Schoennagel v. Louisiana Office of Employment Sec.

• Decision Date: 13 April 1982
• Docket Number: No. 14709,14709
• Citation: 413 So.2d 652
• Parties: Mervin SHOENNAGEL, Jr. v. LOUISIANA OFFICE OF EMPLOYMENT SECURITY.
• Court: Court of Appeal of Louisiana — District of US

Page 652

413 So.2d 652

Mervin SHOENNAGEL, Jr. v. LOUISIANA OFFICE OF EMPLOYMENT SECURITY.

No. 14709.

Court of Appeal of Louisiana First Circuit.

April 13, 1982.

Willie D. Maynor, Baton Rouge, for plaintiff, appellant.

John V. Seago, Covington, for defendant, appellee.

Before COVINGTON, COLE and WATKINS, JJ.

COLE, Judge.

Plaintiff, an employee of Terminix Exterminating Company, Inc., was arrested and incarcerated on January 29, 1980. Shortly thereafter he called his employer and left word of his incarceration and of his inability to make bond. He remained in jail for approximately fourteen days until he was able to gain his release. When released he contacted his superior and was informed he no longer had a job with Terminix.

Plaintiff applied for unemployment compensation benefits and was informed he was disqualified. The notice he received read in part as follows:

"You were discharged from your employment due to your inability to report for work because of incarceration. You were jailed because of personal misconduct. An employee is expected to conduct himself/herself off the job so as not to render himself/herself unable to perform the work. Your discharge was for misconduct connected with the employment." (Emphasis added.)

Plaintiff appealed to the Office of Employment Security Appeals Tribunal, a hearing was held and the denial was affirmed. He then appealed to the Board of Review of the Office of Employment Security which also upheld the disqualification upon the stated ground of misconduct connected with the employment. He brought the matter to the district court which reversed the finding of the Board of Review but upheld the disqualification on another ground, i.e., plaintiff left his job without good cause connected with his employment. Plaintiff then appealed to this court.

The trial court's holding that there was insufficient evidence to show plaintiff should be disqualified under La.R.S. 23:1601(2) due to misconduct connected with his employment is not an issue before us due to the failure of either defendant to appeal that aspect of the judgment. The only issue is whether or not the trial court was correct in concluding plaintiff had left his job without good cause connected with his employment and was therefore disqualified under La.R.S. 23:1601(1). For purposes of clarification we will, however, note both statutory grounds for disqualification and discuss briefly applicable law.

The pertinent parts of § 1601, in effect at the relevant time, read as follows:

"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. Such disqualification shall continue until such time as the claimant (a) can demonstrate that he has been paid wages for work subject to the Louisiana Employment Security Law or to the unemployment insurance law of any other state or the United States, equivalent to at least ten times his weekly benefit amount following the week in which the disqualifying act occurred and (b) has not left his last work under disqualifying circumstances.

"(2) If the administrator finds that he has been discharged for misconduct connected with his employment such disqualification shall continue until such time as the claimant (a) can demonstrate that he has been paid wages for work subject to the Louisiana Employment Security Law or to the unemployment insurance laws of any other state or of the United States, equivalent to at least ten times his weekly benefit amount following the week in which the disqualifying act occurred and (b) has not left his last work under disqualifying circumstances. In addition, if the administrator finds that such misconduct has impaired the right, damaged or misappropriated the property of or has damaged the reputation of a base period employer, then the wage credits earned by the individual with the employer shall be cancelled and no benefits shall be paid on the basis of wages paid to the individual by such employer." (Emphasis added.)

Concerning the allegation of misconduct, prior to the case of Grimble v. Brown, 247 La. 376, 171 So.2d 653 (1965), Louisiana courts had held acts of misconduct committed while the employee was off duty were in no way connected with his employment and therefore could not be used to disqualify the employee under § 1601(2). See Smith v. Brown, 162 So.2d 179 (La.App.3d Cir. 1964), and Smith v. Brown, 147 So.2d 452 (La.App. 2d Cir. 1962). Grimble disapproved of these cases and held off duty misconduct may be connected to the employment in certain cases. But the trial court in the instant case noted there was no evidence put forth at the hearing showing plaintiff had actually committed the act for which he was charged. ¹ Our review of the record verifies this fact and therefore the trial court correctly found the evidence was insufficient to warrant disqualification under § 1601(2).

The court upheld the disqualification under § 1601(1) on the basis that although plaintiff had left his employment with good cause the cause was not connected to the employment. We find plaintiff did not "leave" his employment and therefore reverse the decision of the trial court. ²

As quoted above, the first sentence of subsection (1) states an individual shall be disqualified if he has left his employment without good cause connected with his employment. The term "left" is used in this subsection whereas the phrase "has been discharged" is used in subsection (2). The meaning of the term "left" was an issue in Piggly Wiggly of Springhill, Inc. v. Gerace, 370 So.2d 1327 (La.App. 2d Cir. 1979). The court stated, at pages 1328, 1329:

"Our interpretation of 1601(1) is that the word left is intended to cover those situations where an employee quits, or voluntarily leaves or resigns, his employment."

The testimony at the hearing shows plaintiff did not voluntarily leave his employment. He expressed his intention to remain as an employee by calling his employer the day he was incarcerated and again by calling the very day he was released from jail. The employee's action of contacting the employer while incarcerated was deemed significant in SMITH V. BROWN, (SUPRA³) and we find it significant in the present case. In light of these circumstances we cannot deem this unavoidable absence to mean he "left" his job.

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