THIS MEMORANDUM DECISION, PURSUANT TO APPELLATE RULE 15(A)(3), SHALL NOT BE REGARDED AS PRECEDENT NOR CITED BEFORE ANY COURT EXCEPT FOR THE PURPOSE OF ESTABLISHING THE DEFENSE OF RES JUDICATA, COLLATERAL ESTOPPEL OR THE LAW OF THE CASE.


ATTORNEY PRO SE:    ATTORNEY FOR APPELLEE:

DEBRA CHRISTMAN     JEFFREY A. MODISETT
Citrus Springs, Florida    Attorney General of Indiana

             PHILLIP D. HATFIELD
            Deputy Attorney General
            Indianapolis, Indiana


IN THE
COURT OF APPEALS OF INDIANA


DEBRA CHRISTMAN,    )
            )
    Appellant-Claimant,    )
            )
        vs.    )    No. 93A02-9702-EX-111
            )
THE INDIANA DEPARTMENT OF     )
WORKFORCE DEVELOPMENT and PORTER    )
COUNTY AUDITOR'S OFFICE,    )
            )
    Appellee-Employer.    )


APPEAL FROM THE REVIEW BOARD OF THE INDIANA DEPARTMENT OF
WORKFORCE DEVELOPMENT
The Honorable John Meyer, Administrative Law Judge
Cause No. 96-A-9091/96-R-1656



October 6, 1997

MEMORANDUM DECISION - NOT FOR PUBLICATION

BAKER, Judge
    Appellant-claimant Debra Christman challenges the decision of the Review Board of the Indiana Department of Workforce Development (Review Board) denying her unemployment benefits. Specifically, she contends that the Review Board improperly found that she was terminated for just cause. She further contends that the administrative law judge (ALJ) erroneously denied her motion for a continuance.
FACTS
    In 1987, Debra Christman began employment as a court reporter for Judge Roger V. Bradford of the Porter Superior Court. In the spring of 1995, Judge Bradford noticed that Debra had been frequently leaving the courthouse without informing him of her whereabouts. As a result, he instructed all of his employees to notify him in the event they were to be absent from work for any reason. In the spring of 1996, Judge Bradford noticed that Debra continued to be absent from work without notifying him. Therefore, he asked his bailiff, Nancy, to maintain a record of Debra's attendance. After several months, Nancy discovered that Debra had not shown up for work on numerous occasions and failed to inform any court personnel of her absence. As a result, Judge Bradford terminated Debra's employment on August 6, 1996.
    Subsequently, Debra filed a claim for unemployment benefits with the Indiana Department of Workforce Development. After determining that Debra had not been terminated for just cause, the claims deputy granted Debra unemployment benefits. The Porter County Auditor's Office on behalf of the county then appealed the deputy's decision to the Review Board.

    A hearing on the appeal was scheduled for October 24, 1996. On the morning of the hearing, Debra's mother called the ALJ who was to preside over the appeal, explained to him that Debra would be unable to attend the hearing because of her new job and asked for a continuance on Debra's behalf. The ALJ, however, denied Debra a continuance and proceeded with the hearing, reversing the claims deputy's decision. In particular, the ALJ found that because Debra refused to obey Judge Bradford's instructions, requiring his employees to inform him of their absences, she had been terminated for just cause. The Review Board subsequently adopted and incorporated the ALJ's findings of fact and conclusions of law. Debra now appeals.

DISCUSSION AND DECISION
    Debra claims that the Review Board erroneously denied her unemployment benefits for the following reasons: 1) the evidence did not support the Review Board's conclusion that Debra failed to obey Judge Bradford's instruction requiring her to inform him of her absences; 2) the Review Board failed to issue findings separate from those entered by the ALJ; and 3) the ALJ improperly denied her motion for continuance. We address each contention in turn.
I. Termination For Just Cause     
    First, Debra contends that the Review Board's conclusion that she failed to obey Judge Bradford's instructions is not supported by the evidence. Whether an employee has been discharged for good cause is a question of fact to be determined by the Review Board. Wade v. Review Bd. of Indiana of Employment and Training Services, 599 N.E.2d 630, 632 (Ind.

Ct. App. 1992). This court will not reweigh the evidence and will consider only the evidence supporting the Review Board's decision. Id. We will reverse only if reasonable persons would be bound to reach a conclusion opposite that of the Review Board. Id. On appeal from the denial of unemployment benefits, the claimant bears the burden of showing that the Review Board erred. Butler v. Review Bd. of Indiana Dep't of Employment and Training Services, 633 N.E.2d 310, 312 (Ind. Ct. App. 1994).
    An employee who has been discharged from her employment for just cause is ineligible for unemployment benefits. I ND . C ODE § 22-4-15-1(a). The employer bears the burden of establishing a prima facie case of good cause which may be shown by evidence that an employee refused to obey an employer's instructions. Russell v. Review Bd. of Indiana Dep't of Employment and Training Services, 586 N.E.2d 942, 948 (Ind. Ct. App. 1992); I.C. § 22-4-15-1(d)(5).
    Here, the record reveals that during the hearing before the ALJ, Judge Bradford testified that he informed his court employees to contact him if they were unable to attend work. R. at 32. He further testified that on several occasions, thereafter, Debra had failed to come to work, without notifying him and, therefore, he terminated her employment. R. at 34-37. This evidence sufficiently supports the Review Board's decision that Debra had been terminated for just cause for failing to obey Judge Bradford's instructions.     
     Nevertheless, Debra contends that the Review Board's conclusion, that Debra was fired for failing to obey Judge Bradford's instructions, did not conform to the county's stated grounds for discharge and the evidence presented at the hearing. In particular, Debra

contends that the county offered evidence that Debra was fired for failing to follow a reasonable and uniformly enforced rule and, therefore, its conclusion that she failed to obey instructions is erroneous. We disagree.
    Contrary to Debra's assertions, the record reveals that the county sought to establish Debra's termination for just cause based on both her failure to obey instructions and on her failure to follow a reasonable and uniformly established rule. R. at 30. Although the county may have proceeded on two alternative grounds and offered evidence in support of each, the Review Board was only required to find one. Trigg v. Review Bd. of Indiana Employment Sec. Div., 445 N.E.2d 1010, 1013 (Ind. Ct. App. 1983). As previously stated, the evidence presented at the hearing sufficiently supported the Review Board's decision that Debra was terminated for good cause because she failed to follow Judge Bradford's instructions. Thus, the Review Board's conclusion did conform to the county's grounds for discharge and the evidence presented at the hearing and, therefore, it is irrelevant whether the county presented additional evidence supporting an alternative reason for termination. As a result, we find no error.See footnote 1

II. The Review Board's Findings
    Debra also argues that the Review Board failed to issue findings separate from the ALJ and, therefore, she was unable to determine whether she was terminated for violating

a reasonable and uniform rule pursuant to I.C. § 22-4-15-1(d)(2) or for refusing to obey instructions pursuant to I.C. § 22-4-15-1(d)(5). Initially, we note that the Review Board is not required to issue findings and conclusions separate from those of the ALJ. Pursuant to I ND . C ODE § 22-4-17-5(E), the Review Board "may . . . affirm, modify, set aside, remand, or reverse the findings, conclusions, or orders" of the ALJ. Therefore, the Review Board did not err by adopting the ALJ's findings and conclusions. Further, as we have already determined, the evidence sufficiently supported the Review Board's conclusion that Debra was terminated because she refused to obey Judge Bradford's instructions. Therefore, Debra was properly informed that she was terminated because she failed to obey Judge Bradford's instructions.

III. Motion For Continuance
    Finally, Debra contends that the ALJ abused its discretion in denying her motion for a continuance. In particular, she argues that she had established good cause to continue the hearing because her obligations associated with her new job prevented her from attending. She further alleges that based on her procurement of a new job, the ALJ's denial of her motion for continuance flies "in the face of the stated policy" of I ND . C ODE § 22-4-1-1, which provides for the "encouragement of desirable stable employment." Appellant's Brief at 12. Finally, Debra contends that the ALJ failed to recognize his power to grant her motion sua sponte.
    A party seeking a motion to continue a hearing before an ALJ must file a written application no later than three days before the hearing date. I ND . A DMIN . C ODE tit. 646, r.

3-12-4(a) (1996). In the instant case, Debra's mother contacted the ALJ by telephone on the day of the hearing. However, Debra did not contact the court at least three days prior to the hearing as required. Therefore, she did not timely file her motion for continuance and, as a result, the ALJ did not abuse its discretion in denying her motion.
    Nevertheless, Debra contends that the denial of her motion violated our state's policy of encouraging Hoosiers to seek employment because she was unable to attend the hearing on account of her new employment. We disagree.
    As Debra contends, I.C. § 22-4-1-1 encourages all Hoosiers to be gainfully employed. However, this statute does not excuse a party, who seeks a continuance, from filing a written motion at least three days prior to the hearing. Had Debra made a proper request, the ALJ would have considered her motion. Furthermore, we fail to see how Debra's presence would have changed the result of the hearing. Debra does not dispute the fact that she failed to follow Judge Bradford's instructions to notify him of her absence from the court. Therefore, we fail to see how she was prejudiced by her inability to attend the hearing.
    Finally , we reject Debra's contention that the ALJ failed to recognize his ability to grant her motion for continuance on his own motion. Pursuant to I.A.C. tit. 646, r. 3-12-4(a) (1996), an ALJ "may continue any hearing upon its own motion or upon written application of any party to the appeal." (emphasis added). However, nothing in the record indicates that the ALJ believed he was precluded from granting Debra's motion for continuance sua sponte; rather, the ALJ denied Debra's motion for failing to follow the proper procedures for requesting a continuance. Therefore, we find no error.

    Judgment affirmed.
ROBERTSON, J., and SULLIVAN, J., concur.

Footnote:     1 Debra also contends that the county failed to prove that Judge Bradford's rule, requiring his employees to notify him of their absences, was uniformly enforced and written. However, because we have already determined that the Review Board based Debra's termination on her refusal to obey instructions, and not upon her failure to follow a reasonable and uniformly enforced rule, we need not address her argument.

Converted from WP6.1 by the Access Indiana Information Network