M.B. v. Review Board of the Indiana Department of Workforce Development, and Company (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Nov 20 2015, 8:37 am

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 ATTORNEYS FOR APPELLEES
M.B. Gregory F. Zoeller
Dubois, Indiana Attorney General of Indiana
Aaron T. Craft
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

M.B., November 20, 2015
Appellant, Court of Appeals Case No.
93A02-1504-EX-255
v. Appeal from the Review Board of
the Department of Workforce
Review Board of the Indiana Development
Department of Workforce The Honorable Steven F. Bier,
Development, and Company, Chairperson, The Honorable
George H. Baker, Member, and
Appellees The Honorable Larry A. Dailey,
Member
Cause No.
15-R-422

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 Baker, Judge.

[1] M.B. appeals the order of the Review Board of the Indiana Department of

Workforce Development (Review Board), which found that he voluntarily left

his employment, disqualifying him from receiving unemployment benefits.

Finding substantial evidence from which the Review Board could make this

determination, we affirm.

Facts
[2] M.B. worked as a truck driver for Employer1 from March 7, 2014, until October

31, 2014. At the end of his employment, M.B. filed for unemployment benefits,

and on December 8, 2014, a claims deputy for the Department of Workforce

Development approved his claim. The claims deputy framed the case as

whether there was “discharge for just cause,” and found that “[i]t has not been

established that the claimant was warned that the job was in jeopardy, nor that

specific warnings were issued.” Appellee’s App. 16.2

[3] On December 17, 2014, Employer appealed the claims deputy’s determination.

In the notice of hearing, the Administrative Law Judge (ALJ) stated the issues

1
Under the newly amended Administrative Rule 9, the default rule is of confidentiality unless waived. Ind.
Administrative Rule 9(G)(6). Therefore, we will use initials for the employee and “Employer” for the
employer in this case.
2
M.B.’s Appellant’s Appendix is lacking several materials required by the Indiana Appellate Rules.
Specifically, it does not include a chronological case summary, nor the order being appealed. App. R.
v50(a)(2). Although M.B. is proceeding pro se, “pro se plaintiffs are held to the same rules of procedure as
licensed attorneys.” Nesses v. Specialty Connectors Co., 564 N.E.2d 322, 326 (Ind. Ct. App. 1990).
Nevertheless, we are able to adequately resolve this case on the merits because the Review Board has
graciously supplemented the record with its own appendix. We thank the Review Board for this courtesy.

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 as follows: “Whether the employer discharged the claimant for just cause. IC

22-4-15-1(d)(1-9). Whether the claimant voluntarily left the employment

without good cause in connection with the work. IC 22-4-15-1(a)-(b).” Id. at

17. On January 29, 2015, M.B. requested “a continuance do [sic] to the fact

that I need more time to get my evidence and exhibits ready for the hearing.”

Id. at 10. The ALJ denied this request on the grounds that “Claimant did not

show good cause.” Id. at 11.

[4] The ALJ heard the case on February 3, 2015. Present at this telephonic hearing

were Employer’s operations manager, Employer’s safety director, M.B., and

M.B.’s wife. The parties presented conflicting narratives of M.B.’s final day

with Employer.

[5] Both of Employer’s witnesses testified that M.B. was called in to discuss several

deliveries he had made behind schedule. Employer planned on giving M.B. a

warning. M.B. angrily requested proof that his deliveries were behind schedule,

but before the safety director returned with the files, M.B. rushed out of the

building, called the police, and never contacted Employer again until the filing

of his unemployment claim.

[6] M.B. agreed that he was called in for a meeting, but said that Employer

summarily fired him. M.B. alleged that Employer was retaliating after M.B.

filed a workman’s compensation claim. He said that he called the police

because the operations manager and safety director followed him aggressively

when he walked outside. M.B. also claimed that he had called his wife just

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 before being summoned into the meeting, and that she was on speaker phone

during the entire conversation. She claimed to have heard the operations

manager tell M.B. that M.B. was fired. At the hearing, the ALJ repeatedly told

M.B. to stay on the topic of whether he was discharged, but M.B. was more

interested in attempting to impeach the documents showing his check-in times.

M.B. explained, “I thought . . . this hearing was over whether I was late or not.

I didn’t know it was over whether I was discharged or not.” Tr. p. 27.

[7] On February 9, 2015, the ALJ reversed the claims deputy’s determination that

M.B. was entitled to unemployment benefits. The ALJ found the Employer’s

narrative more credible:

It was within the scope of the employer’s authority to discuss
customer complaints with the claimant. There is no evidence
that the employer was being unduly harsh or threatening during
the meeting. The employer’s testimony is credible due to the
claimant demonstrating that he was not able to follow completely
what was being told to him during the hearing. The claimant
may have felt he was being discharged but may have
misunderstood what the employer was discussing. The claimant
would not be eligible for unemployment benefits.

Appellee’s App. 4. M.B. appealed the ALJ’s decision to the Review Board.

The Review Board adopted the ALJ’s findings of fact and conclusions of law,

and affirmed the ALJ’s decision. M.B. now appeals.

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 Discussion and Decision
[8] In considering M.B.’s challenge, we must review the sufficiency of the facts

found to sustain the decision and the sufficiency of the evidence to sustain the

findings of fact. Ind. Code § 22-4-17-12(f). We apply a three-part standard of

review: (1) findings of basic fact are reviewed for substantial evidence; (2)

findings of mixed questions of law and fact—ultimate facts—are reviewed for

reasonableness; and (3) legal propositions are reviewed for correctness.

Advanced Corr. Healthcare, Inc. v. Review Bd. of Ind. Dep’t of Workforce Dev., 27

N.E.3d 322, 327 (Ind. Ct. App. 2015). We will neither reweigh the evidence

nor assess witness credibility, and we consider only the evidence most favorable

to the Review Board’s findings. Chrysler Grp. v. Review Bd. of Ind. Dep’t of

Workforce Dev., 960 N.E.2d 118, 122 (Ind. 2012).

[9] In Indiana, an employee is not eligible for unemployment benefits if he

voluntarily leaves his employment without good cause in connection with the

work. Ind. Code § 22-4-15-1. This accords with the purpose of unemployment

benefits—“to provide benefits to those who were involuntarily out of

employment, and not to finance those who were willingly and deliberately

refusing to work. . . .” Walter Bledsoe Coal Co. v. Review Bd. of Emp’t Sec. Div. of

Dep’t of Treasury, 221 Ind. 16, 21, 46 N.E.2d 477, 479 (1943).

[10] In his brief, M.B. simply repeats his argument, already made to the ALJ, that

he was fired at the October 31, 2014, meeting. His appendix consists mostly of

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 doctor’s notes stating that he was injured.3 But whether he was injured is not

relevant to Employer’s claim that he left that meeting intending to quit his

employment. What is relevant to that issue is M.B.’s testimony that he was

fired and Employer’s testimony that he was not fired. Resolving the conflicting

stories offered by the parties is within the ALJ’s and the Review Board’s

bailiwick, not ours. As our standard of review makes clear, we will not reweigh

the evidence or reassess witness credibility.

[11] There was substantial evidence from which the ALJ could make its findings of

fact, which were adopted by the Review Board. Employer’s witnesses testified

that M.B. simply left in the middle of a meeting. He never returned to work,

nor did he communicate with Employer to tell them he intended to return to

work. He never told Employer that he was staying home because of an injury.

Based on these facts, the ALJ’s finding of mixed questions of law and fact—

namely, that M.B. voluntarily left his employment without good cause—was

reasonable.

[12] M.B. also mentions, in passing and without cogent argumentation, that he

“would have had [more evidence] in the first hearing but the Administrated

[sic] Law Judge would not give me a continuance to get repaired [sic].”

Appellant’s Br. 7. The Indiana Administrative Code provides that a request for

continuance in the context of a disputed benefits hearing “must set forth good

3
We note that most of these materials were not admitted into evidence, nor are they anywhere in the record.
Appellate courts do not receive new evidence. Melloh v. Gladis, 261 Ind. 647, 659, 309 N.E.2d 433, 440
(1974).

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 cause for the granting of the request.” 646 Ind. Admin. Code 5-10-6(a). The

decision whether to grant such a request is within the discretion of the ALJ, and

will be reversed only for an abuse of that discretion. J.W.B. v. Review Bd. of Ind.

Dept. of Workforce Dev., 952 N.E.2d 843, 846 (Ind. Ct. App. 2011). In this case,

the ALJ was well within his discretion in determining that M.B. had not set

forth good cause. Indeed, the only “cause” provided in the request for why

M.B. needed more time was tautological—he needed more time because he

needed more time. Moreover, none of this additional evidence appears to relate

to the central findings of the ALJ: that M.B. voluntarily left his employment

and the Employer never told him that he was fired. The ALJ did not abuse its

discretion to deny this request.

[13] In sum, the ALJ and the Review Board had substantial evidence from which

they could find that M.B. voluntarily left his employment without good cause.

[14] The decision of the Review Board is affirmed.

Bailey, J., and Mathias, J., concur.

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