Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                              Jan 22 2014, 9:32 am
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:

MICHAEL E. MATTINGLY                                GREGORY F. ZOELLER
Fishers, Indiana                                    Attorney General of Indiana

                                                    KYLE HUNTER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

MICHAEL E. MATTINGLY,                               )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )       No. 93A02-1304-EX-383
                                                    )
REVIEW BOARD OF THE INDIANA                         )
DEPARTMENT OF WORKFORCE                             )
DEVELOPMENT, and MEIJER STORES                      )
LIMITED PARTNERSHIP,                                )
                                                    )
       Appellees-Respondents.                       )


             APPEAL FROM THE REVIEW BOARD OF THE DEPARTMENT OF
                          WORKFORCE DEVELOPMENT
                              Cause No. 13-R-01529



                                         January 22, 2014


                 MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Judge

                                Case Summary and Issues

       Michael Mattingly appeals the decision of the Review Board of the Indiana

Department of Workforce Development (“Review Board”) affirming the denial of

unemployment benefits. The Review Board has filed both a motion to dismiss Mattingly’s

appeal alleging Mattingly’s brief fails to comply with the appellate rules and an appellee’s

brief. In addition, Mattingly’s reply brief has not been filed by the Clerk of the Appellate

Courts. We conclude that Mattingly’s appeal does not need to be dismissed and that his reply

brief should be filed. However, we also conclude that the evidence supports the Review

Board’s conclusion that he was discharged for just cause, and we therefore affirm.

                               Facts and Procedural History

       Mattingly was employed by a Meijer store in Fishers beginning in October of 2002.

On November 10, 2012, Mattingly and another Meijer employee got into an altercation in the

store parking lot. Mattingly was discharged from his employment because of this incident.

Initially, a claims deputy declared Mattingly eligible for unemployment benefits. Meijer

appealed that determination. A notice of hearing before an Administrative Law Judge

(“ALJ”) was mailed to Mattingly, instructing him that if he wished to participate in the

hearing, he must deliver the enclosed Acknowledgement Sheet to the Unemployment

Insurance Appeals office and list one telephone number the ALJ could call to reach him at

the scheduled date and time. In addition, Mattingly was provided with a “U.I. Appeals

Hearing Instructions” sheet which provides:

       Contact Number: Provide the judge ONE contact telephone number to reach

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       you for the hearing on the enclosed Acknowledgement Sheet. . . . It is your
       responsibility to ensure that the judge has your contact telephone number. . . .
       If you have not returned the Acknowledgement Sheet with 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. . . .

Transcript of ALJ Hearing, Exhibit 3. Mattingly returned the Acknowledgement Sheet

indicating that he would participate in the hearing, but he did not include a contact telephone

number. Id., Exhibit 5. At the hearing, the ALJ noted that Mattingly was not participating,

took testimony and evidence from Meijer’s representative, and ultimately concluded that

Mattingly was discharged for just cause and was not entitled to unemployment benefits

because Meijer had a reasonable policy prohibiting workplace violence which was known to

Mattingly and which he violated by directing threatening behavior and language toward a co-

worker. Mattingly appealed the ALJ’s decision to the Review Board, which adopted and

affirmed the ALJ’s decision, with an addendum noting Mattingly had failed to participate in

the hearing without good cause. Mattingly now appeals.

                                  Discussion and Decision

                                     I. Procedural Issues

                                    A. Motion to Dismiss

       In response to Mattingly’s Brief, the Review Board filed a Motion to Dismiss alleging

the brief fails to comply with the procedural and substantive requirements of Appellate Rule

46(A). The motion was held in abeyance and the Review Board was ordered to file its

Appellee’s Brief, if any, within thirty days of the order. The Review Board timely filed a

brief on the merits, while also reasserting the claims in its Motion to Dismiss and arguing that


                                               3
Mattingly has forfeited any and all issues in his appeal.

       We acknowledge the shortcomings of Mattingly’s brief, and we further acknowledge

that pro se litigants are held to the same standard as trained legal counsel and are required to

follow the same rules of procedure. See T.B. v. Review Bd. of Ind. Dep’t of Workforce

Dev., 980 N.E.2d 341, 345 (Ind. Ct. App. 2012). Although we do not excuse the deficiencies

in Mattingly’s brief, the substance of Mattingly’s argument is apparent and we prefer to

resolve cases that come before us on their merits when possible. T.R. v. Review Bd. of Ind.

Dep’t of Workforce Dev., 950 N.E.2d 792, 795 (Ind. Ct. App. 2011), aff’d on reh’g, 956

N.E.2d 741. Accordingly, the Review Board’s Motion to Dismiss, previously held in

abeyance, is denied, and we will consider the merits of Mattingly’s appeal.

                                       B. Reply Brief

       Mattingly tendered a reply brief to the Clerk’s Office which was marked received but

not filed. The Appellee’s Brief was filed on November 7, 2013 and was served on Mattingly

by U.S. Mail. Mattingly therefore had until November 25, 2013 to file a reply brief. See Ind.

Appellate Rules 25(C) (three-day extension of filing deadline when served by mail) and

45(B)(3) (fifteen day deadline for filing reply brief). Mattingly’s reply brief was timely

received by the Clerk’s Office on November 25, 2013. To the extent the reply brief was not

filed for defects in form, we note that the Clerk’s Office did not issue a notice of defect

alerting Mattingly to the defects and offering him an opportunity to submit a corrected reply

brief. Accordingly, the Clerk’s Office is ordered to mark Mattingly’s reply brief filed as of

the date it was received, and we have considered the reply brief in rendering our decision.



                                               4
                                    II. Substantive Issues

                                   A. Standard of Review

       The Indiana Unemployment Compensation Act provides that any decision of the

Review Board shall be conclusive and binding as to all questions of fact. Ind. Code § 22-4-

17-12(a). By implication, this standard of review dictates that where, as here, the Review

Board adopts and incorporates by reference the findings and conclusions of the ALJ and

affirms the ALJ’s decision without accepting additional evidence, we are bound by the ALJ’s

resolution of all factual issues. T.R., 950 N.E.2d at 795. When a decision of the Review

Board is challenged, we inquire into “the sufficiency of the facts found to sustain the decision

and the sufficiency of the evidence to sustain the findings of facts.” Ind. Code § 22-4-17-

12(f). In reviewing the determinations of basic underlying facts, we neither reweigh the

evidence nor reassess witness credibility, but consider only the evidence most favorable to

the Review Board’s findings. J.M. v. Review Bd. of Ind. Dep’t of Workforce Dev., 975

N.E.2d 1283, 1286 (Ind. 2012). We will reverse only if there is no substantial evidence of

probative value to support the Review Board’s findings. Id. We review “ultimate facts” –

conclusions or inferences from the basic facts – for whether the Review Board’s inference is

reasonable. McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314,

1317-18 (Ind. 1998). We review the Review Board’s conclusions of law using a de novo

standard. T.B., 980 N.E.2d at 345.

                                       B. Due Process

       Although the Review Board is allowed latitude in conducting its hearings, due process



                                               5
must be given parties whose rights will be affected. 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.” NOW Courier, Inc. v. Review Bd. of Ind. Dep’t of Workforce Dev.,

871 N.E.2d 384, 387 (Ind. Ct. App. 2007). Whether a party was afforded due process in an

unemployment proceeding is a question of law. Scott v. Review Bd. of Indiana Dep’t of

Workforce Dev., 725 N.E.2d 993, 996 (Ind. Ct. App. 2000).

       The Review Board affirmed the ALJ’s decision in this case with an addendum noting

that Mattingly failed to participate in the hearing before the ALJ without good cause. There

is no doubt that Mattingly received proper notice of the hearing, as he returned the

Acknowledgement Sheet. However, despite clear instructions to provide a single telephone

number at which he could be reached on the date and at the time of the hearing and despite

warnings about the consequences of failing to do so, Mattingly did not provide a contact

number to the ALJ. “[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 or participate in the hearing.” Art Hill, Inc., 898 N.E.2d at 368. Mattingly was

given notice, had an opportunity to be heard, and voluntarily failed to participate in the

hearing. We agree with the Review Board that because Mattingly was fully instructed in the

requirements for participating in the hearing but failed to ensure the ALJ could reach him, he

was not denied due process when the ALJ conducted a hearing without his participation.




                                              6
                               C. Discharge for Just Cause

       Mattingly was denied unemployment benefits because he was found to have been

discharged for just cause. See Ind. Code § 22-4-15-1(a) (providing that a claimant is

ineligible for unemployment benefits if he is discharged for just cause). When a claimant is

denied benefits, he bears the burden of showing error. Benard v. Review Bd. of Indiana

Dep’t of Workforce Dev., 997 N.E.2d 1077, 1080 (Ind. Ct. App. 2013). If the employer

alleges that a discharged employee who is seeking unemployment benefits was discharged

for just cause, the employer bears the burden of establishing a prima facie case of showing

just cause. Id. If the employer makes that showing, the burden then shifts to the employee to

produce evidence rebutting the employer’s case. Id.

       Indiana Code section 22-4-15-1(d)(2) defines “discharge for just cause” to include

“knowing violation of a reasonable and uniformly enforced rule of an employer . . . .” Here,

Meijer offered into evidence a written rule regarding workplace violence that is part of its

company policies and procedures. All employees are directed to read these policies when

they begin their employment. Meijer also offered into evidence a receipt Mattingly signed

acknowledging that he had been given the company policies and that he had read and

understood them. The Meijer representative testified that the workplace violence rule is

enforced on all employees. The Meijer representative also testified that a customer had

witnessed the incident in question and basically supported the other employee’s version of

events and that Mattingly had admitted to grabbing the other employee’s arm and asking him

to take the argument off-site. Meijer therefore met its burden of showing Mattingly was



                                             7
discharged for just cause. Even had Mattingly participated in the hearing and testified to the

version of events he has related in his appeal – for instance, that the other employee raised

his fist first – he would not have rebutted Meijer’s prima facie case of just cause in

discharging him.

                                         Conclusion

       Mattingly was afforded due process and a reasonable opportunity to participate in a

telephonic hearing with the ALJ. The ALJ’s decision that Mattingly was discharged for just

cause is supported by substantial evidence and is reasonable. The Review Board’s decision

adopting the ALJ’s findings and conclusions denying Mattingly unemployment benefits is

therefore affirmed.

       Affirmed.

BARNES, J., and BROWN, J., concur.




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