June 26, 2015
Town of Elberta
Alabama Department of Labor
from Baldwin Circuit Court. (CV-14-900265).
P.J., and Pittman, Thomas, Moore, and Donaldson, JJ., concur.
Rouse was employed by the Town of Elberta (" the
town" ) in 2009 as a police officer. The town terminated
Rouse's employment on August 15, 2013. After his
employment was terminated, Rouse sought, and was denied,
unemployment-compensation benefits from the Alabama
Department of Labor (" the department" ). Rouse
appealed the denial of unemployment-compensation benefits to
an administrative hearing officer (" AHO" ) for the
department. The AHO reversed the initial denial and found
that Rouse was eligible to receive benefits; the town's
subsequent appeal to the department's Board of Appeals
(" the board" ) was denied.
town filed an appeal of the board's decision in the
Baldwin Circuit Court (" the trial court" ) on
February 28, 2014; the department answered on April 4,
2014. The trial court held a trial, at which
it received evidence ore tenus, on September 29, 2014, see
§ 25-4-95, Ala. Code 1975 (providing for appeal to the
circuit court in employment-compensation cases and stating
that " [t]rial in the circuit court shall be de
novo" ), and it entered a judgment in favor of the
department on October 3, 2014, stating that the town had
" failed to establish sufficient evidence to support the
requirements under Ala. Code 1975, § 25-4-78, for
disqualification of benefits." The town filed a motion
to alter, amend, or vacate the judgment on November 3, 2014,
which was denied by an order entered on November 18, 2014.
The town timely filed a notice of appeal to this court on
November 26, 2014. The town argues on appeal that the trial
court's findings were contrary to the great weight of the
evidence and that the trial court applied incorrect standards
first note that the findings of a trial court in an
unemployment-compensation case tried orally before a trial
court, sitting without a jury, are presumed correct unless
shown to be clearly contrary to the great weight of the
evidence, see Adams v. Allen, 586 So.2d 17, 19
(Ala.Civ.App. 1991); however, the facts in the present case
are essentially undisputed. " [O]n appeal, the ruling on
a question of law carries no presumption of correctness, and
this Court's review is de novo." Ex parte
Graham, 702 So.2d 1215, 1221 (Ala. 1997) (citing
Helms v. Helms' Kennels, Inc., 646 So.2d 1343
(Ala. 1994), and First Mercury Syndicate, Inc. v.
Franklin Cnty., 623 So.2d 1075 (Ala. 1993)).
25-4-78, Ala. Code 1975, provides, in pertinent part:
" An individual shall be disqualified for total or
" (3) Discharge For Misconduct.
" b. If he was discharged from his most recent bona fide
work for actual or threatened misconduct committed in
connection with his work ... repeated after previous warning
to the individual. ..."
record indicates that, while working the night shift on June
16, 2013, Rouse was involved in a car chase in which he
damaged his patrol car. According to Rouse, after the car
chase ended at approximately 4:00 a.m., he noticed a mailbox
leaning over near where his vehicle had stopped. Suspecting
that his car may have collided with the mailbox, Rouse, using
a flashlight due to the darkness, visually inspected his
vehicle, observing no damage. Rouse did not later inspect the
car at the end of his shift in the daylight. However, when
Rouse reported for the beginning of his shift the next day,
he discovered that the patrol car had been damaged.
DeVane, the town's chief of police, testified that it was
standard operating procedure for police officers to inspect
their patrol cars at the beginning and the end of their
shifts. Chief DeVane further testified that it was also
standard operating procedure for police officers who are
involved in incidents resulting in damage to a patrol car to
take a drug test immediately after the damage is sustained.
According to Chief DeVane, Rouse should have informed his
immediate supervisor or the town's mayor of the damage
once it was discovered, but Rouse did not follow that
standard operating procedure; instead, Rouse telephoned Chief
DeVane, who was out of town, and reported " minor"
damage to the patrol car; it was later estimated that it
would cost between $700 and $1,200 to repair the damage to
the vehicle. Chief DeVane instructed Rouse to write a report
and to photograph the damage, but he told Rouse that it was
too late by that time for Rouse to take a drug test. Chief
DeVane further opined that, had Rouse inspected the patrol
car at the end of his shift, in the daylight, he would have
discovered the damage in time to take the mandatory drug
test. Chief DeVane testified that Rouse had
previously received copies of the standard operating
procedures and that Rouse had followed those procedures when
reporting damage to his patrol car resulting from an earlier
incident in August 2012.
the June 16, 2013, incident, Chief DeVane recommended that
the mayor and the town council take disciplinary action
against Rouse. A disciplinary hearing was held, after which
the mayor and the town council decided to terminate
Rouse's employment on August 15, 2013.
town concedes that " the employer has the burden of
proving that the employee is disqualified for reasons of
misconduct." Ex parte Rogers, 68 So.3d 773, 781
(Ala. 2010). The department argued to the trial court and in
its brief on appeal to this court that Rouse's actions
following the June 16, 2013, incident did not rise to the
level of misconduct; instead, it contends that Rouse acted
reasonably when he did not discover the damage to the patrol
car until the beginning of his next shift and, at that time,
immediately reported the damage to Chief DeVane. However, the
town presented evidence indicating that Rouse was aware of
the standard operating procedures and that Rouse's
actions on June 16, 2013, violated those procedures.
the department's argument that the June 16, 2013,
incident alone did not amount to misconduct, the town argues
that Rouse was discharged as a result of multiple instances
of misconduct occurring over the course of his employment and
that the June 16, 2013, incident was merely the final
incident leading to his termination. The town presented
evidence to the trial court indicating that Rouse's
failure to comply with policies and procedures
on June 16, 2013, was not an isolated occurrence. On May 10,
2012, Rouse was issued a written reprimand for using a racial
slur on three separate occasions in 2012, which were
violations of the police department's
professional-conduct policy. Rouse was also counseled in
November 2012 for two separate incidents, the first on March
14, 2012, and the second on November 27, 2012, when he left
his patrol car running and unlocked while he went inside the
police department. The memorandum documenting those events
also stated that a memorandum had been distributed to all
police officers on February 21, 2012, addressing the security
and operation of patrol cars and that Rouse's actions on
March 14 and November 27, 2012, violated the policy set out
in the February 21, 2012, memorandum.
on November 24, 2012, Rouse responded to a call from the
Foley Police Department for assistance with a drug
investigation. While at the crime scene, Rouse removed an
iPad tablet computer (" the iPad" ) from among
other items that the suspects had thrown from the window of
their vehicle and took the iPad with him when he left the
crime scene. According to Rouse, he did not initially believe
the iPad was part of the crime scene, but, later that day, he
contacted the Foley police officers responsible for the crime
scene, admitted that he had taken the iPad, and returned it
to the crime scene. Chief DeVane testified that, because of
Rouse's actions, the Foley chief of police had advised
him that Rouse was not to assist the Foley Police Department
in any future capacity. Chief DeVane further testified that
removing items from a crime scene was also a violation of the
town's police department policies and procedures.
department, citing Ex parte Rogers, supra, argues in its
brief on appeal that " [i]f the final act for which an
employee was terminated does not constitute misconduct then
... § 25-4-78(3)(b) does not apply." This argument
is based largely upon a parenthetical reference in Ex parte
Rogers, which described the holding in Boynton Cab Co. v.
Neubeck, 237 Wis. 249, 258, 296 N.W. 636, 640 (1941), as
being that " mere mistakes, errors of judgment, etc., do
not constitute 'misconduct'; otherwise, the benefit
of the unemployment-compensation statute would be defeated as
to many of 'the less capable industrial workers, who are
in the lower income brackets and for whose benefit the act
was largely designed ....'" 68 So.3d at 781.
However, after a careful reading, it is clear that our
supreme court made no such holding in Ex parte Rogers. After
a detailed legal analysis, the sole holding of our supreme
court in Ex parte Rogers was that the employer has the burden
of proving that an employee is disqualified from receiving
unemployment-compensation benefits due to misconduct.
Id. The supreme court cited Boynton Cab Co., supra,
only to support the argument that the statutory
disqualification provisions are to be narrowly construed, and
not to establish a binding and exclusive definition of "
misconduct." In fact, in footnote 11 of the opinion, the
supreme court specifically recognized that the parties did
not dispute that, if proven, theft of employment property
constituted misconduct, Rogers, 68 So.3d at 780
n.11, so the court had no need to define "
misconduct." See Ex parte Patton, 77 So.3d 591,
596 (Ala. 2011) (" 'Black's Law Dictionary 409
(8th ed. 2004) defines obiter dictum as: " A judicial
comment made while delivering a judicial opinion, but one
that is unnecessary to the decision in the case...."
'" (quoting Carr v. International Refining &
Mfg. Co., 13 So.3d 947, 957 n.3 (Ala. 2009)). See also
United States Steel Corp. v. Wood, 40 Ala.App. 431,
438-39, 114 So.2d 533, 540 (1959), reversed on other grounds,
269 Ala. 5, 114 So.2d 551 (1959)
(holding that court of appeals is bound to follow dicta of
supreme court only if it plainly indicates how the supreme
court would rule on the issue before the court of appeals).
Misconduct," for the purpose of § 25-4-78(3)b. has
been defined as
" 'an act of wanton or wilful disregard of the
employer's interest, a deliberate violation of the
employer's rules, a disregard of standards of behavior
which the employer has the right to expect of his employee,
or negligence in such degree or recurrence as to manifest
culpability, wrongful intent, or evil design, or show an
intentional and substantial disregard of the employer's
interest or of the employee's duties and obligations to
the employer. Moreover, a continuing recurrence of such
violations over a period of time clearly establishes such a
deliberate and wilful intent to disregard the rights of the
employer as to constitute wilful misconduct within the
meaning of such a statutory provision....'"
Henley v. Housing Auth. for City of Montgomery, 403
So.2d 265, 270 (Ala.Civ.App. 1981) (quoting 76 Am.Jur.2d 945,
Unemployment Compensation § 52). In Henley, this court
based the definition of " misconduct" on the
wording of § 25-4-78(3)b., which, at that time, provided
that " actual or threatened deliberate misconduct
committed in connection with his work" would disqualify
a claimant for unemployment benefits. (Emphasis added.) In
1982, our legislature struck the word " deliberate"
from the statute. Ala. Acts 1982, Act No. 82-372. After
noting that legislative action, this court, in Williams
v. James, 446 So.2d 631, 633 (Ala.Civ.App. 1984), held
that " [t]he continued failure of an employee to perform
his job in a manner which previous performance indicates is
contrary to his experience and ability may be found to be
misconduct under section 25-4-78(3)(b), [Ala.] Code
1975." See also Davis v. Department of Indus.
Relations, 465 So.2d 1140, 1142 (Ala.Civ.App. 1984);
Rubin v. Department of Indus. Relations, 494 So.2d
82, 83 (Ala.Civ.App. 1986); Fugate v. State Dep't of
Indus. Relations, 612 So.2d 1226, 1229 (Ala.Civ.App.
1992); and Mannor Corp. v. Sanders, 624 So.2d 617,
618 (Ala.Civ.App. 1993). " Deliberate" misconduct
within the meaning of the definition set forth in Henley
remains a disqualifying event under § 25-4-78(3)b., see
e.g., Batain v. State Dep't of Indus. Relations,
606 So.2d 140 (Ala.Civ.App. 1992), and Morrison v. U.S.
Pipe & Foundry Co., 598 So.2d 946 (Ala.Civ.App. 1992),
but, as Williams demonstrates, it is no longer the exclusive
form of disqualifying misconduct.
town presented undisputed evidence indicating that Rouse had
signed documents acknowledging receipt of the town's
standard operating procedures for police officers and that he
had continually failed to comply with those procedures and
other police department policies although he had the ability
to do so. The town also presented evidence indicating that
Rouse had been warned that continued failure to follow the
policies and procedures would result in disciplinary action.
See § 25-4-78(3)b. In Williams v. James, supra, the
employee had received warnings regarding his attendance and
job performance, specifically that he had delivered the wrong
size of pipe. 446 So.2d at 633. After being warned that
further disciplinary action would be taken if his job
performance did not improve, the employee damaged equipment
with a forklift that he was operating. Id. The
employer determined that to be the " last straw"
and discharged the employee. Id. This court affirmed
the denial of unemployment-compensation benefits, concluding
that the employee had been warned that further action would
be taken if his performance did not improve.
Id. We find Williams instructive in the present
case. The record before us indicates that Rouse had been
reprimanded for various violations of the policies and
procedures of the town's police department and that he
had been warned that continued failure to comply with
policies and procedures would result in disciplinary action.
department points out the potential for abuse of §
25-4-78(3)b. should employers be allowed to cite instances of
misconduct that may have occurred at any point throughout an
employee's tenure, however remote in time. Although the
department raises a valid concern, it is not applicable to
the present case. In Fugate v. State Department of
Industrial Relations, supra, this court affirmed a trial
court's judgment determining that Fugate had been fired
for misconduct, stating that " Fugate had been involved
in three incidents in approximately two years which resulted
in disciplinary action against him." 612 So.2d at 1229
(emphasis added). In the case before us, the town presented
evidence of documented instances of Rouse's failure to
comply with policies and procedures of the town's police
department, all of which occurred in either 2012 or 2013
before the termination of Rouse's employment on August
15, 2013. Therefore, we cannot conclude that the behavior
cited by the town as misconduct occurred too remotely in time
to be considered in the case at hand.
conclusion, the record clearly indicates that the town
presented undisputed evidence indicating that Rouse's
employment was terminated not just for one, but for several,
instances of documented misconduct and that he had been
warned that continued misconduct would result in disciplinary
action. Based upon the foregoing, we conclude, as a matter of
law, that Rouse was disqualified from receiving
unemployment-compensation benefits for reasons of misconduct.
Therefore, the judgment of the trial court is reversed, and
the cause is remanded for the trial court to enter a judgment
consistent with this opinion.
AND REMANDED WITH INSTRUCTIONS.
P.J., and Pittman, Thomas, Moore, and Donaldson, JJ., concur.
Although Rouse participated in the appeal
before the trial court, the town's appeal named the board
as the only defendant; the department, not the board,
participated in the appeal before the trial court and is the
appellee in this court.
The town does not allege that Rouse had
consumed any substance that would have impaired his ability
to perform his job.