Vidal v. Emp't Sec. Div.

Decision Date21 February 2020
Docket NumberNo. 78797-COA,78797-COA
Parties Michelle Annette VIDAL, Appellant, v. EMPLOYMENT SECURITY DIVISION, State of Nevada; Renee Olson, in Her Capacity as Administrator of the Employment Security Division; and J. Thomas Susich in His Capacity as Chairperson of the Employment Security Division Board of Review, Respondents.
CourtNevada Court of Appeals
Nevada Legal Services/Las Vegas

State of Nevada/DETR

ORDER OF AFFIRMANCE

Michelle Annette Vidal appeals the district court’s order denying her petition for judicial review of unemployment benefits under the provisions of NRS 612.385. Eighth Judicial District Court, Clark County; Tierra Danielle Jones, Judge.

Vidal was employed as a bartender in Las Vegas at Nevada Restaurant Services Inc., d/b/a Dotty’s (hereinafter NRSI) from March 21, 2017 to May 4, 2018.1 Vidal’s duties included cleaning, attending to customers, selling cigarettes and drinks, stocking inventory, cooking, and receiving and taking inventory of shipments.

On May 1, 2018, Vidal received a shipment of cigarettes during her shift. Vidal did not immediately stock the shipment inside a secure counter, but instead, placed the cigarettes behind the counter, unsecured. Vidal then left the cigarettes unprotected for approximately 90 minutes to clean an area at the front of the casino. While Vidal was cleaning, 17 cigarette cartons were stolen from the unprotected location. Documents submitted by NRSI confirm that surveillance video shows Vidal’s location near the front entrance at the time the theft occurred, although Vidal initially stated that she was cleaning a bathroom. Vidal reported the incident, was questioned by senior staff, and was suspended pending an investigation. On May 4, 2018, at the conclusion of an internal investigation, NRSI fired Vidal for failing to safeguard company property.

Vidal filed for unemployment benefits. The Employment Security Division’s adjudicator denied Vidal’s benefits because her conduct was classified as "misconduct" which disqualified Vidal from receiving benefits as stated under NRS 612.385. Vidal appealed the denial of benefits, and was granted a hearing. The appeals referee found Vidal ineligible for unemployment benefits pursuant to NRS 612.385 for misconduct because he determined that Vidal "demonstrated a deliberate violation and disregard of the employer’s reasonable standards of conduct." The appeals referee also determined that this "conduct contained the element of wrongfulness" and that the "disqualifying misconduct connected with the work had been established."

Vidal appealed the referee’s decision to the Employment Security Division Board of Review. The board unanimously declined further review, thus affirming the decision of the appeals referee. Vidal filed her petition for judicial review, which was denied. This appeal followed.

On appeal, Vidal argues that there was no carelessness or negligence on her part demonstrating a substantial disregard of her duties as an employee of NRSI. Vidal further argues that this was an isolated incident in which a good faith error in judgment occurred, thereby excluding her actions from misconduct, and denial of benefits under NRS 612.385. Lastly, Vidal argues that the appeals referee was mistaken in his finding that she was outside at the time of the theft. We disagree.

This court reviews a decision denying unemployment benefits to determine whether the administrative agency acted arbitrarily or capriciously. See McCracken v. Fancy , 98 Nev. 30, 31, 639 P.2d 552, 553 (1982). Generally, this court looks to whether substantial evidence supports the agency’s decision. Clark Cty. Sch. Dist. v. Bundley, 122 Nev. 1440, 1445, 148 P.3d 750, 754, (2006). We review questions of law de novo, but fact-based legal conclusions are entitled to deference. Id. "Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion." United Exposition Serv. Co. v. State Indus. Ins. Sys., 109 Nev. 421, 424, 851 P.2d 423, 424-25 (1993).

Under NRS 612.385, a person discharged "for misconduct connected with the person’s work" is ineligible for unemployment compensation. The Nevada Supreme Court has defined "[m]isconduct" as "unlawful, dishonest or improper behavior." State, Emp’t Sec. Div. v. Murphy, 132 Nev. 202, 207, 371 P.3d 991, 994 (2016). It has further stated:

Disqualifying misconduct occurs when an employee deliberately or unjustifiably violates or disregards her employer’s reasonable policy or standard, or otherwise acts in such a careless or negligent manner as to show a substantial disregard of the employer’s interests or the employee’s duties and obligations to [her] employer. As we have previously suggested, because disqualifying
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