Myers v. Employment Appeal Bd.

• Decision Date: 26 September 1990
• Docket Number: No. 89-1058,89-1058
• Citation: 462 N.W.2d 734
• Parties: Donald E. MYERS, Appellant, v. EMPLOYMENT APPEAL BOARD, Appellee.
• Court: Iowa Court of Appeals

Page 734

462 N.W.2d 734

Donald E. MYERS, Appellant, v. EMPLOYMENT APPEAL BOARD, Appellee.

No. 89-1058.

Court of Appeals of Iowa.

Sept. 26, 1990.

Mark S. Soldat, Algona, for appellant.

William C. Whitten and I. John Rossi, Des Moines, for appellee.

Heard by OXBERGER, C.J., and SCHLEGEL and SACKETT, JJ., but considered en banc.

DONIELSON, Judge.

Donald Myers had been employed by Lauridsen Foods, Inc. for nine years. He was the supervisor of maintenance. Lauridsen Foods is a packer of pork products.

Armour Foods was Lauridsen's biggest customer. Jody East was the head of Armour Foods' Quality Assurance Department. As part of her employment for Armour, East was present daily within the Lauridsen plant.

On Tuesday, February 9, 1988, Myers was asked by East to move some cabinets. Myers became irate in response to the request. After Ms. East had left the maintenance shop, Myers told one of his subordinates to "go up and see what the dumb bitch wanted." The subordinate, Robert Leerar, subsequently repeated this statement to Ms. East. Ms. East reported the altercation to Myers' superior, Clark Knowles, the next day.

On Thursday, February 11th, a janitor approached Mr. Knowles. The janitor was concerned because Myers had told him not to deliver supplies to the Armour staff located in the plant. Mr. Knowles testified that while he would not regard this incident by itself as significant, he did feel that under the circumstances it indicated Myers had an attitude problem toward Lauridsen's best customer. Following this incident, Mr. Knowles felt he should have a talk with Myers.

Mr. Knowles met with Myers on the eleventh. They discussed the incident involving Ms. East and the report by the janitor regarding the delivery of supplies to Armour. Knowles asked Myers to take some time off and return to work on the following Tuesday and they would discuss Myers' future with Lauridsen Foods. At this point, Myers began to discuss the possibility of quitting his job.

Fellow employee Ray Laurie testified that Myers spoke with him after he left his meeting with Knowles. Laurie stated that shortly after leaving Knowles' office, Myers was upset and said, "Well, I'm through but I'll be back Tuesday and when I come back Tuesday I will make it so miserable they will fire me." Laurie subsequently repeated this statement to Mr. Knowles.

Myers returned to the workplace on Tuesday, February 16th. He was met by Knowles and was informed his employment was terminated. Myers sought unemployment benefits. Following a hearing, Myers was denied benefits. The hearing officer concluded Myers had voluntarily quit his job without good cause attributable to his employer. In the alternative, the hearing officer concluded Myers' conduct was such that he had been discharged for misconduct in light of his threat to behave so miserably so as to force his employer to fire him.

On appeal, the Employment Appeal Board affirmed the denial of benefits but modified the decision of the hearing officer. The Board concluded this case involved a discharge resulting from employee misconduct rather than a voluntary quit. The Board determined Myers' statement to Laurie was a threat which constituted misconduct.

Myers sought judicial review. The district court concluded substantial evidence supported the agency's decision and it was not affected by error of law. On appeal, Myers claims the trial court erred by affirming the agency's decision.

I. Standard of Review. Our scope of review in cases arising out of the Iowa Administrative Procedure Act is limited under Iowa Code section 17A.20 to the correction of errors at law. Foods, Inc. v. Iowa Civil Rights Commission, 318 N.W.2d 162, 165 (Iowa 1982). The review function of the district court under section 17A.19 is to correct errors of law which are specified in section 17A.19(8). When we review decisions of the district court which were rendered in its capacity as an appellate body under section 17A.19, the issue for our determination is whether the district court correctly applied the law. Budding v. Iowa Department of Job Service, 337 N.W.2d 219, 221 (Iowa App.1983). In order to make that determination, we apply 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 Board, 280 N.W.2d 426, 429-30 (Iowa 1979).

II. Misconduct. Iowa Code section 96.5(2) provides a claimant is disqualified from unemployment benefits "[i]f the department finds that the individual has been discharged for misconduct in connection with the individual's employment." The sole issue before us is whether the department erred in holding petitioner's conduct constituted misconduct as that term is contemplated under section 96.5(2). We note at the outset that we do not question the employer's right to terminate petitioner's employment. The issue we address relates solely to whether or not petitioner is entitled to unemployment compensation.

Misconduct is defined by 345 Iowa Administrative Code 4.32(1) 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 a 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 interest 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 definition has been accepted by the Iowa Supreme Court as accurately reflecting the intent of the legislature. Huntoon v. Iowa Dept. of Job Service, 275 N.W.2d 445, 448 (Iowa 1979), cert. denied, 444 U.S. 852, 100 S.Ct. 105, 62 L.Ed.2d 68 (1979).

As the definition suggests, misconduct must be substantial in nature to support a disqualification from unemployment benefits. Misconduct serious enough to warrant the discharge of an employee, is not necessarily serious enough to warrant a denial of benefits. Budding, 337 N.W.2d at 222. An employer has the burden of proving a claimant is disqualified for benefits because of misconduct. Sallis v. Empt. Appeal Board, 437 N.W.2d 895, 896 (Iowa 1989).

III. Offensive Language. The record reveals that Myers referred to an Armour Foods employee, Jody East, as a "dumb bitch." Relying on Budding v. Iowa Dept. of Job Service, 337 N.W.2d 219 (Iowa App.1983), Myers claims this language would not constitute misconduct. Seven years have passed since Budding was rendered, and this court has had to repeatedly make exceptions to its "minor peccadillo" analysis. We have recognized that vulgar language in front of customers can constitute misconduct, Zeches v. Iowa Dept. of Job Service, 333 N.W.2d 735, 736 (Iowa App.1983), as well as vulgarities accompanied with a refusal to obey supervisors. Warrell v. Iowa Dept. of Job Service, 356 N.W.2d 587, 589 (Iowa App.1984). Likewise, the repetition of vulgarities can elevate a minor peccadillo to an act of willful misconduct. Carpenter v. Iowa Dept. of Job Service, 401 N.W.2d 242, 245-46 (Iowa App.1986).

Each decision qualifying or limiting Budding is an implicit recognition of the erroneous analysis adopted in that decision. This court recognizes an employer's right to expect decency and civility from its employees. In Myers' case, the vulgar language he used was subsequently conveyed to Ms. East and could have damaged the business relationship between Lauridsen and Armour Foods. The use of profanity or offensive language in a confrontational, disrespectful, or name-calling context, may be recognized as misconduct, even in the case of isolated incidents or situations in which the target of abusive name-calling is not present when the vulgar statements are initially made. The question of whether the use of improper language in the workplace is misconduct is nearly always a fact question. It must be considered with other relevant factors, including the context in which it is said, and the general work environment. Therefore, whether the event is misconduct is most generally a decision for the agency. To the extent Budding contradicts this position, it is overruled.

IV. Threat. The record in this case reveals the agency denied Myers unemployment benefits because of the statement he made in which he alleged he would return to work and make it "so miserable" his employer would fire him. We agree that this threatening behavior constitutes misconduct.

Our past decisions have recognized that employee threats may rise to the level of behavior so as to constitute misconduct. See Deever v. Hawkeye Window Cleaning, Inc., 447 N.W.2d 418, 421 (Iowa App.1989) (threat of physical harm); Myers v. Iowa Dept. of Job Service, 373 N.W.2d 507, 510 (Iowa App.1985) (threat not to take orders from coworker). When reviewing an alleged act of misconduct, we may consider past acts of misconduct to determine the magnitude of the current act. Kelly v. Iowa Dept. of Job Service, 386 N.W.2d 552, 554 (Iowa App.1986).

In this case, Myers conceded he "blew his stack" on February 9, 1989, when Jody East requested that some cupboards be moved. Ms. East was a representative of Armour Foods, Lauridsen's largest customer. Maintenance of a good relationship with Armour employees was very important to Lauridsen Foods. Despite that...