Garman v. State Employment Sec. Dept.

• Citation: 102 Nev. 563,729 P.2d 1335
• Decision Date: 15 December 1986
• Docket Number: No. 16829,16829
• Parties: Linda GARMAN, Appellant, v. STATE of Nevada, EMPLOYMENT SECURITY DEPARTMENT; Stanley Jones, Executive Director; Las Vegas Area Camp Fire Council, Inc., Respondents.
• Court: Supreme Court of Nevada

Page 1335

729 P.2d 1335

102 Nev. 563

Linda GARMAN, Appellant, v. STATE of Nevada, EMPLOYMENT SECURITY DEPARTMENT; Stanley Jones, Executive Director; Las Vegas Area Camp Fire Council, Inc., Respondents.

No. 16829.

Supreme Court of Nevada.

Dec. 15, 1986.

Graves, Leavitt, Cawley & Koch, Las Vegas, for appellant.

Jeffrey Eskin, Las Vegas, for respondent State of Nevada, Employment Security Department.

Crowell, Crowell, Crowell & Susich and Danile O'Brian, Carson City, Steven Marzullo and William Phillips, Las Vegas, for respondent Camp Fire Council.

OPINION

PER CURIAM:

This action was originally brought when Garman filed a request for a hearing before the Appeals Referee of the Nevada Employment Security Department ("ESD") after receiving notice from ESD that her claim for unemployment benefits was denied. The referee entered a decision affirming the action of ESD denying Garman benefits. The Referee's decision was appealed to the Board of Review. The Board of Review adopted the findings of fact of the Referee and affirmed his decision.

The Board of Review decision was appealed to the district court by a petition for judicial review. On July 17, 1985, the trial court entered its order affirming the decision of the Board of Review and dismissing the petition.

Linda Garman was employed by Las Vegas Area Camp Fire Council, Inc. as a Program Director on January 23, 1984. Prior to being hired for the position, Garman told the Executive Director of Camp Fire that she could not work from 8:30 a.m. to 4:30 p.m. and that she could only work from 6:00 a.m. to 2:00 p.m. The Board of Directors of Camp Fire voiced their support for Garman and approved the individualized schedule.

Garman was employed 4 1/2 months with the Camp Fire Council. During that time she experienced four changes in her immediate supervisor. During the tenure of each supervisor, Garman worked from 6:00 a.m. to 2:00 p.m.

On June 4, 1984, Garman received a memorandum from her new supervisor, Judith Dobson, stating that her new hours would be from 8:30 a.m. to 4:30 p.m. Garman reported to work the next day at 8:30 a.m. and had her performance evaluated by Judith Dobson. During this meeting, Dobson told Garman she would be required to work the newly assigned schedule. Garman told Dobson that she could not do this because of school and family commitments. Immediately after this meeting, Dobson suspended Garman without pay pending termination. The grounds for the suspension were insubordination and unprofessional conduct.

Subsequently, on June 8, 1984, Dobson officially terminated Garman for a long list of infractions. The sole justification for denial of employment benefits, as determined by the Appeals Referee, was that Garman had committed misconduct by refusing to work the newly assigned schedule. The Appeals Referee deemed this to be the proximate cause of her termination. After unsuccessfully exercising her appellate rights at the Board of Review and at the district court, Garman filed the instant appeal.

The issue in this appeal is whether Garman's refusal to work reassigned hours constituted misconduct, as a matter of law, under the facts of the instant case.

The Appeals Referee's decision, which was upheld by the Board of Review, held that misconduct is defined as "a deliberate violation or a disregard of reasonable standards, carelessness or negligence showing substantial disregard of duties." Barnum v. Williams, 84 Nev. 37, 436 P.2d 219 (1968). In reviewing the decision of an administrative board, this court, like the district court, "is limited to the record below and to the determination of whether the board acted arbitrarily or capriciously." McCracken v. Fancy, 98 Nev. 30, 31, 639 P.2d 552, 553 (1982). If the agency determination is based on substantial evidence, the inquiry ends, for neither this court nor the district court is at liberty to substitute its judgment for that of the agency. Id.

When analyzing the concept of misconduct, the trier of fact must consider the legal definition, Barnum, in context with the factual circumstances surrounding the conduct at issue. Misconduct then becomes a mixed question of law and fact. Jones v. Rosner, 102 Nev. 215, 719 P.2d 805 (1986). Findings of misconduct must be given deference similar to findings of fact, when supported by substantial evidence in the lower court. Id. For example, the violation of a work rule, not accumulating excessive numbers of tardies/early leaves, was deemed not to be misconduct when viewed in light of the reasons for the early tardies/early leaves (illness, taking care of a terminally ill mother and appearing in court). Tynes v. Uniroyal Tire Company, 679 P.2d 1310 (Okla.Ct.App.1984).

Nevada decisions have stated that the employee's conduct which prompted the termination must have an element of wrongfulness in order to constitute misconduct so as to prevent the terminated employee from receiving unemployment benefits. In Lellis v. Archie, 89 Nev. 550, 516 P.2d 469 (1973), this court held that a casino changemaker did not commit an act of misconduct by refusing to work at a less favorable work station when in the past the casino had used a rotation system to allow all changemakers to rotate from the worst to best stations. This court held that "an objection to the change of stations by Lellis lacked any element of wrongfulness." Id. at 553, 516 P.2d at 471.

The activities of Garman and the circumstances of her employment must be analyzed to see if there is an element of wrongfulness, sufficient to support a determination of misconduct.

When Garman accepted...