Burroughs v. Green Apple, LLC, 090319 NCCA, COA18-248

Docket Nº:COA18-248
Opinion Judge:ZACHARY, JUDGE.
Party Name:DEVON J.A. BURROUGHS, Petitioner, v. GREEN APPLE, LLC, APPLE GOLD GROUP (DBA) APPLEBEE'S, and R. GLEN PETERSON, CHIEF COUNSEL, NORTH CAROLINA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, Respondents.
Attorney:Mary McCullers Reece for petitioner-appellee. Respondent-appellant North Carolina Department of Commerce, Division of Employment Security Chief Counsel R. Glen Peterson, by Camilla F. McClain. No brief filed for respondent-appellee Green Apple, LLC.
Judge Panel:Judges STROUD and MURPHY concur.
Case Date:September 03, 2019
Court:Court of Appeals of North Carolina

DEVON J.A. BURROUGHS, Petitioner,

v.

GREEN APPLE, LLC, APPLE GOLD GROUP (DBA) APPLEBEE'S, and R. GLEN PETERSON, CHIEF COUNSEL, NORTH CAROLINA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, Respondents.

No. COA18-248

Court of Appeals of North Carolina

September 3, 2019

Heard in the Court of Appeals 22 May 2019.

Appeal by respondent Division of Employment Security from order entered 9 August 2017 by Judge Donald W. Stephens in Wake County No. 17 CVS 3679 Superior Court.

Mary McCullers Reece for petitioner-appellee.

Respondent-appellant North Carolina Department of Commerce, Division of Employment Security Chief Counsel R. Glen Peterson, by Camilla F. McClain.

No brief filed for respondent-appellee Green Apple, LLC.

ZACHARY, JUDGE.

Respondent North Carolina Department of Commerce, Division of Employment Security ("the Division"), appeals from the superior court's order reversing the Board of Review's decision that Petitioner Devon J.A. Burroughs was disqualified from receiving unemployment compensation benefits. We affirm.

Background

Burroughs began working as a server for Applebee's in September 2015. Burroughs reported a wage-and-hour concern to Human Resources in May 2016, complaining of nonpayment for hours worked. Following an investigation, Applebee's issued a check to Burroughs in the amount of $1, 299.45.

On 22 June 2016, Burroughs filed another complaint with Human Resources alleging that the assistant manager had engaged in a pattern of retaliatory behavior against him that included physical contact-specifically, "pushing [him] in [his] back" on one occasion. Human Resources employee Vanessa Roman opened an investigation into the complaint, and spoke with the assistant manager as well as other employees. Ms. Roman testified that, based on her investigation, she was unable to substantiate Burroughs's allegations.

On 18 July 2016, Ms. Roman held a meeting with Burroughs, the assistant manager, and the general manager. At the meeting, all parties were asked to sign a document stating that they "would all agree to move forward and align with the organization's guiding principles." The document also contained an acknowledgment that Applebee's had "completed [its] investigation into the concerns raised by" Burroughs's complaint, and had taken "corrective actions as needed."

Burroughs agreed to sign that portion of the document in which he pledged to abide by his employer's expectations moving forward, but he refused to sign the portion acknowledging that Applebee's had made a complete investigation into his complaint and that appropriate corrective action had been taken. According to Ms. Roman, Burroughs said he would only provide me with additional details to support his allegations if I provided him a copy of my investigation report. Since I was the one that conducted the investigation I was the lead on that case, I expressed to him that I had completed a thorough investigation into his concerns and that the document that we were asking him to sign was only a tool to memorialize our previous conversation about alignment and moving forward and again continuing to provide our guests with excellent service. He still refused and stated that he did not agree and he said I guess I can't work for you guys then. And at that moment we agreed to separate.

Burroughs last worked for Applebee's on 17 July 2016.

Burroughs filed a claim for unemployment insurance benefits on 7 August 2016. Ms. Roman reported that the reason for Burroughs's discharge was that he had "[f]ailed to follow instructions, policy, [and] contract." Thereafter, a claims adjudicator determined that Burroughs was disqualified from receiving unemployment insurance benefits pursuant to N.C. Gen. Stat. § 96-14.6(a)(b), in that he "was discharged for misconduct connected with the work." Burroughs appealed that decision to the Appeals Referee, who issued a decision on 9 November 2016 concluding that Burroughs had been "discharged for insubordination," which amounted to "misconduct connected with his work," thereby disqualifying him from receiving benefits. Burroughs appealed to the Board of Review, which affirmed the Appeals Referee's decision.

Burroughs petitioned for judicial review in Wake County Superior Court. By order entered 9 August 2017, the superior court reversed the Board's decision and ordered that "the agency shall [ensure] that [Burroughs] receives the unemployment benefits to which he is entitled as a matter of law." The Division filed timely notice of appeal from the superior court's order.

On appeal, the Division argues that the superior court erred by disregarding the applicable standard of review and reversing the Board's determination that Burroughs was discharged for misconduct connected with...

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