                                                                             FILED
                                                                         Oct 04 2019, 8:48 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Joshua T. Rose                                             Curtis T. Hill, Jr.
Abell Rose LLC                                             Attorney General of Indiana
Louisville, Kentucky                                       Benjamin M. L. Jones
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Fidelity Automotive Group,                                 October 4, 2019
Inc.,                                                      Court of Appeals Case No.
Appellant,                                                 19A-EX-614
                                                           Appeal from the Review Board of
        v.                                                 the Indiana Department of
                                                           Workforce Development
Review Board of the Indiana                                Steven F. Bier, Chairperson
Department of Workforce                                    Lawrence A. Dailey, Member
Development and J.R.,                                      Cause No.
Appellees.                                                 19-R-0098




Brown, Judge.




Court of Appeals of Indiana | Opinion 19A-EX-614 | October 4, 2019                               Page 1 of 11
[1]   Fidelity Automotive Group, Inc., (“Fidelity”) appeals a decision by the Review

      Board of the Indiana Department of Workforce Development (the “Board”)

      which affirmed J.R.’s claim for unemployment benefits. Fidelity raises one

      issue which we revise and restate as whether it was denied a reasonable

      opportunity for a fair hearing. We affirm.

                                       Facts and Procedural History

[2]   J.R. began her employment with Fidelity on January 2, 2018, and her

      employment was terminated effective November 9, 2018. She filed a claim for

      unemployment benefits, and a claims investigator for the Department of

      Workforce Development (“DWD”) issued a determination that J.R. was

      discharged for just cause and that her benefits would be reduced and suspended

      accordingly. J.R. appealed.


[3]   A Notice of Telephone Hearing indicates that it was mailed to Fidelity and J.R.

      on January 9, 2019. The notice states that a hearing by telephone was

      scheduled before an administrative law judge (“the ALJ”) for January 22, 2019,

      at 1:00 p.m. It states “you will receive a call from the Judge at the number you

      provide by telephone or on the Acknowledgement Sheet.” Exhibits at 8.

      Under the heading “IMPORTANT INFORMATION ABOUT THIS

      PROCESS” on the first page, the notice states:


              1)       To participate in this hearing, you MUST deliver the
                       enclosed Acknowledgement Sheet to the Appeals office by
                       mail, fax, or in person OR provide your telephone number
                       by calling the number below.


      Court of Appeals of Indiana | Opinion 19A-EX-614 | October 4, 2019          Page 2 of 11
        2)       Provide only ONE telephone number on the
                 Acknowledgement Sheet or by telephone. At the scheduled
                 date and time of your hearing the Judge will call YOU at
                 THIS telephone number.

        3)       If you have documents you want the Judge to consider you
                 MUST deliver them by mail, fax, or in person to the Appeals
                 office AND the other party. The documents must be
                 received at least 24 hours BEFORE the date of the
                 scheduled hearing.
                                               *****

        5)       Other IMPORTANT INFORMATION is provided in the
                 enclosed U.I. APPEALS HEARING INSTRUCTIONS
                 sheet.

        6)       If you have any questions, or would like to provide your
                 telephone number for the hearing, contact the Appeals office
                 by telephone at . . . .

Id. The U.I. Appeals Hearing Instructions state in part:


        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. . . . Provide your contact number by
        telephone, mail, fax, or in person AT LEAST 24 hours prior to the
        hearing. You must write legibly. If you deliver the sheet by fax, be
        sure to keep the fax confirmation to prove that your document was
        sent, should any problem arise later. It is your responsibility to
        ensure that the judge has your contact telephone number. You may
        call the judge’s clerk 24 hours before the hearing to confirm your
        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

Court of Appeals of Indiana | Opinion 19A-EX-614 | October 4, 2019          Page 3 of 11
              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.

      Id. at 10.


[4]   On January 22, 2019, the ALJ held the scheduled telephonic hearing. At the

      start of the hearing, the ALJ called J.R. on the telephone and stated “normally

      the Employer would testify first. At this point, I don’t have a telephone number

      for the Employer, so the testimony will begin with me asking you questions,

      and then give you an opportunity to add further to your testimony.” Transcript

      Volume 2 at 3. The ALJ later stated, “I don’t know what the Employer - their

      position is in this situation, if they don’t provide testimony at the hearing,” and

      “I don’t base my decision on anything other than what’s presented during the

      course of this hearing.” Id. at 4. The ALJ heard J.R.’s testimony.


[5]   On January 25, 2019, the ALJ issued a decision which reversed the

      determination of the claims investigator, found “[t]here is insufficient evidence

      that the claimant engaged in misconduct based upon the reasons cited by the

      claimant which constitute a breach of a duty reasonably owed to the employer,”

      and concluded that J.R. was discharged but not for just cause. Exhibits at 18.


[6]   The appellee’s appendix contains a document with a fax transmittal cover sheet

      indicating it was faxed to DWD. The field for the date on the cover sheet states

      January 25, 2019, the sheet is file-stamped as received and filed by the Board on

      January 28, 2019, and the fax transmittal confirmation text appearing along the


      Court of Appeals of Indiana | Opinion 19A-EX-614 | October 4, 2019             Page 4 of 11
      bottom edge of the document states “Received Time Jan. 28, 2019 10:21AM

      No. 9494.” Appellee’s Appendix Volume 2 at 21. The cover sheet states:

      “Comments: I have attached all paperwork that is relevant to this claim. We

      waited for 60 minutes for the unemployment hearing phone call but never got

      the call. It would appear that there was a FAX transmission error; only part of

      the paperwork that we faxed went through but not the form that indicated that

      we would attend the hearing.” Id. One of the pages of the faxed document was

      a completed Acknowledgement Sheet. On January 30, 2019, Fidelity sent a fax

      transmittal to the Board requesting an appeal and stating: “I faxed in all

      documents 19 pages in total and we were present for the hearing on . . .

      1/22/2019 at 1pm and waiting the 60 minutes as indicated,” “[u]nfortunately,

      the next day we discovered that only part of the fax transmission went through

      that informed the Appeals Hearing that we wanted to participate,” “[t]he

      document that stated we were going to participate was one of the documents

      that failed to fax,” and “I would also like to submit evidence to the Review

      Board (I have faxed the documents) with this letter.” Id. at 3.


[7]   On February 15, 2019, the Board issued a decision indicating that no additional

      evidence was accepted, adopting and incorporating by reference the findings

      and conclusions of the ALJ, and affirming the ALJ’s decision.


                                                    Discussion

[8]   Upon review of an unemployment compensation proceeding, we determine

      whether the Board’s decision is reasonable in light of its findings. T.R. v. Rev.

      Bd. of Ind. Dep’t of Workforce Dev., 950 N.E.2d 792, 794 (Ind. Ct. App. 2011),
      Court of Appeals of Indiana | Opinion 19A-EX-614 | October 4, 2019        Page 5 of 11
      adhered to on reh’g. We are bound by the Board’s resolution of all factual issues,

      and accordingly we do not reweigh evidence or assess the credibility of

      witnesses. Id. at 794-795. We consider only the evidence and reasonable

      inferences which are most favorable to the Board’s decision and will not set

      aside the decision if there is substantial evidence of probative value in support

      thereof. Id. at 795. We determine de novo whether the Board correctly

      interpreted and applied the law. Id. Whether a party was afforded due process

      in an unemployment proceeding is a question of law. Id.


[9]   Fidelity claims that it was not afforded a reasonable opportunity for a fair

      hearing on its objection to J.R.’s petition for unemployment benefits as required

      by Ind. Code § 22-4-32-5, which provides in part that “the liability

      administrative law judge, after affording the parties a reasonable opportunity for

      a fair hearing, shall make findings and conclusions, and, on the basis thereof,

      affirm, modify, or reverse the initial determination of the department.” Fidelity

      argues “[t]he ALJ knew that Fidelity was challenging unemployment benefits,

      because Fidelity had challenged benefits with [the] Claims Investigator and

      faxed additional information to the Department in advance of the hearing” and,

      “[d]espite this knowledge, the ALJ made no effort to attempt to contact

      Fidelity.” Appellant’s Brief at 6. It argues: “Thereafter, Fidelity attempted

      repeatedly to obtain the opportunity for a fair hearing by appealing to the

      Review Board and even hired counsel to move for reconsideration. But the

      Review Board stonewalled Fidelity at every turn.” Id. It states “[e]mployers

      like Fidelity should not have to incur the expense of appeal and burden the


      Court of Appeals of Indiana | Opinion 19A-EX-614 | October 4, 2019        Page 6 of 11
       Court of Appeals in situations like this,” and “[i]n the interests of justice, due

       process and efficiency, the Review Board should have granted [its] request for a

       hearing.” Id. It requests that this Court remand with instructions to provide it

       with a hearing to present evidence.


[10]   The Board responds that Fidelity has waived its claim by failing to present

       cogent argument, cite a standard of review, provide an analysis regarding a

       reasonable opportunity for a fair hearing, or cite to the record to show that it

       actually faxed documents to the Board before the hearing. It argues that the fax

       dated January 25, 2019, was received by the Board on January 28, 2019, after

       the January 22, 2019 hearing. It states that Fidelity was provided with notice of

       the hearing and multiple avenues to confirm its appearance but failed to do so

       and that Fidelity does not assert that it did not receive the notice. It contends

       that Fidelity conceded that it failed to send the sheet indicating it wanted to

       participate in the hearing and that it did not follow up with the ALJ to confirm

       its telephone number and appearance before the hearing. It further argues that

       “[t]he alleged failure of the fax machine to send the acknowledgment sheet, as

       well as [Fidelity’s] failure to follow up with the ALJ, could have been

       anticipated and avoided by [Fidelity].” Appellee’s Brief at 17-18. The Board

       states that, like in T.R., 950 N.E.2d 792, the Board provided ample notice to

       Fidelity and Fidelity had a reasonable opportunity to participate in the hearing

       but failed to take advantage of that opportunity. It also argues that the Board

       did not err in denying Fidelity’s request for a hearing and that the ALJ’s

       decision is reasonable and supported by substantial evidence in the record. In


       Court of Appeals of Indiana | Opinion 19A-EX-614 | October 4, 2019         Page 7 of 11
       reply, Fidelity argues that Indiana has a strong preference for deciding cases on

       their merits and avoiding defaults and that, “just as in Lush [v. Rev. Bd. of the Ind.

       Dep’t of Workforce Dev., 944 N.E.2d 492 (Ind. Ct. App. 2011), reh’g denied, trans.

       denied], the minimal burden and cost associated with rescheduling a hearing far

       outweighs awarding or denying unemployment benefits that are not challenged

       on the merits.” Appellant’s Reply Brief at 4.


[11]   We note that Fidelity does not argue that it did not receive the Notice of

       Telephone Hearing mailed on January 9, 2019, which set forth the date and

       time of the telephonic hearing and provided that, to participate in the hearing,

       Fidelity was required to deliver the enclosed Acknowledgement Sheet to the

       appeals office by mail, fax, or in person or provide a telephone number. The

       notice also provided that any documents must be received at least twenty-four

       hours before the hearing. Further, the U.I. Appeals Hearing Instructions

       instructed the parties to provide a contact number by telephone, mail, fax, or in

       person at least twenty-four hours prior to the hearing, that they should “be sure

       to keep the fax confirmation to prove that your document was sent, should any

       problem arise later,” and that they “may call the judge’s clerk 24 hours before

       the hearing to confirm [their] telephone number.” Exhibits at 10.


[12]   Fidelity does not cite to the record to show that it delivered a completed

       Acknowledgement Sheet or otherwise provided a telephone number to the ALJ

       or the appeals office prior to the January 22, 2019 hearing as instructed.

       Although the appellee’s appendix contains a fax transmittal to DWD

       containing a completed Acknowledgement Sheet, the field for the date on the

       Court of Appeals of Indiana | Opinion 19A-EX-614 | October 4, 2019          Page 8 of 11
       cover sheet states January 25, 2019, the sheet is file-stamped as received and

       filed by the Board on January 28, 2019, and the fax transmittal confirmation

       information states the document was transmitted on January 28, 2019. Fidelity

       also does not assert that it called the judge’s clerk to confirm its telephone

       number or retained a fax confirmation to prove its document was sent as stated

       in the U.I. Appeals Hearing Instructions. Fidelity does not demonstrate that it

       delivered a completed Acknowledgement Sheet or a telephone number to the

       ALJ or the appeals office prior to the hearing.


[13]   Based upon the record, we conclude that Fidelity has not established that under

       the circumstances it was denied due process or a reasonable opportunity to

       participate in a telephonic hearing. See T.R., 950 N.E.2d at 795-796 (noting the

       instructions received by the claimant and holding that, although the claimant

       alleged that she had mailed in a participation sheet, she did not follow up to

       confirm that the administrative law judge had received her sheet or had her

       correct phone number; that, while the claimant did not take an affirmative

       action to waive her opportunity to participate, her missed opportunity to

       participate in the hearing could have been anticipated and prevented; and that

       she was given notice and an opportunity to be heard and her failure to take

       advantage of the opportunity to be heard did not constitute a denial of due

       process); Davis v. Rev. Bd. of Ind. Dep’t of Workforce Dev., 955 N.E.2d 790, 794

       (Ind. Ct. App. 2011) (finding the claimant did not submit a participation form

       despite provisions in the notice and hearing instructions requiring her to do so,

       she had an affirmative duty to provide a telephone number, that requirement


       Court of Appeals of Indiana | Opinion 19A-EX-614 | October 4, 2019         Page 9 of 11
       was not unreasonable, and her failure to participate in the telephonic hearing

       resulted entirely from her disregard for the hearing instructions); Art Hill, Inc. v.

       Rev. Bd. of Ind. Dep’t of Workforce Dev., 898 N.E.2d 363, 368 (Ind. Ct. App. 2008)

       (noting the employer provided a telephone extension to the administrative law

       judge’s office two days before the hearing but failed to notify it that its contact

       telephone number changed prior to the hearing and holding that 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 and that the employer was not denied a reasonable

       opportunity for a fair hearing or due process). 1


[14]   For the foregoing reasons, we affirm the Board’s decision.


[15]   Affirmed.




       1
         To the extent Fidelity cites Lush, we find the case to be distinguishable. In Lush, the claimant provided a
       telephone number to a union hall, the union hall operator was unable to locate the claimant, and the
       claimant indicated that he was present at the union hall but was told that he had not received a call from the
       administrative law judge. 944 N.E.2d at 496. This Court held that, “without deciding whether the Board’s
       dismissal of Lush’s appeal rises to the level of a due process violation, equitable considerations underlying the
       Act and its humanitarian purposes lead unmistakably to the conclusion that this dismissal should be
       reversed” and that “[t]he Board’s decision to uphold the dismissal of an appeal as the result of a missed
       phone call, in this situation, is greatly out of proportion to the minimal costs of rescheduling a second
       telephonic hearing between Lush and the ALJ.” Id. Here, Fidelity does not show that it delivered a
       completed Acknowledgement Sheet or otherwise provided a telephone number prior to the hearing. See
       Davis, 955 N.E.2d at 794 (noting that, unlike the claimant in Lush, Davis did not submit a participation form
       despite the notice and hearing instructions requiring her to do so and, as such, Lush was not persuasive
       authority). We also note that the ALJ held a hearing at which it heard J.R.’s testimony and entered findings
       and conclusions. See T.R., 950 N.E.2d at 797 (noting our preference for deciding cases on their merits but
       stating that, unlike in Lush, the administrative law judge actually held a hearing, T.R.’s employer appeared
       and presented evidence, and the administrative law judge entered findings of fact and conclusions of law
       based on the merits).

       Court of Appeals of Indiana | Opinion 19A-EX-614 | October 4, 2019                                 Page 10 of 11
Altice, J., and Tavitas, J., concur.




Court of Appeals of Indiana | Opinion 19A-EX-614 | October 4, 2019   Page 11 of 11
