Sheehy v. Albin

• Decision Date: 31 January 2023
• Docket Number: A-22-450
• Parties: Angela D. Sheehy, appellant, v. John Albin, Commissioner of the Nebraska Department of Labor, Nebraska Department of Labor, and Print Express, Inc., appellees.
• Court: Nebraska Court of Appeals

Angela D. Sheehy, appellant,
v.
John Albin, Commissioner of the Nebraska Department of Labor, Nebraska Department of Labor, and Print Express, Inc., appellees.

No. A-22-450

Court of Appeals of Nebraska

January 31, 2023

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Lancaster County: Darla S. Ideus, Judge. Affirmed.

Mark T. Bestul, of Legal Aid of Nebraska, for appellant.

Katie S. Thurber and Elizabeth Cano, of the Nebraska Department of Labor, for appellees John Albin and the Nebraska Department of Labor.

John L. Selzer, of Simmons Olsen Law Firm, P.C., L.L.O., for appellee Print Express, Inc.

Moore, Bishop, and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

WELCH, JUDGE.

INTRODUCTION

Angela D. Sheehy appeals from the Lancaster County District Court's order affirming the Nebraska Department of Labor's determination that Sheehy was disqualified from receiving unemployment benefits because she was discharged from her employment for misconduct. For the reasons set forth herein, we affirm.

STATEMENT OF FACTS

Sheehy was employed as an office assistant and graphic designer for Print Express, Inc. (Print Express) from March 2020 until she was terminated in October 2020. The month following her termination, Sheehy filed an application for unemployment benefits. In late November 2020,

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the Nebraska Department of Labor issued a qualifying determination that Sheehy was entitled to receive employment benefits because the evidence did not support a finding that she was terminated from her employment for misconduct. Print Express appealed the adjudicator's determination to the Nebraska Appeal Tribunal (Tribunal).

The hearing before the Tribunal was originally scheduled in January 2021 but was continued to March due to issues with the recording device. Although the hearing was held on the scheduled date in March, Sheehy failed to appear. During the hearing, the Tribunal heard evidence from Connie Booth, the owner of Print Express. Booth testified that Sheehy was terminated due to multiple instances of arriving late for work, poor performance, poor attitude, and customer complaints regarding Sheehy's rudeness. Booth testified that Sheehy violated the employer's policies and expectations for timeliness, customer relations, and job performance.

In May 2021, the Tribunal reversed the qualifying determination finding that Print Express had met its burden to show that Sheehy was terminated for misconduct and was disqualified from receiving unemployment benefits. Shortly after this determination, Sheehy filed a request to reconsider the May 2021 decision indicating that "she did not find out about the hearing until after the hearing occurred." The Tribunal granted Sheehy's request to reconsider after finding that there was good cause to reopen the matter. A notice of hearing was then sent to the parties indicating the date and time of the new hearing, instructions for attending the telephone conference, and a statement that the issue noticed for the hearing was whether Sheehy was terminated from her employment for misconduct.

The second hearing was held telephonically in July 2021. The Tribunal took official notice of the record and the decision from the previous hearing and received additional evidence from both parties. Testimony was again received from Booth which resembled her testimony from the prior hearing. Additional testimony was received from Stephanie Wise, the general manager of Print Express, and Sheehy. Booth and Wise testified that Sheehy arrived late to work on multiple occasions, failed to notify Print Express when she was going to be late, received three customer complaints for rude behavior, took personal calls during work in violation of Print Express's policy against cellular phone usage, and repeatedly failed to perform her job duties as expected. For example, Wise testified that on one occasion, Sheehy showed up to work 2 hours late. After Wise was unable to reach Sheehy despite multiple attempts, Wise contacted Sheehy's sister in an effort to locate her. Wise testified that in September 2020 she received customer complaints regarding Sheehy's rude behavior. The following month, Booth discharged Sheehy. Although Sheehy did not deny that she had taken calls during work or that she had sometimes arrived to work late, she testified that Booth never discussed the incidents with her. Additionally, Sheehy offered copies of her cell phone records into evidence to show that Wise did not attempt to contact her on the day she was 2 hours late for work.

In August 2021, the Tribunal issued its decision finding that Sheehy had committed misconduct and determined that Sheehy was disqualified from receiving unemployment benefits. In its decision, the Tribunal stated in relevant part:

The Tribunal originally found that [Sheehy] was discharged under disqualifying circumstances because [Sheehy] was often late for work and because of customer complaints concerning [Sheehy's] rude behavior. The Tribunal reversed the Notice of

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Determination in this matter and held that [Sheehy] was discharged for misconduct and should be assessed a benefit disqualification. [Sheehy] submitted phone records at the re-hearing which were intended to prove a record of communication between her and her employer which disputed whether she had been contacted by her employer on certain dates. [Sheehy] did not produce sufficient evidence to overturn the Tribunal's order issued on 05/03/2021

Here, the evidence at both hearings showed that [Sheehy] had been late for work and the customer complaints had been made against her to the employer. The Tribunal therefore affirms its decision on 05/03/2021 which reversed the Notice of Determination

Sheehy appealed to the Lancaster County District Court. Following a hearing, the district court affirmed the Tribunal's decision finding that Sheehy was discharged for misconduct and finding no procedural error in the proceedings conducted by the Tribunal. More specifically the district court found that "Sheehy's right to due process was not violated," that "[t]he Appeal Tribunal committed no error in requiring Sheehy to present evidence on reconsideration to overturn" the May 2021 decision, and that "Sheehy was discharged for misconduct." Sheehy now appeals the order of the district court which affirmed the Tribunal's decision.

ASSIGNMENTS OF ERROR

Sheehy assigns, renumbered and restated, that the district court erred in (1) affirming the Tribunal's decision which improperly shifted the burden of proof in the July 2021 rehearing to Sheehy, (2) failing to find that Sheehy's due process rights were violated because she did not receive notice that she bore the burden of proof in connection with the July 2021 rehearing, and (3) affirming the Tribunal's decision which found that Sheehy was terminated from her employment for misconduct which disqualified her from receiving unemployment benefits.

STANDARD OF REVIEW

In an appeal from the Tribunal to the district court regarding unemployment benefits, the district court conducts the review de novo on the record, but on review by the Nebraska Court of Appeals or the Nebraska Supreme Court, the judgment of the district court may be reversed, vacated, or modified for errors appearing on the record. Badawi v. Albin, 311 Neb. 603, 973 N.W.2d 714 (2022). When reviewing a judgment for...