Carpenter v. Iowa Dept. of Job Service

• Decision Date: 23 December 1986
• Docket Number: No. 86-422,86-422
• Citation: 401 N.W.2d 242
• Parties: Richard J. CARPENTER, Petitioner-Appellant, v. IOWA DEPARTMENT OF JOB SERVICE and Schneider Metal Manufacturing Company, Inc., Respondents-Appellees.
• Court: Iowa Court of Appeals

Page 242

401 N.W.2d 242

Richard J. CARPENTER, Petitioner-Appellant, v. IOWA DEPARTMENT OF JOB SERVICE and Schneider Metal Manufacturing Company, Inc., Respondents-Appellees.

No. 86-422.

Court of Appeals of Iowa.

Dec. 23, 1986.

Ronald J. Wagenaar of Legal Services Corporation, Mason City, for petitioner-appellant.

Blair H. Dewey, Walter F. Maley, and Joseph L. Bervid of the Iowa Department of Job Service, Des Moines, for respondent-appellee.

Heard by SNELL, P.J., and SCHLEGEL and HAYDEN, JJ.

HAYDEN, Judge.

The petitioner, Richard J. Carpenter, worked as an assembler at the employer's factory from April 30, 1979, until his discharge on January 22, 1985. His wife was also employed at this factory. Petitioner was discharged for using offensive language toward two supervisors on the day of termination.

The incidents which led to petitioner's discharge began on January 20, 1985, when the water pipes in petitioner's mobile home broke. That evening he called his wife's supervisor and requested that his wife be given the day of January 21, 1985, off so she could attend to the repair of the plumbing. The supervisor granted this request. Due to the nature of the pipe repair, petitioner reported to work on January 21, 1985, and asked to be given the day off so he could work on the water pipes. Again the request was granted. Petitioner failed to tell his supervisor that his wife had also been excused from work to attend to the broken pipes.

On the next morning, January 22, 1985, petitioner was confronted by his supervisor, who questioned him as to why he needed the day off when his wife already had taken the day off. As a result of this discussion petitioner told his supervisor "You can kiss my ass or fire me or whatever." On the same morning petitioner's wife was also confronted by her supervisor and asked why both she and her husband needed the day off. After this confrontation petitioner's wife began to cry and left her work station. Petitioner saw her and questioned her as to what had happened. Petitioner then went to explain the situation to his wife's supervisor, who told him that she did not want to hear about it. In response, petitioner said "I am going to tell you the same thing that I told Joe [his supervisor]. You guys can all kiss my ass." This statement was made within approximately half an hour after his initial remark. Two hours after this last act petitioner was discharged for insubordination.

Petitioner filed a claim for unemployment benefits which was denied in a claims deputy decision dated February 7, 1985. This decision was appealed by petitioner; a hearing was held on March 11, 1985. The hearing officer, in a decision dated March 15, 1985, concluded: petitioner's actions were a deliberate disregard of the standards which the employer has a right to expect; the conduct was contrary to and not in the best interest of the employer; and therefore amounted to disqualifying misconduct. Petitioner appealed to the appeal board, which on April 30, 1985, affirmed the hearing officer. He then filed a request for rehearing, which was denied on May 28, 1985. Having exhausted his administrative remedies, petitioner filed a petition for judicial review in the Cerro Gordo district court. In an order filed June 5, 1985, the court found misconduct and thereby affirmed the appeals board's decision.

Petitioner asserts there was insufficient evidence to support the agency's finding of misconduct. He asserts, in the alternative, as a matter of law, his use of vulgarity towards the two supervisors did not constitute disqualifying misconduct.

In cases arising out of the Iowa Administrative Procedure Act, our scope of review is limited to the correction of errors of law. Iowa Code § 17A.20 (1985); Mary v. Iowa Department of Transportation, 382 N.W.2d 128, 131 (Iowa 1986). When we review the decision of the district court, the issue with which we are concerned is whether the district court correctly applied the law. "In order to make that determination, this court applies the standard of section 17A.19(8) to the agency action to determine whether this court's conclusions are the same as those of the district court." Jackson County Public Hospital v. Public Employment Relations Board, 280 N.W.2d 426, 429-30 (Iowa 1979).

Iowa Code section 17A.19(8)(f) provides that in a contested case the court shall grant relief from an agency action which is not supported by substantial evidence when that record is viewed as a whole. Evidence is substantial to support an agency's decision if a reasonable person would find it adequate to reach the given conclusion. Meads v. Iowa Department of Social Services, 366 N.W.2d 555, 558 (Iowa 1985). The possibility of drawing two inconsistent conclusions from the record does not prevent the agency's finding from being supported by substantial evidence. Contract Services, Ltd. v. Iowa Department of Job Service, 372 N.W.2d 212, 215-16 (Iowa 1985). Our sole task is to determine whether claimant is entitled to unemployment benefits. Billingsley v. Iowa Department of Job Service, 338 N.W.2d 538, 540 (Iowa Ct.App.1983). We do not challenge the employer's right to terminate claimant's employment.

A claimant is disqualified from unemployment benefits "[i]f the department finds the individual has been discharged for misconduct in connection with the individual's employment." Iowa Code § 96.5(2) (1985). The Iowa Code does not provide a definition of misconduct.

The Iowa Administrative Code defines "misconduct" as:

[A] deliberate act or omission by a worker which constitutes a material breach of the duties and obligations arising out of such worker's contract of employment. Misconduct as the term is used in the disqualification provision as being limited to conduct evincing such willful or wanton disregard of an employer's interest as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of employees, or in carelessness or negligence of such degree of recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to the employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed misconduct within the meaning of the statute.

370 I.A.C. § 4.32(1)(a) (language taken from Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259, 296 N.W. 636, 640 (1941)). This definition reflects the intent of the legislature. Huntoon v. Iowa Department of Job Service, 275 N.W.2d 445, 447-48 (Iowa), cert. denied, 444 U.S. 852, 100 S.Ct. 105, 62 L.Ed.2d 68 (1979). The employer has the burden of proving misconduct. 370 I.A.C. § 4.32(4).

In order to establish misconduct the employer must prove conduct by the employee consisted of deliberate acts or omissions or evincing carelessness as to indicate a wrongful intent. Billingsley, 338 N.W.2d at 540. The focus of 370 Iowa Administrative Code section 4.32(1)(a) is on deliberate or intentional acts, or negligence of such a degree as to manifest equal culpability. Holt v. Iowa Department of Job Service, 318 N.W.2d 28, 29 (Iowa Ct.App.1982). In Jacobs v. California Unemployment Insurance Appeals Board, 25 Cal.App.3d 1035, 1037, 102 Cal.Rptr. 364, 366 (1972), the Court said:

The conduct may be harmful to employer's interests and justify the employees discharge; nevertheless, it evokes the disqualification for unemployment benefits only if it is willful, wanton or equally culpable.

There is no question that petitioner's actions were intentional; rather, this appeal questions whether as a matter of law and a matter of fact these actions constituted misconduct. The petitioner contends this case is very similar to Budding v. Iowa Department of Job Service, 337 N.W.2d 219 (Iowa Ct.App.1983). In Budding the claimant was discharged for receiving three class-two warnings in a twenty-six month period. Claimant, after receiving a reprimand, referred to his supervisor as a "dirty bitch." The court noted that claimant's comment was not made in the course of argument, did not serve to undermine her authority, and was an isolated incident of relatively minor import. Id. at 223. We do not think the issue of petitioner's misconduct should be resolved this easily.

From Budding we adopt the following language:

Even in a factory setting, where decorous language does not always prevail, repeated incidents of abusive language may amount to misconduct.

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Where the use of vulgar language is an isolated incident in an environment where decorous language is not required, and is not occasioned by a deliberate refusal to obey a reasonable directive, we are inclined...