An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-1278

NORTH CAROLINA COURT OF APPEALS

Filed: 16 August 2005

GATSIE CUMMINGS,
    Petitioner-Appellant,

v .                         Mecklenburg County
                            No. 04-CVS-7351
CARRIAGE CLUB OF CHARLOTTE

and

EMPLOYMENT SECURITY COMMISSION
OF NORTH CAROLINA,
    Respondents-Appellees.

    Appeal by petitioner from judgment entered 22 June 2004 by Judge James W. Morgan in Superior Court, Mecklenburg County. Heard in the Court of Appeals 11 May 2005.

    Legal Services of Southern Piedmont, Inc., by Kenneth L. Schorr; and Legal Aid of North Carolina, Inc., by Linda S. Johnson, for petitioner-appellant.

    C. Coleman Billingsley, Jr. and R. Glen Peterson for respondent-appellee Employment Security Commission.

    McGEE, Judge.

    Gatsie Cummings (petitioner) worked as a certified nurse's assistant at Carriage Club of Charlotte (Carriage Club) from September 2001 until 5 December 2003. Petitioner filed a claim for unemployment insurance benefits with the North Carolina Employment Security Commission (ESC). An adjudicator for the ESC determined on 7 January 2004 that petitioner was disqualified from receiving benefits under N.C. Gen. Stat. § 96-14 because petitioner "was discharged for misconduct connected with the work." Petitionerappealed and a hearing was held by an ESC appeals referee on 29 January 2004. Evidence presented at the hearing tended to show that prior to 1 December 2003, petitioner's supervisor, Jackie Sanders (Sanders), placed a note on petitioner's sign-in sheet asking petitioner to meet with Sanders and the Director of Nursing, Kay Hodge (Hodge), regarding an ongoing investigation involving one of the Carriage Club residents. This investigatory meeting was originally scheduled for 2 December 2003, but petitioner notified Hodge on 2 December 2003 that she could not attend the investigatory meeting that day, and the investigatory meeting was rescheduled for 5 December 2003, when petitioner was to pick up her paycheck.
    Petitioner testified that Sanders called her on 5 December 2003 to see what time petitioner would be coming to speak with Sanders and Hodge. Petitioner responded that it would be "around 2:30-3:00" p.m. Sanders reiterated the importance of the investigatory meeting, but also told petitioner that Sanders and Hodge might be in a staff meeting at the time that petitioner would arrive. Petitioner asked how long the staff meeting was "going to take," and said that if the staff meeting took "too long, [petitioner was] going to leave because [she had] things [she] needed to do."
    Petitioner further testified that she arrived at Carriage Club and was talking with fellow employees when Hodge arrived to begin a staff meeting. Petitioner asked Hodge how long the staff meeting was going to take, and Hodge told her that it would take as long asHodge needed it to take. Hodge commenced the staff meeting. Petitioner quickly realized that the content of the staff meeting was the same information that she had recently received at a third shift staff meeting, so petitioner left the staff meeting. Petitioner waited in the building to have the investigatory meeting with Sanders and Hodge when they were finished with the staff meeting. Petitioner testified that after the staff meeting, Hodge told petitioner that petitioner should have stayed for the staff meeting.
    Hodge testified that Sanders had spoken to petitioner on 5 December 2003 and that petitioner had said she would come in to talk with Hodge and Sanders around 3:00 p.m. Hodge further testified:
        [Sanders] told [petitioner] that we were having a staff meeting at that time, that [petitioner might] as well sit in that [staff] meeting because [Hodge] wouldn't be able to talk to [petitioner] until after the [staff] meeting anyway. And so, we started the [staff] meeting and - and [petitioner] said how long is this going to take? And [Hodge] said, I don't - I don't know as long as I need it to take. And . . . [petitioner] said well, I can't stay and [Hodge] said well, remember we talked to you - we needed to talk to you. It was mandatory that we talk to you today. So there wasn't anything else said and I continued the meeting and then I looked up and [petitioner] had walked out.

Evidence presented at the hearing further showed that following the staff meeting, petitioner met with Sanders and Hodge. At this meeting, petitioner was discharged for walking out of the staff meeting.
    The ESC appeals referee found that "[t]he [petitioner] wasdischarged from this job for having left a staff meeting that she had been instructed to attend" and concluded that "[petitioner] was discharged for events within her control. As such, the [petitioner] was discharged for substantial fault on her part connected with work" and was "disqualified for unemployment benefits for a period of nine weeks[.]"
    Petitioner appealed to the ESC on 11 February 2004, and the ESC issued its final opinion on 26 March 2004. Based on the record, the ESC made the following findings of fact:
        6.    The [investigatory] meeting was rescheduled and [petitioner] was required to meet with the employer on or about December 5, 2003 at approximately 3:00 p.m. When [petitioner] reported to work for the [investigatory] meeting, Hodge was beginning to conduct a staff meeting. [Petitioner] was informed by [Sanders] that [petitioner] needed to attend the staff meeting because Hodge would want to meet with [petitioner] after the staff meeting.

        7.    Prior to the [staff] meeting, [petitioner] questioned Hodge as to "how long the [staff] meeting was going to take." Hodge informed [petitioner] that the [staff] meeting would last as "long as [Hodge] needed it to take." [Petitioner] informed Hodge that [petitioner] could not stay for the [staff] meeting. Hodge reminded [petitioner] that it was mandatory for [petitioner] to meet with [Hodge] regarding the employer's investigation.

        8.    [Petitioner] walked out of the [staff] meeting because she had attended a previous staff meeting which discussed the same topics that Hodge was discussing at the [staff] meeting. [Petitioner] waited at the [work site] to talk to Hodge about the investigation. [Petitioner] was subsequently discharged due to her actions of walking out of the staff meeting despite [Sanders's] instructions to attend the [staff] meeting.
The ESC found that petitioner was "discharged due to her actions of walking out of a staff meeting despite the supervisor's instructions to attend the [staff] meeting," that this action constituted misconduct, and that petitioner was disqualified for any benefits under N.C. Gen. Stat. § 96-14(2).
    Petitioner filed a petition on 21 April 2004 for judicial review of the ESC's final decision. (R. p. 9-10). The trial court affirmed the ESC's decision on 22 June 2004. Petitioner appeals.
    Petitioner first argues that competent evidence does not support the ESC's findings of fact that petitioner had been instructed to attend the 5 December 2003 staff meeting. Our review of an ESC decision is limited to determining "'whether the facts found by the [ESC] are supported by competent evidence and, if so, whether the findings support the conclusions of law.'" Reeves v. Yellow Transp., Inc., ___ N.C. App. ___, ___, 613 S.E.2d 350, 354 (2005) (quoting Davis v. Britax Child Safety, Inc., 163 N.C. App. 277, 281, 593 S.E.2d 97, 101 (2004)); see also N.C. Gen. Stat. § 96-15(i) (2003). Petitioner specifically argues that the ESC's finding of fact number six that petitioner "was informed by [Sanders] that she needed to attend the staff meeting because Hodge would meet with [petitioner] after the staff meeting[,]" was not supported by competent evidence. Petitioner similarly argues that the ESC's finding of fact number eight that petitioner was discharged "due to [petitioner's] actions of walking out of the staff meeting despite [Sanders's] instructions to attend the [staff] meeting" was not supported by competent evidence. Petitioner argues that these findings of fact are only supported by inadmissible hearsay evidence, which is not competent evidence under the ESC's regulations. We agree.
    The ESC's regulation on appeals procedures provides that although "[h]earsay evidence is generally admissible[,]"
        [h]earsay evidence will be accepted as competent evidence only if it falls within the statutory or common law exceptions to the hearsay rules, or has equivalent circumstantial guarantees of trustworthiness and is more probative on the point for which it is offered than any other evidence which the proponent could reasonably be expected to procure under the circumstances of the case.

ESC Regulation No. 14.18(J)(1) (2005). Furthermore, "[t]he hearsay proponent carries the burden of making a prima facie showing of competence before the evidence can be used to support a finding of fact." ESC Regulation No. 14.18(J)(2) (2005).
    In the present case, the only evidence presented to support the challenged portions of the ESC's findings of fact numbers six and eight was Hodge's hearsay testimony to the appeals referee as to what Sanders told petitioner. Hodge testified that petitioner had told Sanders that petitioner would come into work to talk with Hodge and Sanders about the "investigation that was underway" on 5 December 2003, which was "the day [Hodge] was having the staff meeting." Hodge further testified that petitioner told Sanders that petitioner "could come in at 3:00" and that Sanders told petitioner "that [they] were having a staff meeting at that time, that [petitioner might] as well sit in that [staff] meeting because [Hodge] wouldn't be able to talk to [petitioner] until after the[staff] meeting anyway and that [petitioner] needed to be in the [staff] meeting anyway." Sanders did not testify at the hearing on 29 January 2004, and nothing in the record corroborates Hodge's testimony as to Sanders's out-of-court statements that petitioner had been told that she needed to attend the staff meeting. Hodge's testimony therefore had to be "accepted as competent evidence" to support the ESC's findings of fact.
    However, petitioner argues and we agree that nothing in the record shows that Hodge's testimony about Sanders's out-of-court statements either (1) fell "within the . . . exceptions to the hearsay rules," or (2) had "equivalent circumstantial guarantees of trustworthiness and [was] more probative on the point for which it is offered than any other evidence which the proponent could reasonably be expected to procure[.]" See ESC Regulation No. 14.18(J)(1). The ESC counters that the hearsay evidence conveyed through Hodge's testimony was reliable because it had equivalent circumstantial guarantees of trustworthiness in that Sanders had personal knowledge of the underlying event and that Sanders "had no motivation not to speak the truth, as she was no longer employed by [Carriage Club] at the time of the hearing." See State v. Agubata, 92 N.C. App. 651, 657, 375 S.E.2d 702, 706 (1989) (listing factors to be used in determining circumstantial guarantees of trustworthiness under the residual hearsay exceptions, including the declarant's "assurance of personal knowledge" and the declarant's "motivation to speak the truth").
    However, the ESC does not include any facts showing Sanders'smotivation for her statement: the ESC does not state when Sanders made the statements to Hodge, or when or under what circumstances Sanders left employment at Carriage Club. As it is not apparent from the record that Sanders's statements did have sufficient "circumstantial guarantees of trustworthiness," we need not determine whether Sanders's statements were more probative on the point for which they were offered than any other evidence that Carriage Club could procure. See State v. Smith, 315 N.C. 76, 95, 337 S.E.2d 833, 846 (1985). We are unpersuaded that Hodge's testimony about Sanders's statements was competent evidence under the ESC regulations.
    Petitioner next argues that since these findings of fact are not supported by competent evidence, they cannot support the ESC's conclusions of law that petitioner "was discharged for misconduct connected with the work." We agree. Under the Employment Security Law, a claimant is ordinarily presumed to be entitled to benefits, "but this is a rebuttable presumption with the burden on the employer to show circumstances which disqualify the claimant." Intercraft Industries Corp. v. Morrison, 305 N.C. 373, 376, 289 S.E.2d 357, 359 (1982). For instance,
        [a]n individual shall be disqualified for benefits . . . if it is determined by the Commission that such individual is, at the time such claim is filed, unemployed because he was discharged for misconduct connected with his work.

N.C. Gen. Stat. § 96-14(2) (2003). "Misconduct connected with the work is defined as conduct evincing such willful or wanton disregard of an employer's interest as is found in deliberateviolations or disregard of standards of behavior which the employer has the right to expect of his employee[.]" Id. Our Court has previously held that the definition of misconduct connected with the work should not be expanded so as to "abandon questions of wrongful intent, willfulness, wantonness, or deliberate misbehavior." See In re Miller v. Guilford County Schools, 62 N.C. App. 729, 732, 303 S.E.2d 411, 413, disc. review denied, 309 N.C. 321, 307 S.E.2d 165 (1983). We have also stated that "[t]he purpose of denying a discharged employee unemployment benefits because of misconduct connected with work is to prevent these benefits from going to employees who lose their jobs because of 'callous, wanton and deliberate misbehavior.'" Williams v. Davie County, 120 N.C. App. 160, 165, 461 S.E.2d 25, 29 (1995) (quoting Intercraft Industries Corp., 305 N.C. at 375, 289 S.E.2d at 359). In the present case, without the incompetent hearsay evidence that Sanders had told petitioner to attend the staff meeting, there is nothing in the record to show that petitioner wantonly or willfully left a staff meeting she knew she was to attend.
    To the contrary, competent evidence shows that petitioner did not know that she was required to attend the staff meeting. First, petitioner testified that Sanders had called petitioner on 5 December 2003 to see what time petitioner would be coming to speak with Sanders and Hodge about the investigation. Petitioner responded that she would be in "around 2:30-3:00." Petitioner further testified that Sanders had stressed the importance of the investigatory meeting but had also told petitioner that Sanders andHodge might be in a staff meeting at the time that petitioner would arrive. Petitioner testified that she did not learn that she was required to attend the staff meeting until after the staff meeting was over, when petitioner met with Hodge and Sanders. Second, Hodge's testimony, other than her incompetent hearsay testimony that Sanders had told petitioner that petitioner needed to be in the staff meeting, indicates that petitioner was only required to attend the investigatory meeting with Hodge and Sanders. Hodge testified that it was petitioner who had said that she could come into work around 3:00 p.m. on 5 December 2003 to talk with Hodge and Sanders, and that this time coincided with when Hodge had a staff meeting planned. If petitioner had been required to attend the staff meeting, it logically follows that she would have been explicitly told to come into work at 3:00 p.m. when the staff meeting was to begin. Hodge also testified that at the beginning of the staff meeting, in response to petitioner saying she could not stay, that Hodge told petitioner in reference to the investigatory meeting: "well, remember we talked to you - we needed to talk to you. It was mandatory that we talk to you today." Hodge did not testify that she told petitioner that it was mandatory for petitioner to stay for the staff meeting. If petitioner had been required to stay for the staff meeting, Hodge would have reiterated to petitioner at the start of the staff meeting that it was mandatory that petitioner attend the staff meeting and remain to talk with Hodge and Sanders following the staff meeting. Without Sanders's out-of-court statement thatpetitioner had been told she needed to attend the staff meeting, nothing in the record shows that petitioner had reason to know that she was required to attend the staff meeting.
    Carriage Club failed to show that petitioner's actions constituted "callous, wanton and deliberate misbehavior." See Intercraft Industries Corp., 305 N.C. at 375, 289 S.E.2d at 359. The record does not support the conclusion that petitioner committed any misconduct connected with work that disqualified petitioner from receiving benefits under N.C.G.S. § 96-14(2). The trial court's 22 June 2004 judgment is reversed. The matter is remanded to the trial court for remand to the ESC for entry of an award of unemployment benefits.
    Reversed and remanded.
    Judges CALABRIA and ELMORE concur.
    Report per Rule 30(e).

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