{ "id": 8527714, "name": "IN THE MATTER OF: CONCHITA P. SMITH, Petitioner-Appellant v. KINDER CARE LEARNING CENTERS, INC. and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Respondent-Appellees", "name_abbreviation": "Smith v. Kinder Care Learning Centers, Inc.", "decision_date": "1989-07-18", "docket_number": "No. 8810SC1354", "first_page": "663", "last_page": "669", "citations": [ { "type": "official", "cite": "94 N.C. App. 663" } ], "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": "313 S.E. 2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "178" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 344", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526378 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/67/0344-01" ] }, { "cite": "517 So. 2d 754", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7574887 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/so2d/517/0754-01" ] }, { "cite": "248 S.E. 2d 727", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565194, 8565293, 8565169, 8565236, 8565270 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0550-02", "/nc/295/0550-05", "/nc/295/0550-01", "/nc/295/0550-03", "/nc/295/0550-04" ] }, { "cite": "244 S.E. 2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "36 N.C. App. 590", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554854 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/36/0590-01" ] }, { "cite": "94 S.E. 2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "580" } ], "opinion_index": 0 }, { "cite": "244 N.C. 560", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219472 ], "year": 1956, "pin_cites": [ { "page": "563" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0560-01" ] }, { "cite": "349 S.E. 2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "851" } ], "opinion_index": 0 }, { "cite": "318 N.C. 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4739651 ], "year": 1986, "pin_cites": [ { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0441-01" ] }, { "cite": "314 S.E. 2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "576" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 287", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527066 ], "year": 1984, "pin_cites": [ { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0287-01" ] }, { "cite": "383 A. 2d 533", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 1736921, 1736916 ], "year": 1978, "pin_cites": [ { "page": "535" } ], "opinion_index": 0, "case_paths": [ "/pa/476/0617-01", "/pa/476/0616-01" ] }, { "cite": "476 Pa. 617", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1736921 ], "year": 1978, "pin_cites": [ { "page": "620" } ], "opinion_index": 0, "case_paths": [ "/pa/476/0617-01" ] }, { "cite": "263 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "3", "parenthetical": "quoting McLean v. Board of Review, 476 Pa. 617, 620, 383 A. 2d 533, 535 (1978)" }, { "page": "4" } ], "opinion_index": 0 }, { "cite": "44 N.C. App. 718", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554919 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "722", "parenthetical": "quoting McLean v. Board of Review, 476 Pa. 617, 620, 383 A. 2d 533, 535 (1978)" }, { "page": "723" } ], "opinion_index": 0, "case_paths": [ "/nc-app/44/0718-01" ] }, { "cite": "291 S.E. 2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "309" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 363", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524502 ], "year": 1982, "pin_cites": [ { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0363-01" ] }, { "cite": "289 S.E. 2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1982, "pin_cites": [ { "page": "359" }, { "page": "360" }, { "page": "359" }, { "page": "376" }, { "page": "359" }, { "page": "360" } ], "opinion_index": 0 }, { "cite": "305 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569932 ], "weight": 4, "year": 1982, "pin_cites": [ { "page": "376" }, { "page": "377" }, { "page": "375" }, { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0373-01" ] }, { "cite": "313 S.E. 2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 1 } ], "analysis": { "cardinality": 671, "char_count": 14359, "ocr_confidence": 0.753, "pagerank": { "raw": 2.3181068408277913e-07, "percentile": 0.7895286559177774 }, "sha256": "c4bbfc9600758793aca9fd4f73ac387eda19ce1e9d5886ef0560bb41f9b785c2", "simhash": "1:7d473c66dc2f3a79", "word_count": 2279 }, "last_updated": "2023-07-14T20:07:12.068465+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge ORR concurs.", "Judge EAGLES dissents." ], "parties": [ "IN THE MATTER OF: CONCHITA P. SMITH, Petitioner-Appellant v. KINDER CARE LEARNING CENTERS, INC. and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Respondent-Appellees" ], "opinions": [ { "text": "PARKER, Judge.\nIn reviewing a decision of the Employment Security Commission, the court must (i) determine whether the Commission\u2019s findings of fact are supported by competent evidence and (ii) decide whether the findings of fact support the Commission\u2019s conclusions of law and its final decision. Intercraft Industries Corp. v. Morrison, 305 N.C. 373, 376, 289 S.E. 2d 357, 359 (1982). The burden is on the employer to show that a discharged employee is disqualified from receiving benefits. Id. In the present case, petitioner contends that the Commission erred in finding that she willfully and without good cause violated her employer\u2019s rule against physical punishment and in concluding that her actions amounted to misconduct connected with her work so as to disqualify her from receiving unemployment benefits pursuant to G.S. 96-14(2).\nThe incident leading to petitioner\u2019s discharge occurred on 20 November 1987 while petitioner was organizing a group of children whom she had driven to the day-care facility. The Commission made the following findings of fact regarding the incident:\n6. The claimant was pregnant at the time of the final incident that caused her termination.\n7. The young student (approximately nine (9) years of age) was horsing around. The student was swinging her book bag and struck the claimant with it. The claimant\u2019s immediate raction [sic] was to hit the student on the shoulder to keep her from further hitting the claimant with the book bag.\n8. The claimant then grabbed the student by the sleeve and was attempting to take the student to the end of the line for the bus. The student tripped and fell.\n9. The incident was reported by both the claimant and a parent who observed the situation.\n10. Claimant was or should have been aware of [the rule against physical punishment] because it is a well known and established rule of which the claimant was very much aware.\nPetitioner did not except to findings of fact 6 through 10 and, therefore, those findings are binding on appeal. In re Hagan v. Peden Steel Co., 57 N.C. App. 363, 364, 291 S.E. 2d 308, 309 (1982). Petitioner has excepted only to the Commission\u2019s findings that she violated her employer\u2019s rule and that the violation was willful and without good cause. These findings are conclusive if supported by competent evidence. Intercraft Industries Corp. v. Morrison, 305 N.C. at 377, 289 S.E. 2d at 360.\nWe find no merit in petitioner\u2019s contention that she did not violate the rule. The rule is embodied in a document entitled \u201cDiscipline Policies and Procedures\u201d which provides in pertinent part: \u201cNo corporal/physical punishment shall be used!\u201d Petitioner signed a copy of the document which contained a statement that she understood that failure to comply with discipline policy is a reason for immediate termination. Petitioner argues that she did not violate the rule because her striking the child was a reflexive action and she did not intend it to be a disciplinary measure. This argument is based upon an overly narrow reading of the rule. The clear intent behind the rule is that employees should never use physical violence for any purpose in their dealings with children. Therefore, petitioner\u2019s reason for striking the child is irrelevant.\nSimilarly, we find no error in the Commission\u2019s finding that petitioner \u201cwillfully\u201d violated the rule. The word \u201cwillful\u201d may have different meanings in different contexts. See Black\u2019s Law Dictionary 1434 (5th ed. 1979). In this case, the undisputed evidence shows that the act constituting the violation was intentional as opposed to accidental or negligent; therefore, it was a willful violation.\nWe also find no error in the Commission\u2019s finding that petitioner violated the rule without good cause. Violation of a work rule does not constitute misconduct under G.S. 96-14(2) if the employee acted reasonably and with good cause. Intercraft Industries Corp. v. Morrison, 305 N.C. at 375, 289 S.E. 2d at 359. Our courts have defined good cause as \u201ca reason which would be deemed by reasonable men and women valid and not indicative of an unwillingness to work,\u201d id. at 376, 289 S.E. 2d at 359, and as \u201cjustifiable or reasonable under the circumstances.\u201d In re Cantrell, 44 N.C. App. 718, 722, 263 S.E. 2d 1, 3 (1980) (quoting McLean v. Board of Review, 476 Pa. 617, 620, 383 A. 2d 533, 535 (1978)). The existence of good cause is a question of fact. Intercraft Industries Corp. v. Morrison, 305 N.C. at 377, 289 S.E. 2d at 360.\nPetitioner contends that she acted reasonably and with good cause because she was pregnant and the child hit her in the stomach with a book bag. We disagree. One who assumes responsibility for young children must be prepared to deal with unruly behavior in the proper manner. The findings and evidence show that petitioner\u2019s immediate reaction to the child\u2019s act was to respond with her own violent act. The evidence does not show that the blow from the book bag caused petitioner any harm or pain, nor does it show that petitioner had to resort to physical force to prevent another blow. The Commission may properly refuse to find good cause for the violation of an employer\u2019s rule where more prudent alternatives were available to the employee. See In re Cantrell, 44 N.C. App. at 723, 263 S.E. 2d at 4. Respondent employer had provided training in alternative methods for dealing with disruptive and unruly children, and petitioner concedes in her brief that \u201cother alternative reactions were possible.\u201d Therefore, the Commission\u2019s finding that petitioner violated her employer\u2019s rule without good cause is supported by competent evidence.\nPetitioner next contends that her violation of the rule did not constitute misconduct within the meaning of G.S. 96-14(2). The statute provides in pertinent part:\nMisconduct 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.\nEvery violation of an employer\u2019s rule does not necessarily amount to misconduct. In re Kahl v. Smith Plumbing Co., 68 N.C. App. 287, 289, 314 S.E. 2d 574, 576 (1984). Petitioner contends that her violation did not constitute misconduct because it was a single instance of poor judgment and she did not act with the intent to harm the interests of her employer.\nWe agree with petitioner that there is no evidence to show that she intended to act in a manner adverse to her employer\u2019s interests. Although G.S. 96-14(2) requires a showing of more than simple negligence such that an employee\u2019s intent is a relevant consideration, Williams v. Burlington Industries, Inc., 318 N.C. 441, 456, 349 S.E. 2d 842, 851 (1986), the statute does not require a finding of a specific intent to harm the employer in all cases. Misconduct may be found based upon a showing of \u201cdeliberate violations or disregard\u201d of the employer\u2019s standards of behavior.\nIn the present case, the act constituting the violation was intentional and, therefore, it cannot be classified as negligence. See Jenkins v. Department of Motor Vehicles, 244 N.C. 560, 563, 94 S.E. 2d 577, 580 (1956); Lail v. Woods, 36 N.C. App. 590, 244 S.E. 2d 500, disc. rev. denied, 295 N.C. 550, 248 S.E. 2d 727 (1978). Because petitioner was charged with knowledge of the rule against physical punishment, her actions amounted to a deliberate violation of the rule. Therefore, we find little merit in petitioner\u2019s argument that her conduct was merely an instance of \u201cpoor judgment.\u201d Cases from other jurisdictions upon which petitioner relies are not pertinent to this case because they involve physical altercations between adult employees. See, e.g., Anderson v. Florida Unemployment Appeals Comm\u2019n, 517 So. 2d 754 (Fla. Dist. Ct. App. 1987).\nPetitioner also contends that the Commission erred in basing its decision upon a single violation of the rule. Although the frequency of an employee\u2019s improper conduct is relevant under G.S. 96-14(2), the seriousness of a particular rule violation is also a relevant factor in determining whether an employee is guilty of misconduct. In this case, petitioner violated a clearly stated rule after she had been informed that such a violation was grounds for termination. The General Assembly has declared its intent to protect children who are placed in day-care facilities through regulation of the facilities. G.S. 110-85. Facilities are required by statute to have written policies on discipline which must be given to parents of enrolled children. G.S. 110-91(10). Regulations governing day-care facilities expressly prohibit any form of corporal punishment. 10 N.C. Admin. Code 3U.1801.\nThus, petitioner violated a significant rule based on State law. In Douglas v. J. C. Penney Co., 67 N.C. App. 344, 313 S.E. 2d 176 (1984), this Court upheld a finding of misconduct where a security officer was discharged for one instance of discussing confidential information with other employees. We noted that \u201c[c]onfidentiality is an integral part of a store\u2019s security.\u201d Id. at 346, 313 S.E. 2d at 178. In this case, the important policy underlying the rule which petitioner violated justifies the Commission\u2019s finding of misconduct based upon a single violation.\nFor the foregoing reasons, the judgment affirming the decision of the Employment Security Commission is affirmed.\nAffirmed.\nJudge ORR concurs.\nJudge EAGLES dissents.", "type": "majority", "author": "PARKER, Judge." }, { "text": "Judge Eagles\ndissenting.\nI respectfully dissent. I would reverse the decision below because the facts found here do not support the conclusion that petitioner was guilty of misconduct so as to disqualify her from unemployment benefits.\nThe findings of fact here show that petitioner violated her employer\u2019s rule against inappropriate discipline (any corporal or physical punishment). A student hit petitioner in the stomach with a book bag. Petitioner was pregnant at the time. Petitioner\u2019s \u201cimmediate raction [sic] was to hit the student in the shoulder to keep her from further hitting the [petitioner] with the book bag.\u201d The hearing officer also found that petitioner was aware of the rule against corporal punishment and promptly informed her supervisor of the incident. I do not agree that these facts support the conclusion that petitioner\u2019s actions constitute misconduct under G.S. 96-14(2). Misconduct means\nconduct evincing such willful or wanton disregard of an employer\u2019s interest as is found in deliberate violations or disregard of standards of behavior . . ., 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. . . .\nG.S. 96-14(2).\nDeliberate means \u201c[w]illful rather than merely intentional.\u201d Black\u2019s Law Dictionary 384 (5th ed. 1979). Deliberate actions are those taken after weighing the consequences. Id. The facts here do not show petitioner acted deliberately. Her actions were more a reflex. Additionally, I do not believe petitioner\u2019s actions show an \u201cintentional and substantial disregard of the employer\u2019s interests or of the employee\u2019s duties and obligations.\u201d Although petitioner\u2019s actions may have shown poor judgment on her part and properly subjected her to termination by her employer, they do not constitute the type of conduct that should disqualify her from unemployment benefits.", "type": "dissent", "author": "Judge Eagles" } ], "attorneys": [ "East Central Community Legal Services, by William D. Rowe, for petitioner-appellant.", "Maupin, Taylor, Ellis & Adams, P.A., by Margie T. Case and Rodney 0. Lohman, for respondent-appellee Kinder Care Learning Centers, Inc.", "Chief Counsel T. S. Whitaker for respondent-appellee Employment Security Commission of North Carolina." ], "corrections": "", "head_matter": "IN THE MATTER OF: CONCHITA P. SMITH, Petitioner-Appellant v. KINDER CARE LEARNING CENTERS, INC. and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Respondent-Appellees\nNo. 8810SC1354\n(Filed 18 July 1989)\n1. Master and Servant \u00a7 108.2\u2014 unemployment compensation \u2014 day-care teacher\u2019s use of physical punishment \u2014 violation of employer\u2019s rule \u2014 misconduct disqualifying employee from receiving benefits\nThe Employment Security Commission did not err in finding that petitioner willfully and without good cause violated her employer\u2019s rule against physical punishment and in con-eluding that her actions amounted to misconduct connected with her work so as to disqualify her from receiving unemployment benefits pursuant to N.C.G.S. \u00a7 96-14(2) where the evidence tended to show that petitioner was a driver and teacher in a day-care center; while pregnant, she was hit in the stomach by a student who was swinging her book bag; petitioner\u2019s immediate reaction was to hit the student on the shoulder to keep her from further hitting petitioner with the book bag; and petitioner knew that corporal punishment was not allowed and knew that failure to comply with her employer\u2019s discipline policy was a reason for immediate termination.\n2. Master and Servant \u00a7 108.1 \u2014 denial of unemployment compensation-single violation of employer\u2019s rule sufficient basis\nThe Employment Security Commission did not err in basing its decision to deny unemployment compensation upon petitioner\u2019s single violation of her employer\u2019s rule against use of corporal punishment where petitioner violated a significant rule based on State law. N.C.G.S. \u00a7\u00a7 96-14(2); 110-85; 110-91(10).\nJudge EAGLES dissenting.\nAPPEAL by petitioner from Allen (J. B., Jr.), Judge. Judgment entered 11 July 1988 in Superior Court, WAKE County. Heard in the Court of Appeals 8 June 1989.\nPetitioner worked at a day-care facility as a teacher and van driver. Petitioner\u2019s employer discharged her for violating the employer\u2019s rule against physical punishment of children. The Employment Security Commission denied petitioner\u2019s claim for unemployment benefits on the grounds that her employer discharged her for misconduct connected with her work. Petitioner appeals from the trial court\u2019s judgment affirming the decision of the Commission.\nEast Central Community Legal Services, by William D. Rowe, for petitioner-appellant.\nMaupin, Taylor, Ellis & Adams, P.A., by Margie T. Case and Rodney 0. Lohman, for respondent-appellee Kinder Care Learning Centers, Inc.\nChief Counsel T. S. Whitaker for respondent-appellee Employment Security Commission of North Carolina." }, "file_name": "0663-01", "first_page_order": 693, "last_page_order": 699 }