Kelly v. Iowa Dept. of Job Service, 85-711

• Decision Date: 26 February 1986
• Docket Number: No. 85-711,85-711
• Citation: 386 N.W.2d 552
• Parties: 32 Ed. Law Rep. 256 Brian KELLY, Petitioner-Appellant, v. IOWA DEPARTMENT OF JOB SERVICE and St. Ansgar Community School District, Respondents-Appellees.
• Court: Iowa Court of Appeals

Page 552

386 N.W.2d 552

32 Ed. Law Rep. 256

Brian KELLY, Petitioner-Appellant, v. IOWA DEPARTMENT OF JOB SERVICE and St. Ansgar Community School District, Respondents-Appellees.

No. 85-711.

Court of Appeals of Iowa.

Feb. 26, 1986.

Evelyn Ocheltree of Legal Services Corp., Mason City, for petitioner-appellant.

Walter F. Maley, Blair H. Dewey, and Joseph L. Bervid, Des Moines, for respondent-appellee Iowa Dept. of Job Service.

Brian H. McKinley, of Dunkelberg, McKinley & Folkers, Osage, for respondent-appellee St. Ansgar Community School Dist.

Considered by OXBERGER, C.J., and DONIELSON and SNELL, JJ.

SNELL, Judge.

Petitioner Brian Kelly was a custodian for the St. Ansgar Community School District from August 7, 1978 until he was fired on March 8, 1983. On March 9, Superintendent Delbert Jensen gave Kelly a letter that stated that the reason for his termination was neglect of his work. Jensen testified that the incident which triggered the discharge was Kelly's failure to adequately clean the school's stage. Jensen admitted that the stage had been swept. However, Jensen stated that it was not cleaned enough because dust remained on it the next morning. Kelly testified that he had picked up papers over the whole area and then dustmopped and mopped the stage. He stated that he did the best job that he could possibly do. He had to clean around some machinery and weight machines on the stage that were too heavy to move. Kelly's co-worker, Tom Schmidtke, testified that he saw Kelly sweep the stage and he did not see anything wrong with it.

Jensen testified that Kelly had been placed on probation twice for poor job performance before his termination--once in 1979 and once in late 1982. Jensen stated that Kelly had also been warned orally and in writing about his job performance on other occasions, and was informed that if his performance did not improve he could be terminated.

Kelly testified that because Jensen did not have the authority to fire Kelly himself, Jensen had to ask the school board to do so. Kelly and his wife attended the school board meeting where his termination was discussed. According to the undisputed testimony of Kelly and his wife, the school board found that Kelly had not committed misconduct and that there was no reason to fire him because of his job performance. However, the school board went along with Jensen's recommendation to terminate because of the continuous personality conflict between Jensen and Kelly. Jensen stated to the board that he wouldn't even try to work with Kelly.

Kelly filed for unemployment benefits following his termination. A claims deputy decision dated March 25, 1983, held that misconduct had not been proven and benefits were allowed. The school district appealed and a telephone hearing was held on April 21, 1983. The hearing officer reversed, finding that Kelly experienced numerous problems complying with job performance standards during his period of employment. The hearing officer further found that Kelly had been placed on probation on two occasions and had been warned about his job performance on several occasions. The hearing officer concluded that Kelly "was discharged from his position due to poor job performance and [Kelly] had the ability and capability of doing the work in question, thus, [Kelly's] actions indicate a willful and deliberate act on his part so as to constitute misconduct within the meaning of the Iowa law." The hearing officer's denial of benefits on the ground of misconduct was upheld by a 2-1 majority of the appeal board.

Kelly filed a petition for judicial review; the district court affirmed Job Service by concluding that the record contained substantial evidence supporting the agency decision. On appeal, Kelly again contends that the record does not support the agency's finding that he deliberately and willfully failed to do his job.

Our scope of review in cases arising out of the Iowa Administrative Procedure Act is limited to the correction of errors of law. Budding v. Iowa Dept. of Job Service, 337 N.W.2d 219, 221 (Iowa Ct.App.1983). We review the decision of the district court, also rendered in an appellate capacity, and determine whether the district court correctly applied the law. Endicott v. Iowa Dept. of Job Service, 367 N.W.2d 300, 302 (Iowa Ct.App.1985). "In order to make that determination, this court applies the standards of section 17A.19(8) to the agency action to determine whether this court's conclusions are the same as those of the district court." Jackson County Public Hospital v. Public Employment Relations Bd., 280 N.W.2d 426, 429-30 (Iowa 1979). Iowa Code section 17A.19(8) provides that in a contested case the court shall grant relief from an agency decision which is unsupported by substantial evidence in the record made before the agency when that record is viewed as a whole. Evidence is substantial when a reasonable person would accept it as adequate to reach a conclusion. Gipson v. Iowa Dept. of Job Service, 315 N.W.2d 834, 837 (Iowa Ct.App.1981). We do not question the school board's right to terminate Kelly's employment. Our sole task is to determine whether Kelly is entitled to unemployment benefits. Billingsley v. Iowa Dept. of Job Service, 338 N.W.2d 538, 540 (Iowa Ct.App.1983).

Iowa Code section 96.5(2) provides that an individual is disqualified for unemployment benefits if Job Service finds that the individual has been discharged for misconduct in connection with the individual's employment.

The Iowa Administrative Code defines "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 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...