In re: Lennane

Opinions

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA 20-325

Filed: 1 December 2020

Haywood County, No. 19 CVS 1107

IN THE MATTER OF:

FRANK LENNANE,

Petitioner,

ADT, LLC,

Employer,

and

NORTH CAROLINA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY,

Respondent.

Appeal by petitioner from order entered 17 February 2020 by Judge W. Robert

Bell in Haywood County Superior Court. Heard in the Court of Appeals 21 October

2020.

North Carolina Department of Commerce, by Sharon A. Johnston, for appellee.

Legal Aid of North Carolina, Inc., by Joseph Franklin Chilton, Bettina J. Roberts, John R. Keller, and Celia Pistolis, for petitioner-appellant.

YOUNG, Judge.

Opinion of the Court

This appeal arises out of a denial of unemployment insurance benefits. The

findings of fact support the conclusion of law that Petitioner failed to show that he

left work for good cause attributable to the employer. The superior court did not err

in denying Petitioner’s motion to dismiss. Accordingly, we affirm.

I. Factual and Procedural History

Frank Lennane (“Petitioner”) worked as a service technician for ADT, LLC

(“Employer”) from 1 February 2012 until 16 November 2018. Petitioner’s job duties

included performing regular service calls, and occasional installations for residential

and commercial security systems and alarm systems. On 8 January 2014, Petitioner

injured his left knee while on the job. Petitioner had knee surgery and suffered fifteen

percent permanent partial injury in his left knee. Following his knee surgery,

Petitioner began to favor his right knee, which resulted in new, regular pain in his

right knee.

In 2016, Employer went through a business merger and combined its service

and installation departments. This change caused Employers to assign more

installation work to service technicians. The added installation work was more

difficult on Petitioner’s knees than his previous job duties, and Petitioner began

taking days off work to care for his knees. He sought treatment and was diagnosed

with unilateral primary osteoarthritis in his right knee.

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Since installations were hard on Petitioner’s knees, he asked his manager if he

could transfer or apply to other local jobs, such as administrative or clerical work,

however, the only positions available would require relocation from North Carolina.

Petitioner also requested to be assigned to service calls only, but the manager denied

the request because he needed to keep a fair balance of work distribution among all

the service technicians. Petitioner’s workload was “consistent with the other

employees,” and the manager distributed work assignments based on Employer’s

business needs.

By July 2017, the condition of Petitioner’s right knee began to worsen.

Petitioner utilized the Family and Medical Leave Act (“FMLA”) to take a five-week

leave of absence to rest his knees and seek additional medical intervention. When

Petitioner returned to work, he provided a doctor’s note which provided that he would

experience flareups and pain, and “a few days rest may be necessary.” Petitioner

continued to perform all of his duties and responsibilities, but his problems persisted.

Petitioner again asked to perform only service calls, and his request was denied.

Petitioner then notified Employer that he was resigning, because he was no longer

able to perform his job due to the poor condition of his knees.

Petitioner applied for unemployment insurance benefits, but an Adjudicator

ruled that Petitioner left work without good cause attributable to the employer, and

therefore Petitioner was disqualified from receiving benefits. Petitioner appealed the

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decision to an Appeals Referee which affirmed the Adjudicator's decision. Petitioner

appealed to the Board of Review of Respondent North Carolina Department of

Commerce, Division of Employment Security (“BOR”), which affirmed the Appeals

Referee’s decision in a split decision. Petitioner petitioned to the Superior Court, and

the court entered an order affirming the BOR’s decision in its entirety. Petitioner

has now appealed to this Court.

II. Standard of Review

The standard for this Court is to determine whether the findings of fact of the

final agency decision are supported by any competent evidence, and then determine

whether those findings support the conclusion. N.C. Gen. Stat. § 96-15(i) (2020);

Reeves v. Yellow Transp., Inc., 170 N.C. App. 610, 614, 613 S.E.2d 350, 354 (2005).

III. Final Agency Decision

Defendant contends that the superior court erred in affirming the BOR’s

decision that Petitioner failed to prove that his leaving work was for good cause

attributable to the employer. We disagree.

The Division must determine the reason for an individual’s separation from work. An individual does not have a right to benefits and is disqualified from receiving benefits if the Division determines that the individual left work for a reason other than good cause attributable to the employer. When an individual leaves work, the burden of showing good cause attributable to the employer rests on the individual and the burden may not be shifted to the employer.

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N.C. Gen. Stat. § 96-14.5 (a) (2020). “Good cause” and cause “attributable to the

employer” are the two elements an employee must prove to be qualified to receive

unemployment insurance benefits. “Good cause” has been interpreted by the courts

to mean “a reason which would be deemed by reasonable men and women as valid

and not indicative of an unwillingness to work.” King v. N.C. Dep’t of Commerce, 228

N.C. App. 61, 65, 743 S.E.2d 83, 86 (2013). The Petitioner’s cause for leaving work

was the condition of his knees; however, Petitioner fails to show that his cause was

attributable to the employer. The cause or reason for leaving is attributable to the

employer if it was “produced, caused, created or as a result of actions by the

employer.” Id.

For the entire period that Petitioner worked for Employer he was required to

perform at least some installations. The number of installations increased after the

2016 merger; however, Petitioner’s supervisor testified that “he was careful to limit

the size of jobs that [Petitioner] went on installation-wise,” and would have another

technician work with him, if possible. The supervisor also testified that Petitioner

only performed ten installation jobs in the three months prior to his resignation, and

only one of those being a full installation. Another technician assisted Petitioner with

that full installation. Petitioner has failed to show a change in job duties from the

time he began his employment until the time he resigned.

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In Ray v. Broyhill Furniture Indus., this Court held that the claimant proved

her reason for leaving “was attributable both to the employer’s action (the threat to

fire her if she went over her supervisor’s head) and inaction (her supervisor’s failure

to put in her transfer request). 81 N.C. App. 586, 593, 344 S.E.2d 798, 802 (1986).

However, here, Employer took actions to help Petitioner. Employer provided knee

pads for kneeling and crawling, monitored Petitioner’s work schedule and limited the

installation jobs, as well as assigned him “lighter re-sales, add-ons, not full-blown

installs.” Employer also assigned other technicians to assist in the installations.

Employer could not provide administrative work because that work was only

available in other states. Petitioner provided no medical restrictions or limitations

on bending, stooping, or crawling to Employer. The only medical request Petitioner

gave Employer was in September 2017 that he not stand or walk for prolonged

periods. Unlike in Ray, Employer took action in this case, even if the action was not

what Petitioner wanted. As a result, these findings support the conclusion that

Petitioner failed to show that he left work for good cause attributable to the employer.

IV. Findings of Fact

The standard for this Court is to determine whether the findings of fact of the

final agency decision are supported by any competent evidence, and then determine

whether those findings support the conclusion. N.C. Gen. Stat. § 96-15(i); Reeves v.

Yellow Transp., Inc., 170 N.C. App. 610, 614, 613 S.E.2d 350, 354 (2005).

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a. Finding of Fact No. 12

This finding, that “[t]he employer only had administrative positions in

Spartanburg, South Carolina and Knoxville, Tennessee, and the claimant was

unwilling to relocate from North Carolina,” is supported by Petitioner’s testimony

when he said that he knew office jobs existed, but that he didn’t apply for those jobs

because of the distance.

b. Findings of Fact No. 16 and No. 17

Finding of Fact No. 16, that “the claimant’s manager made attempts thereafter

to not dispatch the claimant on the most strenuous or large installations,” is

supported by Petitioner’s supervisor’s unrefuted testimony. The supervisor testified

that Petitioner asked him for service work or lighter install jobs. He further testified

that while he was not always able to accommodate the request, he “was careful to try

to limit the size of the jobs that Petitioner went on installation-wise.” Finding of Fact

No. 17, “[i]f the claimant had to be dispatched on a large installation, then manager

Goodson would try to ensure that he [claimant] had another service technician

available to assist him,” is supported by the supervisor’s testimony that there were

times he assigned another technician to help with Petitioner’s installs. Petitioner

also confirmed by his own testimony that the supervisor provided help on installs

from time-to-time.

c. Finding of Fact No. 18

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Finding of Fact No. 18 provides that, “[i]n October 2018, the claimant had an

appointment with a surgeon to discuss treatment for his knees. At which time, the

claimant was told that he could undergo surgery or stem cell therapy. The claimant

was unwilling to undergo either option. This finding is supported by Petitioner’s

testimony of the types of treatments recommended for his knee, and that he “didn’t

even [want to] go down that avenue.”

d. Finding of Fact No. 21

Finding of Fact No. 21 provides that “[p]rior to the claimant’s resignation, he

did not make any formal or written requests for workplace accommodations from

either the employer’s administrative or human resource staff members. During 2018,

the claimant did not request intermittent leave via FMLA.” This finding is supported

by Petitioner’s testimony that he did not consider any type of FMLA or other short-

term disability. Petitioner did not provide Employer a letter from his doctor or

surgeon requesting restrictions or limitations on his job. Petitioner relied on FMLA

Certification by his doctor which only stated, “[p]rolonged standing and walking

would be very difficult for this patient.”

e. Finding of Fact No. 22

This finding, that “[t]he claimant left his job due to personal health or medical

reasons,” is supported by Petitioner’s testimony that his knee problems caused him

to resign.

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Each of the above findings are supported by competent evidence of record.

Additionally, each finding supports the conclusion that the Petitioner failed to

establish that his good cause for leaving work was “attributable to the employer” as

required by N.C. Gen. Stat. § 96-15(i). Accordingly, the superior court did not err in

denying Petitioner’s motion to dismiss, nor did the court err in finding that Petitioner

was not entitled to unemployment insurance benefits. Therefore, we affirm the lower

court’s decision.

AFFIRMED.

Judge DILLON concurs.

Judge INMAN dissents.

Report per Rule 30(e).

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No. COA20-325 – In re: Lennane

INMAN, Judge, dissenting.

Because in my view precedent compels us to hold that Petitioner left work for

good cause attributable to the employer, I respectfully dissent from the majority’s

holding to the contrary.

The Employment Security Act requires “the compulsory setting aside of

unemployment reserves to be used for the benefit of persons unemployed through no

fault of their own.” N.C. Gen. Stat. § 96-2 (2019) (emphasis added). We are bound by

this Court’s previous holding that “[t]he Act is to be liberally construed in favor of

applicants,” Marlow v. N.C. Emp’t Sec. Com’n, 127 N.C. App. 734, 735, 493 S.E.2d

302, 303 (1997) (citation omitted), and that “statutory provisions allowing

disqualification from benefits must be strictly construed in favor of granting claims.”

Id. (citations omitted).

In Ray v. Broyhill Furniture Indus., 81 N.C. App. 586, 344 S.E.2d 798 (1986),

this Court held that an employee who left a job as a result of the employer’s actions

or inaction abandoned the employment due to “good cause attributable to her

employer” and could not be denied unemployment benefits provided by the Act. Ray,

81 N.C. App. at 592, 344 S.E.2d at 802. We explained in Ray that “[t]he Act does not

contemplate penalizing workers who choose in favor of their own health, safety or

ethical standards and against an affirmative or de facto policy of the employer to the

contrary.” Id. at 593, 344 S.E.2d at 802-03 (citation omitted).

Justice Inman, dissenting

Petitioner’s deteriorating knee prevented him from performing the number of

installations required of him by his employer. Respondent concedes he had good

cause to resign. But, rather than giving up immediately, Petitioner sought to adapt

his work to accommodate his injury by requesting he be assigned to a desk job. His

employer declined that request unless he was willing to relocate to another state.

Petitioner then requested that he be assigned only to less strenuous service

calls. That request was denied not because such work was unavailable, but because

his employer’s “business needs” required Petitioner to continue performing

installations that his body could not support. Although the Petitioner’s manager, per

the findings of fact made below, “made attempts . . . to not dispatch the claimant on

the most strenuous or large installations[,]” and “would try to ensure that [Petitioner]

had another service technician available to assist him[,]” (emphasis added), the

manager testified that their employer nonetheless required Petitioner to continue

performing installations “consistent with the other employees” and to the detriment

of his health. And while the evidence—but not any factual findings—shows that

Petitioner’s employer provided him with kneepads, that same evidence discloses that

the kneepads were ineffective in preventing Petitioner’s pain and were not a specific

accommodation provided for purposes of addressing his osteoarthritis. “The Act does

not contemplate penalizing workers who choose in favor of their own health, safety

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or ethical standards and against an affirmative or de facto policy of the employer to

the contrary.” Ray, 81 N.C. App. at 593, 344 S.E.2d at 802-03 (citation omitted).

It is not Petitioner’s fault that his knee suffers from osteoarthritis, nor is it his

fault that his employer’s “business needs” precluded accommodations that would not

require him to sacrifice his health. He was thus rendered “unemployed through no

fault of [his] own[,]” N.C. Gen. Stat. § 96-2. As in Ray, Petitioner’s employer’s

“inaction placed [him] in the untenable position of having to choose between leaving

[his] job and becoming unemployed or remaining in a job which . . . exacerbated [his

medical] conditions.” 81 N.C. App. at 592-93, 344 S.E.2d at 802. Consistent with that

precedent, I would hold that Petitioner left work for “good cause attributable to the

employer” within the meaning of N.C. Gen. Stat. § 96-14.5(a) (2019) and should not

be disqualified from receiving unemployment benefits. I respectfully dissent.

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