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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2 SARAH GRAY,

 3          Petitioner-Appellant,

 4 v.                                                                            NO. 32,194

 5   CHEROKEE NATION INDUSTRIES (CNI)
 6   PROFESSIONAL SERVICES LLC and
 7   NEW MEXICO DEPARTMENT OF
 8   WORKFORCE SOLUTIONS,

 9          Respondent-Appellee.


10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11 Beatrice J. Brickhouse, District Judge


12   University of New Mexico
13   Southwest Indian Law Clinic
14   Andrea Seielstad, Supervising Attorney
15   Dane Lauritzen, Clinical Law Student
16   Albuquerque, NM

17 for Appellant

18   Office of General Counsel
19   New Mexico Department of Workforce Solutions
20   Marshall J. Ray
21   Elizabeth A. Garcia
22   Albuquerque, NM
 1 for Appellee


 2                            MEMORANDUM OPINION

 3 KENNEDY, Judge.

 4       Sarah Gray (Petitioner) has filed a petition for writ of certiorari from the district

 5 court’s order affirming the decision of the Secretary of the Department of Workforce

 6 Solutions (Department) that denied her unemployment benefits. We granted the

 7 petition and issued a notice of proposed summary disposition, proposing to reverse.

 8 The Department has filed a response to our notice. Petitioner has filed a motion to

 9 dismiss the Department’s response and a reply. The Department has filed a reply to

10 the motion to dismiss. We have considered the parties’ pleadings. We deny

11 Petitioner’s motion to dismiss the Department’s response and reverse the

12 Department’s decision to deny Petitioner unemployment benefits.

13       In this appeal, Petitioner claims that she was wrongfully denied unemployment

14 benefits because her employment was terminated. Petitioner did not leave her

15 employment voluntarily within the meaning of the unemployment compensation

16 statute, NMSA 1978, § 51-1-7(A)(1) (2011). [Petition 6-12] In our notice, we

17 proposed to agree with Petitioner that the Department’s decision to deny her

18 unemployment benefits was in conflict with the New Mexico Supreme Court’s



                                               2
 1 decision in Fitzhugh v. New Mexico Department of Labor, 1996-NMSC-044, ¶ 28,

 2 122 N.M. 173, 922 P.2d 555.

 3        In response to our notice, the Department argues that sufficient facts support the

 4 Department’s decision and that we misunderstand the unemployment compensation

 5 statute, and the case law construing it. As stated in our notice, under relevant portions

 6 of the unemployment compensation statute, an individual is not entitled to receive

 7 unemployment benefits where “the individual left employment voluntarily without

 8 good cause in connection with the employment” or where the individual “has been

 9 discharged for misconduct connected with his employment[.]” Section 51-1-7(A)(1),

10 (2). In Fitzhugh, the Supreme Court interpreted Section 51-1-7(A)(1) to involve a

11 two-part analysis, requiring first a determination of whether the worker left her

12 employment voluntarily and, second, if the worker quit, whether “she did so for good

13 cause in connection with her employment.” See Fitzhugh, 1996-NMSC-044, ¶ 28.

14        The Department contends, however, that to be eligible for unemployment

15 benefits, the worker must prove that the reason he or she quit was good and was

16 related to his or her employment. [MIO 2-3, 8-12] The Department believes that

17 Fitzhugh does not apply because, in that case, the worker’s medical condition, which

18 caused her to quit, was related to her employment. [MIO 8-9] The Department also

19 argues that the opinion’s emphasis on the worker’s subjective intentions does not



                                               3
 1 overrule previous Supreme Court case law, indicating that an employee’s illness must

 2 have a connection with the employment. See LeMon v. Emp’t Sec. Comm’n, 89 N.M.

 3 549, 551, 555 P.2d 372, 374 (1976). [MIO 11]

 4        In LeMon, the issue was not whether the worker quit or was fired. The worker

 5 quit his employment and did so upon the advice of his doctor that he “discontinue any

 6 kind of employment for an indefinite period.” Id. Because the worker in LeMon had

 7 no intention of continuing to work for his employer, the inquiries involved in

 8 absenteeism due to a medical condition, including whether he was fired or whether he

 9 subjectively intended to abandon his employment, were irrelevant to the Court’s

10 determination that he voluntarily quit. The facts of the current case are not analogous

11 to LeMon. As we described fully in our notice, Petitioner consistently showed her

12 employer, Cherokee Nation Industries (CNI), that she intended to continue working

13 after she underwent surgery on the date her doctor cleared her to return to work, and

14 she even tried to return before that date. [CN 4-5] Contrary to the Department’s

15 stated concerns that an employer would have to wait indefinitely for an employee to

16 return to work for a personal, medical emergency, no such facts were presented here

17 to support such a concern. [MIO 12] CNI was aware of the date Petitioner was

18 cleared to return after her surgery, and she was absent from work for less than a

19 month, not an indefinite time, and it was less time than the worker in Fitzhugh.



                                              4
 1 1996-NMSC-044, ¶¶ 6-17. [CN 4-5] In fact, CNI ultimately refused to wait the last

 2 three days for Petitioner to return to work. [MIO 5-6]

 3        Furthermore, we disagree with the Department’s broader contention that

 4 Petitioner had to demonstrate that she quit for good cause, which was related to her

 5 employment. Fitzhugh makes it clear that where a worker voluntarily quits, to be

 6 entitled to unemployment benefits, he or she must show that it was for good cause in

 7 connection with his or her employment. See id. ¶ 28. Any connection in Fitzhugh

 8 between the worker’s medical condition and her employment was incidental, far from

 9 the dispositive factor to the entitlement to benefits that the Department regards it to

10 be. Rather, any connection between her medical condition and her work was relevant

11 only to the Court’s examination of the worker’s subjective intention to continue

12 working for her employer in a different location. See id. ¶¶ 2-3, 31.

13        We are not persuaded that Petitioner, in the current case, voluntarily abandoned

14 her employment with CNI based on the analysis in our notice and, as we stated

15 therein, the record gives no indication that Petitioner was engaged in any wilful

16 misconduct that would justify her ineligibility for unemployment benefits.

17        Accordingly, we reverse the Department’s decision to deny Petitioner

18 unemployment benefits.

19        IT IS SO ORDERED.



                                              5
1                                   _______________________________
2                                   RODERICK T. KENNEDY, Judge


3 WE CONCUR:



4 ___________________________
5 JONATHAN B. SUTIN, Judge



6 ___________________________
7 CYNTHIA A. FRY, Judge




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