Rasmussen v. South Dakota Department of Labor

RASMUSSEN, Lloyd Claimant Appellant,

and OF DEPARTMENT DAKOTA

SOUTH Appellee,

LABOR, and Defendant

and Leasing, Employer

H I & Grain Appellee.

No. 18304. Dakota.

Supreme Court of South Sept. on Briefs

Considered 29, 1993. Dec.

Decided Erickson, Helsper & N. Rasmussen

Eric ap- Rasmussen, Brookings, claimant and pellant. Gosch, Cremer, Bantz, Wager of

Ronald A. Aberdeen, Oliver, Peterson & H I. appellee & Gen., Johnson, Atty. Sp. Asst. Drew C. Aberdeen, appellee State. for defendant SABERS, Justice. (Rasmussen) appeals the

Lloyd Rasmussen Dako- of the South court’s affirmance circuit claim of Labor’s denial ta claim sen’s for benefits on the basis that he discharged employment reverse. from his work-connected misconduct. FACTS appealed the final decision of employed Rasmussen was as a truck driver Department of Labor to circuit court (H I) Leasing H I& Grain and & for a September 2, 1993, 1992. March On years. little over four On or about Decem- the circuit court judgment entered its 12,1991, ber Rasmussen was convicted of the affirming department’s order denial of offense of while under the influence adopting department’s benefits and find- (DUI). According employ- of alcohol to the ings of fact and conclusions of law. Rasmus- hearing testimony, er’s this was Rasmussen’s appeals. sen year second in a DUI conviction two or three ISSUE 1 conviction, period. Because of the Rasmus- suspended sen’s driver’s license was for one WAS RASMUSSEN DISCHARGED FROM year. However, granted a HIS EMPLOYMENT FOR MISCONDUCT permit work so that he could continue work- DISQUALIFIES THAT HIM RE- FROM ing H I and & did allow Rasmussen to con- CEIVING UNEMPLOYMENT INSUR- permit. trucks with tinue his work ANCE BENEFITS? regulations, As a result of new federal all provides insurance law possess commercial truck drivers must now disqualification for a from the of un- (CDL).1 commercial driver’s license Those employment insurance benefits for individu- 1, 1992, regulations took effect dur- als employment from their ing period suspension of the of Rasmus- misconduct connected with their work. The sen’s driver’s license. Rasmussen learned pertinent statute is 61-6-14 which SDCL that he could not obtain a CDL because of provides part: suspension and that would not he be able An unemployed individual who was dis- qualify for a until CDL he obtained his charged suspended or from his most re- expiration period driver’s license after of the cent ... misconduct con- suspension. Because Rasmussen could nected with his work shall be denied bene- not obtain a H I could & not allow him reemployed fits until he has been at least working to continue a truck as driver. six calendar weeks insured Therefore, day employ- Rasmussen’s last during year his current benefit and earned ment truck as a driver was on March wages of weekly not less than his benefit weeks, (em- amount in each of six those H I & offered Rasmussen continued em- phasis ployment operating grinder. Therefore, statutorily “Misconduct” is defined at SDCL after Rasmussen finished his work as a truck 61-6-14.1: off, days driver and took a few he returned to As used in chapter, misconduct is: work H grinder operator. for & I as a How- (1) ever, orders, obey Failure to rules or expe- because difficulties Rasmussen instructions, or failure to operating grinder, rienced with duties only for which an individual days worked for a few more was em- before ployed; finally or leaving with H & I. (2) disregard Substantial of the em- unemploy- Rasmussen filed his claim for ployer’s employee’s interests or of the 29,1992, May

ment insurance benefits on obligations duties and employer; inter-depart- his claim was denied. After or appeal evidentiary hearing mental as (3) Labor, well appeal Secretary as an to the evincing Conduct such willful or of Labor denied disregard Rasmus- wanton of an inter- 1. There is no between the sion, con- it is dispute parties accu- presumed parties cerning the commercial driver's license require- those rately represented requirements. ments and, therefore, this deci- receiving unemploy- individual from found in deliberate violations ests as is behavior disregard or of standards of ment insurance benefits. which the has order establish misconduct connect- [1]n expect employee; employee’s required by ed with an work of such negligence Carelessness must show [statute] degree to manifest or recurrence as a preponderance of the evidence that rea- equal culpability wrongful or intent. person employee’s sonable would find the However, inefficiency, unsatisfactory mere (1) had with the em- conduct: some nexus conduct, perform result of failure to as the (2) work; in some harm ployee’s resulted in incapacity, a faith error (3) interests; employer’s and was in to the discretion,

judgment man- or conduct (a) which violative fact conduct of religious a which belief dated belief of contracted for some code behavior be- reasonably cannot accommodated (b) and employer employee, tween and is not the misconduct. knowledge that with intent or the done Department employer’s that interest suffer. Rasmussen contends the would of Labor circuit court as a matter and erred Kotrba, (quoting Nelson v. 418 N.W.2d at 316 holding discharge for off- of law in that his Security, Employment 98 of DUI) (i.e., duty his a conduct (1982)). 655 245 P.2d Wash.2d disquali- for work-connected misconduct that case, Applying this in instant test the receiving unemployment fies him insur- employee indisputably argues em- ance benefits. He that for his ability perform job depended to claim, whose his it ployer prevailed have a such having a valid license and obtain his driver’s his show that was incumbent for result, any As a conduct of specific a CDL. he committed his DUI with the driver’s jeopardized that his li knowledge employer’s that interests Rasmussen’s ability to would it was and obtain a CDL would suffer. Rasmussen asserts that cense showing by affecting ability his his impossible for H & I to make such a nexus with work because, August job. voluntary in perform of his Rasmussen’s case offense, impos- driving putting at he committed his DUI it was in drunk and risk conduct employer’s ability sible for him to know that his to obtain a his driver’s license and obviously employer’s interests would suffer because the DUI CDL harmed his inter eventually disqualify per him from receiv- retaining employees capable in est ing a CDL. they hired to do. Be forming the work are hired specifically as a cause Rasmussen was appeals, insurance driver, that, apparent it is even truck law, question is a “[w]hen the issue understanding, any express absence agency and decisions of administrative expec legitimate employer was entitled to a fully are When circuit court reviewable. steps take all Rasmussen would tation that fact, question we ascertain issue is necessary to maintenance and reasonable agency whether administrative was clear privileges protection driving Kotrba, ly Matter 418 erroneous.” truck ability his work as a driver. (S.D.1988). 313, 314-15 Whether an N.W.2d ' individual has been from his em Rasmussen’s It follows from above that ployment disqualifies misconduct him voluntary jeop- conduct drunk ben receiving insurance knowing ardizing privileges therefore, is, question efits is of law and obligation disregard of and substantial See, Kotrba, fully by this Court. reviewable Or, put in terms owed also, supra. City Market v. Circle See test, it was conduct that violated Kotrba (Minn.1992). Pines, N.W.2d 382 contracted for between the code of behavior Kotrba, and was done with employer and Rasmussen supra, forth the Court set knowledge interests determining off-duty con- test whether true in particularly suffer. This resulting duct in loss of consti- would prior had disqualify- the fact that Rasmussen tutes misconduct view of work-connected DUI conviction and must necessarily have understood thus must have understood the driving privileges risk taking. risk which he was These circum Moreover, undertaking by driving drunk. satisfy statutory stances requirement requirements the CDL had been well known of misconduct and the definition of miscon trucking industry years. for about two duct under Tilseth. upon analysis, despite Based the above (footnote Markel, at 385 N.W.2d off-duty fact Rasmussen’s DUI was conclusion, of its the Minnesota was, nevertheless, misconduct connected court Unemployment cited Look v. Maine contemplated by with his work as the unem- Comm’n, (Me.1985) Ins. 502 A.2d 1033 ployment insurance law. His Brown, 376, 171 Grimble v. 247 La. So.2d 653 would, therefore, misconduct reflecting proposition as also from the insur- professional “[a] driver who is dismissed af ance benefits. Such was the similar conclu- ter revocation of his or her driver’s license Supreme sion of the Minnesota in Court due to while under the influence of Markel, supra. unemployment The insur- alcohol, off-duty, while is dismissed for mis employed by ance claimant in Markel was Market, conduct.” 479 N.W.2d at 385. job municipality. required driving His duties Dept. Rasmussen cites Przekaza v. Em city’s vehicles. The claimant was con- Sec., ployment 136 Vt. 392 421 A.2d victed of a off-duty DUI committed in his support position for his that his off- ultimately hours and was dismissed from his duty disqualifying DUI should not constitute determining whether purposes misconduct receipt of his claimant’s dismissal was for work-connected disqualify unemployment misconduct that should him from insurance benefits. In Prze- kaza, claimant, Rasmussen, unemployment insurance bene- like was em fits, Supreme ployed Minnesota Court off-duty conclud- as a driver and received an ed: ultimately DUI that resulted in the revoca ... tion of his hold that driver’s license. Unlike conduct which results in Rasmus sen, however, necessary

the loss of a the claimant in license for the Przekaza performance job signed resignation of normal duties is mis a letter of employ at his meaning Thus, within the [Tilseth v. er’s disquali behest. the claimant was Co., Midwest Lumber 295 Minn. 204 fied from receiving unemployment insurance (1973)[2]. N.W.2d 644 employee As an benefits voluntarily because he left his em ability job whose depended ployment review, without cause. In its having license, on his a valid driver’s Supreme the Vermont Court held: drinking Markel’s driving— behavior — any record is devoid of evidence that simply does not come within the Tilseth quit job. [claimant] intended to On inadvertence, exceptions negligence contrary, the facts establish that the judgment. errors in While some uninten [claimant] when the revo- tional circumstances which lead to loss of a cation of his impossible license made it necessary occupational might license be him perform as a driver. The differently, treated Markel’s conduct facts as found below do not drunk, putting thus at risk his result compel reached the Board but ability to drive his vehicles due different result as a matter of law. The license, to loss of his driver’s is misconduct decision of the Board based on an errone- Tilseth, under because it showed inten must, therefore, ous conclusion of law disregard tional and substantial reversed. obligations duties and Przekaza, particularly (citations This is true where Markel had 392 A.2d at 422-23 omit- ted). previously ability lost his passage to drive because This makes clear that law, alcohol related violations of the specifically and Vermont court never considered Yaroch, (S.D.1983) Tilseth defined "misconduct” for 333 N.W.2d 448 and now nearly insurance law in terms codified at SDCL 61-6-14.1. identical to those utilized this court in Matter

659 Pierce, i.e., case, made.” 494 whether mistake was Selle presented the issue (S.D.1993). Here, we off-duty 636 find N.W.2d from a mistake made. that such for work- DUI can constitute disqualify that should connected misconduct eligibility reviewing an individual’s employee receiving insurance benefits and reason, For that Przeka- considering the reasons for the claimant’s authority unpersuasive za is in this instance. employment, from his this Court foregoing analysis, hold upon the Based looked to the causal connection between has discharged from his employ act and loss of the claimant’s if off-duty employment for his and conse- DUI Stockgrowers Hollo Ass’n v. ment. S.D. dis- quent inability to obtain (S.D.1989), way, 438 N.W.2d claimant charge was for work-connected misconduct resigned from his receiving should resignation on or ac but the was not acted unemployment insurance benefits. We find later contin cepted and the no error law the of Labor an “at will” The claimant ued on basis. reaching or circuit court in this same conclu- working following Sep until the continued sion. that he advised had tember However, replaced. been did ISSUE stay following the the claimant on until ask LA- WHETHER THE DEPARTMENT OF replacement. train his The claim month to IN BOR ERRONEOUS WAS CLEARLY employment left ant refused and the REA- ITS FINDING CONCERNING THE September. claimant’s unem end of The WAS SON RASMUSSEN DISCHARGED ployment granted insurance claim FROM HIS EMPLOYMENT? discharged he was under nondis- basis that appeal qualifying In a later circumstances. VII, finding of hear In her fact Court, contended this that ings Labor officer for the discharged was not but volun the claimant that, found could not “[w]hen [Rasmussen] employment. tarily quit his Employer not allow obtain a could contention, strongly that relied to continue work as a truck [Rasmussen] resignation. on the claimant’s issue, driver.” As his second Rasmussen rejected argument observ This Court that essentially challenges accuracy of the ing: finding that he was for his DUI hearings and the cir- inability a In that re examiner [B]oth to obtain CDL. Septem-

gard, points cuit court focused the events Rasmussen out after 23,1987, truck, actually precipitating [the longer could drive a H & I offered ber no hearings separation. Both the a operating claimant’s] him continued found inability that it and the circuit court that grinder. He asserts examiner resign rather operate grinder claimant’s] choice to [the rather than his inabili until his ty ultimately than to continue obtain a CDL led date of 15 constituted separation from termination October voluntary quit discharge rather discharge circum than submits that a under these insurance law. discharge under the not a for work-connected stances is quitting central is whether disqualifies him receiv Thus the issue misconduct that discharge employment after but ing unemployment notice prior to the effective date of the agree. voluntary quit discharge or a under ais appeals where insurance law. insurance fact, question is a this Court issue (empha- 562-63 Stockgrowers, N.W.2d at must whether the administrative ascertain added) (footnote omitted). sis Kotrba, agency clearly su- erroneous. ‘clearly makes clear that pra. finding The record case “A erroneous’ “actually evidence, precipitating” Rasmus- reviewing all of the we are the event after was not and firm sen’s left with a definite conviction DUI, to obtain a CDL or his It follows from the above that Rasmussen’s Rather, inability to drive a truck. after Ras- nondisqualifying was under cir- truck, longer could no mussen drive cumstances for employment operating offered continued a unemployment insurance. grinder. employer’s testimony in that Reversed.

regard was as follows: if [Rasmussen] felt could run a MILLER, C.J., AMUNDSON, J,

grinder down there that we have here at concur. Hetlin, it would be chance for him to HENDERSON, JJ„ WUEST and dissent. having employment continue having some work come and we tried for about WUEST, (dissenting). Justice grinder just week there on the it agree do not majority opinion. with the didn’t seem to work. The minute that we Rasmussen lost his because he did not go had to home or leave him down there have a commercial driver’s license. It is that himself, ah, machinery plug simple. I would affirm in respects. all up. get I’d no more and home and sit supper down for and I’d have to run back HENDERSON, (dissenting). Justice just in and it looked like to me that it Yaroch, Under Matter 333 N.W.2d 448 going wasn’t to work at all and the last (S.D.1983) and City Market v. Circle plugged time up very seriously when it Pines, (Minn.1992), 479 N.W.2d 382 the deci- having we had a chance of a serious fire sion of the judge, administrative law plus burning $10,000 out a motor and I affirmance Secretary thereof just my this, up made mind that Department of Labor and the circuit court going wasn’t to work. I told him when he Market, should be affirmed. 479 N.W.2d longer no could drive the truck that we 384, a definition it, try misconduct was fine, would it worked it didn’t if if adopted from Tilseth v. Midwest why just Lumber he’d have to something do else. Co., (Minn.1973). 204 N.W.2d It only That’s is thing that I my have at apparent that the place definition of misconduct here that he could work at without a added). identical to the misconduct definition estab- (emphasis CDL. by Supreme lished Court of this state in testimony This establishes that it was Ras- Yaroch, 333 N.W.2d at 449. This definition inability mussen’s grinder to run the rather was later codified at SDCL 61-6-14.1. inability than his to drive a truck that ulti- Here, Rasmussen’s second conviction for mately led to the loss of his DUI serves as a nexus to him from Even H & I’s brief concedes “[h]ad unemployment insurance benefits. Rasmus- been operate hay [Rasmussen] able to sen was hired to drive appel- trucks for grinder probably would have continued lee, H & I Leasing. Grain and Rasmussen’s Hwith & I Grain.” Since there precluded second DUI him fulfilling his allegation is no argument that there was Granted, duties. off-duty misconduct, it was any misconduct involved in op- Rasmussen’s prevented but nevertheless it him from driv- grinder eration of the and his difficulties with ing a truck for Losing his grinder inability, were attributed to his driver’s license was not an unforeseen conse- we hold that Rasmussen’s falls quence of a second drunken convic- following within category defined tion. SDCL 61-6-14.1: inefficiency, unsatisfactory [M]ere my opinion, H & I Grain should not be to inability as the result penalized attempting options other failure incapacity, good faith judg- error in Rasmussen. This Court adopt should not discretion, ment or or conduct policy mandated of law which discourage employ- by a religious belief which belief cannot be attempting ers from in cooperative manner reasonably accommodated to employees work with to secure a different misconduct, is not (emphasis type within particular punishing is akin to kindness. It business. Dakota, go unpun- should Plaintiff like “no deed of South

It is STATE adopt reasoning Appellee, ished.” Were Rasmussen, and others majority opinion, situated, similarly to be would have STEELE, Phillip Don Defendant A, job job if A could not then rehabilitated Appellant. claimant, claimant is accomplished by a B; logic, extension entitled to No. 18077. could, employer would be claimant Supreme Court of South Dakota. through alphabet. required, go peril placed himself in Rasmussen Sept. 1993. Considered Briefs by his misconduct under SDCL Decided Jan. precipitating force for 61-6-14.1. DUI, it disemployment his second grinder. operate Testi-

not Steffensen, manager for H &

mony of Duane Grain, transcript: page 6 of the discloses at anything if

Q wondering I’m there’s concerning

you’d me like tell about employment sir? I, Ah, only if thing

A felt that grinder run

Lloyd [sic] could could Het- there that we have here at

down

lin, a chance it would be having employment and hav-

continue we tried work come in and some grinder a week there on about just work.... seem to didn’t page transcript,

At

testified: you

Q Okay. anything Is else that there not

want to tell me about sir I’ve

yet you asked about? of, I I think no. tried to

A Not that can hay over there

work for Duane I

plant experi- and was not over there it, know, just' you

enced that’s about all

didn’t come out so say which don’t think should can any bearing on here CDL mine). supplied (emphasis should it. honor his own utter-

Correct. We should

ance.

Therefore, I respectfully dissent.

Case Details

Case Name: Rasmussen v. South Dakota Department of Labor

Court Name: South Dakota Supreme Court

Date Published: Dec 29, 1993

Citation: 510 N.W.2d 655

Docket Number: 18304

Court Abbreviation: S.D.