{ "id": 4155357, "name": "TAWANNA APPLEWHITE, Petitioner-Appellant, v. ALLIANCE ONE INTERNATIONAL, INC. f/k/a STANDARD COMMERCIAL TOBACCO CO., INC., and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Respondents-Appellees", "name_abbreviation": "Applewhite v. Alliance One International, Inc.", "decision_date": "2008-01-15", "docket_number": "No. COA07-123", "first_page": "271", "last_page": "278", "citations": [ { "type": "official", "cite": "188 N.C. App. 271" } ], "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": "629 S.E.2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635767 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "332" }, { "page": "332" } ], "opinion_index": 0, "case_paths": [ "/se2d/629/0324-01" ] }, { "cite": "177 N.C. App. 509", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301706 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0509-01" ] }, { "cite": "412 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "opinion_index": 0 }, { "cite": "330 N.C. 196", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511136, 2512801, 2509253, 2513126, 2511857 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/330/0196-05", "/nc/330/0196-04", "/nc/330/0196-01", "/nc/330/0196-03", "/nc/330/0196-02" ] }, { "cite": "406 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "612" }, { "page": "612" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 585", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522294 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "590" }, { "page": "590" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0585-01" ] }, { "cite": "289 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "359" } ], "opinion_index": 0 }, { "cite": "305 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569932 ], "year": 1982, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0373-01" ] }, { "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)" }, { "parenthetical": "emphases added" } ], "opinion_index": 0 }, { "cite": "445 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "336 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2534144, 2538373, 2535728, 2535673, 2534975 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/336/0315-01", "/nc/336/0315-04", "/nc/336/0315-05", "/nc/336/0315-02", "/nc/336/0315-03" ] }, { "cite": "437 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "876" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 159", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521169 ], "year": 1993, "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0159-01" ] }, { "cite": "629 S.E.2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635767 ], "weight": 11, "year": 2006, "pin_cites": [ { "page": "328", "parenthetical": "emphasis supplied" }, { "page": "327" }, { "page": "331" }, { "page": "332", "parenthetical": "emphasis supplied" }, { "page": "327-28" }, { "page": "332", "parenthetical": "emphasis supplied" } ], "opinion_index": 1, "case_paths": [ "/se2d/629/0324-01" ] }, { "cite": "389 S.E.2d 434", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 1 }, { "cite": "97 N.C. App. 636", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522668 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/nc-app/97/0636-01" ] }, { "cite": "177 N.C. App. 509", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301706 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "513", "parenthetical": "emphasis supplied" } ], "opinion_index": 1, "case_paths": [ "/nc-app/177/0509-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 96-14", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(2a)" }, { "page": "(2a)" } ], "opinion_index": 1 }, { "cite": "445 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 1 }, { "cite": "336 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2534144, 2538373, 2535728, 2535673, 2534975 ], "year": 1994, "opinion_index": 1, "case_paths": [ "/nc/336/0315-01", "/nc/336/0315-04", "/nc/336/0315-05", "/nc/336/0315-02", "/nc/336/0315-03" ] }, { "cite": "437 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "876" } ], "opinion_index": 1 }, { "cite": "113 N.C. App. 159", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521169 ], "year": 1993, "pin_cites": [ { "page": "161" } ], "opinion_index": 1, "case_paths": [ "/nc-app/113/0159-01" ] } ], "analysis": { "cardinality": 631, "char_count": 16812, "ocr_confidence": 0.746, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13528221143394847 }, "sha256": "88a67271b5d1bff395e4a6a619a093352d6387f9597227bea8f9822f4e9122e6", "simhash": "1:ff43579a74219951", "word_count": 2559 }, "last_updated": "2023-07-14T21:34:30.605877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge ELMORE concurs.", "Judge TYSON dissents with a separate opinion." ], "parties": [ "TAWANNA APPLEWHITE, Petitioner-Appellant, v. ALLIANCE ONE INTERNATIONAL, INC. f/k/a STANDARD COMMERCIAL TOBACCO CO., INC., and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Respondents-Appellees" ], "opinions": [ { "text": "McGEE, Judge.\nTawanna R. Applewhite (Petitioner) was employed by Alliance One International, Inc. f/k/a Standard Commercial Tobacco Co., Inc. (Respondent-Employer) beginning on 22 August 2003. Petitioner last worked for Respondent-Employer as a general laborer on 21 September 2005, when Petitioner was discharged for having three attendance infractions within a twelve-month period.\nPetitioner filed a claim for unemployment benefits with the Employment Security Commission (the Commission). The adjudicator determined that Petitioner had been discharged for misconduct and was therefore disqualified from receiving unemployment benefits. Petitioner appealed, and the appeals referee concluded that Petitioner had been discharged for substantial fault and was disqualified from receiving unemployment benefits for nine weeks. Petitioner appealed to the Commission, which affirmed.\nPetitioner does not challenge the Commission\u2019s findings of fact. Pursuant to the Commission\u2019s findings, Petitioner was notified of Respondent-Employer\u2019s plant rules and regulations, which subjected employees to the following progressive disciplinary action: \u201cFirst offense \u2014 written warning, second offense \u2014 written warning, third offense \u2014 dismissal. Three infractions in a twelve-month period will result in termination.\u201d Respondent-Employer\u2019s policy specifically provided that employees were subject to discipline for \u201cexcessive absenteeism, tardiness or excessive breaks[.]\u201d\nPetitioner received her first written warning on 21 February 2005 for taking excessive break time. Petitioner received her second written warning on 5 April 2005 for excessive tardiness. Specifically, Petitioner was tardy by 30 minutes on 18 March 2005; by 2-1/2 hours on 29 March 2005; by 1-1/2 hours on 4 April 2005; and by 1-1/2 hours on 5 April 2005. In finding of fact nine, the Commission found:\n[Petitioner\u2019s] final infraction occurred on September 21, 2005. She was issued a third written warning and discharged for taking an excessive break on that day. [Petitioner] took an excessive break by returning from lunch late. [Petitioner] was fifteen minutes late returning to her work area. [Petitioner] was late on that occasion due to illness. [Petitioner] had become sick, and needed to go to the bathroom before returning to her work area.\nThe Commission concluded that Petitioner was discharged for substantial fault and that Petitioner was disqualified from receiving unemployment benefits for nine weeks.\nPetitioner appealed the Commission\u2019s decision to Superior Court, Wilson County, which found that \u201cthe Commission correctly interpreted and applied the proper provisions of the law to [the] facts[.]\u201d The superior court entered an order affirming the Commission\u2019s decision. Petitioner appeals.\nPetitioner argues the superior court erred by finding that \u201cthe Commission correctly interpreted and applied the proper provisions of the law to [the] facts[.]\u201d Petitioner argues that finding of fact nine supports the conclusion that Petitioner was discharged through no fault of her own. We agree.\n\u201cThe scope of our review is to determine whether the facts as found by the [Commission] are supported by competent evidence and if so, whether the findings of fact support the conclusions of law.\u201d Fair v. St. Joseph\u2019s Hospital, Inc., 113 N.C. App. 159, 161, 437 S.E.2d 875, 876 (1993), disc. review denied, 336 N.C. 315, 445 S.E.2d 394 (1994). \u201cIf the findings of fact made by the [Commission] are supported by competent evidence then they are conclusive on appeal. However, even if the findings of fact are not supported by the evidence, they are presumed to be correct if the petitioner fails to except.\u201d Id. (citations omitted). In the present case, because Petitioner does not challenge the findings of fact, those findings are conclusive. See id. Accordingly, the sole question is whether those findings of fact support the Commission\u2019s conclusion that Petitioner was disqualified from receiving unemployment compensation.\nPetitioner was disqualified for benefits pursuant to N.C. Gen. Stat. \u00a7 96-14(2a). This statute provides that an employee shall be disqualified for benefits for a period of between four and thirteen weeks if the employee is unemployed because the employee was discharged \u201cfor substantial fault on his part connected with his work not rising to the level of misconduct.\u201d N.C. Gen. Stat. \u00a7 96-14(2a) (2005). This statute further defines \u201csubstantial fault\u201d as follows:\nSubstantial fault is defined 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.\nId. (emphases added). An employee is generally presumed to be entitled to unemployment compensation, and the employer bears the burden of establishing that an employee is disqualified. Intercraft Industries Corp. v. Morrison, 305 N.C. 373, 376, 289 S.E.2d 357, 359 (1982). \u201cThe essence of [N.C.]G.S. \u00a7 96-14[2a] is that if an employer establishes a reasonable job policy to which an employee can conform, her failure to do so constitutes substantial fault.\u201d 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). As to whether an employee has the ability to conform to a particular policy, \u201c[a]n employee has \u2018reasonable control\u2019 when [the employee] has the physical and mental ability to conform [the employee\u2019s] conduct to [the] employer\u2019s job requirements.\u201d Id.\nIn the present case, even assuming, arguendo, that Respondent-Employer\u2019s policy was reasonable, we hold that Petitioner did not have reasonable control over the action that violated the policy. Petitioner received her third and final infraction, which caused her discharge, on 21 September 2005 when she was fifteen minutes late returning to her work area after lunch. The Commission found that she was late solely \u201cdue to illness.\u201d As our Court recently reiterated in James v. Lemmons, 177 N.C. App. 509, 629 S.E.2d 324 (2006), \u201can employee does not have reasonable control over failing to attend work because of serious physical or mental illness.\u201d Id. at 520, 629 S.E.2d at 332 (citing Lindsey, 103 N.C. App. at 590, 406 S.E.2d at 612). In James, the claimant violated her employer\u2019s attendance policy because of illness, and our Court held that the claimant did not have reasonable control over her actions. Id. at 519-20, 629 S.E.2d at 332.\nIn the present case, Petitioner violated Respondent-Employer\u2019s policy \u201cdue to illness. [Petitioner] had become sick, and needed to go to the bathroom before returning to her work area.\u201d Because Petitioner did not have reasonable control over this failure to conform to Respondent-Employer\u2019s policy, Petitioner\u2019s behavior \u201ccannot rise to the level of substantial fault.\u201d James, 177 N.C. App. at 520, 629 S.E.2d at 332. As such, the Commission\u2019s findings of fact do not support its conclusion of law that Petitioner was discharged for substantial fault. Petitioner\u2019s partial disqualification for unemployment compensation was not appropriate.\nWe reverse the superior court\u2019s order and remand. On remand, the superior court shall enter an order reversing the Commission\u2019s decision, and remand this case to the Commission for entry of a decision consistent with this opinion.\nReversed and remanded.\nJudge ELMORE concurs.\nJudge TYSON dissents with a separate opinion.", "type": "majority", "author": "McGEE, Judge." }, { "text": "TYSON, Judge\ndissenting.\nPetitioner argues and the majority\u2019s opinion holds the Employment Security Commission\u2019s (\u201cthe Commission\u201d) findings of fact do not support its conclusion of law that petitioner was discharged for \u201csubstantial fault\u201d and is disqualified from receiving unemployment benefits. I disagree and vote to affirm the superior court\u2019s order upholding the Commission\u2019s decision in favor of respondent-employer. I respectfully dissent.\nI. Standard of Review\n\u201c[Findings of fact in an appeal from a decision of the . . . Commission are conclusive on both the superior court and this Court if supported by any competent evidence.\u201d James v. Lemmons, 177 N.C. App. 509, 513, 629 S.E.2d 324, 328 (2006) (emphasis supplied) (citing Celis v. N.C. Employment Sec. Comm\u2019n, 97 N.C. App. 636, 389 S.E.2d 434 (1990)). This Court determines \u201cwhether the facts as found by the [Commission] are supported by competent evidence and if so, whether the findings of fact support the conclusions of law.\u201d Fair v. St. Joseph\u2019s Hospital, Inc., 113 N.C. App. 159, 161, 437 S.E.2d 875, 876 (1993), disc. rev. denied, 336 N.C. 315, 445 S.E.2d 394 (1994).\nII. Substantial Fault\nPetitioner argues the Commission\u2019s finding of fact number nine supports the conclusion that she was discharged through no fault of her own and that she is entitled to unemployment benefits. I disagree.\nThe Commission found that petitioner was disqualified from receiving unemployment benefits pursuant to N.C. Gen. Stat. \u00a7 96-14(2a), which provides in relevant part:\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 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.\n(Emphasis supplied).\nThe majority\u2019s opinion holds that petitioner\u2019s behavior cannot rise to the level of \u201csubstantial fault\u201d because petitioner did not have \u201creasonable control\u201d over the ability to conform to respondent-employer\u2019s plant rules and regulations due to petitioner\u2019s undescribed and undiagnosed \u201cpersonal illness.\u201d The majority\u2019s opinion cites James v. Lemmons as the basis of its holding. 177 N.C. App. 509, 629 S.E.2d 324 (2006). In James, petitioner was terminated from her employment due to excessive absenteeism and a history of poor working relationships with co-workers. Id. at 511-12, 629 S.E.2d at 327. The petitioner in James would frequently miss work due to previously diagnosed mental illness and occasionally left to attend medical appointments. Id.\nAfter reviewing petitioner\u2019s claim for unemployment benefits, the Commission decided she was not disqualified and found that her \u201cabsences from work were due to her medical condition [i.e., bipolar disorder] and that, while she did not give Employer intimate details about her medical condition, she did provide doctor\u2019s excuses for the time she missed from work.\u201d Id. at 519, 629 S.E.2d at 331. The Commission concluded that petitioner \u201cwas not absent from work due to misconduct.\u201d Id.\nThis Court affirmed the Commission\u2019s decision and held \u201can employee does not have reasonable control over failing to attend work because of serious physical or mental illness.\" Id. at 520, 629 S.E.2d at 332 (emphasis supplied). This Court further stated, \u201cthere is no evidence that [petitioner] was medically capable of compliance.\u201d Id.\nThe majority\u2019s reliance on James is misplaced. The facts presented in this case are clearly distinguishable from the facts presented in James. Id. at 511-13, 629 S.E.2d at 327-28. Here, the only evidence petitioner presented regarding her \u201cillness\u201d was: (1) petitioner\u2019s testimony that \u201cthis illness can make anything happen. Your head could start hurting. You can get sick, vomit, it\u2019s just anything. It can trigger anything of your body[]\u201d and (2) two vague letters dated after petitioner\u2019s date of termination on 21 September 2005.\nThe first letter entered into evidence, dated 30 January 2006, is written by petitioner\u2019s case manager, and states, \u201c[petitioner] is living with an illness that may cause her to become sick at any time.\u201d The second letter merely states that petitioner visits \u201cfor a regular checkup every 2-3 month [sic], every time she is seen by one of our doctors, we will give her a letter stating that she was here and has been seen by a physicianPetitioner failed to produce the physician notes or letter referred to in her second exhibit.\nFurther, no evidence was presented regarding the circumstances surrounding petitioner\u2019s late arrival on 21 September 2005, other than petitioner\u2019s statement that \u201c[she] left [to take her lunch break] at twelve thirty-five . . . [and she] got back at . . . one-o-five\u201d but \u201c[she] didn\u2019t come on the floor until fifteen minutes late [sic], and the reason why [she] was late because [sic] . . . [she] was in the bathroom . . . because [she] had got [sic] sick that day.\u201d The record shows petitioner had exhausted her entire lunch break prior to returning to her workplace, and then used an additional fifteen minutes without informing her employer that she was \u201csick.\u201d\nThe facts before us do not indicate that petitioner was an employee who did not have \u201creasonable control over failing to attend work because of serious physical or mental illness.\u201d Id. at 520, 629 S.E.2d at 332 (emphasis supplied). No competent evidence shows that petitioner was medically incapable of compliance with respondent-employer\u2019s plant rules and regulations or that she had previously informed her employer of her unspecified \u201cillness.\u201d\nAdditionally, respondent-employer presented evidence of three prior written warnings and four oral warnings relating to excessive breaks, tardiness, or poor work performance during the twelve months prior to termination. The third written warning is the only warning petitioner claims is linked to her \u201cillness.\u201d Despite the repeated written and oral warnings and petitioner\u2019s awareness of respondent-employer\u2019s policy regarding termination, petitioner failed to give respondent-employer any notice of her \u201cillness\u201d to excuse her actions or provide any medical excuse for her repeated absenteeism while employed.\nThe Commission\u2019s findings of fact clearly support its conclusion that petitioner was discharged for \u201csubstantial fault.\u201d To hold otherwise would subject the Commission and our Courts to a number of claims and appeals asserting unsubstantiated claims of \u201cillness\u201d with no medical evidence or excuse as a pretext to excuse employees noncompliance with employers\u2019 rules and regulations in order to receive unemployment benefits.\nIII. Conclusion\nNo competent evidence shows petitioner\u2019s repeated pattern of tardiness is due to \u201ca serious physical or mental illness.\u201d Id. The facts and holding in James are inapplicable to the facts before us. The Commission\u2019s findings of fact support its conclusion that petitioner is disqualified from receiving unemployment benefits pursuant to N.C. Gen. Stat. \u00a7 96-14(2a). I vote to affirm the superior court\u2019s order. I respectfully dissent.", "type": "dissent", "author": "TYSON, Judge" } ], "attorneys": [ "Legal Aid, of North Carolina, Inc., by Richard Trottier and John R. Keller, for Petitioner-Appellant.", "Camilla F. McClain for Respondent-Appellee Employment Security Commission of North Carolina.", "No brief filed for Respondent-Appellee Alliance One International, Inc. f/k/a Standard Commercial Tobacco." ], "corrections": "", "head_matter": "TAWANNA APPLEWHITE, Petitioner-Appellant, v. ALLIANCE ONE INTERNATIONAL, INC. f/k/a STANDARD COMMERCIAL TOBACCO CO., INC., and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Respondents-Appellees\nNo. COA07-123\n(Filed 15 January 2008)\nUnemployment Compensation\u2014 breach of attendance policy\u2014 illness \u2014 not substantial fault\nPetitioner was not discharged from her employment for substantial fault and was thus not partially disqualified for unemployment compensation under N.C.G.S. \u00a7 96-14(2a) where petitioner received her third and final infraction which caused her discharge when she was fifteen minutes late returning to her work area after lunch, but the Employment Security Commission found that she was late solely \u201cdue to illness\u201d in that petitioner had become sick and needed to go to the bathroom before returning to her work area, and petitioner thus did not have reasonable control over this failure to conform to respondent employer\u2019s attendance policy.\nJudge TYSON dissenting.\nAppeal by Petitioner from order entered 20 October 2006 by Judge W. Russell Duke, Jr. in Superior Court, Wilson County. Heard in the Court of Appeals 12 September 2007.\nLegal Aid, of North Carolina, Inc., by Richard Trottier and John R. Keller, for Petitioner-Appellant.\nCamilla F. McClain for Respondent-Appellee Employment Security Commission of North Carolina.\nNo brief filed for Respondent-Appellee Alliance One International, Inc. f/k/a Standard Commercial Tobacco." }, "file_name": "0271-01", "first_page_order": 301, "last_page_order": 308 }