Ellis v. Iowa Dept. of Job Service, 62868

• Decision Date: 14 November 1979
• Docket Number: No. 62868,62868
• Citation: 285 N.W.2d 153
• Parties: Lucille ELLIS, Appellee, v. IOWA DEPARTMENT OF JOB SERVICE, Appellant.
• Court: Iowa Supreme Court

Page 153

285 N.W.2d 153

12 A.L.R.4th 622

Lucille ELLIS, Appellee, v. IOWA DEPARTMENT OF JOB SERVICE, Appellant.

No. 62868.

Supreme Court of Iowa.

Nov. 14, 1979.

Walter F. Maley and Blair H. Dewey, Des Moines, for appellant.

Linda S. Pettit, Des Moines, for appellee.

Considered by LeGRAND, P. J., and REES, UHLENHOPP, ALLBEE, and LARSON, JJ.

UHLENHOPP, Justice.

This appeal involves the question of whether a worker voluntarily quit her employment without good cause attributable to her employer. See § 96.5(1), The Code 1979. No issue of exemption is raised in this case.

The evidence shows that claimant Lucille Ellis, a housekeeper, is allergic to the pollen or the mold or dust on evergreen trees. She testified this "stuff" gets in the air and "clogs (my) sinus and gives (me) a sore throat," and that a previous employer used an artificial tree at Christmas time to accommodate her allergy.

Ellis applied for employment as a housekeeper at Sacred Heart Rectory in West Des Moines, and was hired. At the time of her application she informed the priest of her allergy, and on two other occasions the parties discussed her allergy problem. The following Christmas, in 1976, the rectory did not have a Christmas tree. Ellis' duties were cleaning, washing, ironing, and preparing meals.

Near Christmas in 1977 Ellis was off work two days, and when she returned on December eighteen a natural Christmas tree had been placed in the rectory. The parties disagree as to precisely what then occurred. The record is clear that Ellis asserted she could not work in the rectory with the tree there. She claims she told the priest she would check back on January first or second to see if the tree was down, while the priest contends she simply left the job. In any event, on December twentieth the priest terminated the employment in writing stating, "We cannot tolerate anyone walking off the job especially at this time."

Ellis subsequently found other employment but applied for employment benefits for the interim period. A claims deputy of the Iowa Department of Job Service denied the claim on the ground that Ellis "left (her) employment because of dissatisfaction with the work environment." Ellis appealed within the Department, and a hearing officer found Inter alia : "When she returned Sunday afternoon, December 18, 1977, there was a Christmas tree in the living room of the rectory. She told her employer she was allergic to pollen and needles on evergreen trees. It clogs her sinus and causes her to have a sore throat. She told her employer she would have to leave and did." In affirming the decision denying benefits, the hearing officer stated in his "Reasoning and Conclusions of Law":

The claimant left her employment because she objected to having a Christmas tree in her employer's living room. She could have remained in the other room during the ten day period or she could have worn a mask. She has not established that her leaving was for any cause attributable to her employer.

Ellis then appealed to the highest level within the Department, which rendered the following "Appeal Board Decision":

The above-captioned matter, having been appealed to the Iowa Department of Job Service under Section 96.6-5, Code of Iowa, has now been reviewed by a majority of the Board. After reviewing the administrative record and the sworn testimony, the Board concludes that the decision of the hearing officer is correct. The Findings of Fact and Reasoning and Conclusions of Law of the hearing officer are by this reference incorporated and made a part of this decision the same as though fully set out herein and the decision of the hearing officer is affirmed.

Ellis then appealed to district court. After hearing, that court overturned the Department's decision and held that Ellis is entitled to benefits. The Department appealed to this court.

I. Before reaching the merits the Department contends, as it did in district court, that Ellis did not exhaust her administrative remedies within the Department by seeking a rehearing before the appeal board under section 17A.16, The Code 1979:

2. Any party may file an application for rehearing, stating the specific grounds therefor and the relief sought, within twelve days after the issuance of any final decision by the agency in a contested case. A copy of such application shall be timely mailed by the applicant to all parties of record not joining therein. Such an application for rehearing shall be deemed to have been denied unless the agency grants the application within twenty days after its filing.

Was a rehearing pursuant to this section prerequisite to judicial review at the time of this proceeding? The provisions of chapter 17A, our Administrative Procedure Act, apply to judicial review of the decisions of the appeal board in contested cases of this type. § 96.6(8), The Code. Under the same provision an appeal board decision becomes final "ten days after the date of notification or mailing thereof."

The rule which we follow was quoted thus in Moravek v. Davenport Community School District, 262 N.W.2d 797, 802 (Iowa 1978):

"In Rowen (V. LeMars Mutual Insurance Company of Iowa, 230 N.W.2d 905, 909 (Iowa 1975)), supra, we said the exhaustion rule does not control unless two conditions are present. An administrative remedy must exist for the claimed wrong, and The statute must expressly or impliedly require that remedy to be exhausted before resort to the courts." (Emphasis added.)

An amendment to section 96.6(8) of the Code was not in effect at the time of these events. See 1979 Session, 68th G.A., ch. 33, § 14. Examining the statutes which were in effect at the time, we find that section 17A.19(1) required all adequate administrative remedies be exhausted. The statute did not "expressly" state, however, that a rehearing was required. Was a rehearing application "impliedly" required before judicial review was available?

A statutory provision and an administrative rule indicate the negative. Section 17A.19 of the Code provides:

3. If a party files an application under section 17A.16, subsection 2, for rehearing with the agency, the petition for judicial review must be filed within thirty days after that application has been denied or deemed denied. If a party does not file an application under section 17A.16, subsection 2, for rehearing, the petition must be filed within thirty days after the issuance of the agency's final decision in that contested case. If an application for rehearing is granted, the petition for review must be filed within thirty days after the issuance of the agency's final decision on rehearing. In cases involving a petition for judicial review of agency action other than the decision in a contested case, the petition may be filed at any time petitioner is aggrieved or adversely affected by that action.

This provision implies judicial review is available if a party does not apply for a rehearing. The Department was apparently of this view, for it promulgated the following rule in 370 I.A.C. § 6.4(3):

F. The appeal board's decision shall be final and without further review thirty days after the decision is mailed to all interested parties of record unless within that thirty days a petition for rehearing is filed with the appeal board or a petition for judicial review is filed in the appropriate district court.

We conclude as did the District Judge that rehearing was not prerequisite to judicial review at the time of this case. See Rames, Exhausting The Administrative Remedies: The Rehearing Bog, 11 Wyo.L.J. 143, 158-59 (1957). We have no occasion now to deal with the statute as it presently reads.

II. Coming to the merits, we are the ultimate determiner of questions of Iowa Law, which...