IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
GTO, INC.,
NOT FINAL UNTIL TIME EXPIRES TO FILE
Appellant, MOTION FOR REHEARING AND DISPOSITION
THEREOF IF FILED
v.
FLORIDA UNEMPLOYMENT APPEALS CASE NO. 1D00-2900
COMMISSION and
GUILLERMINA E. MEDINA,
Appellees.
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Opinion filed May 1, 2001.
An appeal of a final order from the Unemployment Appeals
Commission.
John C. Cooper and Holly A. Dincman, Cooper, Coppins & Monroe,
Tallahassee, for Appellant.
John D. Maher, Unemployment Appeals Commission, for Appellees.
POLSTON, J.
Appellee Florida Unemployment Appeals Commission denied
the unemployment benefits claim filed by appellant GTO, Inc.'s
terminated employee, claimant-appellee Guillermina E. Medina. On
appeal, the parties appeared telephonically at a hearing without
counsel. After the hearing, the appeals referee reversed the
Commission's initial determination and awarded benefits to the
claimant. The Commission affirmed the referee's decision and GTO
appealed. We reverse and remand for a new hearing because of an
improper evidentiary ruling by the appeals referee.
The claimant worked for GTO, Inc. from March 1997 through March
8, 2000, as a sales assistant. Her duties were clerical in nature
and included responding to customer e-mails, assisting sales
managers, and preparing direct mailings.
Mr. Joseph Kelly, GTO's president, testified at the telephonic
hearing that the claimant was discharged for misconduct. The
claimant's alleged misconduct included: (1) refusing to follow a
supervisor's instructions, (2) refusing to write sales orders
because they were not fairly distributed, (3) referring to a
supervisor's instructions in a derogatory manner, (4) making
excessive personal phone calls (local and long distance calls
charged to the company), (5) working on her personal resume during
work hours, (6) being belligerent to a supervisor, (7) abruptly
entering a supervisor's office, throwing documents in her in-box,
and quickly leaving while ignoring the supervisor's questions, (8)
using a racial slur, and (9) sending over 50 incorrect e-mails to
clients.
However, the appeals referee excluded Mr. Kelly's testimony,
concluding as a matter of law that:
The record shows the claimant was discharged because the
president believed the claimant was insubordinate, made
personal long distance telephone calls and due to poor
work performance. The exact reason for the discharge is
unknown as the sole employer witness, the president, was
not a witness to the events that led to the claimant's
discharge[]. Thus, his testimony is considered hearsay.
Hearsay evidence may be used for the purpose of
supplementing or explaining other evidence, but is not
sufficient in itself to support a finding of fact unless
it would be admissible over objection in civil actions.
Section 120.58. Florida Statutes: Florida Administrative
Code Rule 38E-5.024(3)(d).
(Emphasis added). Because the president's testimony was excluded as
hearsay, the referee ruled against GTO.
We have reviewed the record and find that Mr. Kelly testified
that he personally met with the claimant, and the claimant admitted
her personal use of the telephone with long distance calls charged
to the company. Mr. Kelly also testified that, at this same
meeting, he gave the claimant an example of an e-mail response the
claimant had written to a customer the day before, where she clearly
did not answer the customer's concerns. This testimony of the
claimant's admissions was excluded in error. As properly admitted
evidence, this testimony may have been supplemented by other
evidence excluded by the referee as hearsay, pursuant to section
120.57(1)(c), Florida Statutes (2000).
We find that the record also reflects other admissions by the
claimant that were either excluded in error by the referee, or that
should have been considered as admissible evidence that may have
been supplemented by other evidence excluded by the referee as
hearsay, pursuant to section 120.57(1)(c), Florida Statutes (2000).
(See e.g., employee evaluation signed by the claimant on April 1,
1998, document 10, indicating problems with absences and personal
phone calls; because this evidence was properly admitted, it could
have been supplemented by excluded testimony).
Although the appeals referee may have further erred by
excluding evidence that may have been properly admitted pursuant to
Fla. Admin. Code R. 38E-5.024(3)(d)(evidence of a type commonly
relied upon by reasonable persons in the conduct of their affairs
shall be admissible), the business record hearsay exception, or as
a summary, we need not decide that because we remand for a new
hearing. See §§ 90.803(6), 90.956, Fla. Stat. (2000); Department of
General Services v. English, 509 So. 2d 1198 (Fla. 1st DCA
1987)(employer's evidence of discharge was admissible and should
have been considered by referee in determining whether employee was
eligible for unemployment compensation after discharge).
The order of the Commission is reversed with directions that
the cause be remanded to the appeals referee for the hearing to be
conducted again. New evidence may be considered at the rehearing.
Ed Ricke & Sons, Inc. v. Green, 609 So. 2d 504, 507 (Fla. 1992)("An
order directing a new trial has the effect of vacating the
proceeding and leaving the case as though no trial had been had,"
quoting Atlantic Coastline R.R. v. Boone, 85 So. 2d 834 (Fla. 1956);
"newly discovered evidence or alternative claims or defenses,
whether presented by plaintiff or defendant, should be allowed to be
presented in any subsequent trial of a cause").
REVERSED and REMANDED.
BARFIELD, C.J., and WOLF, J., concur.
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