             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-248

                             Filed: 3 September 2019

Wake County, No. 17 CVS 3679

DEVON J.A. BURROUGHS, Petitioner,

            v.

GREEN APPLE, LLC, APPLE GOLD GROUP (DBA) APPLEBEE’S, and R. GLEN
PETERSON, CHIEF COUNSEL, NORTH CAROLINA DEPARTMENT OF
COMMERCE, DIVISION OF EMPLOYMENT SECURITY, Respondents.


      Appeal by respondent Division of Employment Security from order entered 9

August 2017 by Judge Donald W. Stephens in Wake County Superior Court. Heard

in the Court of Appeals 22 May 2019.


      Mary McCullers Reece for petitioner-appellee.

      Respondent-appellant North Carolina Department of Commerce, Division of
      Employment Security Chief Counsel R. Glen Peterson, by Camilla F. McClain.

      No brief filed for respondent-appellee Green Apple, LLC.


      ZACHARY, Judge.


      Respondent    North   Carolina   Department     of   Commerce,   Division   of

Employment Security (“the Division”), appeals from the superior court’s order

reversing the Board of Review’s decision that Petitioner Devon J.A. Burroughs was

disqualified from receiving unemployment compensation benefits. We affirm.

                                  Background
                           BURROUGHS V. GREEN APPLE, LLC

                                  Opinion of the Court



      Burroughs began working as a server for Applebee’s in September 2015.

Burroughs reported a wage-and-hour concern to Human Resources in May 2016,

complaining of nonpayment for hours worked. Following an investigation, Applebee’s

issued a check to Burroughs in the amount of $1,299.45.

      On 22 June 2016, Burroughs filed another complaint with Human Resources

alleging that the assistant manager had engaged in a pattern of retaliatory behavior

against him that included physical contact—specifically, “pushing [him] in [his] back”

on one occasion. Human Resources employee Vanessa Roman opened an investigation

into the complaint, and spoke with the assistant manager as well as other employees.

Ms. Roman testified that, based on her investigation, she was unable to substantiate

Burroughs’s allegations.

      On 18 July 2016, Ms. Roman held a meeting with Burroughs, the assistant

manager, and the general manager. At the meeting, all parties were asked to sign a

document stating that they “would all agree to move forward and align with the

organization’s guiding principles.” The document also contained an acknowledgment

that Applebee’s had “completed [its] investigation into the concerns raised by”

Burroughs’s complaint, and had taken “corrective actions as needed.”

      Burroughs agreed to sign that portion of the document in which he pledged to

abide by his employer’s expectations moving forward, but he refused to sign the

portion acknowledging that Applebee’s had made a complete investigation into his



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                                     Opinion of the Court



complaint and that appropriate corrective action had been taken. According to Ms.

Roman, Burroughs

              said he would only provide me with additional details to
              support his allegations if I provided him a copy of my
              investigation report. Since I was the one that conducted the
              investigation I was the lead on that case, I expressed to him
              that I had completed a thorough investigation into his
              concerns and that the document that we were asking him
              to sign was only a tool to memorialize our previous
              conversation about alignment and moving forward and
              again continuing to provide our guests with excellent
              service. He still refused and stated that he did not agree
              and he said I guess I can’t work for you guys then. And at
              that moment we agreed to separate.

Burroughs last worked for Applebee’s on 17 July 2016.

      Burroughs filed a claim for unemployment insurance benefits on 7 August

2016. Ms. Roman reported that the reason for Burroughs’s discharge was that he had

“[f]ailed to follow instructions, policy, [and] contract.” Thereafter, a claims

adjudicator   determined      that   Burroughs       was    disqualified   from   receiving

unemployment insurance benefits pursuant to N.C. Gen. Stat. § 96-14.6(a)(b), in that

he “was discharged for misconduct connected with the work.” Burroughs appealed

that decision to the Appeals Referee, who issued a decision on 9 November 2016

concluding that Burroughs had been “discharged for insubordination,” which

amounted to “misconduct connected with his work,” thereby disqualifying him from

receiving benefits. Burroughs appealed to the Board of Review, which affirmed the

Appeals Referee’s decision.


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                                   Opinion of the Court



      Burroughs petitioned for judicial review in Wake County Superior Court. By

order entered 9 August 2017, the superior court reversed the Board’s decision and

ordered that “the agency shall [ensure] that [Burroughs] receives the unemployment

benefits to which he is entitled as a matter of law.” The Division filed timely notice of

appeal from the superior court’s order.

      On appeal, the Division argues that the superior court erred by disregarding

the applicable standard of review and reversing the Board’s determination that

Burroughs was discharged for misconduct connected with his work, disqualifying him

from receiving unemployment benefits. We disagree, and affirm the superior court’s

order reversing the Board’s decision and requiring that the Division issue to

Burroughs the unemployment benefits to which he is entitled.

                                Standard of Review

      The instant appeal arises under N.C. Gen. Stat. § 96-15(i).

             The statute provides in relevant part that in any judicial
             proceeding under this section, the findings of fact by the
             [Division], if there is any competent evidence to support
             them and in the absence of fraud, shall be conclusive, and
             the jurisdiction of the court shall be confined to questions
             of law. Thus, findings of fact in an appeal from a decision
             of the Employment Security Commission are conclusive on
             both the superior court and this Court if supported by any
             competent evidence.

James v. Lemmons, 177 N.C. App. 509, 513, 629 S.E.2d 324, 328 (2006) (quotation

marks and citation omitted). The Division’s conclusions of law are reviewed de novo.



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                                   Opinion of the Court



Carolina Power & Light Co. v. Emp’t Sec. Comm’n of N.C., 363 N.C. 562, 564, 681

S.E.2d 776, 778 (2009). A determination that an employee’s unemployment is due to

misconduct connected with the work is a conclusion of law, and is therefore reviewed

de novo. Bailey v. Div. of Empl. Sec., 232 N.C. App. 10, 11, 753 S.E.2d 219, 221 (2014).

                                     Discussion

      Pursuant to N.C. Gen. Stat. § 96-14.6, an individual will be disqualified from

receiving unemployment benefits if the individual is discharged due to “misconduct

connected with the work.” N.C. Gen. Stat. § 96-14.6(a) (2017). The burden is on the

employer to show that a claimant is unemployed due to misconduct, thereby

disqualifying the individual from receiving unemployment benefits. Intercraft Indus.

Corp. v. Morrison, 305 N.C. 373, 376, 289 S.E.2d 357, 359 (1982).

      While an employer may be within its right in terminating an employee, this

fact alone is not necessarily determinative of the employee’s right to receive

unemployment benefits. However, an employee who is fired for “misconduct

connected with the work” will be disqualified from receiving unemployment benefits.

Williams v. Davie Cty., 120 N.C. App. 160, 165, 461 S.E.2d 25, 29 (1995). In the

context of the statute, “misconduct” means “conduct which shows a wanton or wilful

disregard for the employer’s interests, a deliberate violation of the employer’s rules,

or a wrongful intent.” Intercraft Indus. Corp., 305 N.C. at 375, 289 S.E.2d at 359; see

also N.C. Gen. Stat. § 96-14.6(b) (defining “misconduct connected with the work”).



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                                  Opinion of the Court



      Nevertheless, “[v]iolating a work rule is not willful misconduct if evidence

shows the employee’s actions were reasonable and were taken with good cause.”

Williams, 120 N.C. App. at 164, 461 S.E.2d at 28. “Good cause is a reason which would

be deemed by reasonable men and women valid and not indicative of an unwillingness

to work.” Id. Indeed, “[t]he purpose of denying a discharged employee unemployment

benefits because of misconduct connected with work is to prevent these benefits from

going to employees who lose their jobs because of callous, wanton and deliberate

misbehavior.” Id. at 165, 461 S.E.2d at 29 (quotation marks omitted). In that respect,

one of the key considerations in determining, as a matter of law, whether an employee

was discharged for “misconduct connected with the work” is whether the

circumstances “display[ed] wrongful intent” in the employee’s actions. Id. at 164, 461

S.E.2d at 28.

      In the instant case, the Division found that Burroughs was discharged from

employment for “insubordination” based solely upon Burroughs’s refusal to sign a

portion of the document that was presented to him in response to his complaint

against the assistant manager. Burroughs communicated his support for, and

willingness to sign, those portions of the agreement concerning his employer’s future

expectations; however, he declined to sign that portion acknowledging that his

employer had fully investigated the allegations of his grievance and had taken

appropriate corrective action.



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                                    Opinion of the Court



       The Division’s findings of fact that Burroughs was terminated on the grounds

of insubordination are supported by competent evidence, and are thus binding on

appeal. James, 177 N.C. App. at 513, 629 S.E.2d at 328. Accordingly, the only issue

remaining on appeal is whether, as a matter of law, Burroughs’s refusal to attest that

his employer had conducted a complete investigation into his internal complaint and

taken appropriate “corrective actions” in response constituted “misconduct connected

with the work.” The superior court concluded that such “insubordination” did “not

rise to the level of misconduct” sufficient to disqualify Burroughs from receiving

unemployment insurance benefits. Williams, 120 N.C. App. at 165, 461 S.E.2d at 28.

We agree.

       Burroughs’s refusal to attest to the completion of the investigation or the

appropriateness of the corrective action that had been taken did not show a “wanton

. . . disregard for [his] employer’s interests, a deliberate violation of [its] rules, or a

wrongful intent,” Intercraft Indus. Corp., 305 N.C. at 375, 289 S.E.2d at 359, but was

instead “a reasonable response” to the disagreement at hand, Williams, 120 N.C. App.

at 165, 461 S.E.2d at 28. Moreover, Burroughs’s reluctance to acknowledge that his

employer had conducted a complete investigation in no way prevented his employer

from closing that investigation. See Umstead v. Emp’t Sec. Comm’n, 75 N.C. App. 538,

541, 331 S.E.2d 218, 220 (“In this case, there were no logistical problems sufficient to

constitute misconduct under the statute, caused by [the employee].”), disc. review



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                                   Opinion of the Court



denied, 314 N.C. 675, 336 S.E.2d 405 (1985). The record reveals “no refusal to report

to work or to perform an assigned task,” in that Burroughs readily agreed to sign that

portion of the document indicating his willingness to move forward and to abide by

his employer’s expectations. Id.

      In these respects, the Division’s findings and the evidence before it do not

support a conclusion that Burroughs’s insubordination constituted “callous, wanton

and deliberate misbehavior.” Williams, 120 N.C. App. at 165, 461 S.E.2d at 29

(quotation marks omitted). The superior court therefore correctly concluded that

Burroughs’s employer failed to meet its burden of showing that his conduct “rose to

the level of culpability required for a finding of ‘misconduct’ within the meaning of

the statute.” Umstead, 75 N.C. App. at 542, 331 S.E.2d at 221.

      Accordingly, we affirm the superior court’s order reversing the Division’s

decision that Burroughs is disqualified from receiving unemployment insurance

benefits.

      AFFIRMED.

      Judges STROUD and MURPHY concur.




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