Tri-arc Food Sys. Inc. v. Towns
| Decision Date | 03 May 2011 |
| Docket Number | NO. COA10-746,Wake County No. 09 CVS 16547,COA10-746 |
| Court | North Carolina Court of Appeals |
| Parties | TRI-ARC FOOD SYSTEMS, INC. Petitioner v. LAMONT L. TOWNS and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA Respondents. |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Appeal by Petitioner from order entered 16 March 2010 by Judge Abraham Penn Jones in Wake County Superior Court. Heard in the Court of Appeals 12 January 2011.
Michael C. Lord for Petitioner-appellant.
Employment Security Commission of North Carolina, by Thomas H. Hodges, Jr., and Sharon A. Johnston, for Respondent-appellees.
Tri-Arc Food Systems, Inc. ("Tri-Arc") appeals, arguing its former employee engaged in workplace misconduct by virtue of being incarcerated. We conclude the trial court properly affirmed the Employment Security Commission's ruling becauseTri-Arc failed to demonstrate that incarceration constituted workplace misconduct.
Sandy L. Towns1 last worked for Tri-Arc Food Systems, Inc., a Bojangles of America, Inc. licensee, on 24 August 2008 as a maintenance employee. He was then incarcerated for four months.2After his release, Tri-Arc informed Towns he no longer had a job with the company. On 11 January 2009, he filed a claim with the Employment Security Commission of North Carolina ("Commission" or "ESC")3 for unemployment benefits. Tri-Arc contested Towns' claim on the grounds that Towns quit work by "moving out of town" when he was incarcerated. Initially, an ESC adjudicator disqualified Towns from receiving benefits beginning 11 January 2009 because he left work without good cause attributable to his employer. Towns appealed.
The original telephonic ESC appellate hearing was rescheduled after Tri-Arc requested a continuance. Tri-Arc failed to participate in the rescheduled hearing that took placeon 7 May 2009. Tri-Arc does not offer any reason for its failure to participate in the hearing. After the hearing, the appeals referee affirmed the initial ruling, but did so on alternative grounds. The appeals referee found Towns "was discharged... due to the fact that he was incarcerated for 4 months." The appeals referee's fifth finding of fact stated that Towns "alleges that his mother told him that the employer said they would hold his job for him while he was incarcerated." He ruled Towns was discharged for misconduct connected with his work within the meaning of N.C. section 96-14(2). Towns appealed the decision to the Commission.
The Commission reversed the appeals referee's decision, holding Towns was not discharged for misconduct or substantial fault connected with his work.4 In doing so, the Commission modified finding of fact 5 to read as follows: "On or about August 28, 2 009, the claimant's mother called the employer about the claimant's incarceration and was told his job would be held open for him." The Commission adopted the appeals referee's other findings of fact. Tri-Arc appealed to Wake County Superior Court. The Superior Court affirmed the Commission'sdecision in its entirety. Tri-Arc timely appealed to this Court.
Tri-Arc appeals from the final judgment of a superior court; therefore, we have jurisdiction over its appeal. See N.C. Gen. Stat. § 96-15(i) (2009) (); N.C. Gen. Stat. § 7A-27(b) (2009) ().
Tri-Arc argues the Commission's decision "perverts the laudable purposes of the Employment Security Law" and should therefore be reversed. We disagree.
Generally, an individual is presumed to be entitled to benefits. Intercraft Indus. Corp. v. Morrison, 305 N.C. 373, 376, 289 S.E.2d 357, 359 (1982). The Employment Security Act ("the Act") was designed to provide benefits to "persons unemployed through no fault of their own." N.C. Gen. Stat. § 96-2 (2009) (statement of policy). Thus, an individual is excluded from benefits if the Commission determines that person is "unemployed because he or she was discharged for misconduct connected with the work." N.C. Gen. Stat. § 96-14(2) (2009).
Misconduct connected with the work is defined as conduct evincing such willful or wanton disregard of an employer's interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of an employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to the employer.
Id. While the Act does was not intended to aid those who are unemployed as a result of their own work-related misconduct, the General Assembly passed the Act to prevent economic insecurity caused by unemployment. N.C. Gen. Stat. § 96-2. We have concluded that in order to promote the Act's policy objectives, its provisions "should be liberally construed in favor of
applicants." Couch v. N.C. Emp't Sec. Comm'n, 89 N.C. App. 405, 412, 366 S.E.2d 574, 578 (1988).
The employer bears the burden of establishing misconduct. McGaha v. Nancy's Styling Salon, 90 N.C. App. 214, 218, 368 S.E.2d 49, 52 (1988). An employer is not, however, required to demonstrate actual harm to prove misconduct. Lynch v. PPG Indus., 105 N.C. App. 223, 226, 412 S.E.2d 163, 165 (1992). Workplace rule violations constitute misconduct unless the employee's conduct is reasonable and the employee had good cause to deviate from workplace rules. Binney v. Banner TherapyProds., Inc., 362 N.C. 310, 316, 661 S.E.2d 717, 720 (2008). Absent a specific rule violation, "[m]isconduct may consist in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee." Id. (quoting Hagan v. Peden Steel Co., 57 N.C. App. 363, 365, 291 S.E.2d 308, 309 (1982)) (alteration in original) (internal quotation marks omitted). In this case, Tri-Arc offered no evidence of its workplace rules; therefore, it must establish Towns deliberately violated or disregarded standards of behavior to which Tri-Arc justifiably expected Towns to adhere.
The standard of review in appeals from Commission decisions is established by statute. "In any judicial proceeding under this section, the findings of fact by the Commission, if there is any competent evidence to support them and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law." N.C. Gen. Stat. § 96-15(i) (2009). Questions of law are reviewed de novo. E.g., Carolina Power & Light Co. v. Emp't Sec. Comm'n of N.C, 363 N.C. 562, 564, 681 S.E.2d 776, 778 (2009). The Commission's unchallenged findings of fact are binding on appeal—even if unsupported by the evidence. E.g., Hagan, 57 N.C. App. at 364, 291 S.E.2d at 309. Tri-Arc challenges only finding of fact 5; therefore, the Commission's remaining findings of fact arebinding on this Court.
First, Tri-Arc contends finding of fact 5 is not supported by competent evidence because the only evidence supporting the finding is hearsay. We agree, although we note that Tri-Arc failed to object to this evidence. However, this finding is not essential to the Commission's ruling.
In arguing Towns' absence due to his incarceration constitutes work-related misconduct, Tri-Arc asks us to take judicial notice of the nature of Towns' conviction. In the telephonic appellate hearing, Towns conceded he was incarcerated for four months, but did not say why. "[R]eview is solely upon the record on appeal...." N.C. R. App. P. 9(a). In all appeals from superior court review of administrative decisions, the record must contain "copies of all items properly before the superior court as are necessary for an understanding of all issues presented on appeal." N.C. R. App. P. 9(a)(2)(e). Tri-Arc had ample opportunity to present evidence of the nature of the conviction, but failed to participate in the hearing or otherwise submit evidence. While the nature of Towns' incarceration is critical to this case, this a factual matter that should have been adjudicated below. With very few exceptions, none of which apply here, appellate courts do not make findings of fact. See N.C. Gen. Stat. § 96-15(i) ().
Tri-Arc failed to submit any documentation on this point to any ESC adjudicatory body, the Superior Court, or this Court for consideration. Rather, in its brief, Tri-Arc refers us to the North Carolina Department of Corrections "offender search" webpage, inviting our Court to embark on a fact-finding investigation. We decline this invitation. We note that a trial court is required to take judicial notice under the North Carolina Evidence Code only when "supplied with the necessary information." N.C. R. Evid. 201(d). In this case, no tribunal was presented with documentation from which it could take judicial notice. We decline to take judicial notice of the nature of Towns' conviction.
The dispositive issue, then, is whether a four-month absence from work at a fast food restaurant due to the employee's incarceration for any reason is a deliberate violation of standards of behavior to which the employer justifiably expects the employee to adhere. See Binney, 362 N.C. at 316, 661 S.E.2d at 720 (). We hold it is not. Therefore, the lack of support for finding of fact 5 doesnot require us to...
To continue reading
Request your trial