Cosper v. Iowa Dept. of Job Service, 66953
| Decision Date | 16 June 1982 |
| Docket Number | No. 66953,66953 |
| Citation | 321 N.W.2d 6 |
| Parties | Sheryl A. COSPER, Appellant, v. IOWA DEPARTMENT OF JOB SERVICE and Blue Cross of Iowa, Appellees. |
| Court | Iowa Supreme Court |
Linda S. Pettit, Des Moines, for appellant.
Joseph L. Bervid, Walter F. Maley, and Blair H. Dewey, Des Moines, for appellee Iowa Dept. of Job Service.
Richard A. Stilley, Des Moines, for appellee Blue Cross of Iowa.
Considered by REYNOLDSON, C. J., and HARRIS, ALLBEE, McGIVERIN, and SCHULTZ, JJ.
This is an appeal by an unemployment compensation claimant from a district court affirmance of agency action that denied her benefits on the basis of excessive absenteeism and tardiness.
The claimant, Sheryl A. Cosper, was hired by Blue Cross of Iowa to work in its control services division on October 9, 1978. Blue Cross counseling documents dated January 5, 1979, show she had been absent several days and was warned that if she missed another 7.75 hours before January 15 she would be terminated. Nonetheless, she was promoted to data entry clerk on June 4, 1979. She was no longer required to work weekends and her salary was increased.
A counseling documentation signed by claimant on September 10, 1979, sets out the following absences and excuses:
6-22 Friday 2.50 doctor appointment
6-25 Monday 7.75 boat accident
6-26 Tuesday 7.75 boat accident
7-3 Tuesday 5.00 doctor appointment
tattoo removed
7-6 Friday 1.00 doctor appointment
tattoo checked
7-11 Wednesday 7.75 sick, fever
7-13 Friday 1.00 doctor appointment
tattoo checked
7-16 Monday 4.00 doctor appointment
pregnancy
7-25 Wednesday 2.00 dental appointment
8-6 Monday 4.00 doctor appointment
pregnancy
8-8 Wednesday 2.00 dental appointment
8-14 Tuesday 4.25 went home sick
8-16 Thursday 7.75 home sick, fever
8-22 Wednesday 7.75 per doctor excuse,
respiratory infection
8-23 Thursday 7.75 same
8-24 Friday 7.75 same
8-27 Monday 7.75 same
8-29 Wednesday 7.75 same
9-5 Wednesday .25 late from break
This paper thus summarized "95.75 total absent hours" and further stated "[a]t any time in the future, if Sheryl's attendance falls below the competent level (7.75 hours in 2 months) probation will be waived and termination may result."
Claimant was again advised on September 20, 1979, that she had arrived one hour late on September 19, 1979, and had only two hours left "before termination may result." A counseling document dated September 27, 1979, recites she became ill at work on September 24 and was allowed to go to the doctor and "the fact that you brought a doctor's excuse, those two hours will not be counted against your remaining 2 hours." The paper stated she was counted tardy on two subsequent occasions and warned she had only ".50 hours left."
Another memorandum of the same date submitted by Blue Cross contained a notation from a supervisor that The "doctor's excuse" stated "Sheryl Cosper was in the clinic this morning from 8:30 a. m.-12:30 p. m. for testing to rule out the possibility of diabetes in her pregnancy."
By handwritten notes on the counseling documents, in her papers filed with the Iowa Department of Job Service, and in her testimony, the claimant protested Blue Cross's absent-time computations. She asserts she had doctor excuses for most of her absences and that near the end of her employment she had a supervisor's consent to change her hours from 7 a. m. to 3:30 p. m. to 8 a. m. to 4:30 p. m. to meet the schedule of another person with whom she was commuting. She assumed that because she would be working the same number of hours it would be "okay." Nonetheless, she alleges she was counted one hour tardy per day and the extra hour at the end of the day was counted as overtime.
Claimant testified that on the day of her discharge she had a supervisor's consent to go back and retrieve her car from the freeway. She further testified that she never took any time from work without letting her employer know about it first; that she brought back a doctor's excuse for each time she "was in the clinic." At the department hearing she offered a doctor's statement showing she had been seen in his office for prenatal care on June 19, 22, 25, July 16, August 16, 23, 24, 27, September 24, 28, and October 31, 1979. Blue Cross's evidence did not go beyond the counseling documents from its files, which are indefinite on the question whether her absences were excused. Merlin Lee, Blue Cross's manager of employment, testified "[w]e have no comment about excused absences."
The claimant was denied relief by the department's claims representative, hearing officer, appeal board, and by the district court. Further, she is met here by a contention raised in district court that there was and is no jurisdiction to review the appeal board's decision. We first dispose of this threshold issue.
The department contends district court had no jurisdiction to review because claimant's application for rehearing, made to the appeal board, was filed too late. It reasons the denial of the rehearing application therefore was void and could not operate to toll the thirty-day period for seeking judicial review. See §§ 96.6(8), 17A.19(3), The Code.
The appeal board decision was filed January 11, 1980. The application for rehearing had to be filed "within twenty days." § 17A.16(2), The Code; see Cunningham v. Iowa Department of Job Service, 319 N.W.2d 202, 204 (Iowa 1982); § 96.6(5)-(6), The Code; 370 I.A.C. § 6.4(2)(f). Thus the last day for filing was January 31, 1980. Claimant's application was dated January 31, 1980, but was stamped by the appeal board as being "received" on February 1, 1980. However, the board's "Decision on Rehearing" shows the date of the application to be January 31, 1980. We find this, coupled with the fact the board must have considered the application timely when it ruled on it, substantiates claimant's contention that she mailed the application on January 31, 1980. The department does not cite its own rule 370 I.A.C. subsection 4.35(1), which in relevant part states:
Except as otherwise provided by statute or by department rule, any payment, appeal, application, request, notice, ... submitted to the department shall be considered received by and filed with the department:
a. If transmitted via the United States postal service or its successor, on the date it is mailed as shown by the postmark, or in the absence of a postmark, the postage meter mark of the envelope in which it is received; or if not postmarked or postage meter marked or if the mark is illegible, on the date entered on the document as the date of completion.
(Emphasis added.) Cf. 370 I.A.C. § 6.4(1)(b) (). We find that this rule is within the authority granted the department by subsection 96.6(6), The Code, and it controls in this situation. Because the department did not submit the envelope, the relevant date is that "entered on the document as the date of completion," January 31, 1980. The application was filed on time. The subsequent time sequences resulted in the petition for judicial review satisfying the subsection 17A.19(3) thirty-day filing time requirement. The district court had, and this court consequently has, jurisdiction to review the department's action.
Claimant's petition for judicial review alleges the department's decision was in violation of statutory and regulatory provisions in that she "was denied benefits even though she was not guilty of misconduct as defined by law." See § 17A.19(8)(a), The Code. She further alleged the department's finding that she was guilty of misconduct was not supported by substantial evidence. See id. § 17A.19(8)(f).
Our statutes provide a disqualification for, but do not define, "misconduct." Subsection 96.5(2) in relevant part provides:
If the department finds that the individual has been discharged for misconduct in connection with the individual's employment:
a. The individual shall be disqualified for benefits until the individual has worked in and has been paid wages for insured work equal to ten times the individual's weekly benefit amount ....
(Emphasis added.) The department has interpreted 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...
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