Casper Iron & Metal, Inc. v. Unemployment Ins. Com'n of Dept. of Employment of State of Wyo.

• Decision Date: 11 January 1993
• Docket Number: No. 92-39,92-39
• Parties: CASPER IRON & METAL, INC., Appellant (Appellant below), v. UNEMPLOYMENT INSURANCE COMMISSION OF the DEPARTMENT OF EMPLOYMENT OF THE STATE OF WYOMING; and Mark A. O'Brien, Appellees (Appellees below).
• Court: Wyoming Supreme Court

Page 387

845 P.2d 387

CASPER IRON & METAL, INC., Appellant (Appellant below), v. UNEMPLOYMENT INSURANCE COMMISSION OF the DEPARTMENT OF EMPLOYMENT OF THE STATE OF WYOMING; and Mark A. O'Brien, Appellees (Appellees below).

No. 92-39.

Supreme Court of Wyoming.

Jan. 11, 1993.

Peter J. Young and Harry B. Durham, III, of Brown & Drew, Casper, for appellant.

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. ^*

CARDINE, Justice.

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 Wyoming (Commission) correctly determined the ultimate fact question, we affirm.

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.

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

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 April 24, 1991. CIM and O'Brien participated in an appeal hearing held to determine the "reason for claimant's separation from employment."

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 April 22, 1991, he was quitting and wanted his paycheck immediately. CIM President Sidney Tolin successfully talked O'Brien out of quitting. Sidney Tolin assured O'Brien that his job was not threatened. Two days later, on Wednesday, April 24, 1991, O'Brien reported to work for a short time and then left the job site at 8:45 a.m. Two co-workers reported to CIM management that O'Brien had quit. O'Brien, however, never stated such an intention to management. Sidney Tolin discussed O'Brien's absence with Vice-President, General Manager and Corporate Counsel Don Tolin. CIM management concluded O'Brien had quit and removed his time card from the office area.

O'Brien maintained at the hearing that he did not quit but was fired. Before leaving work on April 24, 1991, O'Brien completed a CIM "Employee Time-Off" form. The form indicated O'Brien's absence from work to meet with the "Laber Bord" (sic).

Lorna Wilkes (Wilkes), of the Wyoming Department of Labor, testified she met with O'Brien on the morning of April 24, 1991. Wilkes said O'Brien expressed concern about hazardous materials at CIM, including asbestos and lead, and possible retaliation for reporting the problems.

On his return to CIM, O'Brien completed another "Employee Time-Off" form showing he was absent from 8:46 a.m. to 12:00 noon to meet with the Labor Board. After completing the form, O'Brien asked where his time card was located. Sidney Tolin told O'Brien he had quit and his time card had been "pulled." According to Sidney Tolin, O'Brien erupted, screaming, "Fuck you, Mr. Tolin," several times and threatening, "If you were twenty years younger I'll [sic] take you on." O'Brien admitted losing his temper, but claimed it was after Sidney Tolin called O'Brien a "lying son-of-a-bitch" and ordered O'Brien to "get the fuck off my property." Sidney Tolin testified he did not "cuss and swear" at anybody and called O'Brien's accusation "a damned lie." ¹ The shouting match ended when a Casper police officer escorted O'Brien off the premises.

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.

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.

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.

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 Wyoming are already familiar with the profane words. See F.C.C. v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978).

Based on the evidence, the Commission's "Appeals Examiner" (Examiner) affirmed 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.

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."

DISCUSSION

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.

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 (Wyo.1988). Jurisdiction for judicial review of Commission decisions is granted by the Wyoming Employment Security Law, W.S. 27-3-101 through -704 (1991) (hereinafter WESL), which provides:

(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....