Virgie Dejean v. Administrator, Office of Employment Security

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-327

VIRGIE DEJEAN

VERSUS

ADMINISTRATOR, OFFICE OF
EMPLOYMENT SECURITY, ET AL.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 03-C-3579-B
HONORABLE A. FRANK McGEE, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billie Colombaro
Woodard and Oswald A. Decuir, Judges.

REVERSED.

Gregory L. Landry
Jeffrey Reay Huggins
Acadiana Legal Service Corporation
P. O. Box 4823
Lafayette, LA 70502-4823
(337) 237-4320
Counsel for Plaintiff/Appellant:
Virgie Dejean

J. Jerome Burden
Department of Labor
P. O. Box 94094
Baton Rouge,, LA 70804-9094
(225) 342-3044
Counsel for Defendant/Appellee:
Louisiana Department of Labor,
Office of Employment Security

James P. Doherty, Jr.
Andrus & Doherty
117 North Market Street
Opelousas, LA 70570
(337) 942-5645
Counsel for Defendant/Appellee:
Opelousas General Hospital

DECUIR, Judge.

The appellant, Virgie Dejean, appeals the trial court’s affirmation of a decision

of the Board of Review for the Office of Employment Security, denying her

unemployment compensation benefits.

FACTS

Dejean worked as a unit clerk in the Emergency Room at Opelousas General

Hospital. She worked for the hospital for nineteen years.

On May 4, 2003, she greeted a patient with jaw pain and difficulty speaking.

She suspected an adverse drug reaction and asked the patient if she had taken

anything. The patient denied having taken anything. Still believing the patient was

having a drug reaction, she asked again about drug usage. The patient again denied

taking anything. Nevertheless, Dejean reported an adverse drug reaction to the duty

nurse. The patient’s daughter was angered by the suggestion that her mother was

using drugs and filed a complaint. Opelousas General subsequently terminated

Dejean’s employment.

Following her termination, Dejean applied for unemployment compensation

benefits. The Office of Employment Security denied her benefits after concluding

that she had been terminated for misconduct. At the hearing, only Dejean appeared.

Opelousas General mailed copies of Dejean’s personnel record that purported to show

prior instances of similar misconduct. The administrative law judge found that

Dejean had been properly terminated for misconduct and denied benefits. The

decision of the administrative law judge was affirmed by the Louisiana Board of

Review. The decisions of the administrative law judge and the Board of Review were

then affirmed by the Twenty-seventh Judicial District Court, Parish of St. Landry.

Dejean contends on appeal that: (1) the administrative ruling was not

supported by legally sufficient and competent evidence; and, in the alternative that

(2) her conduct did not rise to the level of disqualifying misconduct. We note that the

Louisiana Department of Labor, an appellee, filed a brief in support of Dejean’s

contention in both this court and the court below. Opelousas General asks that the

lower court judgment be affirmed.

DISCUSSION

Dejean first contends that the ruling of the administrative law judge is not

supported by legally competent evidence in that only hearsay was offered to prove

misconduct by Dejean. We agree.

In Barber v. Administrator, Office of Employment Sec., 95-770, pp. 2-3

(La.App. 3 Cir. 12/6/95), 664 So.2d 844, 846-47, we discussed this same issue as

follows:

Under the provisions of La.R.S. 23:1634(B), our judicial review must be
confined to questions of law. The findings of fact of the Board of
Review are conclusive if supported by sufficient evidence and in the
absence of fraud. Cox v. Lockwood, 373 So.2d 246 (La.App. 4 Cir.
1979). While our 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 Board of Review as to the correctness
of the facts, there must be legal and competent evidence to support the
factual findings on which the administrative determination turns. Banks
v. Administrator of Dept. of Employment, 393 So.2d 696 (La.1981). The
burden of proof rests with the employer to prove misconduct and, at the
administrative law judge level, that burden is not overcome by hearsay
evidence or ex parte statements. Weatherly Labs v. Adm’r, Office Emp.
Sec., 94-317 (La.App. 3 Cir. 11/2/94), 649 So.2d 623.

....

As this court has previously noted, “Commencing with Lee v. Brown,
148 So.2d 321 (La.App. 3rd Cir.1962), it has been consistently held that
although hearsay is admissible in an administrative hearing, it cannot be
considered competent evidence and cannot be used in determining
whether findings of the Board of Review are supported by “sufficient
evidence” as required by statute. Schlesinger v. Administrator of Office
Employment Sec. Dept. of Labor, 583 So.2d 100 (La.App. 3 Cir.1991).

Opelousas General did not appear at the hearing and only submitted copies of

Dejean’s personnel records as evidence. These records are considered hearsay

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because no custodian of the records or other qualified witness of the employer

testified. See La.Code Evid. art. 803(6). Accordingly, we find that no competent

legal evidence supporting a finding of misconduct was introduced at the hearing.

Therefore, Opelousas General failed to carry its burden of proof. The district court

erred in affirming the findings of the administrative law judge and the Louisiana

Review Board. This conclusion being dispositive, we need not address Dejean’s

remaining assignment.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed. All costs

of these proceedings are taxed to Opelousas General Hospital.

REVERSED.

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