Burroughs v. Green Apple ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-248
Filed: 3 September 2019
Wake County, No. 17 CVS 3679
DEVON J.A. BURROUGHS, Petitioner,
v.
GREEN APPLE, LLC, APPLE GOLD GROUP (DBA) APPLEBEE’S, and R. GLEN
PETERSON, CHIEF COUNSEL, NORTH CAROLINA DEPARTMENT OF
COMMERCE, DIVISION OF EMPLOYMENT SECURITY, Respondents.
Appeal by respondent Division of Employment Security from order entered 9
August 2017 by Judge Donald W. Stephens in Wake County Superior Court. Heard
in the Court of Appeals 22 May 2019.
Mary McCullers Reece for petitioner-appellee.
Respondent-appellant North Carolina Department of Commerce, Division of
Employment Security Chief Counsel R. Glen Peterson, by Camilla F. McClain.
No brief filed for respondent-appellee Green Apple, LLC.
ZACHARY, Judge.
Respondent North Carolina Department of Commerce, Division of
Employment Security (“the Division”), appeals from the superior court’s order
reversing the Board of Review’s decision that Petitioner Devon J.A. Burroughs was
disqualified from receiving unemployment compensation benefits. We affirm.
Background
BURROUGHS V. GREEN APPLE, LLC
Opinion of the Court
Burroughs began working as a server for Applebee’s in September 2015.
Burroughs reported a wage-and-hour concern to Human Resources in May 2016,
complaining of nonpayment for hours worked. Following an investigation, Applebee’s
issued a check to Burroughs in the amount of $1,299.45.
On 22 June 2016, Burroughs filed another complaint with Human Resources
alleging that the assistant manager had engaged in a pattern of retaliatory behavior
against him that included physical contact—specifically, “pushing [him] in [his] back”
on one occasion. Human Resources employee Vanessa Roman opened an investigation
into the complaint, and spoke with the assistant manager as well as other employees.
Ms. Roman testified that, based on her investigation, she was unable to substantiate
Burroughs’s allegations.
On 18 July 2016, Ms. Roman held a meeting with Burroughs, the assistant
manager, and the general manager. At the meeting, all parties were asked to sign a
document stating that they “would all agree to move forward and align with the
organization’s guiding principles.” The document also contained an acknowledgment
that Applebee’s had “completed [its] investigation into the concerns raised by”
Burroughs’s complaint, and had taken “corrective actions as needed.”
Burroughs agreed to sign that portion of the document in which he pledged to
abide by his employer’s expectations moving forward, but he refused to sign the
portion acknowledging that Applebee’s had made a complete investigation into his
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Opinion of the Court
complaint and that appropriate corrective action had been taken. According to Ms.
Roman, Burroughs
said he would only provide me with additional details to
support his allegations if I provided him a copy of my
investigation report. Since I was the one that conducted the
investigation I was the lead on that case, I expressed to him
that I had completed a thorough investigation into his
concerns and that the document that we were asking him
to sign was only a tool to memorialize our previous
conversation about alignment and moving forward and
again continuing to provide our guests with excellent
service. He still refused and stated that he did not agree
and he said I guess I can’t work for you guys then. And at
that moment we agreed to separate.
Burroughs last worked for Applebee’s on 17 July 2016.
Burroughs filed a claim for unemployment insurance benefits on 7 August
2016. Ms. Roman reported that the reason for Burroughs’s discharge was that he had
“[f]ailed to follow instructions, policy, [and] contract.” Thereafter, a claims
adjudicator determined that Burroughs was disqualified from receiving
unemployment insurance benefits pursuant to N.C. Gen. Stat. § 96-14.6(a)(b), in that
he “was discharged for misconduct connected with the work.” Burroughs appealed
that decision to the Appeals Referee, who issued a decision on 9 November 2016
concluding that Burroughs had been “discharged for insubordination,” which
amounted to “misconduct connected with his work,” thereby disqualifying him from
receiving benefits. Burroughs appealed to the Board of Review, which affirmed the
Appeals Referee’s decision.
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Opinion of the Court
Burroughs petitioned for judicial review in Wake County Superior Court. By
order entered 9 August 2017, the superior court reversed the Board’s decision and
ordered that “the agency shall [ensure] that [Burroughs] receives the unemployment
benefits to which he is entitled as a matter of law.” The Division filed timely notice of
appeal from the superior court’s order.
On appeal, the Division argues that the superior court erred by disregarding
the applicable standard of review and reversing the Board’s determination that
Burroughs was discharged for misconduct connected with his work, disqualifying him
from receiving unemployment benefits. We disagree, and affirm the superior court’s
order reversing the Board’s decision and requiring that the Division issue to
Burroughs the unemployment benefits to which he is entitled.
Standard of Review
The instant appeal arises under N.C. Gen. Stat. § 96-15(i).
The statute provides in relevant part that in any judicial
proceeding under this section, the findings of fact by the
[Division], 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. Thus, findings of fact in an appeal from a decision
of the Employment Security Commission are conclusive on
both the superior court and this Court if supported by any
competent evidence.
James v. Lemmons, 177 N.C. App. 509, 513, 629 S.E.2d 324, 328 (2006) (quotation
marks and citation omitted). The Division’s conclusions of law are reviewed de novo.
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Opinion of the Court
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). A determination that an employee’s unemployment is due to
misconduct connected with the work is a conclusion of law, and is therefore reviewed
de novo. Bailey v. Div. of Empl. Sec., 232 N.C. App. 10, 11, 753 S.E.2d 219, 221 (2014).
Discussion
Pursuant to N.C. Gen. Stat. § 96-14.6, an individual will be disqualified from
receiving unemployment benefits if the individual is discharged due to “misconduct
connected with the work.” N.C. Gen. Stat. § 96-14.6(a) (2017). The burden is on the
employer to show that a claimant is unemployed due to misconduct, thereby
disqualifying the individual from receiving unemployment benefits. Intercraft Indus.
Corp. v. Morrison, 305 N.C. 373, 376, 289 S.E.2d 357, 359 (1982).
While an employer may be within its right in terminating an employee, this
fact alone is not necessarily determinative of the employee’s right to receive
unemployment benefits. However, an employee who is fired for “misconduct
connected with the work” will be disqualified from receiving unemployment benefits.
Williams v. Davie Cty., 120 N.C. App. 160, 165, 461 S.E.2d 25, 29 (1995). In the
context of the statute, “misconduct” means “conduct which shows a wanton or wilful
disregard for the employer’s interests, a deliberate violation of the employer’s rules,
or a wrongful intent.” Intercraft Indus. Corp., 305 N.C. at 375, 289 S.E.2d at 359; see
also N.C. Gen. Stat. § 96-14.6(b) (defining “misconduct connected with the work”).
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Nevertheless, “[v]iolating a work rule is not willful misconduct if evidence
shows the employee’s actions were reasonable and were taken with good cause.”
Williams, 120 N.C. App. at 164, 461 S.E.2d at 28. “Good cause is a reason which would
be deemed by reasonable men and women valid and not indicative of an unwillingness
to work.” Id. Indeed, “[t]he purpose of denying a discharged employee unemployment
benefits because of misconduct connected with work is to prevent these benefits from
going to employees who lose their jobs because of callous, wanton and deliberate
misbehavior.” Id. at 165, 461 S.E.2d at 29 (quotation marks omitted). In that respect,
one of the key considerations in determining, as a matter of law, whether an employee
was discharged for “misconduct connected with the work” is whether the
circumstances “display[ed] wrongful intent” in the employee’s actions. Id. at 164, 461
S.E.2d at 28.
In the instant case, the Division found that Burroughs was discharged from
employment for “insubordination” based solely upon Burroughs’s refusal to sign a
portion of the document that was presented to him in response to his complaint
against the assistant manager. Burroughs communicated his support for, and
willingness to sign, those portions of the agreement concerning his employer’s future
expectations; however, he declined to sign that portion acknowledging that his
employer had fully investigated the allegations of his grievance and had taken
appropriate corrective action.
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Opinion of the Court
The Division’s findings of fact that Burroughs was terminated on the grounds
of insubordination are supported by competent evidence, and are thus binding on
appeal. James, 177 N.C. App. at 513, 629 S.E.2d at 328. Accordingly, the only issue
remaining on appeal is whether, as a matter of law, Burroughs’s refusal to attest that
his employer had conducted a complete investigation into his internal complaint and
taken appropriate “corrective actions” in response constituted “misconduct connected
with the work.” The superior court concluded that such “insubordination” did “not
rise to the level of misconduct” sufficient to disqualify Burroughs from receiving
unemployment insurance benefits. Williams, 120 N.C. App. at 165, 461 S.E.2d at 28.
We agree.
Burroughs’s refusal to attest to the completion of the investigation or the
appropriateness of the corrective action that had been taken did not show a “wanton
. . . disregard for [his] employer’s interests, a deliberate violation of [its] rules, or a
wrongful intent,” Intercraft Indus. Corp., 305 N.C. at 375, 289 S.E.2d at 359, but was
instead “a reasonable response” to the disagreement at hand, Williams, 120 N.C. App.
at 165, 461 S.E.2d at 28. Moreover, Burroughs’s reluctance to acknowledge that his
employer had conducted a complete investigation in no way prevented his employer
from closing that investigation. See Umstead v. Emp’t Sec. Comm’n, 75 N.C. App. 538,
541, 331 S.E.2d 218, 220 (“In this case, there were no logistical problems sufficient to
constitute misconduct under the statute, caused by [the employee].”), disc. review
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Opinion of the Court
denied, 314 N.C. 675, 336 S.E.2d 405 (1985). The record reveals “no refusal to report
to work or to perform an assigned task,” in that Burroughs readily agreed to sign that
portion of the document indicating his willingness to move forward and to abide by
his employer’s expectations. Id.
In these respects, the Division’s findings and the evidence before it do not
support a conclusion that Burroughs’s insubordination constituted “callous, wanton
and deliberate misbehavior.” Williams, 120 N.C. App. at 165, 461 S.E.2d at 29
(quotation marks omitted). The superior court therefore correctly concluded that
Burroughs’s employer failed to meet its burden of showing that his conduct “rose to
the level of culpability required for a finding of ‘misconduct’ within the meaning of
the statute.” Umstead, 75 N.C. App. at 542, 331 S.E.2d at 221.
Accordingly, we affirm the superior court’s order reversing the Division’s
decision that Burroughs is disqualified from receiving unemployment insurance
benefits.
AFFIRMED.
Judges STROUD and MURPHY concur.
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