Mahoney v. City of Gillette

Decision Date06 March 2019
Docket NumberS-18-0151
Citation436 P.3d 444
Parties Catherine F. MAHONEY, Appellant (Petitioner), v. CITY OF GILLETTE, Appellee (Respondent), and State of Wyoming, ex rel., Department of Workforce Services, Unemployment Insurance Commission, Appellee (Intervenor/Respondent).
CourtWyoming Supreme Court

Representing Appellant: Alexander Berger and Sean Brown, Gillette, WY.

Representing Appellee City of Gillette: Amanda F. Esch, and Leah C. Schwartz, Davis & Cannon, LLP, Cheyenne and Jackson, WY; Anthony M. Reyes, City of Gillette Attorney’s Office, Gillette WY.

Representing Appellee Department of Workforce Services, Unemployment Insurance Commission: Peter K. Michael, Wyoming Attorney General; Daniel E. White, Deputy Attorney General; J.C. DeMers, Senior Assistant Attorney General; Peter Howard, Assistant Attorney General.



[¶1] Appellant, Catherine Mahoney, applied for unemployment insurance after the City of Gillette (City) terminated her employment. The Unemployment Insurance Commission (Commission) denied her application and the district court affirmed the Commission’s decision. Ms. Mahoney argues on appeal, first, that the Commission lacked substantial evidence to conclude she committed misconduct connected with her work, and, second, that the City violated her First Amendment rights when it dismissed her for constitutionally protected speech. Finding neither argument persuasive, we affirm.


[¶2] We rephrase Ms. Mahoney’s issues:

1. Was there substantial evidence to support the Commission’s determination that Ms. Mahoney engaged in misconduct connected with her work?
2. Did the City violate Ms. Mahoney’s First Amendment rights when it terminated her employment?

[¶3] Ms. Mahoney worked at-will as a communications technician (dispatcher) for the City’s police department (Department) for over seven years. On two different occasions during the course of her employment, Ms. Mahoney contacted the City’s human resources department and the City’s administrator about concerns she had with her supervisors and work environment. The response she received on both occasions was to "give it some time." Dissatisfied by these responses, Ms. Mahoney contacted a member of the city council and the two discussed Ms. Mahoney’s concerns, which included a hostile work environment, harassment, poor training programs, and unorganized and unprofessional supervision—all of which Ms. Mahoney attributed to a lack of leadership. Their first two meetings occurred in October and November 2016. The council member told Ms. Mahoney he would try to help her, but he needed documents regarding her concerns. They met a second time in November, together with other dispatchers, and Ms. Mahoney gave the council member some documents. Ms. Mahoney also gave the council member a letter indicating why she and other employees were coming to discuss concerns with him. She signed the letter "on behalf of the Police Dispatch Employees" and included her job title.

[¶4] In early December, Ms. Mahoney emailed herself (at her work account) correspondence and attached documents to give to the council member at their next meeting. Among the email’s attachments, Ms. Mahoney sent confidential tables the Department maintained to show registered alarms in the City. Ms. Mahoney believed it was the Department’s policy not to respond to calls from unregistered alarm systems. She thought that her supervisor was not correctly updating the tables and the failure to do so posed a safety risk to the City and its residents if the police ever failed to respond to a call from an alarm that was registered, but appeared not to be according to the tables. The tables listed residential and commercial alarms along with personal identifying information, including names, addresses, phone numbers, social security numbers, and birth dates. Ms. Mahoney did not redact this information before emailing it to herself or before she gave the council member copies of the emailed documents on December 14, 2016.1

[¶5] In late December, the chief of police discovered the email Ms. Mahoney had sent to herself. The chief launched an investigation into the email and met with Ms. Mahoney in early February. Ms. Mahoney admitted she had given the tables to the council member. At the conclusion of his investigation, the chief determined Ms. Mahoney had violated numerous City and Department policies—policies of which Ms. Mahoney acknowledged she was aware.

[¶6] The City dismissed Ms. Mahoney on February 8, 2017. She applied for unemployment insurance and her application proceeded through four tiers of review. The Unemployment Insurance Division of the Department of Workforce Services initially denied Ms. Mahoney’s application, but an Appeals Division hearing officer reversed that denial after a contested case hearing. The City then appealed to the Commission, which reversed the hearing officer’s decision. The Commission found Ms. Mahoney knew of, but intentionally disregarded City and Department policies and procedures. The Commission concluded that Ms. Mahoney was terminated for misconduct connected with her work and denied her benefits. Ms. Mahoney appealed and the district court affirmed the Commission’s order after considering whether substantial evidence supported the Commission’s decision and whether that decision violated Ms. Mahoney’s free speech rights.2 Ms. Mahoney timely appealed the district court’s order.


[¶7] In unemployment insurance cases, we review the Commission’s decision "without considering the decisions of the deputy, the hearing officer or the district court." Clark v. State ex rel., Dep’t of Workforce Servs. , 2016 WY 89, ¶ 8, 378 P.3d 310, 312 (Wyo. 2016) (citing State ex rel. Dep’t of Workforce Servs., Unemployment Ins. Comm’n v. Kinneman , 2016 WY 79, ¶ 11, 377 P.3d 776 (Wyo. 2016) ). The Commission is an administrative agency, whose decision we review under Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2017):

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
(i) Compel agency action unlawfully withheld or unreasonably delayed; and
(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege or immunity;
(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;
(D) Without observance of procedure required by law; or
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

[¶8] "Unemployment benefit cases where misconduct is alleged present mixed questions of law and fact." Clark , ¶ 10, 378 P.3d at 313 (quoting Aspen Ridge Law Offices, P.C. v. Wyo. Dep’t of Employment, Unemployment Ins. Comm’n , 2006 WY 129, ¶ 11, 143 P.3d 911, 916 (Wyo. 2006) ). We review the Commission’s conclusions of law de novo. Id. ¶ 9, 378 P.3d at 313 (citations omitted). We review the Commission’s findings of fact under the substantial evidence standard. Id. (citations omitted). "Substantial evidence means ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ " Id. (quoting Bush v. State ex rel. Wyo. Workers’ Comp. Div. , 2005 WY 120, ¶ 5, 120 P.3d 176, 179 (Wyo. 2005) ). Substantial evidence supports findings of fact "when we can discern a rational premise for those findings from the evidence preserved in the record." Id. (citing Bush , ¶ 5, 120 P.3d at 179 ). "We give great deference to the Commission’s findings of fact in light of its expertise and extensive experience in employment matters." In re Ringrose , 2013 WY 68, ¶ 9, 302 P.3d 900, 903 (Wyo. 2013) (quoting Weidner v. Life Care Centers of America , 893 P.2d 706, 710 (Wyo. 1995) ). "[O]ur review of any particular decision turns not on whether we agree with the outcome, but on whether the agency could reasonably conclude as it did[ ] based on all the evidence before it." Doggett v. Wyoming Dep’t of Workforce Servs., Unemployment Ins. Comm’n , 2014 WY 119, ¶ 7, 334 P.3d 1231, 1234 (Wyo. 2014) (quoting Davenport v. State ex rel. Wyoming Workers’ Safety and Compensation Div. , 2012 WY 6, ¶ 12, 268 P.3d 1038, 1042 (Wyo. 2012) ).

[¶9] "Constitutional challenges present issues of law that we review de novo. " Cheyenne Newspapers, Inc. v. First Judicial Dist. Court , 2015 WY 113, ¶ 6, 358 P.3d 493, 495 (Wyo. 2015) (citing Operation Save Am. v. City of Jackson, 2012 WY 51, ¶ 17, 275 P.3d 438, 447 (Wyo. 2012) ). If we determine the Commission’s decision is "contrary to constitutional right, power, privilege or immunity," we must set it aside. Wyo. Stat. Ann. § 16-3-114(c)(ii)(B) ; Mekss v. Wyoming Girls’ Sch., State of Wyo. , 813 P.2d 185, 193 (Wyo. 1991).

I. Misconduct Connected with Work

[¶10] The Commission denied Ms. Mahoney’s claim for benefits after it concluded the City discharged her because she violated numerous employer policies when she provided the alarm registration tables to persons unauthorized to see them. The Commission determined that Ms. Mahoney "intentionally disregarded" those policies and procedures and that her actions constituted "misconduct connected with work." Ms. Mahoney argues that, although she may have violated certain policies, the record does not show she intentionally disregarded or violated the policies and, therefore, the Commission lacked substantial evidence to conclude she was discharged for misconduct connected with work.


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