Timothy C. Platt v. Review Board of the Indiana Department of Workforce Development (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any May 26 2017, 6:19 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Timothy C. Platt Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Kyle Hunter
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Timothy C. Platt, May 26, 2017
Appellant-Petitioner, Court of Appeals Case No.
93A02-1609-EX-2213
v. Appeal from the Review Board of
the Department of Workforce
Review Board of the Indiana Development
Department of Workforce The Honorable
Development, Steven F. Bier, Chairperson,
George H. Baker, Member, and
Appellee-Respondent Larry A. Dailey, Member
Cause No.
16-R-1152
May, Judge.
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[1] Timothy C. Platt appeals a decision by the Review Board of the Indiana
Department of Workforce Development (“Review Board”) that denied him
unemployment benefits. He presents multiple issues for our review, which we
consolidate and restate as:
1. Whether the Review Board erred when it determined
Zenith Freight Lines (“Zenith Freight”) and Strategic
Outsourcing, Inc. (“SOI”) were Platt’s co-employers when
he was discharged, and
2. Whether the Review Board erred when it determined Platt
was discharged from his employment for cause and was
thus ineligible for unemployment benefits.
We affirm.
Facts and Procedural History
[2] On July 21, 2015, Platt’s employment was terminated and shortly thereafter
Platt filed for unemployment benefits. On September 8, 2015, a claims deputy
for the Indiana Department of Workforce Development (“DWD”) determined
Platt was not discharged from his employment for just cause and he was
therefore entitled to unemployment benefits. On September 17, 2015, Platt’s
employer appealed the claim deputy’s decision to grant Platt unemployment
benefits.
[3] A DWD Administrative Law Judge (“ALJ”) held a hearing on the matter on
October 21, 2015 (“First Hearing”). Representatives from Zenith Global
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Logistics (“Zenith Global”) 1 and Platt submitted evidence regarding Platt’s
termination. On October 22, 2015, the ALJ reversed the claim deputy’s
decision and denied Platt unemployment benefits. The ALJ found and
concluded:
[4] The employer discharged the claimant for failing to comply with
company procedures, violating DOT [Department of
Transportation] regulation, and failing to follow instructions.
[5] On May 8, 2015, the claimant went to the physician for the
purpose of updating his medical examination report. The
claimant has fifteen (15) days to update the medical examination
report with DMV [Department of Motor Vehicles]. The claimant
relied upon the physician’s office to send the medical
examination report to the DMV. The Administrative Law Judge
did not receive evidence that the medical examination report was
sent to the DMV.
[6] On June 19, 2015, the employer conducted an audit of its drivers.
The employer learned that the claimant’s CDL [Commercial
Driver’s License] Class A license was suspended because he did
not register his most recent medical examination report. On the
same day, the claimant drove to Valparaiso, Indiana. An
Indiana State police officer pulled over the claimant to conduct a
check of the vehicle. The officer issued a ticket to the claimant
because he learned that the claimant’s CDL Class A license was
suspended. The employer provided a copy of the ticket that was
made part of the record. The claimant was cited for driving a
commercial vehicle without a valid license.
1
It would seem Zenith Global is a parent company of Zenith Freight, but the record is inconclusive.
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[7] The claimant notified the Director of Compliance of the ticket.
The Director of Compliance asked the claimant if he took his
new medical examination report to the DMV, and the claimant
said that he had not. The Director told the claimant not to drive
the truck and to contact his dispatcher to assist in handling the
situation.
[8] The claimant was concerned how he would get back to
Indianapolis, Indiana.
[9] The claimant explained to the ALJ that he went inside a rest stop
and met a truck driver who was abandoned by his coworker.
This driver said that he could drive the claimant’s truck to
Indianapolis, Indiana. The alleged truck driver drove the
claimant in the claimant’s truck to Indianapolis, Indiana. The
claimant did not provide a name or description of the individual
to the ALJ. The claimant’s explanation of how he returned to
Indianapolis, Indiana is not credible.
[10] On June 22, 2015 the Director of Compliance learned that the
claimant’s truck was in the yard. The employer wondered how
the claimant’s truck returned to the yard when he was instructed
not to drive it. The Director of Compliance completed a
standard monthly driver log audit. When the Director saw that
the claimant’s truck showed unassigned driving time, she
contacted dispatch because she saw that the distance was
approximately the same distance from where the claimant called
on June 19, 2015. No one could verify who drive the vehicle
back to the facility. When the Director of Compliance
confronted the claimant, he said that he allowed someone to
drive the vehicle back because he could not. The Director of
Compliance notified the Vice-President of Fleet Operations.
[11] The employer concluded that the claimant failed to comply with
company procedures by not properly logging all miles, violated a
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DOT regulation by not having a valid CDL Class A license when
operating the employer’s vehicle, and failed to follow the
instructions of not driving the vehicle. The claimant was
discharged effective July 21, 2015.
CONCLUSIONS OF LAW
*****
[12] A duty exists upon an employee to perform his job to the best of
his ability. The claimant knew that he was to have a valid CDL
Class A license and that he was to register the most recent
medical examination report with the DMV. The claimant
admitted to the Director of Compliance that he did not have the
most current medical examination report registered with the
DMV thus his CDL Class A license was suspended. This was
the claimant’s responsibility, not the doctor. At the time the
claimant was notified of the suspension, he had been driving the
employer’s truck. The claimant jeopardized the employer’s
liability. The claimant did not have a valid CDL Class A license
when he drove the employer’s truck. The claimant violated the
DOT regulation.
[13] The employer instructed the claimant not to drive the vehicle.
The Director of Compliance had the authority to issue the
directive, and the directive was reasonable. The claimant alleged
that he allowed a non-employee to drive the employer’s truck to
Indianapolis, Indiana. The claimant’s explanation of how he
returned to Indianapolis, Indiana was not credible. The claimant
drove the truck back to Indianapolis, Indiana. The claimant
refused to follow an instruction. Again, the claimant jeopardized
the employer’s liability.
[14] The claimant knew that all mileage must be logged. The
claimant did not log his mileage from Valparaiso, Indiana to
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Indianapolis, Indiana, which was a violation of procedure. By
failing to log the mileage, the employer would be unaware where
its truck was. Furthermore, the employer would be unable to
demonstrate that the operation of the vehicle was within federal
guidelines.
[15] The claimant breached the duty. The claimant was discharged
for just cause. The claimant is ineligible for benefits under the
Act.
(Exhibit Vol. IV at 29-31) (internal citations to the record omitted).
[16] On November 5, 2015, Platt appealed the ALJ’s decision to the Review Board.
The Review Board affirmed the ALJ’s decision, with a slight addendum
supporting the conclusion Zenith Freight discharged Platt for cause, on
December 9, 2015. On December 14, 2015, Platt filed an appeal with this
court. The Review Board requested remand of the matter to determine the
identity of Platt’s last separating employer. We granted that request, and on
May 5, 2016, we dismissed Platt’s appeal without prejudice and remanded for
the determination of the identity of Platt’s last separating employer. We noted
in our order Platt was permitted to raise the issues he would have raised in the
original appeal, as well as any new issues created by the proceedings on
remand.
[17] On June 29, 2016, a different ALJ held a hearing regarding the identity of
Platt’s last separating employer (“Second Hearing”). A representative of PEO-
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SOI-31 of AR, Inc., 2 one of the possible employers, sent a letter to the ALJ
indicating none of the possible employers would be participating in the Second
Hearing. Platt participated in the hearing and offered his W-2 and paystub as
evidence. On July 8, 2016, the ALJ issued an order concluding the last
separating employers were co-employers SOI and Zenith Freight. The ALJ
also reissued the order from the First Hearing in its entirety. Platt appealed the
order from the Second Hearing. On September 2, 2016, the Review Board
denied his request, affirming the order from the Second Hearing.
Discussion and Decision
[18] We first note Platt proceeds in this appeal pro se. Litigants who proceed pro se
are held to the same established rules of procedure that trained counsel is bound
to follow. Smith v. Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans.
denied, cert. dismissed, 558 U.S. 1074 (2009). One risk a litigant takes when
proceeding pro se is that he will not know how to accomplish all the things an
attorney would know how to accomplish. Id. When a party elects to represent
himself, there is no reason for us to indulge in any benevolent presumption on
his behalf or to waive any rule for the orderly and proper conduct of his appeal.
Foley v. Mannor, 844 N.E.2d 494, 502 (Ind. Ct. App. 2006).
2
As indicated as part of the findings from the Second Hearing, PEO-SOI of AR, Inc. is listed as Platt’s
employer in the unemployment papers. It would seem PEO-SOI of AR Inc. is a parent company of SOI, but
the record is inconclusive.
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[19] On appeal from a decision of the Review Board, we “utilize a two-part inquiry
into the sufficiency of the facts sustaining the decision and the sufficiency of the
evidence sustaining the facts.” Whiteside v. Ind. Dep’t of Workforce Development,
873 N.E.2d 673, 674 (Ind. Ct. App. 2007).
In doing so, we consider determinations of basic underlying facts,
conclusions or inferences from those facts, and conclusions of
law. The Review Board’s findings of fact are subject to a
substantial evidence standard of review. “Any decision of the
review board shall be conclusive and binding as to all questions
of fact.” I.C. § 22-4-17-12(a). We do not reweigh the evidence or
assess the credibility of witnesses. Regarding the Board’s
conclusions of law, we assess whether the Board correctly
interpreted and applied the law.
Id. at 675 (some citations omitted). We will reverse “only if there is no
substantial evidence to support the findings.” KBI, Inc. v. Review Bd. of the Ind.
Dep’t of Workforce Dev., 656 N.E.2d 842, 846 (Ind. Ct. App. 1995).
I. Determination of Zenith Freight and SOI as Co-Employers
[20] As noted in the facts, the Review Board requested, and we granted, remand to
allow an ALJ to determine Platt’s last separating employer. Regarding this
issue, the ALJ found and concluded:
[21] The employer listed on this appeal is: PEO-SOI-31 of AR, Inc.,
9000 Town Center Pkwy, Lakewood Ranch, FL, 34202.
[22] The Claimant was hired by Strategic Outsourcing, Inc. (SOI),
who then leased his services to Zenith Freight Lines. The
Claimant only worked for Zenith Freight Lines. According to
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the deputy’s initial determination of eligibility, the Claimant’s
separation occurred in July, 2015. The deputy found that the
Claimant was eligible for benefits, and Zenith appealed through
its agent, Equifax. During the October 21, 2015, hearing, only
the Claimant and Zenith employees testified.
[23] The Claimant asserts that Zenith had no standing to appeal the
determination, as it was not his employer. The Claimant asserts
that Strategic Outsourcing, Inc. (SOI) is his true employer, and
that Zenith hired SOI to hire employees for Zenith’s use and to
complete Zenith’s accounting duties.
[24] The Claimant presented his 2015 W-2 form as evidence, which
lists the Employer’s name as AMLEASE CORP (A
SUBSIDIARY OF SOI), with the same address listed as the
Employer on the determination, 9000 Town Center Pkwy,
Lakewood Ranch, FL, 34202. Also listed on the W-2 is Zenith
Freight Lines, with no designation as to why that company is
listed.
[25] The Claimant also presented a copy of his check and pay stub for
July 17, 2015. On the check, Zenith Freight Lines is listed, on
top of Strategic Outsourcing, Inc. Both companies are also listed
on the stub, with addresses for each.
[26] Strategic Outsourcing, Inc., is a Professional Employer
Organization (PEO), as noted in its title as Employer for this
appeal.
CONCLUSIONS OF LAW:
[27] The only issue to be decided is whether the Employer listed on
the case is the Claimant’s last separating employer. The
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Claimant agrees that he worked only for Zenith Freight Lines,
but as a leased employee from SOI.
[28] As there is little to no citable Indiana caselaw on this topic, the
Administrative Law Judge must look to statutory language to
determine the employment relationship, if any, between the
Claimant and Zenith Freight Lines.
[29] The Employer is listed as “PEO-SOI”. Indiana Code 22-4-6.5
deals with Professional Employer Organizations, as they deal
with Unemployment Insurance benefits. According to Indiana
Code 22-4-6.5-5, a “Professional employer organization” or
“PEO” has the meaning set forth in IC 27-16-2-13, which defines
a PEO as:
(a) “Professional employer organization” or “PEO” means
a person engaged in the business of providing professional
employer services.
(b) The term does not include the following:
(1) An arrangement through which a person:
(A) whose principal business activity is an
activity other than entering into professional
employer agreements; and
(B) that does not hold the person out as a
professional employer organization;
shares employees with a commonly owned
company within the meaning of Section 414(b)1
and 414(c)2 of the Internal Revenue Code of 1986,
as amended.
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(2) An independent contractor arrangement through
which a person:
(A) assumes responsibility for a product
produced or a service performed by the
person or the person’s agent; and
(B) retains and exercises primary direction
and control over the work performed by an
individual whose services are supplied under
the independent contractor arrangement.
(3) The provision of temporary help services.
[30] As no contradictory evidence was present, the Administrative
Law Judge concludes that SOI is a PEO as applied to IC 22-4-
6.5.
[31] The Claimant’s testimony leads the Administrative Law Judge to
conclude that Zenith is at least a client of SOI, in that the
claimant was “leased” to Zenith. Indiana Code 22-4-6.5 defines
“Client”:
Sec. 1. As used in this chapter, “client” has the meaning
set forth in IC 27-16-2-3.
[32] IC 27-16-2 defines “Client”:
Sec. 3. “Client” means a person that enters into a
professional employer agreement with a professional
employer organization.
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[33] According to Claimant’s testimony, Zenith hired SOI to hire
employees and complete accounting duties for Zenith. The
Administrative Law Judge concludes that Zenith is a client
through an agreement between the two parties.
[34] As there exists a relationship between Zenith and SOI, the
question remains whether Zenith was the last separating
employer for the Claimant. Indiana Code addresses a possible
employment relationship between Zenith, SOI and the Claimant.
“Co-employer” refers to a client or a professional
employer organization that has entered into a professional
employer agreement and has a relationship with a co-
employed individual.
IC 27-16-2-5[.]
[35] Also:
“Co-employment relationship” means a relationship:
(1) between a:
(A) client and a professional employer organization;
or
(B) co-employer and a covered employee; and
(2) that results from the client and the professional
employer organization entering into a professional
employer agreement.
IC 27-16-2-6[.]
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[36] In furtherance:
“Co-employed” means that an individual is
contemporaneously employed by both a client and a
professional employer organization.
IC 27-16-2-4[.]
[37] The Administrative Law Judge concludes that, according to
Indiana Code, Zenith and SOI were involved in a
“co­employment relationship”, due to the evidence submitted by
the Claimant. The W-2, paycheck and pay stub, all reflect SOI
and Zenith being in collaboration in the employment of the
Claimant. Further, because of the relationship, the Claimant is
to be considered “co-employed”.
[38] The Administrative Law Judge concludes that Zenith and SOI
were simultaneously the last separating Employers for the
Claimant in this appeal.
(Exhibit Vol. IV at 52-54) (citations to the record omitted).
[39] Platt challenges these findings and conclusions, arguing, “the ALJ is wrong
because the ALJ’s generalized Zenith and generalized SOI do not accurately
reflect the legal realities of the distinctly separate corporate structures.” (Br. of
Appellant at 11) (errors in original). Platt contends the matter involved six
separate corporate entities, which he referred to as “Corporate Shells,” named:
“Zenith Global Logistics,” “Zenith Freight Lines,” “Strategic Outsourcing
Inc.,” “PEO-SOI-31 of AR, Inc.,” “AMLEASE Corp.,” and “Summit Services,
Inc.” (Id. at 9.) As best as we can ascertain, Platt requests we reweigh the
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evidence, which we cannot do. See Whiteside, 873 N.E.2d at 675 (appellate
court cannot reweigh evidence or judge the credibility of witnesses).
[40] The evidence was sufficient to support the findings. The ALJ noted the
employer listed on the appeal of Platt’s request for unemployment benefits was
“PEO-SOI-31 of AR, Inc., 9000 Town Center Pkwy, Lakewood Ranch, FL,
34202.” (Exhibit Vol. IV at 52.) Platt provided copies of his W-2 and a
paystub. The W-2 listed “AMLEASE CORP (A SUBSIDIARY OF SOI)” and
Zenith Freight as the issuing employers. (Id. at 49.) The address on the W-2
was the same as that listed as the employer’s address in the appeal filed. Platt’s
paystub was issued from Zenith Freight, with SOI listed under Zenith Freight’s
name. The employer representatives at the first ALJ hearing, the records of
which were incorporated into the findings on remand, testified they were from
Zenith Global, and Platt agreed during the Second Hearing those
representatives “were all employees of the Zenith Freight Lines[.]” (Tr. Vol. III
at 6.)
[41] Insomuch as his argument challenges the ALJ’s legal conclusions, Platt has not
presented a cogent argument. He does not offer for our consideration precedent
in support of his argument the Review Board erred when it accepted the ALJ’s
findings, nor does he clearly indicate how the ALJ erred. For those reasons, his
argument is waived. See Carter v. Indianapolis Power & Light Co., 837 N.E.2d
509, 514 (Ind. Ct. App. 2005) (“A party generally waives any issue for which it
fails to develop a cogent argument or support with adequate citation and
portions of the record.”), reh’g denied, trans. denied.
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II. Denial of Benefits
[42] The Indiana Unemployment Compensation Act, found in Indiana Code Article
22-4, was enacted to “provide for payment of benefits to persons unemployed
through no fault of their own.” P.K.E. v. Review Bd. of Ind. Dep’t of Workforce
Dev., 942 N.E.2d 125, 130 (Ind. Ct. App. 2011), trans. denied. Pursuant to the
Act, an individual who meets the eligibility requirements of Indiana Code
chapter 22-4-14 and is not disqualified by the exceptions in chapter 22-4-15 is
eligible for benefits. Id. “An applicant’s entitlement to unemployment benefits
is determined based on the information that is available without regard to a
burden of proof.” Ind. Code § 22-4-1-2(c).
[43] Platt argues, “[w]ith the previous ALJ’s decision vacated, and the ‘Employer’
choosing not to participate, there was nothing to oppose Mr. Platt’s receipt of
Unemployment Insurance benefits. The current ALJ allowed information that
was not properly entered as evidence to be considered.” (Br. of Appellant at 7.)
However, Platt’s arguments suggest he has forgotten the conversations he had
with the ALJ during the Second Hearing.
[44] In particular, at the beginning of the Second Hearing, the ALJ stated:
And this hearing will be about whether the employer listed - let
me read it verbatim here - whether the employer is the last and
separating employer. That’s the only issue we’re going to deal
with today. . . . And we’re not going to talk about why you got
separated from your . . . employer.
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(Tr. Vol. III at 2.) Platt indicated he understood the issue for consideration at
the Second Hearing was confined to the last separating employer identification.
Additionally, regarding the admission of certain evidence, Platt answered in the
affirmative when asked if that evidence could be admitted. The unchallenged
evidence included:
[T]he determination of eligibility being appealed, the employer’s
signed written request for the appeal, the notice of hearing you
received in the mail, the general instruction sheet that came along
with the notice, the acknowledgment sheet which you did return
with your telephone number, the docket sheet that will contain
notes about the process of the case, an exhibit list which will
indicate any documents entered into the record, and in addition
of [sic] the eighth exhibit will be the remand issued by the
Review Board on May 27th.
(Id. at 3-4.)
[45] Thus, the employers’ absence at the second hearing is of no consequence to the
issue of Platt’s reason for separation because that was not the issue before the
ALJ during the Second Hearing. As he did not object to the admission of the
evidence he now challenges during the hearing, his arguments regarding that
evidence are waived. 3 See Family Development, Ltd. v. Steuben County Waste
Watchers, Inc., 749 N.E.2d 1243, 1256 (Ind. Ct. App. 2001) (when appellant
3
Platt also argues the ALJ committed a number of errors amounting to violations of his due process rights.
However, he does not indicate how his rights were violated by the ALJ’s actions, nor does he cite case law to
support his arguments. Thus, his contentions on that issue are waived. See Carter, 837 N.E.2d at 514 (“A
party generally waives any issue for which it fails to develop a cogent argument or support with adequate
citation and portions of the record.”).
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does not present an issue during the administrative proceedings, the issue is
waived from appellate consideration), reh’g denied.
[46] Waiver notwithstanding, we hold the Review Board did not err when it
affirmed and adopted the ALJ’s findings and conclusions from the First
Hearing and Second Hearing regarding Platt’s reason for separation. Platt’s
employer provided evidence he took a medical exam on May 8, 2015, but did
not update the records for his CDL license with the DMV, resulting in the
suspension of his CDL license. His employer discovered the suspension on
June 19, during an audit. The same day, Platt was pulled over and cited for
driving a commercial vehicle without a CDL. On June 19, Platt’s employer
instructed him to refrain from driving the truck due to the suspension of his
license and the citation. Platt was concerned how he would get home to
Indianapolis from Valparaiso.
[47] On June 22, a supervisor saw Platt’s truck in the Indianapolis parking area.
Knowing Platt was instructed not to drive the truck, the supervisor asked Platt
how the truck got to Indianapolis. Platt indicated he found a stranded driver at
a truck stop and that driver drove him back to Indianapolis. The ALJ in the
First Hearing found Platt was terminated from his employment because he
“failed to comply with company procedures by not properly logging all miles,
violated a DOT regulation by not having a valid CDL Class A license when
operating the employer’s vehicle, and failed to follow the instructions of not
driving the vehicle.” (Exhibit Vol. IV at 30.)
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[48] Platt’s arguments to the contrary, including his insistence he did not drive the
truck to Indianapolis and a Newton County case number he claims dismissed
the June 19 citation, are invitations for us to reweigh the evidence and judge the
credibility of witnesses, which we cannot do. See Whiteside, 873 N.E.2d at 675
(appellate court cannot reweigh evidence or judge the credibility of witnesses).
Conclusion
[49] The evidence supported the ALJ’s findings regarding Platt’s last separating
employer and thus the Review Board did not err when it affirmed and adopted
the ALJ’s findings and conclusions indicating Zenith Freight and SOI were
Platt’s last separating co-employers. Additionally, the Review Board did not err
when it affirmed and adopted the ALJ’s findings and conclusions regarding the
reason for Platt’s termination. Accordingly, we affirm the decision of the
Review Board.
[50] Affirmed.
Brown, J., and Pyle, J., concur.
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