Kevin Perry v. Unemployment Insurance Review Board of the Indiana Department of Workforce Development and Indiana Dept. of Workforce Development UI Claims

FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:

ROBERT A. HICKS GREGORY F. ZOELLER
Macey Swanson and Allman Attorney General of Indiana
Indianapolis, Indiana
STEPHANIE ROTHENBERG
Deputy Attorney General
Indianapolis, Indiana

Apr 08 2013, 9:51 am
IN THE
COURT OF APPEALS OF INDIANA

KEVIN PERRY, )
)
Appellant, )
)
vs. ) No. 93A02-1208-EX-649
)
UNEMPLOYMENT INSURANCE )
REVIEW BOARD OF THE INDIANA )
DEPARTMENT OF WORKFORCE )
DEVELOPMENT and )
)
INDIANA DEPARTMENT OF WORKFORCE )
DEVELOPMENT UI CLAIMS )
ADJUDICATION CENTER, )
)
Appellees. )

APPEAL FROM REVIEW BOARD OF THE
INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT
Case No. 12-R-02226 (12-03692)

April 8, 2013

OPINION - FOR PUBLICATION

NAJAM, Judge
 STATEMENT OF THE CASE

Kevin Perry1 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.

FACTS AND PROCEDURAL HISTORY

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

1
Although the parties used Perry’s initials in their briefs, the parties used full names in the
administrative proceedings below. And there is no evidence in the record that any party to this appeal
made an “affirmative request pursuant to Administrative Rule 9(G)(1.2)” to exclude from public access
the identities and information confidential under Indiana Code Section 22-4-19-6 and the rule. Recker v.
Review Board, 958 N.E.2d 1136, 1138 n.4 (Ind. 2011). Thus, we use the parties’ names.
2
The Dislocated Worker Unit is the state agency administering the TAA program.
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.
[Perry] 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.

CONLCUSIONS OF LAW: This case is not about whether the Department
and the Dislocated Worker Unit allows funding for [a] TAA participant
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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.
[Perry] 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
4
 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.

DISCUSSION AND DECISION

“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. 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
uniformly recognize that propositions of law, such as the construction of
the statute, are for the court to determine. . . .

5
 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
such, they are typically reviewed to ensure that the Board’s inference is
“reasonable” or “reasonable in light of [the Board’s] findings.”

Tiller v. Review Bd. of the Ind. Dep’t of Workforce Dev., 974 N.E.2d 478, 481 (Ind. Ct.

App. 2012) (quoting McClain v. Review Bd. of the Ind. Dep’t of Workforce Dev., 693

N.E.2d 1314, 1316-17 (Ind. 1998) (citations omitted; alterations original)).

Perry contends that the Review Board erred when it affirmed the ALJ’s findings

and conclusions regarding his termination from the TAA training program. The facts are

not in dispute. Perry was approved for the TAA training program and executed a

participant agreement. The TAA program was administered through the Indiana

Department of Workforce Development (“DWD”) and the Columbus WorkOne office.

Perry was approved to obtain an “Associate of Applied Science” degree from Ivy Tech,

specifically in “Accounting.” Exhibits at 41A. The Participant Agreement provides, in

relevant part:

The above training program [of “31 weeks + WP week”] has been
approved, and a contract is being executed on your behalf with the training
provider. As the beneficiary of this agreement and contract, you agree to
the following:

1. I agree to undertake this program in good faith with the intention of
successfully completing the specified training program.

***

4. I agree to meet with my local WorkOne Staff monthly during school to
report progress and/or difficulties. I agree to provide a schedule during the
6
 first week of each semester and a grade report within two weeks of the
completion of each semester.

5. I agree not to deviate from the program or curriculum without the written
consent of any WorkOne representative. I am not permitted to drop classes.
I must be enrolled as a full[-]time student.

***

8. I have received a copy of the student handbook and [Trade Readjustment
Allowance] benefit rights overview and agree to comply with all program
rules as outlined.

Exh. at 42. Perry was also given a TAA Student Handbook (“Handbook”). The

Handbook distinguished classroom training from employer-based training. With regard

to Classroom training, which “may include Remedial Training[,]” Exh. at 89, the

Handbook provides, in relevant part:

Classroom Training

Classroom training is instructor[-]led training. Approved Classroom
training includes the costs of tuition, course fees, required books and
supplies, and other items/services mandated/itemized by the training
institution for all/any student (not just your instructor). . . .

Distance (Learning) Training

The U.S. Department of Labor (USDOL) permits distance learning
(e.g. on-line) when the degree or certificate received is equivalent to
traditional classroom training.

When considering Distance (Learning) Training, as an option, keep
in mind your responsibility to coordinate with your distance learning
providers and your WorkOne Counselor to ensure that all parties
understand the specific requirements or milestones of the distance learning
program with respect to “attendance” and grading—including maintaining
full-time status (when mandated), monthly reporting and validation of
plan’s completion date. Failure to do so may place all related benefits at
risk.

Exh. at 89-90.

7
 The ALJ found that Perry’s WorkOne Case Manager, Steinkamp, had informed

him on October 25, 2012, that he could not register for online courses until after he had

filed a request to modify his training plan and he had received approval for that

modification request. However, at that time, Perry had already registered for online

courses for the Spring semester of 2012. And he did not change his registration to

classroom courses after talking with Steinkamp in October. On January 25, 2012, the

Department sent a letter to Perry, notifying him that his TAA benefits were “at-risk and

under review” because, as he had been informed by telephone, he had, “without

authorization, . . . modified [his] training plan.” Exh. at 45. Classroom courses on

campuses greater than fifty miles from Perry’s home were still available, and Perry could

have applied for travel assistance to cover travel costs, but he remained enrolled in the

online courses. On February 21, 2012, the Department issued a Request for TAA Exit on

the ground that Perry had “[m]odified [his] program without authorization” by enrolling

in online courses without prior authorization. Exh. at 76. The evidence in the record

supports these findings, and the findings support the determination that Perry modified

his training program without prior authorization and that such was a proper basis for

termination from the TAA program.

Perry disputes the conclusion that his enrollment in online training courses

constituted a modification of his training plan so as to require prior authorization. In

8
support he cites Training and Employment Guidance Letter (“TEGL”) 9-05.3 That

directive, issued in 2005 by the Department of Labor, provides in part:

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 CFR 617.22 must be
met in the same way as in any other training program.

Appellant’s App. at 2 (citing TEGL 9-05) (emphasis in original); see also

http://wdr.doleta.gov/directives/attach/TEGL09-05.pdf (last visited March 19, 2013).

The directive issued by the Department of Labor in TEGL 09-05 provides that

online instruction may be considered classroom training. However, the language in

TEGL 09-05 is in terms of “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.” Appellant’s App. at 2 (citing TEGL 9-05) (emphasis in original);

3
In its brief, the Review Board bases its argument in part on TEGL 07-00. That directive was
rescinded and replaced by TEGL 09-05. See http://wdr.doleta.gov/directives/attach/TEGL09-05.pdf (last
visited March 19, 2013).
9
see also http://wdr.doleta.gov/directives/attach/TEGL09-05.pdf (last visited March 19,

2013). Here, there is evidence that Perry could have participated in interactive classroom

training within an easy distance from his home had he timely registered for such classes.

And even after he had been notified that his TAA benefits were at risk, classroom courses

were still available within a reasonable distance from his home, but Perry maintained his

enrollment in the online courses. As noted by the ALJ and affirmed by the Review

Board, the issue presented is not whether online coursework is permissible under certain

circumstances in the TAA program. Rather, the issue is “whether Perry was 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 had] deviated from

the approved training plan.” Appellant’s App. at 2. Here, the evidence supports the

findings, and the findings support the conclusion, that Perry deviated from his approved

training program without prior authorization. Thus, we cannot say that the Review Board

erred when it affirmed his termination from the TAA program.

Perry also contends that the DWD erred when it denied his request to deviate from

his approved TAA training program. But, as explained above, Perry modified his

training plan without prior authorization and made no attempt to revise his registration to

be in compliance with the approved plan even after Steinkamp advised him to do so well

before the semester started. On these facts, and as explained above, we cannot say that

the Department of Workforce Development erred when it denied his modification

request.

Affirmed.

FRIEDLANDER, J., and BRADFORD, J., concur.
10