
    JEFFERSON PARISH DISTRICT ATTORNEY, v. George WHITFIELD, Administrator, Department of Employment Security and Janice Akins.
    No. 87-CA-306.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1987.
    Rehearing Denied Dec. 17, 1987.
    Writ Denied Feb. 12,1988.
    
      Dorothy A. Pendergast, Asst. Dist. Atty., Research & Appeals, Gretna, for plaintiff/appellant.
    James A. McGraw, B.J. Francis, Denise A. Nagel, Vivian Broussard, Guillory, Frank T. Scott, Jr., Ollivette Mencer, and Sandra A. Broussard, Office of Employment Sec., Baton Rouge, for defendants/appellees.
    Before KLIEBERT, BOWES and GOTHARD, JJ.
   GOTHARD, Judge.

This is a suit for judicial review of an administrative determination that defendant is entitled to unemployment compensation. LSA-R.S.23:1634.

Defendant, Janice Akins, was employed by the plaintiff Jefferson Parish Attorney’s Office as a clerk typist II for six years. She was fired on January 21, 1986. The Louisiana Department of Employment Security denied unemployment compensation on finding that Ms. Akins was discharged for excessive absences and tardinesses, insubordination, unauthorized absence, and was discharged for misconduct connected with her employment. Ms. Akins appealed the determination to an appeals referee of the Department. Following a hearing thereon, the referee upheld the disqualification finding that Ms. Akins had been discharged due to her absence without authorization. Ms. Akins then appealed the referee’s decision to the board of review of the Department, which reversed the referee’s decision stating that Ms. Akins “... was absent from her employment due to a disaster ... [h]er home was flooded and became unliveable_ She properly notified the employer of the absence ...” The board concluded that there was a lack of evidence of deliberate misconduct on Ms. Akins’ part, and reinstated benefits. The district court affirmed, without reasons, the board’s determination. This appeal followed.

Janice Akins worked full time, days and hours as scheduled, earning $916 monthly. Her immediate supervisor was Mary Kunk-el. Ms. Akins’ services were evaluated yearly by her supervisor and an annual pay raise given accordingly. In 1985, her evaluation was deferred from July to October in company with a warning from Ms. Kunk-el that she improve her absenteeism and tardinesses or her position in the office would be in jeopardy. In October, Hurricane Juan devastated parts of Jefferson Parish with flood waters, including the area where Ms. Akins lived, and caused her to miss several days of work. When she returned, Ms. Akins told Ms. Kunkel that she would need additional time off once her home was repaired in order to clean up and move back in. She was not denied permission and was told to request leave when needed. After the repairs were completed, Ms. Akins notified her supervisor through her secretary, and was absent from work from January 2 through January 8 during which time she readied her house for her move back into it. After returning to work on January 9, she was called into the office of her division supervisor, Denis Ganu-cheau, and in the presence of Ms. Kunkel, to discuss her absences from work, which she was then told were unexcused. Both Mr. Ganucheau and Ms. Kunkel testified that during this meeting, Ms. Akins walked out without explanation, which they felt constituted insubordinance, and which prompted their immediate recommendation that she be fired. Ms. Akins testified that she walked out after Mr. Ganucheau terminated the meeting. Ms. Akins was allowed to work until January 21 and then was fired.

The issue before this court is whether the decision of the board of review to reinstate compensation benefits was based on legally sufficient evidence made in the absence of fraud.

LSA-R.S. 23:1601 provides that:

“An individual shall be disqualified for benefits:
“(2) If the administrator finds that he has been discharged ... for misconduct connected with his employment ...”.

The employer bears the burden of proving that a discharge resulted from disqualifying misconduct. Banks v. Administrator of Dept, of Employment, 393 So.2d 696 (La.1981). The factual findings of the administration and the board of review as to this issue, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. LSA-R.S. 23:1634.

The word misconduct in LSA-R.S. 23:1601 is used to connote intentional wrongdoing. Thus an employee can be unsatisfactory to an employer without being guilty of disqualifying misconduct. An intent to do wrong must be present. Banks, supra. Because of the beneficial purpose of unemployment compensation (LSA-R.S. 23:1471), the term “misconduct” should be construed so as to favor the awarding of benefits rather than disqualification. Charbonnet v. Gerace, 457 So.2d 676 (La. 1984). Here, the evidence shows that the flooding of Ms. Akins’ home caused her absences in early January. The absences were properly notified to her employment and were not denied. Ms. Akins was neither warned that these absences would be considered unexcused, nor that they would result in her discharge. Other employees in a similar situation had taken leave without being fired. Based on these circumstances, we conclude, as did the board of review, that Ms. Akins’ absences necessitated by the flood do not constitute disqualifying “misconduct” under LSA-R.S. 23:1601.

We further hold to be without merit the appellant’s allegations that the board’s determination was legally insufficient because it ignored the appellee’s insubordinance when questioned about her absences on January 9, and ignored her absences and tardinesses prior to those necessitated by the flood. These allegations were presented and tried before the referee. Neither the referee nor the board noted either allegation as a basis for the determination whether Ms. Akins was eligible to receive unemployment compensation, obviously being of the opinion that it was unnecessary to this question. We agree.

Ms. Akins’ alleged insubordination, even if believed, was not of the type of intentional wrongdoing which would disqualify her from benefits. Compare, Dorsey v. Administrator, Louisiana Dept., Etc., 353 So.2d 363 (La.App.Cir. 1,1977), writ denied, 355 So.2d 549. (Employee’s abusive conduct towards supervisor in sight of customers constituted misconduct.)

Similarly, any tardinesses or absences prior to October, 1985 are too removed from Ms. Akins’ discharge on January 21, 1986 to support a finding of disqualifying misconduct. Compare, Neal v. Whitfield, 476 So.2d 911 (La.App.Cir. 2 1985). (Chronic absenteeism of the employee from work without notice and without permission constitutes willful disregard of the employer’s interest amounting to “misconduct”).

Accordingly, the judgment of the district court upholding, on judicial review, the decision of the Louisiana board of review of the Department of Employment Security removing claimant Janice Akins’ prior disqualification for employment security benefits is affirmed.

AFFIRMED.

KLEIBERT, J., concurs.

BOWES, J., dissents.

KLIEBERT, Judge,

concurring.

I concur in the results reached by the writer but not necessarily for the reasons stated by him.

BOWES, Judge,

Dissenting.

I am fully aware that the trial court is mandated to examine the reasons presented by the Board of Review. The scope of appellate review for cases arising pursuant to Louisiana Employment Security Law is set forth in LSA-R.S. 23:1634 as follows:

In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.

The standard of review set forth in LSA-R.S. 23:1634 regarding sufficient evidence has been interpreted previously by the Louisiana Supreme Court. In Banks v. Administrator of Dept, of Employment, 393 So.2d 696 (La.1981), the Court held: “... there must be legal and competent evidence to support the factual findings on which the administrative determination turns.” See also Southeastern Louisiana University v. Shelton, 431 So.2d 432 (La. App. 1 Cir.1983).

I am of the opinion that the board of review’s rendition of the facts is a misrepresentation of the evidence to such a great extent that it is not supported by sufficient evidence for the statutory purposes of LSA-R.S. 23:1634. I am persuaded to this view and to disagree with the majority opinion because the district attorney presented ample evidence to show that Ms. Akins’ dismissal was the result of a long term pattern of misconduct, rather than a single incident precipitated by Ms. Akins’ misfortune as a result of Hurricane Juan.

The record is replete with correspondence and documentation which supports the district attorney’s position. As early as May 1984, Ms. Akins was issued a memorandum which outlined the problems her employer was experiencing with her tardiness, clocking out at lunch time and absenteeism. In April, 1985, the entire staff received a memorandum which outlined the proper procedure for taking leave. Yet, in July 1985, Ms. Akins was the recipient of another memorandum due to her excessive absenteeism and tardiness. Although Ms. Akins’ position was not terminated at this point, these memoranda are indicative of the district attorney’s attempt to offer Ms. Akins every opportunity to improve her employment record.

The record does indicate that some of Ms. Akins’ absences in the fall and winter of 1985 were necessitated by Hurricane Juan, which occurred in October, 1985; however, her procedure for handling the absences was contrary to documented office policy. Ms. Akins was on unauthorized leave without pay from January 2 through January 8, 1986. This action prompted two more interoffice memoranda to be issued from her supervisor to Mr. Denis Ganucheau. One of these memorandums outlined the seriousness of Ms. Akins’ absenteeism and tardiness problem, i.e., from the most recent time frame of forty working days, Janice Akins was absent ten days and tardy twenty-two days.

In my opinion, for the board of review to completely ignore all of the previous problems the employer had with Ms. Akins, and her insubordinate and inexcusable actions during her tenure, and especially the last 40 days of her employment, is simply unjustified in this situation. Ms. Akins’ employer gave her several chances to improve her performance, and this has been carefully documented. As I see it, Ms. Akins made no attempt whatsoever to improve her attitude or attendance performance. The employer in this situation should not be penalized for attempting to give Ms. Akins every opportunity to improve her attendance record. Rather, the board of review should have taken the record in its totality and determined, as did the appeals referee, that her termination was the culmination of a long series of reprimands and complaints by her employer.

This, in my view, constitutes willful misconduct as used to connote intentional wrongdoing. Banks v. Administrator, Department of Employment Security, supra. Further, I find that the legal burden of proof required of the employer to establish willful misconduct of the claimant was proven by a preponderance of the evidence in this case. Ealy v. Sumrall, 401 So.2d 520 (La.App. 2 Cir.1981). Consequently, the facts as presented by the appeals referee are more complete and reliable than those in the shortened and misrepresented form presented by the board of review.

It is unfortunate that Ms. Akins’ home was rendered unlivable by a devastating hurricane, and that she was required to take time from her employment to repair it and eventually move back in. However, her past attendance record, her total disregard for office leave procedure, and insubordination even in this final situation, would leave any employer with no choice but to terminate her position.

I agree with the district attorney. It is my opinion that the misconduct of the employee resulted from a willful and wanton disregard of the employer’s interest, a deliberate and malicious violation of the employer’s rules, and a disregard of standards of behavior (set up and well-published by the employer) which the employer has a right to expect of his employees. No employer should have to tolerate such outrageous and irresponsible conduct from any employee.

Accordingly, for the foregoing reasons, I would reverse the ruling of the trial court and reinstate the ruling of the appeals referee.  