Opinion
NUMBER 2012 CA 2122
2013-09-13
CHRISTINE PARKER v. LA STATE JUDICIAL REVIEW BOARD
Christine Parker Plaintiff/Appellant In Proper Person J. Jerome Burden Baton Rouge, LA Counsel for Defendant/Appellee LA Workforce Commission S. Price Barker Brian R. Carnie Michael D. Lowe Shreveport, LA Counsel for Defendant/Appellee Evergreen Presbyterian Ministries, Inc.
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge, Louisiana
Docket Number 612,056
Honorable Todd Hernandez, Judge Presiding
Christine Parker
Plaintiff/Appellant
In Proper Person
J. Jerome Burden
Baton Rouge, LA
Counsel for Defendant/Appellee
LA Workforce Commission
S. Price Barker
Brian R. Carnie
Michael D. Lowe
Shreveport, LA
Counsel for Defendant/Appellee
Evergreen Presbyterian Ministries, Inc.
BEFORE: WHIPPLE, C.J., WELCH, AND CRAIN, JJ.
WHIPPLE, C.J.
Christine Parker, plaintiff-appellant, appeals the district court's judgment, dismissing her claim for unemployment benefits due to her failure to appear at the administrative hearing.
FACTS AND PROCEDURAL HISTORY
Christine Parker was a part-time employee of Evergreen Presbyterian Ministries ("Evergreen") and Baton Rouge Elder Care. Parker voluntarily left her employment with Evergreen on or about October 31, 2011, and left her employment with Baton Rouge Elder Care on December 10, 2011.
On January 8, 2012, Parker filed two separate claims for unemployment benefits with the Louisiana Department of Labor ("the Department"), as related to her employment with Evergreen and Baton Rouge Elder Care. The Department determined that Parker was not entitled to unemployment benefits because she left her employment with both employers to attend school or training classes, and her leaving was not for good cause attributable to a substantial change made to the employment by the employer.
Parker appealed the Department's determinations to an administrative law judge. Parker received notice that the administrative law judge would conduct telephone hearings on April 9, 2012 at 10:30 A.M. and 11:30 A.M. as to her respective unemployment claims. On the date and time of the hearings, the administrative law judge attempted to call Parker at the two separate telephone numbers she had provided. However, upon receiving a voice mail message that Parker was unavailable, the administrative law judge then left a voice message, relaying to Parker that although he attempted to contact her at the scheduled hearing time, she was unavailable; therefore, he was dismissing her unemployment appeal. Written notice was then sent to Parker, notifying her that she had seven days to request the reopening of her appeal.
Accordingly, Parker submitted a written letter requesting that her claims against Evergreen and Baton Rouge Elder Care be reopened. In the letter, Parker stated that she was in nursing clinicals at the time of the telephone hearing and a telephone was not available. The Office of the Board of Review ("the Board") considered Parker's request to reopen her claims, but denied the request, finding that Parker's stated reasons did not support a finding of "good cause" for her failure to appear.
Parker then filed a petition for judicial review in the district court. After a hearing on July 30, 2012, the district court affirmed the Board's decision. Parker then filed the instant appeal, averring that she demonstrated "good cause" for not being available to access a telephone for the hearing, and that accordingly, her unemployment benefits claims should be reopened.
The petition for judicial review filed with the district court is in the form of a hand-written letter addressed to the Board of Review Office of Regulatory Services.
STANDARD OF REVIEW
Appellate review of an unemployment compensation proceeding is provided for in the Louisiana Employment Security Law, specifically LSA-R.S. 23:1634. Appellate review does not entail the weighing of evidence, drawing of inferences, re-evaluation of evidence, or substituting the views of this court for those of the referee or Board as to the correctness of facts. The scope of appellate review is limited to determining whether the facts are supported by sufficient and competent evidence and whether the facts, as a matter of law, justify the action taken. Fontenet v. Cypress Bayou Casino, 06-0300 (La. App. 1st Cir. 6/8/07), 964 So.2d 1035, 1038.
Louisiana Revised Statute 23:1634(B) provides, in part:
In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. No additional evidence shall be received by the court, but the court may order additional evidence to be taken before the board of review, and the board of review may, after hearing such additional evidence, modify its findings of fact or conclusions, and file with the court such additional or modified findings and conclusions, together with a transcript of the additional record.... An appeal may be taken from the decision of the district court to the circuit court of appeal in the same manner, but not inconsistent with the provisions of this Chapter, as is provided in civil cases.
LAW AND ANALYSIS
Louisiana Administrative Code, Title 40, Part IV, Section 113 governs dismissals of unemployment claims for failure to appear, stating in pertinent part:
B. If the appellant, who is the party who files the appeal before the Appeals Tribunal, fails to appear within 15 minutes after the scheduled hearing time at an in-person hearing, or fails to be available to receive the telephone call to participate in a scheduled telephone hearing at the scheduled hearing time, the administrative law judge shall order the appellant in default and issue a dismissal of appeal. In such event, the agency determination shall become the final decision. Written notice of default of the appellant and dismissal of the appeal shall be mailed to the parties. The appellant either may file a written request for reopening before the administrative law judge, with a showing of good cause, within seven days of the date of mailing of the dismissal decision or may file an appeal before the board of review under §109 and §125. If such appellant is denied a reopening by the administrative law judge, any such request shall be forwarded to the board of review as an appeal as of the date of the written request for reopening. If it is determined by the administrative law judge on reopening or by the board of review on appeal that the appellant has shown good cause for his nonappearance, the dismissal shall be vacated and a new hearing on the merits shall be scheduled. (Emphasis added).
Further, 40 LA ADC Pt IV, § 113(D) provides:
D. The administrative law judge or the board of review shall make a determination of good cause for failure to appear only if the written request for reopening or the appeal filed by the party contains a statement of the reason(s) for his failure to act in a timely manner and reasonably justifies a finding of good cause to excuse such failure.
In determining whether "good cause" exists, 40 LA ADC Pt IV, §113(E) outlines relevant factors for consideration, stating as follows:
E. Good Cause for Reopening
1. To determine whether good cause has been shown in a request for reopening or in an appeal to excuse the failure of a party to appear, the administrative law judge and the board of review shall consider any relevant factors, including, but not limited to:
a. reasonably prudent behavior;
b. untimely receipt of notice;
c. administrative error;
d. reasons beyond control or avoidance;
e. reasons unforeseen;
f. timely effort to request continuance;
g. physical inabilities;
h. degree of untimeliness; or
i. prejudice to parties.
Moreover, "good cause" is a factual determination which should not be disturbed absent manifest error. Gauthier v. Gauthier, 04-198 (La. App. 3rd Cir. 11/10/04), 886 So.2d 681, 685, writ not considered, 04-3019 (La. 2/18/05), 896 So. 2d 15.
On the record before us, we find sufficient evidence exists to support the Board's finding that Parker did not show "good cause" for her failure to appear for the scheduled telephone hearings. Parker does not dispute that she received the notices setting forth the date and time of the telephone hearings, which specifically state that if the party who filed the appeal is not available when called, the appeal will be dismissed. Furthermore, Parker was aware that she would be in nursing clinicals at the time of the scheduled telephone hearings, yet made no effort to reschedule the hearings for a time when she would be available. Parker contends that when she arrived at the facility where her nursing clinicals were taking place, she was informed that personal telephones were prohibited on the facility grounds. However, Parker does not allege, nor does the record show, that she made any efforts at that time to contact the administrative law judge to request a continuance.
While we recognize that under LSA-R.S. 23:1634(B), the Board's findings as to the facts are conclusive if supported by sufficient evidence and in the absence of fraud, and that our review is limited to determining whether the action taken was legally correct, in the interest of justice, we have nonetheless reviewed and find support for these factual findings. Moreover, based on our review of the law, we conclude that the Board's decision was legally correct.
CONCLUSION
For the foregoing reasons, we affirm the October 1, 2012 judgment of the district court. By law, costs of this appeal may not be assessed against Parker under the facts of this case. See LSA-R.S. 23:1692.
AFFIRMED. CHRISTINE PARKER
VERSUS
LA STATE JUDICIAL
REVIEW BOARD
NO. 2012 CA 2122
Welch, J., dissenting.
I respectfully dissent. At the hearing on her petition for judicial review of the dismissal of her claims, Ms. Parker elaborated on the reason she did not have access to her cell phone on the Monday morning in question. Although she may have been aware that she would be in nursing clinicals at the time of the scheduled hearing, she stated that she did not know until she went to her site-rotation at Jackson State Hospital on the date of the hearing that she would not be allowed to bring her telephone into the facility. She stated that at other clinical sites, she had been able to keep her cell phone with her, and explained that had she known ahead of time that she would not be able to use her cell phone at the Jackson facility, she would have notified someone immediately. According to Ms. Parker, she apprised her instructor of the situation, who gave her the option of failing the class or leaving her cell phone in her vehicle.
Dismissal of a claim for a failure to appear is a harsh remedy. See Kelly v. Kelly, 1011-1932 (La. App. 1st Cir. 6/13/12), 94 So.3d 179. I believe that under the circumstances of this case, Ms. Parker has demonstrated that good cause existed for her nonappearance and that the trial court erred in affirming the decision of the Board. In the interest of justice, I would order that the dismissal be vacated and a new hearing on the merits of her unemployment benefit claims be scheduled.