Wernke v. State, Dept. of Social Services, 20566

• Decision Date: 13 January 1999
• Docket Number: No. 20566,20566
• Citation: 590 N.W.2d 260,1999 SD 32
• Parties: David WERNKE, Appellant, v. STATE of South Dakota, DEPARTMENT OF SOCIAL SERVICES, Employer and Appellee, and South Dakota Department of Labor, Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 260

590 N.W.2d 260

1999 SD 32

David WERNKE, Appellant, v. STATE of South Dakota, DEPARTMENT OF SOCIAL SERVICES, Employer and Appellee, and South Dakota Department of Labor, Appellee.

No. 20566.

Supreme Court of South Dakota.

Considered on Briefs Jan. 13, 1999.

Decided March 17, 1999.

Patricia de Hueck, Pierre, SD, for appellant.

Brent Wilbur of May, Adam, Gerdes & Thompson Pierre, South Dakota, for employer and appellee Department of Social Services.

Drew C. Johnson Special Assistant Attorney General Aberdeen, South Dakota, for appellee Department of Labor.

TAPPE, Circuit Judge.

¶1 David Wernke (Claimant) appeals from a judgment of the trial court, which affirmed the decision of the Department of Labor to deny him unemployment compensation benefits. We reverse.

FACTS AND PROCEDURAL HISTORY

¶2 The findings of fact of the Administrative Law Judge (ALJ) adequately set forth the facts and are listed verbatim below:

1. Claimant worked for Employer as a quality control specialist from January 28, 1988, to September 12, 1997.

2. Employer provides assistance to people to help weatherize their homes. Employer has non-profit corporations do the weatherizing. Claimant's job was to monitor the records of the non-profit corporations.

3. People who are receiving assistance from Employer are called clients.

4. Claimant knew and understood that he was not to socialize with clients. Clients of the Employer tend to be vulnerable people and socializing can create liability problems for Employer.

5. On or about August 5, 1997, Claimant was inspecting a house that had been designated for the weatherization program. The client's name was Petra Hentschell (Petra). Her home was located in Ashton, South Dakota.

6. Claimant normally did not visit houses, rather, he visited the non-profit corporations.

7. Claimant was staying at the Super 8 Motel in Aberdeen that evening.

8. At approximately 7:00 p.m., Claimant was at a bar in Ashton, South Dakota. He saw Petra's son in the bar and asked him if his mother was at home. Her son did not know.

9. Claimant then drove to Petra's house and opened the door to see if anybody was at home. It appeared that nobody was home.

10. Claimant left a note on Petra's door that stated, "Dave Wernke-Housing Inspector-Petra, Super 8 Motel Room 150, 2405 SE 6th, 229-5005, Please call 280-3166 or above-I would like to ask you something."

11. Later that evening, Petra called Claimant and he asked her to go have a drink with him. She declined his offer.

Claimant then said that he would be back in Ashton on August 6, 1997, (the next night) and asked Petra if she wanted to have a drink that night. Again, Petra declined his offer.

12. Petra reported Claimant's behavior to Employer.

13. Employer terminated Claimant for attempting to socialize with a client.

14. Claimant filed a new claim for unemployment insurance benefits on October 9, 1997, with an effective date of September 28, 1997.

15. Claimant timely appealed a determination of the South Dakota Unemployment Insurance Division (SDUID) that concluded he was discharged for work-connected misconduct and the Employer is a reimbursing employer and is subject to charge for benefits when paid to Claimant. (emphasis added.)

¶3 The circuit court, by letter decision, affirmed the ALJ's decision. Claimant raises several issues on appeal, relating to alleged errors regarding hearsay evidence admitted over his objections. Because we reverse on other grounds, those issues need not be addressed.

STANDARD OF REVIEW

¶4 The standard of review from decisions of administrative agencies is governed by SDCL 1-26-37, which provides that the Supreme Court shall "give the same deference to the findings of fact, conclusions of law and final judgment of the circuit court as it does other appeals from the circuit court." When the issue is a question of law, the agency's actions are fully reviewable, however. Rasmussen v. South Dakota Dept. of Labor, 510 N.W.2d 655, 657 (S.D. 1993). Whether an individual has been discharged from employment for misconduct that disqualifies him from receiving unemployment insurance benefits is a question of law, and is, therefore, fully reviewable by this Court. Id.

ANALYSIS AND DECISION

¶5 Claimant is not arguing on appeal that he was wrongfully terminated from employment. He argues that the circuit court erred as a matter of law in finding work-related misconduct and that Employer failed to meet its burden in that respect. This Court has distinguished between grounds for discharge of an employee and grounds for denial of unemployment benefits. Appeal of White, 339 N.W.2d 306 (S.D.1983).

¶6 The reasons given by Employer for terminating Claimant's employment are not clear. Initially, upon learning of the conduct described above in the findings of fact, Claimant's supervisor, Abbie Rathbun, (Rathbun) gave him notice of her intent to terminate his employment. Rathbun stated as a reason for her intention to terminate, that the action to terminate was:

intended for just cause related to your violation of the following administrative rules:

55:01:12:05 (4) The employee has violated any department, division, bureau, or institution regulation, policy, or order or failed to obey any oral or written directions given by a supervisor or other person in authority;

55:01:12:05 (23) The employee has discriminated against another person in the course of employment or has taken wrongful actions against another person which affect the vicarious or imputed responsibility of the state or any other state employee.

¶7 At the hearing before the ALJ, Rathbun testified in response to a question regarding the reason for Claimant's termination, that his discharge was for a violation of the above state administrative rules.

¶8 Rathbun's letter of intent to terminate was more specific about the rationale behind Claimant's discharge. Passages in that letter referred to Employer's policy that " [t]he Department expects all employees of the Department to maintain a professional relationship with clients of the Department at all times" and that "Exploitation of any client of the Department of Social Services is prohibited and shall be grounds for disciplinary action." (emphasis added).

¶9 Finally, with regard to the reason for Claimant's termination, at the hearing before the ALJ, it was learned that it is the policy of Employer that, "Socializing with a client on a personal basis is not recommended and should be avoided." (emphasis added). There was no evidence or finding that this type of a violation constituted grounds for automatic dismissal.

¶10 Exploitation is defined as "[t]aking unjust advantage of another for one's own advantage or benefit." Black's Law Dictionary, Fifth ed., 1979. At most, the evidence showed Claimant may have attempted to exploit Client. There is no evidence or finding, however, that Claimant did, in fact, take "unjust advantage" of Petra to his own advantage or benefit.

¶11 Despite the variously stated reasons for termination of Claimant's employment, the ALJ found only that, "[e]mployer" terminated Claimant for attempting to socialize with a client. It is important to note that the finding of fact was only that Claimant was "attempting" to socialize with a client. It is also important to note that Employer's policy with regard to socializing with a client on a personal basis was only a warning. It was not an express prohibition on socializing with a client.

¶12 Being mindful of the foregoing grounds for termination of employment, we must now decide whether Claimant's conduct constituted work-related misconduct. SDCL 61-6-14.1 defines misconduct which would preclude Claimant's receiving unemployment benefits, as:

(1) Failure to obey orders, rules or instructions, or failure to discharge the duties for which an individual was employed; or

(2) Substantial disregard of the employer's interests or of the employee's duties and obligations to his employer; or

(3) Conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee; or

(4) Carelessness or negligence of such degree or recurrence as to manifest equal culpability or wrongful intent.

¶13 However, mere inefficiency, unsatisfactory conduct, failure to perform as the result of inability or incapacity, a good faith error in judgment or discretion, or conduct mandated by a religious belief which belief cannot be reasonably accommodated by the employer is not misconduct. SDCL 61-6-14.1.

¶14 Assuming then, that Employer did not wrongfully terminate Claimant's employment, the question is whether that termination should result in denial of unemployment benefits.

¶15 Unemployment statutes must be liberally construed in favor of the claimant. Red Bird v. Meierhenry, 314 N.W.2d 95, 96 (S.D.1982). In looking at SDCL 61-6-14.1, we must determine which, if any, of the enumerated factors would preclude Claimant from receiving compensation. Perhaps the most that can be said with regard to any applicable conduct described in that statute, is that there was a "failure to obey orders, rules or instructions," SDCL 61-6-14.1(1), in that Claimant "attempted to socialize with a client."

¶16 As indicated earlier, however, there was no order, rule or instruction prohibiting the socialization with a client. There was only a policy that warned against such socializing with a client, not an express prohibition, order, rule, or instruction. None of the remaining enumerated factors apply to this fact situation.

¶17 In the interpretation and clarifying of SDCL 61-6-14.1, we must consider the rule for determining the meaning of "workrelated misconduct" as set forth by the Washington Supreme Court in Nelson v. Department of Employment Security, 98 Wash.2d 370, 655 P.2d 242 (1982), and adopted by our Court in the case of Matter of Kotrba, 418 N.W.2d 313, 316 (S.D.1...