Krueger v. Florida Unemployment Appeals Com'n

• Decision Date: 08 September 1989
• Docket Number: No. 88-03159,88-03159
• Citation: 555 So.2d 1225,14 Fla. L. Weekly 2118
• Parties: 14 Fla. L. Weekly 2118 Karen KRUEGER, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, and Department of Health and Rehabilitative Services, Appellees.
• Court: Florida District Court of Appeals

Page 1225

555 So.2d 1225

14 Fla. L. Weekly 2118

Karen KRUEGER, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, and Department of Health and Rehabilitative Services, Appellees.

No. 88-03159.

District Court of Appeal of Florida Second District.

Sept. 8, 1989.

Appeal from the Florida Unemployment Appeals Commission.

Cathy L. Lucrezi of Florida Rural Legal Services, Inc., Fort Myers, for appellant.

John D. Maher of Unemployment Appeals Com'n, Tallahassee, for appellee, Com'n.

Eugenie G. Rehak, Sr. Atty., Dept. of Health and Rehabilitative Services, Fort Myers, for appellee, HRS.

PER CURIAM.

Affirmed.

FRANK, A.C.J., and HALL, J., concur.

ALTENBERND, J., dissents with opinion.

ALTENBERND, Judge, dissenting.

Ms. Krueger appeals the order of the Unemployment Appeals Commission which affirmed the decision of the appeals referee. The referee had determined that Ms. Krueger was disqualified for unemployment compensation benefits because she voluntarily left her employment without good cause attributable to her employer. I respectfully dissent because I believe that the referee failed to apply the correct rule of law in this case. Although the referee may have correctly determined that Ms. Krueger voluntarily left her employment, he either misapplied the law or made insufficient findings of fact in determining that she left without good cause attributable to her employer.

The Department of Health and Rehabilitative Services (HRS) hired Ms. Krueger as a social worker in May 1985. In August 1986, she was transferred to the position of admission and discharge coordinator. In August and October 1987, she received unsatisfactory performance appraisals from her supervisors. After the second poor performance appraisal, HRS notified her that it was considering her termination. At that time, she attended a pretermination hearing. As a result of that hearing, she was placed on a corrective action plan in December 1987. She was able to meet the terms of the corrective action plan, but shortly thereafter, she again fell below the acceptable performance levels.

On April 4, 1988, Ms. Krueger's supervisors once again presented her with an unsatisfactory performance appraisal. This third unsatisfactory appraisal again recommended that she be terminated. Before the appraisal was presented to Ms. Krueger, it was reviewed and approved by her supervisor's supervisor, Ms. Mennella.

On April 26, 1988, Ms. Mennella sent a certified letter to Ms. Krueger notifying her that HRS was "considering taking disciplinary action of dismissal" against her. The form letter stated that the "anticipated effective date" of her dismissal would be June 6, 1988. The letter also stated that HRS was "sincere in its desire to reduce the risk of error in taking this disciplinary action," and allowed her five work days in which to submit a written request for a pretermination hearing to refute or explain the charges which had been made against her. The request was to be submitted to Ms. Mennella, and the hearing was to be conducted by Ms. Mennella. After considering the matter overnight, Ms. Krueger submitted a letter of resignation on the following day and asked that her last day of employment be May 12, 1988.

During the initial determination of Ms. Krueger's unemployment compensation claim, an interviewer for the Division of Unemployment Compensation took fact finding statements from both Ms. Krueger and Ms. Mennella. Ms. Mennella stated that Ms. Krueger would have been terminated even if she had attended the pretermination hearing. Ms. Mennella emphasized Ms. Krueger's unsatisfactory appraisals and the difficulties which Ms. Krueger had experienced with HRS clients. The Division of Unemployment Compensation initially denied Ms. Krueger benefits on grounds of misconduct connected to her work, not on grounds of voluntarily leaving her employment.

When Ms. Krueger appealed her denial of benefits, the appeals referee made no finding of misconduct. I agree with that result. The record reflects that Ms. Krueger had problems communicating at a layman's level with HRS clients, and that she had personality conflicts with her supervisors. It does not support the type of misconduct which would have disqualified her for benefits. Daniels v. Unemployment Appeals Comm'n, 531 So.2d 1047 (Fla. 2d DCA 1988); Lewis v. Unemployment Appeals Comm'n, 498 So.2d 608 (Fla. 5th DCA 1986). Thus, had the appeals referee made findings of misconduct, such findings would have been without support in either evidence or law.

The appeals referee made brief findings of fact and conclusions of law. His conclusions of law state:

The evidence clearly reveals that the claimant was not discharged but voluntarily left her employment. She decided to do so upon being notified that her employer was considering taking disciplinary action against her because of her unsatisfactory job performance. Claimant had an opportunity to meet with her employer and discuss any disciplinary action forthcoming but she failed to exercise that right because after going through somewhat similar procedures in the past, she did not believe that it would serve any useful purpose, instead chose to leave her employment. The employer had not changed her working agreement nor did anything to cause her to leave. She is responsible for being unemployed. Accordingly, it must be concluded that claimant's leaving of employment was without good cause attributable to her employer.

On appeal, neither the Commission nor this court has the authority to modify the appeal referee's findings of fact if they are supported by substantial, competent evidence. Verner v. Unemployment Appeals Comm'n, 474 So.2d 909 (Fla. 2d DCA 1985). It is this court's function, however, to assure that the correct rules of law were applied. LeDew v. Unemployment Appeals Comm'n, 456 So.2d 1219 (Fla. 1st DCA 1984).

Florida courts have repeatedly held that the issues of whether a resignation is both voluntary and without good cause attributable to the employer must be examined from the standard of the "the average, able-bodied, qualified worker." Marcelo v. Fla., Dep't of Labor & Unemployment Sec., 453 So.2d 927, 929 (Fla. 2d DCA 1984); Uniweld Products, Inc. v. Indus. Relations Comm'n, 277 So.2d 827 (Fla. 4th DCA 1973). In construing the concepts of voluntariness and good cause, it is important to remember that Florida's Unemployment Compensation Law is remedial, humanitarian legislation, and that it must be liberally construed in favor of claimants. § 443.031, Fla.Stat. (1987); Gulf County School Bd. v. Washington, 544 So.2d 288 (Fla. 1st DCA 1989); Baeza v. Pan Am./Nat'l Air Lines, Inc., 392 So.2d 920 (Fla. 3d DCA 1980); City of Fort Lauderdale v. Fowler, 355 So.2d 159 (Fla. 4th DCA 1978); Williams v. Fla., Dep't of Commerce, 326 So.2d 237 (Fla. 3d DCA 1976).

The record supports Ms. Krueger's position that she believed her June 6, 1988, termination was inevitable, and that there was nothing more she could tell Ms. Mennella at yet another pretermination hearing which would have prevented her termination. From her perspective, the decision to resign three weeks early allowed her to preserve a portion of her self-respect, avoid the permanent stigma of a "firing," and avoid one last exercise of fruitless bureaucracy.

In order to deny benefits, the appeals referee needed to make findings of fact and conclusions of law that, under these circumstances, the second pretermination hearing provided a reasonable opportunity to Ms. Krueger to save her employment. It is apparent from the above-quoted conclusions that the referee believed Ms. Krueger was barred from recovering benefits merely because she waived her pretermination hearing. If the referee had reviewed this case under the correct rule of law, I believe there is a substantial probability that he would have reached the opposite conclusion.

The record in this case admittedly contains evidence suggesting a slight possibility that Ms. Krueger could have salvaged her job through the pretermination hearing. On the other hand, both Ms. Krueger and Ms. Mennella knew that the notice of intended termination had already been approved by Ms. Mennella, and that Ms. Mennella would conduct the hearing. While Ms. Mennella's testimony indicated that she was willing to listen to Ms. Krueger, Ms. Krueger truly had nothing to add at the hearing other than the points which they had already discussed. Significantly, Ms. Mennella, when given an opportunity to do so, never withdrew her initial statement that Ms. Krueger would have been terminated even if she had attended the hearing.

It is important to consider Ms. Kreuger's options when she received her notice of intended termination. She appears to have had four options. First, she could have done nothing. In that event, she would not have gone to the hearing and would unquestionably have been terminated. Under this option, she would have received benefits. Second, she could have gone to the hearing and told Ms. Mennella that she had nothing new to say. Again, she almost certainly would have been terminated and she would have received benefits. Third, she could have gone to the hearing and vigorously requested one more chance. Since Ms. Mennella indicated in her statement that Ms. Kreuger would have been terminated anyway and there was no basis to fire Ms. Kreuger for misconduct, there still appears a very high probability that she would have been terminated and would have collected benefits. Only by taking the fourth option of resigning to avoid the embarrassment of the hearing does it appear that she loses her benefits. Although there may be some certainty in requiring employees to exhaust even frivolous hearings, this solution does not promote the objectives of the Unemployment Compensation Law.

As discussed earlier, this is not a case in which Ms. Krueger was disqualified due to misconduct. Thus, she could have been disqualified only if she had ...