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

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.
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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.
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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:
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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.
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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]
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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).
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[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
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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
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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.
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[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),
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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
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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
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