M.D. v. Review Bd. of the Ind. Dep't of Workforce Dev.
| Decision Date | 11 August 2021 |
| Docket Number | Court of Appeals Case No. 21A-EX-219 |
| Citation | 173 N.E.3d 1057 (Table) |
| Court | Indiana Appellate Court |
| Parties | M.D., Appellant-Petitioner, v. REVIEW BOARD OF the INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT, Appellee-Respondent |
Attorney for Appellant: J. David Agnew, Lorch Naville Ward LLC, New Albany, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Abigail R. Recker, Deputy Attorney General, Indianapolis, Indiana
[1] M.D. appeals the decision of the Review Board of the Indiana Department of Workforce Development ("Review Board") to affirm an Administrative Law Judge's ("ALJ") order denying M.D. unemployment benefits. M.D. raises multiple issues for our review, which we restate as: (1) whether M.D. was deprived of her due process right to notice of her right to counsel; and (2) whether the Review Board erred in determining the ALJ's order was supported by substantial evidence. Concluding that M.D. was provided sufficient notice of her right to counsel and that the ALJ's order was supported by substantial evidence, we affirm.
[2] M.D. was employed by Proactive Automotive, LLC ("Employer"). In March 2020, M.D. left work sick. Soon thereafter, M.D., her stepson, and her nephew, who were both living with her, all began experiencing symptoms of COVID-19. Then the boys’ school and daycare closed due to the Governor's emergency order. As a result, M.D. was unable to return to work for multiple weeks; however, she remained in contact with Employer. On April 10, 2020, M.D. texted Dave Petree, Director of Services, asking whether there was any work she could do from home. Petree responded stating that there was not and that Exhibits, Volume 3 at 39. On April 30, 2020, M.D. contacted Employer's Human Resource Department ("HR") and informed them that the boys could return to daycare on May 4, 2020, and she would be able to return to work. However, following a phone call with Ryan Sexton, M.D.’s manager, on May 3, 2020, M.D. was no longer employed by Employer.
[3] Employer completed a termination notice form that contained several categories pertaining to separation from employment, including "Laid Off," "Terminated," and "Resignation." Id. at 11. Employer indicated with an "X" that M.D. had been "Laid Off." Id. However, the termination notice stated that and "[M.D.] was advised she could re[-]apply for this position when she was able to work her complete scheduled shift she was hired to work." Id.
[4] M.D. then applied for unemployment benefits. On May 8, 2020, Employer filed a protest with the Indiana Department of Workforce Development ("DWD") claiming that Id. at 9. However, a Claims Investigator with the DWD determined that "it cannot be established that [M.D.] quit voluntarily[,]" and that M.D. was qualified for unemployment benefits. Id. at 4.
[5] Employer appealed the Claims Investigator's determination. On September 30, 2020, the DWD mailed M.D. a Notice of Telephone Hearing before the ALJ. The notice stated the issue on appeal was "[w]hether the claimant voluntarily left the employment without good cause in connection with the work ... [or w]hether the employer discharged the claimant for just cause." Id. at 17. Enclosed with the notice were an "Acknowledgement Sheet" and "U.I. Appeals Hearing Instructions." See id. The Acknowledgement Sheet needed to be completed and returned to participate in the hearing, which M.D. did. See id. at 34. The U.I. Appeals Hearing Instructions state that "[p]arties may be represented at the hearing." Id. at 20.
[6] On October 14, 2020, the ALJ began to conduct a hearing via conference call; however, after determining the parties needed additional time to submit documentary evidence, the ALJ continued the hearing to November 2, 2020. See Transcript, Volume 2 at 28-31. When the hearing resumed, Sexton testified that M.D. had called him on April 30 to inform him that she could return to work but only from 6:30 a.m. to 12:00 p.m. Sexton informed M.D. that such a decision was above his position, and he would have to call her back. Sexton testified that he called M.D. on May 3 to inform her that Employer needed her to work from "6:30 to roughly 4:30 Monday through Friday" as she had been hired to do and that she could not come back to work on a modified schedule. Id. at 33, 37. However, M.D. testified that her employment was ended due to a reduction in available work and that she never told Employer that she could only work until around noon. Jackie Smith, Employer's HR manager, testified that no managers worked part-time during any of the COVID-19 related work slowdown.
[7] On November 9, 2020, the ALJ issued a decision in favor of Employer concluding:
Claimant owed a duty to the Employer to work her normal hours. Claimant breached that duty by informing the Employer she could not return to work at her normal hours. Claimant placed her own personal interests in conflict with those of the Employer who held her job for an extended period of time before ending the employment when they learned she couldn't work full time. Employer discharged the Claimant for just cause.
Appellant's Appendix, Volume 2 at 8.
[8] M.D. then filed a Petition for Judicial Review and Request for New Hearing claiming that she "was not advised of her right to have the assistance of counsel and not able to fully present her case."1 Id. at 25. She also claimed the ALJ's decision was not supported by substantial evidence. On January 8, 2021, the Review Board issued an order affirming the ALJ's decision.2 M.D. now appeals. Additional facts will be provided, as necessary.
Discussion and Decision
[9] When reviewing a decision by the Review Board, our task is to determine whether the decision is reasonable in light of its findings. Stanrail Corp. v. Unemployment Ins. Rev. Bd., 734 N.E.2d 1102, 1105 (Ind. Ct. App. 2000). Our review of the Review Board's findings is subject to a "substantial evidence" standard of review. Abdirizak v. Rev. Bd. of Ind. Dep't of Workforce Dev. , 826 N.E.2d 148, 150 (Ind. Ct. App. 2005). 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.
[10] When the decision of the Review Board is challenged as contrary to law, we consider whether the evidence is sufficient to support its findings and whether the findings are sufficient to sustain the decision. NOW Courier, Inc. v. Rev. Bd. of Ind. Dep't of Workforce Dev., 871 N.E.2d 384, 387 (Ind. Ct. App. 2007). The Review Board's findings of fact are generally conclusive and binding; however, when an appeal involves a question of law, this court is not bound by the Review Board's interpretation of the law. Art Hill, Inc. v. Rev. Bd. of Ind. Dep't of Workforce Dev., 898 N.E.2d 363, 366 (Ind. Ct. App. 2008). Whether a party was denied due process is a question of law that we review de novo. Miller v. Ind. Dep't of Workforce Dev., 878 N.E.2d 346, 351 (Ind. Ct. App. 2007).
[11] M.D. argues that she was "denied due process because she was not notified of her right to be represented by counsel prior to the evidentiary hearing." Appellant's Brief at 9-10. Although "the Review Board is allowed wide latitude in conducting its hearings, due process must be accorded a party whose rights will be affected." Wolf Lake Pub, Inc. v. Rev. Bd. of Ind. Dep't of Workforce Dev. , 930 N.E.2d 1138, 1141 (Ind. Ct. App. 2010) (quotation omitted). We have stated that due process "requires an administrative procedure reasonably calculated to inform a claimant of his right to appear by counsel." Sandlin v. Rev. Bd. of Ind. Emp. Sec. Div. , 406 N.E.2d 328, 333 (Ind. Ct. App. 1980).
[N]otice must be both timely and adequate, given within a reasonable time prior to the taking of any action, and specifying the proposed action and grounds therefor, indicating the information needed to determine eligibility, and advising the recipient of the right to be heard and to be represented by counsel.
Id. (quotation omitted) "[A]t least a written notice to the claimant is required." Id.
[12] Here, the record shows that on September 30, 2020, a Notice of Telephone Hearing was mailed to M.D. Ex., Vol. 3 at 17. This notice clearly states that enclosed with the notice are an Acknowledgement Sheet and U.I. Appeals Hearing Instructions. See id. The U.I. Appeals Hearing Instructions include a written statement that parties may be represented by counsel at the hearing. See id. at 20. After the original hearing began and was continued, a new set of documents, including the U.I. Appeals Hearing Instructions, was mailed to M.D. See id. at 26. However, M.D. contends that the Review Board assumes, without evidence, "that M.D. actually received the sheet advising her of her right to counsel." Appellant's Br. at 15. She argues that there is "nothing to indicate [the U.I. Appeals Hearing Instructions sheet] was ever mailed to M.D." because the copy of the U.I. Appeal Hearing Instructions submitted for the record does not independently contain a date or case identifying information. Appellant's Reply Brief at 8. This argument ignores that the notice of hearing, which M.D. acknowledges was mailed and that she received, see id. , specifically states that the U.I. Appeal Hearing Instructions is enclosed with the notice. Further, M.D. concedes that she received the Acknowledgement Sheet which she filled out and returned to the ALJ prior to both hearings. M.D.’s argument that she twice received a Notice of...
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