Opinion
No. 1D12–4685.
2013-07-26
MOLLY LEWIS SASSO, P.A., Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Holly H. Adamson, Appellees.
Molly Lewis Sasso, pro se, Appellant. Louis A. Gutierrez, Senior Attorney, Reemployment Assistance Appeals Commission, Tallahassee, for Appellees.
Molly Lewis Sasso, pro se, Appellant. Louis A. Gutierrez, Senior Attorney, Reemployment Assistance Appeals Commission, Tallahassee, for Appellees.
PER CURIAM.
To successfully challenge an appeals referee's findings of fact, an appellant must demonstrate a lack of competent, substantial record evidence supporting the findings. See Borakove v. Fla. Unemployment Appeals Comm'n, 14 So.3d 249, 252 (Fla. 1st DCA 2009). Here, competent substantial evidence in the record supports the appeals referee's findings. And so we must affirm.
Specifically, claimant testified that she was not intoxicated at work on the day at issue in this case. The appeals referee found this testimony “more credible” than other evidence presented and ultimately resolved material evidentiary conflicts in the claimant's favor. Other evidence, such as highlighted by the dissent, tends to support the employer's case. But even this other evidence does not uniformly support Appellant's case. For instance, the claimant's boss interacted with her before any other witness at 8 a.m. on the day at issue. And the boss's testimony indicated that that she was not sure if claimant was under the influence of alcohol: “I thought [that] maybe she had drank the night before and not brushed her teeth in the morning, I wasn't 100 percent sure, but she did seem a little more talkative and outgoing than normal.... But, you know, I wasn't exactly sure what was going on.” That the appeals referee ultimately made a credibility determination and resolved conflicting evidence in claimant's favor, was well within her purview. See Heifetz v. Dep't of Bus. Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985).
Finally, while we would probably not have made the same factual findings as the referee, the claimant's testimony is competent substantial evidence to support the referee's decision. And an appeals referee'sdecision must be accepted if supported by competent substantial evidence. See Sauerland v. Fla. Unemployment Appeals Comm'n, 923 So.2d 1240, 1241 (Fla. 1st DCA 2006); see also Hubbard v. Unemployment Appeals Comm'n, 53 So.3d 1261 (Fla. 4th DCA 2011). The law thus requires us to affirm the decision. WOLF and OSTERHAUS, JJ., concur; MAKAR, J., dissents with opinion.
I would reverse because the legal assistant's conduct was shown to be sufficiently egregious to justify her termination. Here, the lawyer in charge, and her witnesses, provided direct evidence of the legal assistant's unacceptable behavior: the lawyer in charge detailed instances of unusual and substandard conduct accompanied by alcohol on the employee's breath; a firm employee testified that the legal assistant was “obviously drunk”; the lawyer who hired the legal assistant after she was terminated said he discharged her after three days because of alcohol on her breath. Yes, the legal assistant generally denied the allegations, but she admitted to drinking the night before and to having some “serious coffee” before coming to work (claiming it was the caffeine that caused her unusual behavior). That the law firm had no written policy about intoxication at the office during work hours does nothing to detract from the legal assistant's behavior; everyone knows that professionalism in the law firm context dictates that attorneys and those under their direction have a basic obligation not to come to work intoxicated, notwithstanding large doses of early morning coffee to alleviate the excesses of the night before. She was also observed at social functions inebriated, and the lawyer in charge detailed her declining work product in the months prior to termination. Under these circumstances, it was error to award benefits to the claimant.