Ward v. Office of Employment Sec.

• Decision Date: 20 August 1986
• Docket Number: No. 17924-CA,17924-CA
• Citation: Ward v. Office of Employment Sec., 493 So.2d 777 (La. App. 1986)
• Parties: Patricia WARD, Plaintiff-Appellant, v. OFFICE OF EMPLOYMENT SECURITY, Defendant-Appellee.
• Court: Court of Appeal of Louisiana

Page 777

493 So.2d 777

Patricia WARD, Plaintiff-Appellant, v.OFFICE OF EMPLOYMENT SECURITY, Defendant-Appellee.

No. 17924-CA.

Court of Appeal of Louisiana Second Circuit.

Aug. 20, 1986.

Samuel Thomas, Tallulah, for plaintiff-appellant.

Thomas E. Cooper, Jr., Tallulah, for Richland Parish Hosp.

Frank T. Scott, Baton Rouge, for Office of Employment Sec.

Before HALL, SEXTON and LINDSAY, JJ.

LINDSAY, Judge.

The plaintiff, Patricia Ward, appeals a decision which denied unemployment compensation benefits on grounds she was terminated due to misconduct.We affirm.

The plaintiff had been employed by the Richland Parish Hospital as a nursing assistant from August 13, 1979 to March 4, 1983.The plaintiff worked from 3:00 p.m. until 11:00 p.m. five or six days per week.On March 3, 1983, plaintiff and a new orderly were taking vital signs from patients in the hospital.One patient complained to the orderly that the pair were proceeding too hurriedly.The orderly responded that Ward was rushing him.Ward reentered the room and a verbal altercation between Ward and the orderly ensued.The pair continued their discussion in the hallway where it was alleged profanity was used.The orderly went home in tears.The patient and her family became upset and reported the incident to the hospital administration.

The next day, Mable Stennett, director of nursing at the hospital, and Michael Cooper, hospital administrator, called Ward into Stennett's office and questioned her regarding the incident on the preceding day.It was alleged Ward exhibited a belligerent, abusive and insubordinate attitude, refusing to answer questions or say anything at all.She was then terminated by Stennett but refused to leave the hospital until she was paid and received a written statement as to why she was being terminated.Ward was told her request could not be complied with immediately.Ward still refused to leave the hospital.Law enforcement officials were called and Ward was placed under arrest for disturbing the peace.

Ward's claim for unemployment compensation benefits was denied based upon her termination for misconduct.A hearing was held before an appeals referee on July 27, 1983.At this hearing, Stennett testified she was informed of the incident with the orderly and called Ward into her office in order to obtain Ward's version of what had transpired.Michael Cooper also testified he was present at this meeting.Both Stennett and Cooper testified that Ward refused to respond to questions and exhibited a belligerent and insubordinate attitude.The tone of her voice was harsh, and abusive.She sat and "stared" at Stennett during the interview.The record indicates Ward was terminated based upon her behavior at the meeting and not because of the incident with the orderly.Although plaintiff admitted that she had been counseled on a previous occasion in January, this was not used as a basis for her discharge by the employer.The appeals referee held that Ward was disqualified from receiving unemployment compensation benefits from March 4, 1983, finding her insubordination in the meeting with Stennett and Cooper constituted misconduct under LSA-R.S. 23:1601.

Ward filed an appeal with the Louisiana Board of Review which in September, 1983 affirmed the decision of the appeals referee disqualifying her from receiving unemployment compensation benefits.

In October, 1983, Ward appealed the decision to the Fifth Judicial District Court asking for reversal.Ward claimed the decision finding her guilty of misconduct was based upon hearsay evidence regarding the incident with the orderly.The Richland Parish Hospital argued Ward was not terminated for the incident with the orderly, but for her insubordination when questioned by Stennett and Cooper.

The district court affirmed the decision to deny benefits to Ward.The district court found that the decision to deny benefits because of misconduct was not based on hearsay evidence, and that the evidence supported the findings that Ward was guilty of misconduct.¹

The basic issue presented in this appeal is whether Ward's behavior during the meeting with her superiors constituted misconduct within the meaning of LSA-R.S. 23:1601 sufficient to disqualify her from receiving unemployment compensation benefits.

Misconduct has been defined as an act of willful or wanton disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of the standards of behavior which the employer has a right to expect of his employee, or negligence to such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer.Horns v. Brown, 148 So.2d 607, 243 La. 936(1963);Simmons v. Gerace, 377 So.2d 407(La.App. 2d Cir.1979);Heard v. Doyal, 259 So.2d 412(La.App. 2d Cir.1972);Payne v. Antoine's Restaurant, 217 So.2d 514(La.App. 4th Cir.1979).

The employer has the burden of proving misconduct by a preponderance of the evidence.Banks v. Administrator of the Department of Employment Security of the State of Louisiana, 393 So.2d 696(La.1981);Payne v. Antoine's Restaurant, supra;Gardere v. Brown, 170 So.2d 758(La.App. 1st Cir.1964);Fruchtzweig v. Southern Specialty Sales Company, 161 So.2d 374(La.App. 4th Cir.1964);Lee v. Brown, 148 So.2d 321(La.App. 3rd Cir.1962).

Judicial review in unemployment compensation cases is limited to questions of law by LSA-R.S. 23:1634, which states:

In any proceeding under this Section the findings of the board of review as to facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law....

The presence of disqualifying misconduct is largely a factual issue to be determined by the administrator and by the board of review.However, as required by LSA-R.S. 23:1634, the factual findings must be supported by legal and competent evidence.If the determination does not meet a threshhold test of reasonableness, it is erroneous as a matter of law.Banks v. Administrator of the Department of Employment Security of the State of Louisiana, supra, Baier, Work of Appellate Courts, 1973-1974--Public Law, 35 La.L.Rev. 349(1975).Even though the court cannot question facts found by the board of review if supported by sufficient evidence, the court may determine the meaning of the law to be applied to those facts and to review the application of the law.Broussard v. Administrator, Division of Employment Security, 121 So.2d 268(La.App. 1st Cir.1960);Turner v. Brown, 134 So.2d 384(La.App. 3rd Cir.1961).Therefore this court may consider whether the decisions below correctly found that Ward's behavior constituted disqualifying misconduct as a matter of law.

The issue of what constitutes disqualifying misconduct arising from insubordinate confrontations between an employee and a supervisor has been considered by Louisiana courts on numerous occasions, often with seemingly disparate results.Insubordination which constitutes disqualifying misconduct may take many forms, such as "hot headed" incidents in which the employee, due to some provocation, erupts into abusive language.The cases sometimes involve insubordination when an employee is confronted by the supervisor for failing to follow orders or rules set down by the employer.

In the cases of the so-called "hot headed" incidents, several cases have...