{ "id": 8522192, "name": "LARRY LYNCH, Petitioner v. PPG INDUSTRIES and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Respondents", "name_abbreviation": "Lynch v. PPG Industries", "decision_date": "1992-01-21", "docket_number": "No. 9127SC49", "first_page": "223", "last_page": "226", "citations": [ { "type": "official", "cite": "105 N.C. App. 223" } ], "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": "251 S.E.2d 728", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "730" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 648", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554085 ], "year": 1979, "pin_cites": [ { "page": "650-51" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0648-01" ] }, { "cite": "379 S.E.2d 51", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "93 N.C. App. 785", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528888 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/93/0785-01" ] }, { "cite": "299 S.E.2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 469", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563175, 8563145, 8563114, 8563084, 8563055 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0469-05", "/nc/307/0469-04", "/nc/307/0469-03", "/nc/307/0469-02", "/nc/307/0469-01" ] }, { "cite": "296 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "59 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526426 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/59/0341-01" ] }, { "cite": "373 S.E.2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2565730, 2564201, 2566281, 2561236, 2562006 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0174-04", "/nc/323/0174-01", "/nc/323/0174-05", "/nc/323/0174-03", "/nc/323/0174-02" ] }, { "cite": "368 S.E.2d 49", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "52" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 214", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523461 ], "year": 1988, "pin_cites": [ { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0214-01" ] } ], "analysis": { "cardinality": 439, "char_count": 7248, "ocr_confidence": 0.74, "pagerank": { "raw": 7.890908113524685e-08, "percentile": 0.46041583891570514 }, "sha256": "20dadef8bcb8ad53ec591dbf3db409a6ec0cfcf3ce0f81aa053e8e37d67919cb", "simhash": "1:bf2fb4f20e3ff67a", "word_count": 1130 }, "last_updated": "2023-07-14T19:24:40.355340+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WELLS and WYNN concur." ], "parties": [ "LARRY LYNCH, Petitioner v. PPG INDUSTRIES and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Respondents" ], "opinions": [ { "text": "PARKER, Judge.\nPetitioner Larry Lynch appeals from a judgment affirming the decision of the Employment Security Commission (\u201cESC\u201d) that he is not entitled to receive unemployment insurance benefits. Petitioner was discharged from employment with PPG Industries following his conviction for possession of cocaine with intent to sell or deliver, in violation of N.C.G.S. \u00a7 90-95(a)(l). The ESC accepted the appeal referee\u2019s findings of fact that petitioner \u201cnever consumed illegal drugs while at work\u201d and \u201cnever reported to work while impaired by illegal drugs.\u201d The ESC concluded as a matter of law, however, that petitioner\u2019s drug conviction was misconduct within the meaning of N.C.G.S. \u00a7 96-14(2), disqualifying him from drawing unemployment benefits. On petitioner\u2019s appeal, the trial court upheld the ESC\u2019s decision. We affirm.\nAn individual shall be disqualified for benefits:\n(2) . . . [where] it is determined by the Commission that such individual is, at the time such claim is filed, unemployed because he was discharged for misconduct connected with his work. Misconduct connected with the work is defined as conduct evincing such willful or wanton disregard of an employer\u2019s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his 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\u2019s interests or of the employee\u2019s duties and obligations to his employer.\nN.C.G.S. \u00a7 96-14(2) (1990).\nA new second paragraph was added to N.C.G.S. \u00a7 96-14(2) by Session Laws 1989, chapter 707, section 5, with an effective date of 1 August 1989. That paragraph was in force when petitioner was convicted on 6 September 1989, after which PPG Industries terminated his employment. The new paragraph provides:\n\u201cDischarge for misconduct with the work\u201d as used in this section is defined to include but not be limited to separation initiated by an employer for reporting to work significantly impaired by alcohol or illegal drugs; consuming alcohol or illegal drugs on employer\u2019s premises; conviction by a court of competent jurisdiction for manufacturing, selling, or distribution of a controlled substance punishable under G.S. 90-95(a)(l) or G.S. 90-95(a)(2) while in the employ of said employer.\nN.C.G.S. \u00a7 96-14(2) (1990).\nOn appeal petitioner argues that because this recent, special statutory definition of misconduct expressly enumerates all drug crimes included in N.C.G.S. \u00a7\u00a7 90-95(a)(l) and (a)(2) except for possession with intent to sell or deliver, his conviction for possession with intent to sell or deliver is not a ground for disqualification from unemployment benefits under N.C.G.S. \u00a7 96-14(2). We disagree.\nPetitioner misinterprets this special definitional paragraph to set out an exhaustive, exclusive list of examples of disqualifying misconduct. The statutory language, \u201cinclude but not be limited to,\u201d clearly indicates, however, that the legislature did not intend an exclusive list. Thus, the paragraph added to N.C.G.S. \u00a7 96-14(2) in 1989 only illustrates and illuminates the more general language in the preceding paragraph of N.C.G.S. \u00a7 96-14(2). Under this provision the employer has the burden of showing the employee\u2019s disqualification from unemployment benefits on the basis of misconduct. McGaha v. Nancy\u2019s Styling Salon, 90 N.C. App. 214, 218, 368 S.E.2d 49, 52, disc. rev. denied, 323 N.C. 174, 373 S.E.2d 110 (1988).\nEven under the general construction of \u201cmisconduct\u201d for purposes of N.C.G.S. \u00a7 96-14(2), PPG Industries met its burden in this case by showing that petitioner by his conviction of a drug crime had failed to meet the \u201cstandards of behavior\u201d that PPG Industries had \u201cthe right to expect\u201d of its employees. An employee\u2019s misconduct need not occur at the workplace or in connection with employment tasks to violate expectable behavioral norms. In re Collins v. B&G Pie Co., 59 N.C. App. 341, 296 S.E.2d 809 (1982), disc. rev. denied, 307 N.C. 469, 299 S.E.2d 221 (1983). Nothing in the listed examples of misconduct in the paragraph added to N.C.G.S. \u00a7 96-14(2) in 1989 suggests that employees violate social norms only when they manufacture, sell or deliver controlled substances and not when they are convicted of other crimes, e.g., homicide, sexual offenses or possession of a controlled substance with the intent to sell or deliver.\nBy enacting the new provision in N.C.G.S. \u00a7 96-14(2), the legislature was manifestly addressing the serious drug problem in the work force. Sound reasons exist for legislating that conduct related to substance abuse is misconduct giving rise to discharge. A drug-dealing employee may so conduct himself that (i) fellow employees are tempted to engage in the use of drugs; (ii) use of drugs may affect work performance and quality; and (iii) the employer\u2019s good will and business interests could thereby be threatened. An employer is not, however, required to prove actual harm to its interests in order to meet its burden of showing employee misconduct. In re Gregory v. N.C. Dept. of Revenue, 93 N.C. App. 785, 379 S.E.2d 51 (1989).\nA specific ground for disqualifying an employee from unemployment benefits in N.C.G.S. \u00a7 96-14, \u201cwhen applicable,\u201d prevails over the general policy in N.C.G.S. \u00a7 96-2 of providing benefits to workers who are \u201cunemployed through no fault of their own.\u201d In re Scaringelli, 39 N.C. App. 648, 650-51, 251 S.E.2d 728, 730 (1979). Under the circumstances in this case, petitioner\u2019s loss of employment was based on intentional misconduct in substantial disregard of his employer\u2019s interests. Accordingly, we affirm the judgment of the superior court upholding ESC\u2019s conclusion that petitioner is disqualified from unemployment benefits.\nAffirmed.\nJudges WELLS and WYNN concur.", "type": "majority", "author": "PARKER, Judge." } ], "attorneys": [ "Corry, Cerwin & Coleman, Attorneys, by Todd R. Cerwin, for petitioner-appellant.", "Golding, Meekins, Holden, Cosper & Stiles, by Lawrence M. Baker and Henry C. Byrum, Jr., for respondent-appellee PPG Industries.", "Chief Counsel T.S. Whitaker and Deputy Chief Counsel V. Henry Gransee, Jr., for respondent-appellee Employment Security Commission of North Carolina." ], "corrections": "", "head_matter": "LARRY LYNCH, Petitioner v. PPG INDUSTRIES and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Respondents\nNo. 9127SC49\n(Filed 21 January 1992)\nMaster and Servant \u00a7 108.1 (NCI3d)\u2014 unemployment compensation-conviction for possession of cocaine with intent to sell or deliver \u2014disqualifying misconduct\nRespondent properly concluded that petitioner was not entitled to receive unemployment insurance benefits where petitioner was discharged following his conviction for possession of cocaine with intent to sell or deliver, and the fact that that particular offense was omitted from N.C.G.S. \u00a7 96-14(2), the statute defining misconduct, was not determinative, since that statute did not set out an exclusive list of examples of disqualifying misconduct.\nAm Jur 2d, Unemployment Compensation \u00a7\u00a7 52, 52.5, 57.\nAPPEAL by petitioner from judgment entered 5 October 1990 by Judge John Mull Gardner in CLEVELAND County Superior Court. Heard in the Court of Appeals 15 October 1991.\nCorry, Cerwin & Coleman, Attorneys, by Todd R. Cerwin, for petitioner-appellant.\nGolding, Meekins, Holden, Cosper & Stiles, by Lawrence M. Baker and Henry C. Byrum, Jr., for respondent-appellee PPG Industries.\nChief Counsel T.S. Whitaker and Deputy Chief Counsel V. Henry Gransee, Jr., for respondent-appellee Employment Security Commission of North Carolina." }, "file_name": "0223-01", "first_page_order": 251, "last_page_order": 254 }