Jones v. Truly

670 So. 2d 1294, 1996 La. App. LEXIS 370, 1996 WL 78360
CourtLouisiana Court of Appeal
DecidedFebruary 14, 1996
DocketNo. 95-CA-848
StatusPublished
Cited by2 cases

This text of 670 So. 2d 1294 (Jones v. Truly) 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
Jones v. Truly, 670 So. 2d 1294, 1996 La. App. LEXIS 370, 1996 WL 78360 (La. Ct. App. 1996).

Opinion

IzWICKER, Judge.

Anthony J. Jones (Jones), a former employee of Pellerin Milnor Corporation (Pelle-rin), appeals the trial court’s affirmance of a decision by the Board of Review for the Office of Employment Security denying him unemployment benefits. We affirm.

Jones specifies the following error on appeal:

The District Court erred in finding that an eight-year employee whose shift was recently changed to the graveyard shift was disqualified for unemployment compensation benefits when the only competent evidence, other than hearsay, was that he was tardy one time, which does not rise to the level of disqualifying intentional misconduct.

Jones was discharged for tardiness and/or absenteeism without a valid excuse and after being warned prior to his dismissal. He claimed he was not discharged for misconduct connected with the employment. He appealed the disqualification to an administrative law judge (ALJ). That hearing was held June 24, 1994. Benefits were again denied. Jones then appealed to the Board of Review. The Board affirmed the decision of the referee but amended it in part to show the effective date of disqualification to be [1295]*1295May 5, 1994. The Board adopted the ALJ’s findings. He next appealed to the district court. The trial court affirmed the Board.

The ALJ stated the following pertinent findings of fact:

|3The named employer manufactures industrial laundry machine systems. The claimant worked for the employer for about eight years. At the time of his separation from work, he was an A machine operator earning $11.63 per hour.
For about the first two years of his employment, the claimant worked the first shift. The claimant then worked for about six years on the second shift, which runs from 3:30 p.m. to 11:00 p.m. The claimant worked for about the last two months of his employment on the third shift from 10:30 p.m. to around 7:00 a.m. The claimant’s work week began around 10:30 p.m. on Sunday night and ended on a Friday morning. The claimant was experiencing some difficulty in adjusting to the third shift schedule.
The employer had documented some incidents of absenteeism and one incident of tardiness between February 1993 and April 1994.
On April 27, 1994, the claimant was given a warning. Three supervisors — David Uliscni, Frank Mamola and Brad Ralph— attended this warning session with the claimant. The claimant was told that any further absences would lead to further disciplinary action, including possible discharge.
The claimant took a nap before going to work on May 2,1994. The claimant began his nap around 7:00 to 7:30 p.m. The claimant awakened from the nap around 10:38 p.m. and called the employer. He informed Mr. Uliscni that he had taken a nap and would be in shortly. The claimant arrived at work around 11:10 p.m.
The employer reviewed the situation, attorneys were consulted, and the director of human resources approved the discharge. The claimant last worked for the employer around 6:30 a.m. on May 5, 1994. The claimant was given his separation notice, which stated that he was discharged for “excessive absenteeism.”
* * * * iis *
[t]he evidence clearly shows that the claimant was tardy by about 40 minutes on the shift that began May 2, 1994, and ended the morning of May 3,1994. Although the claimant called the employer that he would be reporting late, the call was not made until after the shift had already begun. Furthermore, the reason for tardiness was not particularly valid. The firsthand evidence presented at the hearing substantiates only one warning given to the claimant regarding his attendance, but that one warning occurred only a few days prior to the final incident of tardiness. The one warning really addressed the problem of absenteeism rather than tardiness, but it suggests that the employer had expressed its concern to the claimant regarding his attendance ...

HEARING

At the hearing Jones was unrepresented by counsel. Jones and Sidney J. LaCoste, Jr. were the only witnesses.

LaCoste testified he is the Director of Human Resources for Pellerin. Jones had worked for the company eight years. At the time of his separation Jones was a machinist who worked the 10:30 p.m. to 7:00 a.m. shift five days a week, beginning Sunday night. This work was subject to overtime. He last worked May 5,1994 when he was discharged.

Jones was discharged for excessive absenteeism and failure to notify his employer he Uwould be absent or tardy. The final incident occurred May 2, 1994 after Jones had been told to call in and tell his employer he would be absent or late. On that date Jones did not report to work. After his shift had begun, he called to say he was late and would come in. This unexcused absence was the final factor leading to his discharge. He reported to work that date a little after 11:00 but his shift began at 10:30. LaCoste did not speak to him about this incident.

LaCoste also testified that he never per-sonaEy spoke to Jones in the past regarding his attendance. He identified documents [1296]*1296which were contained in the employee’s personnel file. These documents noted excused and unexcused absences.

LaCoste was asked by the company’s counsel to summarize the number of unexcused absences as represented in the file. He testified he was the custodian of these records but that he did not prepare these documents. The people who prepared the documents were not called to testify. LaCoste stated there were six unexcused absences occurring 1/29/94; 2/11/94; 3/25/94; 4/8/94; 4/20/94; and 4/24/94. He also stated the documents reflect episodes of tardiness in 1994 and that the documents reflect Jones was warned about absenteeism.

- He testified the company advises employees the employee must call in if late or unable to come to work. Employees are informed of this procedure through group supervisors’ meetings. If a person does not show up, a machine is not being used. The company may have to stop production or call in a back up worker who would be paid overtime. It is critical that the company be informed in order to make other arrangements since the rest of the factory depends on parts from this section for its production.

Jones testified he had been employed as an “A” machine operator for three-and-one-half-years. The last date he worked was May 4, 1994. David Uliscni and Frank Mamola told him he was discharged.

He admitted he had spoken to Uliscni and Mamola April 27,1994. He admitted he was warned that date about absenteeism but stated this was his first warning. He testified he called the following Monday to say he was running late. He overslept and was approximately a half-hour late. The supervisor agreed to his continuing to work. He continued to work until May 5, 1994, and was surprised when he was terminated that day.

IsHe stated that on May 2, 1994 he was having problems with this shift. He had only been on it approximately two months. Prior to this time he had been working the shift from 3:30 p.m. to 11:00 p.m. He had been on this shift for six years.

He stated he explained to Uliscni and Ma-mola that he was having a problem adjusting to the shift change which made him run late.

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Bluebook (online)
670 So. 2d 1294, 1996 La. App. LEXIS 370, 1996 WL 78360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-truly-lactapp-1996.