State Employment Sec. Dept. v. Hilton Hotels Corp.

• Decision Date: 18 December 1986
• Docket Number: No. 16865,16865
• Citation: 102 Nev. 606,729 P.2d 497
• Parties: STATE of Nevada EMPLOYMENT SECURITY DEPARTMENT and Stanley Jones, Executive Director of the Employment Security Department, and Janice K. Frey, Appellants, v. HILTON HOTELS CORPORATION, Respondent.
• Court: Nevada Supreme Court

Page 497

729 P.2d 497

102 Nev. 606

STATE of Nevada EMPLOYMENT SECURITY DEPARTMENT and Stanley Jones, Executive Director of the Employment Security Department, and Janice K. Frey Appellants, v. HILTON HOTELS CORPORATION, Respondent.

No. 16865.

Supreme Court of Nevada.

Dec. 18, 1986.

Crowell, Crowell, Crowell & Susich and Daniel L. O'Brien, Carson City, for appellants.

Lionel, Sawyer & Collins and Jeffrey D. Menicucci, Reno, for respondent.

OPINION

PER CURIAM:

This action was brought originally after Frey had applied for unemployment compensation and was denied benefits. Frey appealed that determination and a hearing was held before an appeals referee. The referee denied Frey's claim and Frey appealed to the Employment Security Division Board of Review. The Board of Review, ruling on the record generated by the appeals referee, reversed the referee and awarded benefits. The Hilton then petitioned for review in the district court. The district court reversed the Board of Review and remanded for the reinstatement of the decision of the appeals referee, thus prompting this appeal by the Department of Employment Security.

Janice Frey was terminated by the Hilton on June 20, 1984. The primary reason for her termination was that she failed to call in and report that she would not be able to work her shift on June 19, 1984. The record, however, reflects substantial confusion as to whether she was originally scheduled to work on the day in question. Interspersed among the facts concerning the uncertainty of Frey's work schedule are additional sources of confusion involving Frey's obligation to appear for jury duty and the extent of her responsibility to inform her employer of her jury duty commitments. Suffice it to say that however one might ultimately characterize Frey's obligation to communicate with her employer on the June 19th date of her absence, the record does provide substantial evidentiary support for the Board of Review's decision. The district court was not free to substitute its judgment for that of the Board of Review, and reversal is therefore necessary.

When reviewing an administrative board's actions, this court, like the district court, is limited to the record below and to whether the board acted arbitrarily or capriciously. McCracken v. Fancy, 98 Nev. 30, 31, 639 P.2d 552 (1982). The question thus becomes whether the board's decision was based on substantial evidence; if based on substantial evidence neither this court, nor the district court, may substitute its judgment for the administrator's determination. Leeson v. Basic Refractories, 101 Nev. 384, 705 P.2d 137, 138 (1985).

Substantial evidence has been defined as that which "a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). ¹ In determining that the Board of Review properly found for Frey, we analyzed its findings in light of the record. The Board's findings, in pertinent part, are as follows:

In the case under consideration, if the employer's version of events were accepted, it would appear that claimant's ostensible absence without notice might be justified on the grounds of excusable error, in the confusion over the changed schedule and the jury duty. The appeal to the board, however, is to the effect that the referee erred in relying on the challenged schedule, in the absence of the scheduler, who might have posted a new schedule for entirely justifiable reasons or because he did not like claimant. Since the scheduler could not be cross examined, claimant's testimony should have been given greater weight. By this line of reasoning, which the board accepts, the absence on Tuesday was because of a scheduled day off, and no authorization or notice was required for that day.

The Board of Review acknowledged in Frey's action that employees may commit misconduct if they are absent without notice or justification. See Kraft v. Nev. Emp. Sec. Dept., 102 Nev. 191, 717 P.2d 583, 585 (1986).

The Board also provided a dual rationale for its decision. The Board stated that if the Hilton's position was accurate, there then appeared to be considerable confusion as to which day Frey had off, and therefore Frey's lack of communication constituted excusable behavior. The decision of the Board of Review implies ...