Sage Club, Inc. v. Employment Sec. Commission of Wyoming, 5126

• Decision Date: 31 October 1979
• Docket Number: No. 5126,5126
• Citation: 601 P.2d 1306
• Parties: SAGE CLUB, INC., Appellant (Petitioner), v. EMPLOYMENT SECURITY COMMISSION OF WYOMING and Dorothy Alm Dartez, Appellees(Respondents).
• Court: Wyoming Supreme Court

Page 1306

601 P.2d 1306

SAGE CLUB, INC., Appellant (Petitioner), v. EMPLOYMENT SECURITY COMMISSION OF WYOMING and Dorothy Alm Dartez, Appellees(Respondents).

No. 5126.

Supreme Court of Wyoming.

Oct. 31, 1979.

Claude W. Martin, Casper, for appellant.

John D. Troughton, Atty. Gen., Bernard L. Broderick (argued), Asst. Atty. Gen. and Renee Magee, Legal Intern, on brief for appellees.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

RAPER, Chief Justice.

The petitioner-appellant, Sage Club, Inc., seeks review of an order of the district court which affirmed a determination of the Employment Security Commission (E.S.C.) that the respondent-appellee, Dorothy Alm Dartez, left her employment with the appellant for "good cause" and was therefore entitled to unemployment benefits. ¹ Appellant asserts that appellee left her work without "good cause" ² and therefore is not entitled to the unemployment benefits. Appellant further asserts that the district court failed to employ the proper standards in its review of its petition.

We will reverse the order of the district court with directions to vacate its order and enter one reversing the determination of the Employment Security Commission.

On April 4, 1977, John "Butch" Lewis became a part-owner and operator of the appellant, Sage Club, Inc., a bar. When Lewis took over the management, the appellee had been working as the day bartender there for about a year. Lewis continued her in that position; however, he did alter somewhat the tasks she was to perform. In addition to her customary duties, Lewis directed that appellee slice limes to use in mixed drinks for the night shift and to order certain supplies (candy, gum, chips, paper napkins, coasters, janitorial supplies, etc.) when a salesperson called once a week. The slicing of limes took several minutes a day and the ordering of supplies took several minutes a week. Both of these additional tasks were performed during the usual eight hours of the daytime shift. In addition, Lewis instituted a new system of keeping "a bank" which was essentially only a means of better keeping track of money receipts. Appellee complained about these new responsibilities but accepted them on the understanding that they would be temporary. Appellee did ask to be placed on a night shift so as to avoid the new responsibilities she was encountering on the day shift. This could not be worked out. Appellee was given two raises first, from $40.00 to $42.60, and then to $45.00 per shift. Appellee claimed these were only normal raises and adjustments in union scale wages and did not take into account the "extra" work she had to do during the day shift. Lewis would not relieve her of these additional duties nor would he raise her pay in recognition of these additional duties beyond the raises she had already received. The wage paid to appellee was equal to or greater than any other employee who performed similar tasks. Eventually, appellee gave a two-week notice that she was quitting. Lewis immediately hired a new bartender to take appellee's place and told appellee that her services would no longer be required. Appellee applied for unemployment compensation. An initial deputy's recommendation awarded appellee unemployment benefits. The appellant protested and a hearing was held which brought out the facts described above.

On November 15, 1977, the appeals examiner of the E.S.C. found that the appellee " * * * did not voluntarily quit work without good cause and she is, therefore, not subject to disqualification," and the award of benefits was upheld. Appellant then appealed to the E.S.C. and, on December 22, 1977, it affirmed the determination of the appeals examiner. On January 20, 1978, appellant filed a petition for review in the district court. The appellant sought review in accordance with the Wyoming Administrative Procedure Act (W.A.P.A.), § 9-4-101, et seq., W.S.1977, and Rule 72.1, Wyoming Rules of Civil Procedure. In this appeal, he also asserts that the review should be so governed. The E.S.C. also relied upon those statutes and rules but also directed the court's attention to § 27-3-107(d)(vii), W.S.1977. Both parties filed briefs in the district court. On February 9, 1979, the district court issued a decision letter which in pertinent part read:

"Had I been the person charged with making the initial determination here, I might have reached a conclusion opposite that arrived at by the agency and its officers. The Court is, however, in a different posture and if it is to do anything other than affirm the agency action, must make a determination with burden of proof on the petitioner, that the agency acted unlawfully in some respect outlined in the several subparagraphs of WS 9-4-114(c). This the Court cannot do. Case law concerning what constitutes good cause is in conflict, with at least some cases saying that circumstances no more substantial than what appears here support similar agency determination. I cannot say that there was not substantial evidence supporting the determination as the agency made it, and it is under this subsection that the case comes closest to reversibility."

In accordance with this decision letter, an order affirming the determination of the E.S.C. was entered February 27, 1979.

The Unemployment Compensation statute sets out an elaborate scheme providing for judicial review. We agree with the appellant that the proceedings for judicial review of final determinations made by the E.S.C. are governed by the W.A.P.A., supra, and Rule 72.1, W.R.C.P. ³ The W.A.P.A., which governs procedures in the administrative setting, defines agency in § 9-4-101(a)(i), supra:

"(i) 'Agency' means any authority, bureau, board, Commission, department, division, officer or employee of the state, a county, city or town or other political subdivision of the state, except the governing body of a city or town when acting in a legislative capacity, or when hearing appeals from hearings held in accordance with the Wyoming Administrative Procedure Act * * *, the state legislature and the judiciary; " (Emphasis added.)

Clearly the E.S.C. is encompassed within this term. Its decisions are subject to the same standards of review as apply to all other state agencies.

The readily apparent purpose of the W.A.P.A. was to provide uniform procedures to be followed in the adoption of rules and in conducting contested hearings. In addition, the W.A.P.A. sets out the means by which a final agency determination may be appealed to the courts for review. While the statutes which govern the activities of the E.S.C. are extraordinarily detailed in setting out the rules which govern that agency's operations and also set out in detail the procedures for conducting hearings in contested cases, as well as providing a specific procedure for judicial review of final agency determinations, the E.S.C. is not immune from the terms of the W.A.P.A.

Section 9-4-114, W.S.1977, and Rule 72.1, W.R.C.P., govern the mode of judicial review of administrative determinations. Section 17, ch. 108, S.L.Wyo.1965, reads:

"All acts or parts of acts which are inconsistent with the provisions of this Act are hereby repealed, but this repeal does not affect pending proceedings. Provided, however, to the extent not inconsistent herewith existing procedures provided for by statute shall be deemed preserved and the procedures provided for by this Act shall be in addition and supplementary thereto."

And § 18, ch. 108, S.L.Wyo.1965, reads:

"This Act takes effect January 1, 1966, and (except as to proceedings then pending) applies to all agencies and agency proceedings not expressly exempted."

We hold that the E.S.C. is not exempted from the terms of the W.A.P.A., and to the extent the provisions of § 27-3-107, supra, are inconsistent with the W.A.P.A., they are superseded.

The provision of § 27-3-107(d)(vii)(a)(II), W.S.1977, concerning judicial review states:

"(II) In any proceeding under this subsection, the findings of the commission as to the facts, if supported by substantial evidence and in the absence of fraud, shall be conclusive and the jurisdiction of said court shall be confined to question of law. * * * "

The foregoing appears to have been last included in an amendment and reenactment of the Wyoming Employment Security Law by § 8, ch. 121, S.L.Wyo.1963, so it preceded the W.A.P.A. The statement is not completely in harmony with the intent of the legislature to provide a uniform standard of judicial review for administrative determinations. Rule 12.03, WRAP. The proper standard of review to be followed by both the district court and the supreme court is that found in § 9-4-114, W.S.1977:

"(a) Subject to the requirement that administrative remedies be exhausted and in the absence of any statutory or common-law provision precluding or limiting judicial review, any person aggrieved or adversely affected in fact by a final decision of an agency in a contested case, or by other agency action or inaction, or any person affected in fact by a rule adopted by an agency, is entitled to judicial review in the district court for the county in which such administrative action or inaction was taken, or in which any real property affected by such administrative action or inaction is located, or in the event no real property is involved, in the district court for the county in which the party aggrieved or adversely affected by the administrative action or inaction resides or has its principal place of business. The procedure to be followed in such proceeding before the district court shall be in accordance with rules heretofore or hereinafter adopted by the Wyoming supreme court.

"(b) The supreme court's...