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Green v. Louisiana Workforce Commission

Court of Appeals of Louisiana, Second Circuit

January 16, 2019

VIRGINIA A. GREEN Plaintiff-Appellant
v.
LOUISIANA WORKFORCE COMMISSION AND MINDEN MEDICAL CENTER Defendants-Appellees

          Appealed from the Twenty-Sixth Judicial District Court for the Parish of Webster, Louisiana Trial Court No. 76676 Honorable Michael Craig, Judge

          BARRY W. DOWD Counsel for Appellant

          J. JEROME BURDEN DANELLE L. GILKES Counsel for Appellee, Louisiana Workforce Commission

          Before GARRETT, STEPHENS, and McCALLUM, JJ.

          GARRETT, J.

         The claimant, Virginia A. Green, was denied unemployment compensation benefits in an Appeals Tribunal decision, and she appealed. However, due to the inaudibility of the recording of the Appeals Tribunal hearing, the Board of Review vacated that decision and remanded for another Appeals Tribunal hearing before an administrative law judge ("ALJ"). Following the hearing on remand, the Appeals Tribunal again denied her claim. The claimant did not appeal from that ruling for almost a year and a half. Consequently, the Board of Review dismissed that appeal as untimely. The claimant now appeals from a district court judgment which affirmed the Board of Review's decision. We affirm the district court judgment.

         FACTS

         The record indicates that the claimant began working at Minden Medical Center ("MMC") as a certified nursing assistant in 2011. She was terminated on November 5, 2015, for unsatisfactory job performance. Thereafter, she filed a claim with the Louisiana Workforce Commission ("LWC") to obtain unemployment compensation benefits. On December 14, 2015, a notice was mailed to her stating that she was denied benefits because she was discharged for misconduct connected with her employment, i.e., she failed to perform the work assignment as expected and continued to neglect her duties after warnings. See La. R.S. 23:1601(2). She was informed that she had 15 days to appeal this determination by the Agency. She filed a timely appeal, pursuant to La. R.S. 23:1629.

         On January 21, 2016, a telephone hearing before an ALJ was held, during which the claimant and a representative of her employer, Director of Human Resources Mary Winget, participated. John Crumpler, MMC's senior care nurse manager, and Terry Miller, the director of senior care, served as witnesses for the employer. On January 25, 2016, the Appeals Tribunal decision of the ALJ was mailed to the parties. Based on the evidence presented, the ALJ concluded that the claimant was discharged for misconduct connected with her employment. Consequently, the decision affirmed the Agency's determination that the claimant was disqualified for unemployment compensation benefits effective November 5, 2015. The documentation with the written ruling informed the claimant that the decision to dismiss was final "unless an appeal is filed within 15 days of the mail date shown on the first page of this notice." On February 16, 2016, the LWC mailed to the claimant an acknowledgment that she had filed an appeal.

         Also, on February 16, 2016, the Board of Review mailed its decision. It determined that it could not review the matter due to the inaudibility of the recording of the Appeals Tribunal hearing. As a result, it vacated the Appeals Tribunal decision and remanded the matter for another hearing.

         On April 15, 2016, another hearing was held before the Appeals Tribunal. All of the same parties and witnesses participated again. The Appeals Tribunal decision was mailed to the parties on April 19, 2016. The findings of fact were essentially the same. In the conclusion of law section, the ALJ wrote a slightly more detailed analysis. However, she again concluded that the claimant was discharged for misconduct connected with the employment. The decision affirmed the Agency's determination that the claimant was disqualified for unemployment compensation benefits, effective November 5, 2015, to November 5, 2016. This decision was accompanied by the same appeal notice as the previous Appeals Tribunal decision.

         On December 6, 2017, the claimant faxed a letter to the LWC, addressed to the "Appeals Board of [Review]." It stated that she "just did not know any better that I had to file the second appeal. Call center told me to go ahead and file."

         On December 13, 2017, the Board of Review mailed its decision dismissing the claimant's request for appeal on the basis that it was filed untimely. In its findings of fact, the Board of Review found that the Appeals Tribunal decision was rendered and mailed to the claimant at her correct address on April 19, 2016. However, she did not file her appeal to the Board of Review until December 6, 2017, which was 596 days after the expiration of her appeal rights. Citing the jurisprudence, the Board of Review held that the 15-day period for appeal found in La. R.S. 23:1630(A) was a period of peremption and its running destroyed the claim so completely that any right of action ceased to exist and was lost.

         On December 15, 2017, the claimant sought judicial review of the Board of Review's decision before the district court in Webster Parish where she was domiciled, pursuant to La. R.S. 23:1634(A). The LWC Administrator filed an answer and return in judicial review asserting that the Board of Review's decision should be affirmed. A certified copy of the administrator's record was filed into the record. On April 23, 2018, the district court issued a judgment affirming the Board of Review's decision. It stated that, having conducted a thorough review of the record, it found that the Board of Review's findings of fact were supported by sufficient, ...


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