Higgins v. Iowa Dept. of Job Service

• Citation: 350 N.W.2d 187
• Decision Date: 13 June 1984
• Docket Number: No. 83-849,83-849
• Parties: Barbara L. HIGGINS, Appellant, v. IOWA DEPARTMENT OF JOB SERVICE and United Parcel Service, Appellees.
• Court: United States State Supreme Court of Iowa

Page 187

350 N.W.2d 187

Barbara L. HIGGINS, Appellant, v. IOWA DEPARTMENT OF JOB SERVICE and United Parcel Service, Appellees.

No. 83-849.

Supreme Court of Iowa.

June 13, 1984.

Robert C. Oberbillig, Des Moines, for appellant.

Blair H. Dewey, Walter F. Maley, and Edmund Schlak, Jr., Des Moines, for appellees.

Considered by REYNOLDSON, C.J., and UHLENHOPP, HARRIS, McGIVERIN and CARTER, JJ.

McGIVERIN, Justice.

In this appeal we must consider whether there is substantial evidence in the record as a whole to support the decision of respondent Iowa Department of Job Service disqualifying petitioner from receiving unemployment benefits. The disqualification was based on petitioner's alleged misconduct arising out of her record of persistent absences and tardiness which led to her discharge by her employer. On judicial review, the district court ruled in favor of Job Service. The court of appeals affirmed the district court by operation of law in a three-to-three decision. Having found substantial evidence in the record to support the agency's decision, we also affirm.

Petitioner Barbara L. Higgins was employed by United Parcel Service (UPS) as a rewrap clerk between August 27, 1979, and June 2, 1982. After January 1, 1982, Higgins compiled the following absenteeism record:

1-05-82 absent sick

1-08-82 late .05

1-15-82 absent car trouble

1-28-82 absent sick

3-17-82 absent sick

3-18-82 absent sick

3-24-82 absent off job injury

3-25-82 absent off job injury

3-26-82 absent off job injury

3-30-82 late .01 no reason

4-15-82 late .40 babysitter was late

4-16-82 absent no call, no show (overslept)

5-24-82 late .02 babysitter was late

6-02-82 late .15 overslept

After Higgins failed to report to work on April 16, she was placed on probation for thirty days effective April 26. This action was preceded by a conference between petitioner and her supervisor on April 19, when a written record of her absences and tardiness was reviewed by them. The written notice of probation also warned Higgins to "be on time every day in the future and in attendance every day to avoid further disciplinary action." On June 2, Higgins was fifteen minutes late for work because she overslept.

On June 3, 1982, petitioner's employer phoned and advised her not to report to work and then formally notified her of her termination by written notice the next day, June 4.

Higgins then applied for unemployment benefits with the Iowa Department of Job Service. She attached to her application a comprehensive list of her absences which included those enumerated above.

UPS protested the payment of benefits, Iowa Code section 96.6(2), on the basis that she was fired for misconduct arising out of an extensive record of absenteeism and tardiness. After a hearing and intra-agency review, Job Service ultimately decided that Higgins was discharged for misconduct and thus was disqualified from receiving unemployment benefits in accordance with section 96.5(2). During the hearing, a representative of UPS testified as to petitioner's absences by reading from the April 19 document that had notified Higgins and her supervisor that she was on probation and warned Higgins of the consequences of continued absenteeism. The document, which was in the Job Service file, listed Higgins' absences through April 16. The UPS representative also noted that Higgins was late for work on May 24. The June 2 tardiness was admitted by Higgins in the document she filed with Job Service. The hearing officer did not specifically refer to the latter tardiness in his decision ultimately finding misconduct.

Higgins sought judicial review pursuant to Iowa Code section 17A.19. After a hearing, the district court ordered the case remanded to the agency to review the case and determine whether or not the petitioner's tardiness on May 24 was excused or unexcused.

The agency found Higgins' May 24 tardiness was unexcused and reported such finding to the district court as directed. After further hearing and argument, the court entered its decision and judgment affirming the action of Job Service. On appeal by petitioner, an equally divided court of appeals affirmed the district court's decision by operation of law.

We granted further review of the case.

I. Misconduct. Iowa Code section 96.5 provides that "[a]n individual shall be disqualified for benefits ... (2) [i]f the department finds that the individual has been discharged for misconduct in connection with the individual's employment...." (Emphasis added.)

"Misconduct" has been defined by 370 Iowa Admin.Code § 4.32(1)(a) to mean:

a. Misconduct is defined 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 show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to the employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed misconduct within the meaning of the statute.

This general definition of misconduct was approved by this court in Huntoon v. Iowa Dept. of Job Service, 275 N.W.2d 445, 448 (Iowa), cert. denied, 444 U.S. 852, 100 S.Ct. 105, 62 L.Ed.2d 68 (1979), because it "accurately reflects the intent of the legislature."

More specifically, in regard to absenteeism as grounds for misconduct, we held in Cosper v. Iowa Dept. of Job Service, 321 N.W.2d 6, 10 (Iowa 1982), that "excessive absences are not misconduct unless they are unexcused." That holding was expressly adopted by a subsequently enacted department rule which provides:

Excessive unexcused absenteeism. Excessive unexcused absenteeism is an intentional disregard of the duty owed by the claimant to the employer and shall be considered misconduct except for illness or other reasonable grounds for which the employee was absent and that were properly reported to the employer.

....

This rule is intended to implement Iowa Code section 96.5 and Supreme Court of Iowa decision, Sheryl A. Cosper vs. Iowa Department of Job Service and Blue Cross of Iowa.

370 Iowa Admin.Code § 4.32(7) (emphasis added). This rule accurately incorporates our holding in Cosper and provides additional guidelines for determining "misconduct" on an individual case basis. ¹ See generally 76 Am.Jur.2d Unemployment Compensation § 58 (1975); Annot., 58 A.L.R.3d 674 (1974).

We note for the sake of clarity that the use of the term "absenteeism" or "absence" also encompasses conduct of an employee that is more accurately referred to as "tardiness." As traditionally used in the area of employment, the term "absent" refers to an employee who has missed a full day's work whereas the term "tardy" means an employee who reports to work late. As a practical matter, an absence is an extended tardiness and a tardiness is a limited absence. In any event, we believe the terms "absenteeism" and "absences," as used in Cosper and in 370 Iowa Admin.Code § 4.32(7), were intended to refer to the time in which an employee is not at work when he or she is scheduled and expected to be there, irrespective of the length of such time.

We must determine, therefore, whether there is substantial evidence in the record as a whole to support the agency's finding that Higgins was discharged for "misconduct" arising out of "excessive unexcused absenteeism."

II. Sufficiency of the evidence. The substantial evidence rule requires us to review the record as a whole to determine whether there is sufficient evidence to support the decision of the agency. Iowa Code § 17A.19(8)(f); Woodbury County v. Iowa Civil Rights Commission, 335 N.W.2d 161, 164 (Iowa 1983).

Petitioner initially argues that we should not consider her June 2 absence because "an issue not relied upon by the agency at the agency level in making its determination nor raised at the district court level by the agency, cannot be raised for the first time on appeal...." (Emphasis added.)

Petitioner's contention is without merit, however, because her June 2 tardiness is not an issue in this case but rather a factual component of the record. Petitioner inserted this particular tardiness into the record herself when she attached a list of her absences to her application for unemployment benefits. Our scope of review...