Gubser v. S.C. Dep't of Emp't & Workforce

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Sallie Anne Gubser, Appellant, v. South Carolina Department of Employment and Workforce and Meca Property Management, LLC, Respondents.

No. 23-ALJ-22-0076-AP

South Carolina Administrative Law Court Decisions

June 29, 2023

ORDER

Deborah Brooks Durden, SC Administrative Law Court Judge

Sallie Anne Gubser (Appellant) appealed the decision of the South Carolina Department of Employment and Workforce (Department) which disqualified her from receiving unemployment benefits for a period of sixteen weeks because her employer, Meca Property Management, LLC (Employer), terminated her for cause, other than misconduct, connected with the employment. The South Carolina Administrative Law Court (ALC or Court) has jurisdiction to hear this matter pursuant to S.C. Code Ann. section 41-35-750 (2021). Upon consideration of the record and the briefs, the Court remands.

BACKGROUND

Appellant worked as an office manager for Employer from August 16 2021, until October 28, 2022. On October 26, 2022, Appellant reported to a manager that her coworker failed to upload documentation regarding a background check. Employer questioned the coworker, who denied failing to upload the documentation. Employer investigated the matter and verified through Employer's software system, ResMan, that the coworker uploaded the documentation on October 21, 2022. ResMan also showed the deletion of the documentation originated from the IP address associated with Appellant's computer on October 26, 2022. ResMan recorded the timestamp when the deletion occurred and attributed the deletion to Appellant's username, which was logged in at the time. Employer reviewed camera footage and web history, which showed Appellant using her computer at the time the documentation was deleted. Appellant told her manager the same documentation was missing two hours after the deletion of the file.

Employer discharged Appellant on October 28, 2022, for deleting a computer file against company policy and for making false accusations against a coworker. Following her termination, Appellant filed a claim for unemployment benefits with the Department on November 3, 2022. On November 10, 2022, the Department's claims adjudicator determined Appellant was discharged for misconduct connected with the employment and held her disqualified from receiving benefits for twenty weeks. On November 18, 2022, Appellant appealed to the Department's Appeal Tribunal (Tribunal) seeking review of the claims adjudicator's decision. An evidentiary hearing via telephone was held on December 7, 2022. Prior to hearing testimony, the hearing officer described the contents of Agency Exhibit 1. The exhibit included documents submitted to the Department by Employer as part of the initial adjudication process. The hearing officer then asked Appellant if she had any objections. Appellant responded "I would like to see that. I'm not seeing anything." The hearing officer replied "So your objection is what?" Appellant responded "I'm not objectionable to it. I guess." The exhibit was entered into evidence.

Appellant submitted written witness statements to the Department in advance of the hearing, but Appellant did not proffer these documents into evidence during the hearing. These witness statements were made by individuals that did not work for Employer, did not appear at the hearing to authenticate their statements, and lacked firsthand knowledge of the circumstances of Appellant's discharge. After Appellant's testimony, the Department excluded Appellant's subpoenaed witness after Appellant indicated the witness would testify to conversations she had with the witness regarding Appellant's health and the changes to her job duties. On December 8, 2022, the Tribunal issued a decision modifying the claims adjudicator's initial determination and finding Appellant was discharged for cause, other than misconduct, connected with the employment and disqualifying her from receiving benefits for sixteen weeks.

On December 15, 2022, Appellant appealed the Tribunal decision to the Department's Appellate Panel (Panel). The Panel issued a decision on January 24, 2023, affirming the Tribunal's decision and declining to address Appellant's raised issues related to the administration of evidence during the hearing. This appeal followed.

ISSUE

Did the Department err in finding Appellant was discharged for cause, connected with the employment?

STANDARD OF REVIEW

The Department is an "agency" under the Administrative Procedures Act (APA). See Gibson v. Florence Country Club, 282 S.C. 384, 386, 318 S.E.2d 365, 367 (1984) (finding the Employment Security Commission, a predecessor of the Department, was an agency within the meaning of the APA). Accordingly, the APA's standard of review governs appeals from decisions of the Department. See S.C. Code Ann §§ 1-23-380, 1-23-600(D) (Supp. 2022); Gibson, at 386, 318 S.E.2d at 367; McEachern v. S.C. Employment Sec. Comm'n, 370 S.C. 553, 557, 635 S.E.2d 644, 646-47 (Ct. App. 2006). The standard used by appellate bodies to review agency decisions is provided by section 1-23-380(5). See § 1-23-600(D) (directing administrative law judges to conduct appellate review in the same manner prescribed in section 1-23-380(5)). That section states:

The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision [of an agency] if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

§ 1-23-380(5).

A decision is supported by "substantial evidence" when the record as a whole allows reasonable minds to reach the same conclusion as the agency. Friends of the Earth v. Pub. Serv. Comm'n of S.C., 387 S.C. 360, 366, 692 S.E.2d 910, 913 (2010). The fact that the record, when considered as a whole, presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency's findings from being supported by substantial evidence. Waters v....