Opinion
No. COA09-590.
Filed March 2, 2010.
Gaston County No. 08 CVS 3447.
Appeal by Respondent and Employer from order entered 3 December 2008 by Judge Nathaniel J. Poovey in Gaston County Superior Court. Heard in the Court of Appeals 29 October 2009.
Ferguson, Stein, Chambers, Gresham, Sumter, P.A., by John W. Gresham, for Petitioner. Thomas H. Hodges, Jr. for Respondent Employment Security Commission of North Carolina. Lloyd Ashley Smith for Employer City of Gastonia.
I. Procedural History and Factual Background
In 1997, Petitioner Michael L. McKenzie was employed with the City of Gastonia as a police officer. As of 2007, Petitioner was assigned to the Street Crimes Unit as a Gang Investigator. In May 2007, Police Chief Terry Sult suspended Petitioner from performing any further gang-related duties in the scope of his employment as a Gastonia police officer.
On 8 June 2007, Petitioner was suspended for 15 days without pay with a recommendation for termination by Chief Sult. This recommendation was based on an Internal Affairs investigation which determined that Petitioner had intentionally deceived his supervisor and attempted to subvert another police officer to participate in covering up Petitioner's deceptive conduct. Petitioner appealed the suspension and recommendation for termination to City Manager J. Philip Bombardier.
Mr. Bombardier amended the recommended disciplinary action against Petitioner to include further suspension without pay through 18 August 2007 but not dismissal. By letter dated 10 August 2007, Mr. Bombardier also placed claimant on a 12-month probationary employment status, and ordered Petitioner "to coordinate with the management of the Police Department on work schedules, position placement, and possible reassignment."
During his suspension, in July 2007, Petitioner learned about an August conference of the North Carolina Gang Investigators Association (the "Conference"). Petitioner contacted the nonprofit group Alliance for Children and Youth (the "Alliance") that employed his wife and asked if the Alliance would pay the $100 registration fee for Petitioner to attend the Conference. The Executive Director of the Alliance, Catherine Kenzig, agreed to pay the Conference fee for Petitioner.
Ms. Kenzig had worked with Petitioner regarding a previous gang conference and had reviewed the materials for the Conference. At the time of Petitioner's discussion with Ms. Kenzig, Petitioner did not claim that he was acting in his capacity as a police officer and Ms. Kenzig was aware that Petitioner was on leave from the department.
Petitioner and his family had long-held reservations to spend the week of 11-19 August 2007 at the beach. On 13 or 14 August 2007, Petitioner contacted Chief Sult to advise him of his whereabouts and to request that he be allowed to report to work after 19 August 2007. Chief Sult directed Petitioner to report to work at 6:00 p.m. on 22 August 2007, the first day of the work week for patrol shifts. Petitioner asked Chief Sult if he could report on 23 August because he had planned to attend a church function on the evening of 22 August. Chief Sult denied this request.
From 20-22 August 2007, Petitioner attended the Conference in Durham, North Carolina. While there, he sat with other officers from the Gastonia Police Department and had dinner with them as well.
When Petitioner returned to work on 22 August 2007, Chief Sult asked Petitioner if he had attended the Conference. Petitioner replied that he had. Chief Sult then ordered Internal Affairs to conduct an investigation into Petitioner's conduct to determine if his attendance at the Conference was a violation of department policy.
Based upon the results of the Internal Affairs investigation, Chief Sult determined that Petitioner's conduct was in violation of Gastonia Police Department regulations regarding solicitation. Petitioner was also found to have violated Police Department General Order #325, Training, in that he attended the Conference without coordinating his attendance through the Police Department. Chief Sult further determined that Petitioner had been untruthful in his responses to Internal Affairs.
Based on Chief Sult's recommendation, Petitioner's employment with the City of Gastonia was terminated on 16 September 2007. Chief Sult testified that because Petitioner was a "probationary officer[,]" having been placed on probationary status on 10 August 2007, Petitioner did not have the right to appeal the 16 September 2007 decision to terminate his employment.
Petitioner filed a claim with the North Carolina Employment Security Commission (the "Commission") for unemployment insurance benefits on 23 September 2007. On 14 November 2007, an Adjudicator with the Commission ruled that Petitioner had been discharged from his employment due to misconduct connected with his work under N.C. Gen. Stat. § 96-14(2), and that he was disqualified from receiving benefits beginning 28 October 2007. Petitioner appealed to the Commission.
A hearing was held on 17 March and 18 April 2008 before Appeals Referee Joseph D. Pearlman. Following the hearing, Mr. Pearlman issued a decision modifying the judgment of the Adjudicator and holding that Petitioner was discharged from his employment for substantial fault connected with his work under N.C. Gen. Stat. § 96-14(2a), and was disqualified from receiving benefits for a period of nine weeks beginning 16 September 2007 and ending 17 November 2007. Petitioner appealed Mr. Pearlman's decision.
The Full Commission affirmed Mr. Pearlman's decision on 13 June 2008, and determined that Petitioner was disqualified from receiving benefits for a period of nine weeks beginning 28 October 2007 and ending 29 December 2007. On 27 June 2008, Petitioner filed a petition for judicial review pursuant to N.C. Gen. Stat. § 96-15(h) in Gaston County Superior Court. The City of Gastonia filed a timely motion to intervene, which was allowed.
The petition for judicial review was heard during the 22 September 2008 civil term of Gaston County Superior Court. On 3 December 2008, the trial court entered an order reversing the Full Commission and finding Petitioner eligible to receive unemployment benefits with no period of disqualification.
From the order of the trial court, the Commission and the City of Gastonia (collectively, "Respondents") appeal.
II. Discussion
Respondents first argue that the trial court erred in reversing the decision of the Commission because there was sufficient competent evidence in the record to support the Commission's findings of fact which, in turn, supported the Commission's conclusion of law that Petitioner was terminated from his employment for substantial fault connected with his work pursuant to N.C. Gen. Stat. § 96-14(2a). We agree.
"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) (2007). Thus, "the function of the reviewing court is ordinarily two-fold: (1) [t]o determine whether there was evidence before the Commission to support its findings of fact; and (2) to decide whether the facts found sustain the conclusions of law and the resultant decision of the Commission." State ex rel. Employment Sec. Comm'n v. Jarrell, 231 N.C. 381, 384, 57 S.E.2d 403, 405 (1950); accord Intercraft Indus. Corp. v. Morrison, 305 N.C. 373, 376, 289 S.E.2d 357, 359 (1982). The Commission's conclusions of law are reviewed de novo. N.C. Gen. Stat. § 96-15(i); Housecalls Nursing Servs., Inc. v. Lynch, 118 N.C. App. 275, 278, 454 S.E.2d 836, 839 (1995).
In this case, the Commission adopted, with minor modifications, the 16 findings of fact made by Mr. Pearlman. After review of the Commission's decision, the trial court determined that the Commission's findings of fact 11, 12, 14, 15 and 16 were "unsupported by competent evidence." The trial court then concluded that the remaining findings of fact did not support the Commission's conclusion that Petitioner's conduct constituted substantial fault as the term is defined in N.C. Gen. Stat. § 96-14(2a). Based on this conclusion, the trial court reversed the Commission's order disqualifying Petitioner from receiving benefits for a period of nine weeks. Respondents now argue on appeal that the trial court erred in determining that findings of fact 11, 12, 14, 15 and 16 were not supported by competent evidence.
After a thorough review of the record, we conclude that part of finding of fact 11, and findings of fact 12 and 16 in their entirety, are supported by competent evidence. These findings state as follows:
11. When discussing his return to work in the above referenced conversation with Chief Terry Sult, the claimant failed to disclose that he was attending the referenced gang training. While [Petitioner] asserts that the dates of the N.C. Gang Investigators Association Conference (Monday, Tuesday and Wednesday afternoon) were not a part of his normal work schedule, [Petitioner's] failure to mention such attendance appears to have been a conscious effort not to disclose his attendance at such training.
The "above referenced conversation" was addressed in finding of fact seven which states, "Following his reinstatement, [Petitioner] had a discussion with Gastonia Police Department Chief Terry Sult regarding the date of his actual return to work. [Petitioner] indicated he had plans to be on vacation and it was mutually agreed that [Petitioner] would return to work on Aug[ust] 22, 2007."
12. [Petitioner] violated the regulations of the Gastonia Police Department in that he attended a training conference without coordinating his attendance through the Training Bureau of the Gastonia Police Department.
. . . .
16. [Petitioner], at the very least, should have obtained department approval for his attendance at the referenced gang training conference. . . .
These findings are supported by the following evidence: Petitioner stated in his application to attend the Conference that he was employed by the Gastonia Police Department. Petitioner also testified that he was, in fact, an employee of the Gastonia Police Department at the time he completed the application to attend the Conference. As a Gastonia Police Department employee, Petitioner was subject to the General Orders of the Gastonia Police Department. General Order #325 states in relevant part:
To ensure and facilitate the Training of employees of the Gastonia Police Department, the following guidelines have been established, and SHALL be followed by ALL employees of the Police Department.
. . . .
Any training MUST be coordinated through the Training Bureau. This will include any request for training of employees, whether in-service or extra-departmental training. Any employee desiring to attend any conference, seminar, etc. must notify the Training Bureau of their plans in order for the training to be documented on the Training Calendar. The Training Calendar will be used to coordinate ALL training to prevent conflicts of staffing shortages.
. . . .
. . . [E]xtra-departmental training shall consist of ANY school, class, seminar, conference, workshop, lecture, or gathering where a structured dissemination of police related information occurs, typically at a location outside the City limits of Gastonia.
(Emphasis in original).
It is uncontested that during the telephone call between Petitioner and Chief Sult wherein they discussed Petitioner's return to work, Petitioner did not disclose to Chief Sult that he planned to attend the Conference. Furthermore, Petitioner did not notify the Training Bureau, or anyone else in the Gastonia Police Department, of his plans to attend the Conference. Although there is no record evidence to support the Commission's finding that "[Petitioner's] failure to mention such attendance appears to have been a conscious effort not to disclose his attendance at such training[,]" in failing to so disclose, Petitioner failed to adhere to Gastonia Police regulations. Accordingly, because part of finding of fact 11, and findings of fact 12 and 16, are supported by competent evidence, they are conclusive on appeal. N.C. Gen. Stat. § 96-15(i).
Only that part of finding of fact 11 that is supported by competent evidence is conclusive on appeal.
We agree with the trial court, however, that findings 14 and 15 are not supported by competent evidence. Findings of fact 14 and 15 state:
14. It was improper, if not necessarily a violation of Departmental regulations, for [Petitioner] to promise the Alliance for Children and Youth that he would offer gang-related training in exchange for the payment of his NC Gang Investigators Association conference tuition. . . .
15. The promise of training made by [Petitioner] at least implied that such training would have the sanction of the Gastonia Police Department by virtue of [Petitioner's] position as a Police Officer with that department. . . .
Ms. Kenzig testified that Defendant "mentioned that he'd be happy to do any training for us that was, that was needed." She testified that Petitioner did not identify himself as Detective McKenzie and did not represent himself as a Gastonia police officer when he contacted her regarding funding to attend the Conference. She also testified that she knew he was on leave from the Police Department when she spoke with him. This evidence is uncontradicted.
Furthermore, as of April 2007, Petitioner had been selected to teach a class at Gaston College on gangs in Gaston County. This teaching position was separate from his position with the Gastonia Police Department. Additionally, at the time of his suspension, Petitioner held an instructor's certificate with the North Carolina Division of Training and Standards and had been a member of the North Carolina Gang Investigators Association for more than four years, providing various training for the organization. This evidence, likewise, is uncontradicted.
There is no competent evidence to support the Commission's finding that it was improper for Petitioner to promise the Alliance that he would offer gang-related training in exchange for the payment of his conference tuition. Chief Sult did not testify that Petitioner would have been prohibited from conducting training for the Alliance in Petitioner's capacity as a college professor or an independent instructor. Furthermore, there is no competent evidence that Defendant's promise of training "implied that such training would have the sanction of the Gastonia Police Department[.]" Accordingly, as findings 14 and 15 are not supported by competent evidence, they are not conclusive on appeal.
We conclude, however, that even omitting the unsupported findings of fact, the remaining findings of fact support the Commission's conclusion of law that Petitioner was discharged for substantial fault connected with his work pursuant to N.C. Gen. Stat. § 96-14(2a).
N.C. Gen. Stat. § 96-14(2a) provides that an individual shall be disqualified from receiving benefits for a period of four to 13 weeks if his discharge from employment is due to "substantial fault on his part connected with his work not rising to the level of misconduct." N.C. Gen. Stat. § 96-14(2a). The statute further defines substantial fault to include those acts or omissions of employees over which they exercised reasonable control and which violate reasonable requirements of the job but shall not include (1) minor infractions of rules unless such infractions are repeated after a warning was received by the employee, (2) inadvertent mistakes made by the employee, nor (3) failures to perform work because of insufficient skill, ability, or equipment.
Id. "An employee has `reasonable control' when [he] has the physical and mental ability to conform [his] conduct to [his] employer's job requirements." Lindsey v. Qualex, Inc., 103 N.C. App. 585, 590, 406 S.E.2d 609, 612, disc. review denied, 330 N.C. 196, 412 S.E.2d 57 (1991). "The essence of [N.C. Gen. Stat. § 96-14(2a)] is that if an employer establishes a reasonable job policy to which an employee can conform, [his] failure to do so constitutes substantial fault." Id.
In this case, the Commission found that Petitioner was aware of the department regulations requiring him to coordinate his training through the department, having previously sought department permission to attend such training (including attempting to appeal a ruling by his direct supervisor in March 2007 that he not be allowed to attend such training). Furthermore, Petitioner had the ability to notify the department of his intention to attend the Conference when he spoke with Chief Sult regarding his return to work. Thus, Petitioner had reasonable control over his ability to conform his conduct to the requirements of the General Orders of the Gastonia Police Department, including General Order #325, and his failure to do so constituted substantial fault. Accordingly, the Commission's findings support its conclusion of law that Petitioner was discharged for substantial fault connected with his employment, and the conclusion of law sustains the Commission's determination that Petitioner be disqualified from receiving unemployment benefits for a period of nine weeks beginning 28 October 2007 and ending 29 December 2007.
We conclude that the trial court erred in reversing the Commission's determination that Petitioner was disqualified from receiving unemployment insurance benefits. In light of our holding, we need not reach Respondents' remaining assignments of error.
We note that Petitioner urges this Court to dismiss the City of Gastonia's appeal and argues that the City caused unreasonable delay on appeal by ordering the transcript of the hearing before the superior court. However, Petitioner advances no legal argument in support of this contention, and his argument is therefore dismissed. North Carolina Trust Co. v. Taylor, 131 N.C. App. 690, 693, 508 S.E.2d 809, 811 (1998); N.C. R. App. P. 28(b)(6) (limiting this Court's review to questions that are supported by the arguments made in the briefs).
The order of the trial court is reversed.
REVERSED.
Judges STROUD and BEASLEY concur.
Report per Rule 30(e).