Charles King v. Louisiana Workforce Commission, Office of Regulatory Service

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-0526

CHARLES R. KING

VERSUS

LOUISIANA WORKFORCE COMMISSION,
OFFICE OF REGULATORY SERVICES, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 2008-11129
HONORABLE EDWARD BROUSSARD, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and James T. Genovese,
Judges.

AFFIRMED.

Saunders, J., dissents.

Charles R. King
1421 North Ave. H
Crowley, LA 70526-2418
(337) 783-8093
PLAINTIFF/APPELLANT:
In Proper Person

J. Jerome Burden
Louisiana Workforce Commission
Legal Division
P. O. Box 94094
Baton Rouge, LA 70804-9094
(225) 342-3024
COUNSEL FOR DEFENDANT/APPELLEE:
Louisiana Workforce Commission,
Office of Regulatory Services, et al.

PETERS, J.

The plaintiff, Charles R. King, appeals the district court’s affirmation of the

judgment of the Board of Review of the Louisiana Workforce Commission, Office

of Regulatory Services (Board of Review), disqualifying him from receiving

unemployment compensation benefits. In accordance with our limited function on

review, we affirm.

DISCUSSION OF THE RECORD

Carmichael’s Cashway Pharmacy (Carmichael’s) in Crowley, Louisiana, hired

Mr. King as a nighttime delivery driver to disperse medication and dietary

supplements to various nursing homes over south Louisiana.1 Mr. King first began

work on February 2, 2007, and earned eleven dollars per hour. A normal work shift

began at 6:00 p.m., and he averaged between seven and eight hours a night depending

upon the location and number of deliveries.

The dispute giving rise to this litigation relates to a disagreement over the

company vehicle breakdown policy. Mr. King asserts that at the time he was hired,

Henry Helo, Carmichael’s Human Resource Director, informed him that if he

developed vehicle trouble while in the process of making his deliveries or while on

the way home, Carmichael’s would immediately send a driver to pick him up. He

asserts that this policy changed to his detriment in April 2007, when he and the other

drivers were informed by Harry Walker, Carmichael’s fleet supervisor, that

Carmichael’s would only send a driver if a breakdown occurred before the driver had

completed his route. Otherwise, the driver would be required to call a tow truck and

wait for its arrival.

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The route included nursing homes in Baton Rouge, Kentwood, and Bogalusa, Louisiana on
an as-needed basis and often covered approximately three hundred miles on a work shift.

Mr. Helo disagreed with Mr. King’s initial understanding of the breakdown

policy. According to him, the policy has always been that if a vehicle breaks down,

the driver is supposed to immediately contact the dispatcher. The dispatcher would

determine the driver’s location and ascertain whether he had completed his route. If

the route was not complete, the dispatcher would, in addition to contacting a tow

truck, contact another driver in the area or an on-call driver to complete the disabled

vehicle’s route. Either way, the driver of the disabled vehicle was required to stay

with the vehicle and ride home with the tow truck driver. The obvious purpose of this

policy was to make certain that the essential medications were timely delivered to the

nursing homes at issue. Given that Carmichael’s operated approximately thirty

vehicles and that breakdowns were common, it was critical that a policy protect the

drivers and the required deliveries.

After the meeting with Mr. Walker, Mr. King met with Mr. Helo, who

confirmed Mr. Walker’s pronouncement of the company policy. This, in Mr. King’s

mind, placed the driver’s safety at issue, and he related his concern to Mr. Helo. In

order to accommodate Mr. King’s concerns for his personal safety, Mr. Helo offered

him a transfer to a shorter, local route. Mr. King declined the transfer, stating that the

route was not the issue and that such a change would not address his safety concerns

regarding the vehicle breakdown policy.

Having reached an impasse, Mr. Helo asked Mr. King if he intended to resign,

and Mr. King responded that he would not resign over a safety issue. However, Mr.

King carried the conversation further and inquired as to the consequences of him not

appearing for work. Mr. Helo informed him that a failure to appear at work on three

consecutive days would result in his termination from employment with the company.

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Mr. King then gave his office key, fuel card, and cellular telephone to Mr. Helo and

informed him that he would not be at work the next three days. Carmichael’s

terminated his employment as of May 26, 2007. According to Mr. Helo, there was

no other way for the company to address Mr. King’s concerns without severely

impacting its operations.

Following his termination, Mr. King sought and was granted unemployment

compensation benefits through the initial administrative process based on a finding

that pursuant to the Louisiana Employment Security Law, he had good cause to leave

his employment position. Carmichael’s appealed this decision to the Appeals

Tribunal, and, after a hearing, the administrative law judge (ALJ) rendered an opinion

finding that Mr. King had engaged in no misconduct relating to his employment, but

that because there was no appreciable difference in the working conditions between

when Mr. King was hired and his date of termination, he had terminated his

employment for personal reasons. That finding, according to the ALJ, disqualified

him from receiving unemployment compensation benefits.

After both the Board of Review and the Fifteenth Judicial District Court

affirmed the ALJ’s decision, Mr. King perfected this appeal. In his appeal, he asserts

that the findings of the ALJ and the Board of Review are not supported by sufficient

evidence and are not reasonable as a matter of law, and that good cause for leaving

his employment existed in this instance.

OPINION

Our scope of review is set forth in La.R.S. 23:1634(B), which provides in

pertinent part that, “the findings of the board of review as to the facts, if supported

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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.”

Based on this statutory provision, the jurisprudence has defined judicial
review in cases such as this one as requiring a determination of whether
the facts are supported by competent evidence and whether the facts, as
a matter of law, justify the action taken. Banks v. Administrator, Dept.
of Employment Security of the State of Louisiana, 393 So.2d 696
(La.1981); Marchand v. Forster, 37,222 (La.App.2d Cir.6/25/03), 850
So.2d 941. Judicial review does not permit 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. Marchand v. Forster, supra.

Lafitte v. Rutherford House, Inc., 40,395, p. 4 (La.App. 2 Cir. 12/14/05), 917 So.2d
684, 687.

We will review this matter within those parameters.

Louisiana Revised Statutes 23:1601(1)(a) provides that an employee will be

disqualified from receiving unemployment compensation benefits if it is determined

that “he has left his employment . . . without good cause attributable to a substantial

change made to the employment by the employer.” Generally, an employee’s

dissatisfaction with his working conditions does not constitute “good cause” for

leaving his employment pursuant to La.R.S. 23:1601(1)(a). Guillot v. Arbor Group,

LLC, 34,469 (La.App. 2 Cir. 3/2/01), 781 So.2d 864. However, dissatisfaction will

constitute good cause if “based on discriminatory, unfair or arbitrary treatment, or is

based upon a substantial change in wages or working conditions from those in force

at the time the claimant’s position began.” Id. at 870.

Mr. King testified that the purported change in policy was a substantial change

in his employment situation because it constituted a shift from concern for driver

safety to a concern for only delivery of the medications, leaving the driver to fend for

himself. He stated that he questioned Mr. Helo concerning the pickup policy in the

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initial employment interview, and his understanding of that policy satisfied him

because it reflected that Carmichael’s was concerned about the safety of its drivers.

The problem with Mr. King’s position is that the key factual finding of the ALJ

and the Board of Review is that there was no appreciable difference in Mr. King’s

working conditions when comparing the day of hire versus the day of termination.

Thus, the ALJ and the Board of Review accepted Mr. Helo’s assertion that the vehicle

breakdown policy had not changed and that Mr. Walker had not changed the policy,

but had simply stated the existing policy. Thus, Mr. King terminated his employment

for personal reasons rather than for good cause attributable to a substantial change

Carmichael’s had made in his employment.2 Specifically, the ALJ’s opinion stated

the following facts:

The claimant quit his employment because he was dissatisfied with the
company policy on how he was to report in should he experience a
vehicle breakdown. The claimant may have expressed dissatisfaction
with that policy, but the fact remains that his working conditions at the
time of the separation were not appreciably different from those to
which he agreed when hired. His leaving was for a personal reason and
under disqualifying circumstances; therefore [he] is not entitled to
benefits.

After reviewing the record, we find that the ALJ’s factual findings, as adopted

by the Board of Review, are supported by sufficient evidence and that the

disqualification of Mr. King from receiving unemployment compensation benefits

was justified as a matter of law as his voluntary termination was without good cause.

2
Although each employee was provided with an employee packet when hired, and a policies
and procedures manual was made available to each, the evidence is to the effect that the vehicle
breakdown policy was not addressed in either document. Thus, the only evidence of the policy and
possible changes thereto is the testimony of Mr. King and Mr. Helo.

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DISPOSITION

For the foregoing reasons, we affirm the denial of unemployment benefits to

Charles R. King in all respects. We assess all costs of this appeal to Charles R. King.

AFFIRMED.

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