Morgan v. Emp't Sec. Div.

• Decision Date: 14 December 2012
• Docket Number: No. 59840.,59840.
• Citation: 381 P.3d 643 (Table)
• Parties: James MORGAN, Appellant, v. EMPLOYMENT SECURITY DIVISION, STATE of Nevada; Cynthia Jones, in her Capacity as Administrator of the Employment Security Division; Katie Johnson, in her Capacity as Chairperson of the Employment Security Division Board of Review; and Interstate Management Co., LLC, as employer, Respondents.
• Court: Nevada Supreme Court

381 P.3d 643 (Table)

James MORGAN, Appellant,
v.
EMPLOYMENT SECURITY DIVISION, STATE of Nevada; Cynthia Jones, in her Capacity as Administrator of the Employment Security Division; Katie Johnson, in her Capacity as Chairperson of the Employment Security Division Board of Review; and Interstate Management Co., LLC, as employer, Respondents.

No. 59840.

Supreme Court of Nevada.

Dec. 14, 2012.

James Morgan

State of Nevada/DETR

ORDER OF AFFIRMANCE

This is a proper person appeal from a district court order denying a petition for judicial review in an unemployment benefits action. Eighth Judicial District Court, Clark County; Kathy A. Hardcastle, Judge.

Appellant was an employee of respondent Interstate Management Co., LLC operating as Renaissance Las Vegas Hotel, where he worked as a banquet set-up houseperson. His employment was terminated after he failed to show up for work without calling and informing his employer that he would be unable to work a scheduled shift. Thereafter, appellant filed a claim for unemployment benefits, which respondent State of Nevada Employment Security Division denied. Specifically, the appeals referee found that appellant's repeated failure to follow the employer's attendance policy demonstrated an element of wrongfulness and constituted misconduct that warranted appellant's disqualification from unemployment benefits. The Employment Security Division's Board of Review affirmed the appeals referee's determination, and appellant filed a petition for judicial review in the district court. The district court denied the petition, and this appeal followed. On appeal, appellant argues, among other things, that the appeals referee incorrectly found that his termination was for misconduct so that he was disqualified from receiving unemployment benefits.

In reviewing an administrative decision in an unemployment benefits matter, this court, like the district court, determines whether the board acted arbitrarily or capriciously. NRS 233B.135(3)(f) ; McCracken v. Fancy, 98 Nev. 30, 31, 639 P.2d 552, 553 (1982). This court may decide pure issues of law without giving deference to the agency's determination, but mixed questions of law and fact are entitled to deference and the agency's conclusions will not be disturbed if they are supported by substantial evidence. See Kolnik v. State, Emp. Sec. Dep't, 112 Nev. 11, 16, 908 P.2d 726, 729 (1996) ; see also Leeson v. Basic Refractories, 101 Nev. 384, 385–86, 705 P.2d 137, 138 (1985). “Substantial...