Clark County Sch. Dist. v. Bundley
| Decision Date | 28 December 2006 |
| Docket Number | No. 46725.,46725. |
| Citation | 148 P.3d 750 |
| Parties | CLARK COUNTY SCHOOL DISTRICT, Appellant, v. Harriet BUNDLEY and Employment Security Division, Department of Employment, Training and Rehabilitation, Respondents. |
| Court | Nevada Supreme Court |
L. Steven Demaree, Assistant General Counsel, Las Vegas, for Appellant.
Kummer Kaempfer Bonner Renshaw & Ferrario and J. Thomas Susich, Carson City, for Respondents.
Before BECKER, HARDESTY and PARRAGUIRRE, JJ.
In this appeal, we clarify that when an employer asserts that a former employee's misconduct disqualifies her from receiving unemployment benefits, the employer bears the burden of demonstrating that the employee's discharge was due to disqualifying misconduct. The employer may do this by making an initial showing of willful misconduct related to the employment. To avoid being disqualified from receiving benefits, the former employee must then demonstrate that the nature of the misconduct was not of the type for which disqualification is warranted.
In this case, the administrative agency failed to appropriately determine whether the employer had met its burden to show that its former employee was discharged for willful misconduct with regard to her unauthorized absences. Accordingly, we reverse the district court's order denying judicial review of the administrative decision awarding unemployment compensation, and we remand this matter to the district court with instructions that it, in turn, remand the matter to the administrative agency for further proceedings with regard to this issue.
Respondent Harriet Bundley was discharged from her position with appellant Clark County School District as an "in-house suspension" teacher. According to the termination notice, Bundley was discharged for several general reasons and, specifically, for being "absent without leave" on eight occasions—January 18, 19, and 20, 2005, and February 9, 10, 17, 18, and 24, 2005—for a total of seven full days, despite having previously received relevant admonishments.
Thereafter, Bundley filed for unemployment benefits, which she was granted by respondent Employment Security Division of the Nevada Department of Employment, Training, and Rehabilitation. The school district challenged Bundley's right to receive those benefits, however, alleging that Bundley was discharged for misconduct in connection with her work. Specifically, the school district indicated that Bundley had "excessive attendance" problems, of which she had been warned could lead to job loss.
Before and at the subsequent administrative hearing, the school district submitted as evidence four written admonishments that Bundley had received in the fall of 2004, reminding her that she (1) had been absent five days since the beginning of the school year, and late once; (2) had in some instances notified the wrong person of her absences, and was instead required to report any absences to, and obtain approval therefor from, the principal or assistant principal; and (3) had, apparently before May 26, 2004, experienced some problems with excessive absences and/or absences taken before a sufficient amount of leave had accrued. While the school's principal stated, during the hearing, that Bundley had been discharged for attendance problems, her testimony focused on one precipitating factor: Bundley's alleged failure to report her absences on February 17, 18, and 24, 2005. With regard to this issue, the principal relayed that neither herself, nor the assistant principal or school secretaries, recalled Bundley having called in on those three days.
Bundley, on the other hand, testified that she had called in to report those absences and had spoken once to the assistant principal and twice to the principal. She also testified that she was absent because she had to see a doctor about her broken foot and, on February 24th, to take care of her ill daughter, whose illness was apparently the result of a continuing medical condition of which the school was aware. Bundley averred that she had applied, or had planned to apply, for additional sick leave from the school's sick leave bank. Finally, she indicated that she was willing to submit documentation to support her claims as to having called the school on the days in question, broken her foot, and applied for leave from the sick leave bank.
After the hearing concluded, an appeals referee determined that the school principal's assertions that Bundley had not phoned to report her absences were more credible. The appeals referee thus concluded that Bundley was discharged because of attendance problems and her failure to notify her employer that she would be absent on February 17, 18, and 24, in contravention of the school's policy. According to the appeals referee, Bundley's failure to notify her employer of her inability to report to work on those three days constituted misconduct disqualifying her from receiving benefits under NRS 612.385, which provides that an employee who is discharged for work-related misconduct may not receive benefits. Bundley administratively appealed.
After reviewing the evidence that had been presented to the appeals referee, the Board of Review reversed the appeals referee's decision, determining that Bundley had credibly testified that her absence on the days in question was due to her and her daughter's illnesses and that she had timely notified her supervisor of those absences. Noting that Bundley was admittedly absent without leave but that nothing appeared in the record to show that Bundley had failed to report her absences, the Board concluded that, for unemployment benefits purposes, mere absence resulting from illness is not disqualifying misconduct.
The school district's subsequent petition for judicial review was denied, and consequently, it appeals.
When reviewing an administrative unemployment compensation decision, this court, like the district court, examines the evidence in the administrative record to ascertain whether the Board acted arbitrarily or capriciously, thereby abusing its discretion.1 With regard to the Board's factual determinations, we note that the Board conducts de novo review of appeals referee decisions.2 Therefore, when considering the administrative record, the Board acts as "an independent trier of fact," and the Board's factual findings, when supported by substantial evidence, are conclusive.3
Accordingly, we generally review the Board's decision to determine whether it is supported by substantial evidence, which is evidence that a reasonable mind could find adequately upholds a conclusion.4 In no case may we substitute our judgment for that of the Board as to the weight of the evidence.5 Thus, even though we review de novo any questions purely of law,6 the Board's fact-based legal conclusions with regard to whether a person is entitled to unemployment compensation are entitled to deference.7
Disqualifying misconduct carries an element of wrongfulness
We have recognized that the protective purpose behind Nevada's unemployment compensation system is to provide "temporary assistance and economic security to individuals who become involuntarily unemployed."8 To further this purpose, the unemployment compensation law, NRS Chapter 612, presumes that an employee is covered by the system and does not allow the employee to waive his or her rights under the system.9 Because the system is not designed to provide assistance to those persons who are deemed to have become voluntarily unemployed, however, NRS 612.385 disqualifies a person from receiving unemployment benefits "if [she] was discharged from . . . employment for misconduct connected with [her] work."
Disqualifying misconduct occurs when an employee deliberately and unjustifiably violates or disregards her employer's reasonable policy or standard,10 or otherwise acts in such a careless or negligent manner as to "`show a substantial disregard of the employer's interests or the employee's duties and obligations to [her] employer."'11 As we have previously suggested, because disqualifying misconduct must involve an "element of wrongfulness,"12 an employee's termination, even if based on misconduct, does not necessarily require disqualification under the unemployment compensation law.13 Instead, determining whether misconduct disqualifies a person from receiving unemployment benefits "requires a separate and distinct analysis":14 "[w]hen analyzing the concept of misconduct, the trier of fact must consider the legal definition [of disqualifying misconduct] in context with the factual circumstances surrounding the conduct at issue."15 Generally, then, an employee's absence will constitute misconduct for unemployment compensation purposes only if the circumstances indicate that the absence was taken in willful violation or disregard of a reasonable employment policy (i.e., was unjustified and, if appropriate, unapproved),16 or lacked the appropriate accompanying notice.17
As the determination of whether Bundley's acts constituted misconduct is, thus, a fact-based question of law, the Board's decision is entitled to deference.18 Nevertheless, the school district essentially argues that the Board overlooked two ways in which Bundley engaged in disqualifying misconduct: (1) she was admittedly absent eight times without available leave, and she failed to submit evidence documenting that her absences were justified or approved, or that she had even applied for additional leave; and (2) she failed to demonstrate that she had timely notified the school that she would be absent on February 17, 18, and 24, despite being aware of the school's policy that she do so.
The employer bears the burden of demonstrating disqualifying misconduct
Preliminarily, we note that both of the school district's arguments arise from the same flawed premise—that Bundley was responsible for demonstrating that her absences...
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