Ogle v. Florida Unemployment Appeals Commission

87 So. 3d 1264, 2012 WL 1868934, 2012 Fla. App. LEXIS 8279
CourtDistrict Court of Appeal of Florida
DecidedMay 24, 2012
DocketNo. 1D11-4015
StatusPublished
Cited by2 cases

This text of 87 So. 3d 1264 (Ogle v. Florida Unemployment Appeals Commission) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ogle v. Florida Unemployment Appeals Commission, 87 So. 3d 1264, 2012 WL 1868934, 2012 Fla. App. LEXIS 8279 (Fla. Ct. App. 2012).

Opinions

BENTON, C.J.

Jonathan Ogle appeals an order of the Unemployment Appeals Commission (UAC) reversing the decision of an appeals referee that found him eligible for unemployment benefits. We reverse and remand with directions that the UAC adopt the appeals referee’s decision, and order, benefits accordingly.

On judicial review, the UAC’s order is entitled to a presumption of correctness, to be sure. See Kelle v. D.H. Holmes Co., Ltd., 658 So.2d 1161, 1162 (Fla. 2d DCA 1995). “Absent a clearly erroneous decision by the [UAC], the Commission’s decision cannot be overturned.” Wells v. Fla. Unemployment Appeals Comm’n, 767 So.2d 624, 625 (Fla. 3d DCA 2000). But the UAC must itself adhere to prescribed standards of review when it reviews a decision of the appeals referee:

The Commission’s standard of review of an appeals referee’s decision is whether the referee’s findings of fact are based on competent, substantial record evidence and whether the proceedings on which those findings are based complied with the essential requirements of law. [1267]*1267The appeals referee, as the trier of fact, is privileged to weigh and reject conflicting evidence, and the Commission cannot reweigh the evidence and substitute its findings for those of the referee. Although the Commission may reject the referee’s conclusions of law without limitation, it may not modify the facts to reach a different legal conclusion, rely on facts that were not established at the hearing, or rely on a theory not advanced by one party or anticipated by the other. This Court cannot make credibility determinations or substitute its judgment for that of the referee and must uphold the appeals referee’s decision where there is competent, substantial evidence to support it.

Howell & O’Neal v. Fla. Unemployment Appeals Comm’n, 934 So.2d 570, 575 (Fla. 1st DCA 2006) (citations omitted). The UAC and, indeed, we ourselves are bound by the appeals referee’s findings of fact, unless the findings of fact are unsupported by competent, substantial evidence.

Mr. Ogle concedes he voluntarily quit his employment as a salesman at Dick DeVoe Buick Cadillac, Inc. (DeVoe), where he worked from September 7, 2010, to October 11, 2010. See Miller v. Fla. Unemployment Appeals Comm’n, 768 So.2d 1218, 1219 (Fla. 4th DCA 2000). He appeals the UAC’s determination that he was disqualified from receiving unemployment benefits, despite the appeals referee’s finding that his reason for quitting was attributable to the employer. “[Sjection 443.101(l)(a), Florida Statutes (2009), provides that an individual is not disqualified for unemployment benefits where the individual has ‘voluntarily left work with good cause attributable’ to the employer. § 443.101(l)(a), Fla. Stat. (2009). ‘Good cause’ includes cause attributable to the employer, which ‘as contemplated by the unemployment compensation law, describes that which would drive an average, able-bodied worker to quit his or her job.’ Recio [v. Kent See. Servs. Inc., 727 So.2d 320, 321 (Fla. 3d DCA 1999)]; Uniweld Prods., Inc. v. Indus. Relations Comm’n, 277 So.2d 827, 829 (Fla. 4th DCA 1973); Diaz v. Unemployment Appeals Comm’n, 31 So.3d 271, 272 (Fla. 5th DCA 2010).” Martinez v. Ford Midway Mall, Inc., 59 So.3d 168, 171 (Fla. 3d DCA 2011).

As a factual matter, the appeals referee concluded that Mr. Ogle established good cause for quitting attributable to his employer. The referee found — and competent, substantial evidence in the record supports the findings — that Mr. Ogle was not paid what was agreed at the time of hire: He was advised at the time of hire that he would be paid commissions for any week in which his sales commission exceeded the minimum wage for the week, but later found out that commissions would only be paid if the amount was in excess of the minimum wage amount for the month. This testimony was unrefuted, as nobody from the dealership testified at the hearing as to what Mr. Ogle was told at the time of hire. “[Misrepresenting the amount of salary to an employee or failure to comply with a salary agreement is sufficient cause to compel the average employee to leave his or her employment and, therefore, constitutes good cause attributable to the employer to justify an award of benefits to the employee.” Kelly v. Unemployment Appeals Comm’n, 823 So.2d 275, 279-80 (Fla. 5th DCA 2002).

At a telephone hearing, Mr. Ogle testified that he quit because the wages he received were not what he discussed and agreed to with the general sales manager who hired him. Mr. Ogle also testified that, as part of his wage package, he was promised database leads and access to the database, but that he never received any leads and his computer login never [1268]*1268worked, so he never had access to the database. He testified that DeVoe paid a minimum wage draw, and “[i]f you reach the threshold of the minimum wage in the pay period, then you don’t take the minimum draw, you get paid your commission.” But, he testified, “they were taking back all the minimum wage because they were taking all the money back, and they were doing it outside of the pay period. And that’s not what I agreed to.” He testified that he did not realize there was a discrepancy until he sold a car during the last ten days of employment and then only when he received a paycheck that did not include the commission. He tried to speak to the sales manager who hired him, but the manager was fired the same day Mr. Ogle discovered the alleged underpayment.

Melinda Harrison, general manager for DeVoe Volvo Infinity, testified that she was not involved in hiring Mr. Ogle. But, she testified, the dealership had a uniform, written pay plan that was identical for every sales representative which, she was “confident,” stated that any commissions earned would be reduced or “used to recoup the draw” for the whole month, not just the week. Noting Ms. Harrison was not present when Mr. Ogle was hired and could not give a firsthand account of what he was told then, the referee made the following findings of fact:

The claimant worked for the employer, an automobile sales and service company, from September 7, 2010, until October 11, 2010, as a sales representative. The claimant was advised at time of hire that he would be paid minimum wage, and would be paid commissions for any week in which his sales commission amount exceeded the minimum wage pay. The claimant was also advised at time of hire that he would be given sales leads (contact information for former and prospective customers) and access to the employer’s database so that he could complete online training. The claimant received no leads, and his database login password never worked. The claimant addressed concern over these issues to his supervisor on several occasions, but no action was taken. During the claimant’s final ten days of employment, the claimant made a single sale, with a commission of approximately $300.00. The claimant then learned that commission pay would only be received if the amount was in excess of the minimum wage amount for the month, not the week. The claimant attempted to speak with his supervisor, but found that the supervisor had been discharged and replaced. The claimant did not discuss the issue with his new supervisor. The claimant resigned from the job on October 11, 2010.

The appeals referee concluded that, although Mr.

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Bluebook (online)
87 So. 3d 1264, 2012 WL 1868934, 2012 Fla. App. LEXIS 8279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ogle-v-florida-unemployment-appeals-commission-fladistctapp-2012.