Biddix v Employment Security Comm., (05-1384) 06/20/2006

Appeal by petitioner from order entered 3 August 2005 by Judge Beverly T. Beal in Burke County Superior Court. Heard in the Court of Appeals 10 May 2006.

    Legal Aid of North Carolina, Inc., by Andrew Cogdell, for petitioner-appellant.

    Employment Security Commission of North Carolina, by Fred R. Gamin, for respondent-appellee.

    No brief filed for respondent-appellee U.S. Department of Homeland Security.

    CALABRIA, Judge.

    Karen G. Biddix (“petitioner”) appeals from an order of the trial court, affirming a decision of the Employment Security Commission (“the Commission”) that upheld an Appeals Referee's decision denying petitioner unemployment insurance benefits. We affirm.    In July 2002, the United States Department of Homeland Security (“Homeland Security”) hired petitioner as a federal screener. Petitioner resides in Morganton, North Carolina, and Homeland Security initially hired her to serve as a screener at the airport in Hickory, North Carolina. Before petitioner began her employment, the airlines discontinued commercial service to the Hickory airport. Consequently, Homeland Security offered petitioner reassignment to the Charlotte-Douglas International Airport in Charlotte, North Carolina, which is approximately seventy (70) miles from petitioner's home. Petitioner accepted the reassignment and began employment in November 2002.
    Petitioner subsequently resigned her employment effective 6 November 2003, and she filed a claim with the Commission for unemployment benefits effective 9 November 2003. Petitioner's claim was denied by an Adjudicator, and petitioner timely appealed the Adjudicator's denial of benefits to an Appeals Referee pursuant to N.C. Gen. Stat. § 96-15(c) (2005). The Appeals Referee made, inter alia, the following pertinent findings of fact:
        3. Claimant left this job because she found her job stressful, as she was generally unhappy with . . . the agency, with the work environment and her working conditions. 4. At her time of hire, claimant was not assigned the level of seniority she expected. Initially, she was given a position in the baggage area. However, when she complained about the dust, odors and lifting associated with the work in that area, the employer reassigned her to a different area. Claimant experienced problems with her feet and legs from excessive standing. Further, she has a long history of depression and had difficulty coping with passengers' displeasure with delays created by searches. She found her co-workers and the passengers generally to be “hateful.” Claimant considered her supervisors to be incompetent. She admits to being generally dissatisfied with her job and with the agency itself. The employer was willing to transfer claimant to another position, but nothing was available at the time she quit. 5. Claimant herself had selected the Charlotte job location. However, over time, she disliked having to get up so early and arrive home so late, and disliked the commuting distance. In March, she married a man with an 8-month-old son. Her life generally became too stressful and she decided to quit. Claimant resigned effective November 6, 2003, indicating that, among other things, the distance was too far to drive and she had health considerations.

Based on these findings, the Appeals Referee concluded:
        Claimant found it difficult and stressful to be married and to have a young stepchild. She acknowledges that neither health nor distance were the primary reasons underlying her decision to quit, and her testimony establishes that she was generally unhappy with her supervisors, co-workers, customers, the work itself, and virtually all of her working conditions. Conditions of employment are seldom, if ever, ideal. Merely because the claimant found the conditions of employment to be difficult or disagreeable does not establish that claimant had no reasonable alternative other than to quit the job. The employer was working with claimant to attempt to address her numerous complaints. In this case, the record evidence and facts found therefrom do not support a conclusion that the claimant has met the burden of showing good cause attributable to the employer for leaving.

    The Appeals Referee denied petitioner unemployment benefits, and petitioner appealed to the Commission pursuant to N.C. Gen. Stat. § 96-15(e) (2005). On 9 February 2005, the Commissiondetermined that the Appeals Referee's facts were based on competent evidence, adopted the facts as its own, and concluded,
        the competent evidence does not support a legal conclusion that a disability incurred or other health conditions were the claimant's 'solely due' basis for her leaving work as term 'solely due' is used in connection with G.S. § 96-14(1)(a). Therefore, the competent evidence does not support a legal conclusion that the claimant left in satisfaction of the terms and conditions of G.S. § 96-14(1)(a).

The Commission affirmed the decision of the Appeals Referee and determined that petitioner was disqualified for unemployment insurance benefits.
    Petitioner subsequently appealed to the Burke County Superior Court pursuant to N.C. Gen. Stat. §§ 96-15(h) and (i) (2005). The superior court affirmed the order of the Commission, determining the Commission's findings of fact were based on proper evidence and the Commission properly applied the law to the facts. From the order of the superior court, petitioner appeals.
    On appeal, petitioner initially argues, the superior court “erred by finding that the Commission properly applied the law to the competent evidence of record and findings of fact where it failed to apply the 'health quit' exception contained in N.C. Gen. Stat. § 96-14(1).” In the related assignments of error petitioner challenges the superior court's ruling that findings of fact 3, 4, and 5, stated supra, were based upon competent evidence. Additionally, petitioner's assignments of error challenge the superior court's determination that the Commission properly concluded that petitioner did not leave her employment solely forhealth-related reasons.     Our standard of review is as follows: “the findings of fact by the Commission, if there is any competent evidence to support them and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” N.C. Gen. Stat. § 96-15(i) (2005); In re Enoch, 36 N.C. App. 255, 243 S.E.2d 388 (1978).
    In her brief, petitioner makes no argument challenging findings of fact 3, 4, and 5; to the contrary, she states, “[t]he Appeal[s] Referee's Findings of Fact were correct.” Accordingly, because petitioner has failed to argue the related assignment of error, it is abandoned pursuant to N.C. R. App. P. 28(b)(6) (2006). Additionally, since petitioner has failed to properly challenge any findings of fact, the findings are binding on appeal. Hagan v. Peden Steel Co. & Employment Security Commission of North Carolina, 57 N.C. App. 363, 364, 291 S.E.2d 308, 309 (1982). Thus, we need only consider whether the Commission made appropriate conclusions of law based on the findings. Enoch, supra.
    North Carolina General Statutes § 96-14 (1) (2005) states,
        An individual shall be disqualified for benefits: (1) For the duration of his unemployment beginning with the first day of the first week after the disqualifying act occurs with respect to which week an individual files a claim for benefits if it is determined by the Commission that such individual is, at the time such claim is filed, unemployed because he left work without good cause attributable to the employer.

(Emphasis added). There is, however, a statutory exception to the general rule that a claimant who leaves work without good causeattributable to the employer is disqualified for unemployment insurance benefits. This exception provides:
        Where an individual leaves work due solely to a disability incurred or other health condition, whether or not related to the work, he shall not be disqualified for benefits if the individual shows: a. That, at the time of the leaving, an adequate disability or health condition of the employee, of a minor child who is in the legally recognized custody of the individual, of an aged or disabled parent of the individual, or of a disabled member of the individual's immediate family, either medically diagnosed or otherwise shown by competent evidence, existed to justify the leaving and prevented the employee from doing other alternative work offered by the employer which pays the minimum wage or eighty-five percent (85%) of the individual's regular wage, whichever is greater; and b. That, at a reasonable time prior to leaving, the individual gave the employer notice of the disability or health condition.

N.C. Gen. Stat. § 96-14 (1) (2005). The Commission's findings of fact establish that petitioner left her employment not only for health reasons but also because she was unhappy with the agency, her work environment, working conditions, and the distance to the Charlotte airport. The findings, therefore, support the Commission's conclusion that petitioner is not entitled to benefits because she did not show good cause attributable to the employer and did not leave her employment solely for health-related reasons. Accordingly, the superior court properly affirmed the order of the Commission, and we reject the related assignments of error.
    Petitioner's second argument on appeal states, “the trial court erred in affirming the Commission's denial of Ms. Biddix's unemployment insurance claim where she left work due to her healthcondition and satisfied the requirements of N.C. Gen. Stat. § 96- 14(1).” Because we have held that the superior court did not err in concluding the Commission properly determined that the aforementioned exception did not apply, we hold that petitioner's second argument on appeal is without merit.
    For the foregoing reasons, we affirm the order of the Superior Court.
    Affirmed.
    Judges HUNTER and BRYANT concur.
    Report per Rule 30(e).

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