In February 2004, Riraggust Dunham (employee) began working
for K and S Sanitation (employer), a recycling services company in
Charlotte, N.C. During 2005, employee received several warning
letters regarding his work performance. On 5 December 2005, JamesKnuckles (Knuckles), president and owner of employer, called
employee into his office and informed him that his performance was
low and that he was suspended for two days pending termination.
The next day Earl Sanders (Sanders), one of employer's supervisors,
went to employee's home and terminated his employment.
Employee filed a claim for unemployment insurance benefits on
4 December 2005. Adjudicator Robert Rudisill ruled that employee
was not disqualified from receiving unemployment benefits.
Employer appealed, and appeals referee Joseph Pearlman entered a
decision holding that employee was discharged from his job because
he allegedly displayed a poor attitude after an episode of alleged
poor performance and that he was not disqualified from receiving
unemployment benefits. Employer appealed, and on 24 May 2006 the
Employment Security Commission (Commission) affirmed the decision
of the appeals referee. Employer appealed this decision to the
Mecklenburg County Superior Court pursuant to N.C. Gen. Stat. §
96-15(h) (2005). Judge Beal entered judgment on 20 November 2006
affirming the Commission's decision. Employer appeals.
In its sole argument on appeal, employer contends that the
trial court erred in affirming the Commission's decision when the
Commission's findings of fact were not supported by the evidence,
and when the findings of fact did not support its conclusions of
law. We disagree.
Ordinarily a claimant is presumed to be entitled to benefits
under the Unemployment Compensation Act. The employer bears theburden of rebutting this presumption by showing circumstances which
disqualify the claimant. Williams v. Davie County
, 120 N.C. App.
160, 164, 461 S.E.2d 25, 28 (1995) (citations omitted). N.C. Gen.
Stat. . 96-14 provides that an individual will be disqualified from
receiving 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) (2005). The statute further provides that:
Misconduct connected with the work is defined
as conduct evincing such willful or wanton
disregard of an employer's interest as is
found in deliberate violations or disregard of
standards of behavior which the employer has
the right to expect of his employee, or in
carelessness or negligence of such degree or
recurrence as to manifest equal culpability,
wrongful intent or evil design, or to show an
intentional and substantial disregard of the
employer's interests or of the employee's
duties and obligations to his employer.
An employee may also be disqualified from receiving benefits
for a period ranging from four to 13 weeks if the employee was
fired for substantial fault connected with his work. N.C. Gen.
Stat. § 96-14(2a).
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.
The standard of review on appeal of a decision from the
Commission is whether the facts found by the Commission were
supported by competent evidence and whether the findings so
supported sustain the legal conclusions and the award made[.] In
, 36 N.C. App. 255, 257, 243 S.E.2d 388, 390 (1978). The
reviewing court views the evidence in the light most favorable to
the plaintiff, and the plaintiff is entitled to the benefit of
every reasonable inference drawn from the evidence. Adams v. AVX
, 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (citation
omitted). A finding of fact is conclusive on appeal if there is
any evidence in the record to support it, even if there is
substantial evidence to the contrary. Vaughn v. Insulating Servs.
165 N.C. App. 469, 472, 598 S.E.2d 629, 631 (2004) (citation
omitted). Moreover, the Commission is the sole judge of the
credibility of witnesses and the weight to be given the evidence.
Employer contends that the following findings of the
Commission were not supported by the evidence:
3. The claimant was discharged from this job
because he allegedly displayed a poor
attitude after an episode of alleged poor
4. The employer's normal procedure was to
pick up recycled items and take such
items to the landfill during the morning
hours. . . .
8. Assuming for the sake of argument that
claimant had not been given directions to
deviate from his normal pattern of
dumping his load at landfill on the same
morning that he collected his load, theemployer has not shown that claimant had
a pattern of such conduct. . . .
10. The evidence does not lead to definite
conclusion that claimant acted in
insubordinate manner when counseled about
his work performance.
While there was conflicting testimony, there is competent
evidence in the record to support the Commission's findings of
With respect to finding of fact number three, employer
contends that on 1 December 2005, employee failed to empty a truck,
and that such conduct was contrary to company policy. Employer
asserts that employee had received warnings about such conduct
prior to the occasion in question, yet refused to conform his
behavior to employer's expectations. Employer contends that it is
this conduct, as opposed to employee's poor attitude, which was the
basis for employee's termination.
However, employee testified at the appeals referee hearing
that his supervisor told him not to worry about dumping the truck
because the landfill was full.
Employee was asked if he believed
he would have been in violation of the disciplinary policy if he
had emptied his truck on Thursday, and employee responded Yes.
Further, Knuckles testified that when he called employee into his
office on 5 December 2005 he was just going to talk with him, but
that during the conference employee displayed a poor attitude.
Knuckles wrote a letter to the Commission on 13 December 2005 which
also indicated that employee was terminated due to his poor
attitude. We hold that there was competent evidence in the record to
support the Commission's finding that employee was discharged due
to his poor attitude.
With respect to finding of fact number four regarding the
employer's procedures in emptying the trucks, employer contends
that the appeals referee misunderstood its procedure. Employer
contends that it is their policy to empty the trucks at the end of
each day after the trucks have picked up their loads, as opposed to
during the morning hours.
We hold that, while this finding may be incorrect, it is not
essential to support the referee's conclusion of law. This finding
of fact is irrelevant and may be treated as surplusage. See City
of Charlotte v. McNeely
, 8 N.C. App. 649, 653, 175 S.E.2d 348, 351
With respect to finding of fact number eight, employer
contends that, since employee received two previous employment
warning letters, the evidence showed a pattern of his conduct of
not emptying his load on the same day that he collected his load.
However, employee denied that his failure to empty his truck was a
result of disobedience, and testified that he was told by a
supervisor not to empty his truck. Further, the only warning
letter employee received relating to the emptying of the trucks
pertains to the occasion that is the subject of this appeal. The
other two letters are unrelated to the emptying of the trucks, and
are irrelevant in establishing a pattern of disobedient conduct. This evidence supports the Commission's finding of fact number
As to finding of fact number ten, employee denied acting in an
insubordinate manner. The Commission found employee's testimony to
be credible, and afforded it weight accordingly.
Employer did not except to the remaining findings of fact made
by the Commission, and those findings are presumed to be supported
by the evidence and are conclusive on appeal. Beaver v. Paint Co.
240 N.C. 328, 330, 82 S.E.2d 113, 114 (1954).
Having concluded that the Commission's findings of fact are
supported by competent evidence, we hold that those findings
support the Commission's conclusion of law that the evidence fails
to show that employee was discharged from the job for substantial
fault or misconduct connected with his work. The trial court did
not err in affirming the Commission's decision.
Judges WYNN and GEER concur.
Report per Rule 30(e).
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