Perske v. Job Service North Dakota, 10390

• Decision Date: 30 June 1983
• Docket Number: No. 10390,10390
• Citation: 336 N.W.2d 146
• Parties: JoAnn PERSKE, Petitioner and Appellant, v. JOB SERVICE NORTH DAKOTA and Shelley D. Townsend, Respondents and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 146

336 N.W.2d 146

JoAnn PERSKE, Petitioner and Appellant, v. JOB SERVICE NORTH DAKOTA and Shelley D. Townsend,

Respondents and Appellees.

Civ. No. 10390.

Supreme Court of North Dakota.

June 30, 1983.

Michael C. O'Neel, Fargo, for petitioner and appellant.

Michael J. Wilma, Asst. Atty. Gen., Job Service N.D., Bismarck, for respondents and appellees.

PAULSON, Justice.

This is an appeal by JoAnn Perske from an order which affirmed a decision of Job Service of North Dakota denying Perske unemployment benefits because she was discharged from her previous employment for reasons that constituted misconduct. We affirm.

Perske was employed as a dental assistant by Dr. Shelley D. Townsend, a Fargo dentist, from September 1, 1980, to May 15, 1981. Although paid by Dr. Townsend, Perske also assisted Dr. Reed E. Sanford in his dental practice. Dr. Sanford had previously hired Perske as an assistant from September 1979 to May 1980. After Dr. Townsend discharged Perske in May 1981, Dr. Townsend stated in a letter to Job Service that Perske was discharged for "general misconduct", including arriving for work from fifteen minutes to one and one-half hours late twenty-nine times; for incorrectly recording time on her time cards four times; and for being absent from work three times without informing Dr. Townsend. Perske contends that it was usual practice for her to arrive late, to leave when not needed, and to only notify another assistant that she would be absent. According to Perske Dr. Townsend did not inform her that she did not approve of Perske's work practices until Dr. Townsend discharged her. Perske also contends that the incorrectly recorded time cards were clerical errors that were later discovered and corrected.

After being discharged Perske filed a claim for unemployment compensation benefits. A Job Service claims deputy found that Perske was disqualified because, according to Dr. Townsend, she had been discharged from her previous employment for misconduct. After a hearing an appeals referee affirmed the disqualification. In response to Perske's request, the executive director of Job Service reviewed the record and affirmed the appeals referee. Perske then appealed to district court. The judge remanded the case to Job Service for another hearing because Perske had not been initially afforded a fair hearing, as required by Sec. 28-32-19(4) of the North Dakota Century Code. After the second hearing Job Service affirmed its initial decision to deny Perske benefits. That Job Service decision states, in part:

"The actions of JoAnn Perske indicate an intentional and substantial disregard of her employer's interests and of the standards of behavior which the employer has the right to expect of the employee. Therefore, it must be concluded that she was discharged for reasons which constitute misconduct."

Perske again appealed to district court. After reviewing the record the judge determined (1) that a preponderance of the evidence supported the finding of fact that Perske was guilty of misconduct and (2) that the conclusion of Job Service that Perske is not entitled to unemployment benefits was supported by its findings of fact. Perske then appealed the district judge's order affirming Job Service's decision to this court.

Section 28-32-19, N.D.C.C., controls the scope of our review of an administrative agency determination. The factual basis of an administrative order is reviewed in a limited manner by considering the following questions: "(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?" Asbridge v. North Dakota State Highway Com'r, 291 N.W.2d 739, 743 (N.D.1980). In an appeal from a decision of an administrative agency, we review the decision of the agency and look to the record compiled by the agency. Application of Nebraska Public Power Dist., 330 N.W.2d 143, 146 (N.D.1983). This court exercises restraint when reviewing agency findings; we do not substitute our judgment for that of the agency. Asbridge, supra 291 N.W.2d at 744.

The North Dakota Legislature has recognized that involuntary unemployment creates hardships for unemployed workers and has created a system of unemployment insurance for workers who become unemployed through no fault of their own. See Secs. 52-01-05 and 52-02-01, N.D.C.C. An individual is disqualified from recovering benefits, however, "after he has been discharged for misconduct in connection with his last employment". Sec. 52-06-02(2), N.D.C.C. In an appeal such as this, the issue is not whether or not the employer had the right to discharge the employee, but rather the issue is whether or not Job Service is justified in denying benefits for the conduct in question.

The term "misconduct" is not defined in North Dakota unemployment compensation law. The most widely accepted definition of "misconduct" is found in Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941). In Boynton, the Wisconsin Supreme Court considered language similar to that found in Sec. 52-06-02(2), N.D.C.C. The Wisconsin Supreme Court noted the public policy of cushioning the effect of unemployment by a series of benefit payments and determined that this policy would be defeated if mere mistakes, errors in judgment, and unintentional carelessness were considered to be within the definition of "misconduct". The Wisconsin court construed the unemployment statute in a manner least favorable to working a forfeiture to the unemployed individual and stated that the term "misconduct" in the unemployment statute

"... is limited to conduct evincing such wilful 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 interests or of the employee's duties and obligations to his 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." Boynton, supra 296 N.W. at 640.

See generally 81 C.J.S. Social Security Sec. 222(b); 76 Am.Jur.2d Unemployment Compensation Sec. 52.

In the instant case, Job Service's main contention, with which Dr. Townsend agrees, is that Perske's history of...