{ "id": 4167232, "name": "SCOTLAND COUNTY SCHOOLS, Petitioner v. DONNA F. LOCKLEAR AND EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Respondents", "name_abbreviation": "Scotland County Schools v. Locklear", "decision_date": "2009-05-19", "docket_number": "No. COA08-795", "first_page": "193", "last_page": "201", "citations": [ { "type": "official", "cite": "197 N.C. App. 193" } ], "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": "N.C. Gen. Stat. \u00a7 96-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "403 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "294" } ], "opinion_index": 0 }, { "cite": "328 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538925 ], "year": 1991, "pin_cites": [ { "page": "656" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0651-01" ] }, { "cite": "454 S.E.2d 836", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "839" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 275", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917659 ], "year": 1995, "pin_cites": [ { "page": "278" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0275-01" ] }, { "cite": "375 S.E.2d 171", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "173" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 581", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527403 ], "year": 1989, "pin_cites": [ { "page": "583-84" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0581-01" ] }, { "cite": "267 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "399" } ], "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" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0468-01" ] }, { "cite": "233 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 264", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568391, 8568432, 8568464, 8568315, 8568351 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0264-03", "/nc/292/0264-04", "/nc/292/0264-05", "/nc/292/0264-01", "/nc/292/0264-02" ] }, { "cite": "231 S.E.2d 157", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "32 N.C. App. 23", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548404 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/32/0023-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 96-15", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2007, "pin_cites": [ { "page": "(i)" }, { "page": "(i)" } ], "opinion_index": 0 }, { "cite": "349 S.E.2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "847", "parenthetical": "quoting N.C.G.S. \u00a7 96-15(i) (1985)" }, { "page": "847", "parenthetical": "the jurisdiction of the superior court is limited to questions of law" } ], "opinion_index": 0 }, { "cite": "318 N.C. 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4739651 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "448", "parenthetical": "quoting N.C.G.S. \u00a7 96-15(i) (1985)" }, { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0441-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 96-14", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 19, "pin_cites": [ { "page": "(2) and (2a)" }, { "page": "(2b)" }, { "page": "(2)" }, { "page": "(2)" }, { "page": "(2b)" }, { "page": "(2b)" }, { "page": "(2b)" }, { "page": "(2b)" }, { "page": "(2b)" }, { "page": "(2b)" }, { "page": "(2b)" }, { "page": "(2) and (2a)" }, { "page": "(2b)" }, { "page": "(2) and (2a)" }, { "page": "(2b)" }, { "page": "(2b)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 96-14", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "pin_cites": [ { "page": "(2b)" }, { "page": "(2b)" }, { "page": "(2b)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 658, "char_count": 17229, "ocr_confidence": 0.753, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1362253166111229 }, "sha256": "92a6dfd10ea6f90804ff4a44e702100abbfd6fb4960245bb0d299592f4df3bfc", "simhash": "1:a39960a0fa1b4678", "word_count": 2829 }, "last_updated": "2023-07-14T21:19:41.072184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge CALABRIA concurs.", "Judge STROUD concurs in part and dissents in part by separate opinion." ], "parties": [ "SCOTLAND COUNTY SCHOOLS, Petitioner v. DONNA F. LOCKLEAR AND EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Respondents" ], "opinions": [ { "text": "STEELMAN, Judge.\nThe superior court correctly concluded that the Commission erred in applying N.C. Gen. Stat. \u00a7\u00a7 96-14(2) and (2a) rather than \u00a7 96-14(2b) to Locklear\u2019s claim for unemployment benefits. The Commission did not make sufficient findings of fact for this Court to engage in effective appellate review of the issues presented under N.C. Gen. Stat. \u00a7 96-14(2b), and this matter is remanded for further findings of fact.\nI. Procedural and Factual Background\nThe record in this matter reveals the following: The Scotland County Schools (employer) hired Donna Locklear (claimant) as a lateral-entry kindergarten teacher in 2003. As a lateral-entry teacher, claimant possessed a provisional teaching license. To retain her position, claimant was required to pass a state licensing examination known as \u201cPRAXIS.\u201d On 30 October 2006, claimant was notified that her provisional teaching license had expired, and it was \u201cessential that [she] complete all requirements prior to May 1, 2007 or risk the possibility of not being reemployed for the 2007-08 school year.\u201d On 14 June 2007, claimant was terminated from her position for failure to pass the PRAXIS exam.\nClaimant filed for unemployment benefits effective 22 July 2007. On 1 September 2007, her claim was denied by the Employment Securities Commission (Commission) on the basis of N.C. Gen. Stat. \u00a7 96-14(2). The Adjudicator determined that \u201cClaimant was separated from this job because she did not pass the test which was required for continued employment.\u201d Claimant appealed.\nFollowing a 2 October 2007 hearing, an Appeals Referee ruled that claimant was not disqualified for benefits under N.C. Gen. Stat. \u00a7 96-14(2) because she was not \u201cdischarged for substantial fault or misconduct.\u201d Employer appealed. On 6 November 2007, the Commission affirmed the decision of the Appeals Referee.\nOn 6 December 2007, employer filed a Petition for Judicial Review in Scotland County Superior Court. On 24 March 2008, the superior court entered an order reversing the decision of the Commission, applying N.C. Gen. Stat. \u00a7 96-14(2b) rather than \u00a7 96-14(2), and ruling that, upon the findings of fact made by the Commission, claimant was disqualified under \u00a7 96-14(2b) from receiving unemployment benefits. Commission appeals.\nII. Standard of Review\n\u201c[W]hen judicial review is sought of decisions of the Commission on unemployment benefits, \u2018the findings of fact by the Commission, if there is 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.\u2019 \u201d Williams v. Burlington Industries, Inc., 318 N.C. 441, 448, 349 S.E.2d 842, 847 (1986) (quoting N.C.G.S. \u00a7 96-15(i) (1985)); N.C. Gen. Stat. \u00a7 96-15(i) (2007).\nIn reviewing ESC decisions the superior court must determine whether the facts found by the Commission are supported by any competent evidence and whether those facts support the Commission\u2019s conclusions of law. Employment Security Comm. v. Young Men\u2019s Shop, 32 N.C. App. 23, 231 S.E.2d 157, disc. rev. denied, 292 N.C. 264, 233 S.E.2d 396 (1977). Additionally, \u201c[i]f the findings of fact made by the Commission, even though supported by competent evidence in the record, are insufficient to enable the court to determine the rights of the parties upon the matters in controversy, the proceeding should be remanded to the end that the Commission make proper findings.\u201d In re Bolden, 47 N.C. App. 468, 471, 267 S.E.2d 397, 399 (1980).\nDunlap v. Clarke Checks, Inc., 92 N.C. App. 581, 583-84, 375 S.E.2d 171, 173 (1989). The Commission\u2019s findings of fact are binding if supported by any competent evidence, but its conclusions of law are reviewed de novo. Housecalls Nursing Servs. v. Lynch, 118 N.C. App. 275, 278, 454 S.E.2d 836, 839 (1995); N.C. Gen. Stat. \u00a7 96-15(i).\nIII. N.C. Gen. Stat. \u00a7 96-14(2b) is the Controlling Statute\nIn its first argument, the Commission contends that the superior court erred in applying N.C. Gen. Stat. \u00a7 96-14(2b). We disagree.\nThe 1985 General Assembly enacted subsection (2b) of N.C. Gen. Stat. \u00a7 96-14, which states that an individual shall be disqualified for benefits:\nFor the duration of his unemployment 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 the individual is, at the time such claim is filed, unemployed because the individual has been discharged from employment because a license, certificate, permit, bond, or surety that is necessary for the performance of his employment and that the individual is responsible to supply has been revoked, suspended, or otherwise lost to him, or his application therefor has been denied for a cause that was within his power to control, guard against, or prevent.\nNC. Gen. Stat. \u00a7 96-14(2b) (2007).\nThe superior court ruled that:\n4. The Employment Security Commission\u2019s conclusion of law that \u201cthe evidence fails to show that claimant was discharged from the job for substantial fault or misconduct connected with the work\u201d improperly applies the law and is irrelevant to the findings of fact.\n5. The case at bar is governed by G.S. 96-14(2b) ....\nThe Commission made seven findings of fact, four of which addressed the licensure requirements of claimant\u2019s employment. Specifically, the Commission found that: claimant was discharged because she failed to meet the requirements needed to maintain her teaching position; to legally retain her position, claimant was required to pass the PRAXIS test; and, despite taking preparatory classes and sitting on multiple occasions, claimant \u201cwas unable to pass.\u201d Based upon these findings, it is clear that claimant\u2019s termination was based upon her failure to comply with employer\u2019s licensure requirements and not upon misconduct or substantial fault. Because the termination did not implicate the misconduct or substantial fault provisions of N.C. Gen. Stat. \u00a7 96-14, we hold that the trial court correctly concluded that the controlling statute was subparagraph (2b) of N.C. Gen. Stat. \u00a7 96-14.\nThis argument is without merit.\nIV. Findings Under N.C. Gen. St.at. $ 96-14C2b)\nIn its second argument, the Commission contends that the superior court erred in concluding that the claimant was disqualified from unemployment benefits pursuant to N.C. Gen. Stat. \u00a7 96-14(2b), supra. We agree.\nIn its entirety, conclusion of law 5 in the order reads:\n5. The case at bar is governed by G.S. 96-14(2b) and the claimant\u2019s employment was terminated because of her failure to obtain a teaching license or certificate necessary for the performance of her employment, through her failure to achieve a passing score upon the PRAXIS II examination, and to do so was within her power to control, guard against or prevent.\nTo affirm the ruling of the superior court, this Court must determine that this conclusion is supported by the Commission\u2019s findings of fact and did not require further findings by the superior court. Burlington Industries, 318 N.C. at 448, 349 S.E.2d at 847 (the jurisdiction of the superior court is limited to questions of law).\nN.C. Gen. Stat. \u00a7 96-14(2b) is not a paragon of clarity. It is not clear from the face of the statute whether the clause \u201ca cause that was within his power to control, guard against, or prevent[]\u201d modifies the entire section, or only the last portion, of the statute. When confronted with such an ambiguity, this Court looks to both the legislative history of the relevant section and the section\u2019s context within the entire statute. Electric Supply Co. v. Swain Electrical Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991).\nN.C. Gen. Stat. \u00a7 96-14(2b) was enacted by the General Assembly as part of the 1985 Session Laws, Chapter 552, in order to \u201cmake[] clear that benefits are not payable to an individual where his unemployment is caused by losing a license or certificate required for his work for reasons that he could have prevented.\u2019\u2019House Committee on Employment Security Report, Explanation of House Bill 567, (May 1, 1985). This is consistent with the declaration of public policy contained in N.C. Gen. Stat. \u00a7 96-2, which is that the State of North Carolina shall set aside unemployment reserves \u201cto be used for the benefit of persons unemployed through no fault of their own.\u201d N.C. Gen. Stat. \u00a7 96-2 (2007).\nWe hold that all of N.C. Gen. Stat. \u00a7 96-14(2b) is subject to the requirement that the loss or denial of licensure must result from a cause that was within the power of the employee to \u201ccontrol, guard against, or prevent.\u201d We further hold that this determination is a ques^ tion of fact, not a question of law.\nIn the instant case, the Commission found that:\n3. The claimant was discharged from this job because she failed to meet the requirements needed to maintain the position for which she had been hired.\n4. To legally retain her position as a teacher, the claimant was required to pass a test called Praxis.\n5. The claimant took all training classes, etc. offered to prepare for the test, and she took the test on several occasions. The claimant was unable to pass the test.\n6. The claimant was informed that she would not be allowed to continue in her position as she had not passed the rest [sic] within the allotted time.\nThe Commission\u2019s findings in the instant case were predicated upon an erroneous legal theory under N.C. Gen. Stat. \u00a7 96-14(2) and (2a), rather than the correct legal theory under section (2b). There are thus no findings that specifically discuss the requirements of N.C. Gen. Stat. \u00a7 96-14(2b). The status of claimant\u2019s provisional license, and its relationship to a full license, are not discussed and are unclear from the record. Further, there are no findings as to whether her failure to procure the full license required for her continued employment was within her \u201cpower to control, guard against, or prevent.\u201d It is not the role of the trial court or appellate courts to make findings of fact in proceedings under Chapter 96.\nV. Conclusion\nWe affirm the superior court\u2019s determination that the Commission erred in analyzing claimant\u2019s discharge under the provisions of N.C. Gen. Stat. \u00a7 96-14(2) and (2a) rather than the provisions of N.C. Gen. Stat. \u00a7 96-14(2b). The trial court\u2019s conclusion of law 4, and conclusion of law 5 to the extent that it ruled that N.C. Gen. Stat. 96-14(2b) is the governing statute, are affirmed. We vacate the remainder of conclusion of law 5, conclusion of law 6, and the decretal portion of the trial court\u2019s order.\nWe remand this matter to the superior court for further remand to the Commission. Upon remand, the Commission shall make appropriate findings of fact under N.C. Gen. Stat. \u00a7 96-14(2b) and determine whether there was a disqualification from unemployment benefits under that statute.\nAFFIRMED IN PART, VACATED AND REMANDED IN PART.\nJudge CALABRIA concurs.\nJudge STROUD concurs in part and dissents in part by separate opinion.\n. The example provided by the House Committee is that of \u201ca truck driver who loses his driver\u2019s license because of speeding convictions or DWI, etc.\u201d", "type": "majority", "author": "STEELMAN, Judge." }, { "text": "STROUD, Judge,\nconcurring in part, dissenting in part.\nAs to the first issue regarding N.C. Gen. Stat. \u00a7 96-14(2b) being the controlling statute, I concur with the majority opinion. As to the second issue regarding the findings under N.C. Gen. Stat. \u00a7 96-14(2b), I agree with the majority opinion that this case should be remanded to the Commission for additional findings of fact as to \u201c[t]he status of claimant\u2019s provisional license and its relationship to a full license,\u201d but I write separately because I disagree that additional findings are needed as to whether claimant\u2019s failure to procure the full license required for her continued employment was within her \u201cpower to control, guard against, or prevent.\u201d Thus, as to the second issue I concur in part and dissent in part.\nAs noted by the majority, the Commission made a finding of fact number 5 which reads, \u201cThe claimant took all training classes, etc. offered to prepare for the test, and she took the test on several occasions. The claimant was unable to pass the test.\u201d I would hold that this finding of fact provides a sufficient basis for the Superior Court\u2019s conclusion of law number 5, which concludes in pertinent part that achieving a \u201cpassing score upon the PRAXIS n examination . . . was within her power to control, guard against or prevent.\u201d\nThe evidence before the Commission and its findings of fact clearly establish that the claimant prepared for and took the PRAXIS test on several occasions, but did not pass it. Thus, the relevant question is whether passing the PRAXIS test is a matter that was within claimant\u2019s \u201cpower to control,\u201d or, stated negatively, if failing the test was something claimant could \u201cguard against, or prevent.\u201d N.C. Gen. Stat. \u00a7 96-14(2b) (2007). In the context of this case, only the question of claimant\u2019s \u201cpower to control\u201d her performance on the test is applicable. The Commission argues that passing the required test was not within claimant\u2019s \u201cpower to control\u201d simply because she was unable to pass the test despite proper preparation. I disagree.\nUnder these facts, passing the test was under claimant\u2019s \u201cpower to control[;]\u201d id., the fact that she did not pass does not eliminate claimant\u2019s \u201cpower\u201d to control this requirement. Certainly there could be a factual situation where passing a test required to obtain or retain a professional license was somehow rendered beyond a claimant\u2019s \u201cpower to control[.]\u201d See id. For example, a claimant may have taken a required test, but due to errors within the test itself or in scoring the test, both clearly beyond the claimant\u2019s control, the test results were delayed or voided, and as a result the claimant lost the job for which the test was required. Here, where the claimant took the required test, and there is no indication of any problem other than the claimant\u2019s inability to pass, achieving a passing score on the test is, as a matter of law, within her \u201cpower to control.\u201d Id. I would hold that the superior court properly made this conclusion of law.\nThe only findings of fact lacking in the Commission\u2019s order are those relating to the details of claimant\u2019s provisional teaching license and its relation to her full license. As to the second issue, I therefore concur in remanding to the superior cpurt for further remand to the Commission for additional findings regarding the licensing process only. I also thus concur in vacating conclusion of law number 6 and the decretal portion of the trial court\u2019s order. I dissent in remanding for additional findings as to whether the claimant\u2019s failure to procure her full license as required for continued employment was within her \u201cpower to control, guard against, or prevent,\u201d see id., and I would affirm the ruling of the superior court as to this issue. I also therefore dissent in vacating finding of fact number 5.", "type": "concurring-in-part-and-dissenting-in-part", "author": "STROUD, Judge," } ], "attorneys": [ "Williamson, Dean, Williamson & Sojka, L.L.P., by Nicholas J. Sojka, Jr., and Daniel B. Dean, for petitioner-appellant.", "Thomas S. Whitaker, Chief Counsel, by Thomas H. Hodges, Jr., for respondent-appellant Employment Security Commission of North Carolina.", "Tharrington Smith, L.L.P, by Ann L. Majestic & Robert M. Kennedy and North Carolina School Boards Association, by Allison B. Schafer, Amicus Curiae for North Carolina School Boards Association." ], "corrections": "", "head_matter": "SCOTLAND COUNTY SCHOOLS, Petitioner v. DONNA F. LOCKLEAR AND EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Respondents\nNo. COA08-795\n(Filed 19 May 2009)\n1. Unemployment Compensation\u2014 provisional teacher \u2014 failure to comply with licensure requirements\nThe superior court did not err in an unemployment case by applying N.C.G.S. \u00a7 96-14(2b) because claimant provisional teacher\u2019s termination was based upon her failure to comply with the employer\u2019s licensure requirements and not upon misconduct or substantial fault.\n2. Unemployment Compensation\u2014 sufficiency of findings of fact \u2014 disqualification from benefits\nThe superior court erred by concluding that claimant was disqualified from unemployment benefits under N.C.G.S. \u00a7 96-14(2b), and the case is remanded to the superior court for further remand to the Employment Security Commission to make appropriate findings of fact under N.C.G.S. \u00a7 96-14(2b) to determine whether there was a disqualification from unemployment benefits, because: (1) the Commission\u2019s findings were predicated upon an erroneous legal theory under N.C.G.S. \u00a7 96-14(2) and (2a) rather than the correct legal theory under section (2b); (2) there were no findings that specifically discussed the requirements of N.C.G.S. \u00a7 96-14(2b); (3) the status of claimant\u2019s provisional license is not discussed and is unclear from the record; and (4) there are no findings as to whether her failure to procure the full license required for her continued employment was within her power to control, guard against, or prevent.\nJudge STROUD concurring in part and dissenting in part.\nAppeal by respondent Commission from judgment entered 5 March 2008 by Judge Robert F. Floyd, Jr. in Scotland County Superior Court. Heard in the Court of Appeals 4 December 2008.\nWilliamson, Dean, Williamson & Sojka, L.L.P., by Nicholas J. Sojka, Jr., and Daniel B. Dean, for petitioner-appellant.\nThomas S. Whitaker, Chief Counsel, by Thomas H. Hodges, Jr., for respondent-appellant Employment Security Commission of North Carolina.\nTharrington Smith, L.L.P, by Ann L. Majestic & Robert M. Kennedy and North Carolina School Boards Association, by Allison B. Schafer, Amicus Curiae for North Carolina School Boards Association." }, "file_name": "0193-01", "first_page_order": 223, "last_page_order": 231 }