Bateman v. Howard Johnson Co.

• Citation: 292 So.2d 228
• Decision Date: 25 March 1974
• Docket Number: No. 53651,53651
• Parties: Rosie Adams BATEMAN v. HOWARD JOHNSON COMPANY and F. C. Doyal, Administrator, Louisiana Department of Employment Security.
• Court: Louisiana Supreme Court

Page 228

292 So.2d 228

Rosie Adams BATEMAN v. HOWARD JOHNSON COMPANY and F. C. Doyal, Administrator,

Louisiana Department of Employment Security.

No. 53651.

Supreme Court of Louisiana.

March 25, 1974.

Jerry H. Smith, Staff Atty., Legal Aid Society of Baton, Rouge, Baton Rouge, for plaintiff-applicant.

Marion Weimer, Baton Rouge, for Dept. of Employment Security.

BARHAM, Justice.

Rosie Adams Bateman applied for unemployment benefits based on her employment by Howard Johnson Company as a short order cook. The Louisiana Department of Employment Security disqualified plaintiff from receiving benefits, a decision that was appealed and affirmed by the Appeals Referee. The Louisiana Board of Review rejected the appeal and affirmed the Appeals Referee. Plaintiff then resorted to the courts where the Administrator of the Department of Employment Security alleged that the court's jurisdiction was limited to questions of law only by R.S. 23:1634. He then presented two questions of law for decision: (1) are the findings of fact supported by sufficient, legal, competent evidence as a matter of law; and (2) based on said findings, are the Board's legal conclusions correct as a matter of law? The administrative decision was upheld by the Nineteenth Judicial District Court and by the First Circuit Court of Appeal. La.App., 277 So.2d 764 (1973). We granted plaintiff's writ application. 279 So.2d 692 (La.1973). The Department chose not to argue or brief the case and submitted it on the record.

The Appeals Referee made the following finding of facts:

'The claimant worked for the above employer for seven days as a short-order cook for a rate of pay of $1.93 per hour. She was working from 6:00 p.m. until 11:00 p.m. each day. Her last night of employment with the company was the night of the curfew in Baton Rouge that began at approximately 9:00 p.m. The claimant was unable to obtain transportation home from her job and did not return after being employed for only a couple of days. The claimant was aware that there was no public transportation available after approximately 7:00 p.m. each evening. The claimant on many occasions had to pay a taxi to go home each night. The company does not provide transportation to and from work for its employees.'

There is no evidence to support the finding that the plaintiff knew there was no public transportation available after 7:00 p.m. In fact, at the hearing, claimant testified, '* * * and I didn't know that the bus stopped running after 6 o'clock * * *.' The record clearly establishes that public transportation was unavailable at the time plaintiff's work shift ended and that she was forced to take a taxi home each evening at a cost of $3.80. Her last day of employment the city of Baton Rouge was under a curfew following a racial disturbance and no transportation was available. Additionally, claimant attempted to secure transportation from family, friends, and co-workers the days she worked at Howard Johnson's.

The reason plaintiff gave for quitting her job was the lack of transportation. R.S. 23:1601(1) provides in pertinent part:

'An individual shall be disqualified for benefits:

(1) If the administrator finds that he has left his employment without good cause connected with his employment.'

Where an employee terminates his employment for purely personal reasons, he is not entitled to receive benefits under this act. Hargrove v. Brown, 247 La. 689, 174 So.2d 120 (1965). To determine what is 'good cause connected with the employment' it is necessary to examine another section of the act. R.S. 23:1601(3)(a) provides:

'In determining whether or not any work is suitable for an individual, the administrator shall consider the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence.'

The availability and cost of transportation to and from a job is a factor in determining the suitability of employment. Where transportation is unavailable or available only at prohibitive cost it may render the employment unsuitable. See Immel v. Brown, 143 So.2d 156 (La.App.3rd Cir. 1962); Johnson v. Administrator, Division of Employment Security, 166 So.2d 366 (La.App.3rd Cir. 1964). Workers who quit their jobs because their transporation ceased have been held entitled to benefits since their reason for leaving were employment connected. See Haskett v. Brown, 165 So.2d 25 (La.App.2d Cir. 1964); Brown v. Brown, 153 So.2d 190 (La.App.2d Cir. 1963). This employee had to pay forty per cent of her wages for transportation ($4.10 out of a gross pay of $9.65). Termination of her employment was for good cause connected with her employment.

The judgments of the lower courts are reversed. The Louisiana Department of Employment Security is ordered to pay unemployment compensation to Rosie Adams Bateman.

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice (dissenting).

Rosie Adams Bateman filed a claim for unemployment insurance benefits effective December 26, 1971, based on her employment by Howard Johnson Company. La.R.S. 23:1471--23:1713. The Louisiana Department of Employment Security disqualified plaintiff from receiving benefits. The decision was appealed, and the Appeals Referee affirmed. From this determination, claimant appealed to the Louisiana Board of Review, which rejected the appeal and affirmed the Appeals Referee.

After exhausting these administrative remedies, claimant sought judicial review in the Nineteenth Judicial District Court, Parish of East Baton Rouge. Claimant's petition was answered by the Administrator of the Department of Employment Security, alleging that the court's jurisdiction was limited to questions of law only by Section 1634 and that two questions of law were presented for decision:

(1) Are the findings of fact supported by sufficient, legal, competent evidence as a matter of law; and (2) based on said findings, are the Board's legal conclusions correct as a matter of law? After due proceedings, judgment was rendered upholding the Board of Review. On appeal to the First Circuit, the judgment was again affirmed. La.App., 277 So.2d 764. Certiorari was granted on claimant's application. La., 279 So.2d 692. Only claimant has appeared and briefed the case in this Court.

The facts as found by the Appeals Referee are stated to be:

The claimant worked for the above employer for seven days as a short order cook for a rate of pay of $1.93 per hour. She was working from 6:00 p.m. until 11:00 p.m. each day. Her last night of employment with the company was the night of the curfew in Baton Rouge that began at approximately 9:00 p.m. The claimant was unable to obtain transportation home from her job and did not return after being employed for only a couple of days. The claimant was aware that there was no public transportation available after approximately 7:00 p.m. each evening. The claimant on many occasions had to pay a taxi to go home each night. The company does not provide transportation to and from work for its employees.

All tribunals have rejected the claim on the determination that claimant left her job for a personal reason Without good cause connected with her employment.

The provisions of the Louisiana Employment Security Law urged for our consideration are contained in Section 1601, subparagraphs (1) and (3)(a) of Title 23 of the Revised Statutes. In pertinent part, they read:

An individual shall be disqualified for benefits:

(1) If the administrator finds that he has left his employment without good cause connected with his employment . . .

(3) If the administrator finds that he has failed, without good reason, either to apply for available, suitable work when so directed by the administrator or to accept suitable work when offered him . . .

(a) In determining whether or not any work is suitable for an individual, the administrator shall consider the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience and prior earnings, the length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence.

In his findings of fact the Appeals Referee set forth that 'The claimant was aware that there was no public transportation available after approximately 7:00 o'clock p.m. each evening.' It is asserted that this finding, although approved at all stages of these proceedings, is not supported by the record, for there is no evidence that claimant knew that public transportation was not available to her to return home in the evenings. Claimant's statement that she 'didn't know that the bus stopped running at 6:00 o'clock' is cited to support the contention.

There are written statements in the record by claimant entered in support of her claim. One sets forth that she had previously worked for Howard Johnson for about three days and that she 'had no transportation so I had to quit.' Though this Howard Johnson establishment is not the one involved in the instant case, the statement undoubtedly led to the inference that claimant knew the bus schedules generally and was aware of the fact that no transportation would be available after certain hours from the Howard Johnson involved in the instant case. Her testimony also makes clear that the employer did not agree to furnish transportation in connection with her employment in the instant case. A reasonable inference may be drawn from this testimony that the transportation problem was discussed at the time of employment. According to Howard Johnson's manager, claimant's first night of work was New Year's Eve. She didn't show up for work the next day, he said, so he fired her. She called back however, asking for her job. Under the condition that she would...