Fulton County School District v. Hersh
320 Ga. App. 808
| Ga. Ct. App. | 2013Background
- Hersh, a tenured seventh-grade teacher in Fulton County, showed an Amistad clip to a gifted class; parents complained and she faced termination for insubordination and other fault.
- Termination Hearing found an intentional rule violation and the Board terminated Hersh on February 2, 2011.
- Hersh applied for unemployment benefits; the DOL denied benefits under OCGA 34-8-194(2)(A) as misconduct for violating an employer rule.
- The DOL Hearing relied on district guidelines about showing movies; Hersh admitted lack of awareness about YouTube clip policy; the tribunal found fault for not obtaining permission.
- The superior court reversed the DOL Board of Review, awarded $8,000 in attorney fees under OCGA 9-15-14, and remanded for further consideration of fee issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hersh is disqualified for benefits for deliberate fault | Hersh argues no deliberate fault shown | District contends she knowingly violated policy | No deliberate fault established; benefits reversed |
| Whether the Termination Hearing evidence was properly considered | Record should rely on DOL Hearing evidence only | Board Transcript included in record for review | Evidence from DOL Hearing alone supports reversal; Termination Hearing transcript consideration not required |
| Whether attorney fees under OCGA 9-15-14 were properly awarded | Fees justified due to bad faith and frivolous defense | Award unsupported without specifying subsection and findings | Fee award vacated and remanded for proper subsection and findings under 9-15-14 |
Key Cases Cited
- Millen v. Caldwell, 253 Ga. 112 (1984) (fault requires more than mere failure to perform duties; public policy favoring benefits)
- Barron v. Poythress, 219 Ga. App. 775 (1996) (fault defined; disqualification requires deliberate, conscious fault)
- Millen v. Caldwell, 253 Ga. 112 (1984) (reiterates standard for disqualification and public policy for benefits)
- Slade v. Butler, 317 Ga. App. 688 (2012) (ambiguous or retroactive policies may negate knowing disregard)
- Interfinancial Midtown v. Choate Constr. Co., 284 Ga. App. 747 (2007) (remand when fee award lacks statutory basis or findings)
- Ellis v. Caldwell, 290 Ga. 336 (2012) (trial court may infer subsection intent from order language; distinction in award standards)