Badawi v. Albin
| Decision Date | 20 May 2022 |
| Docket Number | S-21-650. |
| Citation | 311 Neb. 603,973 N.W.2d 714 |
| Parties | Saied BADAWI, appellant, v. John ALBIN, commissioner of the Nebraska Department of Labor et al., appellees. |
| Court | Nebraska Supreme Court |
Zachary W. Anderson, of Legal Aid of Nebraska, for appellant.
Elizabeth Cano, Lincoln, and Katie Thurber, of Nebraska Department of Labor, for appellee John Albin.
Ruth A. Horvatich, of McGrath, North, Mullin & Kratz, P.C., L.L.O., Omaha, for appellee JBS Swift Beef.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
This is an appeal under the Administrative Procedure Act (APA).1 Saied Badawi applied for unemployment benefits after his employment at JBS Swift Beef (JBS) ended. Nebraska's Department of Labor determined Badawi was disqualified from receiving benefits for 14 weeks because he was discharged for misconduct.2 The district court for Douglas County affirmed, and Badawi appeals. We reverse, and remand with directions.
Badawi worked for JBS from January 7, 2019, to May 19, 2020. After the employment ended, he sought unemployment insurance benefits from the Department of Labor. On July 23, the Department of Labor issued a "Disqualifying Separation Determination" which found that Badawi left work voluntarily without good cause and thus was disqualified from receiving unemployment benefits until he met certain statutory requalification requirements.3
Badawi appealed the determination to the Nebraska Appeal Tribunal, arguing that he did not voluntarily leave his employment. A telephonic hearing occurred on March 15, 2021. Pursuant to a notice issued by the tribunal, the issues to be addressed in the appeal were (1) whether Badawi voluntarily left his employment without good cause and (2) whether he was discharged for misconduct connected with his work.
JBS did not appear for the hearing, but Badawi appeared with counsel. The hearing officer took "official notice" of the relevant Nebraska statutes and regulations, but no exhibits were offered. Badawi was the only witness, and he testified through an Arabic interpreter. As will be apparent from our quotations of Badawi's testimony below, a fairly significant portion of his hearing testimony was deemed "indiscernible" by the official court reporter who prepared and certified the bill of exceptions.
The bill of exceptions for the hearing is only 27 pages long, but contains 92 instances where the testimony was "indiscernible." It is unclear whether the indiscernible portions were due to a poor telephone connection, equipment failure, poor articulation by the hearing participants, or some combination thereof. The frequency of "indiscernibles" during critical portions of Badawi's testimony not only frustrates appellate review, but it also impacts the competency and sufficiency of the evidence. And although no party challenges the sufficiency of the official record prepared by the agency in this case, we remind district courts that if the interests of justice would be served by resolution of any issue not raised before the agency, the APA authorizes the court to remand the cause to the agency for further proceedings.4 The "indiscernibles" in this record may not have been so pervasive that they necessitated a remand to address the deficiencies, but it would be difficult to find an abuse of discretion if the district court had chosen to do so.
Badawi testified that when he first started at JBS, his job was to "euthanize (indiscernible) meat." Approximately 2 months later, he moved to a job which involved using a knife where he "just (indiscernible) slice the skin from the top to the bottom of the cow, in the middle." Apparently, he was then moved to a different job, because he testified, He also testified,
Sometime in May 2020, JBS asked Badawi to perform both his job duties and the job duties of another employee who was out sick with COVID-19. Badawi refused to perform both jobs. Badawi admitted that JBS had an employment policy related to transferring job assignments, and he testified that under that policy:
I can be transferred any time from one position to another. What I signed is that, if there is — for any reason that they — a position is (indiscernible) because they lost one employee and they are waiting to fill that position, I can be asked to go and help out temporary — to go and help out until that position is filled, but I will return to my permanent position. But this was not the case. It was like I'm asked to do two jobs, to work in this position and to go and work in other position. If I was informed that it was just something temporary, that I would have done.
Regarding the additional job duties Badawi was asked to perform, he testified:
The other person — I mean, the position that was second — that individual was doing that job, but (indiscernible) coronavirus positive, so that's why I was asked to go and fill that position (indiscernible). I couldn't do two jobs at the same time, so (indiscernible). It's a hard job. It's not something that I can combine with something else.
Badawi also testified:
Badawi testified that he met with his manager and said He also testified that it was "impossible" for him to do "a job for two people." Badawi testified that after he was discharged by JBS, he contacted former colleagues and learned that the "two jobs that I was offered was filled with two employees."
Badawi testified that each time he refused to perform both jobs, JBS sent him home for a week. When he returned after the second suspension, security advised him he was not allowed to enter the premises. He testified he was making $18.55 per hour at the end of his employment and he consistently worked 38 to 40 hours per week.
The appeal tribunal issued its decision on March 30, 2021. It found that Badawi did not voluntarily leave his employment without good cause and thus was not disqualified from receiving unemployment benefits on that basis. But it found he was disqualified from receiving unemployment benefits because he was discharged for misconduct. The tribunal found that Badawi committed misconduct because he "refused to work two positions," and it found that Badawi was "aware that he could be asked to fill in for another position according to the [JBS] policy." The tribunal also found that Badawi had not shown that working the two positions would amount to a material change in his hours or wages, "and could only describe the additional duties as ‘hard.’ " Based on these findings, the tribunal imposed a 14-week benefit disqualification upon Badawi.5
Badawi challenged the tribunal's decision in an APA appeal in the district court for Douglas County. That court conducted a de novo review of the record and affirmed the tribunal's decision. The district court found that Badawi was "asked to do additional work of another employee because the employee was not at work after having contracted coronavirus" and that Badawi declined because "he thought he could not perform his work and the additional work of the sick employee." On those facts, the court determined "Badawi refused to perform work that was assigned to him by his employer." The court found "unpersuasive" Badawi's argument that "he was asked to perform two jobs that would be impossible to do."
Badawi filed this timely appeal, which we moved to our docket on our own motion.
Badawi assigns, restated, that the district court erred in affirming the tribunal's finding that he was discharged for misconduct.
In an appeal from the appeal tribunal to the district court regarding unemployment benefits, the district court conducts the review de novo on the record, but on review by the Nebraska Court of Appeals or the Nebraska Supreme Court, the judgment of the district court may be reversed, vacated, or modified for errors appearing on the record. When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.6
Whether a decision conforms to law is by definition a question of law, in connection with which an appellate court reaches a conclusion independent of that reached by the lower court.7
An appellate court, in reviewing a district court judgment for errors appearing on the record, will not substitute its factual findings for those of the district court where competent evidence supports those findings.8
In Nebraska, unemployment benefits are governed by the Employment Security Law.9 A variety of conditions can disqualify an otherwise eligible individual from receiving unemployment benefits.10 As relevant here, § 48-628.10 provides that individuals are disqualified from...
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