{ "id": 11800385, "name": "REBECCA L. MARLOW, Petitioner-Appellant v. NORTH CAROLINA EMPLOYMENT SECURITY COMMISSION, Respondent-Appellee", "name_abbreviation": "Marlow v. North Carolina Employment Security Commission", "decision_date": "1997-11-18", "docket_number": "No. COA96-1501", "first_page": "734", "last_page": "738", "citations": [ { "type": "official", "cite": "127 N.C. App. 734" } ], "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": "266 S.E.2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "856", "parenthetical": "citing Werner for holding that employee terminating employment for good cause attributable to employer is not, in order to preserve employee's claim for unemployment benefits, obligated to attempt resolution of the conflict prior to leaving" }, { "page": "856" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 163", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548628 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "167", "parenthetical": "citing Werner for holding that employee terminating employment for good cause attributable to employer is not, in order to preserve employee's claim for unemployment benefits, obligated to attempt resolution of the conflict prior to leaving" }, { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0163-01" ] }, { "cite": "263 S.E.2d 4", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1980, "pin_cites": [ { "page": "6" }, { "page": "7" }, { "parenthetical": "citation omitted" }, { "page": "7" } ], "opinion_index": 0 }, { "cite": "44 N.C. App. 723", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554939 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "725" }, { "page": "728" }, { "page": "728" } ], "opinion_index": 0, "case_paths": [ "/nc-app/44/0723-01" ] }, { "cite": "27 S.E.2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "pin_cites": [ { "page": "285" } ], "opinion_index": 0 }, { "cite": "223 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611581 ], "year": 1943, "pin_cites": [ { "page": "474" } ], "opinion_index": 0, "case_paths": [ "/nc/223/0470-01" ] }, { "cite": "346 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "\" 'designation \"manager\" implies general power and permits a reasonable inference that he was vested with the general conduct and control of defendant's business . . ., and his acts are, when committed in the line of his duty and in the scope of his employment, those of the company' \"" } ], "opinion_index": 0 }, { "cite": "317 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4780326, 4777709, 4778478, 4779983, 4776954 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0334-03", "/nc/317/0334-02", "/nc/317/0334-05", "/nc/317/0334-01", "/nc/317/0334-04" ] }, { "cite": "340 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "122" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 483", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521761 ], "year": 1986, "pin_cites": [ { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0483-01" ] }, { "cite": "48 F.3d 1343", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7413004 ], "year": 1995, "pin_cites": [ { "page": "1350-52" } ], "opinion_index": 0, "case_paths": [ "/f3d/48/1343-01" ] }, { "cite": "693 So.2d 1343", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 12028084 ], "year": 1997, "pin_cites": [ { "page": "1348", "parenthetical": "\"sexual harassment in the work place constitutes good cause for voluntarily leaving employment in the context of unemployment compensation benefit claims\"" } ], "opinion_index": 0, "case_paths": [ "/so2d/693/1343-01" ] }, { "cite": "267 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "399", "parenthetical": "had claimant \"left her job because of racial discrimination practiced against her by her employer, she would have had good cause attributable to her employer and so would not have been disqualified for benefits\"" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 468", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550160 ], "year": 1980, "pin_cites": [ { "page": "471", "parenthetical": "had claimant \"left her job because of racial discrimination practiced against her by her employer, she would have had good cause attributable to her employer and so would not have been disqualified for benefits\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0468-01" ] }, { "cite": "437 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "695", "parenthetical": "\"[t]he public policy of North Carolina must be to stop sexual harassment in the work place\"" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 132", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520923 ], "year": 1993, "pin_cites": [ { "page": "137", "parenthetical": "\"[t]he public policy of North Carolina must be to stop sexual harassment in the work place\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0132-01" ] }, { "cite": "432 S.E.2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "401" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 410", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522289 ], "year": 1993, "pin_cites": [ { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0410-01" ] }, { "cite": "376 S.E.2d 756", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "758" }, { "page": "758" } ], "opinion_index": 0 }, { "cite": "324 N.C. 213", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2486371 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "216" }, { "page": "216" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0213-01" ] }, { "cite": "324 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 618", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749784 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0618-01" ] }, { "cite": "311 S.E.2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "374" } ], "opinion_index": 0 }, { "cite": "66 N.C. App. 260", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524329 ], "year": 1984, "pin_cites": [ { "page": "263" } ], "opinion_index": 0, "case_paths": [ "/nc-app/66/0260-01" ] } ], "analysis": { "cardinality": 561, "char_count": 10385, "ocr_confidence": 0.731, "pagerank": { "raw": 2.6645448849848914e-07, "percentile": 0.8252481129208691 }, "sha256": "bd9dbd892c9d3939ba791cb7a8e04bd8bf6c5c8c1a673222009121eefb5326cc", "simhash": "1:21f1cc6a2cbb2658", "word_count": 1612 }, "last_updated": "2023-07-14T19:43:16.540119+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and SMITH concur." ], "parties": [ "REBECCA L. MARLOW, Petitioner-Appellant v. NORTH CAROLINA EMPLOYMENT SECURITY COMMISSION, Respondent-Appellee" ], "opinions": [ { "text": "JOHN, Judge.\nPetitioner appeals the trial court\u2019s order affirming decisions of the Employment Security Commission of North Carolina (the Commission) and the Appeals Referee denying her claim for unemployment benefits. We reverse the trial court.\nThe underlying facts are essentially uncontroverted and pertinent portions are set out in the findings of fact of the Appeals Referee as follows:\n1. [Petitioner] worked for Carpenter Decorating Company . . . as a machine operator. . . .\n3. [She] left this job because her immediate supervisor made repeated sexual comments to her in the workplace over a period of several years up until [her termination], [Petitioner] was offended and intimidated by the supervisor\u2019s behavior and told him to stop it, but he never did. . . .\n4. The supervisor\u2019s behavior amounted to sexual harassment. . . .\n5. [The] [employer\u2019s policy, known to [petitioner] at the times in question, prohibited sexual harassment and required that it be reported to upper management if the harasser was the direct supervisor.\n6. [Petitioner] never reported the sexual harassment to any management over the immediate supervisor because she thought that she would not be believed ....\nThe Appeals Referee further found that \u201c[b]y failing to report the sexual harassment to upper management before leaving the job, [petitioner] denied employer the opportunity to solve the problem.\u201d\nBased upon the foregoing findings, the Appeals Referee concluded petitioner\u2019s termination of employment was not for good cause attributable to her employer, and denied her claim for unemployment benefits. On 9 April 1996, the Commission affirmed and adopted as its own the decision of the Appeals Referee. Petitioner sought judicial review 24 April 1996 in Catawba County Superior Court, which affirmed the Commission 20 August 1996. Petitioner filed notice of appeal to this Court 16 September 1996.\nUpon leaving her position at Carpenter Decorating Company (CDC), petitioner filed for unemployment benefits pursuant to the Employment Security Act (the Act), codified at N.C.G.S. \u00a7 96-1 et seq. (1995). The Act is to be liberally construed in favor of applicants. Eason v. Gould, Inc., 66 N.C. App. 260, 263, 311 S.E.2d 372, 374 (1984), aff\u2019d, 312 N.C. 618, 324 S.E.2d 223 (1985). Further, in keeping with the legislative policy to reduce the threat posed by unemployment to the \u201chealth, morals, and welfare of the people of this State,\u201d N.C.G.S. \u00a7 96-2 (1995), statutory provisions allowing disqualification from benefits must be strictly construed in favor of granting claims. Barnes v. The Singer Co., 324 N.C. 213, 216, 376 S.E.2d 756, 758 (1989).\nThe statutory disqualification provision applicable to the case sub judice is N.C.G.S. \u00a7 96-14(1) (1995), which states, inter alia:\nAn individual shall be disqualified for benefits ... if it is determined by the Commission that such individual is, at the time [his] claim is filed, unemployed because he left work without good cause attributable to the employer.\nPetitioner has consistently maintained she terminated employment with CDC because of sexual harassment by her immediate supervisor, and, indeed, the Appeals Referee found as a fact that her \u201csupervisor\u2019s behavior amounted to sexual harassment of [petitioner].\u201d Consequently, petitioner continues, she left for \u201cgood cause attributable to the employer\u201d and was not, as a result, disqualified from receipt of unemployment benefits by G.S. \u00a7 96-14(1).\nAn employee who terminates employment for \u201cgood cause\u201d leaves for a reason \u201cthat would be deemed by reasonable men and women as valid and not indicative of an unwillingness to work.\u201d Watson v. Employment Sec. Comm., 111 N.C. App. 410, 413, 432 S.E.2d 399, 401 (1993). It cannot be contested that sexual harassment in the workplace constitutes good cause under G.S. \u00a7 96-14(1) for leaving employment, and the Commission has advanced no argument to the contrary. See Phelps v. Vassey, 113 N.C. App. 132, 137, 437 S.E.2d 692, 695 (1993) (\u201c[t]he public policy of North Carolina must be to stop sexual harassment in the work place\u201d), and In re Bolden, 47 N.C. App. 468, 471, 267 S.E.2d 397, 399 (1980) (had claimant \u201cleft her job because of racial discrimination practiced against her by her employer, she would have had good cause attributable to her employer and so would not have been disqualified for benefits\u201d); see also Hoerner Boxes, Inc. v. Mississippi Employment Sec. Com\u2019n, 693 So.2d 1343, 1348 (Miss. 1997) (\u201csexual harassment in the work place constitutes good cause for voluntarily leaving employment in the context of unemployment compensation benefit claims\u201d).\nMoreover, the Commission, in asserting that the trial court ruled properly and in responding to petitioner\u2019s argument to this Court, does not focus upon imputation to CDC of the supervisor\u2019s actions in sexually harassing petitioner. See Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1350-52 (1995) (where supervisor\u2019s sexual misconduct occurred \u201cin the workplace, during working hours, on an employee whom he had authority to hire, fire, promote, and discipline,\u201d supervisor acted within scope of his employment such that employer is vicariously liable in action grounded on supervisor\u2019s actions); Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 492, 340 S.E.2d 116, 122, disc. review denied, 317 N.C. 334, 346 S.E.2d 140 (1986) (\u201c \u2018designation \u201cmanager\u201d implies general power and permits a reasonable inference that he was vested with the general conduct and control of defendant\u2019s business . . ., and his acts are, when committed in the line of his duty and in the scope of his employment, those of the company\u2019 \u201d) (quoting Gillis v. Tea Co., 223 N.C. 470, 474, 27 S.E.2d 283, 285 (1943)).\nRather, the Commission, in arguing petitioner\u2019s termination of employment was not for good cause attributable to CDC, points in the main to findings of the Appeals Referee that CDC was never advised by petitioner of the supervisor\u2019s actions notwithstanding CDC\u2019s policy against sexual harassment, and that petitioner\u2019s \u201cfail[ure] to report the sexual harassment to upper management before leaving the job . . . denied [CDC] the opportunity to solve the problem.\u201d Accordingly, the Commission asserts, the trial court properly affirmed the determination of the Appeals Referee that plaintiff\u2019s leaving employment at CDC was not attributable to her employer:\n[T]he facts in this unemployment case do not show this employer was at fault since it had a policy prohibiting sexual harassment and did not know that the claimant had been sexually harassed since she did not follow the employer\u2019s reasonable policy that required reporting it to the \u201cupper management.\u201d\nThe Commission\u2019s argument is unfounded.\nAn earlier decision of this Court, In re Werner, 44 N.C. App. 723, 725, 263 S.E.2d 4, 6 (1980), squarely resolved the question of whether an employee\u2019s failure to seek redress under the employer\u2019s grievance procedure rendered her departure without good cause attributable to the employer. In Werner, we affirmed the trial court\u2019s ruling that\nas a matter of law, claimant\u2019s failure to use the grievance machinery did not render the separation voluntary or without good cause attributable to the employer.\nWerner, 44 N.C. App. at 728, 263 S.E.2d at 7. In reaching this holding, we examined the legislative intent behind enactment of G.S. \u00a7 96-1 et seq.:\nAlthough the General Assembly could have, by statute, disqualified all such employees who do not exhaust the employer\u2019s grievance machinery, it has not done so. The disqualifying provisions of G.S. 96-14 are to be construed strictly in favor of the claimant.... It therefore would not be consistent with the public policy of our State, as expressed in G.S. 96-2 or the opinions of our courts, to disqualify from benefit eligibility such employees for not availing themselves of the employer\u2019s grievance machinery.\nId. (citation omitted).\nThe holding of Werner is precisely on point with the facts herein: petitioner\u2019s mere failure to report sexual harassment pursuant to her employer\u2019s grievance policy did not, in itself, disqualify her from unemployment benefits eligibility. See also In re Clark, 47 N.C. App. 163, 167, 266 S.E.2d 854, 856 (1980) (citing Werner for holding that employee terminating employment for good cause attributable to employer is not, in order to preserve employee\u2019s claim for unemployment benefits, obligated to attempt resolution of the conflict prior to leaving). Petitioner\u2019s failure to report her supervisor\u2019s misconduct having been the basis for the Commission\u2019s denial of her unemployment benefits claim, the trial court erred in affirming the Commission. Construing the relevant disqualifying provisions strictly and in favor of granting petitioner\u2019s claim, Barnes, 324 N.C. at 216, 376 S.E.2d at 758, we hold that petitioner, under the circumstances sub judice, left employment with CDC for good cause attributable to her employer. See Werner, 44 N.C. App. at 728, 263 S.E.2d at 7, and Clark, 47 N.C. App. at 167, 266 S.E.2d at 856.\nBased on the foregoing, the order of the trial court is reversed and this case remanded to that court for further remand to the Commission with instructions to ascertain the period of petitioner\u2019s entitlement to unemployment benefits and thereupon to award her the appropriate amount thereof.\nReversed and remanded.\nJudges LEWIS and SMITH concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Catawba Valley Legal Services, Inc., by John Vail, for petitioner-appellant.", "Employment Security Commission of North Carolina, by Chief Counsel Thelma M. Hill and Deputy Chief Counsel Henry Gransee, for respondent-appellee." ], "corrections": "", "head_matter": "REBECCA L. MARLOW, Petitioner-Appellant v. NORTH CAROLINA EMPLOYMENT SECURITY COMMISSION, Respondent-Appellee\nNo. COA96-1501\n(Filed 18 November 1997)\nLabor and Employment \u00a7 152 (NCI4th)\u2014 sexual harassment\u2014 good cause for leaving employment \u2014 right to unemployment benefits\nAn employee who left her employment because of sexual harassment by her immediate supervisor terminated her employment for good cause attributable to the employer and was not disqualified for unemployment benefits even though she failed to report the sexual harassment to upper management pursuant to the employer\u2019s grievance policy.\nAppeal by petitioner from order entered 20 August 1996 by Judge Ronald E. Bogle in Catawba County Superior Court. Heard in the Court of Appeals 27 August 1997.\nCatawba Valley Legal Services, Inc., by John Vail, for petitioner-appellant.\nEmployment Security Commission of North Carolina, by Chief Counsel Thelma M. Hill and Deputy Chief Counsel Henry Gransee, for respondent-appellee." }, "file_name": "0734-01", "first_page_order": 770, "last_page_order": 774 }