Redmond v. Review Bd. of the Ind. Dep't of Workforce Dev.
| Docket Number | 21A-EX-1780 |
| Decision Date | 20 May 2022 |
| Parties | Cornelius Redmond, Appellant-Petitioner, v. Review Board of the Indiana Department of Workforce Development, Appellee-Respondent |
| Court | Indiana Appellate Court |
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 of establishing the defense of res judicata collateral estoppel, or the law of the case.
APPELLANT PRO SE Cornelius Redmond Harvey, Illinois
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Natalie F. Weiss Deputy Attorney General Indianapolis, Indiana
[¶1] Cornelius Redmond[1] appeals the decision of the Review Board ("Review Board") of the Indiana Department of Workforce Development ("Department"), which affirmed Administrative Law Judge ("ALJ") Curtis Foulks's decision adverse to Redmond. Redmond asserts he was denied a fair hearing and should be eligible to receive Pandemic Unemployment Assistance ("PUA"). On cross-appeal, the Review Board asserts: (1) Redmond waived his arguments for appeal, and (2) the Review Board's affirmation of the ALJ's decision was not erroneous. We affirm.
[¶1] On October 2, 2020, a claims investigator for the Department determined Redmond was ineligible for PUA from April 4, 2020 through December 26, 2020. Redmond timely filed for an appeal of the investigator's determination. The Department set a hearing about Redmond's eligibility for PUA on February 2, 2021, at 10:30 a.m. and mailed notice of the telephonic hearing to the parties. On February 2, 2021, AJL Natalya Cross called the number provided by Redmond on his appeal request, but the call went to his voicemail. ALJ Cross left the following message:
Hello, this is Administrative Law Judge Cross, calling for Mr. Cornelius Redmond, for the Unemployment Insurance Appeals hearing that was scheduled for today, February 2nd, 2021, at 10:30 a.m. It is now 10:32 a.m. It is not possible for you to call into the hearing, so I will call you back in approximately fifteen minutes to see if you are able to participate. If I am unable to reach you after the second attempt, this appeal will be dismissed. Thank you.
(Tr. Vol. II at 3) (superscript in original). ALJ Cross called him again fifteen minutes later, and Redmond did not answer. Accordingly, ALJ Cross dismissed Redmond's appeal.
[¶2] Redmond timely appealed ALJ Cross's dismissal to the Board and asserted he had not received notice of the telephonic hearing. The Board found Redmond had created a genuine issue of fact about notice, and it remanded Redmond's case for a new ALJ to hold a hearing and determine whether Redmond had good cause for missing the hearing with ALJ Cross. The Order also provided:
If the Claimant proves that he had good cause for failing to participate in the Administrative Law Judge's hearing, the Appellate Division must vacate Administrative Law Judge Cross's dismissal and hold a hearing to allow both parties an opportunity to participate in a hearing on the merits. If the Claimant does not prove that he had good cause for failing to participate in the Administrative Law Judge's hearing, the new Administrative Law Judge shall reissue Administrative Law Judge Cross's dismissal of the Claimant's appeal.
[¶3] The Department scheduled the new hearing for June 14, 2021, at 9:15 a.m. and mailed notice to the parties. Redmond called the number provided in the notice to report the telephone number at which the ALJ could reach him on June 14. ALJ Curtis Foulks called Redmond's phone number at 9:17 a.m. on June 14, and the call went to voicemail. ALJ Foulks left a message indicating he was calling from the Department of Workforce Development for the hearing about Redmond's unemployment benefits, he would call again at 9:30 a.m., and the appeal would be dismissed if Redmond was not available at that time. When ALJ Foulks called a second time, Redmond again did not answer. Based thereon, ALJ Foulks determined Redmond did not have good cause for failing to participate in the February hearing with ALJ Cross, and ALJ Foulks reissued ALJ Cross's dismissal of Redmond's appeal of the denial of his request for PUA. Redmond timely appealed to the Board, and the Board affirmed ALJ Foulks's decision.
Discussion and Decision
[¶4] The State cross-appeals to assert Redmond has waived any argument he could have raised on appeal by providing an argument section that cites neither legal authority nor the record on appeal. The Argument section of an appellant's brief Ind. Appellate Rule 46(A)(8)(a). "It is not sufficient for the argument section that an appellant simply recites facts and makes conclusory statements without analysis or authoritative support." Kishpaugh v. Odegard, 17 N.E.3d 363, 373 n.3 (Ind.Ct.App. 2014) (waiving three arguments that had neither cogent reasoning nor citation to authority), trans. denied. Moreover, when "a party refers to facts without citation to designated evidence in support of those facts, we need not consider those facts." Reed v. City of Evansville, 956 N.E.2d 684, 688 n.1 (Ind.Ct.App. 2011) (emphasis in original), trans. denied. Failure to abide by Appellate Rule 46(A)(8) has often resulted in waiver of arguments on appeal. See, e.g., Shields v. Town of Perrysville, 136 N.E.3d 309, 312 n.2 (Ind.Ct.App. 2019) (). Though Redmond's argument is waived for appeal, we address the merits briefly to explain why we cannot give him the relief he requests.
[¶5] Redmond appeals the Review Board's affirmation of a decision by the ALJ.
Upon appeal of a Review Board decision, we utilize a two-part inquiry into the sufficiency of the facts sustaining the decision and the sufficiency of the evidence sustaining the facts. Under this standard, we review determinations of basic underlying facts, conclusions or inferences from those facts, and conclusions of law. Any decision of the review board shall be conclusive and binding as to all questions of fact. Therefore we neither reweigh the evidence nor judge the credibility of witnesses, we consider only the evidence most favorable to the Review Board's findings of basic fact, and we accept those findings if they are supported by substantial evidence. As to inferences of ultimate fact, we determine whether the Review Board's finding of ultimate fact is a reasonable one. Finally, we review conclusions of law de novo, assessing whether the Review Board correctly interpreted and applied the law.
S.S. v. Review Bd. of Ind. Dep't of Workforce Dev., 941 N.E.2d 550, 554 (Ind.Ct.App. 2011) (internal citations and quotations omitted), reh'g denied.
[¶6] The Review Board adopted and incorporated the findings entered by the ALJ on June 14, 2021. Those findings stated:
(Ex. Vol. at 30.) Redmond does not challenge the veracity of those findings, which is proper, as our review of the record suggests any such challenge would be futile.
[¶7] Instead, Redmond asserts he wanted to participate in the appeal hearing on June 14, 2021, and he "received 2 phone calls from the administrative law judge but it was not at the accurate time that was stated and I didn't know the number that they were calling from." (Appellant's Br. at 3.) On reply, Redmond further explains that he was not responsible for missing the telephone hearing because the ALJ was to call at 9:30 a.m., but the ALJ did not call until 9:33 a.m., which was "not the exact time as scheduled[.]" (Appellant's Reply Br. at 5.)
[¶8] While the Indiana Code requires parties to disputes over unemployment benefits to have a "reasonable opportunity for a fair hearing," Ind. Code § 22-4-17-3(a), that hearing may occur by telephone. See Ind. Code § 22-4-17-8.5(b)(1...
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