Davane v. Thurmond

• Decision Date: 15 October 2009
• Docket Number: No. A09A0800.,A09A0800.
• Citation: 685 S.E.2d 446,300 Ga. App. 474
• Parties: DAVANE v. THURMOND.
• Court: Georgia Court of Appeals

685 S.E.2d 446

300 Ga. App. 474

DAVANE v. THURMOND.

No. A09A0800.

Court of Appeals of Georgia.

October 15, 2009.

Mary I. Dickerson, Atlanta, for appellant.

Thurbert E. Baker, Atty. Gen., for appellee.

MILLER, Chief Judge.

Deidre Davane's employment with Eagle Creek Software Services, Inc. was terminated after she was unable to confirm her ability to report to an out-of-town assignment. The Georgia Department of Labor initially denied Davane's unemployment benefit claim, but an administrative hearing officer set aside that determination and ruled she was entitled to benefits. In a split decision, the Department's Board of Review reversed the decision of the administrative hearing officer. Following our grant of her application for discretionary appeal, Davane appeals from the superior court's order affirming the Board's decision. We reverse because any evidence does not support the Board's conclusion that Davane was disqualified from receiving unemployment benefits.

The Department's rules require that "appeals to the board of review shall be decided upon the evidence in the record made before the administrative hearing officer." Ga. Comp. R. & Regs. r. 300-2-5-.03(2)(a). The evidence adduced at the hearing showed that the employer hired Davane for the position of "project lead," a job which "required 100 percent travel." Shortly after she was hired Davane left an assignment because of a problem with her nanny. On or about August 15, 2007, the employer offered Davane a position as a managing consultant, which allowed her to work from her home in Atlanta at a lesser salary, but with the understanding that it was a temporary arrangement. In late October 2007, the employer began communicating with Davane about returning to her original position.

According to the Board's findings:

A specific position came open in Kansas City for January 28, 2008. Discussions about the position started in early January, but testimony was conflicting as to when the claimant became aware of the specific start date. The employer contended it was January 11, 2008. The claimant contended January 23, 2008. The claimant did not have child care arrangements by the afternoon of January 25, 2008, and was discharged.

The claimant was aware that working from home was temporary. Childcare was her responsibility. The claimant should have reasonably started making childcare arrangements sooner than two working days prior to the start date of January 28, 2008. Therefore, we find she was at fault in the separation and disqualification is required.

"Judicial review of an administrative decision requires the court to determine that the findings of fact are supported by `any evidence' and to examine the soundness of the conclusions of law that are based upon the findings of fact." (Citation and punctuation omitted.) Pruitt Corp. v. Ga. Dept. of Community Health, 284 Ga. 158, 160(3), 664 S.E.2d 223 (2008).¹ "When this Court reviews a superior court's order in an administrative proceeding, our duty is not to review whether the record supports the superior court's decision but whether the record supports the final decision of the administrative agency." (Footnote omitted.) City of LaGrange v. Ga. Public Svc. Comm., 296 Ga.App. 615, 616, 675 S.E.2d 525 (2009).

Our review of the record shows that certain of the Board's findings are misleading, if not literally incorrect. Significantly, the Board's findings imply that the evidence was conflicting as to whether Davane was first informed of the Kansas City project's start date on January 11, 2008, or on January 23, 2008. Arguably, the "testimony" was conflicting, as the Board found, but the evidence was not. Davane testified that Tamara Pechtel, the employer's personnel officer, informed her on January 23, 2008 that she was expected to travel to Kansas City on January 28, 2008. Pechtel testified that Davane was told on January 11, 2008 that she would need to be out of town on January 28, 2008. However, Pechtel further testified that the communication to Davane came from a third party, Tracy Spooner. When Pechtel later asked Davane if she remembered receiving an e-mail from Spooner on January 11, 2008, Davane retrieved a copy of the e-mail and read it into the record. In that communication, Spooner gave Davane a "heads up" about the Kansas City project, but there was no specific start date mentioned, or even a general time frame, nor did Spooner indicate that Davane was definitely assigned to the project. The only conclusion to be drawn from the record is that Pechtel did not have personal knowledge that Davane was informed on January 11, 2008 that the project would start on January 28, 2008. Pechtel's testimony that a third party so informed Davane was not probative and, in view of the evidence of the actual communication, demonstrably mistaken. See generally Finch v. Caldwell, 155 Ga.App. 813, 815, 273 S.E.2d 216 (1980) (hearsay evidence presented at the administrative hearing was not probative to show claimant was intoxicated on the job).

In light of the foregoing, and in consideration of other undisputed evidence before the hearing officer, the Board's decision to disqualify Davane from unemployment benefits is not supported by any evidence. A person may be disqualified from receiving unemployment benefits "after the individual has been discharged or suspended from work with the most recent employer for failure to obey orders, rules, or instructions or for failure to discharge the duties for which the individual was employed." OCGA § 34-8-194(2)(A). However, disqualification is not appropriate unless the employer shows the "discharge was caused by the deliberate, conscious fault of the claimant." (Punctuation omitted.) Jamal v. Thurmond, 263 Ga. App. 320, 321(1), 587 S.E.2d 809 (2003). See Glover v. Scott, 210 Ga.App. 25, 26, 435 S.E.2d 250 (1993) (employee's termination due to her absence from work to attend juvenile proceedings with her son was not due to fault on her part); Tanner v. Golden, 189 Ga.App. 894, 895, 377 S.E.2d 875 (1989) (teachers made bona fide efforts to pass certification test, and so their failure to pass the test did not constitute their conscious, deliberate fault). "Disqualification is an exception to the public policy favoring the payment of benefits to persons unemployed through no fault of their own, and the employer must show by a preponderance of the evidence that disqualification is appropriate." (Footnote omitted.) Ga-Pacific Corp. v. Ivey, 250 Ga.App. 181, 182-183(1), 549 S.E.2d 471 (2001).

Since disqualification of benefits requires "deliberate, conscious fault" by the...