Satundra Slade v. Mark Butler

• Court: Court of Appeals of Georgia
• Decided: September 25, 2012
• Docket: A12A1459
• Status: Published

Opinion

FIRST DIVISION ELLINGTON, C. J., PHIPPS, P. J., and DILLARD, J.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

September 25, 2012

In the Court of Appeals of Georgia A12A1459. SLADE v. BUTLER et al.

E LLINGTON, Chief Judge.

Satundra Slade was fired from her job as a bus driver for the Atlanta Public

School System (“APS”). APS challenged Slade’s application for unemployment

benefits, contending that she was fired for violating APS policies and was, therefore,

disqualified from receiving benefits under OCGA § 34-8-194 (2) (A), and a claims

examiner with the Georgia Department of Labor (“the Department”) agreed.

Following a hearing, a Department hearing officer found that Slade was in violation

of APS rules and affirmed the claims examiner’s denial of benefits. The Department

of Labor’s Board of Review and the Superior Court of Fulton County both affirmed

the decision to deny benefits. This Court granted Slade’s application for discretionary

appeal. Slade contends that she did not knowingly disregard APS policies because the policies at issue were either ambiguous or were applied retroactively to her. For the

reasons set forth below, we agree and reverse.

“In considering whether the administrative tribunal properly found that [Slade]

was not entitled to receive unemployment benefits, the trial court, as well as this

[C]ourt, must affirm if there is any evidence to support that ruling. And we will

uphold the [D]epartment’s factual findings if there is any evidence to support them.”

(Citations and punctuation omitted.) MCG Health, Inc. v. Whitfield, 302 Ga. App. 408

(690 SE2d 659) (2010). “When this Court reviews a superior court’s order in an

administrative proceeding, our duty is not to review whether the record supports the

superior court’s decision but whether the record supports the final decision of the

administrative agency.” (Citation and punctuation omitted.) Davane v. Thurmond, 300

Ga. App. 474, 475 (685 SE2d 446) (2009). Pursuant to OCGA § 34-8-194 (2) (A), an

individual may be disqualified from receiving unemployment compensation benefits

when he or she has been discharged “for failure to obey orders, rules, or instructions

or for failure to discharge the duties for which the individual was employed[.]”

However,

[b]efore such disqualification is appropriate, the employer must show that the discharge was caused by the deliberate, conscious fault of the claimant. This is in keeping with the strong public policy favoring payment of unemployment benefits to persons unemployed through no

2 fault of their own. OCGA § 34-8-2. Disqualification is an exception to the statutory scheme for unemployment benefits and the employer must show by a preponderance of the evidence that disqualification is appropriate.

(Citations and punctuation omitted.) Jamal v. Thurmond, 263 Ga. App. 320, 321 (1)

(587 SE2d 809) (2003).

The record shows that Slade was employed with APS for 14 years. There is no

evidence in the record that, during that period, she was disciplined or warned that her

performance was inadequate. APS’s decision to fire Slade was based upon Slade’s

involvement in two minor automobile accidents. In May 2009, while she was driving

an APS school bus, Slade struck a car that had turned in front of her. There is no

evidence that anyone was injured or that the accident caused any property damage. In

March 2010, while Slade was driving her own car, she “bumped” a car that had

stopped abruptly in front of her. The record does not reveal whether any traffic

citations were issued to Slade or whether she was convicted of a misdemeanor traffic

offense in connection with either accident. 1 Slade, however, admitted that the

accidents were her fault.

1 The appellate record does not contain evidence of a “conviction” for any traffic violation; rather a witness testified that Slade was terminated based upon a “report” obtained from the Department of M otor Vehicles.

3 The APS employee handbook contained a “Fleet Safety Policy” which sets

forth the maximum number of motor vehicle “convictions” an approved APS bus

driver is allowed during a specified period of time. Slade received a copy of the policy

in August 2009. She also received a copy of the amended policy in August 2010, five

months after her second accident. Both the 2009 and 2010 policies set forth “Driver

Approval Criteria” as follows: (1) no Class I convictions in the last three years, (2) no

more than one Class II conviction in the last three years, (3) no more than two Class

III convictions in the last three years, and (4) no more than two convictions in the last

three years resulting from a combination of Class II and Class III convictions. In 2009,

the conviction classes were set forth thus:

Class I – DUI; assault, manslaughter, or homicide arising out of the use of a motor vehicle.

Class II – Failure to stop and report an accident; driving while license is suspended or revoked; reckless driving; possession of an opened alcoholic beverage container; speeding in excess of 20 mph over a posted limit; violation resulting in an at-fault accident.

Class III – Speeding up to 20 mph over a posted limit; any additional traffic violations/at-fault accidents.

4 “At-fault accident,” which is listed in both Class II and Class III, is not defined. The

2009 policy arguably allows for two at-fault accidents within a three-year period and,

yet, simultaneously provides that a driver may not have more than one at-fault

accident in a three-year period. Slade understood this policy to mean that she was

permitted to have up to two at-fault accidents in a three-year period if the accidents

were minor. 2 APS’s transportation supervisor also testified that, every year, she told

all bus drivers that they were not allowed, under this policy, to have “more than two

at-fault accidents.” In August 2010, APS modified the text of Class III, omitting any

reference to “at-fault” accidents. Thus, under the 2010 policy, an employee may be

terminated for having more than one at-fault accident within a three year period.

In affirming the Board of Review’s decision, the superior court reasoned that

the 2010 policy, which went into effect after Slade’s second accident, essentially

cured any ambiguity in the 2009 policy, reasoning that, since both policies provided

that an employee may be terminated for having more than one at-fault accident, Slade,

at all relevant times, understood that she could be terminated for that reason alone.

2 Slade argues that the policy was likely intended to limit at-fault accidents “resulting” from the more serious Class II violations to one, while allowing two at- fault accidents resulting from less serious traffic violations, that is, those that were not included in Classes I and II. We do not address whether this interpretation is correct as we have not been tasked with resolving the ambiguity. We simply note that it exists.

5 Such reasoning, however, ignores the fact that the 2009 policy was ambiguous during

the time it was in effect, and that both Slade and her supervisor believed that a bus

driver would not be terminated for having only two at-fault Class III accidents. This

interpretation was as reasonable as the alternative one that APS relied upon.

Moreover, because this policy did not define “at-fault accident,” it was not patently

unreasonable for Slade to believe that Class II counted more severe at-fault accidents

than were embraced in Class III. Because the 2009 policy was ambiguous and because

Slade’s interpretation of that policy was not unreasonable, there is no evidence that

Slade consciously or deliberately violated the 2009 policy. See, e.g., Davane v.

Thurmond, 300 Ga. App. at 477. (“Since disqualification of benefits requires

‘deliberate, conscious fault’ by the employee, an employee’s bona fide effort to

comply with an employer’s orders is not consistent with a finding of fault.”) (citation

omitted). Moreover, “determination of a disqualifying fault must be made in the

context of whether the employee would reasonably expect, under all the circumstances

of employment, that sanction would result from a violation.” (Citation omitted;

emphasis supplied.) Id.

Only after the policy was amended in 2010 was Slade put on notice that more

than one at-fault accident, regardless of whether the accident resulted from a minor

or a serious traffic violation, would be a policy infraction that would result in

6 termination. Further, she was given this notice only after her second accident.

Applying the 2010 policy retroactively against Slade does not cure the ambiguity

under which she had been operating. Rather, it simply applies a new rule to her

retroactively. Under the circumstances, Slade did not knowingly disobey her

employer’s 2010 policy because the policy was not in effect when she was alleged to

have violated it. Thus, there is no evidence in the record that Slade consciously or

deliberately violated either the 2009 or 2010 APS Fleet Safety Policy. See id.

Given the circumstances of this case, we conclude that APS did not carry its

burden of showing that Slade came within the disqualification exception. Therefore,

she is entitled under the law to unemployment compensation, and the superior court

erred in affirming the denial of benefits. See Barron v. Poythress, 219 Ga. App. 775,

777 (466 SE2d 665) (1996).

Judgement reversed. Phipps, P. J., concurs. Dillard, J., concurs in judgment

only.

7 A12A1459. SLADE v. BUTLER et al.

D ILLARD, Judge, concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the

majority opinion. As such, the majority’s opinion decides only the issues presented

in the case sub judice and may not be cited as binding precedent. See Court of

Appeals rule 33 (a).