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Denied unemployment

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astbnboy

Junior Member
What is the name of your state (only U.S. law)? I live in California presently but my unemployment action is in Nevada. If this is not the right topic for this please excuse the post.

Please find attached my notice of appeal for my Nevada Unemployment Claim, I have heard nothing and its been at lease a month can you guys tell me if I have a snowballs chance in hell of winning??

NOTICE OF APPEAL
Re: Case number R-09-A-18439
I herein appeal the determination in the above entitled case, this appeal will be based upon all admitted evidence, documentary, and/or oral and is incorporated by reference as though set forth in full.
Ground One: The determination was based upon the employers attendance policy (see DECISION OF THE REFEREE, hereinafter “DOTR” page 3, also see exhibit 8a, 8b ) However, the Evidence admitted at the hearing shows that:
a.) Appellant did in fact call the employer according to the stated policy (see DOTR, page 1, paragraph 5)
b.) After the initial call appellant was under no obligation to make any further calls to the employer as he was placed on Investigative Suspension, and while on said suspension appellant was prevented from reporting to work due to the company’s action, and not required to call in (see verbal testimony from employers representative Kelvin Manzanares, also see EXHIBIT 7)
Argument in support of Ground one: On page 3, paragraph 2 of the DOTR the Referee correctly finds that on my next scheduled work day I did call in
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accordance with Company policy, however the referee specifically found that I was required to call on subsequent days, and since substantial evidence supported a finding that appellant made no such calls, the referee found that appellant violated company policy and therefore was not entitled to benefits.
There are two points of contention within this argument:
1.) Firstly was the appellant required to make any additional calls to his employer after the first call given the fact that he had been placed on Investigative Suspension? In exhibit 7 a letter dated July 9, 2009, the company plainly states that on 06/15/09 the appellant was placed on investigative suspension, furthermore under direct examination Mr. Manzanares stated that there is no requirement for an employee on investigation suspension to call in to work. According to the evidence found to be true by the Referee the appellant’s last day at work was 06/14/09 thus, if the appellant was placed on investigative suspension on 06/15/09 there couldn’t have been any obligation on the part of the appellant to call in to work. Had the company taken the appellant off investigative suspension at any point after 06/15/09, the appellant would have been obligated to call in and fully comply with the requirements of the company’s’ attendance policy, however, the company never took appellant off suspension, they instead simply terminated appellants employment
2.) Secondly, assuming the argument that there was some failure to call on appellants part, or that appellants actions where somehow defective, the company by their actions in “effort to hold your employment status” (see exhibit 7) have condoned the appellants actions and are prohibited from firing the appellant based on that same set of facts.(see LEE V. EMPLOYMENT SECURITY DEPARTMENT, 709 P.2d 1016 (1985) [Supreme Court of Nevada]
Conclusion: In conclusion the record will reflect that the appellant complied fully with the company’s attendance policy in terms of calling in. Appellant had no duty to call after the first day due to the fact he was placed on Investigative suspension. The company cannot use the same set of facts to terminate appellant when they have approved or condoned the claimed misconduct.
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Respectfully submitted,
 


swalsh411

Senior Member
See folks this is a prime example of why you shouldn't try to write like a lawyer if you aren't a lawyer.

First of all, you never need to lay out your case in the appeal. All you need to do is say you are appealing the decision.

Secondly, of all this has nothing to do with whether or not the company can or cannot terminate you. Nothing you have posted indicates your termination was unlawful. The issue is whether or not you are disqualified from unemployment, not whether or not your termination was lawful.

Thirdly, I don't see what Lee vs ESD has anything to do with your case.

Fourthly, without knowing WHY you were disqualified it is hard to gauge your chance at success. Were you disqualified for not calling in every day? Or were you disqualified for whatever behavior lead to your eventual termination after the investigation was completed?
 

commentator

Senior Member
From the sound of this, after wading through this gumbo for a while, it appears you have had both an initial decision in which you were denied, you made an appeal, requested and have had a hearing, with both parties present in front of an appeals referee, after which you received a second decision denying your benefits.

If this is the case, then no, in my opinion, you do not have much of a chance at all. Because the next step is to take the decision on to the Board of Review. All the board of Review does is review the case, and determine if unemployment law was followed in the hearing. You have, in this letter, requested an appeal, which is good. But in the board of review appeal, no evidence is presented, they simply look over it all, look at the hearing transcripts, and determine if the decision was valid. Usually it was.

There is a large hole in this whole verbose piece of work. Because if the only issue in the discharge was that you failed to call in while on administrative suspension, the company could still use this as a reason to terminate you. But of course, there is the elephant in the living room, the issue of why you were placed on administrative suspension in the first place. If the termination was based on attendance issues with adequate warnings and progressive discipline, the termination is going to be valid. If it says call in each day, it doesn't exempt you from calling due to your status with the company, and that any fool should have known you weren't coming in that day, cause they'd put you on suspension.

The board of Review may even decline to review your case. But eventually it is my belief you will hear something back from them. Occasionally they actually do overturn hearing decisions.

All this is based on the assumption you have already had two decisions. If you are just now requesting the second one, the hearing, that would change things a bit. But after the hearing is usually too late to retain an attorney and start making wordy appeals.
 

astbnboy

Junior Member
See folks this is a prime example of why you shouldn't try to write like a lawyer if you aren't a lawyer.

First of all, you never need to lay out your case in the appeal. All you need to do is say you are appealing the decision.

Secondly, of all this has nothing to do with whether or not the company can or cannot terminate you. Nothing you have posted indicates your termination was unlawful. The issue is whether or not you are disqualified from unemployment, not whether or not your termination was lawful.

Thirdly, I don't see what Lee vs ESD has anything to do with your case.

Fourthly, without knowing WHY you were disqualified it is hard to gauge your chance at success. Were you disqualified for not calling in every day? Or were you disqualified for whatever behavior lead to your eventual termination after the investigation was completed?
I realize that I kinda jumped you into this process without giving you the complete background, I did so because I believed any intelligent person could glen the issues from the facts given, the information that lead to this point in my view was superfluous. The reason I was fired was failure to adhere to the companies attendance policy "Misconduct" That policy required me to call in on all days that I would not appear for work.

You where immediately hostile towards me because you feel I was trying to talk like a lawyer? Firstly, if you felt that way why answer in the first place, and secondly, why would someone who thinks he is a lawyer (by the way he wrote his notice of appeal) post it on a lawyer board for opinion?

To the meat of your response:

I am not a lawyer thus I don't know what I need to state in a notice of appeal to preserve my right to appeal, the notice given was in favor of more as opposed to less. There are some instances that I'm aware of where if there is a indication that the appeal is frivolous it could be dismissed out of hand and I didn't want that to happen.

next:
"Secondly, of all this has nothing to do with whether or not the company can or cannot terminate you. Nothing you have posted indicates your termination was unlawful. The issue is whether or not you are disqualified from unemployment, not whether or not your termination was lawful."
What???? I don't know but apparently you are saying that I'm challenging whether or not my termination was legal and quite honestly I don't know where you got that! Nevada is a right to work state you can be fired or quit any time for any reason, but you knew that right? I was saying that I complied fully with the attendance policy before I was fired and therefore (those legal words again..damn) there could be no misconduct.

next:
The citation speaks for itself, its available in "google scholar" go take a look, but from a layman it means that if as a employer you say "ok you were late today and we could fire for that but we are not going to" and later you do something that they could not fire you for but really pissed you off, you can not now go back and fire me for conduct you condoned or excused.

next:
I very plainly stated the findings of the hearing officer,:
"On page 3, paragraph 2 of the DOTR the Referee correctly finds that on my next scheduled work day I did call in accordance with Company policy, however the referee specifically found that I was required to call on subsequent days, and since substantial evidence supported a finding that appellant made no such calls, the referee found that appellant violated company policy and therefore was not entitled to benefits."
That seems pretty clear to me, did you bother to read it?
 

cbg

I'm a Northern Girl
Okay, I think we need to clarify a few things here.

1.) This is a free message board service, where VOLUNTEERS offer the value of their past experience.

2.) No one is required to look at or respond to any post they do not care to.

3.) No one here has a duty to respond to you.

4.) When you are asking unpaid volunteers to give their time to answer your questions, for free, it behooves you to show a bit of courtesy and respect to those who are responding.

5.) It is likewise your duty to make your posts as clear and easy to read as possible. It is not the responders' responsibility to make assumptions or guesses or read between the lines.

Maybe, if you're lucky, someone will be kind enough to respond to you. However, after that diatribe, it won't be me.
 

astbnboy

Junior Member
From the sound of this, after wading through this gumbo for a while, it appears you have had both an initial decision in which you were denied, you made an appeal, requested and have had a hearing, with both parties present in front of an appeals referee, after which you received a second decision denying your benefits.

If this is the case, then no, in my opinion, you do not have much of a chance at all. Because the next step is to take the decision on to the Board of Review. All the board of Review does is review the case, and determine if unemployment law was followed in the hearing. You have, in this letter, requested an appeal, which is good. But in the board of review appeal, no evidence is presented, they simply look over it all, look at the hearing transcripts, and determine if the decision was valid. Usually it was.

There is a large hole in this whole verbose piece of work. Because if the only issue in the discharge was that you failed to call in while on administrative suspension, the company could still use this as a reason to terminate you. But of course, there is the elephant in the living room, the issue of why you were placed on administrative suspension in the first place. If the termination was based on attendance issues with adequate warnings and progressive discipline, the termination is going to be valid. If it says call in each day, it doesn't exempt you from calling due to your status with the company, and that any fool should have known you weren't coming in that day, cause they'd put you on suspension.

The board of Review may even decline to review your case. But eventually it is my belief you will hear something back from them. Occasionally they actually do overturn hearing decisions.

All this is based on the assumption you have already had two decisions. If you are just now requesting the second one, the hearing, that would change things a bit. But after the hearing is usually too late to retain an attorney and start making wordy appeals.
Commentator thank you for your input and for taking the time to write it. I will say that the tone of some responses are a little condescending but I guess if you need help you grin and bear it.

You are completely correct in your first assumption
"From the sound of this, after wading through this gumbo for a while, it appears you have had both an initial decision in which you were denied, you made an appeal, requested and have had a hearing, with both parties present in front of an appeals referee, after which you received a second decision denying your benefits. "
Gumbo?? are you referring to the context or content because 573 give or take words is a short article. Was it that difficult to read?

next:
you state "There is a large hole in this whole verbose piece of work. Because if the only issue in the discharge was that you failed to call in while on administrative suspension, the company could still use this as a reason to terminate you. But of course, there is the elephant in the living room, the issue of why you were placed on administrative suspension in the first place. If the termination was based on attendance issues with adequate warnings and progressive discipline, the termination is going to be valid. If it says call in each day, it doesn't exempt you from calling due to your status with the company, and that any fool should have known you weren't coming in that day, cause they'd put you on suspension."

I did close that hole and I apologize that all my citations only served to alienate you from giving a good opinion. A letter was entered into evidence that on 06/15/2009 I was placed on investigative suspension "in a effort to preserve my employment with Veolia" under direct examination I asked the Veolia representative if 1) a driver that is on "investigative suspension" is required to call in to work? The reply was "No" and 2) I asked if "investigative suspension" is disciplinary in nature the answer was "No". In hind sight I should have asked if other than the termination was there any other disciplinary issues, I didn't ask that and of course the answer is no.

The wordy appeals thing. Gees guys I'm not a lawyer so I don't know what is sufficient. I will say this, as a judge would you rather see what I presented or something less than that that may have not been sufficient?
 

astbnboy

Junior Member
Okay, I think we need to clarify a few things here.

1.) This is a free message board service, where VOLUNTEERS offer the value of their past experience.

2.) No one is required to look at or respond to any post they do not care to.

3.) No one here has a duty to respond to you.

4.) When you are asking unpaid volunteers to give their time to answer your questions, for free, it behooves you to show a bit of courtesy and respect to those who are responding.

5.) It is likewise your duty to make your posts as clear and easy to read as possible. It is not the responders' responsibility to make assumptions or guesses or read between the lines.

Maybe, if you're lucky, someone will be kind enough to respond to you. However, after that diatribe, it won't be me.
Point taken but respect is a two way street, there is a elitist attitude in your post and the post that you are defending that is quite disturbing. I didn't come here to fight any one nor did I come here to be disrespected. Your post appropriately points out that you or the person you are defending didn't have to take the time to say anything if you didn't feel you could do so in a civil and respectful manor, and I didn't give enough facts for you to do so.
 

pattytx

Senior Member
Okay, I think we need to clarify a few things here.

1.) This is a free message board service, where VOLUNTEERS offer the value of their past experience.

2.) No one is required to look at or respond to any post they do not care to.

3.) No one here has a duty to respond to you.

4.) When you are asking unpaid volunteers to give their time to answer your questions, for free, it behooves you to show a bit of courtesy and respect to those who are responding.

5.) It is likewise your duty to make your posts as clear and easy to read as possible. It is not the responders' responsibility to make assumptions or guesses or read between the lines.

Maybe, if you're lucky, someone will be kind enough to respond to you. However, after that diatribe, it won't be me.
Won't be me, either.
 

commentator

Senior Member
Please excuse my condescending tone. And my wordiness on this subject. But after many years of involvement with unemployment processess and appeals, with some familiarity with the appeals processes of several states, I do know a little bit more than average about these things. When looking at your question, my first instinct is to determine certain basics about your situation.

First of all, where is this person in the appeals process? In all the states, there is a basic appeals process. As I said, I found it very difficult from reading the written work you submitted here to determine whether you were appealing an initial decision, in other words, requesting a hearing, or if you have already had a hearing before an appeals judge/referee/hearing officer, whatever they're called in NV.

As I said, if you are appealing a second decision, in other words appealing a hearing decision to the next level, which is the Board of Review, everything I said stands. It will not be a judge who reviews your case, it will be a group of people known as the Board of Review. And if they think the law was followed, they may decide not to even issue a decision. They may overturn the decision. They may uphold the decision. It sometimes, in today's very poor economy, with very heavy unemployment workloads, takes a long time for them to respond.

But you asked about what I thought your chances were. I can give you my opinion, based on what information I have, which might be just a little bit more relevant than the opinion of someone else, but in the long run is as good as what you paid for it. As I said, if the employer gave as their only reason for terminating you that you did not call in while on administrative suspension, you've got a pretty good argument. The board of review might think so. You may prevail in a hearing if you are yet to have one.

But if they have presented other reasons why you were terminated, like the reason you were placed on administrative suspension in the first place, and especially if they have won an appeals hearing decision on your termination already, then you don't have a very good chance, in my opinion, of course.

And incidentally, this is a situation I have seen many times in my 30+ years in the unemployment system. Laypeople who are pretty sharp sometimes think they must come into the unemployment system ready to do combat, to argue their case forcefully, to submit letters and documents by the bushel and quote law and rebut and vilify. They get really enthused with their prepared evidence, and think they will prevail by the power of their rhetoric. They may not realize that their documents and evidence may not go at all in the direction that answers the questions that need to be answered or deal with the relevant issues.

See, I have read this material, and as best I can make out, you were terminated for not calling in while on administrative suspension. The reason you were on administrative suspension? For not calling in? In general, or a certain number of times, or in previous violation of the company's call in policies? If I were on a board of review, I might have this same question. So I'd read the hearing material, read the decision, other things that would hopefully give me more information.

I try to give the best advice to people who are in the system as I can. Sometimes that advice is to rein yourself in, don't be overly aggressive. The system is not supposed to support only he who comes up with the most words or quotes the most law. This is not a debate. You will prevail if you do by having the most believable evidence in accordance with unemployment law, as determined by the official's decision.

One thing I will continue to give as my best advice to anyone in the appeals process is: Do not quote law to the people who work with these laws. And secondly, they call these things hearings, they do not call them readings. You submit a request for an appeal, and you have an appeals hearing. The next step is to request that the board of Review look at this hearing because you disagree with the decision reached. It's okay to say why you disagree at this point.

You should, at some point in the appeals process, be given the opportunity to state your case verbally, to present your reasons and evidence why you feel your termination was unjust and you should be approved for unemployment insurance, to ask and answer questions about your termination. Beyond that, a written appeal is not very effective but there's nothing wrong with submitting it. Don't be angry because we didn't love it and tell you you have a wonderful chance of winning if we really didn't think so. We all have experience, and we're pretty good at giving advice, but sometimes people don't like to hear what we have to say.

Your next step beyond the board of Review would be to hire an attorney and take it to civil court, a case against the Department of Labor for making this bad decision. They would be arguing that unemployment law supports their decision to approve or deny benefits.
 
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