Marchand v. Forster

850 So. 2d 941, 2003 WL 21459605
CourtLouisiana Court of Appeal
DecidedJune 25, 2003
Docket37,222-CA
StatusPublished
Cited by6 cases

This text of 850 So. 2d 941 (Marchand v. Forster) 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
Marchand v. Forster, 850 So. 2d 941, 2003 WL 21459605 (La. Ct. App. 2003).

Opinion

850 So.2d 941 (2003)

Carey M. MARCHAND, Plaintiff-Appellant,
v.
Garey FORSTER, Administrator Defendant Appellee State of Louisiana Department of Labor and Dance Tech, Inc., Defendant-Appellee.

No. 37,222-CA.

Court of Appeal of Louisiana, Second Circuit.

June 25, 2003.

*942 Robert C. Oetjens, for Appellant.

Norbert C. Rayford, Baton Rouge, for Appellee, State of Louisiana Department of Labor and Garey Forster.

Clarence F. Favret, III, for Appellee, Dance Tech, Inc.

Before BROWN, WILLIAMS and CARAWAY, JJ.

WILLIAMS, J.

The claimant, Carey M. Marchand, filed a petition for judicial review of a decision of the Louisiana Department of Labor ("LDOL") Board of Review affirming an administrative law judge's denial of his request for unemployment compensation benefits. The district court affirmed the decision of the Board of Review and claimant appealed. For the reasons assigned below, we find no manifest error in the board of review's finding that claimant's separation from his part-time employment was not for "good cause." However, we *943 remand this case to determine claimant's eligibility for benefits.

FACTS

Carey Marchand worked for Dance Tech, Inc. as a part-time lighting technician from December 18, 2000 through April 22, 2001. He worked three to four shifts a week operating dance floor lighting from 10:30 p.m. until about 2:30 a.m. the following morning. Prior to January 1, 2001, the establishment was operated by a previous owner unidentified by name anywhere in the record. Marchand was paid $50.00 per shift, which he took home without any tax withholding. When Dance Tech assumed operations on January 1, 2001, they adopted payroll practices which included withholding payroll taxes from their employees' paychecks. This reduced Marchand's take home pay from $50.00 per shift to a lower figure not specified in the record. Accordingly, Marchand asked for a pay raise which would allow him to continue receiving $50.00 in take home pay per shift. When he was denied the raise, he gave his two-weeks notice. On April 11, 2001, prior to the expiration of the two-weeks notice that he had given, Marchand quit his employment with Dance Tech altogether.

Marchand had also been employed full-time by Gunter Farms, Inc. which ceased operations due to bankruptcy in February of 2001. The record contains no evidence of when Marchand left the employment of Gunter Farms, Inc., the circumstances under which he left or his rate of pay during his employment.

On June 10, 2001, Marchand filed a claim for unemployment compensation benefits. Either at the time of or after filing his claim, Marchand was asked to fill out a form provided by the LDOL which requested that he provide the following information:

ANSWER THE FOLLOWING QUESTIONS CONCERNING YOUR SEPRATION FROM THE EMPLOYER LISTED BELOW.

The employer listed on the form is Dance Tech, Inc. LDOL also forwarded a notice of claim to Dance Tech on June 13, 2001, informing them of the claim for benefits made by Marchand. The record contains no evidence that Gunter Farms, Inc. was ever notified of the claim made by Marchand. The record is unclear as to why this evidence was omitted.

On July 5, 2001, the LDOL denied Marchand benefits on the ground that he left his employment to attend school and not for a good cause attributable to a substantial change made to the employment by his employer. Marchand appealed the denial. The appeal was heard by Administrative Law Judge James C. Jones on July 26, 2001, at which time Marchand testified regarding the circumstances under which he left Dance Tech. Dance Tech's general manager, Philip Marino, participated at the appeal hearing by telephone.

On July 31, 2001, the administrative law judge ("ALJ") affirmed the decision of LDOL denying benefits to Marchand. Thereafter, Marchand appealed to the LDOL Board of Review, which affirmed the decision of the ALJ on September 7, 2001.

Marchand subsequently filed a petition for judicial review in the district court. The petition asserts not only that the ALJ and board of review erred in denying him benefits on the basis that Gunter Farms, Inc. was the sole base-period employer for the purposes of unemployment compensation benefits, but also that the ALJ erred in finding that he resigned from Dance Tech to attend school. After a hearing, the district court issued reasons for judgment, affirming the board of review's decision *944 which affirmed the denial of benefits by the ALJ. This appeal followed.

DISCUSSION

Appellant argues that the district court erred in affirming the board of review's decision to affirm the denial of unemployment benefits under LSA-R.S. 23:1601(1). This statutory provision, which served as the basis for the initial denial of benefits by the LDOL and was affirmed in all subsequent administrative and judicial review, provides in pertinent part:

An individual shall be disqualified for benefits:

(1)(a) If the administrator finds that he has left his employment from a base period or subsequent employer without good cause attributable to a substantial change made to the employment by the employer.

In applying this disqualification provision LDOL determined that Marchand left his employment with Dance Tech on April 11, 2001, without good cause attributable to a substantial change made to the employment by the employer. To the contrary, the administrative law judge and the board of review found that Marchand left his employment with Dance Tech to attend school.

On appeal, Marchand contends the finding is unsupported by the evidentiary record and, even if it is supported, his voluntary departure from Dance Tech without good cause is not a basis for denying him unemployment benefits because his unemployment from his full-time job with Gunter Farms, Inc. should have been taken into consideration.

Evidentiary Support for Finding that Marchand Left Employment Without Good Cause

Marchand contends that the ALJ and the board of review were in error in determining that he left his employment with Dance Tech to attend school. While he admits that he was going to leave the job in late May to begin attending school, he denies that was the reason he left on April 11, 2001, approximately six weeks earlier than he had previously planned. Instead, Marchand claims he left because Dance Tech had reneged on a promise to increase his pay, because his nightly shift had been increased by an hour without an increase in pay and because Dance Tech had implemented new guidelines.

Our appellate review in this matter is expressly limited to questions of law. LSA-R.S. 23:1634(B). In the absence of fraud, the findings of the review board are conclusive as to the facts of the case if supported by sufficient evidence. LSA-R.S. 23:1634(B); King v. Tangipahoa Parish Police Jury, 96-0934 (La.App. 1st Cir.2/14/97), 691 So.2d 194. Courts may not disturb factual findings of the review board when questions of weight and credibility are involved and when the conclusions are supported by sufficient evidence. Judicial review of the findings of the review board does not permit weighing of the evidence, drawing of inferences, re-evaluation of evidence or substituting views of the court for that of the review board as to the correctness of the facts presented. Lewis v. Administrator, 540 So.2d 491 (La.App. 1st Cir.1989). Therefore, we must determine whether the facts are supported by competent evidence and whether the facts, as a matter of law, justify the review board's decision. Landry v. Shell Oil Co.,

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Bluebook (online)
850 So. 2d 941, 2003 WL 21459605, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marchand-v-forster-lactapp-2003.