Opinion
No. CA-6224.
April 9, 1987.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE RICHARD J. GANUCHEAU, J.
Mary Ellen Roy, New Orleans, for plaintiff-appellant.
James A. McGraw, B.J. Francis, Denise A. Nagel, Herman Robinson, Frank Scott, Ollivette E. Mencer, Baton Rouge, for Office of Employment Sec., defendant-appellee.
Maureen L. Hogel, McGlinchey, Stafford, Mintz, Cellini Lang, P.C., New Orleans, for defendant-appellee, The Plimsoll Club.
Before CIACCIO, WILLIAMS and ARMSTRONG, JJ.
This is an appeal by plaintiff Calvin Lee from a decision by the trial court affirming a ruling of the Board of Review for the Office of Employment Security ["Board"] that denied him unemployment benefits.
Lee had been collecting unemployment benefits when he began work at the Plimsoll Club as a "prep" cook. He had no experience in this area. After nine days, he quit, claiming that the work was "unsuitable." The Office of Employment Security then determined that plaintiff should not receive further benefits. After some procedural delays, a hearing was held and the appeals referee determined that plaintiff had left his employment with the Plimsoll Club without good cause and affirmed the denial of benefits. This decision was subsequently affirmed by the Board of Review and the district court. Plaintiff appeals, alleging that trial court erred in its affirmation of the administrative decision because: (1) the proper standard for determining his entitlement to benefits is whether the job at the Plimsoll Club was suitable, not whether he left without good cause; and (2) there was insufficient evidence presented to support a finding that the job was "suitable." Because we find that the finding of suitability was reasonable, we affirm the decision below.
Plaintiff relies upon the following facts to support his assertion that the job at the Plimsoll Club was unsuitable: (1) he had no experience as a cook; (2) the hours each week that he was scheduled to work were not as promised; (3) he received little training and was falling behind at work; and (4) the work was dangerous. He claimed that on his last day at work he was chopping vegetables and cut his finger. Because there was not a band-aid on the premises he was forced to wrap a towel around his hand until that evening.
Not withstanding plaintiff's objections, there is no evidence in the record to support his contention that he was unsuitable for this particular job. Therefore, the denial of plaintiff's benefits was proper.
Our review is limited to questions of law La.R.S. 23:1634. The Board's factual finding are conclusive in the absence of fraud and if they are supported by sufficient evidence. Washington v. Sumrall, 457 So.2d 50, 52 (La.App. 4th Cir. 1984).
At the Board hearing, plaintiff presented his version of what had prompted him to quit his job as a prep cook. He did not mention, however, that his hours as a prep cook were different from his previous job. We realize that plaintiff, like the other participants, was unrepresented at the hearing. Nevertheless, his narrative clearly supports a finding that the job was suitable for him, and his failure to accept the employment disqualifies him from receiving further benefits. La.R.S. 23:1601(3). Vancouver Plywood Co. v. Supra, 14 415 So.2d 625, 629 (La.App. 3d Cir. 1982).
For the foregoing reasons the decision of the trial court upholding the Board's denial of benefits is affirmed.
AFFIRMED.
CIACCIO, J., dissents with reasons.
I respectfully dissent.
Claimant was an unemployed former mail clerk receiving unemployment compensation benefits when he accepted employment as a prep cook at the Plimsoll Club. This job involved peeling and cutting vegetables for use by the chef, a job for which claimant had no prior experience. He was given minimal training (1 day), and worked for nine days. On the last day he cut his hand severely enough to require going to the hospital for treatment. He advised his supervisor on the last day that he was leaving their employ because he was not suited for the job.
Although the initial hearing notice stated the issue as "The claimant left his employment because he thought that he was not suited for the job," R.S. 23:1601(1), the subsequent notice of July 29, 1985 stated the issue as "The claimant left employment because of disliking the assigned work which is leaving without good cause connected with the employment." R.S. 23:1601(1). The entire thrust of the hearing was directed towards claimant's quitting without good cause, no attention was given to the issue of job suitability.
The appeals referee made no finding that the job at the Plimsol Club was suitable employment within the meaning of L.S.A.R.S. 23:1601(3)(A). That issue was never directly addressed by the appeals referee or the Board of Review. Although one may argue that this issue was decided adversely to claimant, the record is devoid of evidence on this issue.
Prior cases have held that the Administrator has the burden of proving that the work offered was suitable. Wilson v. Doyle, 215 So.2d 213 (La.App. 3d Cir., 1968), Johnson v. Administrator, Division of Employment Security, 166 So.2d 366 (La.App. 3d Cir., 1964), Green v. Brown, 147 So.2d 406 (La.App. 2d Cir., 1962).
If the Administrator shows that the work offered to the claimant was in his customary occupation at wages within the range of the prevailing wage scale, that showing creates a presumption that the work offered was suitable within the meaning of the statute. Wilson v. Doyle, supra, Johnson v. Administrator, Division of Employment Security, supra. Claimant had been a mail clerk, that would be his customary occupation. Thus the Administrator had the affirmative duty of proving that the job of prep cook was suitable employment since no presumption of suitability exists in this case. The record contains no such proof.
Accordingly, I do not find that the Administrator proved that the claimant should be disqualified for benefits under the provisions of La.R.S. 23:1601(3). This case should be remanded for further evidence on the issue of "suitable work," taking into consideration all the criteria of La.R.S. 23:1601(3). Should it be determined that the work was not suitable and that claimant made a good faith attempt to try this work without success, claimant should not be penalized for his willingness to cooperate. Further, the Plimsoll Club should have no liability for his unemployment benefits. That responsibility would remain with his former employer who was being charged with his claim before claimant attempted the Plimsoll Club job.
To hold otherwise would be to penalize both the claimant who was cooperative enough to attempt work in a totally unfamiliar occupation instead of declining the job assignment and continuing to receive unemployment compensation, and to penalize the prospective employer who accepted an untrained person into its employ.
Other state courts have held that a good faith effort to try out an unfamiliar job which terminates after a short trial period because the claimant finds that the job is not suitable does not disqualify the claimant from resuming his former unemployment compensation benefits. Wallace v. Dept. of Employment Security, 134 Vt. 513, 365 A.2d 517 (1976), (Claimant is not disqualified where she works for ten days at an unsuitable job after being laid-off); Herman v. Florida Dept. of Commerce, 323 So.2d 608 (Fla.App. 1975), (Claimant is not disqualified where she works eight days at an unsuitable job after becoming unemployed); Peyton v. Sun T.V. Appliances, 44 Ohio App.2d 10, 335 N.E.2d 751 (1975), (Claimant is not disqualified when he works at an unsuitable job after being laid off); Wojcik v. Board of Review, 58 N.J. 341, 277 A.2d 529 (1971), (Claimant is not disqualified where he works five weeks at an unsuitable job after becoming unemployed).
We should adopt that line of reasoning. The proper test, then, for determining whether this claimant should be disqualified from continuing to receive unemployment compensation benefits after his unsuccessful nine-day trial period of employment, should be whether that employment had been "suitable."