Banks v. Administrator, Louisiana Office of Employment Security

488 So. 2d 1067, 1986 La. App. LEXIS 6764
CourtLouisiana Court of Appeal
DecidedMay 7, 1986
DocketNo. 17818-CA
StatusPublished
Cited by2 cases

This text of 488 So. 2d 1067 (Banks v. Administrator, Louisiana Office of Employment Security) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Banks v. Administrator, Louisiana Office of Employment Security, 488 So. 2d 1067, 1986 La. App. LEXIS 6764 (La. Ct. App. 1986).

Opinion

LINDSAY, Judge.

Plaintiff, Mack Banks, appeals from the judgment of the trial court affirming the decision of the Board of Review of the Louisiana Office of Employment Security, denying the plaintiff’s claim for unemployment compensation benefits. We affirm.

The plaintiff had been employed by the Louisiana Department of Corrections at the Wade Correctional Center in Haynesville since December 19, 1980. He was a Correctional Security Officer II. Plaintiff worked from 6:00 a.m. until 2:00 p.m., five days a week as scheduled. During the [1068]*1068course of his employment, the plaintiff was subjected to disciplinary action on several occasions for violations of his employer’s rules and regulations. This included at least three suspensions from work for failing to perform his duties properly and for failing to report to work on time. Plaintiff was on suspension when he was notified by a letter from the Secretary of the Department of Public Safety and Corrections that, effective January 18, 1985, he would be removed from his position at the Wade Correctional Center. The letter indicated that on November 8, 1984, another correctional officer had observed the plaintiff violating written orders regarding the consumption of food from the inmates’ “chow cart.” The letter further related the plaintiff’s actions subsequent to this incident and enumerated the following Department of Corrections rules which the plaintiff had violated. (1) The rule requiring employees to obey all authorized regulations, policies and procedures; (2) the rule requiring employees to obey all direct orders cooperatively and promptly; and (3) the rule forbidding the intentional making of false statements or deliberately omitting important facts to anyone conducting an investigation for the department.

After his termination, the plaintiff applied for unemployment compensation benefits. The Office of Employment Security denied the plaintiff’s claim, finding that he was disqualified from receiving benefits, as his discharge was for misconduct connected with his employment. The agency determined that the plaintiff was discharged because of his failure to abide by department rules and policies of which he was aware.

The plaintiff appealed this decision and a hearing was held before an appeals referee of the Louisiana Office of Employment Security. The plaintiff and several representatives of his employer appeared and testified at the hearing. The appeals referee concluded that the employer had shown by a preponderance of the evidence that the plaintiff was discharged for deliberate violations of the employer’s rules of which the plaintiff was aware. The referee affirmed the agency’s determination that the plaintiff was disqualified from receiving unemployment compensation benefits for misconduct connected with his employment. The referee also modified the agency determination, however, to indicate that the disqualification was effective January 4, 1985, the plaintiff’s last day of work.

After a review of the record, the decision of the appeals referee was affirmed by the Board of Review. The plaintiff then petitioned for judicial review in the Second Judicial District Court. In a judgment signed August 29, 1985, the district court affirmed the decision of the Board of Review and dismissed the plaintiff’s petition.

On appeal, the plaintiff asserts only one assignment of error. He contends that the trial court erred in affirming the decision of the Board of Review denying unemployment compensation benefits, as there was not “sufficient evidence” to sustain the Board’s determination. The plaintiff argues that the documentary evidence that was introduced in support of the employer’s claim of the plaintiff’s misconduct was hearsay, as was some of the testimony of witnesses at the hearing before the appeals referee. We agree that a portion of the evidence considered by the appeals referee was hearsay; however, we affirm the decision of the trial judge. Eliminating the incompetent evidence, there remains other sufficient evidence in the record to support the findings of the appeals referee and the Board of Review.1

[1069]*1069Judicial review in unemployment compensation cases is limited by LSA-R.S. 23:1634, which states in pertinent part:

... 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....

As restated by this court in Harris v. Administrator, Louisiana Office of Employment Security, 480 So.2d 886 (La.App. 2d Cir.1985), writ denied 481 So.2d 1338 (La.1986), the determination that must be made is whether the findings of fact made by the Board of Review are supported by sufficient evidence and, if so, whether the decision of the Board of Review is correct as a matter of law. In Harris, supra, it was further stated that:

LSA-R.S. 23:1601(2) provides in pertinent part that an individual shall be disqualified for benefits “... for misconduct connected with his employment.”
Misconduct has been defined by the jurisprudence as a willful or wanton disregard for the employer’s interest, a deliberate violation of the employer’s rules, a direct disregard of standards of behavior which the employer has the right to expect from his employees or negligence in such a degree or recurrence as to manifest culpability, wrongful interest, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer....
The employer has the burden of proof by a preponderance of the evidence that the employee’s discharge resulted from disqualifying misconduct.... The issue of misconduct is primarily a factual one to be determined by the administrator and the Board of Review. However, there must be legal and competent evidence to support the factual findings upon which the administrative determination turns. Further, the determination made must meet “a threshold test of reasonableness” or it is erroneous as a matter of law. [Citations omitted.]

The plaintiff in this case is correct in his contention that “sufficient evidence,” as contained in the statute setting forth the standard of judicial review, means legal and competent evidence. Banks v. Administrator of Department of Employment Security of State of Louisiana, 393 So.2d 696 (La.1981). Hearsay is not considered sufficient evidence. Southeastern Louisiana University v. Shelton, 431 So.2d 432 (La.App. 1st Cir.1983). The usual rules of evidence need not apply to an administrative hearing and therefore hearsay is admissible in such a hearing, LSA-R.S. 23:1631; Hall v. Doyal, 191 So.2d 349 (La. App. 3rd Cir.1966). Nevertheless,

... the findings of the administrative agency must be supported by competent evidence, and incompetent evidence admitted at the hearing will be disregarded by the courts upon their judicial review to determine if the agency’s findings are supported by sufficient evidence as required by law. Gardere v. Brown, La. App. 1 Cir., 170 So.2d 758.
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488 So. 2d 1067, 1986 La. App. LEXIS 6764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/banks-v-administrator-louisiana-office-of-employment-security-lactapp-1986.