S.S. v. Review Bd. of The Ind. Dep't of Workforce Dev.
| Decision Date | 24 March 2011 |
| Docket Number | No. 93A02–1006–EX–738.,93A02–1006–EX–738. |
| Citation | 941 N.E.2d 550 |
| Parties | S.S., Appellant,v.REVIEW BOARD OF the INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT, Appellee. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
S.S. Hammond, IN, Appellant Pro Se.Gregory F. Zoeller, Attorney General of Indiana, Pamela S. Moran, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
S.S. applied for unemployment benefits and was denied by a claims deputy of the Department of Workforce Development (“DWD”). S.S. filed an administrative appeal, and a telephonic appeal hearing was scheduled, of which S.S. received notice. Due to S.S.'s confusion of the Eastern and Central time zones, S.S. failed to answer the administrative law judge's call at the scheduled time, no hearing was held, and the ALJ therefore dismissed S.S.'s appeal. S.S. requested but was denied reinstatement of her appeal, and the Review Board of the DWD affirmed that denial. S.S. appeals the Review Board's decision, presenting the following expanded and restated issues for our review: 1) whether S.S. was afforded due process and a reasonable opportunity for a fair hearing; 2) whether the Review Board erred by failing to consider all of the evidence submitted by S.S.; and 3) whether the Review Board erred by denying S.S.'s request to reinstate her appeal. Concluding S.S. was afforded due process and a reasonable opportunity for a hearing, and finding no error in the Review Board's consideration of evidence or in its denial of S.S.'s request to reinstate her appeal, we affirm.
S.S., who lives in Hammond, Indiana, was employed by C.B.C. until September 2009. S.S. claimed she left due to improper practices by C.B.C., but a DWD claims deputy, in finding S.S. ineligible for unemployment benefits, determined she was discharged for just cause. On November 3, 2009, the DWD mailed S.S. a copy of the adverse eligibility determination. On November 6, 2009, S.S. timely filed her appeal.
On February 16, 2010, the DWD mailed S.S. a notice of hearing. The notice stated, “[i]f you are the appealing party and fail to participate in the hearing, the administrative law judge will dismiss your appeal.” Appendix of Appellee Review Board at 10. The notice contained the name, Indianapolis address, and telephone and fax numbers of the administrative law judge (“ALJ”) assigned for the hearing. The notice specified the hearing would be on March 2, 2010, at 9:15 a.m. Eastern Standard Time, would be conducted by telephone, and the ALJ would call all parties. A set of instructions attached to the notice stated:
Several Indiana counties are in different time zones. It is your responsibility to know which time zone you are located in, and what time the hearing will take place, and to participate on that date and time. For telephone hearings, the judge will call you at the ONE contact number you provide. Hearings may proceed in the absence of either or both of the parties. You cannot call in and be connected to a hearing that is already in progress.
Id. at 12. The instructions also stated the parties may, in writing, request a change in the date or time of the hearing. On February 22, 2010, S.S. faxed to the DWD a signed return slip acknowledging the hearing date and time, listing her cell phone number, and checking a box stating she would participate in the hearing.
On March 2, 2010, the ALJ telephoned S.S. at the number she provided, but S.S. did not answer, so no hearing was held. Later that day, S.S. faxed a letter to the ALJ explaining she did not answer her phone due to having the Eastern and Central time zones “mixed up.” Id. at 19. S.S. explained she mistakenly thought the hearing was set for 10:15 a.m. Central time, and that she could not take the ALJ's call because she was attending a food stamp hearing inside a federal building that did not permit use of cell phones.
Also on March 2, 2010, the ALJ issued an order dismissing S.S.'s appeal and stating:
The party who requested the appeal failed to participate in the appeal hearing scheduled on Tuesday, March 02, 2010. The Administrative Law Judge, therefore, dismissed the appeal. The deputy's determination will become final unless the party requesting the appeal files a written request for reinstatement within seven days from the mailing date of this Notice. Requests for reinstatement must show good cause why the appeal should be reinstated.... NO APPEAL WILL BE REINSTATED MORE THAN ONCE.
S.S. filed a request for reinstatement of her appeal. This request was considered and denied by the Appeals Director in an April 19, 2010 order stating:
646 IAC 3–12–4 states in part:
“(b) If the party who has requested the appeal fails to appear at an administrative law judge hearing, after having received due notice, the administrative law judge may, in his discretion, dismiss the appeal and the determination from which the appeal was requested shall be deemed final unless such appeal is reinstated as provided.”
The administrative law judge dismissed the appeal because [S.S.], the party requesting the hearing, did not appear. The administrative law judge mailed the dismissal on Tuesday, March 02, 2010, and [S.S.] applied for reinstatement on Monday, April 19, 2010. Since the appealing party did not show good cause why the case should be reinstated, the request for reinstatement is DENIED.
Id. at 20. S.S. appealed this decision to the Review Board.
On June 4, 2010, the Review Board issued its decision affirming the ALJ and the Appeals Director without holding a hearing or admitting additional evidence. The Review Board adopted the findings and conclusions of the Appeals Director and added the following:
In her appeal to the Review Board, [S.S.] alleges that she did not file her request for reinstatement on April 19, 2010. She alleges that she filed her request for reinstatement “the same day I missed the appointment on March 2nd, 2010.” There is a faxed letter from [S.S.] in the Administrative Law Judge's file that was received on March 2, 2010. This document cannot be considered a request for reinstatement, however, because the Notice of Dismissal had not yet been issued when [S.S.] prepared and sent her March 2, 2010 letter. A party cannot preemptively file a motion asking for reinstatement before the case is dismissed.
[S.S.] additionally argues that she demonstrated good cause for missing her hearing. The hearing notice scheduling the March 2, 2010 hearing at 9:15 a.m. Eastern Standard Time was mailed to the parties on February 16, 2010. [S.S.] had sufficient time to ask for a continuance of the unemployment hearing if she had a conflicting appointment, but she did not request a continuance. Furthermore, [S.S.] had sufficient time to clarify any confusion regarding what time zone she was in and when the Administrative Law Judge would contact her for the hearing. [S.S.] did not demonstrate good cause for failing to participate in the Administrative Law Judge's hearing.
Id. at 24. S.S. now appeals pro se.
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.” Whiteside v. Ind. Dep't of Workforce Dev., 873 N.E.2d 673, 674–75 (Ind.Ct.App.2007). Under this standard, we review determinations of basic underlying facts, conclusions or inferences from those facts, and conclusions of law. McClain v. Review Bd. of Ind. Dep't of Workforce Dev., 693 N.E.2d 1314, 1317(Ind.1998). “Any decision of the review board shall be conclusive and binding as to all questions of fact.” Ind.Code § 22–4–17–12(a). 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. McClain, 693 N.E.2d at 1317. As to inferences of ultimate fact, we determine whether the Review Board's finding of ultimate fact is a reasonable one. Id. at 1318. Finally, we review conclusions of law de novo, assessing whether the Review Board correctly interpreted and applied the law. See Whiteside, 873 N.E.2d at 675.
S.S. argues she was denied due process because the ALJ failed to give her a reasonable opportunity to participate in a hearing. Whether a party was afforded due process in an unemployment proceeding is a question of law we review de novo. Art Hill, Inc. v. Review Bd. of Ind. Dep't of Workforce Dev., 898 N.E.2d 363, 367 (Ind.Ct.App.2008).
“The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Id. (quotation omitted). The opportunity to be heard in an unemployment proceeding is codified by the provision that the ALJ, after “affording the parties a reasonable opportunity for fair hearing, shall affirm, modify, or reverse the findings of fact and decision of the deputy.” Ind.Code § 22–4–17–3(a). The ALJ may hold the hearing by telephone absent an objection from an interested party and after determining that a telephonic hearing is proper and just. Ind.Code § 22–4–17–8.5(b)(4). Each party to the hearing must be mailed a notice of the hearing at least ten days before the scheduled date, specifying the date, place, and time of the hearing and identifying the issues to be decided. Ind.Code § 22–4–17–6(c). This court has held that “a party to an unemployment hearing may voluntarily waive the opportunity for a fair hearing where the...
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