CHISHOLM v. GEORGIA DEPARTMENT OF LABOR Et Al.

THIRD DIVISION
BARNES, P. J.,
BOGGS and BRANCH, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/

October 3, 2014

In the Court of Appeals of Georgia
A14A0777. CHISHOLM v. GEORGIA DEPARTMENT OF
LABOR et al.

BARNES, Presiding Judge.

Sheralyn R. Chisholm’s employer had a policy requiring employees to report

arrests within five days of their occurrence. Chisholm was discharged from

employment when she reported her arrest seven days late. Following the grant of her

application for interlocutory appeal, Chisholm now appeals the superior court’s order

affirming a decision by the Board of Review of the Department of Labor (the “Board

of Review”) to disqualify her from receiving unemployment benefits because of her

failure to report her arrest within the five-day deadline. Because Chisholm could not

have reasonably expected that a short, immaterial delay in reporting her arrest to her

employer would result in her termination, we reverse.

Judicial review of an administrative decision requires the court to
determine that the findings of fact are supported by any evidence and to
 examine the soundness of the conclusions of law that are based upon the
findings of fact. When this Court reviews a superior court’s order in an
administrative proceeding, our duty is not to review whether the record
supports the superior court’s decision but whether the record supports
the final decision of the administrative agency.

(Citations, punctuation, and footnote omitted.) Davane v. Thurmond, 300 Ga. App.

474, 475 (685 SE2d 446) (2009). Mindful of these principles, we turn to the record

in the present case.

The evidence adduced at the administrative hearing showed that in November

2010, the Georgia Department of Behavioral Health & Developmental Disabilities

(the “Behavioral Health Department” or the “Department”) hired Chisholm to work

as a nurse educator at its regional hospital in Columbus. During her orientation,

Chisholm signed a form acknowledging her responsibility to review and comply with

the Department’s personnel policies, including Policy Number 1201, Standards of

Conduct and Ethics in Government (the “Standards of Conduct”). The Standards of

Conduct totaled 11 pages and included the following section:

D. DISCLOSURE OF INFORMATION

1. All applicants/employees are required to disclose felony convictions
on APPLICATIONS FOR EMPLOYMENT and convictions and/or

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 pending charges on STATE SECURITY QUESTIONNAIRE / LOYALTY
OATH Forms.

a. Falsification or misrepresentation of information, including
criminalhistory, is prohibited and may result in an offer of employment
being withdrawn from an applicant or separation of an employee.

b. Material falsification or misrepresentation of any information,
including criminal history, will result in an offer of employment being
withdrawn from an applicant or separation of an employee. “Material”
refers to information which directly influences and/or impacts the hiring
decision based on records, credentials and/or qualifications.

...

2. Employees are required to notify their supervisors or human resource
representative of any arrests and/or convictions within five calendar
days of the date of arrest or conviction. A determination of appropriate
action will be made on a case by case basis.

(Emphasis in original.)

Chisholm later transferred to the Behavioral Health Department’s regional

hospital in Atlanta. Subsequently, on October 24, 2012, Chisholm was arrested.1 Over

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Chisholm was arrested for failing to appear in court on charges of making
harassing telephone calls. The charges stemmed from a dispute between Chisholm

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the next few days, Chisholm and her husband called Chisholm’s supervisor on two

occasions when she had shifts scheduled at the hospital and notified the supervisor

that she would be unable to work, but did not give a reason for her absence.

After returning to work, Chisholm mentioned her arrest to a co-worker, who

suggested that she do some research and find out if the Behavioral Health Department

had an arrest disclosure policy. The “moment” that her co-worker made this

suggestion, Chisholm researched the personnel policies on the Internet, read the

disclosure policy for the first time, and immediately reported her arrest to her

superiors that same day, November 5, 2012. The Department does not dispute that the

information that Chisholm provided to her superiors about her arrest was accurate.

Chisholm continued to work at the Atlanta hospital without incident through

the end of November. However, on December 1, 2012, she emailed her superiors with

complaints about understaffing and unsafe conditions at the hospital and requested

that she be transferred to another hospital within the Behavioral Health Department.

Two days later, Chisholm was informed that she had to either resign or be terminated

and the owner of the personal care home where her disabled daughter lived over the
proper care and treatment of her daughter. The charges were later dropped.

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due to her failure to report her arrest within five days as specified in the Standards of

Conduct. She resigned under protest.

Chisholm applied for and initially was awarded unemployment benefits, but the

Behavioral Health Department challenged the award. At the administrative hearing

before an administrative hearing officer (“AHO”), Chisholm’s immediate supervisor

testified that the action taken by the Department in this case was not based on

Chisholm’s “work performance,” which had always “been great.” According to the

supervisor, “the whole thing went to the black and white of [the] policy” requiring

that an arrest be reported within five days of its occurrence, and the human resources

department had made the decision that Chisholm should be terminated for violating

the policy if she refused to resign. The supervisor further testified that he had been

unaware that termination was even a “possibility” for failing to comply with the five-

day reporting requirement.

Chisholm testified that she had been unaware of the personnel policy that

arrests had to be reported to the Behavioral Health Department within five days, much

less that failure to strictly comply with the time deadline could lead to termination.

She conceded that during her orientation, she signed the form acknowledging that she

was required to review and comply with the Department’s personnel policies, but had

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not reviewed the policies on her own at that time. Chisholm testified that the

personnel policies were not emphasized during her orientation, and that she had been

given a large number of orientation materials and had signed the acknowledgment

form “like most people do” without paying “any particular attention” to the individual

policies, including the policy related to the disclosure of arrests.

Lastly, an employee relations specialist with the Behavioral Health Department

testified at the administrative hearing. The specialist denied that Chisholm was forced

to resign as a result of her complaint over work conditions or her request for a

transfer, and reiterated that Chisholm was a “great employee.” According to the

specialist, the “only policy” that Chisholm had violated was the policy requiring that

an arrest be reported within five days of its occurrence, and the human resources

department had made the decision to terminate Chisholm for violating that policy.

Following the administrative hearing, the AHO found that Chisholm had

resigned only after being informed that she would be terminated, and that, as a result,

she had been discharged from her position by the Behavioral Health Department. The

AHO further found that Chisholm had been discharged for her failure to comply with

the personnel policy that required arrests to be reported within five days, not as

retaliation for her complaints about her work conditions or her request for a transfer.

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The AHO noted that Chisholm had signed the acknowledgment form requiring her

to review and comply with the personnel policies and went on to conclude that

Chisholm was disqualified from receiving unemployment benefits under OCGA § 34-

8-194 (2) (A) because of her failure “to obey orders, rules, or instructions” of her

employer by not strictly complying with the five-day reporting requirement.

Chisholm appealed the AHO’s decision to the Board of Review. The Board of

Review adopted the findings of the AHO and affirmed the decision that Chisholm

was disqualified from receiving unemployment benefits under OCGA § 34-8-194 (2)

(A). The Superior Court of DeKalb County subsequently affirmed the final decision

of the Board of Review. Chisholm filed an application for discretionary appeal, which

this Court granted. Chisholm now appeals, arguing that the Board of Review’s final

decision to disqualify her from receiving unemployment benefits was unsupported by

the administrative record.

Under OCGA § 34-8-194 (2) (A), an individual may be disqualified from

receiving unemployment benefits if she is discharged by her employer “for failure to

obey orders, rules, or instructions or for failure to discharge the duties for which the

individual was employed as determined by the Commissioner according to the

circumstances in the case.” But there is a strong public policy in favor of paying

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unemployment benefits to one who is discharged through no fault of her own, and,

therefore, “disqualification is not appropriate unless the employer shows the

discharge was caused by the deliberate, conscious fault of the claimant.” (Citation and

punctuation omitted.) Davane, 300 Ga. App. at 476. See OCGA § 34-8-194 (2) (B);

Millen v. Caldwell, 253 Ga. 112, 113 (317 SE2d 818) (1984); Case v. Butler, 325 Ga.

App. 123, 126 (2) (751 SE2d 883) (2013); Fulton County School Dist. v. Hersh, 320

Ga. App. 808, 812 (1) (740 SE2d 760) (2013).

Furthermore,

Fault which is of a disqualifying nature cannot be a technical failing, a
minor mistake or the mere inability to do the job. Rather, a breach of
duty to constitute fault must be such as length of service, nature of
duties, prior warnings, equal enforcement of all progressive discipline
programs and any other factors which might be used to establish
reasonable expectations that the discharge was imminent. The claimant
must have been aware that in a discharge which resulted from the
violation of the rule, the violation would likely result in termination. In
the case of a discharge due to a violation of an employer’s rule, order
[or] instruction, an employer has the burden of proving that the claimant
knew or should have known that the violation of the rule, order or
instruction could have resulted in termination.

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(Punctuation omitted.) Ga. Comp. R. & Regs. r. 300-2-1-.01 (9) (c). See Millen, 253

Ga. at 115 (“[A] fault which is of a disqualifying nature cannot be a technical failing,

a minor aberration, or the want of mere punctilio. Rather, a breach of duty, to

constitute ‘fault,’ must be substantial, and such that sanction is reasonably expectable

under all the circumstances of employment[.]”) (citation and punctuation omitted).

Thus, an employer alleging disqualification must show that the employee had a

“reasonable expectation of termination” arising from the alleged workplace violation;

otherwise, “fault” for the termination is not assignable to the employee, and

disqualification is inappropriate under OCGA § 34-8-194 (2) (A). Barron v.

Poythress, 219 Ga. App. 775, 777 (466 SE2d 665) (1996). See Barnett v. Ga. Dept.

of Labor, 323 Ga. App. 882, 885 (748 SE2d 688) (2013) (physical precedent only);

Davane, 300 Ga. App. at 477. And “[a]lthough we are bound to apply the any

evidence standard, whether there is fault assignable to a claimant, which is a legal

requirement for disqualification, often requires a legal conclusion.” (Citation and

punctuation omitted.) Case, 325 Ga. App. at 127 (2).

Here, Chisholm argues that there is no evidence in the administrative record

to show that her termination was caused by her conscious, deliberate fault, or that she

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could have reasonably expected that her short delay in reporting her arrest would

result in her termination. The Behavioral Health Department responds that

Chisholm’s signing of the form acknowledging that she was required to review and

comply with the personnel policies, combined with her failure to review and comply

with the five-day reporting policy, was sufficient to authorize a finding of conscious,

deliberate fault on her part. The Department further argues that Section D of the

Standards of Conduct, which addresses the disclosure of information, put Chisholm

on reasonable notice that she was subject to termination for reporting her arrest after

five days had passed.

Pretermitting whether there was evidence that Chisholm’s termination was the

result of conscious, deliberate fault on her part, we conclude that Chisholm could not

have reasonably expected that she would be terminated for reporting her arrest to the

Behavioral Health Department a few days late. The evidence is uncontroverted that

Chisholm’s supervisor was pleased with her work performance, and that the sole

reason for her termination was the fact that she reported her arrest to the Department

seven days late under the personnel policy.2 It is likewise uncontroverted that

2
On appeal, Chisholm does not challenge the AHO’s finding, adopted by the
Board of Review, that her termination was not in retaliation for her complaints about
her work conditions or for her request to transfer to another hospital.

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Chisholm had never been informed by her supervisors or anyone else in the

Department that termination could result from an employee’s failure to strictly

comply with the five-day reporting requirement, and even her supervisor testified that

he had been unaware that termination was a “possibility” in this context. Furthermore,

there is no evidence that Chisholm’s seven-day delay in reporting had any material

effect on the Department’s ability to evaluate the circumstances or seriousness of her

arrest, or that the short delay caused any harm or posed any risk of harm to other

hospital employees or patients. Finally, there is no evidence that Chisholm supplied

any information to the Department about her arrest that was false or misleading.

In light of this record, the uncontroverted evidence shows that Chisholm’s

seven-day delay in reporting was simply a “technical failing” that would not have led

an employee to reasonably expect that termination would result. Ga. Comp. R. &

Regs. r. 300-2-1-.01 (9) (c); Millen, 253 Ga. App. at 115. See Davane, 300 Ga. App.

at 477-478 (employee could not have reasonably expected that her inability to

confirm within 48 hours that she would be able to report to an out-of-town

assignment would result in her termination). Compare McCauley v. Thurmond, 311

Ga. App. 636, 639 (716 SE2d 733) (2011) (concluding that employee “should have

been aware that failing to meet work deadlines, entering partially blank supporting

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case notes, and ignoring her regional manager’s direct communications and orders

subjected her to termination”). “If an employer wishes to be arbitrary about such

matters, Georgia law allows it nearly free rein as far as the firing is concerned, but not

as far as payment of unemployment compensation benefits to the ex-employee is

concerned.” (Citation and punctuation omitted.) Davane, 300 Ga. App. at 478.

In reaching this conclusion, we are unpersuaded by the Behavioral Health

Department’s argument that Section D of the Standards of Conduct provided

Chisholm with reasonable notice that she would be subject to termination for

reporting her arrest a few days late. Section D.2, which requires that arrests or

convictions be reported to the Department within five days, simply states that “[a]

determination of appropriate action will be taken on a case by case basis.” Nothing

in Section D.2 would cause an employee to reasonably suspect that termination would

result from a short, immaterial delay in reporting an arrest. This is particularly true

when Section D.2 is contrasted with Section D.1, which expressly states that

“separation of an employee” from the Department “may” result from an employee’s

falsification or misrepresentation of information about her criminal history, and “will”

result if the information falsified or misrepresented is “material.” Reading Sections

D.1 and D.2 together, an employee would reasonably expect that a mere technical

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violation of Section D.2 would result in a less serious sanction than “separation” from

employment.

Under these combined circumstances, Chisholm had no reasonable expectation

of termination and “fault” for her discharge could not be assigned to her. It follows

that the Department of Behavioral Health failed to carry its burden of showing that

Chisholm was disqualified from unemployment benefits under OCGA § 34-8-194 (2)

(A) . “As [the Department] did not carry its burden of showing that [Chisholm] came

within the disqualification exception, she is entitled under the law to unemployment

compensation and the superior court erred in affirming the denial of benefits.”

(Citation and punctuation omitted.) Davane, 300 Ga. App. at 478.

Judgment reversed. Boggs and Branch, JJ., concur.

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