 could be mailed
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there.3 Staffing Agency acknowledged learning on March 5 that a criminal
investigation was underway and said it gave Bishop the contact information of
a special agent with the United States Department of Homeland Security. The
following colloquy then ensued between the ALJ and Staffing Agency:
Q. . . . Was the Whitney Bishop that was working for
[Staffing Agency]—was she pregnant?
A. I don’t believe so.
Q. Okay. Is there anyone with [Staffing Agency] that
could identify – that hired Whitney Bishop that
could identify her in person?
A. I don’t believe so.
Q. Is there anyone at – at Geodis that could identify
the Whitney Bishop that was working for [Staffing
Agency]?
A. Yes, and it’s my understanding that they have been
questioned by the detective as well.
Id. at 15. The ALJ then stopped the hearing and ordered that it be continued
because she needed more information from the parties. The ALJ requested that
“someone with [Staffing Agency] participate in-person that has first-hand
3
Staffing Agency did not give an apartment number for 3440 East 38th Street, but Bishop said she lived in
apartment B and had trouble getting her mail if her apartment wasn’t listed.
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knowledge of who Whitney Bishop is, as [Staffing Agency] believes.” Id. at
23 (emphasis added). The ALJ explained that “the gravity of this situation
requires me to fully . . . investigate to make sure I do have the correct Claimant,
and if in fact this is not the correct Claimant, have further information provided
to the department regarding that information.” Id. at 24.
[9] On April 5, the DWD sent to Bishop and Staffing Agency a notice of an in-
person hearing to be held on April 16. In addition, the DWD issued a
subpoena to Staffing Agency commanding it “to have an employee who can
identify employee Whitney Bishop appear in person” at the April 16 hearing.
Ex. p. 34.
[10] At the April 16 hearing, Bishop appeared in person, but again Staffing Agency
did not. The ALJ then called Staffing Agency, which said it wasn’t aware of
the hearing. The ALJ reminded Staffing Agency that a notice of the hearing
had been mailed as well as a subpoena requiring them to appear in person to
identify “the employee named as Whitney Bishop.” Tr. p. 26. The ALJ
explained that because “the crux of the issue is whether [Bishop] is the
employee that [Staffing Agency] believes to be [Whitney Bishop] . . ., [she
couldn’t] go any further on the issues today.” Id. at 27. Again, the ALJ
ordered Staffing Agency to appear in person at a rescheduled hearing, which
the parties agreed would be held on May 3.
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[11] At the May 3 hearing, Bishop and two employees from Staffing Agency—
Emily Brower and Mallori Herbertz—appeared in person. However, neither
employee could identify Bishop as the person Staffing Agency had hired.
[12] Herbertz, who worked at Staffing Agency’s front desk, testified that she did not
recognize Bishop from when a person by that name applied at Staffing Agency
in late September 2017; however, she did recognize Bishop from when she
stopped by in March 2018 to inquire about the person who had been using her
identity. Herbertz introduced into evidence copies of the two pieces of
identification that the person provided during the application process: (1) a
social-security card in the name of “Whitney Mychel Lyn Bishop” and (2) a
State of Indiana identification card (issued in May 2016) listing the name
“Whitney Lynn Bishop” and an address of 3440 E. 38th St. #B in Indianapolis.
Ex. p. 69.
[13] Brower, the branch manager, testified that she had never seen Bishop until that
day. Tr. p. 44. She explained that a person by the name of Whitney Bishop
worked at Geodis from October 1, 2017, to January 25, 2018, when an
employee from Staffing Agency called to see why she didn’t show up for work
that day, and the person responded that she quit because she didn’t want to
work there anymore. Brower also offered into evidence five “paycheck stubs.”
Id. at 45. The paystubs reflect that the money was direct deposited. Id. at 46;
Ex. pp. 70-74. Brower, however, did not have any information regarding the
account that the money was deposited into. Brower acknowledged that the
address on the State of Indiana identification card did not match the address
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that the person gave; however, she explained that it is Staffing Agency’s
practice that “[p]eople that we put to work have to match their ID’s.” Tr. p. 49.
As for when someone called Staffing Agency in January 2018 to change the
address from White Oaks to 38th Street, Brower testified that she “couldn’t
verify” if the W-2 was actually mailed to the 38th Street address. Id. at 48.
Finally, Brower introduced into evidence the I-9 Form that the person filled out
when applying for the job. According to the form, the person’s address was
2210 White Oaks Drive, phone number was (317) 529-[xxxx], and email
address was tsy[xxxx]@gmail.com. Ex. p. 77. Notably, on the signature line,
the name is signed as “Whityney Lynn,” not “Whitney Bishop.” Id.
[14] Finally, Bishop testified that she neither had a bank account nor received any
paychecks from Staffing Agency. She acknowledged that the photo on the State
of Indiana identification card was of her but reiterated that her wallet (including
her identification card) had been stolen “[a]bout two” times, in December 2017
and 2016. Tr. pp. 51-54, 56; see also id. at 57 (also referencing robberies in 2005,
2007, and 2011). Bishop testified that she did not live at 2210 White Oaks
Drive and instead had lived at 3440 E. 38th St. #B since March 2016. In
addition, Bishop testified that after Staffing Agency gave her the contact
information of the United States Department of Homeland Security special
agent, she met with him at his office. See id. at 66-67. She did not have the
results of any investigation, though. Finally, Bishop testified that her email
address (since 2004) was whit.[xx]@hotmail.com, she had never had a
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gmail.com email address, and her phone number (the only one she ever had)
was (317) 625-[xxxx], not (317) 529-[xxxx].
[15] On May 14, 2018, the ALJ issued her decision. The ALJ concluded as follows:
[Bishop] is the same employee Whitney Bishop that worked for
[Staffing Agency]. The [ALJ] concludes this because [Bishop’s]
[identification card] was used for employment with [Staffing
Agency]. This was provided prior to the theft of the driver’s
license in December 2017. [Bishop] failed to provide evidence of
a police report made in December 2017. [The employee’s]
address was updated with [Staffing Agency] to [Bishop’s] correct
address in January 2018 to receive pertinent tax documents. The
[ALJ] concludes that the different address reported initially with
[Staffing Agency] is not as determinative as to the address where
pertinent tax documents are issued. [Bishop] did not know how
to correctly spell her middle name [Lynn v. Lyn] which may
account for the different versions. For all of those reasons, the
[ALJ] concludes that [Bishop] is the same Whitney Bishop that
worked for [Staffing Agency].
Appellant’s App. Vol. III p. 24. Furthermore, finding that Bishop voluntarily
left employment with Staffing Agency without good cause, the ALJ affirmed
the claims investigator’s denial of unemployment benefits. Bishop then
appealed to the Review Board, which (without holding a hearing) adopted and
incorporated by reference the ALJ’s findings of fact and conclusions of law and
affirmed the ALJ’s decision. Appellant’s App. Vol. II p. 4.
[16] Bishop now appeals.
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Discussion and Decision
[17] Bishop contends that the Review Board’s finding that she worked for Staffing
Agency is not supported by substantial evidence. When reviewing a decision
by the Review Board, our task is to determine whether the decision is
reasonable in light of its findings. Abdirizak v. Review Bd. of Indiana Dep't of
Workforce Dev., 826 N.E.2d 148, 150 (Ind. Ct. App. 2005). Our review of the
Review Board’s findings is subject to a “substantial evidence” standard of
review. Id. In this analysis, we neither reweigh the evidence nor assess witness
credibility, and we consider only the evidence most favorable to the Review
Board’s findings. Id. Further, we will reverse the decision only if there is no
substantial evidence to support the Review Board’s findings. Id.
[18] As the ALJ explained early on in these proceedings, Bishop’s claim that she
never worked for Staffing Agency was “a significant issue” that required more
information to make sure “[we] have the correct Claimant.” Tr. pp. 23-24. To
that end, the ALJ ordered Staffing Agency to appear in person at the continued
hearing with “someone . . . [who] has first-hand knowledge of who Whitney
Bishop is, as [Staffing Agency] believes.” Id. at 23. However, Staffing Agency
did not appear in person at the continued hearing despite being (1) informed
over the phone, (2) mailed a notice of the hearing date, and (3) issued a
subpoena “to have an employee who can identify employee Whitney Bishop
appear in person.” Ex. p. 34. As a result, the ALJ was forced to continue the
hearing again as the “crux of the issue is whether [Bishop] is the employee that
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[Staffing Agency] believes to be [Whitney Bishop].” Tr. p. 27. Again, Staffing
Agency was ordered to appear in person at the continued hearing.
[19] At the third hearing, employees from Staffing Agency finally appeared in
person, but neither of them could identify Bishop, and they didn’t subpoena or
bring any witnesses from Geodis who could do so either. See id. at 15 (Staffing
Agency testifying at the first hearing that someone from Geodis could identify
the Whitney Bishop that worked for Staffing Agency). Nevertheless, the ALJ
determined that Bishop was, in fact, the person who worked for Staffing
Agency because Bishop’s State of Indiana identification card was used for
employment with Staffing Agency, and it was provided to Staffing Agency
before it was stolen in December 2017. However, Bishop claimed to have had
her identification card stolen other times because, as she put it, that’s life in the
“ghetto.” Id. at 51. As for the ALJ’s observation that Bishop didn’t file a police
report in December 2017, she did file a police report in March 2018 as soon as
she found out that someone was using her identity. Finally, although the ALJ
acknowledged that Bishop’s address wasn’t used during the application process
with Staffing Agency, she noted that it was updated to Bishop’s address in
January 2018 in order “to receive the pertinent tax documents.” However, not
only did Bishop deny receiving a W-2 from Staffing Agency, but also Staffing
Agency “couldn’t verify” if the W-2 was actually mailed to the 38th Street
address. Id. at 48. The ALJ’s determination that Bishop worked for Staffing
Agency is also at odds with the other evidence that was presented, including:
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• After Bishop’s claim for unemployment benefits based on her layoff from
Carrier was denied because she quit working at Staffing Agency without
reason, Bishop called IMPD to report that her identity had been stolen
and someone had been working at Staffing Agency using her
information.
• Bishop went to Staffing Agency to inquire about the person who had
been using her identify, and Staffing Agency gave her the name of a
special agent with the United States Department of Homeland Security.
• Bishop met with the special agent.
• Just three days after the DWD denied a claim by “Whitney Bishop” for
unemployment benefits based on employment with Staffing Agency,
Bishop sent a letter to the DWD stating that she had never worked for
Staffing Agency.
• The person who applied at Staffing Agency gave an address, phone
number, and email address that Bishop denied were hers.
• Although Bishop was pregnant when the person applied at Staffing
Agency in late September 2017 and gave birth on February 1, 2018,
Staffing Agency said the person was not pregnant “to our knowledge.”
• The person who applied at Staffing Agency signed the I-9 Form as
“Whityney Lynn,” not “Whitney Bishop.”
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• Staffing Agency paid the person using direct deposit but did not have any
information regarding the bank account that was used, and Bishop
denied having a bank account.
Based on all of this evidence, we conclude that the Review Board’s finding that
Bishop is the person who worked for Staffing Agency is not supported by
substantial evidence. We therefore reverse the Review Board’s decision
upholding the claims investigator’s determination and remand this matter to the
Review Board to conduct further proceedings consistent with this opinion.
[20] Reversed and remanded.
Riley, J., and Bradford, J., concur.
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