
    Stella GAUTREAUX, Plaintiff-Appellee, v. George WHITFIELD, Administrator, Office of Employment Security Department of Labor, State of Louisiana, and Guaranty Bank & Trust Company of Lafayette, Inc., Defendant-Appellant.
    No. 86-974.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1987.
    L.H. Olivier, Lafayette, for plaintiff/ap-pellee.
    James McGraw, Denise A. Nagel, Baton Rouge, Elarbee, Thompson & Trapnell, Robert J. Martin, Atlanta, Ga., for defendant-appellant.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOUCET, Judge.

This unemployment compensation case involves an appeal from a judgment rendered by a district court reversing the administrative determination which disqualifies appellant from receiving benefits. We affirm.

After leaving the employ of Guaranty Bank and Trust Company (hereinafter referred to as Guaranty), appellee, Stella Gautreaux, filed a claim for unemployment compensation benefits with the Louisiana Office of Employment Security (hereinafter referred to as Agency). The Agency determined that appellée was disqualified from receiving benefits under La.R.S. 23:1601(1) because she left her employment without good cause connected with her employment. The appeals referee and the Board of Review affirmed the Agency’s determination assessing a disqualification for benefits. Appellee then sought judicial review of the Board of Review’s decision. The district court reversed that decision and Guaranty now appeals claiming that the trial court’s reversal of the appeals referee’s findings, affirmed by the Board of Review, is contrary to La.R.S. 23:1634. We disagree.

La.R.S. 23:1634 in pertinent part provides:

“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.”

According to the above statute, the factual findings of the Board of Review are, in the absence of fraud, conclusive if supported by sufficient evidence. Ducote v. Louisiana Office of Employment Security, 401 So.2d 1087 (La.App. 3rd Cir.1981). There is no allegation or evidence of fraud in the instant case. Thus, the question of law presented for resolution by this court is whether the findings of fact by the Board of Review are supported by sufficient evidence. After careful review of the record, we find that they are not.

Appellant urges that the trial court’s reversal of the Board of Review’s findings is contrary to La.R.S. 23:1634 because the findings of the Board are supported by sufficient evidence and are thus conclusive. The Board of Review made two key findings:

(1) That the main reason for Mrs. Gau-treaux’s resignation was that she did not want to be transferred to another branch and,
(2) That she failed to prove that she was discriminated against on the basis of equal work/equal pay.

Appellant contends that both conclusions are supported by sufficient record evidence. We disagree.

Appellee, Mrs. Gautreaux, worked for appellant for over eleven years, working her last day on January 30, 1985. A few months prior to this date, appellee applied for a posted position. Another applicant, Mr. Ken Judice, also applied but was initially not allowed to post for the position as he had not yet completed the loan training program. Mr. Judice was subsequently allowed to supplement his application, a privilege not afforded to other applicants. After evaluation of the two applicants, Mr. Ken Judice was awarded the position. After subsequently working with Mr. Judice, appellee discovered that Mr. Judice was receiving considerably larger compensation, despite the fact that appellee had been employed at Guaranty much longer and despite the fact that appellee was more qualified than he.

In a meeting of January 24, 1985, appel-lee questioned her superiors as to why Mr. Judice was being paid more than the three female loan officers present in the discussion, despite the fact that Mr. Judice had no prior lending experience and had half of the lending authority of those three females. Appellee was not provided with an answer at this time.

The following day, appellee learned that she was being transferred to a branch location which was undesirable to her for various reasons. That afternoon appellee requested a transfer.

Appellee was contacted the next day by Mr. J.B. Mouton of Guaranty Bank and was told that she was re-assigned to another branch and was told to report to that location. Appellee went to that location and was then contacted once again by Mr. Mouton and told that she would have to report to the previous Southpark assignment. At this time, appellee informed Mr. Mouton of the reasons for which she did not want to be transferred to the South-park Branch. During this conversation, ap-pellee also informed Mr. Mouton that she did not feel that she had been treated fairly on the job posting and went into detail with Mr. Mouton pointing out her qualifications and pointing out the fact that a non-loan officer had been promoted to the job over her, an officer, despite the fact that Mr. Judice had no prior lending experience, and despite the fact that even after his promotion, Mr. Judice was only given one-half the lending authority that the appellee had, which indicated to her that the bank recognized his lack of experience and qualifications.

At a later meeting with two of her superiors, appellee inquired as to why she had to be assigned to the Southpark Branch. In response to her inquiry, appellee was told that she was being assigned there because she had the credit and financial analytical ability to be a tremendous help to that location. Appellee, in response, told them that they must have been mistaken as to her qualities since they had promoted Mr. Ken Judice over her because she lacked the very credit and analytical experience that she was now being praised for.

Based on the foregoing account, we find that appellee was subjected to discriminatory treatment. Moreover, we find that the main reason for appellee’s resignation was not because she was being transferred to an undesirable location, but instead, was due to the discriminatory treatment against her. While we are aware of the fact that appellee was unhappy about being transferred to the Southpark Branch, we find that this was not the motivating factor in her resignation. To the contrary, long before the proposed transfer, appellee was subjected to a culmination of past discriminatory treatment and appellee voiced her concerns of this discriminatory treatment to several of her superiors on several occasions.

After having found that appellee resigned due to discriminatory treatment, our next inquiry is whether the discriminatory treatment was “good cause” for quitting within the meaning of La.R.S. 23:1601(1). According to the aforementioned statute, an individual shall be disqualified for benefits “if the Administrator finds that he has left his employment without good cause connected with his employment.” In McGinnis v. Moreau, 149 So.2d 188 at 190 (La.App.1963) in relation to the provisions of La.R.S. 23:1601(1), the court held in pertinent part:

“... mere dissatisfaction with working conditions does not constitute ‘good cause’ for quitting the employment, unless the dissatisfaction is based upon discriminatory or unfair or arbitrary treatment or is based upon a substantial change in wages or working conditions from those in force at the time the claimant’s employment in his position commenced, so as to render the work unsuitable to the claimant, considering the worker’s physical fitness qualifications, earning ability, and the like.”

In the present case, appellee’s dissatisfaction was based upon discriminatory treatment. Thus, pursuant to McGinnis, supra, this constituted “good cause” for quitting her employment. As such, we agree with the judgment of the trial court and find that appellee is entitled to unemployment compensation benefits.

Accordingly, for the reasons assigned, we affirm the judgment of the trial court. Costs of this appeal are assessed against appellant.

AFFIRMED.

LABORDE, J., concurs and assigns reasons.

DOMENGEAUX, J., dissents and assigns reasons.

LABORDE, Judge,

concurring.

The difference between affirmance and reversal in this case is the resolution of the following query: Was the proposed transfer precipitated by harassment in retaliation of Mrs. Gautreaux’s inquiry into discriminatory treatment, or was it coincidence? The record supports only one conclusion: harassment.

The first finding of the Board of Review (That the main reason for Mrs. Gautreaux’s resignation was that she did not want to be transferred to another branch) simply begs the question. The transfer was clearly motivated by the bank’s desire to stymie discussions of comparative employee benefits. The discriminatory treatment, long endured by plaintiff, provided good cause for quitting under LSA-R.S. 23:1601(1).

DOMENGEAUX, Judge,

dissenting.

Plaintiff, Mrs. Stella Gautreaux, filed for unemployment compensation after she quit her job as a revolving loan officer at Guaranty Bank & Trust Company. She claimed to have quit for “good cause” under La. R.S. 23:1601 because she alleged that the bank sexually discriminated against her in promoting a lesser qualified man to a position for which she had applied.

Mrs. Gautreaux was a revolving loan officer assigned primarily to the Pinhook Branch of Guaranty Bank. A revolving loan officer is a loan officer who must rotate to other branches when a loan officer vacancy temporarily exists at another branch. In November, 1984, Mrs. Gau-treaux applied for and was denied a promotion as a permanent loan officer at the Pinhook Branch. She apparently felt that she had been unfairly denied the promotion in favor of a lesser qualified man. Yet, she did not voice her complaint at this time to her superiors.

In late January, 1985, a loan officer vacancy arose in the Southpark branch. Mrs. Gautreaux, who had previously worked at this branch but did not enjoy it, was assigned to fill the vacancy. At this time, she objected to the transfer and voiced her displeasure in the promotion denial of November. After two days of lengthy discussions with numerous superiors at the bank, Mrs. Gautreaux tendered a written resignation on January 31, 1985.

After applying for unemployment compensation, an evidentiary hearing was held to determine whether or not Mrs. Gau-treaux left her position “for cause” under La.R.S. 23:1601. An appeals referee made two factual findings: (1) that Mrs. Gau-treaux's main reason for quitting was her displeasure in the proposed transfer, and (2) that Mrs. Gautreaux failed to prove sexual discrimination on the part of Guaranty Bank in their failure to promote her or in their failure to provide equal pay for equal work. The Board of Review affirmed this ruling and plaintiff appealed. The district court reversed the findings of the appeals referee by ruling that the referee’s findings of fact were not supported by sufficient evidence. The majority affirms the district court’s ruling.

I respectfully dissent for the following reasons. Initially, it is evident that the majority has failed to follow the standard of review as set out in La.R.S. 23:1634 which states:

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. (Emphasis added).

There was no allegation of fraud. Therefore, this court is required to review the record of the appeals referee’s hearing and determine whether the referee's findings of fact are supported by sufficient evidence. If there is sufficient evidence to support these findings, they are conclusive and we must affirm. By adopting such a stringent standard of review, the legislature wished to prevent the courts from reweighing the credibility of the witnesses, a determination that can only be done properly by the trier of fact, in this case the appeals referee. Instead, the majority obviously disregards the proper standard of review and inserts its own opinion as to the credibility of the testimony heard by the appeals referee.

The appeals referee made two findings of fact: Initially, he found that Mrs. Gau-treaux quit primarily because she did not want to transfer to another bank branch. As transferring to another branch was a known job requirement, quitting for this reason would not constitute “for cause”. Secondly, he held that even if Mrs. Gau-treaux did quit because she felt that she had been discriminated against, she did not prove that she had been sexually discriminated against and hence, her departure on this unsubstantiated basis was also not “for cause”.

The record of the appeals referee’s hearing contains sufficient evidence to support both of these findings. Five witnesses testified at the hearing. Three of these witnesses testified that Mrs. Gautreaux stated to them directly or strongly inferred that she was resigning because of the proposed transfer. These witnesses were Judy Weathers, Senior Vice-President and Director of Human Resources at Guaranty Bank; Mr. Mouton, the Branch Manager; and Mr. Montelaro, the Branch Loan Coordinator. The fourth witness, Mrs. Hamilton, another ex-employee of Guaranty Bank and plaintiff’s friend, also testified that Mrs. Gautreaux did not want to transfer to the other branch office. The fifth and final witness at the hearing was Mrs. Gautreaux who stated she left because of sexual discrimination. Additionally, Mrs. Gautreaux never voiced an objection to her promotion denial until after she was informed of her upcoming transfer three months later. This fact further supports the referee’s conclusion that Mrs. Gau-treaux left primarily because she was unhappy with the transfer, not because she felt discriminated against. More than sufficient evidence was presented which supports the finding of the appeals referee that Mrs. Gautreaux left primarily because of the proposed transfer.

The record also supports the referee’s finding that Mrs. Gautreaux failed to prove sexual discrimination on the part of Guaranty Bank. Mrs. Weathers testified as to the qualifications of Mr. Judice, the person who was promoted over Mrs. Gautreaux. His qualifications were comparable to those of Mrs. Gautreaux yet, they varied in several significant areas. Mr. Judice had spent a year handling “problem loans” for the bank, had prior lending and credit analysis experience, and had sat on a loan committee. He had also been a cashier and vice-president at two additional banks. Other than experience in commercial loan forms, his qualifications met all the prerequisites for the promoted position. Additionally, Mr. Judice would have completed his loan training program except that the bank management had asked him to continue handling the problem loans for an additional six months. Besides this, the bank showed that all revolving loan officers were paid approximately the same gross salary and that some women loan officers were paid higher than' the men loan officers.

Very little evidence of Mrs. Gautreaux’s qualifications for the permanent loan officer position were presented at the hearing. Mrs. Gautreaux alone testified as to her qualifications for the position and, in essence, argued that because she had been a loan officer for two years and had completed a loan officer training program, she was more qualified than Mr. Judice. Her self-serving statement was unsupported by any other evidence. The referee ruled that Mrs. Gautreaux failed to prove that she was discriminated by the bank when she was denied the promotion and the record supports this finding.

As there is significant evidence in the record to support the referee’s finding, this Court is mandated under La.R.S. 23:1634 to uphold this decision. We are not to insert our own opinion on the credibility of the testimony heard by the referee.

I also respectfully disagree with the concurring opinion which indicates that Mrs. Gautreaux was being transferred in order to harrass her because she objected to her promotion denial. This is neither alleged nor proven in the record by the plaintiff. In late January, Mrs. Gautreaux was first asked by Guaranty Bank to transfer to another branch. She then objected to the transfer and to the promotion denial of the past November. As Mrs. Gautreaux did not complain to the Bank about the November promotion denial until she was asked to transfer in January, the Bank could not have been harrassing her through the proposed transfer for complaining of sexual discrimination when she had not yet voiced her complaint on this topic.

I respectfully suggest that my brothers of the majority have failed to apply and follow the standard set out in La.R.S. 23:1634. Instead, they chose to decide the facts and repeat the error of the district court.

For the foregoing reasons, I respectfully dissent.  