Following the grant of its discretionary application, the Fulton County School District (the “District”) appeals the superior court’s order reversing the denial of unemployment benefits to Jan Hersh and awarding her attorney fees under OCGA § 9-15-14. We affirm the superior court’s reversal of the denial of benefits, but we vacate the award of attorney fees against the District, and remand that issue for further consideration by the trial court.
In considering an appeal from an award or denial of unemployment benefits, “the trial court, as well as this [C]ourt, must affirm if there is any evidence to support that ruling. And we will uphold the [Georgia Department of Labor’s (‘DOL’)] factual findings if there is any evidence to support them.” (Citations omitted.) MCG Health v. Whitfield,
The record here demonstrates that Hersh was a tenured seventh-grade teacher at a Fulton County middle school, when in December 2010, during a lesson on the transcontinental slave trade, she showed her “gifted” social studies class a nine-minute
Hersh then applied to the DOL for unemployment benefits, and the District submitted information in response stating that Hersh was discharged on February 2, 2011, for “insubordination, willful neglect of duties [and] any other good [and] sufficient cause.” The DOL denied Hersh’s claim under OCGA § 34-8-194 (2) (A) based on a finding that she was fired because she “did not meet the standard of conduct your employer has the right to expect by showing a nine minute movie clip from a rated ‘R’ movie to 7th grade students,” which “is the same as violating an employer rule.” Hersh then sought an administrative hearing on her claim (the “DOL Hearing”).
During that hearing, a human resources specialist for the District identified the District’s guidelines for showing movies in the classroom. The guidelines state that “VHS/DVD rated PG, PG13, or R may not be shown without prior written permission from the principal.” The guidelines further state that “VHS/DVD, rated PG or PG13, requires parental permission to be shown at the elementary or middle school levels. R rated VHS/DVD cannot be shown at the high school level without parental permission.” The specialist testified, over obj ection, that Hersh violated the policy by showing the “R” rated YouTube clip without prior permission.
A human resources personnel investigator for the District testified that she interviewed Hersh in connection with the charges against her. During that interview, Hersh admitted that she was aware of the District’s policy regarding movies on VHS or DVD. But she did not know she could not show a YouTube clip without permission, and she did not know the movie was rated “R.” Hersh told the investigator that in retrospect she regretted showing the clip. The investigator testified that even if Hersh did not know the movie was rated “R,” she violated board policy by showing it without prior permission. The investigator’s written report of the interview indicates that Hersh admitted making an error in judgment and that “she failed to follow county and school procedure.” The transcript of the interview reflects, however, that although Hersh admitted it was an error in judgment and that she did not follow procedure, she said that she did not do it intentionally.
Hersh testified at the DOL Hearing that she reviewed the clip before she showed it to her class and that she thought it was appropriate for a gifted seventh-grade class, even though it included brief, “National Geographic [-] type” nudity and scenes of violence that were “definitely not lollipops and sunshine.” She did not know that the movie Amistad was rated “R,” and she said no District guidelines existed with regard to internet clips, although she believed that such a policy was created after she was terminated. Rather, at the time Hersh showed the clip, she did not think she had failed to follow any required protocol because other teachers and she often used YouTube in their classes without prior permission. And the students themselves could access YouTube on school computers. If she had shown the movie in DVD or VHS format, however, she would have gotten prior permission.
The administrative hearing officer found that Hersh was aware of the policy requiring
In considering Hersh’s appeal, the superior court reviewed the evidence from both the DOL Hearing and the Termination Hearing, which included testimony from a number of witnesses who did not testify at the DOL Hearing. In addition, the superior court took “judicial notice that the decision to terminate [Hersh] was reversed by the State Board of Education. Likewise, the Court [took] judicial note of [Hersh’s] reinstatement and reimbursement of all lost wages and benefits.” The superior court concluded that the record contained no evidence that Hersh had deliberately violated a school policy. The superior court also found that although Hersh might have been guilty of a lapse in judgment, tenured teachers may not be dismissed based upon a single negligent act. See Terry v. Houston County Bd. of Ed.,
1. We first address the District’s argument that the superior court erred in considering evidence from the Termination Hearing in its review of the DOL decision. And, in fact, the transcript from the DOL Hearing contains no indication that the Termination Hearing transcript was ever admitted into evidence. Moreover, the DOL Hearing officer indicated that she would only “focus on what Ms. Hersh testifies to in regards to the transcript,” that is, what Hersh says she testified to at the Termination Hearing. Nevertheless, the DOL chose to include the entire Termination Hearing transcript in the “Certified Record of the Board of Review” it filed in response to Hersh’s appeal to the superior court,
Under OCGA § 34-8-194 (2) (A), an individual shall be disqualified for unemployment benefits if he or she was discharged “for failure to obey orders, rules, or instructions or for failure to discharge the duties for which the individual was employed as determined by the Commissioner [of Labor] according to the circumstances in the case.” Therefore, “[i]f the employee refuses to comply with a specific, equitably applied and reasonable rule, then the employer may fire him or her for misconduct and be confident that no unemployment compensation benefits ... will be paid.” (Emphasis supplied.) Millen v. Caldwell,
Under OCGA § 34-8-194 (2) (B), however,
[a]n individual shall not be disqualified for benefits under subparagraph (A) of this paragraph if, based on the rules and regulations promulgated by the Commissioner, the Commissioner determines: (i) The individual made a good faith effort to perform the duties for which hired but wassimply unable to do so; (ii) The individual did not intentionally fail or consciously neglect to perform his or her job duties.
An employer, therefore, must demonstrate that the termination was caused by “the deliberate, conscious fault” of the employee before he or she may be disqualified from receiving unemployment benefits. (Citation and punctuation omitted.) Barron v. Poythress,
This is in keeping with the strong public policy favoring payment of unemployment benefits to persons unemployed through no fault of their own. OCGA § 34-8-2. Disqualification is an exception to the statutory scheme for unemployment benefits and the employer must show by a preponderance of the evidence that disqualification is appropriate.
(Citations and punctuation omitted; emphasis in original.) Barron v. Poythress,
Accordingly, unemployment “benefits should not be denied to an employee who has been fired for failure to comply with unknown work requirements, or requirements which could not have been reasonably anticipated.” (Emphasis in original.) Millen v. Caldwell,
The DOL hearing officer never made a finding of deliberate, conscious fault on Hersh’s part. Instead, the hearing officer found that Hersh “should have reasonably known” that she was required to obtain prior permission and that she “failed to use the degree of care” of someone in her position. Although the evidence demonstrated that the District had guidelines for showing VHS and DVD movies in the classroom, these guidelines are not a model of clarity. For example, although the guidelines require a teacher to obtain prior parental permission before showing a “PG” or a “PG13” rated VHS or DVD to middle school students, they contain no such requirement for “R” rated movies. The guidelines, however, do not prohibit showing “R” rated movies to middle school students, and they require parental permission before showing an “R” rated VHS or DVD to high school students. Moreover, the District produced no written policy addressing materials other than VHS and DVD movies, such as materials obtained from the internet.
Hersh testified that she was aware of the policies as it related to movies in the VHS and DVD formats, but she did not know at the time that it applied to internet clips, as teachers at the school often showed such clips without prior permission. And even though Hersh admitted in her investigative interview that she did not follow procedure, she said that her omission was not intentional; rather, she did not believe at the time that the procedure applied to her situation. Thus, the District failed to show by a preponderance of the evidence that Hersh intentionally refused or consciously neglected to comply with a known rule, and the superior court properly reversed the ruling of the DOL Board of Review denying Hersh benefits.
2. With regard to the award of attorney fees, the superior court found that the District
acted in bad faith when it sought to deny [Hersh’s] unemployment benefits after the tribunal panel did not substantiate the insubordination and violation of known policy allegations. [4 ] To that end, the Court further finds [the District and the DOL] caused [Hersh] unnecessary trouble and expense pursuing their frivolous claims against her.
The superior court also found that the record was “void of any evidence that [Hersh] deliberately or consciously violated any known rule or school board policy” and that Fulton County School District’s termination of Hersh “was frivolous and legally unsupportable.” It awarded Hersh attorney fees “pursuant to OCGA § 9-15-14 in the amount of $8,000.00.”
An award under OCGA § 9-15-14 (a) is mandated when a party “has asserted a... defense... with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted... defense.” OCGA § 9-15-14 (a). See also Interfinancial Midtown v. Choate Constr. Co.,
“[A]n order awarding attorney fees pursuant to [OCGA §9-15-14] must specifically state whether the award is made under OCGA § 9-15-14 (a) or (b).” (Citation omitted; emphasis supplied.) Ga. Dept. ofTransp. v. Douglas Asphalt Co.,
Since the superior court’s order awarding attorney fees to Hersh does not specify the subsection of OCGA § 9-15-14 under which it was made and does not contain the findings necessary to support such an award, the award “must be vacated and the case remanded to the superior court for consideration of the issue under the standards of awards pursuant to OCGA § 9-15-14, and to enter an award, if appropriate.” Interfinancial Midtown v. Choate Constr. Co.,
Notes
That Code section reads in pertinent part: “In any judicial proceeding under this Code section, the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall he conclusive, and the jurisdiction of the' court shall be confined to questions of law.” OCGA § 34-8-223 (b).
Under OCGA § 34-8-223 (b), in any appeal to the superior court, the Commissioner of Labor is required to “certify and file with the superior court all documents and papers and a transcript of all testimony taken in the matter, together with the board of review’s findings of fact and decision therein.”
Nevertheless, if Hersh was indeed reinstated with full benefits and back pay as the superior court’s order indicates, her entitlement to unemployment benefits may be reduced or eliminated. See Powell v. Dougherty Christian Academy,
We note, however, that the tribunal made a specific finding that playing the Amistad clip without prior approval constituted “ ‘an intentional violation of a known rule or policy.’ ” And the District apparently relied upon that finding in initiating its opposition to Hersh’s claim for unemployment benefits.
We note that in Ellis v. Caldwell,