Harris v. Whitfield

519 So. 2d 354, 1988 La. App. LEXIS 83, 1988 WL 3555
CourtLouisiana Court of Appeal
DecidedJanuary 20, 1988
DocketNo. 19271-CA
StatusPublished
Cited by2 cases

This text of 519 So. 2d 354 (Harris v. Whitfield) 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
Harris v. Whitfield, 519 So. 2d 354, 1988 La. App. LEXIS 83, 1988 WL 3555 (La. Ct. App. 1988).

Opinion

LINDSAY, Judge.

The plaintiff, Mary A. Harris, appeals a judgment by the district court affirming a decision by the Board of Review which held that plaintiff was not qualified to receive unemployment compensation benefits. For [355]*355the following reasons, we reverse the district court judgment.

FACTS

The plaintiff was employed as a sewing machine operator by Mini Togs, Inc., a manufacturer of children’s clothing. On October 19, 1982, the plaintiffs employment with the company was terminated. The plaintiff claims that she and several other workers were told they were being laid off because Mini Togs, Inc. was discontinuing production of a particular line of clothing. On October 20, 1982, plaintiff applied to the Office of Employment Security for unemployment compensation benefits.

As a result of her termination from Mini Togs, the agency determined that plaintiff was eligible for unemployment compensation benefits. Therefore, the plaintiff received unemployment compensation benefits from October 27, 1982 until July 23, 1983. On July 23, 1983, the plaintiff reapplied for and continued to receive benefits until October of 1983.

On August 15, 1983, the plaintiffs former employer, Mini Togs, Inc., protested the agency’s 1982 determination that the plaintiff was eligible to receive benefits. On August 24, 1983, the Office of Employment Security dismissed Mini Tog’s protest. The agency ruled that since the employer had failed to respond when plaintiffs claim was filed, the issue could not be readjudicated and the protest was dismissed as not timely filed.

Mini Togs appealed that decision and a hearing was held before the Appeals Tribunal on October 14, 1983. Following the hearing, the appeals referee ruled that Mini Togs should be given the opportunity to protest the October, 1982 determination which allowed plaintiff to receive benefits. The appeals referee found that Mini Togs’ opposition to plaintiff’s receipt of benefits should be considered because there was a “possibility” that Mini Togs did not receive notice of the October, 1982 determination. This decision was based upon the fact that when plaintiff made her claim in October, 1982, she listed Mini Togs’ address by street location, “Desiard Street” in Monroe, and provided the zip code. The street number was not on the form. The referee found that due to the “possibility” that Mini Togs may not have received notice of the claim, the company should be allowed to protest the determination that the plaintiff was eligible to receive benefits.

Based upon the ruling of the appeals referee, the Office of Employment Security then reconsidered plaintiff’s original application for benefits and the circumstances under which her employment at Mini Togs was terminated. The employer furnished information indicating that plaintiff was terminated for misconduct connected with the employment. After reconsideration, the agency made the determination that the plaintiff had been terminated for tardiness and absence and was therefore not qualified to receive benefits. Benefits were terminated effective October 19, 1982. The agency waived its right to claim repayment from plaintiff of benefits already paid.

The plaintiff appealed and on December 13, 1983 a hearing was held before an appeals referee. On December 20, 1983 the referee affirmed the determination disqualifying the plaintiff from receiving benefits.

The plaintiff appealed and on February 10, 1984, the Board of Review affirmed the decision finding that the plaintiff was not eligible to receive unemployment compensation benefits. The plaintiff then filed suit in the district court, seeking judicial review.

Plaintiff first claimed that under LSA-R. S. 23:1629, Mini Togs had only fifteen days after a determination of eligibility to appeal that determination and thereafter, Mini Togs’ right to appeal was perempted. The plaintiff also claimed that there had been an unconstitutional termination of her benefits prior to a hearing. Plaintiff further sought to recover money damages in the amount of $10,000 against the Administrator of the Office of Employment Security based upon the alleged suspension of benefits prior to a hearing. The plaintiff also filed a request for forty-nine admissions of fact.

[356]*356The district court first found that because the court was limited to a review of the law, and the plaintiff was not entitled to present new evidence, the defendant was not required to answer the requests for admissions of fact. The court then found that the plaintiff had no right of action for damages against the Administrator of the Office of Employment Security.

The trial court later considered the merits of plaintiff’s claim for unemployment compensation benefits. The trial court affirmed the administrative decisions denying benefits, and held that the denial of benefits was supported by the law and the facts. The court also reiterated its decision that the plaintiff had no right of action for damages against the Administrator of the Office of Employment Security.

The plaintiff appealed, urging several assignments of error. First, the plaintiff claims that the district court erred in failing to find that Mini Togs was barred from appealing plaintiffs entitlement to benefits because the appeal was not made within fifteen days of the finding of plaintiffs eligibility. Second, the plaintiff argues that the trial court erred in failing to consider her claim that the Administrator of the Office of Employment Security violated Section 303(A)(1) of the Federal Social Security Act by suspending the plaintiffs benefits prior to a hearing.

For the following reasons, we find that the Appeals Tribunal and the Board of Review incorrectly allowed Mini Togs to appeal the determination of plaintiffs eligibility to receive benefits. Mini Togs’ right to appeal had perempted. The district court erred in affirming the actions of the Appeals Tribunal and the Board of Review. Because we reverse the district court decision on this basis, consideration of the plaintiff’s second assignment of error becomes unnecessary.

RIGHT TO PROTEST DETERMINATION OF ELIGIBILITY

LSA-R.S. 23:1629 provides in pertinent part:

The claimant or any other party entitled to notice of a determination may file an appeal from such determination with an appeal tribunal within 15 days after notification was given or was mailed to his last known address.

Pursuant to this statute, Mini Togs, which was entitled to notice of the agency determination that plaintiff was entitled to receive benefits, had a right to appeal that decision to an Appeals Tribunal within 15 days of the date notification was given or mailed to its last known address.

When a statute such as LSA-R.S. 23:1629 creates a right of action and then stipulates the delay within which the right is to be exercised, the delay is not one of prescription, but is one of peremption, and the running of the delay destroys the claim so completely that any right of action ceases to exist and is lost. Mack v. Winn-Dixie of Louisiana, Inc., 442 So.2d 756 (La. App. 1st Cir.1983); Austin v. Administrator, Division of Employment Security, Department of Labor, 158 So.2d 74 (La.App. 1st Cir.1963); Sweet v. Brown, 125 So.2d 261 (La.App. 3rd Cir.1960); Delta Airlines, Inc. v. Brown, 115 So.2d 903 (La. App. Orleans 1959).

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519 So. 2d 354, 1988 La. App. LEXIS 83, 1988 WL 3555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-whitfield-lactapp-1988.