{ "id": 8521592, "name": "WILLIAM N. DOYLE, Petitioner-Appellant v. SOUTHEASTERN GLASS LAMINATES, INC., and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Respondents-Appellees", "name_abbreviation": "Doyle v. Southeastern Glass Laminates, Inc.", "decision_date": "1991-11-05", "docket_number": "No. 9019SC1318", "first_page": "326", "last_page": "334", "citations": [ { "type": "official", "cite": "104 N.C. App. 326" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "58 ALR3d 674", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "weight": 2, "opinion_index": -1 }, { "cite": "151 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 624", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564406 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0624-01" ] }, { "cite": "398 S.E.2d 40", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "42" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 603", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527319 ], "year": 1990, "pin_cites": [ { "page": "606" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0603-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 96-17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(bl)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 6-19.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "406 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "612" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 585", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522294 ], "year": 1991, "pin_cites": [ { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0585-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 96-14", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(2A)" }, { "page": "(2A)" }, { "page": "(2A)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 9645", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "289 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "359", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "305 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569932 ], "year": 1982, "pin_cites": [ { "page": "376", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0373-01" ] }, { "cite": "307 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "309 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762957, 4765550, 4763995, 4764923, 4761023 ], "year": 1983, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0321-05", "/nc/309/0321-01", "/nc/309/0321-02", "/nc/309/0321-04", "/nc/309/0321-03" ] }, { "cite": "303 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "412-13", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "62 N.C. App. 729", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524890 ], "year": 1983, "pin_cites": [ { "page": "731", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/62/0729-01" ] } ], "analysis": { "cardinality": 639, "char_count": 16330, "ocr_confidence": 0.783, "pagerank": { "raw": 4.906624182039208e-07, "percentile": 0.9338876513650024 }, "sha256": "772acba101b35869c97a17c506f31a67610c159b6c62b18448c398485ae0e09e", "simhash": "1:813c5542715ab56f", "word_count": 2513 }, "last_updated": "2023-07-14T22:39:04.224888+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge LEWIS concurs.", "Judge COZORT dissents." ], "parties": [ "WILLIAM N. DOYLE, Petitioner-Appellant v. SOUTHEASTERN GLASS LAMINATES, INC., and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Respondents-Appellees" ], "opinions": [ { "text": "ORR, Judge.\nPetitioner argues six errors on appeal. For the following reasons, we hold that the trial court did not err and affirm its judgment of 18 September 1990.\nIt is well-settled law in this state that in an appeal from a decision of the Employment Security Commission, the reviewing court must determine if there was evidence before the Commission to support its findings of fact and determine whether the facts found support the Commission\u2019s conclusions of law and resulting decision. In re Miller v. Guilford County Schools, 62 N.C. App. 729, 731, 303 S.E.2d 411, 412-13, disc. review denied, 309 N.C. 321, 307 S.E.2d 165 (1983) (citation omitted). The question presented for the reviewing court is \u201cwhether the facts found are sufficient to support the judgment, i.e., whether the court correctly applied the law to the facts found.\u201d Intercraft Industries Corp. v. Morrison, 305 N.C. 373, 376, 289 S.E.2d 357, 359 (1982) (citation omitted).\nUnder the Unemployment Compensation Act, a claimant is presumed to be entitled to benefits. This presumption is rebuttable with the burden on the employer to establish circumstances disqualifying the claimant. Id. Based upon the evidence in the present case, we hold that the employer met its burden to establish those circumstances to disqualify petitioner.\nIn the case sub judice, the Commission made the following findings of fact.\n1. At the time the Claims Adjudicator issued a determination in this matter, the claimant had filed continued claims for unemployment insurance benefits for the period December 31, 1989, through January 13, 1990. The claimant has registered for work with the Commission, has continued to report to an employment office of the Commission and has made a claim for benefits in accordance with N.C. Gen. Stat. \u00a7 9645(a).\n2. The claimant last worked for Southeastern Glass Laminates, Inc., on December 19, 1989. The claimant was employed as a quality control inspector.\n3. The claimant was discharged from this job because of what the employer considered excessive absenteeism after prior warnings. The employer\u2019s policy is to issue written warnings. Three written warnings within a six (6) month period leads to suspension, and any violations after suspension lead to discharge. The management of the company reserves the right, however, to discharge for \u201cexcessive absenteeism.\u201d\n4. The claimant had received warnings concerning either lateness or absences on July 15, 1989 (for absenteeism), December 2, 1989 (excessive tardiness), and December 9, 1989 (excessive absenteeism). He was suspended effective December 20, 21, and 22, 1989. The claimant had also received warnings earlier in 1989.\n5. The company was on a lay-off from December 19, 1989, through January 2, 1990. Between the claimant\u2019s last day of work and the time he returned after lay-off, the personnel department posted further infractions to his record for absences. The claimant was discharged for excessive absenteeism upon review of his overall attendance record.\n6. The employer\u2019s policy provides that any unexcused absence will be considered excessive. The employer grants leave for military duty, injuries and personal leave.\n7. The claimant understood that any infraction following a suspension would lead to discharge as he received a company handbook of rules in 1986.\n8. On each of the claimant\u2019s absences, he either had a medical reason with documentation for being out or had requested and received permission from his supervisor to be out.\nBased upon the above findings, the Commission concluded that under N.C. Gen. Stat. \u00a7 96-14(2A), \u201cthe claimant was discharged for substantial fault connected with the work.\u201d\nPetitioner first argues that the trial court erred in affirming the Commission\u2019s findings and conclusions because as a matter of law, petitioner cannot be at \u201csubstantial fault\u201d under the above statute for missing work, so long as his absences were approved by his supervisor. We disagree.\nUnder \u00a7 96-14(2A):\nFor a period of not less than four nor more than 13 weeks beginning with the first day of the first week during which or after the disqualifying act occurs with respect to which week an individual files a claim for benefits if it is determined by the Commission that such individual is, at the time the claim is filed, unemployed because he was discharged for substantial fault on his part connected with his work not rising to the level of misconduct. Substantial fault is defined to include those acts or omissions of employees over which they exercised reasonable control and which violated 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.\nN.C. Gen. Stat. \u00a7 96-14(2A) (1990).\nIn Lindsey v. Qualex, Inc., 103 N.C. App. 585, 591, 406 S.E.2d 609, 612 (1991), this Court held that a claimant\u2019s consistent unexcused absences and tardiness may rise to the level of substantial fault under \u00a7 96-14(2A). The case at bar is similar. Petitioner had numerous incidents of tardiness documented in the record. Although most of petitioner\u2019s day-long absences were approved by his supervisor, they were not necessarily \u201cexcused\u201d absences as defined in the employee handbook.\nMoreover, under the statute, the Commission may find substantial fault for \u201cminor infractions\u201d if the employee has repeated infractions and the employee receives a warning. Here, petitioner received three written warnings in a five month period for excessive tardiness and absenteeism. Petitioner testified that after his third warning and suspension in December that he knew that he could be \u201clet go\u201d for more tardiness or absences. We find that this is enough to meet the statutory requirements under N.C. Gen. Stat. \u00a7 96-14(2A).\nWe, therefore, hold that the trial court did not err in affirming the Commission\u2019s decision to disqualify petitioner from receiving unemployment benefits for nine weeks.\nPetitioner next argues that the evidence of record does not support findings of fact 5, 6, and 7. We have reviewed the evidence and find that it supports these findings. There is substantial evidence in the record to support finding number 5. There is no dispute that the company was on a lay-off from 19 December 1989 through 2 January 1990. Petitioner testified that he was either absent or tardy on the additional posted dates for December 1989. Ms. Terry Hannon, Personnel Assistant, testified from written records that additional unexcused absences or tardiness had been posted to petitioner\u2019s employment record in December 1989 and that he was discharged after reviewing his overall attendance record.\nPetitioner challenges findings 6 and 7 to the extent that they state that he knew that his absences were unexcused or violations of company policy. Petitioner testified that he believed that his absences were excused if approved by his supervisor. He further testified that he was told they were unexcused when he was terminated.\nHowever, petitioner acknowledged that he received an employee handbook and was aware that further infractions of work rules, including his tardiness and absences, could lead to his discharge. Further, petitioner knew, through his written warnings, that he was close to being terminated for excessive absences or tardiness and testified to this. Therefore, we hold that the evidence supports findings of fact 6 and 7.\nThe remaining issue we must address is whether the trial court erred in failing to award attorneys\u2019 fees to petitioner. We hold that the trial court did not err.\nPetitioner argues that N.C. Gen. Stat. \u00a7 6-19.1 permits recovery of attorneys\u2019 fees in this action because \u201cthe agency acted without substantial justification in pressing its claim against the party; and . . . there are no special circumstances that would make the award of attorney\u2019s fees unjust.\u201d N.C. Gen. Stat. \u00a7 6-19.1 (1986). We disagree with this contention.\nFirst, we find no evidence in the record before us that \u201cthe agency acted without substantial justification in pressing its claim against [petitioner].\u201d The employer had every right to appeal the appeals referee\u2019s decision to the Full Commission and the Commission acted on that appeal. Petitioner alleged several procedural violations during this appeal. We have reviewed the record and find that these violations, if any, do not rise to the level of acting \u201cwithout substantial justification\u201d required by the statute.\nSecond, N.C. Gen. Stat. \u00a7 96-17(bl) directly addresses the issue of attorneys\u2019 fees and states that \u201cin any court proceeding under this Chapter each party shall bear its own costs and legal fees.\u201d This statute is specific to actions under Chapter 96 and therefore controls the issue in the present case. It is well-settled law that when one statute speaks directly to a particular situation, that statute will control other general statutes regarding that particular situation, absent clear legislative intent to the contrary. Whittington v. N.C. Department of Human Resources, 100 N.C. App. 603, 606, 398 S.E.2d 40, 42 (1990), citing, Food Stores v. Board of Alcoholic Control, 268 N.C. 624, 151 S.E.2d 582 (1966). Because we find that neither the Commission nor the employer acted \u201cwithout substantial justification\u201d under \u00a7 6-19.1, we need not address the Legislature\u2019s intent concerning which of the statutes would control under those circumstances. Therefore, we hold that \u00a7 96-17(bl) is specific to the case before us, and petitioner is responsible for his own legal fees and costs.\nWe have considered petitioner\u2019s remaining assignments of error concerning notice of appeal, new evidence allegedly considered by the Commission and additional affidavits and find them without merit.\nFor the above reasons, we affirm the trial court\u2019s judgment.\nAffirmed.\nJudge LEWIS concurs.\nJudge COZORT dissents.", "type": "majority", "author": "ORR, Judge." }, { "text": "Judge COZORT\ndissenting.\nI disagree with the conclusion that petitioner was discharged for substantial fault and was thus subject to disqualification of benefits for nine weeks. I base my opinion on a review of the record below which shows, without dispute, that petitioner committed no attendance infractions after his suspension, and he could not have been properly discharged for absenteeism.\nThe record does not contain a complete copy of the employment handbook, making effective appellate review difficult. We must rely on the Commission\u2019s findings as to the employer\u2019s policy. The Commission found, without exception from any party, that the employer\u2019s policy provides for written warnings, suspension, and \u201cany violations after suspension lead to discharge.\u201d (Emphasis added.) This three-step process apparently did not apply to certain egregious infractions, known as \u201cgroup one work rules,\u201d which could result in immediate discharge. Excessive absenteeism, the reason given for petitioner\u2019s discharge, is not listed in the \u201cgroup one work rules.\u201d Excessive absenteeism is listed in the \u201cgroup two work rules,\u201d which appear, from my reading of the woefully inadequate record, to be the less serious violations subject to the three-step disciplinary process: written warning, suspension, and discharge for violations occurring after suspension.\nAs the record plainly shows, petitioner received warnings prior to 19 December 1989. He was suspended \u00f3n 19 December 1989. The company was on lay-off, through no fault of the petitioner, from 20 December 1989 through 2 January 1990. On 2 January 1990 the employer discharged petitioner, apparently for absences which occurred before 19 December 1989, but which the employer allegedly failed to \u201cpost\u201d until some point during the lay-off. That purported discharge did not comply with the employer\u2019s own policy which provides that discharge must be for infractions which occur after suspension. Such would, of course, be impossible here because the company was on lay-off while petitioner was suspended.\nThere is no doubt that petitioner had numerous absences and that they may have been sufficient to justify discharge. But the employer must follow its own rules in making that determination, and discharge in violation of its own rules should not be the basis of disqualifying petitioner from benefits.\nI vote to reverse the lower court\u2019s judgment affirming the Commission, and I respectfully dissent.", "type": "dissent", "author": "Judge COZORT" } ], "attorneys": [ "Legal Services of Southern Piedmont, Inc., hy Kenneth L. Schorr, for petitioner-appellant.", "Employment Security Commission, by Chief Counsel T.S. Whitaker, and Staff Attorney John B. DeLuca, for respondent-appellee." ], "corrections": "", "head_matter": "WILLIAM N. DOYLE, Petitioner-Appellant v. SOUTHEASTERN GLASS LAMINATES, INC., and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Respondents-Appellees\nNo. 9019SC1318\n(Filed 5 November 1991)\n1. Master and Servant \u00a7 108 (NCI3d)\u2014 unemployment compensation-rebuttable presumption\nUnder the Unemployment Compensation Act, a claimant is presumed to be entitled to benefits, but this presumption is rebuttable with the burden on the employer to establish circumstances disqualifying the claimant.\nAm Jur 2d, Unemployment Compensation \u00a7 52.\n2. Master and Servant \u00a7 108.1 (NCI3d) \u2014 unemployment benefits \u2014 substantial fault \u2014 absences\nThe trial court did not err in affirming the Employment Security Commission\u2019s decision to disqualify petitioner from receiving benefits where petitioner was discharged for excessive absenteeism; petitioner had numerous incidents of tardiness; although most of petitioner\u2019s day-long absences were approved by his supervisor, they were not necessarily \u201cexcused\u201d absences as defined in the employee handbook; petitioner received three written warnings in a five month period for excessive tardiness and absenteeism; and petitioner testified that he knew after his third warning and suspension that he could be let go for more tardiness or absences. N.C.G.S. \u00a7 96-14(2A).\nAm Jur 2d, Unemployment Compensation \u00a7 58.\nDischarge for absenteeism or tardiness as affecting right to unemployment compensation. 58 ALR3d 674.\n3. Master and Servant \u00a7 108.1 (NCI3d) \u2014 unemployment compensation-excessive absenteeism \u2014findings \u2014supported by evidence\nThere was evidence in an unemployment compensation proceeding to support the Employment Security Commission\u2019s findings concerning the posting of additional absences during a lay-off period and petitioner\u2019s knowledge that his absences were unexcused or violations of company policy.\nAm Jur 2d, Unemployment Compensation \u00a7 58.\nDischarge for absenteeism or tardiness as affecting right to unemployment compensation. 58 ALR3d 674.\n4. Master and Servant \u00a7 100 (NCI3d) \u2014 unemployment compensation-attorney fees\nThe trial court did not err by failing to award attorney fees to a petitioner who was granted unemployment benefits by an appeals referee but denied benefits on appeal to the full Commission. N.C.G.S. \u00a7 96-17(bl) directly addresses the issue of attorney fees and states that \u201cin any court proceeding under this Chapter each party shall bear its own costs and legal fees.\u201d Because neither the Commission nor the employer acted without substantial justification under N.C.G.S. \u00a7 6-19.1, the Legislature\u2019s intent concerning which statute would control under these circumstances need not be addressed.\nAm Jur 2d, Unemployment Compensation \u00a7 10.\nJudge COZORT dissenting.\nAPPEAL by petitioner from judgment entered 18 September 1990 by Judge Samuel A. Wilson in MECKLENBURG County Superior Court. Heard in the Court of Appeals 17 September 1991.\nIn December 1989, petitioner filed a claim for unemployment insurance benefits which was granted on 23 January 1990. The employer, Southeastern Glass Laminates, Inc., appealed. An Appeals Referee issued its decision in favor of petitioner on 23 February 1990. On 5 March 1990, the employer appealed this decision to respondent Employment Security Commission. On 20 April 1990, the Commission reversed the decision of the Appeals Referee and found that petitioner was disqualified from receiving benefits for nine weeks.\nPetitioner appealed the Commission\u2019s administrative decision to Mecklenburg County Superior Court. On 18 September 1990, the trial court entered its judgment in respondent\u2019s favor. Petitioner appeals from this judgment.\nLegal Services of Southern Piedmont, Inc., hy Kenneth L. Schorr, for petitioner-appellant.\nEmployment Security Commission, by Chief Counsel T.S. Whitaker, and Staff Attorney John B. DeLuca, for respondent-appellee." }, "file_name": "0326-01", "first_page_order": 354, "last_page_order": 362 }