Bateman v. Howard Johnson Co., 9279

• Decision Date: 19 March 1973
• Docket Number: No. 9279,9279
• Citation: 277 So. 2d 764
• Parties: Rosie Adams BATEMAN v. HOWARD JOHNSON COMPANY, and F. C. Doyal, Administrator, Louisiana Department of Employment Security.
• Court: Court of Appeal of Louisiana — District of US

Page 764

277 So.2d 764

Rosie Adams BATEMAN v.HOWARD JOHNSON COMPANY, and F. C. Doyal, AdministratorLouisiana Department of Employment Security.

No. 9279.

Court of Appeal of Louisiana, First Circuit.

March 19, 1973.

On Rehearing May 14, 1973.

Writ Granted June 29, 1973.

Jerry H. Smith, Legal Aid Society of Baton Rouge, Baton Rouge, for appellant.

Marion Weimer, Baton Rouge, for F. C. Doyal, Jr., Employment Security.

Before LANDRY, TUCKER and PICKETT, JJ.

PICKETT, Judge.

This is an appeal by Rosie Adams Bateman, a claimant for unemployment compensation, from a judgment of the District Court in and for East Baton Rouge Parish, affirming the decision of the Board of Review Division of Employment Security, wherein it was held that plaintiff had left her work without good cause connected with the employment, which is a disqualification for benefits under LSA-R.S. 23:1601.

The findings of fact by the Appeals Referee are as follows:

'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.'

The gist of the plaintiff's evidence on the issues involved is as follows:

'Well, I wanted the job and I intended to keep it, but due to the fact that I had to pay transportation to and from work--well, I caught a bus going to work, and I didn't know that the bus stopped running after 6 o'clock, so therefore, I had to pay transportation, which was $3.80, home every night, and I was unable to support that expense because of my earnings.And I tried to get people to bring me to work but they were reluctant, they couldn't come, and I had to take taxis at home night and I was unable to pay this kind of expense.'

The claimant's chief complaint is that she was unable to continue working because of the lack of transportation.Her work hours were from 6 p.m. until 11 p.m. each day.She could ride the bus to her job.But there was no public transportation available after approximately 7 p.m. each evening.The plaintiff contends that she did not know when she took the job that there would be no public transportation after approximately 7 p.m. in the evening.The only way she had to return home was to pay a taxi $3.80 to carry her home each evening.She was employed for a period of five hours at the rate of $1.93 per hour, and it took a sizeable portion of each day's wages to secure transportation.In the hearing before the Appeal's Referee, after explaining the difficulty she had in returning home on January 10, 1972, which was the night of the curfew in Baton Rouge following a confrontation between city police and the Black Muslims, she said: 'I was real frightened and I didn't go back because I didn't have no means of transportation out there and I could not pay $3.80 a night to come home every night.'

Pertinent herein are the following provisions of LSA-R.S. 23:1601(1):

'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 cause, 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, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence.'

Citing sub-paragraphs (1) and (3)(a) of Section 1601, above, claimant contends:

'While sub-paragraph 3 of the statute seems to apply only to initial acceptance of work when read alone and out of the context of the entire statute, it has been held that sub-paragraph 3 must be read in conjunction with sub-paragraph 1 to be applied, even in those situations where the Claimant has been employed for some length of time at 'unsuitable' employment.See for example, Brown v . Brown, 153 So.2d 190(2nd Cir.1963), wherein the Claimant had left his employment of long standing for good cause connected with his employment when it was found by the Court that the employment conditions were unsuitable.'

It is well settled that for an employee to be eligible for benefits upon leaving employment, he must leave for good cause connected with his employment.Neal v. Administrator, Division of Employment Security, Department of Labor, 197 So.2d 393, and cases therein cited.If an employee leaves his job for good cause, he is nevertheless disqualified to receive benefits if the cause is not work related.Hargrove v. Brown, 247 La. 689, 174 So.2d 120.

We understand Claimant's argument to be that construed together, sub-paragraphs (1) and (3)(a) provide that in determining whether an employee is disqualified for leaving employment without good cause connected therewith, suitability of the employment left is as much at issue as suitability of available employment is pertinent in determining whether an employee is disqualified for failing to accept available employment.

In so contending, claimant relies upon Brown v. Brown, 153 So.2d 190.Extending her position, Claimant...