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




Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-255 | November 20, 2015      Page 1 of 7
      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.

      Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-255 | November 20, 2015            Page 2 of 7
      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


      Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-255 | November 20, 2015   Page 3 of 7
      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.




      Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-255 | November 20, 2015   Page 4 of 7
                                    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




       Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-255 | November 20, 2015   Page 5 of 7
       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).

       Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-255 | November 20, 2015          Page 6 of 7
       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.




       Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-255 | November 20, 2015   Page 7 of 7
