YASMARY GONZALEZ, APPELLANT,
v.
FLORIDA UNEMPLOYMENT APPEALS COMMISSION, ET AL., APPELLEE

Fla. 3d DCA | 2010-02-10
No. 3D09-2229
Before GERSTEN, CORTIÑAS, and SALTER, JJ.
28 So. 3d 934 Florida District Court of Appeal, Third District (2010)

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Synopsis

Yasmary Gonzalez appeals the Florida Unemployment Appeals Commission's reversal of a referee's decision granting her unemployment benefits. The court reversed, finding the referee's decision was supported by competent substantial evidence and proper application of law regarding whether her termination constituted statutory misconduct.


Holding

The referee's decision was supported by competent substantial evidence and a proper application of law construing the misconduct definition liberally in favor of the claimant. The FUAC erred in reversing the referee's decision, and the award of benefits to Ms. Gonzalez must be reinstated.


Headnotes

[1] A referee's decision regarding unemployment benefits, based on competent substantial evidence and a proper application of controlling law, should not be disturbed by an a…

[2] Conduct warranting termination of employment does not always rise to the level of statutory "misconduct" for unemployment benefit purposes.

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Key Quotes

“not all conduct warranting termination of an employee arises to the level of statutory "misconduct."”

Establishes the central legal principle that termination does not automatically equal statutory misconduct for unemployment purposes

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Facts & Procedural History

Ms. Gonzalez was a five-year employee who received an 'Award of Excellence' for her 2007 work performance. She was terminated in June 2008 for alleged…

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Opinion of the Court
SALTER, J.

SALTER, J.

Yasmary Gonzalez, a non-attorney representing herself, appeals an order of the Florida Unemployment Appeals Commission (FUAC) reversing a referee’s decision that had affirmed an initial determination by the Agency for Workforce Innovation granting Ms. Gonzalez unemployment benefits. We reverse, finding that the referee’s decision was based on competent substantial evidence (including extended testimony and documentary submissions) and a proper application of controlling law.

Ms. Gonzalez was a five-year employee who received the employer’s “Award of Excellence” for her work in calendar year 2007 and was terminated in June 2008. She was ostensibly terminated for tardiness based on computer-based “punch in/ out times,” mistakes in recording certain data, and for sending an “insubordinate” email to her supervisor the day of her termination. The referee fairly concluded, however, that the supposed mistakes and tardiness in 2007 were after-the-fact matters inconsistent with the “Award of Excellence” conferred on Ms. Gonzalez for her work that year.

The referee heard the testimony of Ms. Gonzalez and two supervisors. The referee reviewed both the computer report on “punch in/out times” — with every “tardy” entry back to 2007 marked to show even one minute of “tardiness.”1 The referee also reviewed the supposed “mistakes” and the e-mail written to a supervisor on the day of the termination. The e-mail was plainly written in anger, but within it Ms. *935Gonzalez apologized for being late that morning, explained the reason, and offered to “talk regarding this issue.” The alleged insubordination in the e-mail argues that her two supervisors were not conforming to the timekeeping rules that applied to them. The referee could, and apparently did, view the e-mail and the related testimony as evidence of a garden-variety personality and management tiff rather than the statutory standard of “misconduct.”

As we have frequently noted, not all conduct warranting termination of an employee arises to the level of statutory “misconduct.” See Carson v. Fla. Unemployment Appeals Comm’n, 1 So.3d 289 (Fla. 3d DCA 2009). The referee’s assessment of such fact-intensive statutory elements as willfulness, wanton disregard, culpability, wrongful intent, evil design, or “intentional and substantial disregard” should not be disturbed by FUAC unless there is no competent substantial evidence upon which the referee’s decision might rest. Moreover, the referee was obligated by statute (as are FUAC and this Court) to construe that definition of misconduct liberally in favor of Ms. Gonzalez. § 443.031, Fla. Stat. (2008); Davidson v. AAA Cooper Transp., 852 So.2d 398, 401 (Fla. 3d DCA 2003).

Reversed and remanded for the reinstatement of the referee’s decision upholding the Agency’s award of benefits to Ms. Gonzalez.


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