Robertson v. Gerace 335 So. 2d 102

STOULIG, Judge.

Appellant, Moran Robertson, has appealed a judgment of the Civil District Court for the Parish of Orleans, upholding an administrative ruling denying him unemployment compensation benefits because he was discharged for good cause.

Dorothy Boucher, vice president and store manager of The Leon Godchaux Clothing, Company, Limited, verbally instructed Robertson that the crew of store keepers under his supervision must assume a new duty, i. e., changing light bulbs throughout the store on a daily basis. She further confirmed this with a written memorandum.

When one of the men under Robertson’s supervision refused to assume this new duty, Miss Boucher contacted appellant by telephone to advise him of this event and was told by him that he (Robertson) had no intention of instructing his men to change light bulbs. Among Miss Boucher’s duties was the direct supervision of Robertson. She fired him for insubordination.1

Appellant’s factual version varies in that he said he was fired after he was directed to change the bulbs himself.2 From the *104administrative ruling it is apparent the referee assigned more credibility to Miss Boucher’s statements.

L.R.S. 23:1634 limits our jurisdiction to questions of law unless the record contains insufficient evidence to support the conclusion of the administrative agency and preponderates to the effect that a fraud has been perpetrated. See Fruchtzweig v. Southern Specialty Sales Company, 161 So.2d 374 (La.App. 4th Cir. 1964) and Shelton v. Doyal, 316 So.2d 526 (La. App. 2d Cir. 1975).

In the case before us there is ample evidence to support the finding appellant was properly disqualified by L.R.S. 23:1601(2) because he was justly discharged for insubordination.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

MORIAL, J., dissents with written reasons.

MORIAL, Judge

(dissenting).

I respectfully dissent.

In my opinion the record does not support appellant’s disqualification for unemployment compensation benefits on the basis of misconduct.

Guidelines relative to misconduct barring a claimant’s recovery of unemployment compensation benefits were expressed in Heard v. Doyal, 259 So.2d 412 (La.App. 2 Cir. 1972) as follows:

“Misconduct under LSA-R.S. 23:1601(2) has been defined on numerous occasions by the courts to mean an act of willful or wanton disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful interest, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations' to the employer. Horns v. Brown, 243 La. 936, 148 So.2d 607 (1963); Payne v. Antoine’s Restaurant, 217 So.2d 514 (La.App. 4th Cir. 1969).

“The employer has the burden of proving misconduct by a preponderance of the evidence. Payne v. Antoine’s Restaurant, supra; Gardere v. Brown, 170 So.2d 758 (La.App. 1st Cir. 1964); Fruchtzweig v. Southern Specialty Sales Company, 161 So.2d 374 (La.App. 4th Cir. 1964); Lee v. Brown, 148 So.2d 321 (La.App. 3d Cir. 1962).”

The uncorroborated testimony of Dorothy Boucher when considered against the testimony of the claimant and his former subordinate does not constitute evidence sufficient to support the essential and important finding of misconduct by the Board of Review. Appellees’ construction of the evidence of claimant’s conduct, while fully justifying the termination of his employment in the eyes of his employer for insubordination, nevertheless, hardly amounts to misconduct.

In my opinion, appellant’s isolated refusal to perform a task which had not been previously assigned to him in the course of eight years satisfactory employment as a receiving clerk/storekeeper does not amount to a wilful disregard of the employer’s interest or a deliberate violation of the employer’s rules.