Petitioner (Shawn Reeves) appeals from two orders of the trial
court that reviewed orders by respondent North Carolina Employment
Security Commission (ESC). We dismiss in part and affirm in part.
The factual and procedural history of this case is summarized
as follows: In April 2002 petitioner began working for respondentYellow Transportation Inc., a shipping and transportation company,
at its Morrisville, North Carolina shipping terminal. Petitioner's
employment as a dock worker and city driver required him to load
and unload freight, transport materials to specified destinations,
and perform various other duties under Yellow Transportation's
supervision. He was also required to record pertinent data, such
as freight location or movement, or odometer readings.
In August and September of 2002, petitioner received several
written warnings about errors or omissions in his work, including:
(1) a written warning for failure to record an odometer reading;
(2) a one day suspension for error in recording freight data; (3)
a three day suspension for failure to load material in the proper
place; and (4) a fourth warning, accompanied by a discharge letter,
for failure to load certain freight as directed. Petitioner
grieved each of these written warnings, and a meeting was conducted
as provided by the collective bargaining agreement between Yellow
Transportation and petitioner's union. The meeting resulted in an
agreement that petitioner would serve a three day suspension and
that Yellow Transportation would rescind a fifth warning alleging
that petitioner had been involved in a preventable accident.
Petitioner served the three day suspension in October 2002. On 7
February 2003 Yellow Transportation issued petitioner another
discharge letter, this time for his failure to properly transfer
bags of salt from a pallet to a storage trailer. On 17 February
2003 the company issued petitioner a third discharge letter for not
sweeping out an empty trailer as he had been instructed. Petitioner grieved both discharges, which were reviewed by a
committee that included representatives of petitioner's union and
Yellow Transportation. This committee reduced the 17 February
discharge to a warning, but sustained petitioner's 7 February 2003
discharge. Petitioner was discharged from his employment, and last
worked for Yellow Transportation on 17 March 2003.
After his discharge petitioner filed a claim with the North
Carolina ESC, effective 9 February 2003, seeking unemployment
insurance benefits (UID). Petitioner's claim for UI benefits was
denied by an ESC adjudicator, pursuant to N.C.G.S. § 96-14(2)
(2003), on the basis that he was discharged for misconduct.
Petitioner appealed the adjudicator's decision, and his claim was
heard by an ESC Appeals Referee. The Referee issued a decision
finding petitioner was discharged for substantial fault not rising
to the level of misconduct, and disqualifying petitioner from UI
benefits for a period of four weeks. Petitioner appealed to the
ESC, and in Docket 03(UI)6077 the ESC modified the decision of the
Appeals Referee by disqualifying petitioner from benefits for nine
weeks.
Petitioner also filed another claim on 23 March 2003, and
requested that it be made effective as of 16 March 2003. An
Appeals Referee found petitioner was disqualified from receiving
benefits for that week because he had not timely filed the claim.
On appeal, the ESC in Docket 03(UI)7400 upheld this decision.
Petitioner appealed both of the ESC's decisions to superior
court. On 9 June 2004 the trial court issued an order in Docket03(UI)7400, remanding the case to the Commission for entry of a new
order. Regarding Docket 03(UI)6077, the trial court ruled that
the Employment Security Commission's Findings Of Fact were based
upon competent evidence contained in the record; the Employment
Security Commission properly applied the law to those facts; and
that Decision No. 03(UI)6077 should be affirmed in its entirety.
Petitioner appealed both of the trial court's orders to this Court.
Appeal from Docket 03(UI)7400
[1] Appeal from the trial court's review of an ESC decision is
governed by N.C.G.S. § 96-15(i) (2003), which provides in relevant
part that appeal may be taken from the judgment of the superior
court, as provided in civil cases. In the instant case, we
conclude that appeal from Docket 03(UI)7400 is not authorized by
the North Carolina Rules of Civil Procedure.
An order is either interlocutory or the final determination
of the rights of the parties. N.C.G.S. § 1A-1, Rule 54(a) (2003).
The distinction between the two was addressed in Veazey v. Durham,
231 N.C. 354, [361-62], 57 S.E.2d 377, [381] (1950), wherein the
Court stated: 'A final judgment is one which disposes of the cause
as to all the parties, leaving nothing to be judicially determined
between them in the trial court. . . . An interlocutory order is
one made during the pendency of an action, which does not dispose
of the case, but leaves it for further action by the trial court in
order to settle and determine the entire controversy.' Embler v.
Embler, 143 N.C. App. 162, 164, 545 S.E.2d 259, 261 (2001). In Docket 03(UI)7400, the trial court did not rule on the
merits of petitioner's claim. Instead, the court found that the
ESC's order in Docket 03(UI)7400 did not address all of the
relevant issues raised by the record and that the findings were
incomplete and failed to set out the sequence of events regarding
the timing and notification of petitioner's discharge. The court
concluded that questions raised by the record need to be addressed
by the ESC in more specific Findings of Fact and Conclusions of
Law and remanded Docket 03(UI)7400 to the ESC for further
Findings of Fact and Conclusions of Law. The order in Docket
03(UI)7400 is clearly interlocutory; it did not address the merits
of petitioner's appeal, and it requires further action by the ESC.
In general, there is no right to immediate appeal from an
interlocutory order. Flitt v. Flitt, 149 N.C. App. 475, 477, 561
S.E.2d 511, 513 (2002) (citing N.C.G.S. § 1A-1, Rule 54(b)
[(2003)]). However, N.C.G.S. § 7A-27(d) (2003) permits immediate
appeal from an interlocutory order that:
(1) Affects a substantial right, or
(2) In effect determines the action and
prevents a judgment from which appeal might be
taken, or
(3) Discontinues the action, or
(4) Grants or refuses a new trial[.]
N.C.G.S. § 1-277(a) (2003) also states, in pertinent part, that
appeal may be taken from every judicial order or determination of
a judge of a superior or district court . . . which affects a
substantial right[.]
In the case sub judice, we conclude the order in Docket
03(UI)7400 neither affects a substantial right, nor meets any othercriteria for immediate appeal, and thus should be dismissed as
interlocutory. See, e.g., State ex rel. Employment Sec. Comm. v.
IATSE Local 574, 114 N.C. App. 662, 663-64, 442 S.E.2d 339, 340
(1994) (dismissing as interlocutory an appeal from superior court
order which remanded ESC order to ESC Commission) (citing
Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 299
S.E.2d 777 (1983)). We also note that Facet Enterprises v.
Deloatch, 83 N.C. App. 495, 350 S.E.2d 906 (1986), cited by
petitioner, is a straightforward appeal from a final judgment, and
does not involve remand by the trial court. Petitioner's appeal
from Docket 03(UI)7400 is dismissed as interlocutory.
Appeal from Docket 03(UI)6077 _ Standard of Review
N.C.G.S. § 96-15 (2003) sets out the standard procedure for
claims for UI benefits, appeals within ESC-agency, and appeals from
the ESC-agency final decision to Superior Court. Employment
Security Commission v. Peace, 341 N.C. 716, 718, 462 S.E.2d 222,
223 (1995). The statute provides that[:]
(1) a decision will be made by an adjudicator,
N.C.G.S. § 96-15(b)(2) [(2003)]; (2) the
adjudicator's decision may be appealed to an
appeals referee, N.C.G.S. § 96-15(c); (3) on
ESC-agency's own motion, the Commission or a
Deputy Commissioner may affirm, modify, or set
aside the decision of the appeals referee,
N.C.G.S. § 96-15(e); and (4) an appeal to the
Superior Court is available after exhaustion
of the remedies set out above, N.C.G.S. §
96-15(h).
Peace, 341 N.C. at 718, 462 S.E.2d at 223.
Under N.C.G.S. § 96-15(h), a claimant's petition for superior
court review of an ESC decision shall explicitly state whatexceptions are taken to the decision or procedure of the Commission
and what relief the petitioner seeks. Superior Court jurisdiction
is limited to exceptions and issues set out in the petition. See
Graves v. Culp, Inc., 166 N.C. App. 748, 751, 603 S.E.2d 829, 831
(2004) (because claimant made no exceptions to the ESC's findings
in his petition for review nor did he allege any fraud or
procedural irregularity he did not preserve those issues for
review by the superior court and the court lacked jurisdiction to
address them).
In reviewing a decision by the ESC, [t]he same standard of
review applies in the superior court and in the appellate division:
'the findings [of fact] of the Commission, if there is any
competent evidence to support them . . . shall be conclusive[.]' .
. . Accordingly, this Court, like the superior court, will only
review a decision by the [ESC] to determine 'whether the facts
found by the Commission are supported by competent evidence and, if
so, whether the findings support the conclusions of law.' Davis
v. Britax Child Safety, Inc., 163 N.C. App. 277, 281, 593 S.E.2d
97, 101 (2004) (quoting In re Enoch, 36 N.C. App. 255, 256, 243
S.E.2d 388, 389 (1978), and RECO Transportation, Inc. v. Employment
Security Comm., 81 N.C. App. 415, 418, 344 S.E.2d 294, 296 (1986)).
Moreover:
Even when the findings are not supported by
the evidence, however, 'where there is no
exception taken to such findings, they are
presumed to be supported by the evidence and
are binding on appeal.' In the present case,
the findings of fact were not challenged and,
hence, are conclusive; the sole question on
appeal therefore is whether the findings offact support the Commission's conclusion that
the claimant was disqualified for unemployment
compensation.
In re Hagan v. Peden Steel Co., 57 N.C. App. 363, 364, 291 S.E.2d
308, 309 (1982) (quoting Beaver v. Paint Co., 240 N.C. 328, 330, 82
S.E.2d 113, 114 (1954)). See also, e.g., Fair v. St. Joseph's
Hosp., 113 N.C. App. 159, 161, 437 S.E.2d 875, 876 (1993) (even if
the findings of fact are not supported by the evidence, they are
presumed to be correct if the petitioner fails to except) (citing
Hagan, 57 N.C. App. at 364, 291 S.E.2d at 309).
_____________________
Petitioner argues that the trial court erred by upholding the
ESC's conclusions that (1) he was discharged for substantial fault,
and that (2) reduction of the statutory period of disqualification
was not justified by mitigating factors. We disagree.
[2] We first consider petitioner's argument that the
Commission erred by concluding that he had been discharged for
substantial fault not amounting to misconduct. In this regard,
N.C.G.S. § 96-14(2a) (2003) provides that:
Substantial fault is defined to include those
acts or omissions of employees over which they
exercised reasonable control and which violate
reasonable requirements of the job, . . . but
shall not include (1) minor infractions of
rules unless such infractions are repeated
after a warning was received by the employee,
(2) inadvertent mistakes made by the employee,
nor (3) failures to perform work because of
insufficient skill, ability, or equipment.
(emphasis added).
The essence of G.S. § 96-14(2[a]) is that if an employer
establishes a reasonable job policy to which an employee canconform, her failure to do so constitutes substantial fault. . . .
An employee has 'reasonable control' when she has the physical and
mental ability to conform her conduct to her employer's job
requirements. . . . Reasonable control coupled with failure to live
up to a reasonable employment policy equals substantial fault.
Lindsey v. Qualex, Inc., 103 N.C. App. 585, 590, 406 S.E.2d 609,
612 (1991) (citation omitted).
In the instant case, petitioner failed to except to any of the
ESC's findings of fact in his petition for review in Superior
Court. Accordingly, the Commission's findings are conclusively
presumed to be correct on appeal. These findings include, in
relevant part, the following:
. . . .
2. The claimant began working for the employer on
or about April 23, 2002. He last worked for
the employer on March 18, as a dock
worker/local driver.
3. The claimant was discharged for repeated
problems and carelessness in the performance
of his loading dock and driving duties.
4. The claimant failed to complete his trip sheet
paperwork that he was required to complete.
5. On August 8, 2002, the claimant failed to
properly fill out freight paperwork, including
marking a freight bill that was short on
freight while the claimant was present on the
loading dock.
6. On September 8, 2002, the claimant mistakenly
loaded a trailer. More specifically, the
claimant failed to correctly load the freight
into the correct trailer. The claimant's
mistake was due to a lack of attention. The
claimant was warned and suspended three days
as a result of his mistake.
7. On the same day, the claimant mistakenly
recorded freight as having come in on a
trailer.
8. On February 5, 2003, the claimant failed to
place a pallet of salt bags in a storage
trailer as directed; and on February 18, 2003,
the claimant failed to sweep out a trailer as
directed. The employer proposed the
claimant's discharge under the governing
collective bargaining agreement with the
claimant's union. The claimant's proposed
discharge was submitted to a joint employer-
union grievance committee.
9. The joint committee ruled that the failure to
sweep out the trailer did not warrant
discharge, but did warrant a disciplinary
warning letter. However, the committee also
upheld the discharge based on the February 5,
2003 failure to place a pallet of salt bags in
a proper storage trailer. The employer
followed the required and approved
disciplinary and discharge process. The
claimant repeatedly failed to perform his job
duties as required and was discharged on March
17, 2003.
On the basis of its findings of fact, the Commission concluded as
a matter of law that petitioner had been dismissed for substantial
fault, noting that the claimant's own testimony and documents
amounted to admissions of the claimant's failure to comply with the
reasonable requirements of his job.
We conclude that the Commission's findings of fact support its
conclusion of law that petitioner was discharged for substantial
fault. We also conclude that Yellow Transportation's requirements
that petitioner, e.g., load and unload materials as directed, and
keep proper records, were reasonable and were under petitioner's
control. Accordingly, we conclude that the Commission did not err
by concluding that petitioner was discharged for substantial fault,and that the trial court did not err by upholding the Commission's
ruling. This assignment of error is overruled.
[3] We next consider petitioner's argument that the trial
court erred by upholding the Commission's decision not to shorten
the period of petitioner's disqualification from UI benefits.
N.C.G.S. § 96-14(2a) (2003), provides in pertinent part that
a claimant shall be disqualified for benefits:
(2a) For a period of not less than four nor
more than 13 weeks . . . if it is determined
by the Commission that such individual . . .
was discharged for substantial fault on his
part connected with his work . . . Upon a
finding of discharge under this subsection,
the individual shall be disqualified for a
period of nine weeks unless, based on findings
by the Commission of aggravating or mitigating
circumstances, the period of disqualification
is lengthened or shortened within the limits
set out above.
In the present case, the Commission concluded that claimant's
repeated failures do not justify mitigating the offense of
substantial fault. This conclusion is supported by the
Commission's findings of fact, and does not constitute error on the
part of the Commission. Moreover, petitioner did not raise this
issue by his petition, and thus did not preserve it for appellate
review. We conclude that the Commission did not err by declining
to reduce the period of petitioner's disqualification from UI
benefits.
We have considered petitioner's remaining arguments, and find
them to be without merit. Accordingly, the trial court's ruling in
Docket 03(UI)6077 is affirmed.
Affirmed in part, dismissed in part. Judges HUNTER and McCULLOUGH concur.