*1
Helen L. SSA
3858, Claimant-appellant, CENTER, Employer, CARE
BURLEY Idaho, Department
and State
Employment, Respondents.
No. 18355. Idaho,
Supreme Court Falls,
Twin Nov. 1990 Term.
Nov.
Rehearing Dismissed Jan. Taylor, Burley, pro se.
Helen L. Boise, Gabbert, Chartered, Lojek for & respondent Burley Donald Care Center. argued. Lojek W. Hummel, Jones, Atty. Gen.,
Jim John C. Gen., Boise, respondent Deputy Atty. for Dept, Employment. Hummel John C. argued.
BAKES,
Justice.
Chief
employ-
Helen
fired from
Her claim
ment
Center.
denied
benefits was
ground
was terminated
after
appealed, and
She
misconduct.
Employment
Department of
hearing, the
for un-
claims
appeals examiner denied her
This decision
employment benefits.
Commission,
appealed
Industrial
request and re-
granted
hearing
for another
matter
manded the
Ad-
Employment.
and re-
presented
ditional evidence
Department of
ceived, following which the
ap- On
again
benefits.
denied
*2
peal
re-examination,
Taylor
supervisor
from this
down with
and her
Industri-
adopted
al Commission
the decision of the
dispute. Taylor
refused to
review
at-
examiner,
Department hearing
minor
with
any meeting
tend
her
without
sister
factual
Taylor appealed
modifications.
present. The administrator reiterated that
Industrial Commission’s decision and order
confidentiality,
inappro-
because of
was
to this Court.
priate
meeting,
an outsider at the
have
especially
competitor
one from a
business.
presented by
appeal
The issue
this
Taylor argued
right
that it was her
to have
is whether there
competent
is substantial
her,
son,
anyone
including
if
with
her
support
evidence to
the Industrial Commis
again
Taylor
so desired. When
refused to
finding
sion’s
Taylor
discharged
was
supervisor
discuss the situation
her
with
72-1366(e) provides
for misconduct. I.C. §
and/or the administrator without her sister
may
that a
unemploy
claimant
not receive
present, she was terminated.
ment benefits if
discharged
was
“[s]he
misconduct in connection with
em
h[er]
determining
The test for
misconduct
ployment.” Whether or not an action is
first,
employee’s
whether the
conduct
“misconduct” is a
of fact to be
expect
fell below the standard of behavior
determined
the Industrial Commission.
second,
employer;
ed
Spruell
Corp.,
v. Allied Meadows
117 Ida
employer’s expectation
objectively
was
277,
(1990);
ho
ant’s refusal to do appeal so constitutes miscon- nied all benefits. On from that duct in employment. determination, connection with the the Industrial Commission simply adopted Depart- decision of the This Court’s of unemploy review ment with minor factual ment compensation involving cases factual *3 modifications. The Industrial Commis- disputes determining restricted is wheth sion’s final decision order and left her with findings the of er fact the Industrial option—an appeal one to this This Court. supported by Commission are substantial process affirming is in the of Court the competent and evidence in the record. Ida Commission means of a succinct and Constitution, 9; 72-732; ho art. 5 I.C. § § quickly opinion. part The first read of the Spruell Corp., v. Allied supra. Meadows body opinion purports the of Court’s We find that the Industrial Commission’s the reader advise of the of the supported by determination is substantial examiner, appeals the which Commission competent evidence. The order of In the adopted. findings, majority The which the denying dustrial unemploy Commission opinion paraphrases, of consist four consec- ment insurance is benefits affirmed.
utive paragraphs.1 Then follows the sec-
JOHNSON,
McDEVITT,JJ.,
BOYLE
opinion,
and
body
ond
of the
of the
where-
concur.
in majority,
based on three Idaho cases
discussed,
majori-
which are not
states the
BISTLINE, Justice, dissenting.
ty’s
determining
test for
misconduct and
Taylor,
registered
Helen
a
nurse who
disposition,
sets out
the Commission’s
employed
Burley
had been
Care Center
unjust
It is
which is now reviewed.
an
September
discharged
since
was
determination,
soundly prem-
and
not
it is
employment
8,
from said
on March
1988.
ised.
Department
The examiner for the
Em-
of
presented by this
is
appeal
The issue
ployment
for
denied
claim
unem-
Taylor’s polite
Helen
on
insistence
ployment
upon the examin-
benefits based
party
impartial
of an
third
er’s
had been
conclusion
termi-
meeting
supervisors
her
during a
pro
ap-
nated
misconduct.
On
se
capable
being
as re-
of
termed misconduct
a
peal
hearing
Depart-
and after a
before
72-1366(e).
in I.C.
That statute
ferred to
Employment appeals
§
ment of
examiner
provides that a
not receive
claimant
again
any
denied
benefits. On
was
if
dis-
unemployment benefits
pro
appeal
her further
se
to the Industrial
“[s]he
charged for misconduct in connection with
all that she obtained was an-
Thus,
employment.”
we are not con-
hearing
Department
other
in the
of Em- h[er]
right
employer
an
cerned with the
ployment.
Additional
evidence was
solely
received, following
employee,
an
presented
terminate
again
ter-
Department
de- more narrow issue as to whether this
charge
explained
completed
that she hadn’t
1.
claimant worked as a
nurse for
claimant
The
17,
many
Burley
September
plan of action
Center from
because
had too
questions which needed to be
first.
until
1988. She worked 30 to 40
discussed
March
to see the documenta-
$7.29
a
for which she received
an
The claimant wanted
hours week
any
supervised by
com-
in her files and review
written
The claimant was
tion
plaints.
hour.
nursing.
The
claimant believed some
director of
warning
supervisor
in the
were incorrect.
dissatisfied with the
facts
written
The
supervisor explained
performance
it would not
and attitude. A
The
claimant’s work
their
appropriate to
meeting
discuss the
was held March
in which
super-
The
discussed
treatment
front of an outsider.
the dissatisfactions were
willing
the claimant’s
warning.
written
At
visor was
to discuss
claimant
a
herself,
review
meeting,
agreed
with the claimant
the claimant
to submit
concerns
documents,
meeting with
plan
March
reschedule
of correction
1988.
written
and her sister
and her su-
the claimant. The claimant
A
between the claimant
right to have
argued
it was
claimant’s
pervisor
was scheduled for March
son,
her,
including
if she so
anyone
the claimant arrived
On March
sister,
meeting accompanied by her
who
desired.
Examiner,
8,May
Appeals
facility.
competitor
Decision
was a nurse at
having
grounded upon
wanting
security
urination can be
miscon-
knowledgeable
present
witness
at what
duct.
might
yet produc-
a non-hostile
have been
stated, Taylor
As above
worked for the
meeting.
Employ-
tive
Burley
nurse for four
Care Center as a
summarily
appeals
ment
examiner rather
years
regular employment
without criti-
employer's expecta-
concluded that “[t]he
days
cism. A
terminat-
few
before she was
[Taylor]
supervisor
meet with her
tion that
ed,
warning
she received a written
prob-
to discuss the
and/or administrator
Jones,
supervisor.
Arlene
her immediate
refus-
lem was reasonable. The claimant’s
requires
em-
Care Center
an
al to do so constitutes misconduct.” Just
ployee
respond warnings by preparing
that it was
how the examiner rationalized
correction,”
submitting
“plan
*4
to want the visible
unreasonable
im-
employee
which details how the
will
support
discussing her
of her sister while
prove
performance. Taylor
pre-
her
did not
supervisory personnel
un-
conduct with
correction,
pare
plan
of
she be-
because
unknown,
and will forever remain
known
warning
lieved that the written
contained
the
of the
and likewise unknown is
basis
Taylor requested
false accusations.
employers’
examiner’s conclusion that
ex-
supported
Jones whatever documentation
pectation that claimant would succumb to
against Taylor
the
in
accusations made
the
rea-
proposed
the
no-witness
was
warning.
sister,
written
Carmen
sonable.
Adams,
present.
Adams is also a
nurse,
patient
and is familiar with
doc-
THE DETERMINATION THAT AN EM-
uments, records,
hospital procedures.
and
PLOYEE WAS DISCHARGED FOR
meeting, Taylor
Prior to the
had called the
BE
MISCONDUCT SHOULD
GIVEN
Department
Employment
of
because of
FREE
A MATTER OF
REVIEW AS
being set-up
fear that she was
for termi-
BY
LAW THIS COURT
supervisor
nation
immediate
through
findings
the fabrication of undocumented
The Industrial Commission’s
of
appeal
accusations. She had
on
been advised
fact will not be disturbed
when
bring
meeting.
supported by
compe
her to
they
witness with
the
are
substantial
tent
v. Howard Miller
evidence. Davis
O.
Taylor’s request
Jones denied
1092, 1094,
Co., 107 Idaho
695 P.2d
present
meeting.
Adams be
at the
Jones
(1984).
questions
of law this
Over
confidentiality
pa-
based the denial on
O’Loughlin
free
Court exercises
review.
Taylor responded
pa-
tient’s records.
Const.,
1048, 1051,
v.
A
Idaho
Circle
confidentiality
tient
would not have to be
739 P.2d
Adams;
implicated by
suggested
as to
consti-
could be referred
This Court’s conclusion
what
always
number instead of
name. This
tutes misconduct has not
reached
epitome
consistency.
offer was refused.
to-
At times the
Jones
gether sought
Jody Craig Trujillo,
applied
used was that
out
standard
review
it has
up
questions
administrator and next in line
the chain
of fact. At other times
example
For
in
supervision. Trujillo suggested
been a different standard.
she,
Davis,
applied the standard of
Jones and
meet and discuss the
this Court
determining
problem. Taylor again expressed her re-
review for factual
sister,
Adams,
misconduct. It was
quest that her
Carmen
be what could constitute
employer’s ex-
meeting.
there said that whether an
present at the
For that
trans-
(the
pectation
objectively reasonable
gression, Taylor
immediately
terminat-
test)
notwithstanding
years
ed
almost four
with second
of the Kress/Matthews
question
fact for deter-
essentially
“is
Burley Care Center.
Davis, 107
by the
mination
Commission.”
application
Her
bene-
1094,
by the Industrial Commission concurring Justice were Chief presents level of misconduct Bakes, District McQuade, Justice law, allowing free review. The essence of Judge Scoggins, Pro Tem. best, if not question one of the Without holding, Swanson Coates best, dealing appellate court decisions holding, and of the Totorica v. Western par- Employment’s Co., Equipment *5 making determination as to ticipation in the (1965),holding to the effect that “ab- were la- family unemployed the of an whether leaving of work job from the is not a sence borer, family of a be he or she the head merely tempo- a intends where the worker more, two, three, or should be denied employment rela- interruption in the rary saving provided perhaps life benefits Totorica, Idaho at 401 tionship.” 88 Avery B B Rental 72-1366 is v. & I.C. § P.2d at 821. Toilets, 549 specific In made Avery unanimous; opinion The in that case was discharged finding claimant was “that the rehearing. for Chief petition was no there 613, 549 97 Idaho at insubordination.” for only is the member Justice Bakes thereon, it made in at 272. Based P.2d sitting also sat on the now who Court following of law: conclusion I arrived on the Court Avery case. Had unemployment insurance A claimant did, it have been a year than I would earlier ineligible if his is benefits majority. The to have been in that bonus discharged fact that he was is due to the opinion has not been decision and Avery em- in with his misconduct connection challenged in almost sixteen questioned nor concludes The Commission ployment. cited and adhered to as years. It has been mis- discharged for claimant was that the ago. v. recently years three Swanson as employ- his in connection with conduct Employment, Department Idaho State ineligible for un- is therefore ment and P.2d benefits. employment insurance case, of that (1988). The circumstances at 272. 549 P.2d Idaho at Avery, 97 exactly identical not while and remand- opinion reversed This Court’s Center, unduly dis- are not Burley Care rede- to reconsider ed with directions similar, readily Where are available. the Court’s conformity with in termine denied bene- the claimant was in this case Id., opinion. in the expressed views rela- alleged misconduct of her fits because opinion at 274. The Idaho at was Linda Swanson supervisor, tive to equally case and to that part pertinent in she re- grounds that away on the turned case, required to pertinent in things, of all position, which signed her effect, provided: stare decisis be accorded of Health and was Misconduct, disqualify will which assigned Welfare, she was whom employment ben- receiving claimant resignation Support. Her of Child Bureau Security under the efits depres- mental by a state of triggered disregard of standards Act, includes supervi- disagreement with and a sion right employer has a behavior reflection, sought to rescind sor. On employer employee. informed the expect employee. of his While an The so employer right expect has job that his The conversation went into the as- employees engage protracted will employee’s complaints. not pects and the argument after an order or directive sensitivity employer’s standard of employee, yet to an he cannot ex- expectation born with the occa- or pect employees that his will at all times sion. The result reached the Industri- absolutely docile or servile. require a al Commission would standard of the Industrial Commis- unswerving docility servility. appellant’s sion characterize conduct A set such a standard. law does not telephone conversation with his em- single comparatively nonseri- incident ployer accepting employer’s as not argu- disrespect by complaining and ous expressing and, explanation, unhappiness Am.Jur.2d, ing is not misconduct. 76 according employer to his he ‘blew his Unemployment Compensation, 52 and § expression stack.’ The used the em- (1975); entitled ‘Em- and annotation § ployer ‘blowing ‘blowing up’ were Barring ployee’s as Un- Insubordination expressions slang his cork.’ These are employment Compensation,’ 26 A.L.R.3d tempera- conclusions. The attitude or appellant ment of in the conversation are not concerned with this case we was as follows: employer an right of an to terminate Q. What the tone of his voice employment, solely with the issue of phone? the termination was for ‘miscon- A. What was ... purview 72- duct’ within I.C. §
Q.
yelling
you,
talking
case,
he
at
1366(e).
Was
or
the facts of this
we
Under
or ...?
employee’s
hold that the
conduct which
*6
precipitated
discharge
his
did not as
very nervous,
A. He was
it was above
law constitute misconduct so
matter
average.
appellant
ineligible
as to render
Q.
your
fights
you
How
wife
compensation
sometimes?
benefits.
614-15,
P.2d at 273-
Something
Avery, 97 Idaho at
A.
like that.
(footnote omitted)
added).
(emphasis
employer
appellant
described
as a
worker,
good
up to the time of the inci-
precedent
Avery,
case
such as the
With
appellant’s firing.
dent of
No evidence Swanson,
it,
guide
to
no
and Coates cases
was introduced of other incidents of a perceivable reason surfaces which serves
prior
similar nature
to this one occur-
justify the
deci-
to
Industrial Commission’s
ap-
rence. There was no
that
evidence
our
upon
sion
is not based
what
language
pellant
vulgar
used
or abusive
twenty
in
cases
predecessors wrote
those
during
In
rela-
the conversation.
their
ago,
twenty-five years
justify
or to
to
tionship,
employer
neither the
nor the
applying
prece-
case
majority’s aversion
intermediary.
employee had an
still
dent here and now.
decisis is
Stare
Three
can do
telephone
initi- alive and a rule of law.
votes
conversation was
employee
report
anything,
an un-
the Court nevertheless
by
ated
circumstance,
quick
disregard
in-
should not be so
those
usual
as he had been
instance,
outstanding
Avery,
decisions in
In
the cir-
three
structed to do.
this
Swanson,
Chief Justice
finding eight portable toi-
Coates.
cumstance was
condition,
having
particular
is to
commended for
Bakes
filthy
lets in
due
having
contributing
helping
force in
employer
been a
transported by the
with-
guide the
and the
being emptied.
employer’s
out first
by
path
back onto the
laid
transporting was
clean before
failure to
72-1302,2 and the
language
of I.C.
equipment breakdown.
the result of an
§
people
poli-
of this state.
public
morals and welfare of the
state
Declaration of
2. 72-1302.
Involuntary unemployment
a sub-
insecurity
due to unem-
cy.— Economic
...
therefore
health,
ject
concern
national and state interest and
ployment is a serious menace to
language of this
shortly
required
Court written
able” medical
by
treatment as
I.C.
72-432(1)
thereafter
the cases of In re
Gem State
was to be
free review
§
Academy Bakery and
question
Johns v. S.H. Kress
because it
awas
of law. Like-
wise, here,
& Co.3
the Industrial Commission’s
finding
declined invitations to
question
Free review of the
of whether
meetings
super-
attend scheduled
with her
certain facts constitute misconduct is con-
presence
visors without the
of her sister
sistent with our recent cases of Hewson v.
Court,
cannot be
this
as that
reviewed
Shop,
Asker’s
120 Idaho
Thrift
question
question
raises a
of fact. The
(1991),
Sprague
v. Caldwell
facts as found
the Industri-
Inc.,
Trans.
al Commission mounted to the level of
nearly
is so
Hewson
akin
question
“misconduct” is a
of law which
to this case
is deemed remarkable
should be reviewed de novo.
Booth
See
any
member of the
who was in
Court
229, 233-34,
City Burley, 99 Idaho
Hewson would reach a different
result
(1978)
J.,
(Bistline,
P.2d
79-80
dissent-
There,
here.
this
Court reversed
deter-
Toilets,
ing);
Avery
v. B B& Rental
mination
Industrial Commission that
that there other of miscon- not rise the level present does to or presence tape recorder which the duct. adversely would not af- impartial advisor determined have The Commission should interaction communication be- fect the and manner precisely in what employees, and and employer and its tween an presence during meeting Adams’ patient-confidentiality the would the issue is seen for patients’ right in fact violated herring have the to the red which it is. privacy. The Industrial should recognized, Once that is it becomes mani- given serious Tay- have consideration to Taylor fest that was fired in violation of suggestion that patients lor’s be referred Burley’s personnel manual. That doc- If suggestion to number. that was not gives right each employee ument the to practicable for in the reasons not shown administrator, meet with the without the record, further consideration of alternative presence supervisor, of the immediate in ways protect privacy rights to the grievance: case of
patients have In- explored. should recognize people to- We that when work stead, that has all occurred is the Commis- gether, questions concerning their own unthinking in majority’s sion’s and turn the treatment welfare fairness of are Burley acceptance of naked Care Center’s feeling certain to arise. It is our that the appearance assertion that the of a witness relationship super- you your between choice in some would somehow one; very important is a one patient unknown manner be visor violative privacy. open enough should be to resolve most Therefore, questions. concerns or we Moreover, important ig- two facts are supervi- urge you initially your to contact nored both the Commission and the ma- and discuss anything sor with him/her acting jority. The first is your is on mind. Give him/her the good-faith upon to her advice opportunity any questions first to resolve Department Employment. you you or conflicts have. Should undisputed evidence is that called discus- still the need feel for further bring to was advised sion, you option discussing have the along meeting.4 witness The second private the matter with next comply is that Care Center failed to includ- supervision, up level to and firing policies its own written with before you are ing the Administrator. still Taylor. If satisfied, arrangements will be not assuming, arguendo, patient Thus Regional made confidentiality would have been breached Manager. All be made to will efforts presence of and no caution- Adams problems and consist- resolve in a fair ary measure could taken to have been manner. ent fact re- happening, avoid that Manual, (emphasis add- Employee Exh. 10C refusing was not mains fired for ed). without the discuss sister, knowledgeable in who was also gave Trujillo frankly she never admitted relating nursing, rather for matters opportunity: Taylor this Trujillo refusing to meet with Jones right. All EXAMINER: why to discuss Adams was there. alone op- you give her you was when did that, “I informed
Trujillo testified
[Helen
speak directly
you with
portunity to
if
Taylor] that
she refused to discuss
supervisor?
myself,
Arlene
situation
[Jones]
Okay.
I didn’t.
company.”
Thus
TRUJILLO:
be better
would
*9
Finch,
620,
me that if I would not meet she and with alone,
Arlene I would have to consider
my relationship Center with immediately.
terminated effective At point, ‘Jody, I said I cannot do that.’ very
I felt intimidated. The written warning very intimidating alone and to P.2d supervisors have two behind closed doors Idaho, Plaintiff-Respondent, STATE them, ask me to meet with I don’t feel I v. should have to do that. And I been have CASWELL, Defendant- James J. advised that I don’t have to do that. Appellant.
Taylor was dismissed before all efforts problem. had made to resolve the CASWELL, Joseph James opportunity She was never offered Petitioner-Appellant, administrator, Jody Craig meet with the Trujillo, private. Trujillo insisted that meet with both her and Idaho, Respondent. STATE of supervisor, Jones, immediate Arlene in vio- Nos. 18840. express employee lation of the terms of the Further, Taylor
manual. was never of- Idaho, Supreme Court of opportunity fered the to meet the re- Falls, Twin Nov. 1991 Term. gional manager, may may who or not have Feb. objected presence. to Adam’s guilty Rehearing May It is unassailable Denied nothing wanting support but moral being supervi- directed to meet with her Absolutely
sors. stepped no one has for- explain why request
ward to could not complied A
have been with. fellow human
being being was in essence to the asked superiors, per-
woodshed and was so,
fectly willing to do other than for one
small favor—she wanted her sister there beings Her her. fellow human dis- making
charged request. her for She
sought unemployment benefits in order to
get by pursuing employment, while new beings again fellow human found her What,
guilty exactly, of misconduct. of mis-
the conduct which rose to the level
feasance? sum, majority today denies unem-
ployment benefits to a woman who was employer’s
fired in violation of the written *10 as-
policies, accomplished upon the baseless