MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D), this                            Jul 11 2019, 8:50 am
Memorandum Decision shall not be regarded as
                                                                            CLERK
precedent or cited before any court except for the                      Indiana Supreme Court
                                                                           Court of Appeals
purpose of establishing the defense of res judicata,                         and Tax Court
collateral estoppel, or the law of the case.



APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Tressa Bailey                                             Curtis T. Hill, Jr.
South Bend, Indiana                                       Attorney General of Indiana
                                                          Natalie F. Weiss
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Tressa Bailey,                                            July 11, 2019

Appellant-Petitioner                                      Court of Appeals Cause No.
                                                          18A-EX-2638
        v.                                                Appeal from the Review Board of
                                                          the Department of Workforce
                                                          Development
Review Board of the Indiana
                                                          The Honorable Steven F. Bier,
Department of Workforce                                   Chairperson
Development,
                                                          Case No. 18R-0932
Appellee-Respondent.




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-EX-2638 | July 11, 2019                   Page 1 of 12
                                  STATEMENT OF THE CASE
[1]   Appellant-Petitioner, Tressa Bailey (Bailey) 1, appeals the decision of the

      Appellee-Respondent, Review Board of the Indiana Department of Workforce

      Development (Review Board), affirming the Administrative Law Judge (ALJ)

      decision to suspend her unemployment benefits.


[2]   We affirm.


                                                        ISSUE
[3]   Bailey presents a single issue on appeal, which we restate as: Whether Bailey’s

      due process rights were violated when she failed to participate in a telephonic

      hearing due to poor cellphone reception.




      1
        The parties refer to Bailey using her initials. However, our court has previously found that,
      notwithstanding the confidentiality mandate of Indiana Code section 22-4-19-6 and Indiana Administrative
      Rule 9(G), “it is appropriate for this [c]ourt to use the full names of parties in routine appeals from the
      Review Board.” Moore v. Review Bd. of Ind. Dep’t of Workforce Dev., 951 N.E.2d 301, 306 (Ind. Ct. App. 2011).
      See also J.M. v. Review Bd. of Ind. Dep’t of Workforce Dev., 975 N.E.2d 1283, 1285 n. 1 (Ind. 2012) (noting that
      the court’s practice “going forward will be to keep the [ ] parties confidential only if they make an affirmative
      request”). Because we did not receive an affirmative request, we will utilize Bailey’s name.
      Court of Appeals of Indiana | Memorandum Decision 18A-EX-2638 | July 11, 2019                        Page 2 of 12
                      FACTS AND PROCEDURAL HISTORY
[4]   In April 2018, Bailey worked full time as an administrative assistant for two

      lawyers who operated their individual law practices in South Bend, Indiana.

      On June 12, 2018, the lawyers summoned Bailey for a meeting due to Bailey’s

      unsatisfactory work. Prior to that meeting, one of the lawyers had accepted a

      position in a law firm in Georgia. At the meeting, the lawyer who was leaving

      informed Bailey that she would not need Bailey’s services other than for closing

      out her legal files in Indiana. The remaining lawyer, operating a law practice as

      Cole Law Firm LLC (Cole), then informed Bailey that she was exploring

      another practice that would be willing to split time with Bailey so that Bailey

      would not see a decrease in her pay. Bailey “abruptly left” after the meeting

      and did not return to work the following day. (Exh. Vol. III, p. 4).


[5]   On July 20, 2018, a claims investigator for the Indiana Department of

      Workforce Development (IDWD) determined that Bailey had not been

      discharged for just cause and awarded Bailey unemployment benefits. On July

      24, 2018, Cole filed an appeal of the grant of unemployment benefits to Bailey.


[6]   On August 9, 2018, the IDWD mailed Bailey a “Notice of TELEPHONE

      Hearing” (Notice) which was accompanied by hearing instructions. The Notice

      stated that a hearing by telephone was scheduled for August 21, 2018 at 10:00

      a.m. The hearing instructions instructed Bailey as follows:



      Court of Appeals of Indiana | Memorandum Decision 18A-EX-2638 | July 11, 2019   Page 3 of 12
        BEFORE THE DATE OF THE HEARING
        Contact Number: Return the enclosed Acknowledgment Sheet
        or call the Appeals office to provide ONE contact number to
        reach you. If your hearing is by telephone, this is the number the
        judge will call for the hearing . . . . It is your responsibility to
        ensure that the judge has your contact telephone number. . . . If
        you are scheduled for a telephone hearing and have not provided
        your telephone number, the judge may attempt to call you at the
        number provided on your appeal statement. However, the judge
        is not required to search for a valid contact number. If the judge
        is not able to reach you, regardless of the cause, it may be
        considered as a lack of response and participation in the hearing.
        A decision or dismissal may be issued by the judge even if you do
        not participate.


        ****


        DURING THE HEARING
        ****
        If your Notice [] indicates your hearing is by telephone, these
        considerations apply. If your telephone disconnects during the
        hearing, the judge will attempt to call you back. Please speak
        clearly during the hearing. Try to be in a quiet area where you
        will not be interrupted. If you use a [cellphone] or cordless
        phone, you must have adequate minutes, a fully charged battery,
        and good reception. The judge’s number may not display on
        your caller ID, or may show as “private”, “blocked”, or from
        another state. Disable Privacy Manager and similar screening
        devices prior to the hearing. Do not interrupt when others are
        speaking. The judge may dismiss your case if the party who filed
        the appeal cannot be reached within fifteen (15) minutes of the
        scheduled start time of your hearing. The judge may be behind
        in their hearing schedule, so please be patient. If you do not have
        a telephone, ask a friend or a neighbor if you may use theirs.
Court of Appeals of Indiana | Memorandum Decision 18A-EX-2638 | July 11, 2019   Page 4 of 12
              You may also visit your local WorkOne center to use their
              telephone. You cannot call in and be connected to a hearing that
              is already in progress.


      (Exh. Vol. III, pp. 12, 14).


[7]   The hearing took place on the scheduled day. Cole participated at the hearing.

      The ALJ attempted to reach Bailey on her cellphone at 10:05 a.m. and 10:11

      a.m. Both times, the ALJ’s call went straight to voicemail. The hearing

      commenced at 10:24 a.m. At approximately 10:26 a.m., Bailey called seeking

      to participate in the hearing but was denied an opportunity. Following that

      hearing, the ALJ issued the following relevant findings of fact and conclusions

      of law thereon:


              FINDINGS OF FACT:
              [Cole] operates a law office. Cole hired [Bailey] along with a
              different employer to work between their two law offices.
              [Bailey] started working on April 2, 2018. [Bailey] worked as a
              secretary.


              In early June 2018, the other employer mentioned that she was
              moving to Georgia to accept a position with a different practice.
              On June 12, 2018, the other employer informed [Bailey] that she
              would not be needed to purpose of [sic] closing out her files in
              Indiana. During the meeting, Cole discussed the fact that she
              was exploring another practice that might be willing to split time
              with [Bailey] so that she wouldn’t see a decrease in her pay.
              [Bailey] left after the meeting ended because it was the end of the
              day. [Bailey] never returned back to work again. [Bailey]


      Court of Appeals of Indiana | Memorandum Decision 18A-EX-2638 | July 11, 2019   Page 5 of 12
        provided [Cole] with no explanation for her decision not to
        return after the position ended with the other attorney office.


        CONCLUSIONS OF LAW:
        An individual may not receive unemployment compensation
        benefits if he voluntarily left his most recent employment without
        good cause. See Ind. Code [§]22-4-15-1(a).


        ****
        Here, [Bailey] abandoned her job by leaving after the meeting on
        June 12, 2018 and not returning back to work again or providing
        any explanation for her absence. [Bailey’s] employment with the
        other employer ended when the employer stated she would not
        be needed while she closed out her remaining files. [Bailey] still
        was employed with [Cole] at that time and ended that
        employment by not returning back to work despite there still
        being work available. [Bailey] voluntarily left employment but
        not for good cause in connection with work as defined by
        Indiana Code [section] 22-4-15-1(a).


        DECISION:
        ****


        The initial determination dated July 20, 2018 is MODIFIED
        from a discharge issue to a voluntarily left employment issue and
        is REVERSED. [Bailey] voluntarily left the employment without
        good cause. [Bailey’s] benefits rights are suspended effective the
        week ending 6/16/2018, until the claimant has earned
        remuneration in employment in at least eight (8) weeks equal to
        or exceeding eight (8) times the weekly benefit amount. If
        eligible, a relief of charges is granted to the employer.


(Exh. Vol. III, pp. 20-22).
Court of Appeals of Indiana | Memorandum Decision 18A-EX-2638 | July 11, 2019   Page 6 of 12
[8]    On August 24, 2018, Bailey appealed the ALJ’s decision to the Review Board.

       Without holding a hearing or allowing additional evidence from Bailey, on

       September 28, 2018, the Review Board adopted the ALJ’s findings of fact and

       conclusions thereon denying Bailey unemployment benefits.


[9]    Bailey now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[10]   Bailey argues she was denied due process because the ALJ failed to give her a

       reasonable opportunity to participate in the hearing.


[11]   “The Review Board, while an administrative body, is vested with quasi-judicial

       powers. Accordingly, while the Review Board is allowed wide latitude in

       conducting its hearings, due process must be accorded a party whose rights will

       be affected.” Art Hill, Inc. v. Review Bd. of the Ind. Dep’t. of Workforce Dev., 898

       N.E.2d 363, 367 (Ind. Ct. App. 2008) (quotation omitted). “The fundamental

       requirement of due process is the opportunity to be heard at a meaningful time

       and in a meaningful manner.” Id. Nevertheless, “a party to an unemployment

       hearing may voluntarily waive the opportunity for a fair hearing where the

       party received actual notice of the hearing and failed to appear at or participate

       in the hearing. Id. at 368. Whether the requirements of due process have been

       satisfied is a question of law; therefore, we review the issue de novo. Id. at 367.


[12]   An individual denied unemployment benefits may seek a hearing on the issue

       before an ALJ. Ind. Code § 22-4-17-2; 646 Ind. Admin. Code 3-12-1. The
       Court of Appeals of Indiana | Memorandum Decision 18A-EX-2638 | July 11, 2019   Page 7 of 12
       ALJ, “after affording the parties a reasonable opportunity for a fair hearing,

       shall affirm, modify, or reverse the findings of fact and decision of the deputy.”

       I.C.§ 22-4-17-3. The ALJ may hold the hearing by telephone absent an

       objection from an interested party and after determining that a hearing by

       telephone is proper and just. I.C. § 22-4-17-8.5(b)(4). “Each party to a hearing

       before an [ALJ] held under [Indiana Code section 22-4-17-3] shall be mailed a

       notice of the hearing at least ten (10) days before the date of the hearing

       specifying the place and time of the hearing and identifying the issues to be

       decided.” I.C. § 22-4-17-6. The Review Board may affirm, modify, set aside,

       remand, or reverse the findings, conclusions, or orders of an ALJ. I.C. § 22-4-

       17-5.


[13]   In compliance with Indiana Code section 22-4-17-6 and 646 Indiana

       Administrative Code 3-12-21(d), the ALJ in the instant case provided notice of

       the telephone hearing and instructions to both parties that required each party

       to provide a single telephone number where the party could be contacted at the

       time of the hearing. Bailey provided a single contact telephone number, i.e., her

       cellphone number, to the ALJ. The instructions in the Notice required Bailey

       to have “good reception” at the time of the hearing. (Exh. Vol. III, p. 12).


[14]   When Bailey appealed the ALJ’s ruling, Bailey sent two letters to the Review

       Board explaining her non-participation in the hearing. Specifically, Bailey

       claimed that shortly before the hearing, she had moved in with her 77-year-old

       mother and she was unaware that her mother’s home, which “is the closest
       Court of Appeals of Indiana | Memorandum Decision 18A-EX-2638 | July 11, 2019   Page 8 of 12
       thing to a valley in [the South Bend] area,” had poor cellphone reception.

       (Appellant’s App. p. 11). Bailey added that on the day of the scheduled

       hearing, her “mobile phone carrier, T-Mobile, had diminished signal during the

       hearing when the South Bend area was experiencing severe weather.”

       (Appellant’s App. p. 12). Bailey then claimed that when she gained better

       service, she immediately called the ALJ at 10:26 a.m., two minutes after the

       hearing had begun, and requested to participate in the hearing but was denied

       an opportunity. In both letters, Bailey concluded that she had now obtained

       permission from her mother to use her landline telephone number as an

       “alternate number” if granted a second hearing. (Appellant’s App. p. 14).


[15]   In Wolf Lake Pub, Inc. v. Review Board of the Indiana Department of Workforce

       Development, 930 N.E.2d 1138, 1140 (Ind. Ct. App. 2010), this court denied an

       employer’s due process challenge where the employer had provided a cell

       phone number, the ALJ had called it twice at the time of the hearing, and the

       employer had never answered. The employer subsequently explained that he

       had been on vacation the day of the hearing and was without reliable cell phone

       reception. Id. In finding no due process violation, this court reasoned that it

       was the employer’s choice to go on vacation in an area without reliable

       reception and to stay in a hotel without telephones in the rooms. Id. In the

       court's view, these elective decisions did not alter the fact that the employer had

       been given a reasonable opportunity to participate in the hearing. Id. at 1142.



       Court of Appeals of Indiana | Memorandum Decision 18A-EX-2638 | July 11, 2019   Page 9 of 12
[16]   Bailey makes no cognizable argument that she did not receive Notice. Instead,

       the record clearly indicates that Bailey did receive Notice indicating that the

       hearing was scheduled for 10:00 a.m. and that the parties would receive a

       telephone call from the ALJ to participate in the hearing.


[17]   Notwithstanding the fact that Bailey provided an alternate telephone number

       when she appealed the ALJ’s decision, when Bailey returned the

       Acknowledgment Sheet to the ALJ, she only included her cellphone number.

       On the date of the hearing, the ALJ attempted to telephone Bailey on her

       cellphone at 10:05 a.m. and 10:11 a.m. Both times, the ALJ’s phone calls went

       straight to voicemail. While Bailey provides a reasonable explanation about

       why she missed the calls, arguing that it was storming that day, as in Wolf Lake,

       it was up to Bailey to ensure that she could be reached at the cellphone number

       she provided. See Wolf Lake, 930 N.E.2d at 1142; see also Art Hill, Inc., 898

       N.E.2d at 368 (where employer received notice of the hearing, but ALJ was

       unable to contact employee at telephone number provided by the employer, the

       employer was considered to have voluntarily failed to participate and was not

       denied due process when the ALJ conducted the hearing without the

       employer’s participation). In S.S. v. Review Board of Indiana Department of

       Workforce Development, 941 N.E.2d 550, 555 (Ind. Ct. App. 2011), parties who

       confused time zones and thus failed to participate in a hearing were not denied

       an opportunity to be heard. However, in A.Y. v. Review Board of Indiana

       Department of Workforce Development, 948 N.E.2d 373, 379 (Ind. Ct. App. 2011),

       Court of Appeals of Indiana | Memorandum Decision 18A-EX-2638 | July 11, 2019   Page 10 of 12
       trans. denied, we reversed and remanded for a determination of whether a

       claimant, who alleged that she provided her correct telephone number yet did

       not receive a call from the ALJ and thereafter called within the time allotted for

       her hearing, had shown good cause for reinstatement of her appeal. Indeed, the

       foregoing cases illustrate that matters within the control of the party that

       prevent them from participation in a hearing do not deprive that party of a fair

       hearing.


[18]   Here, Bailey was given notice of the hearing, and based on the explicit language

       of the hearing instructions associated with the Notice, Bailey knew that any

       telephonic difficulties could result in the ALJ deciding the case without her

       attendance, but she chose to appear telephonically. Bailey’s arguments to the

       contrary are unavailing as her inability to attend the hearing stems from her

       inattentiveness to the hearing instructions which required her to have good

       cellphone reception at the time of the hearing. Because Bailey had an

       opportunity to be heard, and voluntarily failed to participate in the hearing, we

       hold that Bailey was not denied due process when the ALJ conducted a hearing

       without her participation. Under these facts and circumstances, we must affirm

       the decision of the Review Board.


                                             CONCLUSION
[19]   Based on the foregoing, we conclude that Bailey was afforded due process and a

       reasonable opportunity to participate in a telephonic hearing. The Review

       Court of Appeals of Indiana | Memorandum Decision 18A-EX-2638 | July 11, 2019   Page 11 of 12
       Board’s decision adopting the ALJ’s findings and conclusions denying Bailey’s

       unemployment benefits is therefore affirmed.


[20]   Affirmed.


[21]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-EX-2638 | July 11, 2019   Page 12 of 12
