CASPER IRON & METAL,
INC.,
Appellant (Appellant
below),
v.
UNEMPLOYMENT INSURANCE
COMMISSION OF the DEPARTMENT OF EMPLOYMENT OF THE STATE OF
Appellees (Appellees
below).
Appeal from District
Court,
Peter J. Young
and Harry B. Durham, III, of Brown & Drew,
William G.
Hibbler, Sr. Asst. Atty. Gen., for
appellee Unemployment Ins. Comm'n.
Before MACY, C.J., and
THOMAS, CARDINE, and GOLDEN, JJ., and URBIGKIT, J. Ret.*
* Chief Justice at time of
conference; retired
CARDINE, Justice.
[¶1.] Casper Iron and Metal,
Incorporated (CIM) brings this appeal of an administrative decision affirming
payment of unemployment benefits to a former employee. Finding that the decision
of the Unemployment Insurance Commission of the Department of Employment of the
State of
[¶2.] Two issues are
presented by CIM:
I. Whether the Special
Hearing Examiner for the Department of Employment, Division of Unemployment
Insurance, improperly placed the burden of proving the voluntariness of Mark
O'Brien's separation of employment on the employer, Casper Iron & Metal,
Inc.
II. Whether the Special
Hearing Examiner for the Department of Employment, Division of Unemployment
Insurance, improperly used the wrong statutory standard to determine whether the
employee, Mark O'Brien, was entitled to unemployment benefits.
[¶3.] The Commission restates
the issues:
I. Whether the appeals
examiner of appellee, Wyoming Department of Employment, Division of Unemployment
Insurance, Unemployment Insurance Commission, properly allocated burdens of
proof to the parties at the evidentiary hearing held in this matter?
II. Whether the appellee,
Wyoming Department of Employment, Division of Unemployment Insurance,
Unemployment Insurance Commission, properly held that Mark A. O'Brien is
eligible for unemployment insurance benefits because he did not voluntarily quit
his work but was discharged, however not for misconduct connected with that
work?
FACTS
[¶4.] Claiming he was fired
from his position as a crane operator and recyclable materials processor at CIM,
Mark A. O'Brien (O'Brien) sought unemployment insurance. A commission deputy
(Deputy) determined that O'Brien's claim was "not disqualified" and the cost of
benefits would be charged against CIM's account. CIM appealed the determination
arguing that O'Brien had voluntarily quit on
[¶5.] At the hearing, CIM
pointed to a series of events to prove O'Brien quit his job voluntarily. After
learning that CIM fired a temporary employee, O'Brien announced, on
[¶6.] O'Brien maintained at
the hearing that he did not quit but was fired. Before leaving work on
[¶7.] On his return to CIM,
O'Brien completed another "Employee Time-Off" form showing he was absent from
[¶8.] Oh that word, spoken in
the transience of the moment, its effect decays quietly. Written, it assumes the
importance of time as if harkening back to the cuneiform wedges. But fortunately
our tablets of stone and their permanence have been replaced by a recyclable
medium, paper. With that simple change, intransigence can be replaced by
decision. The language used by the participants is "crude"; it is also the
language of exasperation, language which one less restrained might invoke in a
shocking situation such as job loss. We are not here to excuse its use at the
time. Our task is simply considering whether its recitation should be included
in this opinion in light of a concern expressed by one member of the
court.
[¶9.] The express language
used by the parties is included as necessary to understanding the decision of
the hearing officer awarding benefits. The most important words were those not
spoken. The management never said, "you're fired," to the employee. The employee
never said, "I quit," to management. So the hearing examiner was left to examine
the available testimony to determine, first, the intent of the employee in
leaving the jobsite; second, at what point a termination did occur, if one
occurred; and third, what evidence supported such a finding.
[¶10.] Management presented two affidavits
signed by co-employees indicating the employee told them he quit. Refuting this
testimony, the employee presented the two "time-out" forms he completed in
accord with company policy to establish his intent to leave the jobsite
temporarily. The action of "pulling" the employee's time card amounted to
termination according to the hearing examiner. The virulence of the employee's
reaction to learning his time card was missing and the reported statements of
management offered persuasive support of the employee's position. The fact the
employee had to be escorted by police off the jobsite after the management
ordered him to leave also argues in favor of termination. Weighing all this
evidence, the examiner determined a termination had occurred.
[¶11.] The language used is quoted. It was
transcribed as stated in the administrative hearing. The language, therefore,
comes from an official proceeding. The district court, undoubtedly, heard this
language in its consideration of this action. It was also stated in briefing to
this court as a relevant characterization of intent. Absent this important
evidence of the language used, the reader of the opinion might have difficulty
understanding the decision awarding benefits. Despite my brother's belief, the
courts of
[¶12.] Based on the evidence, the Commission's
"Appeals Examiner" (Examiner) affirmed the Deputy's initial decision that
O'Brien was entitled to unemployment insurance. The Examiner determined O'Brien
intended his absence from work to be only temporary. "The employer's action in
`pulling his time card' is an action which is commonly construed as a
discharge."
[¶13.] The Commission adopted the Examiner's
findings and conclusions and affirmed the decision. After administrative
remedies were exhausted, CIM appealed to the district court. The district judge
noted, in his decision letter, that there was evidence indicating O'Brien was
fired and contrary evidence indicating he quit. Deferring to the agency's role
as fact finder, the district court affirmed the Commission's
decision.
DISCUSSION
[¶14.] The issues of this case are really about
language, some legal and some coarse. Initially, the language of the judicial
function is overlaid with the language of administrative procedure to ask
whether a contested case proceeding should be analogized to a trial or an appeal
and, depending on the result, which party assumes the burden of proof, also
defined by the separate burdens of production and persuasion. See, Bernard
Schwartz, Administrative Law, § 7.8 (2nd ed. 1984). Ultimately, the language of
the bureaucracy is pitted against the language of the laborer. One translation
inquires whether a claimant is "not disqualified" for unemployment insurance
discharge benefits. The second translation asks whether a worker quits by
leaving the premises or gets fired when a time card is pulled and the worker is
told to get off the property. In this mix of language, the Examiner applied the
basic facts found from the evidence presented at the hearing to the law,
producing the ultimate fact determination that O'Brien was entitled to
benefits.
[¶15.] Our standard of review for administrative
actions requires proper notice of jurisdiction. "The right to judicial review of
administrative decisions is entirely statutory, and agency actions are not
reviewable absent statutory authority." Sellers v. Employment Sec. Comm'n, 760
P.2d 394, 395 (
(a) Any person aggrieved
or adversely affected by a final decision under this act may obtain judicial
review by filing a petition for review with the district court of jurisdiction.
Review by the court shall be as provided by the Wyoming Administrative Procedure
Act [§§ 16-3-101 through 16-3-115] and shall be given precedence over all other
civil cases except those under the Wyoming Worker's Compensation
Act.
(b) A decision of the
district court may be appealed to the supreme court. The appeal shall be taken
in the same manner as other civil cases.
W.S. 27-3-407
(1991); see also W.R.A.P. 12.11.
[¶16.] Under the statutory jurisdiction grant,
the Wyoming Administrative Procedure Act, W.S. 16-3-101 through -115 (1990)
(hereinafter WAPA), directs the scope of review:
(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.
W.S. 16-3-114(c)
(1990).
[¶17.] We review the agency decision without
according any special deference to the district court decision. Union Pacific
R.R. Co. v.
[¶18.] Our review of contested case orders
focuses on the evidence and considers the reasonableness of the agency's
exercise of judgment while determining if errors of law were committed or
whether any constitutional rights were violated. We take the record as a whole
and review whether substantial evidence supports the agency's findings of fact.
Amax Coal Co. v.
[¶19.] We determine whether the agency
conclusions of law, including those stated as ultimate facts, are "in accordance
with law." Amax Coal, 819 P.2d at 829. Agency decisions are reversed only for
errors of law. Union Tel., 821 P.2d at 557. We summarized the three
possibilities that exist when we review agency conclusions of law in Western
Gas, 786 P.2d at 871:
The agency may correctly
apply their findings of fact to the correct rule of law. In such case, the
agency's conclusions are affirmed. But the agency could apply their findings of
fact to the wrong rule of law or they could incorrectly apply their findings of
fact to a correct rule of law. In either case, we correct an agency conclusion
to ensure accordance with law. [citations omitted]
If the agency
misapplies the correct rule of law, we do not defer to the agency's finding.
[¶20.] CIM contends the Examiner erred in
placing the burden of proof on CIM to establish O'Brien left voluntarily without
good cause. CIM believes that the correct application of substantive law would
have placed the burden of proof on O'Brien to establish he left employment
involuntarily. At that point, CIM admits the burden would then shift to the
employer to establish a discharge for misconduct.
[¶21.] CIM's position proceeds from a faulty
premise. CIM argues that after O'Brien filed his claim for unemployment benefits
and the Deputy initially approved it, the appeal CIM filed created an
administrative proceeding exercising "original rather than appellate
jurisdiction." CIM's premise creates an analogy comparing O'Brien's claim to a
"complaint" which CIM protested with an "answer" creating the need for a "trial"
at which the burden of proof would be placed on the "plaintiff,"
O'Brien.
[¶22.] Despite the de novo nature of the appeal
hearing, Yellow Front Stores, Inc. v. Indus. Comm'n, , 884 (Colo.
App. 1985), the plain language of the WESL defeats CIM's premise. When a claim
for unemployment insurance is filed, an initial eligibility determination is
made by a deputy. W.S. 27-3-402(a) (1991). The determination is "final unless a
party entitled to notice applies for redetermination or appeals."
[¶23.] Under the WESL, disputed claims are heard
by an "appeal tribunal" which can be an examiner or a three-member body. W.S.
27-3-403 (1991). The "appeal tribunal" must provide "notice of and a reasonable
opportunity for hearing."
[¶24.] CIM and O'Brien received a "Notice of
Hearing" for an "appeal filed by employer." (emphasis added) The stated issue
was: "Reason for claimant's separation from employment with Casper Iron &
Metal, Inc." The parties, each represented by counsel at the hearing, were also
informed: "Any other issues which may affect claimant's rights to benefits will
be considered." While both the WESL and WAPA are silent on the proper allocation
of the burden of proof, the "Notice of Hearing" contained sufficient information
to inform CIM of its burden as the party seeking an appeal. The specific nature
of the burden CIM acquired by filing the administrative appeal requires further
definition.
[¶25.] Burden of proof, as part of the
substantive law of evidence, is complex and often confusing. See 1 D. Louisell
& C. Mueller, Federal Evidence § 65 (1977). The general term, burden of
proof, identifies two separate legal doctrines: the burden of persuasion; and
the burden of production, also termed the burden of producing evidence or the
burden of going forward with the evidence. Louisell & Mueller, supra, § 66.
The burden of persuasion is attached to the party who "runs the risk of
nonpersuasion."
[¶26.] This court previously ruled that burden
of proof is recognized in contested case proceedings under WAPA. Pan Am.
Petroleum Corp. v.
[¶27.] The proper application of burden of
persuasion and burden of producing evidence doctrines requires consideration of
the purpose of unemployment insurance. The purpose of the WESL, and similar
statutes in other states, is to lighten the economic load created by involuntary
unemployment.
[¶28.] The legislature specifically directed the
circumstances which shall disqualify an individual from unemployment benefits.
W.S. 27-3-311 (1991). Two provisions are relevant to this case. The first is
disqualification from benefits for discharge "from his most recent work for
misconduct connected with his work." W.S. 27-3-311(c) (1991). The second is
disqualification for quitting or leaving work "voluntarily without good cause
attributable directly to his employment." W.S. 27-3-311(a)(i) (1991). Whether
unemployment results from a discharge or a voluntary quit is often "a close
question." Valley Vendors, Inc. v. Jamieson, 129
[¶29.] In administrative law, the "central
concern" is on the burden of producing evidence. Environmental Defense Fund,
Inc. v. Environmental Protection Agency, , 1013 (D.C. Cir. 1976),
cert. denied, , 97 S.Ct. 2199, 53 L.Ed.2d 239 (1977); see 3 K.
Davis, Administrative Law Treatise § 16:9 (1980). In the context of unemployment
insurance, the initial evidentiary burden of a claimant is satisfied when a
prima facie showing is made and benefits are allowed. Java, 402
[¶30.] If the employer seeks to challenge the
benefits determination, the burden is on the employer to present contrary
evidence.
[¶31.] Sound policy supports placing the burden
of producing evidence on the employer when an appeal is filed. The reason is
apparent from a consideration of why an employer would challenge the benefits
payment. Since unemployment benefits are chargeable against an employer's
account, the appeal may protect the balance in the employer's unemployment
compensation fund. See W.S. 27-3-201 (1991). The employer should, therefore,
possess the burden of producing evidence proving disqualification. Lozano v.
[¶32.] CIM's misperception of its obligation is
apparent from the transcript of the hearing. At the beginning of proceedings,
CIM's counsel attempted to defer calling any witnesses except in rebuttal. The
Examiner informed CIM that, as appellant, "It's your responsibility to provide
sufficient testimony and evidence to persuade me to change the decision that's
been made by the Deputy." CIM's counsel then attempted to dismiss CIM's appeal,
apparently in a belief that O'Brien would then have the burden of producing
evidence: "At this time I move that, ah, the appellants, ah, being as they do
have the burden, that the appellant's objection be dismissed, you know * * *."
The Examiner interrupted and stated she saw no reason to deviate from the normal
hearing procedure.
[¶33.] The issue before the Examiner was not
whether O'Brien was initially eligible for benefits. When the Deputy allowed the
claim, it constituted a determination that benefits were due O'Brien, and he was
"not disqualified." Java, 402
[¶34.] CIM steadfastly maintains that the
Examiner erred when she required CIM to meet the "artificial and unannounced
burden to prove misconduct." CIM misconstrues the Examiner's findings. Implicit
in the Deputy's determination of benefits eligibility is a finding that O'Brien
was discharged from employment with CIM and, therefore, eligible for
unemployment benefits. On appeal, CIM had to show the existence of a statutory
disqualification. In this case, disqualification would have occurred if it was
established either that O'Brien was discharged for misconduct or that O'Brien
left work voluntarily without good cause. W.S. 27-3-311 (1991). CIM failed to
convincingly rebut O'Brien's prima facie case.
[¶35.] This court accepted the Commission's
definition of misconduct in Safety Medical Serv., Inc. v. Employment Sec.
Comm'n,
Misconduct under the
Wyoming Employment Security Law means generally 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.
In determining
if misconduct was present, the question is whether the employee intentionally
acted contrary to his or her responsibility to perform assigned duties or
willfully and intentionally disregarded known employer interests.
[¶36.] CIM's misconduct evidence was minimal and
constituted primarily vague recitations of undocumented past incidents of
alleged disobedience which would be insufficient to support termination.
O'Brien's absence on his final day of work could only be considered misconduct
if CIM had documented an intentional action in disregard of known company
policy. CIM maintains in its brief that the "Employee Time-Off" form O'Brien
completed was improperly submitted because it was not provided to management at
least a day prior to the absence. The company president's testimony does not
support CIM's contention. Sidney Tolin testified that the employee requesting
leave "usually" completes the form a "day or so" before the absence so that
another employee can be substituted. The back of the "Employee Time-Off" form
contains a lengthy description of CIM's absenteeism and tardiness policy which
makes no mention of requiring completion of a request form one day prior to the
absence. CIM submitted no documentary evidence establishing the existence of an
advance notice rule. No evidence was introduced showing that O'Brien had notice
of requirements for advance notification. Evidence of the past enforcement
practices when employees violated the rule was also not presented. Without
reducing the rule to writing and making the requisite showing of employee
knowledge and consistent enforcement, CIM failed, as a matter of law, to
establish a misconduct violation. Blackwell v. Review Bd. of
[¶37.] Defining the meaning of the word
"voluntarily" when that term is applied to an employee who leaves work, W.S.
27-3-311(a)(i) (1991) is a matter of law.
[¶38.] The bulk of CIM's evidentiary
presentation attempted to contradict the discharge claim. CIM tried to establish
O'Brien had left work voluntarily using Sidney Tolin's testimony that O'Brien
had previously been talked out of quitting and the affidavits of two CIM
employees that O'Brien told them on the day he left he was quitting. CIM
counsel, Don Tolin, also vigorously cross-examined O'Brien and those testifying
at the hearing in his behalf.
[¶39.] O'Brien refuted CIM's contention that he
quit voluntarily with his own testimony that he did not intend to quit when he
left work. O'Brien also denied telling co-workers on
[¶40.] The critical finding was that CIM's
action in "pulling" O'Brien's time card terminated his employment. The examiner
noted this action "is commonly construed as a discharge." Even though the
Examiner allowed CIM a broad range of flexibility during its evidentiary
presentation, including numerous leading or irrelevant questions from counsel,
CIM's contention that O'Brien left voluntarily was not supported with sufficient
evidence. If O'Brien had intended to leave voluntarily, he would not have
completed the "Employee Time-Off" forms. It is also unlikely he would have
engaged in such an obscene attack on his employer after being told he "quit."
With deference to the Commission's expertise in employment matters, we hold
substantial evidence supports the finding that O'Brien's employment terminated
at the hands of CIM, the employer.
CONCLUSION
[¶41.] The Commission's application of law was proper; and its determination, supported by substantial evidence, was reasonable. The decision of the district court, therefore, is affirmed.
1 Justice Thomas has
objected to the quoted language and may file a specially concurring
opinion.
THOMAS, Justice, concurring
specially.
[¶42.] The Moving Finger writes; and, having
writ,
Moves on: nor
all your Piety nor Wit Shall lure it back to cancel half a Line, Nor all your
Tears wash out a Word of it.
The Rubaiyat of
Omar Khayyam, Stanza 71, AN ANTHOLOGY OF WORLD POETRY 126 (translated by Edward
FitzGerald) (Van Doren ed. 1936).
The immortal
words of the poet maintain their verity.
FAMILIARITY BREEDS
CONTEMPT.
[¶43.] AESOP'S FABLES, The Fox and the Lion 24
(The Harvard Classics 1909).
While the courts
of
[¶44.] I concur in the result of this opinion,
but I am unable to join in the opinion. Vulgarity for the sake of vulgarity has
no real place, but it is particularly inappropriate in an opinion of a supreme
court. "If it looks like a duck, walks like a duck, and quacks like a duck, it
must be a duck." City of
[¶45.] In the course of this court's work,
occasions may arise when coarse language is necessary and, for that reason,
appropriate. It is indeed probable that situations may arise when such
statements are a necessary part of the material facts. Despite the attempt in
this instance to justify the inclusion of the vulgarities, this language is not
necessary to understand the decision of the hearing officer. In his Findings and
Conclusions, the Appeals Examiner found it sufficient to report:
The claimant protested
that he had not intended to quit and entered into an exchange of verbal obscenities with his
employer. (Emphasis added.)
In explaining
his decision, the Appeals Examiner afforded no significance to this exchange,
saying:
The claimant's actions in
contacting the Labor Board, or any other regulatory agency, were within his
rights. The claimant intended his absence to be temporary and completed the
appropriate paperwork for the employer indicating that his absence was intended
to be temporary. The employer's action in "pulling his time card" is an action
which is commonly construed as a discharge. The claimant took no action to end
his employment. The end of the employment was determined by the employer. The
claimant was discharged but there is insufficient evidence to support a finding
that the discharge was for misconduct connected with his work. The claimant is,
therefore, not subject to disqualification.
The material
facts had ended before the argument occurred out of which the gutter language is
quoted, and that language is not relevant to any of the issues in this appeal.
The inclusion of those vulgarities serves only to denigrate both the work place
and the Supreme Court of Wyoming. It is interesting to note that to the extent
the parties found it necessary to address this exchange in materials furnished
through counsel to the Unemployment Insurance Commission, they described the
event as "screamed obscenities," "yelling obscenities," "yell obscenities in a
loud and abusive manner," "use obscenities," and "scream
obscenities."
[¶46.] The statement of the issues and the able
resolution of those issues in the court's opinion belie the claimed
justification for using this language. It appears in the Brief of Appellee, but
its use should not be condoned by repetition. I am firmly of the conviction that
the citizens of