Z C v. Review Board

FILED

Jul 13 2023, 9:00 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

APPELLANT PRO SE ATTORNEYS FOR APPELLEE

Z.C. Theodore E. Rokita

Simpsonville, South Caroline Attorney General of Indiana

Katherine A. Cornelius

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Z.C., July 13, 2023

Appellant-Respondent, Court of Appeals Case No.

23A-EX-377

v. Appeal from the Review Board of

the Indiana Department of

Review Board of the Indiana Workforce Development

Department of Workforce Gabriel Paul, Chairman

Development, Lawrence A. Dailey, Member

Heather D. Cummings, Member

Appellee-Petitioner.

No. 23-R-283

Opinion by Judge Bradford

Judges Riley and Weissmann concur.

Bradford, Judge.

Court of Appeals of Indiana | Opinion 23A-EX-377 | July 13, 2023 Page 1 of 16

Case Summary

[1] Z.C. received unemployment benefits from the Indiana Department of

Workforce Development (“the Department”); however, Z.C. had

underreported his wages to the Department resulting in the overpayment of

benefits. An administrative law judge (“ALJ”) and the Review Board of the

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

determined that Z.C. was required to repay the overpayments. Z.C. requested a

waiver of repayment, which the Department denied. Z.C. appealed to ALJ E.

Page Prentice, who affirmed the Department’s decision. Z.C. appealed ALJ

Prentice’s decision to the Review Board, which affirmed the decision. Now,

Z.C. argues that the Review Board erred in affirming ALJ Prentice’s decision

that he is ineligible for a waiver under the repayment-waiver statute; he is

entitled to waiver on equitable estoppel grounds, he qualifies for

accommodation under the Americans with Disabilities Act (“the ADA”); he

qualifies for a waiver under the Coronavirus Aid, Relief, and Economic

Security Act (“the CARES Act”); the Department was negligent in performing

its work, and the Department’s exchange of exhibits was untimely. We affirm.

Facts and Procedural History

[2] During 2020 and 2021, Z.C. intermittently taught online courses for multiple

universities. Z.C. taught courses for eight or fifteen weeks and was paid for

each course. Beginning in February of 2020, Z.C. began collecting

unemployment insurance (“UI”) benefits after having been laid off by his full-

Court of Appeals of Indiana | Opinion 23A-EX-377 | July 13, 2023 Page 2 of 16

time employer in 2019. (Appellee’s App. Vol. II p. 3) By November of 2020,

Z.C. had exhausted his UI benefits, at which point he transitioned to receiving

pandemic emergency unemployment compensation (“PEUC”), federal

pandemic unemployment compensation (“FPUC”), and lost wages assistance

(“LWA”) benefits.

[3] For each week Z.C. sought benefits, he completed claim forms. On those

forms, he verified that he had “report[ed] the work and the gross amount of the

earnings [he] ha[s] or will receive at some future date for that work” on the

voucher for the week that he had performed the work, regardless of when he

would be paid. Appellee’s App. Vol. II p. 3. Z.C. also verified that he had read

the Claimant’s Handbook, which “advises claimants that they must report their

earnings from wages on the voucher(s) for the week in which the work was

performed and the wages were earned.” Appellee’s App. Vol. II p. 3. Further,

Z.C. called the Department on multiple occasions “to seek guidance on how to

report his wages from the online courses,” and he claims that he had “received

different guidance from different representatives.” Appellee’s App. Vol. II p. 3.

[4] Throughout 2020 and 2021, when Z.C. reported his wages, he “treat[ed] the

wages from the course(s) as though they were the only course(s) he would teach

for the year” and “divided his wages by fifty-two weeks” instead of reporting

the specific weeks that he had worked under one or more of his contracts.

Appellee’s App. Vol. II p. 3. Consequently, in July of 2022, the Department

notified Z.C. that he had not properly reported his earnings on multiple weeks

in 2020 and 2021; therefore, the Department had determined that Z.C. had

Court of Appeals of Indiana | Opinion 23A-EX-377 | July 13, 2023 Page 3 of 16

been overpaid benefits. In August of 2022, Z.C. appealed the Department’s

determination that he had been overpaid. After an evidentiary hearing that

same month, ALJ Tracey Buzzard determined that Z.C. had, in fact, been

overpaid after misreporting his earnings. Z.C. appealed that decision to the

Review Board, which affirmed ALJ Buzzard’s decision. On September 25,

2022, after Z.C. had decided not to appeal that decision to this court, the

Review Board’s decision became a final judgment. Altogether, Z.C. had

received $39,046.00 in overpayments.

[5] Also in July of 2022, Z.C. requested a waiver of his obligation to repay the

overpayments. In October of 2022, the Department denied Z.C.’s request,

explaining that he did not meet the statutory criteria to receive a waiver.

Namely, the Department determined that Z.C. had not been “without fault for

the overpayment” of PEUC, FPUC, and LWA benefits, and that he was

ineligible for waiver of his UI benefits because his employers had elected “to

make payments in lieu of contributions[.]” Appellee’s App. Vol. II p. 54. Z.C.

appealed that decision to ALJ Prentice who affirmed the Department’s denial

of Z.C.’s waiver. In doing so, ALJ Prentice found that Z.C.’s reporting method

had failed to adhere to the instructions about disclosing part-time work and, to

the extent that Z.C. had received contrary guidance during his calls with the

Department, that guidance had been mistaken and did not relieve Z.C. of his

responsibility to repay because he had had access to the correct information for

reporting part-time work. ALJ Prentice concluded that Z.C. was ineligible for a

waiver because (1) two of Z.C.’s employers had elected “to make payments in

Court of Appeals of Indiana | Opinion 23A-EX-377 | July 13, 2023 Page 4 of 16

lieu of contributions” to the State-monitored unemployment insurance fund

and (2) Z.C. was at fault for the overpayments. Appellee’s App. Vol. II p. 8.

[6] On January 31, 2023, Z.C. appealed ALJ Prentice’s decision. The following

month, the Review Board adopted ALJ Prentice’s factual findings and legal

conclusions and affirmed the decision to deny Z.C.’s request for a waiver.

Discussion and Decision 1

[7] When reviewing a decision of the Review Board, our standard of review is

threefold: “(1) findings of basic fact are reviewed for substantial evidence; (2)

findings of mixed questions of law and fact […] are reviewed for

reasonableness; and (3) legal propositions are reviewed for correctness.” Recker

v. Rev. Bd. of Ind. Dep’t of Workforce Dev., 958 N.E.2d 1136, 1139 (Ind. 2011)

(citing McClain v. Rev. Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314, 1318

(Ind. 1998)). Further, “[w]e neither reweigh evidence nor judge the credibility

of witnesses; rather, we consider only the evidence most favorable to the

Review Board’s findings.” J.M. v. Rev. Bd. of Ind. Dep’t of Workforce Dev., 975

N.E.2d 1283, 1286 (Ind. 2012) (citing McClain, 693 N.E.2d at 1318)). We will

reverse the Review Board’s decision “only if there is no substantial evidence to

1

As an initial matter, we note that Z.C. has failed to include in his brief the appropriate standard of review in

violation of Indiana Appellate Rule 46(A)(8)(b); however, our “discretionary authority over the appellate

rules allows us to achieve our preference for decid[ing] cases on their merits rather than dismissing them on

procedural grounds.” In re D.J. v. Ind. Dep’t of Child Servs., 68 N.E.3d 574, 579 (Ind. 2017) (internal citation

and quotations omitted).

Court of Appeals of Indiana | Opinion 23A-EX-377 | July 13, 2023 Page 5 of 16

support the Review Board’s findings.” Id. Additionally, we note that Z.C. does

not challenge any of ALJ Prentice’s factual findings in the order denying his

waiver request. We accept unchallenged factual findings as true. See Moriarty v.

Moriarty, 150 N.E.3d 616, 627 (Ind. Ct. App. 2020) (citing Henderson v.

Henderson, 139 N.E.3d 227, 232 (Ind. Ct. App. 2019)), trans. denied.

I. Indiana Code 22-4-13-1(i): Repayment Waiver

[8] Z.C. argues that he qualifies for an overpayment waiver based on Indiana Code

section 22-4-13-1(i). That section provides that:

(i) Liability for the repayment of benefits paid to an individual (other

than an individual employed by an employer electing to make payments

in lieu of contributions [to the State unemployment insurance benefit

fund]) for any week may be waived […] if:

(1) the benefits were received by the individual without fault of

the individual;

(2) the benefits were the result of payments made: […]

(B) because of an error by the employer or the department;

and

(3) repayment would cause economic hardship to the individual.

Ind. Code § 22-4-13-1(i).

[9] We agree with the Review Board’s determination that Z.C. is not entitled to a

repayment waiver under Indiana Code section 22-4-13-1(i). To start, Z.C. was

ineligible for a waiver for his UI benefits overpayment because two of his

previous employers had elected “to make payments in lieu of contributions” to

Court of Appeals of Indiana | Opinion 23A-EX-377 | July 13, 2023 Page 6 of 16

the State unemployment insurance benefit fund, i.e., they are “reimbursable

employer[s].” Ind. Code § 22-4-13-1(i); Appellee’s App. Vol. II p. 8.

Specifically, Regent University, Liberty University, and Taylor University had

employed Z.C. during the periods in which he made claims and “Liberty

University and Taylor University are reimbursable employers.” Appellee’s

App. Vol. II p. 9. The unchallenged facts establish that Liberty and Taylor

Universities are categorized as “reimbursable employers” which made

“payments in lieu of contributions” and are therefore not waiver-eligible

employers under Indiana Code section 22-4-13-1(i). Appellee’s App. Vol. II p.

8; Ind. Code § 22-4-13-1(i). Consequently, and because Indiana Code section

22-4-13-1(i) is written in the conjunctive, Z.C. does not qualify for a waiver of

repayment for the excess UI benefits he received. See Baker v. Town of

Middlebury, 753 N.E.2d 67, 74 (Ind. Ct. App. 2001) (noting that a statute

written in the conjunctive means that a claimant must meet each element to be

successful under the statute), trans. denied.

[10] Additionally, we agree with the Review Board’s conclusion that Z.C. is not

eligible for a repayment waiver of his PEUC, FPUC, and LWA benefits. This

is a mixed question of law and fact which we review for reasonableness. J.M.,

975 N.E.2d at 1288. The Review Board’s decision here was reasonable. For

instance, Indiana Code section 22-4-13-1(i)(1) provides that an individual

cannot be eligible for a waiver if he is at fault for the overpayment. Further,

each federal-benefit program enables the Department to consider whether to

grant a waiver if a claimant meets certain requirements. The federal statutes

Court of Appeals of Indiana | Opinion 23A-EX-377 | July 13, 2023 Page 7 of 16

governing PEUC, FPUC, and LWA all enable the Department to waive

repayment if it determines that “the payment of [PEUC benefits] was without

fault on the part of [the claimant]”; “the payment of [FPUC benefits] or Mixed

Earner Unemployment Compensation was without fault on the part of [the

claimant]”; and “the payment of [LWA benefits] was without fault on the part

of [the claimant.]” 15 U.S.C. §§ 9025(e)(2), 9023(f)(2), and 9021(d)(4).

[11] Here, the unchallenged findings establish that Z.C. reported his wages

incorrectly despite his having access to the correct information. When

reporting his wages, Z.C. divided his contract wages by fifty-two weeks instead

of by the number of weeks that he had worked under each contract, leading to

his “underreport[ing] his wages on the vouchers for multiple weeks.”

Appellee’s App. Vol. II p. 8. Moreover, in accordance with the benefits

application, Z.C. had to read and sign a Benefit Rights Agreement, which had

included the requirement to report his wages and that he read the Claimant’s

Handbook, which contained another advisement regarding wage reporting.

Despite these advisements, Z.C. incorrectly reported his wages. ALJ Prentice

found, and the Review Board agreed, that Z.C.’s “failure to follow the

instructions provided to him during the claim application process and in the

Claimant Handbook and the resulting under-reporting of wages […] constituted

‘fault’ for the overpayment of benefits.” Appellee’s App. Vol. II p. 9.

[12] Because Z.C. had access to the correct information, and had, in fact, “read the

Benefit Rights Agreements and added his initials to each advisement[,]” and

“read the Claimant Handbook[,]” the Review Board reasonably concluded that

Court of Appeals of Indiana | Opinion 23A-EX-377 | July 13, 2023 Page 8 of 16

he had been at fault for misreporting his wages. Appellee’s App. Vol. II p. 8.

There is substantial evidence to support the Review Board’s decision and any

argument to the contrary is simply a request that we reweigh the evidence,

which we will not do. J.M., 975 N.E.2d at 1286.

II. Non-Waiver Statute Arguments

A. Estoppel

[13] Z.C. “claims equitable estoppel against [the Department] based on [its] Call

Center’s fiduciary failure[,]” or “misguidance and misinterpretations” of its

handbook. Appellant’s Br. p. 8. Specifically, he argues that our holding in

DenniStarr Environmental v. Indiana Department of Environmental Management, 741

N.E.2d 1284 (Ind. Ct. App. 2001), trans. denied, does not necessarily mean that

courts are prohibited from applying estoppel against the government, only that

they are reluctant to do so. Consequently, Z.C. argues that the Department

should be estopped from denying his waiver because representatives of the

Department misinformed him about the wage-reporting process during his

multiple phone calls with the Department. Again, we disagree.

[14] In DenniStarr, we denied the application of estoppel when a plaintiff alleged that

a state agency employee assured it that reimbursement for a remediation would

be available but ultimately was not. Id. at 1289. In rejecting the plaintiff’s

estoppel claim, we noted that “[c]ourts are reluctant to apply estoppel against

the government where a party claiming to have been ignorant of the facts had

access to the correct information.” Id. at 1290 (citing U.S. Outdoor Advert. Co. v.

Court of Appeals of Indiana | Opinion 23A-EX-377 | July 13, 2023 Page 9 of 16

Ind. Dep’t of Transp., 714 N.E.2d 1244, 1260 (Ind. Ct. App. 1999), trans. denied).

Further, we concluded that “misinformation provided by a government

employee is not a basis for estoppel because the government could be precluded

from functioning if it were bound by its employees’ unauthorized

representations.” Id. at 1289–90 (citing Nat’l Salvage & Serv. Corp. v. Comm’r of

Ind. Dep’t of Env’t Mgmt., 571 N.E.2d 548, 556 (Ind. Ct. App. 2001), trans.

denied). To conclude otherwise, we reasoned, “would grant incentive to entities

to ignore the legal obligations provided by statute and rely on misinformation

received from governmental employees.” Id. at 1290.

[15] Here, ALJ Prentice and the Review Board properly relied on DenniStarr in

denying Z.C.’s request for a waiver, despite any alleged misinformation

provided by the Department’s call center representatives. Like the plaintiff in

DenniStarr, Z.C. had access to the correct information. In fact, Z.C.

acknowledged that he had read the Claimant’s Handbook and the Benefit

Rights Agreements, which advised him of the process for reporting his wages

multiple times. As a result, ALJ Prentice and the Review Board reasonably

concluded that Z.C. was at fault for the overpayment, and we are likewise

reluctant to apply estoppel when Z.C. had access to the correct reporting

information. Z.C.’s argument to the contrary is essentially a request that we

reweigh the evidence, which we will not do. J.M., 975 N.E.2d at 1286.

Court of Appeals of Indiana | Opinion 23A-EX-377 | July 13, 2023 Page 10 of 16

B. ADA Accommodation

[16] The ADA requires that government agencies not exclude any individual with a

disability from participating in, or receiving benefits from, a public entity’s

service program or activity because of that individual’s disability. 42 U.S.C. §§

12131–12165; see also Perdue v. Gargano, 964 N.E.2d 825, 843 (Ind. 2012). Z.C.

argues that he has been diagnosed “by a licensed physician and clinician as

suffering from two clinical disorders.” Appellant’s Br. p. 13. Therefore, he

argues, it “stands to reason, based on [the Department]’s Theme and Goals […]

that the [Department] would have eagerly sought to provide confidently

accurate information when Z.C. disclosed his mental infirmities.” Appellant’s

Br. p. 13. However, this issue is waived for failure to make a cogent argument

or include citations to the record.

[17] Indiana Appellate Rule 46(A)(8)(a) provides that a party’s argument must be

“supported by cogent reasoning” and must include “citations to the authorities,

statutes, and the Appendix or parts of the Record on Appeal relied on[.]”

Z.C.’s argument on this point is devoid of any reference to the record. While

Z.C. is acting pro se, our case law is clear: “pro se litigants are held to the same

standards as licensed attorneys, and thus they are required to follow the

procedural rules.” Martin v. Hunt, 130 N.E.3d 135, 137 (Ind. Ct. App. 2019)

(citing Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied)

(emphasis added). Consequently, a pro se litigant “must be prepared to accept

the consequences of his or her action.” Ramsey v. Rev. Bd. of Ind. Dep’t of

Workforce Dev., 789 N.E.2d 486, 487 (Ind. Ct. App. 2003) (citing Mullis v.

Court of Appeals of Indiana | Opinion 23A-EX-377 | July 13, 2023 Page 11 of 16

Martin, 615 N.E.2d 498, 500 (Ind. Ct. App. 1993)). Put simply, neither ALJ

Prentice nor the Review Board found that Z.C. had a disability, and Z.C. does

not point to anything in the record indicating that he had argued the issue

below. Therefore, the issue is waived.

C. The CARES Act

[18] In arguing that he is eligible for a repayment waiver under the CARES Act,

Z.C. relies on letter issued by the U.S. Department of Labor addressing certain

scenarios in which states may apply waivers of repayment obligations.

Specifically, Z.C. argues that he “‘submitted required proof of earnings used to

calculate Pandemic Unemployment Assistance Weekly Benefit Amount and

the State incorrectly processed the calculation resulting in a higher weekly

benefit amount under the PUA program.’” Appellant’s Br. p. 14 (quoting U.S.

Dep’t of Labor, Unemployment Insurance Program Letter No. 20-21 (May 5,

2021), https://www.dol.gov/agencies/eta/advisories/unemployment-

insuranceprogram-letter-no-20-21). Thus, Z.C. argues that “[he] qualifies.” Id.

[19] We, however, disagree. Again, we note that Z.C. has failed to make an

argument “supported by cogent reasoning” and “citations to the authorities,

statutes, and the Appendix or parts of the Record on Appeal relied on[,]”

thereby waiving this issue for appellate review. Ind. App. R. 46(A)(8)(a). We

will not address arguments which are not developed and will not develop

arguments for a party to an appeal. Hay v. Hay, 885 N.E.2d 21, 24 n.2 (Ind. Ct.

App. 2008) (citing Ind. App. R. 46); Stark v. State, 204 N.E.3d 957, 963 (Ind. Ct.

Court of Appeals of Indiana | Opinion 23A-EX-377 | July 13, 2023 Page 12 of 16

App. 2023). Z.C.’s bald assertion that “[he] qualifies[,]” without more, results

in waiver. Appellant’s Br. p. 14.

D. The Department’s Alleged Negligence and

Mismanagement

[20] Z.C. claims that he should be eligible for a waiver due to the Department’s

“negligence, mismanagement, disorganization, [and] irresponsibility[.]”

Appellant’s Br. p. 16. Specifically, Z.C. argues that (1) the Department failed to

review quarterly employment reports quickly enough that it could have

discovered Z.C.’s misreporting sooner; (2) the Department never provided him

with records of his telephone calls with Department representatives, and “based

on several contradictory statements […] it is impossible to know whether the

[Department] had or has access to [those] call records […] from early 2020”;

and (3) that “Indianapolis news stations […] have comprehensively and

consistently investigated the [Department] based on complaints received by

Hoosiers concerning its negligence, mismanagement, disorganization, and

irresponsibility.” Appellant’s Br. pp. 11, 15–16.

[21] To start, Z.C. contends that, at his hearing, a representative of the Department

had explained that “employment verification […] occurs quarterly.”

Appellant’s Br. p. 11. Z.C. claims that had the Department followed its own

policy, it would have discovered that Z.C. was misreporting his wages and

could have deemed him ineligible for benefits after merely twelve weeks—not

eighty-five—and his overpayment balance would be nearly $33,000.00 less.

According to Z.C., the Department’s failure to follow its own “policy and

Court of Appeals of Indiana | Opinion 23A-EX-377 | July 13, 2023 Page 13 of 16

procedure led to this predicament.” Appellant’s Br. p. 12. We, however,

disagree.

[22] Contrary to Z.C.’s argument, the Department discovered the overpayment and

sought repayment within the statutory timeframe. Indiana Code section 22-4-

13-1(a)(1) provides that “the [D]epartment has four (4) years from the date of

[its] discovery of the overpayment to send notification to the individual of

possible overpayment[.]” Here, Z.C. began receiving benefits in February of

2020 and the Department Z.C. notified Z.C. that he had been overpaid in July

of 2022. Therefore, the Department was clearly within the statutory timeframe

during which it could notify Z.C. of the overpayment and begin seeking

repayment.

[23] Moreover, Z.C.’s argument that he received no records of his telephone calls

with representatives of the Department is unavailing. Z.C. explains that “each

time [he] called” the Department and the representatives gave him “quick, but

confident reassurance for how [he] was completing weekly wages earned[.]”

Appellant’s Br. p. 15. Z.C. claims that some of the Department’s call center

representatives informed him that the Department purged phone records after

two years and others informed him that some records from early 2020 may be

accessible. Again, Z.C. fails to support his argument with citations to the

record or to relevant authorities; therefore, the issue is waived. See Ind. R. App.

46(A)(8); Ramsey, 789 N.E.2d at 490. Waiver aside, we have already

determined that ALJ Prentice and the Review Board reasonably concluded that

Z.C. was at fault because he had access to, and acknowledged that he had read,

Court of Appeals of Indiana | Opinion 23A-EX-377 | July 13, 2023 Page 14 of 16

the correct wage-reporting procedures in the Claimant Handbook and the

Benefit Rights Agreements.

[24] Further, Z.C. lists a series of news stories relating to “complaints by Hoosiers

concerning [the Department’s] negligence, mismanagement, disorganization,

and irresponsibility.” Appellant’s Br. p. 16. Without arguing how the

Department’s alleged negligence affected him specifically, Z.C. asks us to

“consider the [news stories] as supporting evidence of [the Department’s] recent

history of negligence, mismanagement, disorganization and irresponsibility.”

Appellant’s Br. p. 16. Z.C. has also waived his argument on this point for

failing to develop it. See Hay, 885 N.E.2d at 24.

E. Timely Exchange of Exhibits

[25] Lastly, Z.C. argues that the Department failed to provide him with an exhibit

list before the waiver hearing scheduled for January 3, 2023, which was later

rescheduled for January 11, 2023. Z.C.’s argument on this issue lacks any

citations to facts in the record supporting this contention; therefore, he has

waived this issue for appellate review. Price v. Rev. Bd. of Ind. Dep’t of Workforce

Dev., 2 N.E.3d 13, 16 (Ind. Ct. App. 2013). Ultimately, Z.C. asks us to reweigh

the evidence, which we will not do. J.M., 975 N.E.2d at 1286. Reviewing all

evidence most favorably to the Review Board’s conclusion, we cannot say that

its decision is unsupported by substantial evidence. Id.

[26] The judgment of the Review Board is affirmed.

Court of Appeals of Indiana | Opinion 23A-EX-377 | July 13, 2023 Page 15 of 16

Riley, J., and Weissmann, J., concur.

Court of Appeals of Indiana | Opinion 23A-EX-377 | July 13, 2023 Page 16 of 16