Matter of Bolden

267 S.E.2d 397 (1980)

In the Matter of Shirley W. BOLDEN, Appellee, and J. C. Penney Company, Inc., Employer, and Employment Security Commission of North Carolina, Appellant.

No. 8026SC146.

Court of Appeals of North Carolina.

July 1, 1980.

*398 Paul E. Hemphill, Staff Atty., Legal Services of Southern Piedmont, Inc., Charlotte, for claimant-appellee.

Gail C. Arneke, Staff Atty., Raleigh, for Employment Security Commission of North Carolina, appellant.

PARKER, Judge.

In the judgment appealed from the court expressly found that the facts found by the Commission were based upon competent evidence contained in the record. The court nevertheless reversed the Commission's decision, basing its ruling upon its finding that the Commission "did not properly apply the law to those and other facts in evidence." (Emphasis added.) In reversing the Commission on the basis of "other facts in evidence," the Court committed error.

In reviewing decisions of the Employment Security Commission as authorized by G.S. 96-15(i), the superior court functions as an appellate court. In re Enoch, 36 N.C.App. 255, 243 S.E.2d 388 (1978). In *399 performing that function, "the reviewing court may determine upon proper exceptions whether the facts found by the Commission were supported by competent evidence and whether the findings so supported sustain the legal conclusions and the award made, but in no event may the reviewing court consider the evidence for the purpose of finding the facts for itself." Employment Security Comm. v. Young Men's Shop, 32 N.C.App. 23, 29, 231 S.E.2d 157, 160 (1977). If 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 made proper findings.

In the judgment appealed from the court did not specify what were the "other facts in evidence" to which the Commission had failed properly to apply the law. Presumably the court was referring to the evidence presented by the claimant in support of her contention that her employer had unfairly discriminated against her because of her race. The ultimate question for decision in this case was whether the claimant had "left work voluntarily without good cause attributable to [her] employer" within the meaning of G.S. 96-14(1) so as to be disqualified for unemployment compensation benefits by virtue of that section. Had she left her job because of racial discrimination practiced against her by her employer, she would have had good cause attributable to her employer and so would not have been disqualified for benefits. The Commission made no factual findings on this matter. The question presented for our determination on this appeal thus becomes whether such findings were necessary to determine the rights of the parties upon the matters in controversy in this case. This depends upon whether the evidence presented by the claimant was sufficient to raise a genuine issue of fact which the Commission was required to resolve as to whether claimant's employer unfairly discriminated against her on account of her race. We find that it was. Although claimant's objective evidence tending to support her subjective feeling that she had been the victim of racial discrimination was minimal indeed and certainly would not compel that conclusion, in our opinion it was sufficient to raise a factual issue which the Commission should have resolved.

Accordingly, the judgment appealed from is vacated and this matter is remanded to the superior court with directions that the superior court further remand this matter to the Employment Security Commission, to the end that the Commission make findings of fact upon all controverted issues required to determine the rights of the parties.

Vacated and remanded.

CLARK and WEBB, JJ., concur.