Adam Hanna v. Review Board of the Indiana Dept. of Workforce Development

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
FILED
Jan 18 2012, 8:35 am
before any court except for the purpose
of establishing the defense of res CLERK
judicata, collateral estoppel, or the law of the supreme court,
court of appeals and
tax court
of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
ADAM C. HANNA GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
STEPHANIE ROTHENBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ADAM HANNA, )
)
Appellant, )
)
vs. ) No. 93A02-1107-EX-667
)
REVIEW BOARD OF THE INDIANA )
DEPARTMENT OF WORKFORCE )
DEVELOPMENT, )
)
Appellee. )
APPEAL FROM THE REVIEW BOARD OF THE INDIANA DEPARTMENT
OF WORKFORCE DEVELOPMENT
The Honorable Steven F. Bier, Chairperson
Cause No. 11-R-2928
January 18, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Adam Hanna, pro se, appeals a decision by the Review Board of the Indiana
Department of Workforce Development (“Board”) denying his unemployment benefits.
We find one issue dispositive, namely, whether Hanna waived his claims on appeal. We
affirm.
Hanna worked as a part-time floor server for an MCL Restaurant (“Employer”)
beginning in July 2008. At some point, Hanna sustained a fracture to his hand. On
December 27, 2010, Hanna was told by Nick Eagle, a general manager for Employer, that
he needed to see a doctor regarding his hand.
Hanna applied for unemployment benefits, and on March 21, 2011, a deputy with
the Indiana Department of Workforce Development issued a determination of eligibility
which indicated that the “Separation Date” was December 27, 2010, and determined that
Hanna had not been discharged for just cause. Exhibits at 1. Employer filed an appeal
from the deputy’s determination stating that Hanna was “considered to have voluntarily
quit after failing to return from an approved leave of absence” due to sustaining a fracture
to his hand. Exhibits at 2. Notices of a hearing scheduled for April 18, 2011, were sent
to the parties.
On April 18, 2011, a hearing was conducted by an Administrative Law Judge
(“ALJ”), and both Hanna and Eagle, on behalf of Employer, appeared by telephone. At
the start of the hearing, the ALJ indicated that the issue was whether Employer
discharged Hanna for just cause. Eagle testified that Hanna “wasn’t discharged as much
as it was job abandonment” and that “we assumed that it was a voluntary quit.”
Transcript at 4. The hearing was continued and the ALJ stated that a new hearing notice
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would be sent. Notices of a second hearing scheduled for May 11, 2011, were sent to the
parties.
On May 11, 2011, the hearing resumed, and Hanna and Eagle appeared by
telephone. Eagle testified that he had told Hanna that he needed to provide a doctor’s slip
stating how long he would be unable to work and that, after that, Eagle did not hear from
or see Hanna. Eagle testified that Hanna called Employer in March, spoke to a house
manager, and worked out a time that Hanna would be able to go back to work, but that
Eagle did not have knowledge of the call. Hanna testified that the last day he worked for
Employer was December 27, 2010. Hanna testified that he “believed [he] had a job and
that [he] was off with injury,” that Employer “had every reason to think that [he] was
returning after [his] injury had healed,” and that he “confirmed [this] several times.” Id.
at 9. Hanna testified that he saw a doctor on December 28, 2010, and that after the
appointment he called Employer, spoke with his direct manager, and stated that he had a
fracture in his hand. Hanna indicated that, based upon his conversation with the
manager, he believed he was on a medical leave of absence and still employed. The ALJ
indicated that the testimony suggested that another issue was whether Hanna was
involuntarily unemployed due to a medically substantiated physical disability. The ALJ
then asked Hanna if he wanted the hearing to be continued or wanted to proceed with the
hearing, and after some discussion the ALJ explained that it was Hanna’s burden of proof
to show that he had a medically substantiated physical disability and that he made
reasonable efforts to preserve the employment relationship. Hanna stated “I would like to
proceed assuming you do have Exhibit[s] A through E,” and the ALJ confirmed that he
3
had the exhibits. Id. at 13. Eagle indicated that he wanted the hearing to be continued.
The ALJ continued the hearing.
On May 17, 2011, notices were sent to the parties indicating that the hearing was
scheduled for May 27, 2011. Employer requested a continuance, which was granted, and
notices were sent to the parties indicating that the scheduled May 27, 2011 hearing date
had been postponed. On May 20, 2011, notices were mailed to the parties indicating that
the hearing was scheduled for June 2, 2011, at 10:45 a.m.
On June 2, 2011, the ALJ held the scheduled hearing, at which Eagle appeared by
telephone and Hanna did not participate. The ALJ attempted to call Hanna at 10:48 and,
when Hanna did not answer, explained to Eagle that he would wait fifteen minutes, call
Hanna again, and “go ahead regardless at that point.” Id. at 15. The ALJ called Hanna
again at 11:00 and left a voicemail stating that the hearing would proceed, and the ALJ
then conducted the hearing in Hanna’s absence. Eagle testified that Hanna’s supervisor
did not have any communications with Hanna until Hanna informed the supervisor in
March 2011 that he was ready to return to work, that the supervisor told Hanna that she
would talk to Eagle and would probably be able to put him back on the schedule, and that
the conversation between the supervisor and Hanna was not known by Eagle until the
following week, when he instructed her that Hanna had been terminated “because we
didn’t know . . . what his status was as far as his hand goes.” Id. at 18.
The ALJ entered a decision on June 2, 2011, which reversed the deputy’s
determination and concluded that Hanna was not discharged but voluntarily left
4
employment without good cause in connection to the work. The decision of the ALJ
provided in part:
FINDINGS OF FACT: [Hanna] was employed by this employer from July
19, 2008 until the last work day on December 20, 2010. [Hanna] was a
floor server, whose job duties were to provide customer service and bus
tables. [Hanna] earned $4.85 per hour plus tips as a part-time employee.
The parties argued differently as to the nature of [Hanna’s] separation.
[Hanna] argued that he was discharged. The employer argued [Hanna]
voluntarily quit effective December 27, 2010.
[Hanna] had sustained an injury during the weekend of December 18, or
December 19, 2010. Nick Eagle, General Manager, instructed [Hanna] to
go to a doctor on December 28, 2010 because [Hanna] couldn’t hold a tray
due to the injured hand. [Hanna] returned and stated that he had a fracture
in his hand. Mr. Eagle told [Hanna] that he needed to provide a doctor’s
slip. [Hanna] was not subsequently seen or heard from again; although
[Hanna] argued that he was in contact with Marsha Potter, Manager, and
that he told Ms. Potter that his hand was fractured; that he expected to be
back to work in six to eight weeks; and Ms. Potter said okay. However,
Ms. Potter told Mr. Eagle that she had no communication with [Hanna]
until [Hanna] said that he was ready to return to work which was on or
around March 12, 2011.
The employer did not receive any medical documentation from [Hanna].
Any medical documentation received would have gone into [Hanna’s] file
after being reviewed by Mr. Eagle. The evidence of record is not clear as to
why [Hanna] voluntarily left the employment.
CONCLUSIONS OF LAW: The Administrative Law Judge concludes
[Hanna] voluntarily left employment without good cause within [sic]
connection of the work within the meaning of Chapter 15, Section 1(a) of
the Indiana Employment and Training Services Act. “A claimant who
seeks unemployment compensation benefits after voluntarily terminating
the employment must show that he left the employment for good cause
objectively related to the employment or that he falls within a statutory
exception.” Louis F. Wade v. Review Board, 599 N.E.2d 630, 633 (Ind.
App. 1992).
In the present case, the evidence is convincing that [Hanna] manifested the
requisite intention to voluntarily leave the employment by his failure to
maintain contact with the employer. [Hanna] has failed his burden of proof
to substantiate that he voluntarily left employment with good cause in
5
connection with the work. There is a question which remains as to whether
the non-disqualification provision of Chapter 15, Section 1(c)(2) of the
Indiana Employment Training Services Act applies. Chapter 15, Section
1(c)(2) of the Act states, “An individual whose unemployment is the result
of medically substantiated physical disability and who is involuntarily
unemployed after having made reasonable efforts to maintain the
employment relationship shall not be subject to disqualification under this
section for such separation.” The employer was aware that [Hanna] had
sustained an injury and directed [Hanna] to seek medical care. [Hanna] had
told the employer that the physician had indicated a fracture to his hand.
However, [Hanna] did not provide any medical documentation to the
employer to substantiate the nature of the medical condition or of any
restrictions that he may have been under due to any medical condition.
There is insufficient evidence to substantiate that [Hanna] was involuntarily
unemployed due to a medically substantiated physical disability. The non-
disqualification provision does not apply.
DECISION: The deputy’s initial determination dated March 21, 2011 is
modified. [Hanna] was not discharged, but rather voluntarily quit and as
modified is reversed to show [Hanna] voluntarily left employment without
good cause in connection to the work within the meaning of Chapter 15,
Section 1(a) of the Act. [Hanna’s] benefit rights are suspended effective
the week ending January 1, 2011 until [Hanna] had earned his weekly
benefit amount or more in each of eight weeks. Penalties may be imposed
on the claim.
Appellant’s Appendix at 6-7; Exhibits at 35-36.
On June 9, 2011, Hanna appealed the decision of the ALJ. In his appeal, Hanna
stated: “I disagree with the Judges [sic] decision because I was not present at the last
hearing and did not have a chance to tell about numerous contact[s] I had with my
employer prior to them firing me. The contact I had with them between when I left with
injury up to when I was fired.” Appellee’s Appendix at 3.
On June 15, 2011, Hanna sent a fax to the Board which stated in part:
I was not aware I could provide additional information in my appeal when I
had faxed my request for an appeal. I did not attend the last hearing
because of a mail mix-up with my mother. The case was continued twice,
rescheduled by my employer once and the rescheduled hearing was the one
6
I missed and judgment went against me. I had no opportunity to explain
the information most vital to proving my case. I am requesting permission
to provide to you additional information in my appeal.
Id. at 5.
Hanna sent a letter to the Board, which is file-stamped as received on June 17,
2011, stating that “[u]pon checking status of my request to submit new information in
seeing if it was received in a timely matter [sic] I was informed I needed to request a time
extension in my appeal” and “[t]his is a formal request to be given a time extension in my
case to allow me to send . . . information that was not available to the Judge.” Id. at 6.
On June 21, 2011, Hanna sent a fax to the Board and attached an eight-page letter
describing “additional information that was not available to the Judge, due to my absence
in the final telephone hearing.” Id. at 8. In the letter, Hanna stated that Employer’s
statements that it did not hear from him after he broke his hand until March 12, 2011
were untrue as he had called Employer thirteen times and personally visited Employer
approximately five times during that period. Hanna stated that he was led to “believe
everything was fine until [he] received [a] voicemail on March 3rd stating [his]
termination.” Id. at 9. Hanna stated that he filed his initial unemployment claim that day.
Hanna also attached several exhibits to his fax, which included medical records and a
phone bill showing that Hanna placed calls to Employer on December 27, 2010, January
7, 17, and 27, February 21, 23, 24, and 27, and March 3, 2011. Hanna sent a letter to the
Board, which is file-stamped as received on June 28, 2011, which attached a document
and stated that he believes the document confirms that his unemployment was the result
of a medically substantiated physical disability.
7
On July 6, 2011, the Board entered a decision which adopted and incorporated by
reference the findings of fact and conclusions of law of the ALJ and affirmed the decision
of the ALJ.
Initially, we note that pro se litigants are held to the same standard as trained
counsel and are required to follow procedural rules. Evans v. State, 809 N.E.2d 338, 344
(Ind. Ct. App. 2004), trans. denied. In the argument section of his appellant’s brief,
Hanna does not cite to any authority or to the record to support his arguments. As a
result, Hanna’s arguments are waived. See Johnson v. State, 675 N.E.2d 678, 681 n.1
(Ind. 1996) (observing that the defendant failed to cite to the record and “[o]n review, this
Court will not search the record to find grounds for reversal”); Haddock v. State, 800
N.E.2d 242, 245 n.5 (Ind. Ct. App. 2003) (noting that “we will not, on review, sift
through the record to find a basis for a party’s argument”); see also Cooper v. State, 854
N.E.2d 831, 834 n.1 (Ind. 2006) (holding that the defendant’s contention was waived
because it was not supported by citation to authority); Smith v. State, 822 N.E.2d 193,
202-203 (Ind. Ct. App. 2005) (“Generally, a party waives any issue raised on appeal
where the party fails to develop a cogent argument or provide adequate citation to
authority and portions of the record.”), trans. denied; Ind. Appellate Rule 46(A)(8)(a)
(“The argument must contain the contentions of the appellant on the issues presented,
supported by cogent reasoning. Each contention must be supported by citations to the
authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in
accordance with Rule 22.”).
8
Waiver notwithstanding, to the extent Hanna argues that he was entitled to a
hearing, we find that Hanna waived the argument for failing to raise it in the proceedings
below. In his appellant’s brief, Hanna argues that the June 2, 2011 hearing took place
without him and that he “was denied a reasonable right for fair hearing due to a medical
emergency occurring [at] the time of the scheduled hearing on June 2.” Appellant’s Brief
at 7. Hanna argues that he was with his two-year-old daughter at Holliday Park on the
morning of June 2, 2011, that his daughter was choking, that Hanna patted his daughter
on the back, and that a penny became dislodged from her throat. Hanna maintains that he
then called the child’s mother and his own mother to see if further actions needed to be
taken. Hanna argues that he “then realized he missed the calls from the ALJ,” that “[t]he
whole choking incident lasted from approx. 10:40 - 11:01 the morning of June 2,” that he
“tried to get back in contact with the ALJ by calling her back at approx. 11:02,” and that
he explained the situation to the ALJ’s secretary. Id. at 8. Hanna argues he called the
ALJ back at approximately 11:15 and was informed that the hearing had already taken
place. Hanna argues that he “was not present at the hearing due to a medical emergency”
and that had he “not been to his daughter[’]s aid the result would have been devastating.”
Id. at 9.
The Board argues that Hanna’s argument that he missed the hearing due to a
medical emergency is waived because he raised the argument for the first time on appeal.
The Board argues that Hanna submitted five filings to the Board and that none of those
filings ever mentioned a medical emergency as the reason for Hanna’s absence on June 2,
2011. The Board argues that Hanna “only once attempted to justify his failure to appear
9
for the third and final hearing” and that “[i]n his second appeal letter he stated he ‘did not
attend the last hearing because of a mail mix-up with my mother.’” Appellee’s Brief at 7
(citing Appellant’s Appendix at 5). The Board further argues that it properly affirmed
that Hanna failed to meet his burden of proof to show that he voluntarily left his
employment without good cause in connection with the work and failed to show good
cause for failing to participate in the hearing.
We observe that Hanna’s argument on appeal that he was unable to attend the June
2, 2011 hearing before the ALJ by telephone because of a medical emergency involving
his daughter was not raised or presented in the proceedings below or to the Board.
Specifically, the record shows that Hanna did not make the claim in his original appeal to
the Board from the decision of the ALJ or in any of the faxed documents or letters he
filed with the Board subsequent to the hearing date.1 Hanna has waived his argument on
appeal. See Cunningham v. Review Bd. of Ind. Dep’t of Workforce Dev., 913 N.E.2d
203, 205 (Ind. Ct. App. 2009) (stating that a party who fails to raise an issue before an
administrative body waives the issue on appeal).
In addition, the record shows that on May 20, 2011, notices were mailed to the
parties indicating that the hearing was scheduled for 10:45 a.m. on June 2, 2011. Hanna
does not argue or point to the record to show that he did not have notice of the June 2,
2011 hearing date and time. Based upon the record, we cannot say that Hanna was
1
It appears that the only reason Hanna provided for his absence from the June 2, 2011 hearing
was in his June 15, 2011 fax to the Board, in which he stated that he “did not attend the last hearing
because of a mail mix-up with [his] mother” and that “[t]he case was continued twice, rescheduled by my
employer once and the rescheduled hearing was the one I missed . . . .” Appellee’s Appendix at 5.
10
denied a reasonable opportunity for a fair hearing. See Wolf Lake Pub, Inc. v. Review
Bd. of Ind. Dep’t of Workforce Dev., 930 N.E.2d 1138, 1142 (Ind. Ct. App. 2010)
(concluding that the appellant was not denied a reasonable opportunity to participate in a
fair hearing where the appellant had actual notice of the telephonic hearing but chose to
go on vacation without ensuring access to a telephone during the time of the scheduled
telephonic hearing); Art Hill, Inc. v. Review Bd. of Ind. Dep’t of Workforce Dev., 898
N.E.2d 363, 367-368 (Ind. Ct. App. 2008) (noting that 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 and that,
although the appellant attempted to contact the ALJ, the appellant did so fifteen minutes
after the scheduled beginning of the hearing and after the hearing had concluded or nearly
concluded, and holding that the appellant was not denied a reasonable opportunity for a
fair hearing where the ALJ could not reach the appellant by telephone at the time of the
scheduled hearing).
For the foregoing reasons, we affirm the Board’s determination.
Affirmed.
MAY, J., concurs.
CRONE, J., concurs with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
A.H., )
)
Appellant, )
)
vs. ) No. 93A02-1107-EX-667
)
REVIEW BOARD OF THE INDIANA )
DEPARTMENT OF WORKFORCE )
DEVELOPMENT, )
)
Appellee. )
CRONE, Judge, concurring
I fully concur in the majority’s reasoning and result, but I write separately to
express my disagreement with its disclosure of the full names of both the unemployment
claimant and the employer in what I believe to be a contravention of Indiana law.
Indiana Administrative Rule 9(G)(1) says, “The following information in case
records is excluded from public access and is confidential: … [(b)](xviii) All records of
the Department of Workforce Development as declared confidential by Ind. Code § 22-4-
19-6.” Indiana Code Section 22-4-19-6 says,
Except as provided in subsections (d) and (f) [which are not relevant here],
information obtained or obtained from any person in the administration of
this article and the records of the department relating to the unemployment
tax or the payment of benefits is confidential and may not be published or
be open to public inspection in any manner revealing the individual’s or the
12
employing unit’s identity, except in obedience to an order of a court or as
provided in this section.
Ind. Code § 22-4-19-6(b). Finally, Administrative Rule 9(G)(4)(d) says,
Orders, decisions, and opinions issued by the court on appeal shall be
publicly accessible, but each court on appeal should endeavor to exclude
the names of the parties and affected persons, and any other matters
excluded from public access, except as essential to the resolution of
litigation or appropriate to further the establishment of precedent or the
development of the law.
(Emphasis added.)
As I said in my concurring opinion in S.S. LLC v. Review Board of Indiana
Department of Workforce Development, 953 N.E.2d 597 (Ind. Ct. App. 2011), I do not
see how the foregoing provisions “can be read to allow the disclosure of the full names of
unemployment claimants and employers in decisions issued by this Court.” Id. at 607(Crone, J., concurring). Our supreme court’s recent decision in Recker v. Review Board
has not changed my mind.
In that case, the court “acknowledge[d] that the identities of the claimant and
employing unit are generally subject to the confidentiality requirements prescribed in
Indiana Code Section 22-4-19-6(b)” as “expressly implemented as to judicial proceedings
by Indiana Administrative Rule 9(G)(1)(b)(xviii).” Recker v. Review Bd. of Ind. Dep’t of
Workforce Dev., No. 93S02-1105-EX-285, 2011 WL 6848389, at *1 n.4 (Ind. Dec. 29,
2011). The court then said that Administrative Rule 9(G)
further provides, however, that when information excluded from public
access is presented in court proceedings open to the public, “the
information shall remain excluded from public access only if a party or a
person affected by the release of the information, prior to or
contemporaneously with its introduction into evidence, affirmatively
13
requests that the information remain excluded from public access.” Adm.
R. 9(G)(1.2) (emphasis added).
Id. The court went on to say,
The decisions of the ALJ and the Review Board in this case were each
expressly labeled as a “Confidential Record” pursuant to Indiana Code
Section 22–4–19–6. Appellant’s App’x at 2, 5. In the course of this
appeal, the Appellee’s Appendix filed by the employer was identified as
“Confidential,” but the Appellant’s Appendix filed by the employee was
not so labeled, and it disclosed her full name. Both the claimant-appellant
and the Board-appellee used only initials to identify the claimant in their
briefs, but the briefs of both revealed the identity of the employer. Neither
the claimant, the employer, nor the Review Board, made any affirmative
request pursuant to Administrative Rule 9(G)(1.2) to continue the exclusion
from public access the identities and information confidential under the
statute and rule. Pursuant to Administrative Rule 9(G)(1.2), in light of the
absence of an affirmative request for continued confidentiality of the
identities of the employee and the employing entity, we fully identify the
parties. As to the facts of the case that derive from the records of the
Department and are discussed in this opinion, we deem such information to
be public as essential to the resolution of the litigation and appropriate to
further the establishment of precedent and the development of the law.
Adm. R. 9(G)(3) and 9(G)(4)(d).
Id.The Recker court’s rationale for disclosing the parties’ identities omits a critical
component of Administrative Rule 9(G)(1.2), which reads in its entirety as follows:
During court proceedings that are open to the public, when information in
case records that is excluded from public access pursuant to this rule is
admitted into evidence, the information shall remain excluded from public
access only if a party or a person affected by the release of the information,
prior to or contemporaneously with its introduction into evidence,
affirmatively requests that the information remain excluded from public
access.
(Emphasis added.) Because appellate courts do not conduct trials or evidentiary hearings
and thus do not admit “information in case records … into evidence,” I fail to see how
Administrative Rule 9(G)(1.2) can be used to justify the disclosure of parties’ identities in
14
unemployment cases for the first time on appeal. Until the relevant provisions of
Administrative Rule 9(G) are amended by our supreme court, I intend to continue to use
initials in unemployment cases that I write.
15