Case No.

: 5307895
CL T/PET: Margaret M Perotti
Parties Appearing: Claimant
Parties Appearing by Written Statement:
ISSUE STATEMENT
San Jose Office of Appeals
ALJ: T.J. Minor
None
The claimant appealed from a determination disqualifying the claimant for
unemployment benefits under Unemployment Insurance Code section 1256. The
issue in this case is whether the claimant was discharged for misconduct
connected with the most recent work.
An additional issue is whether the appeal was filed within 20 days from the date
the department's notice was mailed and, if not, whether there is good cause to
extend the 20-day deadline.
FINDINGS OF FACT
The claimant worked for the employer City of Carmel for about 24 years, most
recently as a code enforcement office for the building department earning $34.27
per hour. The employer placed her on administrative leave and subsequently
discharged her effective March 26, 2014. The employer discharged reportedly for
accessing or attempting to access co-worker's emails, accessing or attempting to
access documents and information from the employer's computer system and
computers of other employees which were outside her authority to access,
improperly installing CCieaner (a software program used for deleting files) and
using such to improperly delete files from her computer, and for using her office
computer without authority for purposes pertaining to her outside business.
In fact, the claimant did not commit any of the acts alleged by the employer or
knowingly violate any policies of the employer. The claimant did not access or
attempt to access co-worker's emails, access or attempt to access documents or
information from the employer's computer system or computers of other
employees, did not install a CCieaner program or improperly delete files from her
computer The claimant's use of her computer with respect to her outside business
had been known, condoned and authorized by her superiors for several years.
She received no warning for any prior similar conduct, and had no prior disciplinary
record with the employer.
The department mailed an adverse Notice of Determination to the claimant on June
11, 2014; an appeal therefore was due July 1, 2014. The claimant did not submit
her appeal until around August 25, 2014. The appeal was late because the
5307895-2-140924 2
claimant was not at home when the adverse notice was delivered to her. She was
at that time in Oregon to visit her ailing mother. Sadly, her mother passed June 12,
2014, and the claimant remained in Oregon for several weeks to see to the funeral
arrangements and to start managing her mother's estate. Shortly after her return to
California, and before she had an opportunity to consider the Notice, her uncle
passed, shortly also followed by the passing of a loved pet. The combined effects
of these events caused her to suffer from extreme depression, for which she
sought and obtained professional care. The depression substantially diminished
her ability to respond to important matters, including submission of an appeal,
resulting in the delay here.
REASONS FOR DECISION
An appeal from a determination must be filed within 20 days of mailing or
personal service of the notice. The time to appeal may be extended for good
cause, which includes, but is not limited to, mistake, inadvertence, surprise, or
excusable neglect. (Unemployment Insurance Code, section 1328.)
In the present case. the claimant submitted her appeal late due to surprise, that is,
the notice was delivered to her while she was away from home, attending to her
mother's funeral and estate. and thus the appeal already was overdue by the time
she returned to her home. The further delay was attributable to the distraction and
depression which were the natural and actual consequences of the deaths of her
loved ones. and thus due to inadvertence and excusable neglect. The time to
appeal is extended.
In determining the credibility of a witness, as provided in section 780 of the
Evidence Code, the administrative law judge may consider any matter that has
any tendency in reason to prove or disprove the truthfulness of the testimony at
the hearing, including the demeanor of the witness while testifying and the
manner in which the witness testifies, the character of the testimony of the
witness, and the extent of the capacity of the witness to perceive, to recollect, or
to communicate any matter about which the witness testifies.
Testimony given at the hearing under oath and subject to cross-examination is
generally entitled to greater weight than hearsay statements, whether or not such
statements are signed under penalty of perjury. (Precedent Decisions P-B-218,
P-B-293, and P-B-378.)
If weaker and less satisfactory evidence is offered when it was within the power
of the party to produce stronger and more satisfactory evidence, the evidence
offered should be viewed with distrust. (Evidence Code, section 412.)
5307895-2-140924 3
In the present case, the claimant's testimony denying the allegations of the
employer is believed. Her demeanor during her testimony was deliberate and
calm, her testimony forceful, candid and consistent, and she demonstrated a
good capacity to recollect and communicate the matters to which she testified.
These are all characteristics of a credible and compelling witness. Further, there
is no evidence she had the technical acumen to undoubtedly necessary to
successfully invade the employer's computer system as alleged, and so her
denial is believed as being inherently probable. Her testimony that her use of the
computer for business purposes was known and condoned by her supervisors for
years, is believed, as inherently probable, as she had operated the business, a
local tattoo parlor, for fifteen years, and over those many years she frequently
was contacted by officials from the City of Carmel and other local municipalities,
through her business email address, to discuss her tattoo business. Such "use"
was thus, in effect, open and notorious, yet there is no evidence that the
employer advised her such use was improper. The best evidence rather is the
employer knew of and participated in that use, without objection or admonition.
The employer's "factual basis" for the termination, so called in its letter of March 26,
2014 presented by the employer for the hearing, apparently is the "systems
surveillance log" purportedly listing the individual uses of the claimant's computer to
access other employee's computers and emails. The foundation for this evidence is
substantially lacking. Further, the conclusions asserted by the employer concerning
that surveillance log data were substantially and compellingly debunked by a
technical analysis report presented by the claimant at the hearing. The employer
had the ability to present witness testimony to support its conclusions but failed to
do so. This gives further cause to view the employer's evidence with distrust. As a
result of the foregoing, the claimant's credible testimony was entitled to and was
given greater weight than the employer's hearsay evidence, resulting in the
Findings of Fact, above.
An individual is disqualified for benefits if he or she has been discharged for
misconduct connected with his or her most recent work. (Unemployment
Insurance Code, section 1256.)
"Misconduct connected with the work" is a substantial breach by the claimant of
an important duty or obligation owed the employer, wilful or wanton in character,
and tending to injure the employer. (Precedent Decision P-B-3, citing Maywood
Glass Co. v. Stewart (1959) 170 Cai.App.2d 719.)
Misconduct should not be found in the absence of a prior warning for an
infraction which is the same or similar to that which resulted in the discharge
decision. (Precedent Decision P-B-293.)
5307895-2-140924 4
The employer has the burden of proving misconduct. (Prescod v. California
Unemployment Insurance Appeals Board (1976) 57 Cai.App.3d 29.)
In the present case, the evidence has failed to demonstrate the claimant
knowingly violated any policy or duty she owed the employer. The employer had
not warned her previously about any similar conduct. Despite the numerous
allegations of wrongdoing, the employer presented no evidence of any motive for
the claimant to invade her co-workers' emails or access and destroy any of the
employer's documents. Such tends strongly to further undercut the credibility of
the accusations. The employer has not met its burden of proving the claimant
willfully or wantonly breached an important duty. It is therefore found that the
claimant was discharged for reasons other than misconduct and is qualified
under code section 1256. Benefits are payable provided the claimant is otherwise
eligible.
DECISION
The time to appeal is extended. The Department determination is reversed. The
claimant is qualified under code section 1256. Benefits are payable provided the
claimant is otherwise eligible.
//TJM
1/2
5307895-2-140924 5
Case No.: 5307896
CL T/PET: Margaret M Perotti
Parties Appearing: Claimant
Parties Appearing by Written Statement:
ISSUE STATEMENT
San Jose Office of Appeals
ALJ: T.J. Minor
None
The claimant appealed from a determination that held the claimant not eligible for
benefits under Unemployment Insurance Code section 1253(c) beginning May 4,
2014. The issue in this case is whether the claimant was available for work.
An additional issue is whether the appeal was filed within 20 days from the date
the department's notice was mailed and, if not whether there is good cause to
extend the 20-day deadline.
FINDINGS OF FACT
The claimant most recently worked as a code enforcement officer for the city of
Carmel. The employer discharged her March 26. 2014. She opened a claim for
unemployment insurance benefits and was given a beginning date of May 4.
2014. The department understood that the claimant was an owner/operator of
her own business, a tattoo parlor, and on that basis concluded that the claimant
was not available for work during the normal hours of her usual occupation as a
code enforcement officer.
The claimant worked for the City of Carmel for 24 years. She also owned and
operated her tattoo parlor for the final 19 years of that employment. The vast
majority of the actual tattooing in her business was and is performed by
independent contractors. Her actual involvement historically has been and
presently is limited substantially to working at night. At no time did her
involvement with the tattoo business limit her ability to work full-time for the City
of Carmel. To the extent she performs any self-employment during the normal
occupational hours of a code enforcement officer, such is only to generate
income during her time of unemployment At all times during her unemployment
claim she has been seeking suitable full-time employment, and at all such times
she has been willing and able to accept any offer of suitable employment. She
has placed no restrictions on her willingness to accept suitable employment.
The department mailed an adverse Notice of Determination to the claimant on June
11, 2014; an appeal therefore was due July 1, 2014. The claimant did not submit
her appeal until around August 25, 2014. The appeal was late because the
claimant was not at home when the adverse notice was delivered to her. She was
at that time in Oregon to visit her ailing mother. Sadly, her mother passed June 12,
5307896-2-140924 2
2014, and the claimant remained in Oregon for several weeks to see to the funeral
arrangements and to start managing her mother's estate. Shortly after her return to
California, and before she had an opportunity to consider the Notice, her uncle
passed, shortly also followed by the passing of a loved pet. The combined effects
of these events caused her to suffer from extreme depression, for which she
sought and obtained professional care. The depression substantially diminished
her ability to respond to important matters, including submission of an appeal,
resulting in the delay here.
REASONS FOR DECISION
An appeal from a determination must be filed within 20 days of mailing or
personal service of the notice. The time to appeal may be extended for good
cause, which includes, but is not limited to, mistake, inadvertence, surprise, or
excusable neglect. (Unemployment Insurance Code, section 1328.)
In the present case, the claimant submitted her appeal late due to surprise, that is,
the notice was delivered to her while she was away from home. attending to her
mother's funeral and estate. and thus the appeal already was overdue by the time
she returned to her home. The further delay was attributable to the distraction and
depression which were the natural and actual consequences of the deaths of her
loved ones, and thus due to inadvertence and excusable neglect. The time to
appeal is extended.
A claimant is eligible to receive benefits with respect to any week only if the
claimant was able to work and available for work for that week. (Unemployment
Insurance Code, section 1253(c).)
In People v. Nest ( 1942) 53 Cai.App.2d (Supp.) 856, the claimant opened a
clothing business after failing to find employment. He supervised the business,
and spent from one to five hours each day, and most of each evening, helping
with trade to the extent it was necessary. The business operated at a loss and
the claimant closed it after three months. During this entire time, he continued to
look for employment, his presence was not necessary in the business, and he
was physically able to work. He had not refused any offer of suitable work, and
he was registered for work with the department. The court held there was no
substantial evidence that the claimant was not available for work.
A claimant is not available for work under section 1253(c) of the Unemployment
Insurance Code if activities in self-employment occupy the days and hours
normally required of a person in the claimant's usual, or a suitable, occupation. A
proper consideration under the statute is whether the claimant is willing to drop
self-employment for suitable work. On the other hand, if the self-employment
occurs during days and hours which would not interfere with the claimant's usual,
5307896-2-140924 3
or a suitable occupation, the claimant may be available for work.
(15 Ops.Cai.Atty.Gen. 311.)
In the present case, the fact the claimant owns a business does not establish she
is not available to accept and perform suitable employment. The claimant
successfully owned her business for 19 years while working full-time for the City.
Such ownership did not make her unavailable for work for those nineteen years,
and does not make her unavailable for work now simply because she has filed an
unemployment claim, as she has at all times been searching for and willing to
accept an offer of suitable employment, and has placed no restrictions on her
willingness to accept suitable employment. The claimant has demonstrated she
has been available for employment under code section 1253(c) beginning May 4,
2014. Accordingly, the claimant is eligible for benefits under code section 1253(c)
beginning May 4, 2014.
DECISION
The time to appeal is extended. The department determination is reversed. The
claimant is eligible for benefits under code section 1253(c) beginning May 4,
2014. Benefits are payable provided the claimant is otherwise eligible.
/IT JM
1/4
5307896-2-140924 4