Appeal by petitioner from judgment entered 27 August 2004 by
Judge Evelyn W. Hill in Alamance County Superior Court. Heard in
the Court of Appeals 11 May 2005.
Smith, James, Rowlett & Cohen, L.L.P., by Norman B. Smith, for
petitioner-appellant.
Regina S. Adams for respondent-appellee.
HUNTER, Judge.
William M. Wilder (“petitioner”) appeals from an order of the
superior court affirming a denial entered 27 April 2004 by the
Employment Security Commission of North Carolina (“ESC”) of Trade
Adjustment Assistance (“TAA”) benefits. As the findings of factsupport the conclusion that petitioner's requested training was not
suitable, we affirm the superior court's order.
Petitioner was employed by Lucent Technology for approximately
twenty years in the telecommunications industry. Petitioner had a
degree in electrical engineering from the United States Naval
Academy and a master's degree in computer science from California
Polytechnical State University. Petitioner was laid off while
employed by Lucent at their Research Triangle Park location, due to
that facility's closure. Petitioner was re-employed by Lucent in
Massachusetts for approximately one year, but was again laid off.
Petitioner returned to Greensboro and applied for TAA benefits
as an adversely affected worker under the Trade Act of 1974.
Petitioner sought retraining in the form of a second master's
degree in mathematics from the University of North Carolina at
Greensboro. The ESC Appeals Referee found that “suitable
employment [was] available to the claimant” and that “a second
masters degree was not considered to be suitable for the intent of
this program.” Petitioner's request was denied.
Petitioner appealed the decision to the full ESC, which
entered a final decision affirming the Referee's order. Petitioner
then appealed to the superior court. The superior court, after
review of the record, found that the order's findings of fact were
based upon competent evidence and that the findings properly
supported the conclusions of law. The superior court affirmed the
decision in its entirety and petitioner appeals from that judgment.
I.
[1] Petitioner first contends the ESC erred in disregarding
the federal statutory and regulatory requirement that suitable
employment must be for a minimum of eighty percent (80%) of former
wages. We agree.
We first address the appropriate standard for review of a
decision by the ESC. “The standard of review for a decision by the
Employment Security Commission is whether (1) the evidence before
the Commission supports its findings of fact and (2) the facts
found by the Commission sustain its conclusions of law.”
Williams
v. Davie County, 120 N.C. App. 160, 164, 461 S.E.2d 25, 28 (1995).
19 U.S.C. § 2296 (2004) provides for training of workers in
industries that have been adversely affected by import competition.
Id. Regulations governing the program state that the administering
State agency “shall” approve training for an adversely affected
worker when six criteria are established. Approval of Training, 20
C.F.R. § 617.22 (2004). The first criterion is a finding that
“there is no suitable employment (which may include technical and
professional employment) available for an adversely affected
worker[.]” 19 U.S.C. § 2296 (a)(1)(A). The corresponding
regulation states that a determination of suitable employment means
“work of a substantially equal or higher skill level than the
worker's past adversely affected employment, and wages for such
work at not less than 80 percent of the worker's average weekly
wage” which is available “either in the commuting area . . . or
outside the commuting area in an area in which the worker desiresto relocate with the assistance of a relocation allowance[.]” 20
C.F.R. § 617.22 (a)(1)(i).
Here, the ESC found that petitioner was referred to two
potential jobs in electrical engineering paying between $45,000.00
and $50,000.00 per year, and one computer programming job paying in
excess of $50,000.00 per year. The ESC also found that petitioner
had earned between $80,000.00 and $100,000.00 in his final year of
employment at Lucent. The ESC concluded that suitable employment
was available to petitioner. However, the findings regarding
available jobs made by the ESC do not provide salaries equaling
eighty percent (80%) of petitioner's average weekly wage at his
prior job, as the ESC concedes in its argument to this Court. As
20 C.F.R. § 617.22(a)(1)(i) specifically defines suitable
employment as “work of substantially equal or higher skill level
. . . [paying] wages . . . not less than 80 percent of the worker's
average weekly wage[,]” the ESC's findings do not supports its
conclusion of law that suitable employment was available to
petitioner.
As we find the ESC erred in its conclusion of law that
suitable employment existed, we do not address petitioner's second
assignment of error that the ESC erred in its findings as to why
petitioner failed to pursue the available suitable employment. As
petitioner must establish all six of the required criteria for an
award of benefits, however,
see 20 C.F.R. § 617.22, we now address
petitioner's challenge of the ESC's conclusion as to the sixth
criteria.
II.
[2] Petitioner next contends the ESC erred in finding that a
second master's degree was not suitable for the intent of the
program. We disagree.
19 U.S.C. § 2296 (a)(1)(F) states as its final criterion for
approval of training for an adversely affected worker that “such
training is suitable for the worker and available at a reasonable
cost[.]”
Id. 20 C.F.R. § 617.22(a)(6) provides additional
guidelines for these requirements. 20 C.F.R. § 617.22(a)(6)(i)
states that training is suitable for a worker when “appropriate
. . . given the worker's capabilities, background and experience.”
Id.
Our Courts have not previously addressed this statute and
accompanying regulations and we look to jurisprudence from our
sister states for guidance. In
Marshall v. Com'r of Jobs &
Training, 496 N.W.2d 841, 843 (1993), the Minnesota Court of
Appeals considered the issue of suitability of training for workers
who already possessed advanced degrees.
Marshall stated:
This statute was designed to give workers
whose job functions have virtually disappeared
because of foreign competition an opportunity
to become proficient in a new trade. Although
professional training is allowed under the
statute . . . the statute is not meant to
allow a person with a professional degree who
has reasonable job prospects or options the
opportunity to acquire a second professional
degree simply to enhance employability. Thus,
the applicant wanting to enhance an already
existing professional degree bears a heavy
burden to demonstrate that such training is
reasonable and necessary.
Id. Further, we note the United States Department of Labor has
addressed the issue of suitability and reasonable cost of training,
stating:
The 1988 Amendments clearly provide that State
administering agencies shall approve training
for individual workers at the lowest
reasonable cost which will lead to employment
and will result in training opportunities for
the largest number of adversely affected
workers. This means that State administering
agencies should avoid approving training for
occupations that require an extraordinarily
high skill level relative to the worker's
current skills level and for which total costs
of training, including transportation and
subsistence, are excessively high.
Trade Adjustment Assistance for Workers; Amendment of Regulations,
59 Fed. Reg. 906, 924 (Jan. 6, 1994) (to be codified at 20 C.F.R.
pt. 617). We note that our Supreme Court has recognized that
“'[i]t is well established “that an agency's construction of its
own regulations is entitled to substantial deference.”'”
Morrell
v. Flaherty, 338 N.C. 230, 237, 449 S.E.2d 175, 179-80 (1994)
(citations omitted).
After careful review of the governing statute and regulations,
we agree that, in light of the goal of providing training
opportunities for the largest number of adversely affected workers
at the lowest reasonable cost, an individual who already possesses
a marketable professional degree bears a heavy burden to establish
that an additional professional degree is suitable. We therefore
conclude that the ESC may, after application of the governing
criteria, determine that a second professional degree is not
suitable training for an individual. Here, the ESC found that petitioner had a bachelor of science
degree in electrical engineering from the United States Naval
Academy and a master's degree in computer science from California
Polytechnical State University, which the ESC characterized as a
“marketable master[']s degree.” Further, the ESC found that
petitioner had twenty-one years of experience in the
telecommunications field. Based on these findings, the ESC
concluded that a second master's degree in mathematics for
petitioner was not suitable for the intent of the program.
As the ESC made sufficient findings that petitioner had both
a marketable advanced degree and significant industry experience,
we find the ESC did not err in concluding a second master's degree
in mathematics was not suitable given the worker's capabilities,
background, and experience. As approval of TAA training benefits
under 19 U.S.C. § 2296 requires a finding of suitability of
training, we hold the superior court properly affirmed the ESC's
denial of petitioner's application for benefits.
Affirmed.
Judges HUDSON and GEER concur.
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