Hins v. Lucas Western, 910422

• Decision Date: 21 April 1992
• Docket Number: No. 910422,910422
• Citation: 484 N.W.2d 491
• Parties: Leah HINS, Petitioner and Appellee, v. LUCAS WESTERN, Respondent and Appellant, and Job Service North Dakota, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 491

484 N.W.2d 491

Leah HINS, Petitioner and Appellee, v. LUCAS WESTERN, Respondent and Appellant and Job Service North Dakota, Respondent.

Civ. No. 910422.

Supreme Court of North Dakota.

April 21, 1992.

Mackenzie, Jungroth, Mackenzie & Reisnour, Jamestown, for petitioner and appellee; argued by William A. Mackenzie.

Deborah Joan Carpenter (argued), Bismarck, for respondent and appellant.

Douglas Alan Bahr, Atty. Gen. Office, Bismarck, for respondent.

ERICKSTAD, Chief Justice.

Lucas Western appeals from the Judgment of the District Court for Stutsman County, reversing the decision of Job Service of North Dakota denying Leah Hins unemployment benefits. We affirm.

On or about February 21, 1991, Leah Hins applied for unemployment benefits after being terminated from employment with Lucas Western. Job Service, through its claims deputy, determined that Hins was terminated because of "misconduct" within the meaning of section 52-06-02(2), N.D.C.C., and on March 13, 1991, denied her application. Hins sought administrative review and on or about April 16, 1991, Job Service, through Appeals Referee Bob Moyle, reversed its earlier decision and awarded Hins benefits, concluding that Hins had not engaged in "misconduct" within the meaning of section 52-06-02(2), N.D.C.C. The appeals referee's decision sets forth in relevant part:

"FINDINGS OF FACT:

"The Claimant worked approximately 16 1/2 years for the above employer. She last worked as a processing worker in the employer's painting department. The claimant worked full time, from 3:30 p.m. to midnight, and her last day of work was February 12, 1991.

"A conflict had existed between the claimant and a co-worker for the past one or one and a half years. This was considered a personality conflict but some incidents occurred that involved provocation of the claimant by the co-worker. For example, the co-worker shut off an exhaust fan in the paint department and drove behind the claimant with bright headlights on. The claimant made her employer aware of the problem with the ventilation fan and confronted her co-worker in the employer's parking lot after work at about 12:15 p.m. on the morning of February 13, 1991. The co-worker waited until the claimant began to exit from the parking lot and followed the claimant's car with the bright headlights on. The claimant stopped her car, got out, and walked backed [sic] to her co-worker's car. Her co-worker rolled down the window and yelled at the claimant, 'You're lying about me.' The claimant grabbed her co-worker by the hair, and let go, and returned to her car and left.

"The employer was made aware of the incident involving the claimant and her co-worker in the parking lot on the morning of February 13, 1991. Both the claimant and her co-worker were suspended from work pending an investigation by the employer. The employer determined that the claimant's employment would be terminated and the co-worker should be suspended for a period of 30 days. The claimant was discharged on February 20, 1991, and thereafter she filed a new claim for job insurance benefits.

"REASON FOR THE DECISION:

"Misconduct has been defined as conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to his employer.

"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.

"The claimant responded to provocation from a co-worker during the incident on the morning of February 13, 1991. She did take reasonable steps on previous occasions and perhaps should have done likewise on the last occasion. However, it was the claimant who was being provoked in the latter incident, and her actions may not be deemed as misconduct. Accordingly, the claimant is entitled to job insurance benefits.

"DECISION:

"The determination of the deputy dated March 13, 1991, is reversed. The claimant is entitled to job insurance benefits effective February 24, 1991, and thereafter providing she has met and continues to meet all other eligibility requirements of the law. The employer's account is chargeable."

In response to a request from Lucas Western, Job Service reviewed the appeals referee's decision and on May 6, 1991, through Micheal Deisz, its executive director, made a final determination reversing the decision of the appeals referee. This final decision of Job Service sets forth in relevant part:

"FINDINGS OF FACT:

"The findings set forth in the Referee's Decision are supported by a preponderance of the evidence contained in the record and are adopted by the Bureau as its findings. In addition, the following findings are added by the Bureau to the Referee's Findings after the second sentence of the last paragraph of those Findings. 'The employer investigation indicated that the claimant grabbed the co-worker by the hair and pushed the co-worker's face into the steering wheel. The claimant did have other recourse besides stopping her vehicle, getting out, and using physical force on the co-worker. This recourse would have involved bringing the matter to the attention of her supervisor and management.

"REASONS FOR THE DECISION:

"Misconduct has been defined as conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to his employer.

"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.

"While the claimant may have been provoked by her co-worker, the provocation did not involve use of physical force by the co-worker against the claimant. It is noted that it was the claimant who stopped her vehicle, got out, walked over to the co-worker's vehicle, and grabbed the co-worker by the hair. While there is a dispute as to whether the claimant pushed the co-worker's face into the steering wheel, it is undisputed that the claimant grabbed the co-worker by the hair. This use of physical force by the claimant against her co-worker demonstrates a deliberate disregard of the standards of behavior which the employer has the right to expect of the employee. The claimant did have other recourse available to her other than use of physical force on the co-worker. The actions of the claimant fall within the definition of misconduct and she is to be disqualified from benefits accordingly.

"DECISION:

"The decision of the Appeals Referee is reversed. The claimant is disqualified from benefits effective February 24, 1991, until such time as she earns ten times her weekly benefit amount in employment and has not separated from employment under disqualifying conditions."

After learning of Job Service's final decision, Hins appealed to the district court which on or about October 14, 1991, reversed the final decision of Job Service. This appeal by Lucas Western followed. ¹

Initially, we note that, when an administrative agency decision is appealed to this court from a district court, we review the final decision of the agency and not that of the district court. Speedway, Inc. v. Job Service North Dakota, 454 N.W.2d 526, 527 (N.D.1990). We limit our review to the record before the agency and do not consider the findings of the district court. Asbridge v. North Dakota State Highway Commissioner, 291 N.W.2d 739, 743 (N.D.1980). "But, the analysis by the district court is entitled to respect because the legislatively mandated review by the district court cannot be ineffectual." Medcenter One, Inc. v. Job Service North Dakota, 410 N.W.2d 521, 524 (N.D.1987). Also, "where the agency has rejected a hearing officer's decision, a necessary part of our inquiry is whether the agency's decision satisfactorily explains the reason for not following the hearing officer's recommendation." Id. See also Schultz v. North Dakota Department of Human Services, 372 N.W.2d 888 (N.D.1985).

Sections 28-32-19 and 28-32-21, N.D.C.C., establish the scope and procedure for this Court's review of administrative agency decisions or orders. We will affirm an administrative agency decision unless one of the six enumerated reasons listed in section 28-32-19 is found to exist. Marion v. Job Service North Dakota, 470 N.W.2d 609, 611 (N.D.1991). We have recognized that our review under section 28-32-19, N.D.C.C., essentially involves a three-step process: (1) Are the findings of fact supported by a preponderance of the evidence? (2) Are the conclusions of law sustained by the findings of fact? (3) Is the agency decision supported by the conclusions of law? Perske v. Job Service North Dakota, 336 N.W.2d 146, 148 (N.D.1983).

In applying the preponderance standard for review of administrative agency findings of fact, "we do not make independent findings of fact or substitute our judgment for that of the agency, but we determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached by the agency were proved by the weight of the evidence from the entire record." Marion v. Job Service North...