Ray v. Iowa Dept. of Job Service, 85-1297

• Decision Date: 22 October 1986
• Docket Number: No. 85-1297,85-1297
• Citation: 398 N.W.2d 191
• Parties: Dennis D. RAY, Petitioner-Appellant, v. IOWA DEPARTMENT OF JOB SERVICE and North Star Steel Company, Respondents- Appellees.
• Court: Iowa Court of Appeals

Page 191

398 N.W.2d 191

Dennis D. RAY, Petitioner-Appellant, v. IOWA DEPARTMENT OF JOB SERVICE and North Star Steel Company, Respondents- Appellees.

No. 85-1297.

Court of Appeals of Iowa.

Oct. 22, 1986.

Wendy E. Geertz of Mears, Zimmerman & Mears, Iowa City, for petitioner-appellant.

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

Mark Zaiger of Shuttleworth & Ingersoll, Cedar Rapids, for respondent-appellee North Star Steel Co.

Considered by DONIELSON, P.J., and SCHLEGEL and HAYDEN, JJ.

DONIELSON, Presiding Judge.

Petitioner appeals from the district court's affirmance of the Job Service decision which denied his unemployment benefits on the basis of misconduct. Petitioner asserts that there was insufficient evidence in the record to support the Job Service finding that he was discharged for misconduct. We affirm.

The petitioner, Dennis Ray, began work for respondent-employer North Star Steel Company in April 1979. On December 28, 1981, due to his past disciplinary record, Ray signed a "last chance" agreement with his employer providing that Ray was required to maintain a discipline-free record for one year. Ray was to avoid any incident, including absenteeism, which could result in a disciplinary action and lead to immediate termination.

On October 31, 1982, petitioner notified his employer by telephone that he would be absent from work because he was moving. On November 1, 1982, Ray received a warning of absences occurring on June 20, 1982, September 11, 1982, and for the October 31 absence. Ray was suspended for five days and was subsequently dismissed on November 5. The October 31 absence was the one that triggered the final warning.

Ray applied for unemployment benefits on November 8, 1982. North Star Steel protested the payment of benefits. Ray was subsequently denied unemployment insurance by a Job Service claims deputy. On January 10, 1983, an evidentiary hearing was held. At that hearing, the hearing officer determined that Ray's claim was untimely. On January 24, 1984, the Iowa Supreme Court remanded the case to the district court, which in turn remanded to Job Service for notice, hearing, and a new decision.

A new hearing was held on July 13, 1984. At the hearing, Ray testified that during the three months prior to his dismissal he had been suffering from severe anxiety due to an impending divorce from his wife. Ray's physician had prescribed the medication, Lorazepam, for Ray's anxiety. Ray testified that on October 31 he was still taking medication for his anxiety. Earlier that day, Ray had been moving to a new residence but had finished in plenty of time to make it to his 4:00 p.m. shift. Ray then decided to eat lunch with a friend, at which time he consumed a half pitcher of beer. Ray testified that as a result of this combination of medication and alcohol, he experienced dizziness and drowsiness. Ray then introduced records showing that he had made five telephone conversations in an attempt to inform his supervisor of his impending absence. Ray testified that one of the phone calls was made to his shop supervisor, Mike Berry; however, Mr. Berry was not home. Ray next called Larry Turner, a temporary foreman. When Ray explained his medication problem to Turner, Turner told Ray that he had no authority to excuse absences and transferred the call to the security guard. The guard took the message, but stated that he had no authority to excuse absences. Ray testified that he then told the security guard, "Well, just put down I'm moving." Ray testified that because he could not reach the appropriate supervisor, he saw no reason to explain his condition to the security guard. Ray testified that the next day he explained his situation to Mike Berry and that Berry then took him to Ray Brisker, who gave Ray a five-day suspension. Ray then testified that after his five-day suspension he returned to work and explained his medication problem to Brisker.

The employer testified that the security guard contacted by Ray is only a message taker and that the guard had no authority to excuse absences. The employer additionally denied that Ray had ever given an explanation of his absence to Brisker. The employer also introduced evidence showing that during Ray's 43 months of employment he received nineteen disciplinary slips, eleven of which were for absenteeism, three for failing to follow a supervisor's orders, four for poor work performance, and one for damaging company property.

The Job Service hearing officer determined that Ray was discharged for misconduct and was not entitled to benefits. The Job Service Appeal Board affirmed the hearing officer's decision, but split 2-1 in its decision. The dissenting member found that Ray's absence was medically related and that no misconduct had been established. The district court affirmed the conclusion of the appeal board.

In cases arising out of the Iowa Administrative Procedures Act, our scope of review is limited to the correction of errors of law and not de novo. Iowa Code § 17A.20 (1985). In order to uphold the decision of the Job Service Appeal Board, such decision must be supported by substantial evidence in the record before the agency when the record is reviewed as a whole. Fernandez v. Iowa Dep't of Human Services, 375 N.W.2d 701, 705 (Iowa 1985). Evidence is substantial to support an agency's decision if a reasonable person would find it adequate to reach the given conclusion. Meads v. Iowa Dep't of Social Services, 366 N.W.2d 555, 558 (Iowa 1985). Though two inconsistent conclusions may be drawn from the record, such a possibility does not prevent the agency's finding from being supported by substantial evidence. Contract Services, Ltd. v. Iowa Dep't of Job Service, 372 N.W.2d 212, 215-16 (Iowa 1985). In order to make that determination, we apply the standards of Iowa Code section 17A.19(8) to the agency action to determine whether this court's conclusions are the same as the district. Jackson County Public Hospital v. Public Employment Relations Board, 280 N.W.2d 426, 429-30 (Iowa 1979).

Under Iowa Code section 96.5(2)(a) (1985), an individual may be disqualified for unemployment benefits if that individual is discharged for misconduct. The administrative rule defining misconduct reflects legislative intent. Huntoon v. Iowa Dep't 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). That rule, 370 Iowa Administrative Code section 4.32(1)(a), provides:

Misconduct is defined 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 except 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 other negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed misconduct within the meaning of the statute.

Thus, under this definition misconduct is limited to "conduct evincing such willful or wanton disregard of standards of behavior which the employer has the right to expect of employees ... or ... intentional and substantial disregard of the employer's interests...." 370 Iowa Administrative Code section 4.32(8) (1986), also provides that "[w]hile past acts and warnings can be used to determine the magnitude of a current act of misconduct, a discharge for misconduct cannot be based on such act or acts. The termination of employment must be based on a current act." In interpreting section 4.32(1)(a), we may look at the manner in which such incident took place and the surrounding circumstances as a whole in determining whether Ray's actions could be construed as misconduct. See Warrell v. Iowa Dept. of Job Service, 356 N.W.2d 587, 590 (Iowa Ct.App.1984) (where court held that while vulgar language alone was sufficient to find misconduct, it was the entire record which was determinative of the issue of misconduct). The employer, however, has the burden of proof in demonstrating misconduct on the part of Ray. Harlan v. Iowa Dept. of Job Service, 350 N.W.2d 192, 194 (Iowa 1984); Cosper v. Iowa Dept. of Job Service, 321 N.W.2d 6, 11 (Iowa 1982).

We believe, upon examining the record as a whole, that there is substantial evidence in the record to lead a reasonable person to conclude that Ray's absence on October 31, 1982, was misconduct. During Ray's approximately two and one-half years of employment, Ray received nineteen disciplinary slips, eleven of which were attributed to absenteeism. On account of such a poor record, Ray entered into a "last chance agreement," which put Ray on probation for one year, provided that he maintain a discipline-free record. Despite this agreement, the import of which Ray was fully cognizant, Ray proceeded to acquire three more unexcused absences on his record. The employer, however, wishing to go the extra mile, again warned Ray that additional unexcused absences could lead to termination.

On the date in question, Ray, having already completed his moving, decided to go out to lunch and have some beer and eat lunch before work. At this point Ray allegedly became ill because of the effects of the alcohol with the medicine he had been taking. Ray then decided to call his supervisor to...