Perry v. Unemployment Ins. Review Bd. of Ind. Dep't of Workforce Dev.
| Decision Date | 08 April 2013 |
| Docket Number | No. 93A02–1208–EX–649.,93A02–1208–EX–649. |
| Citation | 984 N.E.2d 1275 |
| Parties | Kevin PERRY, Appellant, v. UNEMPLOYMENT INSURANCE REVIEW BOARD OF the INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and Indiana Department of Workforce Development UI Claims Adjudication Center, Appellees. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Robert A. Hicks, Macey Swanson and Allman, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Stephanie Rothenberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellees.
Kevin Perry 1 appeals the order of the Review Board (“Review Board”) of the Indiana Department of Workforce Development, affirming the findings and conclusions of the Administrative Law Judge (“ALJ”) and terminating Perry from the Trade Adjustment Assistance (“TAA”) training program. Perry presents three issues for review, which we consolidate into a single issue, namely, whether the Review Board's decision affirming the termination of Perry's participation in the TAA training program is erroneous.
We affirm.
The relevant facts as found by the ALJ and adopted by the Review Board are as follows:
FINDINGS OF FACT: The Administrative Law Judge makes the following findings of fact: The Claimant worked for Columbus Components. The Claimant separated from the job on June 30, 2009. On September 1, 2009, the Department of Labor certified workers for federal benefits in the form of Trade Adjustment Assistance (TAA) and Trade Readjustment Allowance (TRA) in certification # 70779. Workers were potentially eligible for job search allowance, relocation allowance, training benefits, and an income support in the form of TRA.
The Claimant submitted an application and the Dislocated Worker Unit [ 2] subsequently approved [Perry]'s application to participate in the TAA program. The training program [that Perry] participated in was the Accounting program within the Accounting and Business Administration Department at Ivy Tech Community College. [Perry] attended courses at the Columbus, IN campus that is nineteen (19) miles from [Perry]'s home. The start date of the training was May 24, 2010[,] and scheduled to end on December 21, 2012. The approved training application makes no mention of [Perry]'s ability to take online courses. [Perry] also signed a Participant Agreement. Part five (5) of the agreement obligates [ Perry ] not to deviate from the program or curriculum without the written consent of any WorkOne representative.
On November 7, 2011, [Perry] requested, through his assigned Case Worker, Nancy Steinkamp, a modification in the training program. [Perry] requested to attend all courses online during the Spring 2012, Summer 2012, and Fall 2012 semesters. The Dislocated Worker Unit handles modification requests on a case-by-case basis. In making its decision, the Dislocated Worker Unit defers [to] and considers the University's opinion on whether a claimant who applies for such modification will be successful in completing the program.
Marian Canada chairs the Accounting and Business Administration department. On November 9, 2011, Ms. Steinkamp emailed Ms. Canada to obtain Ms. Canada's opinion on whether [Perry] could be successful with online class attendance. Ms. Canada did not feel comfortable agreeing to allow [Perry] to take classes online.
Prior to [Perry] and Ms. Steinkamp submitting the modification request, [Perry] registered for the spring 2012 semester with all online courses. Ms. Steinkamp informed [Perry] on October 25, 2011[,] that [he] could not register for online classes until the Dislocated Worker Unit made a final decision on the request. However, [Perry] did not change the courses. On January 25, 2012, the Department issued a warning letter informing [Perry] that his TAA benefits were at risk and under review. The letter informed [Perry] that [he] modified the training plan without authorization and that any non-approved deviation from the original plan may place Trade-related benefits at risk. By this time, the class offerings for the Spring Semester 2012 were filling up at the Columbus campus. Course offerings were available at the locations greater than fifty (50) miles from [Perry]'s home. [K.P.] could have enrolled in those courses at other campuses and apply for travel assistance to cover associated costs to travel to various campuses. However, [he] remained enrolled in the online courses.
The Department issued a Request for TAA Exit on February 21, 2012. The Department exited [Perry] from the TAA program for deviating from the approved training plan in violation of the criteria set forth in 20 CFR 617.
CONCLUSIONS OF LAW: This case is not about whether the Department and the Dislocated Worker Unit allows funding for [a] TAA participant who choose[s] to complete the training program through online education. The Dept. of Labor Training and Employment Guidance Letter (TEGL) 09–05 provides:
Under the TAA program, the Department [of Labor] has determined that distance learning may be considered “classroom training” when the degree of certificate received is equivalent to what would have been received if the training had been conducted on campus. This interpretation expands the types of approvable classroom training to include distance learning, where a participant completes all or part of an educational or vocational program in a location far away from the institution hosting the training program. For distance learning, the final degree or certificate conferred must be equivalent in the content and standard of achievement to the same program completed on campus or at an institutional training location. When the above condition is met, the Department will recognize that the training is of the type that normally takes place in an interactive classroom setting; therefore, it satisfies the requirement of the regulations and statutes. This is a new standard that replaces the four conditions in TEGL 7–00.
In addition, in order for distance learning to be approved, all criteria for training approval found at 20 DFR 617.22 must be met in the same way as in any other training program.
(Emphasis added). TEGL 0905, December 12, 2005.
The issue in this case is whether [Perry] is eligible to continue to participate in the TAA program after a modification request was submitted and subsequently denied by the Dislocated Worker Unit, and [Perry] deviated from the approved training plan.
Eligibility for Federal Trade Adjustment Assistance (TAA) funding is governed by 20 C.F.R. § 617.22. 20 C.F.R. § 617.22 confers discretion to the state agency to determine how the program will be administered. [Perry] signed a Participant Agreement form issued by the Department agreeing to not deviate from the program or curriculum without the written consent of any WorkOne representative. The participant agreement is clear that failure to fully participate as outlined in the participant agreement might result in the loss of benefits or repayment of the benefits received. [K.P.] did not receive permission to take all online courses. Further, Ms. Steinkamp specifically informed [Perry that] he was to wait to register for online courses until after the Dislocated Worker Unit approved [Perry]'s modification request. In fact, the Department denied the request, and [Perry] failed to make the necessary changes to stay in compliance with the original training plan.
Accordingly, the Department properly exited [Perry] from the training program due to [his] unauthorized modification to the training program and failing to meet the criteria contained in 20 CFR § 617.22.
Appellant's App. at 1–3 (some emphasis in original, citations omitted). Perry now appeals.
“Reviews of trade adjustment assistance determinations are ‘subject to review in the same manner and to the same extent as determinations and redeterminations under the applicable State law, and only in that manner and to that extent.’ ” R.D. v. Review Bd. of Ind. Dep't of Workforce Dev., 941 N.E.2d 1063, 1067 (Ind.Ct.App.2010) (quoting 20 C.F.R. § 617.51(a)). “In other words, a denial of training benefits is reviewable in state court as if it had been a denial of conventional unemployment benefits.” Id. (citing 19 U.S.C. § 2311(d) (1988)). Our supreme court has explained the standard of review in conventional unemployment benefit cases:
The Indiana Unemployment Compensation Act provides that “[a]ny decision of the review board shall be conclusive and binding as to all questions of fact.” However, the statute also includes explicit provision for judicial review in language virtually identical to that found in provisions for review of other administrative agency actions. Indiana Code § 22–4–17–12(f) provides that when the Board's decision is challenged as contrary to law, the reviewing court is limited to a two part inquiry into: (1) “the sufficiency of the facts found to sustain the decision”; and (2) “the sufficiency of the evidence to sustain the findings of facts.” Under this standard courts are called upon to review (1) determinations of specific or “basic” underlying facts, (2) conclusions or inferences from those facts, sometimes called “ultimate facts,” and (3) conclusions of law. Courts uniformlyrecognize that propositions of law, such as the construction of the statute, are for the court to determine....
Review of the Board's findings of basic fact are subject to a “substantial evidence” standard of review. In this analysis the appellate court neither reweighs the evidence nor assesses the credibility of witnesses and considers only the evidence most favorable to the Board's findings.
The Board's conclusions as to ultimate facts involve an inference or deduction based on the findings of basic fact. These questions of ultimate fact are sometimes described as “questions of law.” They are, however, more appropriately characterized as mixed questions of law and fact. As...
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