THIRD DIVISION BARNES, P. J., BOGGS and BRANCH, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
June 10, 2014
In the Court of Appeals of Georgia A14A0421. DEKALB MEDICAL CENTER v. WHITTLEY
B RANCH, Judge.
DeKalb Medical Center (“DMC”) appeals from an order of the DeKalb County
Superior Court reversing a decision by the Georgia Department of Labor (“DOL”),
which had denied unemployment benefits to Sharie Whittley, a former employee of
DMC. On appeal, DMC contends that the trial court erred in reversing the DOL’s
benefit determination because some evidence supported the factual findings on which
that determination was based. DMC further argues that given those factual findings,
Whittley is not entitled to unemployment benefits under Georgia law. We agree with
DM C and therefore reverse the order of the trial court.
The record shows that Whittley was employed by DMC as a mammographer
in the Breast Center from July 2008 through October 12, 2012. Beginning in April 2012, significant performance issues arose with respect to Whittley’s job. Ellis Carter,
Whittley’s immediate supervisor, counseled W hittley at least six times between April
3, 2012 and September 27, 2012 about these job performance issues. On June 18,
2012, Carter met with Whittley regarding complaints he had received about her from
DMC’s MRI Department. At that time, the MRI Department was understaffed and its
employees were mostly male. Thus, until that Department could hire more staff, DMC
policy was that mammographers from the Breast Center would be called into the
Department to help position patients who were undergoing a breast MRI. Carter
explained to Whittley that he had received several complaints that when called to
assist with an MRI, Whittley did not report to the MRI Department promptly and that
once there she displayed a negative attitude. Whittley expressed to Carter her
disagreement with DM C’s staffing policy, indicating that she did not think it was fair
that Breast Center employees were being required to cover two departments. Carter
responded that this was a “team effort” and that until more staff could be hired in the
MRI Department, assisting with breast MRIs was part of Whittley’s job as a
mammographer. According to Carter, Whittley appeared to “understand fully” that
responding in a timely manner to any request for assistance from the MRI Department
constituted one of her job duties.
2 Less than two weeks after this counseling session, Carter received yet another
complaint from the MRI Department regarding Whittley. In this instance, Whittley
had waited 45 minutes before reporting to the MRI Department after being called and
despite receiving additional phone calls from the MRI Department repeating its
request for her assistance. At the administrative hearing, Whittley explained that on
this occasion her delayed response resulted from the fact that the Breast Center was
“busy” and she felt that her most important obligation was to take care of Breast
Center patients “as quickly as I possibly [could].” Carter disputed the claim that the
Breast Center was too busy for Whittley to respond timely to the MRI Department,
and stated that Whittley could have gone immediately to that Department without
causing any work delay at the Breast Center. Carter met with Whittley on June 29,
2012 about this incident; following that meeting, and having discussed the incident
with the supervisors in the MRI Department, Carter concluded that Whitley had
deliberately delayed responding to the MRI Department. 1
1 Carter testified that at the June 29 meeting, Whittley again expressed her disagreement with the DMC policy of using mammographers to assist with MRIs, and told Carter Breast Center employees should be used by the MRI Department only as a “last resort.” This testimony was corroborated by Whittley.
3 After this meeting, Carter conferred with the DMC Human Resources
Department and the decision was made to demote Whittley from her position as lead
mammographer to staff mammographer. On July 5, Carter informed Whittley of her
demotion and explained that Whittley would be allowed to remain as the lead
mammographer until DMC hired someone to fill that position. It was Whittley’s
understanding that she was being demoted because of her failure to respond as quickly
as possible to the MRI Department as well as her alleged failure to communicate
effectively with her co-workers. After being informed of her demotion, Whittley had
what was described as an “increasingly poor attitude,” ceased communicating directly
with the Breast Center staff, and often refused even to acknowledge her co-workers.
On September 27, Carter had another meeting with Whittley in which he
explained that she needed to communicate better with her co-workers. He also told
Whittley that the new lead mammographer would be starting the following week and
that he needed Whittley to help train the new lead on the operations of the Breast
Center and to communicate any and all information to the new lead that was relevant
to that position. Carter further informed Whittley that because of her responsibilities
with respect to the new lead, she would continue to be paid the salary of a lead
mammographer during the transition period. During this meeting, Carter made clear
4 to Whittley that if she did not improve her job performance she would lose her job.
When she filed for unemployment benefits, Whittley acknowledged that she had
received this warning.
Despite this counseling session, Whittley did not improve her communications
with the other staff at the Breast Center. Notably, she continued the practice she had
developed following her demotion of failing to handle effectively written work orders
that she received on behalf of the Breast Center. According to Carter, Whittley would
not even deliver written work orders directly to the employee who would be
performing the work. Instead, she would place any such orders she received in the
drawer of the assigned employee, and would not tell the employee that an order was
waiting for them. As a result, there were times when Breast Center staff did not realize
they had a patient waiting to be seen or that they had been assigned some other task.
Additionally, after the new lead mammographer started, Whittley failed on at
least three occasions to provide the lead with relevant information. Specifically,
Whittley failed to inform the lead of pending cases that required follow up by the lead
mammographer; the new lead learned of these cases after several days on the job,
when she discovered the patients’ charts. On another occasion, when the new lead
asked Whittley about two biopsy patients being seen in the Breast Center, Whittley
5 denied any knowledge of the cases; when the new lead proceeded to work on those
cases, she learned that Whittley had already performed the necessary tasks. Finally,
when a surgeon came to the Breast Center with concerns, W hittley handled the
situation herself, rather than directing the surgeon to the new lead.
As a result of Whittley’s refusal to communicate with her co-workers and the
new lead mammographer, DMC terminated Whittley’s employment on October 12,
2012.
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THIRD DIVISION BARNES, P. J., BOGGS and BRANCH, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
June 10, 2014
In the Court of Appeals of Georgia A14A0421. DEKALB MEDICAL CENTER v. WHITTLEY
B RANCH, Judge.
DeKalb Medical Center (“DMC”) appeals from an order of the DeKalb County
Superior Court reversing a decision by the Georgia Department of Labor (“DOL”),
which had denied unemployment benefits to Sharie Whittley, a former employee of
DMC. On appeal, DMC contends that the trial court erred in reversing the DOL’s
benefit determination because some evidence supported the factual findings on which
that determination was based. DMC further argues that given those factual findings,
Whittley is not entitled to unemployment benefits under Georgia law. We agree with
DM C and therefore reverse the order of the trial court.
The record shows that Whittley was employed by DMC as a mammographer
in the Breast Center from July 2008 through October 12, 2012. Beginning in April 2012, significant performance issues arose with respect to Whittley’s job. Ellis Carter,
Whittley’s immediate supervisor, counseled W hittley at least six times between April
3, 2012 and September 27, 2012 about these job performance issues. On June 18,
2012, Carter met with Whittley regarding complaints he had received about her from
DMC’s MRI Department. At that time, the MRI Department was understaffed and its
employees were mostly male. Thus, until that Department could hire more staff, DMC
policy was that mammographers from the Breast Center would be called into the
Department to help position patients who were undergoing a breast MRI. Carter
explained to Whittley that he had received several complaints that when called to
assist with an MRI, Whittley did not report to the MRI Department promptly and that
once there she displayed a negative attitude. Whittley expressed to Carter her
disagreement with DM C’s staffing policy, indicating that she did not think it was fair
that Breast Center employees were being required to cover two departments. Carter
responded that this was a “team effort” and that until more staff could be hired in the
MRI Department, assisting with breast MRIs was part of Whittley’s job as a
mammographer. According to Carter, Whittley appeared to “understand fully” that
responding in a timely manner to any request for assistance from the MRI Department
constituted one of her job duties.
2 Less than two weeks after this counseling session, Carter received yet another
complaint from the MRI Department regarding Whittley. In this instance, Whittley
had waited 45 minutes before reporting to the MRI Department after being called and
despite receiving additional phone calls from the MRI Department repeating its
request for her assistance. At the administrative hearing, Whittley explained that on
this occasion her delayed response resulted from the fact that the Breast Center was
“busy” and she felt that her most important obligation was to take care of Breast
Center patients “as quickly as I possibly [could].” Carter disputed the claim that the
Breast Center was too busy for Whittley to respond timely to the MRI Department,
and stated that Whittley could have gone immediately to that Department without
causing any work delay at the Breast Center. Carter met with Whittley on June 29,
2012 about this incident; following that meeting, and having discussed the incident
with the supervisors in the MRI Department, Carter concluded that Whitley had
deliberately delayed responding to the MRI Department. 1
1 Carter testified that at the June 29 meeting, Whittley again expressed her disagreement with the DMC policy of using mammographers to assist with MRIs, and told Carter Breast Center employees should be used by the MRI Department only as a “last resort.” This testimony was corroborated by Whittley.
3 After this meeting, Carter conferred with the DMC Human Resources
Department and the decision was made to demote Whittley from her position as lead
mammographer to staff mammographer. On July 5, Carter informed Whittley of her
demotion and explained that Whittley would be allowed to remain as the lead
mammographer until DMC hired someone to fill that position. It was Whittley’s
understanding that she was being demoted because of her failure to respond as quickly
as possible to the MRI Department as well as her alleged failure to communicate
effectively with her co-workers. After being informed of her demotion, Whittley had
what was described as an “increasingly poor attitude,” ceased communicating directly
with the Breast Center staff, and often refused even to acknowledge her co-workers.
On September 27, Carter had another meeting with Whittley in which he
explained that she needed to communicate better with her co-workers. He also told
Whittley that the new lead mammographer would be starting the following week and
that he needed Whittley to help train the new lead on the operations of the Breast
Center and to communicate any and all information to the new lead that was relevant
to that position. Carter further informed Whittley that because of her responsibilities
with respect to the new lead, she would continue to be paid the salary of a lead
mammographer during the transition period. During this meeting, Carter made clear
4 to Whittley that if she did not improve her job performance she would lose her job.
When she filed for unemployment benefits, Whittley acknowledged that she had
received this warning.
Despite this counseling session, Whittley did not improve her communications
with the other staff at the Breast Center. Notably, she continued the practice she had
developed following her demotion of failing to handle effectively written work orders
that she received on behalf of the Breast Center. According to Carter, Whittley would
not even deliver written work orders directly to the employee who would be
performing the work. Instead, she would place any such orders she received in the
drawer of the assigned employee, and would not tell the employee that an order was
waiting for them. As a result, there were times when Breast Center staff did not realize
they had a patient waiting to be seen or that they had been assigned some other task.
Additionally, after the new lead mammographer started, Whittley failed on at
least three occasions to provide the lead with relevant information. Specifically,
Whittley failed to inform the lead of pending cases that required follow up by the lead
mammographer; the new lead learned of these cases after several days on the job,
when she discovered the patients’ charts. On another occasion, when the new lead
asked Whittley about two biopsy patients being seen in the Breast Center, Whittley
5 denied any knowledge of the cases; when the new lead proceeded to work on those
cases, she learned that Whittley had already performed the necessary tasks. Finally,
when a surgeon came to the Breast Center with concerns, W hittley handled the
situation herself, rather than directing the surgeon to the new lead.
As a result of Whittley’s refusal to communicate with her co-workers and the
new lead mammographer, DMC terminated Whittley’s employment on October 12,
2012. Following her termination, Whittley filed a claim for unemployment benefits.
The DOL denied those benefits on November 1, 2012, finding that Whittley had been
fired for failing to perform her job duties despite having the ability to do so. Whittley
appealed this decision and requested an administrative hearing, which was held on
December 5, 2012. The day after that hearing, the administrative hearing officer
issued a written decision in which she found that Whittley was aware of her job duties
and responsibilities; that Whittley had been counseled several times regarding her
employer’s expectations as to those duties; that her failure to meet those expectations
resulted in her demotion from the position of lead mammographer; that following her
demotion Whittley was instructed to improve her communications with staff; and that
despite these instructions Whittley failed to communicate relevant information to the
new lead mammographer on at least three occasions. Based on these findings, the
6 hearing officer concluded that Whittley was terminated for failing to meet her
employer’s expectations regarding her job performance. The officer therefore affirmed
the DOL’s initial determination that Whittley was disqualified from unemployment
benefits pursuant to OCGA § 34-8-194 (2) (A).2
Whittley appealed the hearing officer’s decision to the DOL Board of Review
(“the Board”), arguing that “there was no willful or deliberate act on my part that
violated [a] company rule or order. I continued to communicate with staff at all
times.” The Board affirmed the decision of the administrative hearing officer.
Whittley then filed a petition in the DeKalb County Superior Court seeking review of
the DOL’s decision to deny her unemployment benefits. The trial court reversed that
decision, finding that DMC had failed to meet its burden of showing that Whittley
deliberately and consciously failed to follow instructions or perform her job duties.
The trial court further found that much of the evidence on which the hearing officer
based her factual findings constituted inadmissible hearsay. DMC then filed an
application for a discretionary appeal, which this Court granted. This appeal followed.
2 Under this statute, an individual is disqualified from receiving unemployment benefits following his discharge or suspension “from work with the most recent employer for failure to obey orders, rules, or instructions or for failure to discharge the duties for which the individual was employed as determined by the Commissioner according to the circumstances in the case.” OCGA § 34-8-194 (2) (A).
7 Under Georgia law, when considering an appeal from a decision by a DOL
board of review “the findings of the board of review as to the facts, if supported by
evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the
court shall be confined to questions of law.” OCGA § 34-8-223 (b). Thus, both the
trial court and this Court must affirm the Board’s factual findings if there is any
evidence to support those findings. Case v. Butler, 325 Ga. App. 123, 125 (1) (751
SE2d 883) (2013). And because both the superior court and this Court apply the same
standard of review, when we review a superior court’s order affirming or reversing a
board decision, “our duty is not to review whether the record supports the superior
court’s decision but whether the record supports the final decision of the
administrative agency.” Davane v. Thurmond, 300 Ga. App. 474, 475 (685 SE2d 446)
(2009) (citation and punctuation omitted).
As noted above, a person will be disqualified from receiving unemployment
benefits “when he or she has been discharged for failure to obey orders, rules, or
instructions or for failure to discharge the duties for which the individual was
employed.” Robinson v. Butler, 319 Ga. App. 633, 635 (737 SE2d 731) (2013)
(punctuation and footnote omitted). See also OCGA § 34-8-194 (2) (A). Before an
individual may be disqualified under this code section, however, the employer must
8 show, by a preponderance of the evidence, “that the discharge was caused by the
deliberate, conscious fault of the claimant.” Id. (punctuation and footnote omitted).
DMC’s stated reason for terminating Whittley’s employment was her failure to
improve her communications with the Breast Center staff and to communicate
relevant information to the lead mammographer. The trial court found that under the
circumstances, Whittley’s termination for this reason did not support denying her
unemployment benefits. In reaching this conclusion, the trial court disagreed with at
least three of the Board’s factual findings. First, the trial court disputed the Board’s
conclusion that Whittley was aware of her job duties at the time she failed to perform
them. Specifically, the court stated that Whittley “was only aware of her job duties
and responsibilities insofar as they were given to her progressively throughout her
tenure” and that those duties and responsibilities were “often changing and consist[ed]
of conflicting directives.” The court further found that although Whittley was
counseled a number of times regarding her failure to perform to her employer’s
expectations, such counseling did not show that Whittley was aware of her duties prior
to the time she was counseled about not having performed them. Finally, the trial
court rejected the Board’s finding that Whittley had failed to communicate with the
new lead mammographer on at least three occasions.
9 The trial court’s findings with respect to Whittley’s knowledge of her job duties
and her failure to perform those duties conflict with the findings of the Board and
reflect that the lower court failed to apply the appropriate standard of review, i.e., the
court failed to limit its review to the question of whether any evidence supported the
Board’s findings on this issue. The trial court’s order demonstrates that it was
overturning the Board’s findings because the court interpreted the evidence differently
than did the Board. Moreover, unlike the Board, the trial court chose to credit
Whittley’s testimony over that of Carter. In weighing the evidence and judging the
credibility of the witnesses, however, the trial court erred. We have repeatedly
explained that in reviewing a DOL decision concerning unemployment benefits, “it
is improper for the trial court to weigh and evaluate the evidence,” MCG Health v.
Whitfield, 302 Ga. App. 408, 410 (690 SE2d 659) (2010) (citation omitted), and that
the superior court may not engage in independent fact finding. Case, 325 Ga. App. at
125 (1). Moreover, neither the superior court nor this Court may make credibility
determinations, “[n]or may either court ‘substitute its judgment on disputed issues of
fact for that of the [Board].” Solinet v. Johnson, 280 Ga. App. 227, 229 (633 SE2d
626) (2006) (punctuation and footnote omitted). And when the correct standard of
10 review is applied, it is clear that the trial court erred in overturning the decision of the
DOL, as that decision was supported by some evidence.
Despite the superior court’s finding to the contrary, the record shows that
Whittley was counseled on at least three occasions that she needed to improve her
communication with Breast Center staff. Moreover, at her September 27 meeting with
Carter, Whittley was specifically advised that when the new lead started the following
week, Whittley would need to provide the new lead with all relevant information
necessary for the new lead to perform her job effectively. Carter also explained to
Whittley that in recognition of these additional job duties, DMC would provide
Whittley with additional compensation. Carter’s unrebutted testimony on this issue
supports the Board’s conclusion that Whittley was aware both that she needed to
improve her communications with staff and that she had been tasked specifically with
providing all relevant and necessary information to the new lead.
In rejecting the Board’s finding that Whittley had failed to communicate
relevant information to the new lead on at least three occasions, the trial court
summarily concluded that Carter’s testimony on this issue constituted inadmissible
hearsay. See Robinson, 319 Ga. App. at 635-636 (1) (“inadmissible hearsay is not
competent to prove a violation of an employer’s policies or rules sufficient to
11 disqualify the employee for benefits”) (punctuation and footnote omitted). The record,
however, shows that not all of Carter’s testimony on this issue was hearsay.3 See
Miller Brewing Co. v. Carlson, 162 Ga. App. 94, 95 (290 SE2d 200) (1982) (“[w]hile
the record reveals that the supervisor who terminated petitioner’s employment based
his conclusions and actions partly on hearsay, we are not prepared to say this would
serve to render his testimony worthless[,]” given that the supervisor also provided
testimony “based on his personal knowledge and what the petitioner told him.”)
Carter, who was Whittley’s direct supervisor, testified as to his personal observations,
conversations he had with Whittley directly, and information he had been provided
in his capacity as Whittley’s supervisor (i.e., information he had received as part of
his job duties).
Even assuming that some of Carter’s testimony did constitute hearsay, his
testimony concerning Whittley’s failure to communicate with the new lead was
corroborated by Whittley. With respect to whether she provided the new lead with all
the relevant information about the two biopsy patients, Whittley testified that she had
informed the new lead where “certain things were and where I kept everything,” and
3 We note that the trial court did not identify those parts of Carter’s testimony it considered hearsay, nor did it analyze whether any such alleged hearsay would have otherwise been admissible under one or more exceptions to the hearsay rule.
12 that the new lead “knew exactly where all documentation was. I had all my notes, who
I spoke to, what needed to be done, everything [that] was done.” This testimony shows
that Whittley may have provided the new lead with information as to where the new
lead could find the biopsy patients’ files; it does not show that Whittley
communicated with the new lead directly about these cases. Whittley also testified that
she “expected” the new lead to “come to [Whittley] and ask [her] . . . more in depth
questions,” thereby indicating that instead of providing the new lead with all
necessary information, Whittley was relying on the new lead to come to her seeking
that information.
Additionally, when asked about the assertion that she had failed to
communicate with the new lead regarding patients requiring follow-up, Whittley
stated that patient charts “not being followed up . . . that has been an ongoing issue
that we’ve had and one thing . . . that I did was make sure . . . that I went through that
case load at least three times a week.” Notably, Whittley did not testify that she had
informed the new lead about the need to go through those files. Nor did she otherwise
dispute Carter’s testimony that she did not provide the new lead with such
information. Finally, Whittley admitted that when a surgeon came to her with an issue
regarding the Breast Center, she addressed the problem with the surgeon rather than
13 referring the surgeon to the new lead. Thus, Whittley’s own testimony constitutes
some evidence to support the Board’s finding that Whittley failed to communicate
relevant information to the new lead, despite having been informed that providing
such information was one of her job duties.
The evidence also supports the Board’s conclusion that Whittley acted
deliberately and consciously in failing to fulfill her job duties and was therefore
disqualified from receiving unemployment benefits. Because intent is rarely
susceptible of direct proof, a fact finder may infer such intent from all of the
circumstances surrounding the conduct at issue. See, e.g., Danforth v. Apple Inc., 294
Ga. 890, 892-893 (1) (a) (___ SE2d ___) (2014); Nebo Ventures, LLC v. NovaPro
Risk Solutions, 324 Ga. App. 836, 840 (1) (c) (752 SE2d 18) (2013). Here, the finding
that Whittley failed to fulfill her job duties despite her knowledge of those duties and
despite the fact that she was receiving additional compensation to perform some of
those duties supports an inference that Whittley’s conduct was both knowing and
deliberate. Solinet, 280 Ga. App. at 229 (evidence showing that employee charged
with distributing parking passes failed to comply with employer’s policy regarding
issuance of such passes after having had been instructed previously to comply with
14 that policy supported a finding that the employee had deliberately and consciously
failed to fulfill her job duties).
Accordingly, “[b]ecause there was some evidence to support the DOL’s
decision to deny benefits, the superior court erred in reversing the DOL’s decision.”
Id. (footnote omitted). W e therefore reverse the order of the trial court.
Judgment reversed. Barnes, P. J., and Boggs, J., concur.