ASPEN RIDGE LAW OFFICES, P.C. V. WYOMING DEPARTMENT OF EMPLOYMENT, UNEMPLOYMENT INSURANCE COMMISSION; and GENEVA A. BREWER
2006 WY 129
143 P.3d 911
Case Number: 06-13
Decided: 10/13/2006
OCTOBER
TERM, A.D. 2006
ASPEN RIDGE LAW OFFICES,
P.C.,
Appellant
(Petitioner),
v.
WYOMING DEPARTMENT OF EMPLOYMENT,
UNEMPLOYMENT INSURANCE COMMISSION; and
Appellees
(Respondents).
Appeal from the
The Honorable Peter G.
Arnold, Judge
Representing Appellant:
Galen Woelk, of Aron & Hennig,
Representing Appellees:
William L. Weaver, Senior Assistant Attorney
General.
Before
VOIGT, C.J., and GOLDEN, HILL*, KITE, and BURKE,
JJ.
* Chief
Justice at time of expedited conference.
BURKE,
Justice.
[¶1] Aspen Ridge Law
Offices, P.C. (“Aspen Ridge”) challenges an award of unemployment insurance
benefits to its former employee, Geneva Brewer. We affirm.
ISSUES
[¶2] Aspen Ridge
presents three issues for review:
I.
Whether the Commission’s
refusal to allow Employer to present evidence of Brewer’s workplace misconduct
was arbitrary and capricious?
II.
Whether the Commission’s
conclusions were supported by substantial evidence?
III.
Whether the Commission
failed to provide Employer with a fair and impartial
hearing?
FACTS
[¶3] Geneva Brewer was
employed as a legal secretary by Aspen Ridge. Sue Davidson is the principal
shareholder of Aspen Ridge. On
September 22, 2004, Ms. Davidson terminated Ms. Brewer’s employment. The next day, Ms. Brewer applied for
unemployment insurance benefits.
Aspen Ridge contested the application claiming Ms. Brewer was discharged
for misconduct because: (1) Ms.
Brewer was instructed to prepare an affidavit in a fee dispute case and failed
to do so; and (2) subsequent to Ms. Brewer’s discharge, Ms. Davidson learned
that Ms. Brewer was spearheading a conspiracy to have all employees resign at
the same time.1
[¶4] A deputy for the
Unemployment Insurance Division awarded benefits finding that Ms. Brewer’s acts,
or lack thereof, were isolated incidents of poor judgment or ordinary negligence
and did not constitute an intentional disregard for the employer’s
interests. Aspen Ridge appealed and
requested a hearing.
[¶5] A contested case
hearing was held on January 19, 2005.
Ms. Davidson testified that she terminated Ms. Brewer’s employment
because the affidavit she requested in July was still not completed in
September. She testified as
follows:
[EXAMINER]: . . . Exactly what was she required to
do?
[MS.
DAVIDSON]: She was
requested to put together after she had done an extensive file review of the
[fee dispute file], in addition to relevant court files, to do an affidavit of
recollection responsive to [the filed fee dispute].
[EXAMINER]: All right. Did . . . Ms. Brewer tell you why . . .
she wouldn’t, hadn’t completed that assignment?
[MS.
DAVIDSON]: She had
forgotten. . . . [T]he July time
frame ended with the day before her scheduled absence. . . . Genny, is that
done? This is the deadline. No it’s not done. She was obviously harried that day. It was obvious to me that she wanted to
get out of the office. I told her
it had to be completed. She had one
of two choices that day. One was to
stay and complete the project that night, or she offered to come in first thing
the next morning and to complete that project, signing the affidavit before one
of our staff members. Genny failed
to do either one of those, after promising that she would come in first thing
the next day in order to have accomplished that feat. She was confronted then when she
returned to the office about completion of that task. I believe that she returned on a
Monday. When I determined several months later,
much to my dismay and chagrin that it had not been completed, the instruction
was given to complete that project.
And so it was a continuation of that instruction from the early July time
frame to the time period in September.
(Emphasis
added.) Ms. Davidson testified that
she viewed Ms. Brewer’s failure to complete the affidavit as an “act of
defiance.” Ms. Davidson did not
testify about her knowledge of the alleged conspiracy.
[¶6] After Ms.
Davidson testified, Ms. Brewer was called as a witness. She testified that she was in a hurry to
leave for vacation and that she forgot to complete the affidavit. She testified that upon her return from
vacation, she completed the document and placed it on Ms. Davidson’s chair for
her review. Ms. Brewer produced
copies of various drafts of the affidavit, two of which contained Ms. Davidson’s
handwritten revisions.
[¶7] During
cross-examination of Ms. Brewer, Aspen Ridge attempted to elicit testimony
concerning the alleged conspiracy.
The hearing examiner refused the evidence, finding it irrelevant. Aspen Ridge next called another of its
employees and, inter alia, inquired
whether she had discussions with Ms. Brewer concerning quitting her
employment. The hearing examiner
again found Aspen Ridge’s inquiry irrelevant and refused to admit the evidence.
[¶8] The hearing
examiner entered findings of fact, stating in pertinent part:
3.
Before
leaving on her vacation, the claimant was instructed to prepare an affidavit
regarding a fee dispute a client had with the employer’s principal
shareholder.
4.
The
claimant did not complete the affidavit before going on
vacation.
5.
On
August 4, 2004 the claimant completed a first draft of the
affidavit.
6.
The
principal shareholder reviewed and edited the affidavit.
7.
On
August 8, 2004 the claimant completed a second draft of the
affidavit.
8.
The
principal shareholder reviewed and edited the affidavit.
9.
On
August 11, 2004 the claimant completed a third and final draft of the
affidavit.
10.
On
September 22, 2004 the employer’s principal shareholder met with the
claimant.
11.
The
principal shareholder and the cla[i]mant reviewed some business
matters.
12.
The
principal shareholder then told the claimant that she, the principal
shareholder, “could not get past” the claimant’s failure to complete the
affidavit before going on vacation in July 2004.
13.
The
principal shareholder then discharged the claimant from her
employment.
Based on
these findings, the hearing examiner determined that Aspen Ridge “failed to
demonstrate that [Ms. Brewer’s] action[s] in July 2004 caused the employer to
discharge [her] in September 2004.”
The hearing examiner concluded that Ms. Brewer was not disqualified from
benefit entitlement for misconduct connected to her work.
[¶9] Aspen Ridge
appealed to the Unemployment Insurance Commission. The Commission affirmed the decision of
the hearing officer but modified certain of the factual findings
stating:
The
hearing officer’s decision is affirmed.
The Findings of Fact, except for numbered paragraphs 3, 4, 5, 6, 7, 8 and
9; Statement of Law; and Conclusions of the hearing officer are adopted and
incorporated herein by reference.
We make the following additional findings of fact and
conclusions:
FINDINGS
OF FACT
A.
Before
leaving on her vacation, the claimant was instructed to prepare a personal
affidavit relative to a fee dispute a client had with the employer’s principal
shareholder.
B.
The
claimant worked on the affidavit on July 27 and 28, 2004; however, she did not
complete it prior to the close of business on July 28,
2004.
C.
The
claimant offered to complete the affidavit the next day.
D.
That
offer was acceptable to the principal shareholder.
E.
The
claimant got involved in preparation for the arrival of a friend and forgot
about doing the affidavit on July 29, 2004.
F.
Immediately
upon return from her vacation on August 4, 2004, the claimant finalized her
affidavit, signed it and had it notarized.
G.
The
principal shareholder reviewed and edited the August 4, 2004
affidavit.
H.
Based
upon those edits the claimant redid her affidavit, signed it and had it
notarized on August 9, 2004.
I.
The
principal shareholder reviewed and edited the August 9, 2004
affidavit.
J.
Based
upon those edits the claimant once again redid her affidavit, signed it and had
it notarized on August 11, 2004.
The
Commission concluded that “claimant’s failure to complete the affidavit on July
29, 2004 was ordinary negligence in an isolated instance.” Aspen Ridge next sought review in the
district court. The district court
also affirmed the award. This
appeal followed.
STANDARD OF
REVIEW
[¶10] We conduct our review of this case
pursuant to Rule 12 of the Wyoming Rules of Appellate Procedure. Rule 12.09(a) limits our review to
matters contained in the Wyoming Administrative Procedure Act, which provides in
pertinent part:
(c) To the extent
necessary to make a decision and when presented, the reviewing court shall
decide all relevant questions of law, interpret constitutional and statutory
provisions, and determine the meaning or applicability of the terms of an agency
action. In making the following determinations, the court shall review the whole
record or those parts of it cited by a party and due account shall be taken of
the rule of prejudicial error. The reviewing court shall:
(i) Compel agency action
unlawfully withheld or unreasonably delayed; and
(ii) Hold unlawful and
set aside agency action, findings and conclusions found to
be:
(A) Arbitrary,
capricious, an abuse of discretion or otherwise not in accordance with
law;
(B) Contrary to
constitutional right, power, privilege or immunity;
(C) In excess of
statutory jurisdiction, authority or limitations or lacking statutory
right;
(D) Without
observance of procedure required by law; or
(E) Unsupported by
substantial evidence in a case reviewed on the record of an agency hearing
provided by statute.
[¶11] Unemployment benefit cases where
misconduct is alleged present mixed questions of law and fact. Hat Six Homes v. State, D.O.E., 6 P.3d
1287, 1291 (Wyo. 2000). We are not
bound by the conclusions of the district court.
DISCUSSION
[¶12] Aspen Ridge contends that Ms.
Brewer is not entitled to unemployment insurance benefits because she was
discharged for misconduct connected with her work. See
[¶13] “Substantial evidence is relevant
evidence that a reasonable person might accept as adequate to support the
findings of the agency.” World Mart v. Ditsch, 855 P.2d 1228,
1232 (
[¶14] The hearing officer refused to
admit evidence relating to the alleged conspiracy on the basis that it was
irrelevant. The issue before the
hearing officer was whether Ms. Brewer’s discharge was for misconduct related to
her work. There was no suggestion
that Ms. Davidson had any knowledge of the alleged conspiracy prior to her
decision to terminate Ms. Brewer’s employment. Ms. Davidson’s unqualified testimony was
that she had decided to discharge Ms. Brewer because of her failure to complete
the affidavit. Even if true, the conspiracy played no role in Ms. Davidson’s
decision to discharge Ms. Brewer.
The excluded evidence lacked relevance, and we perceive no error in the
hearing officer’s ruling.
[¶15] Having determined that evidence of
the alleged conspiracy was properly excluded, we need only examine the evidence
before the hearing officer in our search for substantial evidence. In that regard, we find that substantial
evidence exists to support the finding that Ms. Brewer did not commit misconduct
related to her work.
[¶16] Misconduct is defined as
an act of an employee
which indicates a disregard of (1) the employer’s interests or (2) the commonly
accepted duties, obligations and responsibilities of an employee. This would include carelessness or
negligence of such degree or recurrence as to reveal willful intent or an
intentional disregard of the employer’s interests or of the employee’s duties
and obligations to his employer.
Inefficiency or failure in good performance as the result of inability or
incapacity; ordinary negligence in isolated instances or good faith errors in
judgment or discretion are not deemed to be misconduct within the meaning of the
Law.
Safety Med. Services,
Inc. v. Emp. Sec. Comm’n, 724 P.2d 468, 472
(
[¶17] There was conflicting evidence in
the case. Ms. Davidson testified
that the affidavit was never completed and that she viewed the failure to
complete the affidavit as intentional conduct:
[MR. WOELK]:
[W]hat was your . . . final reason, . . . your understanding of why you
had to terminate Ms. Brewer?
[MS. DAVIDSON]: Because Ms. Brewer had not
accomplished the task that she had been assigned, and that there had been a
period of delay from the beginning July time frame at least through the date of
her termination when the issue resurfaced that it had not been
completed.
[MR. WOELK]:
And was it your belief that that was intentional?
[MS. DAVIDSON]: Yes.
On the other hand, Ms.
Brewer testified that although she was in a hurry to leave for vacation and
forgot to finish the affidavit at that time, she completed it upon her
return. Ms. Brewer produced copies
of the affidavit, including copies with Ms. Davidson’s hand-written revisions.
[¶18] “The agency, as the trier of fact,
is charged with weighing the evidence and determining the credibility of
witnesses.” Hat Six Homes, 6 P.3d at 1292. The Commission found that Ms. Brewer
completed the affidavit upon her return and that the final draft of the
affidavit was notarized on August 11, 2004. The Commission concluded that her
failure to complete the affidavit in July was an isolated instance of ordinary
negligence which did not constitute misconduct. Aspen Ridge fails to point to evidence
demonstrating that Ms. Brewer intentionally disregarded her employer’s interests
or that Ms. Brewer’s conduct was more than an isolated incident. The record supports the Commission’s
conclusion that Ms. Brewer’s conduct did not rise to a level which would
disqualify her from receiving unemployment benefits, and we will not second
guess that determination on appeal.
[¶19] Aspen Ridge also claims that the
agency hearing was not fair or impartial, citing Monahan v. Bd. of Trustees, 486 P.2d 235
(
[¶20] Although the hearing examiner asked
occasional questions of witnesses, this was not conducted in such a manner as to
“take over the examination.” Monahan, 486 P.2d at 238. Aspen Ridge was permitted to call all of
its witnesses, present relevant evidence, and to cross-examine all
witnesses. The hearing examiner
properly excluded irrelevant evidence offered by both Aspen Ridge and Ms.
Brewer. See Wyo. Stat. Ann. § 16-3-108(a)
(stating irrelevant evidence is inadmissible) and
[¶21] Affirmed.
FOOTNOTES
1The
written response filed by Aspen Ridge states in full as
follows:
Employee was instructed three days prior to her scheduled absence from
the office to complete and sign an affidavit. Each day she was reminded to complete
this task. As of the last day prior
to departure she had failed to complete this task. She was instructed to complete and sign
the affidavit before she left work for the evening. Instead she wanted to “come in first
thing the next morning (a work day, July 29, 2004) to do the work.” On the condition that she would “come in
first thing the next morning,” she was allowed to leave work for the day. However, she failed to come in as
instructed and as she promised nor did she call the next day to offer
justification for her absence. When
she was confronted about the matter, she had no excuse except that she
“forgot.” Employer advised her that
her failure was classified as an incident of insubordination. It was hoped that Employee would learn
from the incident and not engage in similar conduct in the
future.
Three days before Employee was terminated, she was instructed to complete
a task. Each day she was reminded
the task was not done yet. As of
the day of termination, the task had not been completed and, in her words, had
“barely been started.” This was
another incident of insubordination.
She said she would do the task the next day. She was told that it no longer mattered
whether she did the task or not.
She was terminated on the spot, September [22],
2004.
Subsequent to terminating Employee, Employer learned Employee had been
agitating the staff to quit Employer.
A job application was even given to another staff member as part of this
process. A conspiracy was being
spearheaded by Employee to have all staff members resign at one time. Another staff member did tender her
resignation citing Employee’s conduct as a reason to accept other
employment. Employer was told that
Employee was disgruntled prior to her termination by Employer. Whatever concerns Employee had were
never addressed by her with Employer.
Since her termination, employee is/has been contacting staff
telephonically as many as two to three times daily at
work.
A former employee with whom Employee had developed a close association
and who had previously been terminated by Employer a couple years ago has also
been contacting staff telephonically at work as many as two to three times a day
at work. This former employee did
not engage in virtually any contact with any staff member until after Employee’s
termination.
2
An individual shall be disqualified from benefit entitlement beginning with the effective date of an otherwise valid claim or the week during which the failure occurred, until he has been employed in an employee-employer relationship and has earned at least twelve (12) times the weekly benefit amount of his current claim for services after that date, if the department finds that he was discharged from his most recent work for misconduct connected with his work.
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