MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Sep 20 2019, 8:47 am
regarded as precedent or cited before any
                                                                              CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEES
Thomas J. Gaunt                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General
                                                         David E. Corey
                                                         Deputy Attorney General
                                                         Matthew J. Goldsmith
                                                         Certified Legal Intern
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Whitney Bishop,                                          September 20, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-EX-1605
        v.                                               Appeal from the Review Board of
                                                         the Indiana Department of
Review Board of the Indiana                              Workforce Development
Department of Workforce                                  The Honorable Steven F. Bier,
Development, and                                         Chairperson
Extra Help, Inc.,                                        The Honorable Lawrence A.
Appellees-Respondents                                    Dailey, Member
                                                         The Honorable Suzanne Manning,
                                                         Administrative Law Judge
                                                         Case No. 18-R-529




Court of Appeals of Indiana | Memorandum Decision 18A-EX-1605 | September 20, 2019                Page 1 of 14
      Vaidik, Chief Judge.



                                              Case Summary
[1]   Whitney Bishop appeals a decision of the Review Board of the Indiana

      Department of Workforce Development (“Review Board”). We reverse the

      Review Board’s decision and remand for further proceedings consistent with

      this opinion.



                               Facts and Procedural History
[2]   Bishop1 was employed by Carrier from May 19, 2016, to January 14, 2018,

      when she and many others were laid off. From July 22, 2017, until she was laid

      off, Bishop was on medical disability at Carrier due to injuries she sustained in

      a car accident while pregnant. Bishop gave birth on February 1, 2018.


[3]   In late January or early February, Bishop filed for unemployment benefits due

      to her layoff from Carrier. Tr. pp. 9-10, 59. Although it is not in the record,

      Bishop apparently received a letter from the Indiana Department of Workforce

      Development (“DWD”) stating that her application for unemployment benefits

      due to her January 2018 layoff from Carrier was being denied because “she




      1
       Bishop has waived any confidentiality by using her name in documents filed with this Court. See Advanced
      Corr. Healthcare, Inc. v. Review Bd. of Ind. Dep’t of Workforce Dev., 27 N.E.3d 322, 324 n.1 (Ind. Ct. App. 2015).



      Court of Appeals of Indiana | Memorandum Decision 18A-EX-1605 | September 20, 2019                    Page 2 of 14
      walked off quitting without reason, from a company called [Staffing Agency 2]

      the same month.” Appellant’s Br. p. 5; see also Tr. pp. 11, 18. According to

      Bishop, however, she had never worked for Staffing Agency, and the denial

      letter was the first time she had ever heard of it. See Tr. p. 11 (“Because when I

      filed [for unemployment with Carrier] and the letter came back, I’m like, what?

      I didn’t know nothing about [Staffing Agency] until I filed for unemployment.

      I wasn’t aware of nobody out there working . . . under my name until I filed.”).


[4]   On Friday, March 2, Bishop called the Indianapolis Metropolitan Police

      Department to report that her identity had been stolen and that someone had

      been working at Staffing Agency using her information. Ex. pp. 8-10. Then on

      Monday, March 5, Bishop went to Staffing Agency to inquire about the person

      who had been using her identity. Staffing Agency told Bishop that the person

      had given the address of 2210 White Oaks Drive in Indianapolis when they

      applied, and it gave her the following letter:


              Whitney Bishop was in our office today, inquiring about her
              identity theft. We are unable to provide information due to this
              being a criminal investigation. We have provided her with
              homeland security contact information.


      Ex. p. 12; see also id. at 11 (name and contact information of special agent with

      the United States Department of Homeland Security).




      2
        Staffing Agency is a “Professional Employment Organization,” which provides staffing and payroll services
      to other businesses. Tr. pp. 12-13.

      Court of Appeals of Indiana | Memorandum Decision 18A-EX-1605 | September 20, 2019             Page 3 of 14
[5]   Also on March 5, a DWD claims investigator issued a Determination of

      Eligibility regarding a claim by “Whitney Bishop” for unemployment benefits

      based on employment with Staffing Agency:


              Circumstances of Case


              The employer states the claimant quit. The claimant denies the
              allegation. The employer has provided information that supports
              the allegation.


              Conclusion of Case


              The claimant voluntarily left without good cause in connection
              with the work. The information provided supports the
              employer’s allegation the claimant voluntarily quit. The
              claimant is ineligible for benefits in accordance with IC 22-4-15-
              1.


      Ex. p. 3.


[6]   On March 8, three days after the DWD issued its Determination of Eligibility,

      Bishop sent a letter to the DWD stating that she had never worked for Staffing

      Agency:


              I did not work for [Staffing Agency]. Someone worked under my
              name getting me disqualified for benefits. I have filed a police
              report. I was in the office at [Staffing Agency] to see if they
              could give me any information on who it may be they said no.
              So IMPD did do a investigation with [Staffing Agency]. And
              they found out it wasn’t me. Last job Carrier Corp.




      Court of Appeals of Indiana | Memorandum Decision 18A-EX-1605 | September 20, 2019   Page 4 of 14
      Ex. p. 5. Thereafter, the DWD sent to Bishop and Staffing Agency a notice of

      an in-person hearing to be held before an administrative law judge on March

      29. Id. at 37.


[7]   At the March 29 hearing, Bishop appeared in person, but Staffing Agency did

      not. The ALJ called Staffing Agency, which then participated by phone.

      Bishop testified that her most recent employer was Carrier, she had “[n]ever in

      [her] life” worked for Staffing Agency, and her identity had been stolen. Tr. p.

      11. She explained that she had been robbed in December 2017 as well as “a

      year ago” and that her wallet had been taken. Id. at 11-12. Bishop also testified

      that she didn’t receive a W-2 from Staffing Agency and therefore didn’t report

      those wages on her taxes. Finally, Bishop testified that an IMPD detective

      went to the White Oaks address and told her that “an African with a heavy

      accent” lived there but that he needed to investigate more. Id. at 11.


[8]   Staffing Agency testified that it hired a person by the name of Whitney Bishop

      in late September 2017, it placed the person at a logistics company called

      Geodis in Indianapolis, and the person worked full time at Geodis from

      October 1, 2017, to January 25, 2018, when they quit because “they [didn’t]

      want to work there anymore.” Id. at 14. Staffing Agency testified that the

      person gave the address of 2210 White Oaks Drive in Indianapolis when they

      applied but then called in early January 2018 to change the address to 3440 East

      38th Street in Indianapolis (Bishop’s address) so that the W-2 could be mailed




      Court of Appeals of Indiana | Memorandum Decision 18A-EX-1605 | September 20, 2019   Page 5 of 14
there.3 Staffing Agency acknowledged learning on March 5 that a criminal

investigation was underway and said it gave Bishop the contact information of

a special agent with the United States Department of Homeland Security. The

following colloquy then ensued between the ALJ and Staffing Agency:


        Q.                . . . Was the Whitney Bishop that was working for
                          [Staffing Agency]—was she pregnant?


        A.                I don’t believe so.


        Q.                Okay. Is there anyone with [Staffing Agency] that
                          could identify – that hired Whitney Bishop that
                          could identify her in person?


        A.                I don’t believe so.


        Q.                Is there anyone at – at Geodis that could identify
                          the Whitney Bishop that was working for [Staffing
                          Agency]?


        A.                Yes, and it’s my understanding that they have been
                          questioned by the detective as well.


Id. at 15. The ALJ then stopped the hearing and ordered that it be continued

because she needed more information from the parties. The ALJ requested that

“someone with [Staffing Agency] participate in-person that has first-hand




3
 Staffing Agency did not give an apartment number for 3440 East 38th Street, but Bishop said she lived in
apartment B and had trouble getting her mail if her apartment wasn’t listed.

Court of Appeals of Indiana | Memorandum Decision 18A-EX-1605 | September 20, 2019              Page 6 of 14
       knowledge of who Whitney Bishop is, as [Staffing Agency] believes.” Id. at

       23 (emphasis added). The ALJ explained that “the gravity of this situation

       requires me to fully . . . investigate to make sure I do have the correct Claimant,

       and if in fact this is not the correct Claimant, have further information provided

       to the department regarding that information.” Id. at 24.


[9]    On April 5, the DWD sent to Bishop and Staffing Agency a notice of an in-

       person hearing to be held on April 16. In addition, the DWD issued a

       subpoena to Staffing Agency commanding it “to have an employee who can

       identify employee Whitney Bishop appear in person” at the April 16 hearing.

       Ex. p. 34.


[10]   At the April 16 hearing, Bishop appeared in person, but again Staffing Agency

       did not. The ALJ then called Staffing Agency, which said it wasn’t aware of

       the hearing. The ALJ reminded Staffing Agency that a notice of the hearing

       had been mailed as well as a subpoena requiring them to appear in person to

       identify “the employee named as Whitney Bishop.” Tr. p. 26. The ALJ

       explained that because “the crux of the issue is whether [Bishop] is the

       employee that [Staffing Agency] believes to be [Whitney Bishop] . . ., [she

       couldn’t] go any further on the issues today.” Id. at 27. Again, the ALJ

       ordered Staffing Agency to appear in person at a rescheduled hearing, which

       the parties agreed would be held on May 3.




       Court of Appeals of Indiana | Memorandum Decision 18A-EX-1605 | September 20, 2019   Page 7 of 14
[11]   At the May 3 hearing, Bishop and two employees from Staffing Agency—

       Emily Brower and Mallori Herbertz—appeared in person. However, neither

       employee could identify Bishop as the person Staffing Agency had hired.


[12]   Herbertz, who worked at Staffing Agency’s front desk, testified that she did not

       recognize Bishop from when a person by that name applied at Staffing Agency

       in late September 2017; however, she did recognize Bishop from when she

       stopped by in March 2018 to inquire about the person who had been using her

       identity. Herbertz introduced into evidence copies of the two pieces of

       identification that the person provided during the application process: (1) a

       social-security card in the name of “Whitney Mychel Lyn Bishop” and (2) a

       State of Indiana identification card (issued in May 2016) listing the name

       “Whitney Lynn Bishop” and an address of 3440 E. 38th St. #B in Indianapolis.

       Ex. p. 69.


[13]   Brower, the branch manager, testified that she had never seen Bishop until that

       day. Tr. p. 44. She explained that a person by the name of Whitney Bishop

       worked at Geodis from October 1, 2017, to January 25, 2018, when an

       employee from Staffing Agency called to see why she didn’t show up for work

       that day, and the person responded that she quit because she didn’t want to

       work there anymore. Brower also offered into evidence five “paycheck stubs.”

       Id. at 45. The paystubs reflect that the money was direct deposited. Id. at 46;

       Ex. pp. 70-74. Brower, however, did not have any information regarding the

       account that the money was deposited into. Brower acknowledged that the

       address on the State of Indiana identification card did not match the address

       Court of Appeals of Indiana | Memorandum Decision 18A-EX-1605 | September 20, 2019   Page 8 of 14
       that the person gave; however, she explained that it is Staffing Agency’s

       practice that “[p]eople that we put to work have to match their ID’s.” Tr. p. 49.

       As for when someone called Staffing Agency in January 2018 to change the

       address from White Oaks to 38th Street, Brower testified that she “couldn’t

       verify” if the W-2 was actually mailed to the 38th Street address. Id. at 48.

       Finally, Brower introduced into evidence the I-9 Form that the person filled out

       when applying for the job. According to the form, the person’s address was

       2210 White Oaks Drive, phone number was (317) 529-[xxxx], and email

       address was tsy[xxxx]@gmail.com. Ex. p. 77. Notably, on the signature line,

       the name is signed as “Whityney Lynn,” not “Whitney Bishop.” Id.


[14]   Finally, Bishop testified that she neither had a bank account nor received any

       paychecks from Staffing Agency. She acknowledged that the photo on the State

       of Indiana identification card was of her but reiterated that her wallet (including

       her identification card) had been stolen “[a]bout two” times, in December 2017

       and 2016. Tr. pp. 51-54, 56; see also id. at 57 (also referencing robberies in 2005,

       2007, and 2011). Bishop testified that she did not live at 2210 White Oaks

       Drive and instead had lived at 3440 E. 38th St. #B since March 2016. In

       addition, Bishop testified that after Staffing Agency gave her the contact

       information of the United States Department of Homeland Security special

       agent, she met with him at his office. See id. at 66-67. She did not have the

       results of any investigation, though. Finally, Bishop testified that her email

       address (since 2004) was whit.[xx]@hotmail.com, she had never had a




       Court of Appeals of Indiana | Memorandum Decision 18A-EX-1605 | September 20, 2019   Page 9 of 14
       gmail.com email address, and her phone number (the only one she ever had)

       was (317) 625-[xxxx], not (317) 529-[xxxx].


[15]   On May 14, 2018, the ALJ issued her decision. The ALJ concluded as follows:


               [Bishop] is the same employee Whitney Bishop that worked for
               [Staffing Agency]. The [ALJ] concludes this because [Bishop’s]
               [identification card] was used for employment with [Staffing
               Agency]. This was provided prior to the theft of the driver’s
               license in December 2017. [Bishop] failed to provide evidence of
               a police report made in December 2017. [The employee’s]
               address was updated with [Staffing Agency] to [Bishop’s] correct
               address in January 2018 to receive pertinent tax documents. The
               [ALJ] concludes that the different address reported initially with
               [Staffing Agency] is not as determinative as to the address where
               pertinent tax documents are issued. [Bishop] did not know how
               to correctly spell her middle name [Lynn v. Lyn] which may
               account for the different versions. For all of those reasons, the
               [ALJ] concludes that [Bishop] is the same Whitney Bishop that
               worked for [Staffing Agency].


       Appellant’s App. Vol. III p. 24. Furthermore, finding that Bishop voluntarily

       left employment with Staffing Agency without good cause, the ALJ affirmed

       the claims investigator’s denial of unemployment benefits. Bishop then

       appealed to the Review Board, which (without holding a hearing) adopted and

       incorporated by reference the ALJ’s findings of fact and conclusions of law and

       affirmed the ALJ’s decision. Appellant’s App. Vol. II p. 4.


[16]   Bishop now appeals.




       Court of Appeals of Indiana | Memorandum Decision 18A-EX-1605 | September 20, 2019   Page 10 of 14
                                  Discussion and Decision
[17]   Bishop contends that the Review Board’s finding that she worked for Staffing

       Agency is not supported by substantial evidence. When reviewing a decision

       by the Review Board, our task is to determine whether the decision is

       reasonable in light of its findings. Abdirizak v. Review Bd. of Indiana Dep't of

       Workforce Dev., 826 N.E.2d 148, 150 (Ind. Ct. App. 2005). Our review of the

       Review Board’s findings is subject to a “substantial evidence” standard of

       review. Id. In this analysis, we neither reweigh the evidence nor assess witness

       credibility, and we consider only the evidence most favorable to the Review

       Board’s findings. Id. Further, we will reverse the decision only if there is no

       substantial evidence to support the Review Board’s findings. Id.


[18]   As the ALJ explained early on in these proceedings, Bishop’s claim that she

       never worked for Staffing Agency was “a significant issue” that required more

       information to make sure “[we] have the correct Claimant.” Tr. pp. 23-24. To

       that end, the ALJ ordered Staffing Agency to appear in person at the continued

       hearing with “someone . . . [who] has first-hand knowledge of who Whitney

       Bishop is, as [Staffing Agency] believes.” Id. at 23. However, Staffing Agency

       did not appear in person at the continued hearing despite being (1) informed

       over the phone, (2) mailed a notice of the hearing date, and (3) issued a

       subpoena “to have an employee who can identify employee Whitney Bishop

       appear in person.” Ex. p. 34. As a result, the ALJ was forced to continue the

       hearing again as the “crux of the issue is whether [Bishop] is the employee that



       Court of Appeals of Indiana | Memorandum Decision 18A-EX-1605 | September 20, 2019   Page 11 of 14
       [Staffing Agency] believes to be [Whitney Bishop].” Tr. p. 27. Again, Staffing

       Agency was ordered to appear in person at the continued hearing.


[19]   At the third hearing, employees from Staffing Agency finally appeared in

       person, but neither of them could identify Bishop, and they didn’t subpoena or

       bring any witnesses from Geodis who could do so either. See id. at 15 (Staffing

       Agency testifying at the first hearing that someone from Geodis could identify

       the Whitney Bishop that worked for Staffing Agency). Nevertheless, the ALJ

       determined that Bishop was, in fact, the person who worked for Staffing

       Agency because Bishop’s State of Indiana identification card was used for

       employment with Staffing Agency, and it was provided to Staffing Agency

       before it was stolen in December 2017. However, Bishop claimed to have had

       her identification card stolen other times because, as she put it, that’s life in the

       “ghetto.” Id. at 51. As for the ALJ’s observation that Bishop didn’t file a police

       report in December 2017, she did file a police report in March 2018 as soon as

       she found out that someone was using her identity. Finally, although the ALJ

       acknowledged that Bishop’s address wasn’t used during the application process

       with Staffing Agency, she noted that it was updated to Bishop’s address in

       January 2018 in order “to receive the pertinent tax documents.” However, not

       only did Bishop deny receiving a W-2 from Staffing Agency, but also Staffing

       Agency “couldn’t verify” if the W-2 was actually mailed to the 38th Street

       address. Id. at 48. The ALJ’s determination that Bishop worked for Staffing

       Agency is also at odds with the other evidence that was presented, including:




       Court of Appeals of Indiana | Memorandum Decision 18A-EX-1605 | September 20, 2019   Page 12 of 14
    •   After Bishop’s claim for unemployment benefits based on her layoff from

        Carrier was denied because she quit working at Staffing Agency without

        reason, Bishop called IMPD to report that her identity had been stolen

        and someone had been working at Staffing Agency using her

        information.


    •   Bishop went to Staffing Agency to inquire about the person who had

        been using her identify, and Staffing Agency gave her the name of a

        special agent with the United States Department of Homeland Security.


    •   Bishop met with the special agent.


    •   Just three days after the DWD denied a claim by “Whitney Bishop” for

        unemployment benefits based on employment with Staffing Agency,

        Bishop sent a letter to the DWD stating that she had never worked for

        Staffing Agency.


    •   The person who applied at Staffing Agency gave an address, phone

        number, and email address that Bishop denied were hers.


    •   Although Bishop was pregnant when the person applied at Staffing

        Agency in late September 2017 and gave birth on February 1, 2018,

        Staffing Agency said the person was not pregnant “to our knowledge.”


    •   The person who applied at Staffing Agency signed the I-9 Form as

        “Whityney Lynn,” not “Whitney Bishop.”



Court of Appeals of Indiana | Memorandum Decision 18A-EX-1605 | September 20, 2019   Page 13 of 14
           •   Staffing Agency paid the person using direct deposit but did not have any

               information regarding the bank account that was used, and Bishop

               denied having a bank account.


       Based on all of this evidence, we conclude that the Review Board’s finding that

       Bishop is the person who worked for Staffing Agency is not supported by

       substantial evidence. We therefore reverse the Review Board’s decision

       upholding the claims investigator’s determination and remand this matter to the

       Review Board to conduct further proceedings consistent with this opinion.


[20]   Reversed and remanded.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-EX-1605 | September 20, 2019   Page 14 of 14
