St .Tammany Parish Sheriff VS Administrator, Louisiana Workforce Commission and Marichen Faciane
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 20l 2 CA 0092 ST TAMMANY PARISH SHERIFF VERSUS ADMINISTRATOR LOUISIANA WORKF COMMISSION RCE AND MARICHEN FACIANE DATE OF JUDGMENT SEP 2 2Q 2 ON APPEAL FROM THE TWENTY JUDICIAL DISTRICT COURT SECOND NUMBER 2011 DIVISION A PARISH OF ST TAMMANY 16 13 STATE OF LOUISIANA HONORABLE RAYMOND S CHILDRESS JUDGE Darlene S Ransome Baton Rouge Louisiana Counsel for PlaintiffAppellant St Tammany Parish Sheriff J Jerome Burden Counsel for Defendant Appellee Baton Administrator Louisiana Workforce Rouge Louisiana Commission Rowena T Janes Counsel for Defendant Appellee New Marichen Faciane Orleans Louisiana BEFORE KUHI TPETTIGREW AND MCDQNALD JJ Dispositian D AFFIRMF KUHN J Appellant the St Tammany Parish Sheriff Office STPSO appeals a s dastrict court judgment affirming a decision of the Board of Review upholding a determination that claimant Marichen Faciane was not disqualified from receivin unemployment iansurance benefits For the following reasons we affirm FACTS Ms Faciane worked as a collection cle deputy for the administrative rk STPSO from May 1 2006 until her termination on July 1 2010 Her duties included the collection of fines and court costs n July 14 2010 Ms Faciane s cash drawer was 00 50 short In accordance with her employer policy she s repaid the 50 shortage According to 1VIs Faciane this incident was only the 00 second time in over four years that her cash drawer was short n that same date another incident occurred that involved a bank deposit being returned because of errar on the deposit slip prepared by Ms Faciane Ms Facian explained that she had actually prepared two deposits and had mixed up the deposit slips After corr the deposit slip the deposit was returned to the cting bank The following day Ms Faciane was n due to the shortage the rvous preceding day so she approached her supervisar and asked her to count some money from Ms Faciane cash draw order to ensure her deposit was correct s rin After her supervisor counted I50 Ms Faciane indicated she had thought it 00 was 00 150 At that point the supervisor asked Ms Faciane ishe had counted the money first Ms Facian initially stated that she had but then almost ly immediat said oops m I lying no According to Ms Faciane she did not The Board of Review is witlain the f of Unemployment Insurance Administration in the ce uisiana Lc Department of Labor See I 23 a 1651 2 1652 mean by the latter statement that she was actually lying but that it was merely an expression she used to indicat she had spoken too quickly and was correcting herself The next day July 1 b 2010 Ms Faciane was terminated by the STPSO for the stated reasons of violating office policies and procedures by engaging in dishonest ar immoral conduct that undermined the agency effectiveness job s inefficiency and inadequate or unsatisfactory job performance Thereafter Ms Faciane applied for unemployment insurance benefits with the Louisiana Workforce Commission LWC which determined that she was discharged for inability to meet her employer srequirements and that she was not guilty of misconduct within the meaning of La R S 2 1601 23 The STPSO appealed that decision and after a telephonic hearing the administrative law judge ALJ upheld the s agency determination Thereafter the STPSO appealed to the Board ofR which adopt the ALJ findings of fact and conclusions of law view d s as its own and upheld the determination of Ms Faciane seligibility for benefits Finally the STPSO filed a petition for judicial review in the district court which affirmed the decision of the Board of Review The STPSO now appeals to this Court arguing in four assignments of error that the district court erred in upholding the administrative decision of the LWC DISCUSSION On appeal the STPSO argues that an incorrect standard was applied in determining that Ms Faciane was not culpable of misconduct within the meaning of La R 23 which provides that an employee discharged for S 1601 2 misconduct connected with his employment is dis from receiving ualified beneftts Additionally the STPSO contends that the findings of fact made in this case were not supported by sufficient competent evidence and did not as a matter of law justify the LWC administrative decision bthe findings were based s cause 3 on Ms Faciane self testimony and completely ignored the testimonial s serving and evidence it documentary presented The STPSO asserts that its evidence clearly stablished by a preponderance of the evidence that Ms Faciane was discharged for misconduct consisting of dishonesty i lying to her supervisor e about counting her money job ineffrciency and inadequate or unsatisfactory job performance When an employ rseeks to deny unemployment benefits because of employee misconduct the burden of proof is on the employer to establish such misconduct 07 b 9b4 Fontenet v Cypress Bayou Casino 06 La App lst Cix 0300 2d So 1035 1037 Further upon appeal of cases arising under the Louisiana Employment S Law the scope of appellate review is limited to curity determining whether the facts are supported by sufficient and competent evidence and in the absence of fraud whether the facts as a matter of law justify the action taken La R 23 Fontenet 964 So at 103 Judicial review of the S 1634 B 2d findings of the Board of Review does not permit the weighing of evidence darawing of inferences reevaluation of evidence or substituting the views of the court for that of the Board of Review as to the correctness of the facts presented Gonzales Home Health Care L C v 0798 Felder 08 La App lst Cir 0 26 9 994 So 687 d90 writ not considered 08 La 1 998 2d 91 256 09 9 2d So 730 In concluding that Ms Faciane was entitled to benefits the ALJ made the following findings s Claimant drawer was short she made an error on a bank deposit and she inadv stated to her supervisor that she had counted the rtently 2 Louisiana Revised Statutes 23 2provides that an individual is disqualifi 1601 dfor benefits if he is discharged for misconduct connected with his employment Further this provision defines misconduct to rnean mismanagernent of a position of employment by action or inaction neglect that places in jeopardy the lives or property of otl dishonesty wrongdoing ers violation of a law or violation of a policy or rule adapted to insure arderly work or the safety of others 4 money in her drawer Although each instance caused the employer dissatisfaction and occurred with sic days of each other there is no evidence of intentianal wrong doing by the claimant or a deliberate disregard for the employer interest Claimant errors do not rise to s s the level ofmisconduct which would deny benefits The STPSO contention that the ALJ applied an incorrect standard in s determining that Ms Faciane was not culpable of misconduct is based on the s ALJ statement that there is no evidence of intentional wrong doing by the claimant or a deliberate disregard for the employer interest This finding as s well as the ALJ other factual findings and legal conclusions was later adopted s by the Board of Review As the STPS correctly points out this Court held in Fontenet 964 So 2d at 1 Q38 that the amendment of La R 23 1 in 199Q to include a 41 S 16Q 2 statutory definition of misconduct supplanted the prior j urisprudential standard of misconduct that required a intentional breach af the employer rules or s policies or a wanton disregard of the employer interest Nevertheless we do not s find the fact that the ALJ made a factual finding regarding Ms Faciane lack of s intent or deliberate disregard of her employer interest to be sufficient to s conclud that she misconduct existed applied an incorrect standard in determining whether The STPSO argument to the contrary ignores the fact that s the ALJ specifically quoted the statutory definition of misconduct in her written decision indicating her awareness thereof In any event the decision before this Court on appeal is that of the district court not the ALJ In its written reasans for judgment the district court also quoted the statutary definition of misconduct provided by La R 23 S 1601 2 before concluding that the findings of fact and ruling before it on review were correct as a matter of law Accordingly we find the STPSO argument lacks s merit S Additionally the STPSO contends that the administrative decision that Ms Faciane was qualified to receive benefits is erroneous as a matter of law based or this Court sdecision in Fontenet We disagree A determination as to whether an individual is guilty of misconduct disqualifying him from benefits is dependent upon the facts o each particular Of course there is a similarity between case Fontenet and the present case in the respect that both involved claimants responsible for a cash draw who had incidents when their cash balances were r incorrect However whereas the record herein only sufficiently establishes that Ms Faciane had one prior incident of a shortage before the one occurring on July I 14 201 Q the claimant in Fontenet had had at least four variations that occurr d in h balances and ten shortages in her cash balances totaling over 200 prior r to th incident resulting in her discharge In addition to a prior suspension for variations in her cash balances Fontenet also received a final warning regarding her employment and was placed on probation approximately six weeks prior to the final violation of her s employer policies Thus this Court concluded the evidence was sufficient to support th Board of Review factual finding that s s Fontenet perfarmance established a pattern of violations of Cypress Bayou s palicies rules in regard to cash handling and related work issues that constituted misconduct as defined by La R 23 S 1061 2Fontenet 964 So at 1041 2d However the factual findings made in the present case reflect no such pattern of violations by Ms Faciane Nor would the r support such a cord 6 finding Additionally unlike the claimant in Forztenet Ms Faciane was not given the benefit of a final warning and placed on probation prior to the last incident that occurred on July 15 2010 Instead she was given a warning and placed on probation for one y regarding the July 14 incident at the same ar meeting at which she was terminated which rendered the purported warning and probation meaningless Therefore since Fontenet is factually distinguishable from the pr case no conflict exists between its holding that Fontenet was sent disqualified from receiving benefits due to misconduct and the administrative decision in this case that Ms Faciane was not Under La R S be up Cantrary to must held the B 1634 23 u p on udicial the factual review s SPTSPO contention if findings su pp orted that Ms of the Board of R view by sufficlent evidence s Faciane testimony was insufficient this Court has held that a claimant sworn testimony alone may s constitute sufficient evidence to meet the requirem of La R 23 1 b34 nts S B See Conzales Home Health Care 994 So at b93 The factual findings made in 2d this case indicate that Ms Faciane stestimony was accepted as credible including her explanation that she merely misspoke and did not mean that she had intentionally li when she made the oops I lying statement to her supervisor d m Although the STPSO alleges in brief that Ms Faciane had been reprimanded and counseled regarding nurr violations of its policies in addition to the incidents on July 14 and 15 erous 2010 it only lisied one incident involving insubordination as well as an incident involving a prior shortage that Ms Faciane admitied Furthermare while those two incidents and one other involving a shortage were referred to by a witness for the STPSO at the ALJ hearing the witness did not claim any personal involvernent in the incidents and no dacumentaticm thereof was provided even though the AI gave permission for thc record to be supplemented Additionally J none of the incidents referred to by the S w cited as a basis for Ms Faciane 1 re s termination at the time that she was discharged Given these circumstances and in view of the administrative tindings made thc record does not support the STPSO claim of numerous prior s violations by 1VIs Faciane 7 I On appellate review this Court is not permitted to reweigh the evidence or substitute its views for that of the Baard of Review as to the correctness of the facts GonzaCes Home Health Care 994 So at 691 2d Accordingly based on our careful r the record w find that the view of factual findings of the ALJ and the Board of Review are supported by sufficient and compet ntevidence Moreover as a matter of law those findings justify the Board of Review decision that Ms Faciane was not discharged for misconduct s within the meaning of La R S 2 1601 23 See La R 23 Therefore S1 B 34 the district court properly affirmed the Board of Review decision s CONCLUSION For the reasons assigned the decision of the district court affirming the decision of the Board of Review is hereby affirmed The STPSO is assessed with all costs of this appeal in the amount of 595 97 I AFFIRMED s
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