Carolina Power & Light v. Emp. Sec. Com'n

• Decision Date: 19 August 2008
• Docket Number: No. COA07-1247.,COA07-1247.
• Citation: 665 S.E.2d 141
• Court: North Carolina Court of Appeals
• Parties: CAROLINA POWER & LIGHT CO., Petitioner, v. EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA; and Herman D. Roberts, Respondents.

665 S.E.2d 141

CAROLINA POWER & LIGHT CO., Petitioner, v. EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA; and Herman D. Roberts, Respondents.

No. COA07-1247.

Court of Appeals of North Carolina.

August 19, 2008.

Appeal by petitioner from judgment entered 28 August 2006 by Judge A. Leon Stanback and from order entered 19 July 2007 by Judge Paul G. Gessner in Wake County Superior Court. Heard in the Court of Appeals 18 March 2008.

Cranfill, Sumner & Hartzog, LLP, by Norwood P. Blanchard, III, Wilmington, for the petitioner-appellant.

Thomas S. Whitaker and Thomas H. Hodges, Jr., Raleigh, for respondent-appellee Employment Security Commission of North Carolina.

BRYANT, Judge.

Carolina Power & Light Co. (petitioner) appeals from a judgment entered 28 August 2006 affirming the decision of the North Carolina Employment Security Commission in Commission Decision No. 06(UI)0997 and an order entered 19 July 2007 affirming the decision of the Employment Security Commission under Docket No. 06(UI)0997.

Herman D. Roberts (Roberts) began working for petitioner 21 March 1981 and in January 2005 worked for petitioner as a field service representative in Whiteville, North Carolina. In January 2005, petitioner began downsizing its field service positions and informed Roberts his position had been eliminated. Roberts was assigned to a temporary position in Clinton, North Carolina. Petitioner informed Roberts he would remain in Clinton until the downsizing was complete.

Roberts asked his supervisor and operations manager if he was going to be transferred back to his original field service representative position or if he was going to Wilmington, North Carolina. Petitioner never responded.

In January 2005, petitioner offered several employees, including Roberts, a voluntary early retirement package (VERP). Roberts asked his supervisors if he would still have a job if he did not accept early retirement. Petitioner did not respond. Roberts accepted the VERP. On 24 July 2005, Roberts filed a claim for unemployment insurance benefits. He certified to the Employment Security Commission (ESC) staff that the reason for his separation from employment was "early retirement."

The matter was referred to the ESC Adjudicator on the issue of separation from last employment. The Adjudicator determined Roberts was disqualified from benefits because he left the job "by his own actions" to accept a voluntary early retirement package. Roberts appealed the decision to an ESC Appeals Referee who reversed the adjudicator's decision. The referee concluded Roberts had good cause for leaving his job, that cause was attributable to his employer, and Roberts was not disqualified from benefits. Petitioner appealed to the ESC.

Before the ESC, Petitioner argued the referee erred in concluding that Roberts had good cause for leaving his job and such cause was attributable to Petitioner. Petitioner also argued that the referee erred by not reducing Roberts' benefit amount by the amount of any pension benefits received pursuant to N.C. Gen.Stat. §§ 96-12(f) and 96-14(9).

On 24 March 2006, the ESC rendered a decision finding Roberts was not disqualified from unemployment insurance benefits, and Roberts "left work within the meaning of the law." The ESC concluded that Roberts' decision to take petitioner's voluntary retirement package was "good cause attributable to [petitioner]." The ESC did not address petitioner's argument that Roberts' benefit amount should be reduced to his receipt of pension benefits.

On 24 April 2006, petitioner filed a Petition for Judicial Review of the ESC 24 March 2006 decision in Wake County Superior Court. On 28 August 2006, Judge Stanback entered a judgment affirming the ESC's determination that Roberts left work with good cause attributable to petitioner and remanded the matter to the ESC "to conduct a fact finding and make a determination on whether the claimant's benefit amount should be reduced by the amount of pension benefits received pursuant to N.C.G.S. §§ 96-12(f) and 96-14(9)."

On 15 December 2006, the ESC issued a decision concluding that Roberts' unemployment benefits should not be reduced by the amount of the claimant's pension benefits rollover under the VERP.

On 12 January 2007, petitioner filed a second petition for judicial review in Wake County Superior Court asserting that the ESC erred in concluding that Roberts' benefit should not be reduced by the amount of pension benefits received under the VERP. On 18 June 2007, Judge Paul Gessner entered an order affirming the ESC's decision that Roberts' benefits should not be reduced by the amount of the pension benefits rollover. From the 28 August 2006 judgment and the 12 January 2007 order, petitioner appeals.

On appeal, petitioner raises the following two issues: did the superior court err in affirming the ESC's conclusions that (I) Roberts left work with "good cause attributable to the employer" and that (II) Roberts' benefit should not be reduced by the amount of pension benefits received.

I

Petitioner questions whether Roberts' decision to leave work to retire under the VERP constitutes leaving work with "good cause attributable to the employer," as the term is used in North Carolina's Employment Security Law.

Petitioner contends that quitting a job to accept an early retirement package is not, as a matter of law, "good cause attributable to the employer." Petitioner cites North Carolina General Statute 96-14(1).

Where an employee is notified by the employer that such employee will be separated from employment on some future date and the employee leaves work prior to this date because of the impending separation, the employee shall be deemed to have left work voluntarily and the leaving shall be without good cause attributable to the employer.

N.C.G.S. § 96-14(1) (2005). Petitioner adds that where an employee voluntarily leaves work without notification from an employer that the employee's job will be terminated, that too is "without good cause attributable to the employer." Petitioner argues that as a result, an employee's decision to leave work because the employer stated the employee will or will not be separated from his employment achieves the same result — the employee is deemed to have left work voluntarily.

"Where an individual leaves work, the burden of showing good cause attributable to the employer rests on said individual, and the burden shall not be shifted to the employer." N.C. Gen.Stat. § 96-14(1a) (2005). "Attributable to the employer as used in G.S. 96-14(1) means produced, caused, created, or as a result of actions by the employer." Sellers v. National Spinning Co., 64 N.C.App. 567, 569, 307 S.E.2d 774, 775 (1983) (citation and internal quotations omitted). "`Good cause,' as used in the statute, connotes a reason for rejecting work that would be deemed by reasonable men and women as valid and not indicative of an unwillingness to work." Id. (citation omitted).

In Marlow v. N.C. Empl. Sec. Comm'n, this Court stated the public policy of the Employment Security Act as follows:

The [Employment Security Act, N.C.G.S. § 96-1 et seq.] is to be liberally construed in favor of applicants. Further, in keeping with the legislative policy to reduce the threat posed by unemployment to the "health, morals, and welfare of the people of this State," statutory provisions allowing disqualification from [unemployment] benefits must be strictly construed in favor of granting claims.

127 N.C.App. 734, 735, 493 S.E.2d 302, 303 (1997) (internal citations omitted). Our courts have also recognized that "[e]mployees are often discharged for various reasons which do not operate to disqualify the individual for benefits under the Act ... [such as] reduction in work force. ..." In re Werner, 44 N.C.App. 723, 727, 263 S.E.2d 4, 6 (1980); see also Boyland v. Southern Structures, Inc., 172 N.C.App. 108, 115, 615 S.E.2d 919, 924 (2005) (citations omitted) ("An employee may be disqualified from receiving unemployment benefits if there is substantial fault connected with the employee's work. Substantial fault ... shall not include (1) minor infractions of rules unless such infractions are repeated after a warning was received by the employee, (2) inadvertent mistakes made by the employee, nor (3) failures to perform work because of insufficient skill, ability, or equipment."); West v. Georgia-Pacific Corp., 107 N.C.App. 600, 604, 421 S.E.2d 395, 398 (1992) ("[M]isconduct sufficient to disqualify a discharged employee from receiving unemployment compensation is conduct which shows a wanton or willful disregard for the employer's interest, a deliberate violation of the employer's rules, or a wrongful intent.").

In Werner, this Court addressed whether employees who resigned at their employer's request left their employment "voluntarily" within the meaning of N.C. Gen.Stat. § 96-14(1). Based on strong public policy concerns for not discouraging employers from this practice, this Court held that those "employees who quit or resign employment because they are asked by their employer to leave do not leave `voluntarily' within the meaning of G.S. 96-14(1)." Werner, 44 N.C.App. at 727, 263 S.E.2d at 7.

Here, the ESC made the following unchallenged findings:

3. The [petitioner] began downsizing its field service representative positions in January 2005. During this time, [Roberts] was informed that his position as a field service representative had been eliminated and that he was going to be reassigned to a temporary position in Clinton, North Carolina. [Roberts] was told that he would be in Clinton until the downsizing was completed.

4. [Roberts] asked his supervisor and operations manager if he was going to be transferred back to his field service representative position. ... [Roberts] was never given an answer.

5. In January 2005, [petitioner] offered several employees, including [Roberts], an early retirement package. [Roberts] asked his supervisors...