John Jorman, Jr. v. Review Board of the Indiana Dept. of Workforce Development ( 2012 )

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 FILED
Sep 27 2012, 9:23 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case. CLERK
of the supreme court,
court of appeals and
tax court
APPELLANT PRO SE: ATTORNEY FOR APPELLEE:
JOHN JORMAN, JR. GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
STEPHANIE ROTHENBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOHN JORMAN, JR., )
)
Appellant, )
)
vs. ) No. 93A02-1203-EX-263
)
REVIEW BOARD OF THE INDIANA )
DEPARTMENT OF WORKFORCE )
DEVELOPMENT, et al, )
)
Appellees. )
APPEAL FROM THE REVIEW BOARD OF THE DEPARTMENT OF
WORKFORCE DEVELOPMENT
Case No. 12-R-553
September 27, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
John Jorman, Jr., appeals the decision of the Unemployment Insurance Review
Board (“Review Board”) suspending his unemployment benefits. We affirm.
Issue
We address one issue, which we state as whether the Review Board properly
determined that Jorman was unavailable for work.
Facts
Jorman worked on and off as a substitute teacher for Indianapolis Public Schools
(“IPS”) for thirty-five years. On July 12, 2011, Jorman filled out paperwork indicating
that he had moved from Hendricks County to Marion County. Jorman, however, did not
actually move until August 12, 2011. Although Jorman had submitted a background
check from Hendricks County, on August 18, 2011, IPS requested that Jorman submit a
criminal background check from Marion County. This request was made after a routine
audit revealed the discrepancy between Jorman’s stated county of residence, Marion
County, and the county from which he received the background check, Hendricks
County. The request was based on the policy that all employees in Jorman’s position are
required to provide a criminal background check from their county of residence. Jorman
was aware of this policy. IPS gave Jorman until September 1, 2011 to return the
background check.1
On August 21, 2011, Jorman attempted to amend the change of address form to an
effective date of August 12, 2011, instead of July 12, 2011. Jorman never provided IPS
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IPS ultimately gave Jorman an additional two weeks to return the background check.
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with a background check from Marion County because he felt IPS requested the
background check in retaliation for complaints Jorman had filed against IPS.
Jorman last worked for IPS on September 14, 2011, at which point he was placed
on inactive status for failing to provide a Marion County background check. Jorman was
eligible to return to work after he returned the background check if it did not indicate
anything that would prevent him from working for IPS.
Jorman apparently sought unemployment benefits, and his claim was eventually
heard by an administrative law judge (“ALJ”). During the January 31, 2012 hearing, in
addition to the stated issues of whether IPS discharged Jorman for just cause and whether
Jorman voluntarily left employment, the parties agreed to allow the ALJ to determine
whether IPS had suspended Jorman for misconduct in connection with work.
After the hearing, the ALJ concluded that Jorman refused to obey a reasonable
instruction and that he was “unavailable for work within the meaning of the law due to
‘suspension’ (being placed on inactive status) for misconduct in connection with work.”
App. p. 4. The ALJ determined that Jorman had not separated from employment and was
eligible to return to work after submitting a criminal background check. Accordingly,
Jorman’s benefits were suspended effective the week ending September 17, 2011. On
March 6, 2012, the Review Board affirmed the ALJ’s decision, and Jorman now appeals.
Analysis
Jorman appeals pro se and appears to argue that he was improperly denied
unemployment benefits. Jorman’s brief, however, does not include a Table of
Authorities, a Statement of Issues, a Summary of Argument, or Argument section as
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required by Indiana Appellate Rule 46(A). Instead, his brief contains the following
substantive sections: Parties, Complaint, Background, Findings of Fact, Summary, and
Conclusion. Although Jorman’s brief does include some references to exhibits, his
citations do not accurately correspond with the exhibits included in the transcript of the
hearing. See App. R. 46(A)(6). Further, many of Jorman’s factual assertions are not
supported by any citation to the record. Id. To the extent portions of his brief could be
considered argument, he has not provided us with a standard of review and repeatedly
references extraneous issues not addressed by the Review Board. See Ind. App. R.
46(A)(8). His brief does contain some statutory references; however, he does not
reference Indiana Code Section 22-4-14-3(c)(3), the basis for the Review Board’s
decision that Jorman was unavailable to work.
Jorman cannot take refuge in the sanctuary of his amateur status. “As we have
noted many times before, a litigant who chooses to proceed pro se will be held to the
same rules of procedure as trained legal counsel and must be prepared to accept the
consequences of his action.” Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App.
2004).
Although we prefer to decide cases on their merits, we will deem appellate
arguments waived where an appellant’s noncompliance with the rules of appellate
procedure is so substantial it impedes our appellate consideration of the errors. Id. “The
purpose of the appellate rules, especially Ind. Appellate Rule 46, is to aid and expedite
review, as well as to relieve the appellate court of the burden of searching the record and
briefing the case.” Id. We will not consider an appellant’s assertion on appeal when he
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or she has failed to present cogent argument supported by authority and references to the
record as required by the rules. Id. “If we were to address such arguments, we would be
forced to abdicate our role as an impartial tribunal and would instead become an advocate
for one of the parties. This, clearly, we cannot do.” Id. Given the state of Jorman’s brief
and the lack of cogent argument and citation to relevant authority, his challenge of the
Review Board’s determination is waived.
Even if we were to broadly construe Jorman’s brief to include a cogent argument
regarding whether he was unavailable for work because he was found to have been
suspended for misconduct in connection with his work, his claim is unavailing. Indiana
Code Section 22-4-14-3 provides in part:
(b) An unemployed individual shall be eligible to receive
benefits with respect to any week only if the individual:
(1) is physically and mentally able to work;
(2) is available for work;
(3) is found by the department to be making an effort
to secure full-time work; and
(4) participates in reemployment services, such as job
search assistance services, if the individual has been
determined to be likely to exhaust regular benefits and
to need reemployment services . . . .
*****
(c) For the purpose of this article, unavailability for work of
an individual exists in, but is not limited to, any case in
which, with respect to any week, it is found:
*****
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(3) that such individual is suspended for misconduct in
connection with the individual’s work . . . .
“Whether an individual is ‘available for work’ within the meaning of the statute depends,
Indiana courts have held, upon the facts and circumstances of each case as considered
against the background and purposes of the legislation.” Puckett v. Review Bd. of
Indiana Emp’t Sec. Div., 413 N.E.2d 295, 302 (Ind. Ct. App. 1980). It is a question of
fact to be determined by the Review Board, and its decision is conclusive and binding so
long as supported by substantial evidence of probative value. Id.Jorman appears to assert that IPS did not meet its burden of proof because he had a
valid disagreement in principal with IPS. According to Jorman, it was his intent to
update his mailing address, not his county of residence, he corrected the dates, explained
what happened to his supervisor, and IPS’s continued request for a Marion County
background check was not reasonable. Jorman asserts that he “refused to comply with
the employer’s request because he believed he was right, believed had complied, and
therefore, as a matter of principal, stood his ground.” Appellant’s Br. p. 17.
Contrary to Jorman’s assertions, the Review Board concluded:
The employer had just cause to place the claimant on inactive
status and the claimant was suspended for misconduct in
connection with work, because the claimant refused to obey a
reasonable instruction of the employer. The claimant
received an instruction to get a criminal background check
from a Manager and the Director of Human Resources. The
instruction was reasonable because the employer requires
employees in the claimant’s position to provide a background
check from their county of residence and the claimant
reported a Marion County address to the employer.
Additionally, the employer’s administrative guidelines and
qualifications for substitute teachers explain this is a
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requirement and the employer pays for the background
checks. It is not unreasonable for the employer to request a
background check from a person who works with children.
The claimant willfully disregarded as [sic] the instruction, as
the instruction was received, the claimant was physically
capable of getting the background check, and the claimant
was given an adequate opportunity to obtain the background
check. The claimant refused to obey the reasonable
instruction. The claimant is unavailable for work within the
meaning of the law due to “suspension” (being placed on
inactive status) for misconduct in connection with work.
Appellant’s App. p. 4. The Review Board’s findings of fact support this conclusion and
the evidence supports those findings. Jorman’s disagreement with the request to obtain a
Marion County background check does not make the request itself unreasonable.
Without more, he has not shown that the Review Board erred in concluding that he was
unavailable for work.
Conclusion
Jorman has waived his challenge to the Review Board’s determination that he was
unavailable for work. Waiver notwithstanding, he has not shown that the Review Board
erred in its determination that he was unavailable for work. We affirm.
Affirmed.
VAIDIK, J., and MATHIAS, J., concur.
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