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Divided COA allows suit after wage claim fails at Department of Labor

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A worker who left employment at a Columbus construction company may pursue his wage claim in court after his complaint had been assigned to the Indiana Department of Labor, a divided panel of the Indiana Court of Appeals ruled.

A Bartholomew Superior Court ruling dismissed with prejudice John Fox v. Nichter Construction Co., Inc., 03A01-1202-SC-52, on the basis that the court lacked jurisdiction because Fox had assigned his claim to the DOL in 2010. The agency has changed procedures and as of this year no longer requires that wage complaints be assigned to the department, the court noted.

The trial court denied Fox’s motion to correct error when he received a referral letter from the DOL. In its nonbinding administrative review, the DOL had found he was “ineligible to receive vacation payout,” but the letter said he could file suit.

“We reverse the trial court’s order and remand this matter to the trial court with instructions to enter an order that Fox’s claim is dismissed without prejudice under Indiana Trial Rule 12(B)(6) for failure to state a claim upon which relief can be granted, including the failure to name the real party in interest,” Judge Kirsch wrote in an opinion joined by Judge Edward Najam.

“Thus, Fox may proceed to refile his claim setting forth the reassignment by the DOL.”

Judge Melissa May dissented and would affirm the trial court.  

“Fox chose to pursue his wage claim through the Wage Claim statute, and not the Wage Payment statute. That choice had the effect of precluding any future judicial action because he assigned his claim to the DOL and sought a resolution through the DOL,” May wrote.

The DOL no longer requiring assignment of claims is “a helpful step toward clarifying the procedures by which a voluntarily-separated employee may pursue wage claims,” she wrote, but said Quimby v. Becovic Mgmt Group, Inc., 946 N.E.2d 30, 33-34 (Ind. Ct. App. 2011) controls the Fox case.

“Both Fox and Quimby were voluntarily-separated employees who chose to pursue their claims through the DOL, and the DOL obtained a resolution in both instances. In light of the DOL’s policies and procedures in place at the time of their claims, both parties were, therefore, precluded from a second bite at the proverbial apple,” she wrote.

 

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  1. He TIL team,please zap this comment too since it was merely marking a scammer and not reflecting on the story. Thanks, happy Monday, keep up the fine work.

  2. You just need my social security number sent to your Gmail account to process then loan, right? Beware scammers indeed.

  3. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: http://media.star-telegram.com/Munchausenmoms/ Here are the two research papers: http://www.sciencedirect.com/science/article/pii/0145213487900810 http://www.sciencedirect.com/science/article/pii/S0145213403000309 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

  4. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  5. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

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