Lowell v. Human Dynamics & Diagnostics, PLLC ( 2023 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 49196
GREGORY P. LOWELL, )
)
Claimant-Appellant, ) Boise, May 2023 Term
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v. ) Opinion filed: August 3, 2023
)
HUMAN DYNAMICS AND DIAGNOSTICS, ) Melanie Gagnepain, Clerk
PLLC, Employer; IDAHO DEPARTMENT )
OF LABOR, )
)
Defendants-Respondents. )
)
Appeal from the Idaho Industrial Commission.
The decision of the Idaho Industrial Commission is affirmed.
Gregory P. Lowell, Salmon, Claimant-Appellant Pro Se.
Raúl R. Labrador, Idaho Attorney General, Boise, for Defendant-Respondent Idaho
Department of Labor.
ZAHN, Justice.
Gregory Lowell appeals the Idaho Industrial Commission’s decision affirming the Idaho
Department of Labor’s determination that Lowell was ineligible for unemployment benefits
because he had been discharged for employee-related misconduct. We affirm the Industrial
Commission’s decision because Lowell has failed to provide a sufficient record or sufficient
argument and authority to support his claims.
I. FACTUAL AND PROCEDURAL BACKGROUND
Lowell worked as a community-based support person for “Adi’s Voice DDA,” which is a
division of Human Dynamics and Diagnostics, PLLC (“HDD”), from June 15, 2020, to January 6,
2021, before being discharged. On September 14, 2020, Lowell’s supervisor gave him a written
“employee action” for an incident in which the police were called because Lowell left his client
alone in the park while Lowell looked for Wi-Fi so the client could play computer games on a
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cellular device. The document advised Lowell that he needed to deliver client services one-on-one
and if he needed to leave the client, he must ensure another staff member was watching the client
or that Lowell needed to take the client with him. It also advised Lowell that if he needed to leave
the client for more than seven minutes, he could not bill for that time.
In early October 2020, Lowell’s supervisor texted him to advise that he could not seek
reimbursement from HDD for time transporting a client to and from school in Lowell’s personal
vehicle because he and the client were approved to take the school bus. Lowell responded to the
text message by expressing his anger that he was not allowed to charge for the time and accusing
an HDD employee of being too lazy or uncaring to compensate him.
On November 18, 2020, HDD placed Lowell on a corrective Employee Action Plan
(“Action Plan”). Lowell signed the document, which included the following directions to Lowell:
1. [Lowell] will bill accurate hours per Medicaid reimbursable service when with
clients or students that does not include transportation to school.
2. Notes will be turned in on time before Monday at 9 AM weekly. Notes and data
tracking will not affect the service provided to the client or student.
3. [Lowell] will use professional communication that is solution focused with all
team members.
4. A violation of any of these terms without proper approval will result in
termination.
On January 5, 2021, Lowell’s supervisor sent a group text to HDD employees to remind
them about an upcoming mandatory training meeting. Lowell responded and expressed frustration
that he would have to cancel an appointment with a client to attend the meeting and accused HDD
management of not putting the needs of its clients first. A coworker responded, stating that the
employees were given advance notice of the date and time of the meeting, so they did not schedule
appointments during the training time. A second coworker “liked” the first coworker’s text. Lowell
subsequently stated, “[w]ho liked my admonishment for expressing a high degree of support for
children’s need. [sic] what do you know of my schedule. Love to have a conversation in reply to
your arrogant rudeness.” Lowell’s supervisor interjected, reminding Lowell that the group chat
was a professional group conversation and that Lowell’s personal views needed to go directly to
human resources or the supervisor. The conversation escalated and Lowell sent several long
messages disparaging his co-workers:
[I]f this is supposed to be a professional gg [sic] And a professional group
conversation would not include ignorant or nasty comments like [phone number]
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saying she thinks I am wrong for keeping my commitments and integrity. She is
the one that deserves to be chastised for personally attacking me. That rudeness
inspired my comments. Tell me just who decided to attack me. Supply your name
and we will discuss professionalism. Or crawl back to your basement.
The coworker who “liked” the comment wrote,
I agreed with Maddie’s comment about the importance of scheduling, but made no
comment. I don’t think that warrants threats or personal attacks. Also, this is Sarah,
for anyone who doesn’t have my number. I will be at the office at 8 am for the
training Friday, see everyone there! And thank you Amy for offering to go to the
bakery, that was thoughtful.
Lowell responded,
Shame on you Sarah for your. [sic] personal attack on me for no reason but
nastiness. There were no threats by me I said I wanted to discuss this with you
Another.lie [sic] and false accusation by you. And the only personal attack was by
you. It was.ugly [sic] rude and ignorant and without provocation. Try minding your
own business and stay far away from mine.
The next day, January 6, 2021, Lowell’s employment was terminated for sending
unprofessional text messages to staff members. Lowell subsequently applied for unemployment
benefits with the Idaho Department of Labor (“Department”). The Department initially determined
he was eligible for benefits because he had not been terminated for misconduct. HDD appealed
the Department’s decision.
The Department’s Appeals Examiner held a hearing on the matter. Lowell, his supervisor,
and HDD’s personnel manager testified at the hearing. The Appeals Examiner reversed the initial
determination and concluded that Lowell was ineligible for benefits because he was discharged
for misconduct as defined by the Idaho Employment Security Law.
Lowell appealed the decision to the Idaho Industrial Commission (“Commission”), arguing
that the hearing was unfair because the Appeals Examiner was biased and unfairly excluded his
witness from testifying. The Commission dismissed the appeal as untimely. Lowell filed a request
for reconsideration of the dismissal, arguing that he had timely applied for a re-hearing. The
Commission granted Lowell’s request for reconsideration and agreed to hear the appeal.
After conducting a de novo review of the agency record, the Commission affirmed the
decision of the Appeals Examiner and found that Lowell had been discharged for misconduct
related to his employment. The Commission determined that Lowell had been provided with due
process because nothing in the record demonstrated that the Appeals Examiner was biased against
Lowell. Further, the Commission agreed with the Appeals Examiner’s determination that the
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testimony from Lowell’s proffered witness was irrelevant to the matter. Lowell timely appealed to
this Court.
II. STANDARD OF REVIEW
“This Court exercises free review over questions of law when we review Industrial
Commission decisions.” Talbot v. Desert View Care Ctr., 156 Idaho 517, 520, 328 P.3d 497, 500
(2014) (citation omitted). “We only disturb the Commission’s findings of fact if those findings are
clearly erroneous, which means they are not supported by substantial and competent evidence.”
Id. (citation omitted). “Substantial and competent evidence is relevant evidence that a reasonable
mind might accept to support a conclusion.” Bell v. Idaho Dep’t of Lab., 157 Idaho 744, 746, 339
P.3d 1148, 1150 (2014) (quoting Uhl v. Ballard Med. Prods., Inc., 138 Idaho 653, 657, 67 P.3d
1265, 1269 (2003)). “[T]his Court does not re-weigh the evidence or consider whether it would
have reached a different conclusion from the evidence presented.” Id. (alteration in original)
(quoting Hughen v. Highland Ests., 137 Idaho 349, 351, 48 P.3d 1238, 1240 (2002)).
III. ANALYSIS
The Department initially argues that Lowell’s appeal should be denied because Lowell
failed to comply with Idaho Appellate Rule (“I.A.R.”) 35(a) in that he had failed to support his
appeal with argument and citations to the record and with legal authority supporting his positions.
The Department argues that Lowell has not provided this Court with any legal issues to review on
appeal and, therefore, the appeal should be dismissed. Notably, this Court rejected Lowell’s Reply
Brief because it had not been signed, failed to comply with Rule 35, and had not been timely filed.
As a result, we have no response from Lowell concerning the Department’s arguments.
“At its core, ‘an appeal is a formalized analysis of alleged legal error.’” Dorr v. Idaho Dep’t
of Lab., 171 Idaho 306, 309, 520 P.3d 1266, 1269 (2022) (quoting Est. of Ekic v. Geico Indem.
Co., 163 Idaho 895, 897, 422 P.3d 1101, 1103 (2018)). For this reason, Rule 35(a)(6) requires an
appellant’s argument to “contain the contentions of the appellant with respect to the issues
presented on appeal, the reasons therefor, with citations to the authorities, statutes and parts of the
transcript and record relied upon.” An “appellant’s failure to comply with Rule 35(a)(6) results in
a forfeiture of the alleged error.” Dorr, 171 Idaho at 309, 520 P.3d at 1269. “Pro se litigants are
not accorded any special consideration simply because they are representing themselves and are
not excused from adhering to procedural rules.” Michalk v. Michalk, 148 Idaho 224, 229, 220 P.3d
580, 585 (2009) (quoting Nelson v. Nelson, 144 Idaho 710, 718, 170 P.3d 375, 383 (2007)).
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Lowell is representing himself on appeal and generally argues that the Appeals Examiner
was prejudiced against him and erred by not allowing him to present a witness. Additionally,
Lowell asserts that HDD fabricated the reasons for firing him. That said, Lowell’s brief does not
contain any citations to the record, case law, or statutes to support his arguments. For this reason,
Lowell has forfeited any assignment of error for failing to present argument or authority supporting
his contentions. I.A.R. 35(a)(6); Dorr, 171 Idaho at 309, 520 P.3d at 1269.
Further, Lowell has failed to include transcripts or a recording of his hearing before the
Appeals Examiner in the record on appeal. “It is the responsibility of the appellant to provide a
sufficient record to substantiate his or her claims on appeal. In the absence of an adequate record
on appeal to support the appellant’s claims, we will not presume error.” Walker v. Meyer, 170
Idaho 408, 410, 511 P.3d 828, 830 (2021) (quoting Turcott v. Est. of Bates, 165 Idaho 183, 188,
443 P.3d 197, 202 (2019)). This Court will not presume error in the Commission’s findings of fact
when an appellant fails to “provide any record of the IDOL hearing[.]” Talbot, 156 Idaho at 520,
328 P.3d at 500.
Lowell has forfeited any assignment of error by failing to comply with Rule 35(a)(6) and
failing to provide the hearing transcripts in the record on appeal. Accordingly, we will not presume
error in the Commission’s decision. The Commission’s decision is affirmed.
IV. CONCLUSION
We affirm the Idaho Industrial Commission’s decision upholding the Appeal Examiner’s
denial of unemployment benefits.
Chief Justice BEVAN, and Justices BRODY, STEGNER, and MOELLER CONCUR.
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