CUIAB Margaret Perotti Case Nos. 530795, 5307896

8/11/2019 CUIAB Margaret Perotti Case Nos. 530795, 5307896

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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

o

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

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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 o 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 o 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

o

the

Evidence Code, the administrative law judge may consider any matter that has

any tendency in reason to prove or disprove the truthfulness o 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 o 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.)

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In

the present case, the claimant's testimony denying the allegations o 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

o

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 o 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 o

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

lass

Co. v

Stewart

(1959) 170 Cai.App.2d 719.)

Misconduct should not be found

in

the absence o 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.)

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The employer has the burden

o

proving misconduct.

Prescod v California

Unemployment Insurance Appeals Board (1976) 57 Cai.App.3d 29.)

n

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

o

wrongdoing, the employer presented no evidence

o

any motive for

the claimant to invade her co-workers emails or access and destroy any

o

the

employer s documents. Such tends strongly to further undercut the credibility o

the accusations. The employer has not met its burden

o

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

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Case No : 5307896

CL T/PET: Margaret M Perotti

Parties Appearing: Claimant

Parties Appearing by Written Statement:

ISSUE

ST TEMENT

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.

t

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,

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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 est (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 o 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)

o

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,

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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

o

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

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5307896-2-140924

CUIAB Margaret Perotti Case Nos. 530795, 5307896

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