{ "id": 8526311, "name": "EMILY R. LANCASTER v. BLACK MOUNTAIN CENTER and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA", "name_abbreviation": "Lancaster v. Black Mountain Center", "decision_date": "1984-12-28", "docket_number": "No. 8328SC1218", "first_page": "136", "last_page": "143", "citations": [ { "type": "official", "cite": "72 N.C. App. 136" } ], "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": "194 S.E. 2d 210", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "17 N.C. App. 340", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555463 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/17/0340-01" ] }, { "cite": "161 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575910 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0629-01" ] }, { "cite": "289 S.E. 2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "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, "opinion_index": 0, "case_paths": [ "/nc/305/0373-01" ] }, { "cite": "243 S.E. 2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "36 N.C. App. 255", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552718 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/36/0255-01" ] } ], "analysis": { "cardinality": 593, "char_count": 14791, "ocr_confidence": 0.824, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20556893471395438 }, "sha256": "715b0e354db914023ddc309c921af876661891b38ac0b6734f04812fc6d086b7", "simhash": "1:240591c76cc93e28", "word_count": 2377 }, "last_updated": "2023-07-14T20:36:04.939100+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge VAUGHN and Judge WHICHARD concur." ], "parties": [ "EMILY R. LANCASTER v. BLACK MOUNTAIN CENTER and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA" ], "opinions": [ { "text": "JOHNSON, Judge.\nClaimant was discharged from her employment as a health care technician with appellant Black Mountain Center (employer), an institution for severely mentally retarded individuals, on 17 December 1982 for alleged \u201cgross personal misconduct.\u201d In the letter of termination, the employer charged that claimant committed six incidents which were the cause of her discharge: (1) engaging in inappropriate verbalization to residents by saying to a resident: \u201cWhy are you living?\u201d and \u201cYou should not have been born\u201d; (2) attaching a paper with tape over the face of a resident; (3) drawing a circle in ink on a resident\u2019s nose and placing a dot inside the circle; (4) pulling a headband over a resident\u2019s face and placing the resident\u2019s glasses over the headband; (5) spraying a resident in the face with water; and (6) handling residents roughly by jerking their limbs, shaking them, or slapping their faces.\nClaimant applied for unemployment compensation. From the denial of her application on the ground that she was disqualified from receiving benefits due to work-related misconduct, she appealed to the appeals referee, who allowed her to recover. The employer appealed to the Commission, which reversed the appeals referee and denied her benefits. The Commission made the following pertinent findings of fact:\n3. As to the six (6) alleged incidents [for which claimant was terminated]:\n(i) The claimant admits saying \u201cWhy are you living?\u201d but denies saying \u201cYou should not have been born.\u201d It is found as fact that she did say \u201cWhy are you living?\u201d to a resident or residents.\n(ii) The claimant admits attaching a piece of paper with tape over the face of a resident, and it is found as fact she did.\n(iii) The claimant admits drawing a circle in ink on a resident\u2019s nose and placing a dot within the circle, and it is found as fact she did.\n(iv) The claimant admits pulling a headband over a resident\u2019s face and then putting the resident\u2019s glasses over the headband, and it is found as fact she did.\n(v) The claimant admits spraying water in the face of a resident, while bathing the resident, and it is found as fact she did.\n(vi) The claimant denies handling residents in a rough manner, no evidence was introduced to support that she did, and it is found as fact she did not.\n4. As to incident (v) supra, the claimant\u2019s action was, apparently, accidental while she was bathing a resident. As to incidents (i), (ii), (iii) and (iv), she gives as reasons that she was acting in jest, in play, or otherwise attempting to evoke responses from these residents, who have IQ\u2019s of no more than six-month old children. She, however, admits to knowing, and it is found as fact, that each resident had a written treatment plan showing his specified needs and that none of her actions in incidents (i), (ii), (iii) or (iv) were contained as treatments in the treatment plans. Her actions were things she decided to do wilfully on her own.\n5. The employer\u2019s written policies and G.S. 122-55.1, et seq. are intended to ensure to the residents the right to dignity, privacy and humane care, and they prohibit physical and emotional abuse. Emotional abuse is defined in the policies as associated with acts of harrassment, teasing or other behaviors which belittle or \u201cattack\u201d the ego of the person and may cause or causes emotional harm. Emotional abuse also is defined in the policies as verbal abuse. The claimant knew or should have known of these policies, because she had been given training for her job.\n6. The claimant did not have good cause for her admitted actions in incidents (i), (ii), (iii) and (iv).\nBased upon these findings, the Commission concluded that claimant\u2019s actions constituted misconduct disqualifying her from receiving unemployment benefits.\nClaimant appealed to the Superior Court of Buncombe County which entered the following Order:\nThis matter was heard by the undersigned at the July 25, 1983 civil session of Superior Court for the county of Buncombe and reviewed as provided in G.S. \u00a7 96-15. The Court having examined the record on appeal and reviewed the evidence finds and concludes:\n1. That Commission finding 3 (i) is not supported by the evidence. Claimant was asked if she made such a statement to a specific patient. She denied this specifically, and the only testimony is that she does not deny because she cannot recall this statement. The employer failed to offer evidence to show where or when or under what circumstances such statement was made.\nEXCEPTION NO. 1 of the Employer and the Employment Security Commission.\n2. Commission finding 3 (ii). This finding is not supported by evidence. The claimant only admitted that she attached a piece of paper across the head of a patient to draw attention to her finding (sic); that she attached a paper \u201cover the face\u201d implies that she blinded the patient. This was not what the claimant admitted.\nException No. 2 of the Employer and the Employment Security Commission.\n3. Commission finding 3 (iii). This finding is supported by the evidence.\n4. Commission finding 3 (iv). This is totally unsupported by the evidence. Claimant admitted putting a headband over the forehead of a patient where it was supposed to be and putting prescribed glasses on her nose where they were supposed to be. She specifically denies switching the headband with the glasses as implied in this finding. (See page 54 of the transcript.)\nEXCEPTION NO. 3 of the Employer and the Employment Security Commission.\n5. Commission finding 3 (v). This finding is supported by the evidence.\nThe Court concludes that the findings of fact which are supported by the evidence are insufficient to constitute \u201cmisconduct\u201d because there was a total failure on the part of the employer to show the effect, if any, of the claimant\u2019s actions, and the evidence is insufficient to show that the employee wilfully disregarded the employer\u2019s interest. Therefore, the employer did not meet its burden to show circumstances which disqualify this claimant from unemployment benefits.\nEXCEPTION NO. 4 of the Employer and the Employment Security Commission.\nNow, therefore, it is ordered, adjudged and decreed that the decision of the Employment Security Commission under docket 83(G)1423 is hereby reversed, and it is further ordered that the claimant is entitled to unemployment benefits as provided by law.\nAppellants contend the Superior Court erred by making findings of fact in contradiction of the findings of fact made by the Commission. The law is settled that the jurisdiction of the Superior Court in reviewing a decision of the Commission is limited to determining whether there is evidence to support the Commission\u2019s findings of fact and whether these findings so supported sustain the legal conclusions and the award. G.S. 96-15(i); In re Enoch, 36 N.C. App. 255, 243 S.E. 2d 388 (1978). The Superior Court in the present case did not make additional findings of fact, but was properly carrying out its review function by explaining how the findings were not supported by the evidence. This contention is overruled.\nWe next review the evidence to determine whether the Superior Court was correct in \u201cfinding\u201d that several of the Commission\u2019s findings were not supported by the evidence. As to whether plaintiff allegedly made certain statements to residents, the employer, who had the burden of showing the claimant to be disqualified from receiving benefits, Intercraft Industries Corp. v. Morrison, 305 N.C. 373, 289 S.E. 2d 357 (1982), presented no evidence that claimant made these statements. The only evidence with respect to these alleged statements consisted of claimant\u2019s testimony at the hearing. Claimant testified that she could not remember making either of the statements, \u201cWhy are you living?\u201d or \u201cYou should not have been born.\u201d She denied making the statements to a specific resident. The Commission apparently based its finding of fact that she made the statement, \u201cWhy are you living?\u201d from the following exchange:\nQ. Do you deny making the first statement, why are you living?\nA. I don\u2019t deny it, no.\nQ. You don\u2019t deny it.\nA. But I cannot recall.\nIn the absence of other evidence to indicate she made the statement, we do not believe the Commission could validly find as a fact that claimant made the statement from her refusal to deny it because she could not recall whether or not she made the statement. We agree with the Superior Court that the Commission\u2019s finding was not supported by evidence.\nAs for the allegation that claimant attached a piece of paper over a resident\u2019s face, the record shows claimant testified that she attached a piece of paper on a resident\u2019s head, \u201cnot over the face.\u201d No evidence was presented to contradict this testimony. Thus, as the Superior Court properly concluded, the Commission\u2019s finding was not supported by the evidence.\nAs for the finding with respect to the placement of the headband and glasses, the evidence is conflicting. At the hearing, claimant testified that she placed the headband and glasses at their proper places. However, employer presented a written document in claimant\u2019s handwriting and signed by claimant in which she admitted placing the glasses on over the headband. Since there was evidence to support the Commission\u2019s finding, the Superior Court erred in concluding the Commission\u2019s finding was not supported by evidence.\nWe next consider whether the Commission\u2019s findings of fact sustain its conclusions of law. Since the policy of the Employment Security Act is to alleviate the burdens upon one unemployed through no fault of his own, sections in the Act disqualifying one from receiving benefits should be strictly construed in favor of the claimant. In re Watson, 273 N.C. 629, 161 S.E. 2d 1 (1968). G.S. 96-14(2) provides that an individual \u201cshall be disqualified\u201d from receiving unemployment benefits if the Commission determines that the individual was discharged for misconduct connected with his work. Such misconduct disqualifying one from receiving benefits has been defined by this Court and the Supreme Court as \u201cconduct which shows a wanton or wilful disregard for the employer\u2019s interest, a deliberate violation of the employer\u2019s rules, or a wrongful intent.\u201d Intercraft Industries Corp. v. Morrison, supra, at 375, 289 S.E. 2d at 359; In re Collingsworth, 17 N.C. App. 340, 194 S.E. 2d 210 (1973).\nThe ground asserted by the Commission and the employer for disqualifying claimant from receiving benefits is that claimant disregarded or violated her employer\u2019s written policies prohibiting physical and emotional abuse. These policies are outlined in an administrative policy manual issued to each employee. Physical abuse is defined in the manual as \u201cany action which may cause or causes physical or emotional harm or injury.\u201d Emotional abuse is defined as \u201cabuse which takes on a non-physical form [such as] acts of harrassment, teasing or other behavior which belittle or \u2018attack\u2019 the ego of the person and may cause or causes emotional harm.\u201d Attached to the appendix of the manual are examples of physical and emotional abuse, which include \u201cunnecessary teasing, making fun of a resident, or unduly criticizing a resident, causing embarrassment, ridicule or belittlement.\u201d Claimant characterized her actions as \u201charmless teasing.\u201d\nA violation of a work rule does not constitute misconduct if the evidence shows an employee\u2019s actions were reasonable and taken with good cause. Intercraft Industries Corp. v. Morrison, supra. Claimant testified that she did take the questioned actions to attract attention to residents who craved attention or to distract or calm a resident in an agitated state; that these actions achieved their purpose and received positive reactions from other staff personnel; that she had never been warned that her behavior would not be tolerated; and that even though her actions were not included in the treatment plans for the residents, she was encouraged to add to the treatment plans as she saw fit.\nAs indicated supra, the employer has the burden of proving a claimant disqualified from receiving benefits. Here, the Commission\u2019s findings supported by evidence show that claimant attached a piece of paper to a resident\u2019s head, drew a circle on one\u2019s nose, and placed eyeglasses on over a headband and that employer had policies prohibiting abuse of residents. There were no findings, nor evidence to support findings, that claimant\u2019s actions constituted physical or emotional abuse as those terms are defined in the employer\u2019s manual, or that claimant wilfully or deliberately, with evil intent, disregarded her employer\u2019s interests. The employer has failed to carry its burden. We agree with the Superior Court that the Commission\u2019s findings do not sustain a conclusion that claimant\u2019s actions constituted misconduct. We, therefore, except as modified herein, affirm the Superior Court\u2019s order declaring claimant to be entitled to receive unemployment benefits.\nModified and affirmed.\nChief Judge VAUGHN and Judge WHICHARD concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Bob Warren, for claimant appellee.", "Attorney General Rufus L. Edmisten, by Assistant Attorney General Robert E. Cansler, for appellant Black Mountain Center.", "Donald R. Teeter, for appellant Employment Security Commission of North Carolina." ], "corrections": "", "head_matter": "EMILY R. LANCASTER v. BLACK MOUNTAIN CENTER and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA\nNo. 8328SC1218\n(Filed 28 December 1984)\nMaster and Servant \u00a7 108.1\u2014 unemployment compensation \u2014 insufficient evidence and findings of misconduct\nFindings by the Employment Security Commission did not support the conclusion that claimant was discharged as a health care technician in an institution for the mentally retarded for misconduct connected with her work so as to disqualify her from receiving unemployment compensation benefits where the evidence supported findings that claimant attached a piece of paper to a resident\u2019s head, drew a circle on one resident\u2019s nose, and placed a resident\u2019s eyeglasses on over a headband, but there was no evidence or findings that claimant\u2019s actions constituted physical or emotional abuse as those terms are defined in the employer\u2019s manual or that claimant willfully or deliberately, with evil intent, disregarded her employer\u2019s interests.\nAPPEAL by employer Black Mountain Center and Employment Security Commission of North Carolina from Howell, Judge. Order and judgment entered 11 August 1983 in Superior Court, BUNCOMBE County. Heard in the Court of Appeals 19 September 1984.\nEmployer Black Mountain Center and the Employment Security Commission of North Carolina (\u201cCommission\u201d) appeal from a decision reversing an order of the Commission which disqualified claimant Emily Lancaster from receiving unemployment benefits on the ground of misconduct associated with her work.\nBob Warren, for claimant appellee.\nAttorney General Rufus L. Edmisten, by Assistant Attorney General Robert E. Cansler, for appellant Black Mountain Center.\nDonald R. Teeter, for appellant Employment Security Commission of North Carolina." }, "file_name": "0136-01", "first_page_order": 162, "last_page_order": 169 }