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Appealing to the court of appeals
- Thread starter Jc1008
- Start date
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Well I posted on here before about doing an appeal for an unemployment hearing. I did the appeal to the industrial claim appeals office, they said that they affirm and do not change the hearing officers decision. One paragraph they wrote says the claimant refers to conflicting evidence in the record and to her testimony to argue that there is support for her position that she acted appropriately in the circumstances. The claimant also provides additional factual assertions but we may not consider the additional information. We have reviewed the record and find no reversible error.
This is the final appeal unless I appeal to the Colorado Court of Appeals which I'm going to do. My question is when I do this should I put in all the facts that put in my initial appeal to the industrial claim appeals office? And then should I also put in where I feel the Industrial Claims Appeal Office is incorrect on their interpretation of the hearing officer decision? I don't want to come off wrong in my final attempt to seek justice. I know that sounds corny but it is just so unfair that my ex-boss does this to his employees and seems to always get away with it and it irritates me that he lied under oath and gets away with it. I will be very grateful to hear any other suggestions or thoughts from those knowledgeable in this area. Thank you
This is the final appeal unless I appeal to the Colorado Court of Appeals which I'm going to do. My question is when I do this should I put in all the facts that put in my initial appeal to the industrial claim appeals office? And then should I also put in where I feel the Industrial Claims Appeal Office is incorrect on their interpretation of the hearing officer decision? I don't want to come off wrong in my final attempt to seek justice. I know that sounds corny but it is just so unfair that my ex-boss does this to his employees and seems to always get away with it and it irritates me that he lied under oath and gets away with it. I will be very grateful to hear any other suggestions or thoughts from those knowledgeable in this area. Thank you
I don't know what you're supposed to do to get to the court of appeals, but I'd really like it if you documented the steps you took.
Unless there is more to the story, this is correct. The ALJ is the one that resolves conflict in testimony and is given the power to decide who is telling the truth.
For example: In a case where you were disqualified for not following the employer's call-off procedures. You might say you called an hour before your shift. The employer might say you didn't. If the ALJ says that you didn't call in, then that means that the ALJ believed the employer and not you, and there is not a dang thing you can do about it. What really happened doesn't matter, only truth as determined by the ALJ is what matters.
In your case, "to her testimony" that is why it won't be changed. However, if the employer had testified to something and the ALJ had misquoted, or the employer had testified one way at a point in the hearing, and changed their story at a later point in the hearing, then that is something worth mentioning. Also, if there had been a phone record admitted into evidence showing that a call was made from your phone to the employer at the correct time to support that you actually did follow the call-off procedures, you could use that also because it's possible the ALJ ignored it or forgot it about it. However, if you could have brought the phone record and didn't, then you don't get to do it later.
This is covered by the "no new evidence" rule. If you could have testified or submitted documents at the hearing, and you didn't or forgot, too bad. You don't get to do it later. However, if it wasn't possible to produce the evidence at the hearing at that time, that can make a difference. Imagine that you quit your job over a safety issue, and were disqualified as a quit without good cause. If you'd reported the violation to OSHA, and OSHA's findings were that the employer's work place was a death trap and wasn't available at the time of the hearing, that might be just the ticket to overcome an ALJ's finding of fact that the employer's work place was safe based on nothing more than the employer's testimony that it was safe vs the claimant's that it was not.
One paragraph they wrote says the claimant refers to conflicting evidence in the record and to her testimony to argue that there is support for her position that she acted appropriately in the circumstances.
Unless there is more to the story, this is correct. The ALJ is the one that resolves conflict in testimony and is given the power to decide who is telling the truth.
For example: In a case where you were disqualified for not following the employer's call-off procedures. You might say you called an hour before your shift. The employer might say you didn't. If the ALJ says that you didn't call in, then that means that the ALJ believed the employer and not you, and there is not a dang thing you can do about it. What really happened doesn't matter, only truth as determined by the ALJ is what matters.
In your case, "to her testimony" that is why it won't be changed. However, if the employer had testified to something and the ALJ had misquoted, or the employer had testified one way at a point in the hearing, and changed their story at a later point in the hearing, then that is something worth mentioning. Also, if there had been a phone record admitted into evidence showing that a call was made from your phone to the employer at the correct time to support that you actually did follow the call-off procedures, you could use that also because it's possible the ALJ ignored it or forgot it about it. However, if you could have brought the phone record and didn't, then you don't get to do it later.
The claimant also provides additional factual assertions but we may not consider the additional information.
This is covered by the "no new evidence" rule. If you could have testified or submitted documents at the hearing, and you didn't or forgot, too bad. You don't get to do it later. However, if it wasn't possible to produce the evidence at the hearing at that time, that can make a difference. Imagine that you quit your job over a safety issue, and were disqualified as a quit without good cause. If you'd reported the violation to OSHA, and OSHA's findings were that the employer's work place was a death trap and wasn't available at the time of the hearing, that might be just the ticket to overcome an ALJ's finding of fact that the employer's work place was safe based on nothing more than the employer's testimony that it was safe vs the claimant's that it was not.
My original post titled are there similar cases but I can refer to dated 4-16-16 on page 4 of this forum may spark a memory. I believe you were the one who gave me advice on what to put in my appeal and and I put everything you suggested in!
To get where I'm at now first filed for unemployment, in which that was denied. Then I appealed it and it went to a hearing officer. My employer didn't file his paperwork in time so he was not allowed to say anything or come into the hearing so I did my part and I won the case. The hearing officer said that that was an unreasonable request made by the employer. Then my employer appealed it stating that he had given his power of attorney to our payroll who is Paychex and they never received the paperwork to turn in the information that was requested in time. So then we did a hearing to see if they were allowed to speak at the hearing which they were granted. Then we got an email and we had to answer questions via email in which case I won that and unemployment benefits were given. But then the employer appeal that in which brought us to the case that I wrote about on the Forum which then my unemployment benefits were denied. So I had to write into the industrial claim appeals office in which I wrote a lovely 4 page appeal citing seven different inaccuracies in the testimonies with the times on the cd of the hearing they were said so they could hear for themselves. I also mentioned the things that were recommended by you about the legitimate fear, the substantial change to employment and not having to accept adverse changes to the terms and conditions of employment. I talked about not being able to modify a written contract verbally. I feel these things should have been known by the hearing officer in the first place! And I don't consider these things new evidence do you?
Also in this industrial claims appeal letter given to me it states, "moreover in connection with her weighing of the evidence it is the hearing officers responsibility to determine the approximate or motivating cause of the separation from employment, which then establishes his entitlement to unemployment benefits. Here, the hearing officer found that the employer discharge the claimant on grounds that she refused to provide documentation requested by the employer the hearing officer was persuaded that the request was reasonable and the claimant does not dispute the reasonableness of the employer's request." This paragraph bothers me because it makes me feel as though they didn't hear everything that I said. But then in another paragraph they write, " claimant does take issue with the employer's further request that she sign a document on a Friday that required her to provide that information by the following Monday. The hearing officer made many finding surrounding the interaction of the parties concerning the document. As we understand the hearing officers decision, the claimants refusal to provide the requested documentation resulted in her discharge and the hearing officer was not persuaded that the claimants refusal to sign the document excused the claimants refusal to provide the requested documentation." I said yes it was a reasonable request to ask for proof that I have medical insurance. I said what wasn't reasonable was the amount of time given to me and the consequences of being docket $500 for every month I did not have the invoice for on my next paycheck if i didnt get it in on time. That is why I asked for an extension of time or to be able to show some other proof in which the doctor said I can give a bank statement to show that it came out automatically. The people who are assigned to do these cases I wonder if they just rush through it and don't take their time to actually listen to everything and then read what was written in the appeal and make conclusions that way because to me it's obvious that it was an unreasonable request. But im no lawyer and maybe there is something in missing.
To get where I'm at now first filed for unemployment, in which that was denied. Then I appealed it and it went to a hearing officer. My employer didn't file his paperwork in time so he was not allowed to say anything or come into the hearing so I did my part and I won the case. The hearing officer said that that was an unreasonable request made by the employer. Then my employer appealed it stating that he had given his power of attorney to our payroll who is Paychex and they never received the paperwork to turn in the information that was requested in time. So then we did a hearing to see if they were allowed to speak at the hearing which they were granted. Then we got an email and we had to answer questions via email in which case I won that and unemployment benefits were given. But then the employer appeal that in which brought us to the case that I wrote about on the Forum which then my unemployment benefits were denied. So I had to write into the industrial claim appeals office in which I wrote a lovely 4 page appeal citing seven different inaccuracies in the testimonies with the times on the cd of the hearing they were said so they could hear for themselves. I also mentioned the things that were recommended by you about the legitimate fear, the substantial change to employment and not having to accept adverse changes to the terms and conditions of employment. I talked about not being able to modify a written contract verbally. I feel these things should have been known by the hearing officer in the first place! And I don't consider these things new evidence do you?
Also in this industrial claims appeal letter given to me it states, "moreover in connection with her weighing of the evidence it is the hearing officers responsibility to determine the approximate or motivating cause of the separation from employment, which then establishes his entitlement to unemployment benefits. Here, the hearing officer found that the employer discharge the claimant on grounds that she refused to provide documentation requested by the employer the hearing officer was persuaded that the request was reasonable and the claimant does not dispute the reasonableness of the employer's request." This paragraph bothers me because it makes me feel as though they didn't hear everything that I said. But then in another paragraph they write, " claimant does take issue with the employer's further request that she sign a document on a Friday that required her to provide that information by the following Monday. The hearing officer made many finding surrounding the interaction of the parties concerning the document. As we understand the hearing officers decision, the claimants refusal to provide the requested documentation resulted in her discharge and the hearing officer was not persuaded that the claimants refusal to sign the document excused the claimants refusal to provide the requested documentation." I said yes it was a reasonable request to ask for proof that I have medical insurance. I said what wasn't reasonable was the amount of time given to me and the consequences of being docket $500 for every month I did not have the invoice for on my next paycheck if i didnt get it in on time. That is why I asked for an extension of time or to be able to show some other proof in which the doctor said I can give a bank statement to show that it came out automatically. The people who are assigned to do these cases I wonder if they just rush through it and don't take their time to actually listen to everything and then read what was written in the appeal and make conclusions that way because to me it's obvious that it was an unreasonable request. But im no lawyer and maybe there is something in missing.
I remember your thread. When I asked about going to the court of appeals, I didn't mean starting at the beginning. I just wanted to know how you get there when you actually do it. However, I'm glad for the narrative that you provided because it shows where you may have made some mistakes.
This is great because it shows that your story did have merit depending on who heard it. The problem is that I think it made you complacent. Many that deal with subsequent UI issues then think, "I already won once," and then don't do so well during the next go round.
I'm going to assume that the decision was pretty much "there wasn't good cause to be late with the submission." Then again it could be that everything was remanded back to the very beginning to start things over. It's the "via email" part has me scratching my head as to where you actually ended up in the process.
There was probably two steps in here. The employer went to the Industrial Commission. (Did you get a chance to respond or write why the decision was correct to deny a rehearing? Did you take advantage of the opportunity?) Then was a new or de novo hearing held or was it a reopening?
If this is the part where you took what I suggested, I said those things without knowing that there was a LOT more history involved. If you had a new hearing rather than a reopening, those earlier records are thrown out. You'd have to repeat yourself to get that same evidence and testimony on the new record. The old record would only be useful to the opposing side to impeach your testimony if your story changed if they brought it up at the new hearing.
Yeah, it could be new evidence if you're relying on the fact that you said it in a previous step, but didn't say it on THIS record.
They used your own words against you.
I wasn't there from the beginning, and as your story progresses it gets more involved. Use your winning decisions to decide what is important to focus on, and try not to point to things that just bring someone's attention to things that support the losing position.
Another thing to consider is whether the employer should have really been excused for being late. If the employer didn't really have good cause to get reinserted back into the process, then everything that came after is thrown out, and the more recent winning decision for you gets put back in place. However, it may be too late for that now.
You're kind of on your own. I know from reading court of appeal paperwork in my state that it's not even guaranteed that you'll get to present a case. You have to get permission first, and there are plenty of applications that get denied.
Then I appealed it and it went to a hearing officer. My employer didn't file his paperwork in time so he was not allowed to say anything or come into the hearing so I did my part and I won the case. The hearing officer said that that was an unreasonable request made by the employer.
This is great because it shows that your story did have merit depending on who heard it. The problem is that I think it made you complacent. Many that deal with subsequent UI issues then think, "I already won once," and then don't do so well during the next go round.
Then my employer appealed it stating that he had given his power of attorney to our payroll who is Paychex and they never received the paperwork to turn in the information that was requested in time. So then we did a hearing to see if they were allowed to speak at the hearing which they were granted. Then we got an email and we had to answer questions via email in which case I won that and unemployment benefits were given.
I'm going to assume that the decision was pretty much "there wasn't good cause to be late with the submission." Then again it could be that everything was remanded back to the very beginning to start things over. It's the "via email" part has me scratching my head as to where you actually ended up in the process.
But then the employer appeal that in which brought us to the case that I wrote about on the Forum which then my unemployment benefits were denied.
There was probably two steps in here. The employer went to the Industrial Commission. (Did you get a chance to respond or write why the decision was correct to deny a rehearing? Did you take advantage of the opportunity?) Then was a new or de novo hearing held or was it a reopening?
So I had to write into the industrial claim appeals office in which I wrote a lovely 4 page appeal citing seven different inaccuracies in the testimonies with the times on the cd of the hearing they were said so they could hear for themselves. I also mentioned the things that were recommended by you about the legitimate fear, the substantial change to employment and not having to accept adverse changes to the terms and conditions of employment. I talked about not being able to modify a written contract verbally. I feel these things should have been known by the hearing officer in the first place! And I don't consider these things new evidence do you?
If this is the part where you took what I suggested, I said those things without knowing that there was a LOT more history involved. If you had a new hearing rather than a reopening, those earlier records are thrown out. You'd have to repeat yourself to get that same evidence and testimony on the new record. The old record would only be useful to the opposing side to impeach your testimony if your story changed if they brought it up at the new hearing.
Yeah, it could be new evidence if you're relying on the fact that you said it in a previous step, but didn't say it on THIS record.
. . . was persuaded that the request was reasonable and the claimant does not dispute the reasonableness of the employer's request." . . . I said yes it was a reasonable request to ask for proof that I have medical insurance.
They used your own words against you.
The people who are assigned to do these cases I wonder if they just rush through it and don't take their time to actually listen to everything and then read what was written in the appeal and make conclusions that way because to me it's obvious that it was an unreasonable request. But im no lawyer and maybe there is something in missing.
I wasn't there from the beginning, and as your story progresses it gets more involved. Use your winning decisions to decide what is important to focus on, and try not to point to things that just bring someone's attention to things that support the losing position.
Another thing to consider is whether the employer should have really been excused for being late. If the employer didn't really have good cause to get reinserted back into the process, then everything that came after is thrown out, and the more recent winning decision for you gets put back in place. However, it may be too late for that now.
You're kind of on your own. I know from reading court of appeal paperwork in my state that it's not even guaranteed that you'll get to present a case. You have to get permission first, and there are plenty of applications that get denied.