Larry O. Newkirk VS Jerry Creel Trucking, Inc.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 1715 LARRY O NEWKIRK VERSUS JERRY CREEL TRUCKING INC DATEOFJUDGMENT aPR 2 6 2013 1 Y d ON APPEAL FROM TI TWENTY JUDICIAL DISTRICT COURT SECOND NUMBER 102 DNISION G PARISH OF WASHINGTON 291 STATE OF LOUISIANA HONORABLE WILLIAM J CRAIN JLJDGE Larry O Newkirk Angie Louisiana Appellant Plaintiff J Jerome Burden Counsel for Defendant Appellee Baton Louisiana Workforce Commission Rouge Louisiana Pro Se BEFORE KiJ PETTIGREW AND McDONALD JJ I Disposition AFFII2MED KUHN J I claimant Appellant Larry O Newkirk appeals district a court judgment dismissing his petition for judicial review of a decision of the Board of Review that Mr upheld s Newkirk disqualification to receive unemployment compensation benefits For the following reasons we affirm FACTUAL AND PROCEDURAL BACKGROUND Mr Newkirk worked as a local truck driver for Jerry Creel Trucking Inc Geel for approximately two and one years On August 21 2009 he gave half s Creel secretary a one notice that he was quitting because he intended to week reapply for social security disability His last day of employment was August 28 2009 Thereafter Mr Newkirk filed an application with the Louisiana Workforce Commission appellee herein for unemployment compensation benefits His claim was denied on the basis that he left his employment for personal reasons rather than for good cause After he took an appeal from that determination a hearing was held before an administrative law judge ALJ Mr Newkirk testified at the hearing that the actual reason he quit was because there were regularly shortages in his paychecks He believed the shortages were due to Creel general manager Craig Ritchie keeping some of s Mr Newkirk s money for himself He further asserted broadly that he was discriminated against and treated unfairly at Creel According to Mr Newkirk he was not permitted as his co were to haul loads of dirt that were paid at a workers higher rate per load Finally Mr Newkirk claimed that he made a request before his last day of employment with Creel that he be allowed to keep his job but his The Board of Review is within the Office of Unemployment Insurance Administration in the Louisiana Department of Labor See La 23 1651 2 1652 request was refused Mr Ritchie gave testimony that conflicted with that of Mr Newkirk in several respects He testified that the only instance he knew of when Mr Newkirk complained about his paycheck was when Creel received an order from the Social Security Disability Administration to garnish Mr Newkirk wages Mr Ritchie s admitted that when the garnishment order was eventually lifted there was insufficient time to prevent the garnishment from being withheld from Mr s Newkirk next paycheck However Mr Newkirk was reimbursed quickly for the amount withheld from that check Further Mr Ritchie denied that Mr Newkirk was treated unfairly or discriminated against With respect to Mr Newkirk claim that he was not s allowed to haul the higher loads of dirt Mr Ritchie noted that different paying trucks were assigned to different tasks In any event he testified that Mr Newkirk also was not assigned to haul dirt because those assignments typically were later in the day when he had already gone for the day Finally Mr Ritchie also denied Mr Newkirk claim that he asked for his s job back before his last day of employment with Creel According to Mr Ritchie Mr Newkirk did not make this request until two to three weeks after his last day of employment He explained that the request was denied because the process of hiring a replacement had already begun Following the hearing the ALJ issued a written opinion affirming Mr s Newkirk disqualification from receiving unemployment compensation benefits In doing so the ALJ specifically found Mr Ritchie testimony more credible than s that ofMr Newkirk stating as follows The claimant and the employer had two entirely different versions of when the claimant requested that he be allowed to have his job back The claimant scredibility is not as strong as the employer scredibility because the claimant was receiving social security disability prior to 3 starting his job with this employer and he continued to receive these benefits while he was employed fulltime The claimant is again receiving social security disability He did not tell the employer about this prior to being hired and he passed three DOT physicals during his employment with this employer Based on its credibility determination the AL7 concluded that the claimant has not proven with a preponderance of evidence that he had good cause attributable to a substantial change made to the employment by the employer to quit his employment Mr Newkirk then appealed to the Board of Review After reviewing the record including the testimony given at the administrative hearing the Board of Review found no justification for reversing or modifying the ALJ decision and s adopted its findings as its own judicial review in district court district Icourt Thereafter Mr Newkirk filed a petition for After hearing oral arguments on the matter the concluded that the Board of Review decision was supported by its s findings of fact and dismissed the petition for review with prejudice Mr Newkirk now appeals the district court judgment ANALYSIS Under La R 23 an individual is ineligible for unemployment S 1601 a 1 compensation benefits if he voluntarily leaves his employment without good cause attributable to a substantial change made to the employment by the employer Furthermore when an individual becomes unemployed and the issue is whether or not he left with good cause as required by statute then the claimant bears the burden of proving by a preponderance of the evidence that good cause existed See Gonzales Aome Healfh Care L v Fe 08 La App C der 0798 lst Cir 9 994 So 687 690 writ not considered 998 So 730 08 26 2d 2d 2568 08 La 1 09 9 4 The scope of judicial review in cases involving unemployment compensation benefits is expressly and severely limited by the Legislature King u Tangipahoa Parish Police Jury 96 La App 1 st Cir 2 691 So 0934 97 14 2d 194 196 Under La R 23 S 1634 Bthe factual findings of the Board of Review must be upheld upon judicial review if supported by sufficient evidence Thus the scope of appellate review in this matter is limited to determining whether the facts are supported by sufficient and competent evidence and whether the facts as a matter of law justify the action taken La R 23 Strahan v Eams S 1634 B Electric L 11 La App lst Cir 5 92 So3d 1025 1027 C 2016 12 2 Further our appellate review does not entail the weighing of evidence drawing of inferences reevaluation of evidence or substituting the views of this Court for those of the ALJ or Board of Review as to the correctness of facts Strahan 92 3d So at 1027 Good cause connected with an individual employment means a cause s connected with his working conditions the ability of the employee to continue the employment the availability oftransportation to and from wark and other factors that affect the employee abiliry or right to continue work or that affects the s benefits he may receive from his employer Gonzales Home Health Care 994 2d So at 693 Good cause connected with employment exists when an employee quits his job because the wark becomes unsuitable due to unanticipated warking conditions However mere dissatisfaction with working conditions does not constitute good cause unless the dissatisfaction is based on discrimination unfair or arbitrary treatment or is based upon a substantial change in wages or working conditions from those that existed at the time the employee position s began Gonzales Home Health Care 994 So at 693 2d 5 In this case when Mr Newkirk gave notice to his employer that he was quitting he indicated he was doing so in order to reapply for social security disability benefits Although he later claimed that he quit due to regular shortages in his paychecks as well as unfair and discriminatory treatment by his employer the ALJ and Board of Review made factual findings rejecting these claims and finding that Mr Newkirk did not have good cause within the meaning of La S 1601 R 23 to leave his employment with Creel Based on our careful a 1 review of the record we find that the factual findings of the ALJ and the Board of Review are supported by sufficient and competent evidence Moreover as a matter of law those findings justify the Board of Review decision that Mr s Newkirk was disqualified to receive unemployment compensation benefits because he left his employment without good cause attributable to a substantial change made to the employment by the employer See La R 23 La S 1601 a 1 S 1634 R 23 B CONCLUSION For the reasons assigned the decision of the district court dismissing the petition for judicial review filed by Mr Newkirk is affirmed Since Mr Newkirk is exempt under La R 23 from the payment of cost in these proceedings S 1692 we make no assessment of costs in this appeal AFFIRMED 6
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