Hulse v. Job Service North Dakota

492 N.W.2d 604, 1992 N.D. LEXIS 234, 1992 WL 340911
CourtNorth Dakota Supreme Court
DecidedNovember 24, 1992
DocketCiv. 920161
StatusPublished
Cited by11 cases

This text of 492 N.W.2d 604 (Hulse v. Job Service North Dakota) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hulse v. Job Service North Dakota, 492 N.W.2d 604, 1992 N.D. LEXIS 234, 1992 WL 340911 (N.D. 1992).

Opinions

LEVINE, Justice.

Barry Hulse appeals from a district court judgment affirming Job Service’s decision denying him unemployment compensation benefits. We hold that his sotto voce utterance of an expletive did not constitute benefit-disqualifying “misconduct” and, therefore, reverse and remand.

Hulse was employed for approximately two-and-a-half years as a child care .worker for Dakota Boys Ranch Association (Boys Ranch). On September 1, 1991, Hulse spent his day off working the shift of a cook who was on vacation. The shift went beyond schedule and Hulse, anxious to finish so that he could leave, was delayed because many of the evening’s chores remained to be completed by the Boys Ranch residents. Hulse became irritated upon discovering that one of the residents, Smith [a pseudonym], was not cooperating with the other residents who were working in the dining room. Frustrated, Hulse went to the dining room, expressed to Smith- his dissatisfaction with Smith’s refusal to participate with the others and instructed Smith to cooperate.

While returning to the kitchen, Hulse, still upset with Smith, muttered to himself, “What a waste of human sperm!” Though audible, Hulse mumbled the remark under his breath and out of earshot of Smith, intending that it be heard by no one. Unexpectedly, however, Hulse’s statement was overheard by another resident who was in the kitchen, which was around the corner from the area where Hulse had made the remark.

The resident, uncertain about whether he had correctly heard the remark and guessing it had been made in reference to Smith, pressed Hulse for a clarification. Hulse confirmed the resident’s suspicions, confessing what he had said and about whom. Unfortunately, the resident then told Smith, who became very upset. After being told of Smith’s anger, Hulse approached him to apologize. The apology was not well received. Smith had to be physically restrained from striking Hulse. Smith later reported the incident to a supervisor and also filed a complaint against Hulse.

As a result of the incident, Boys Ranch placed Hulse on a two-week, paid suspension effective September 5, 1991. A Boys Ranch official ultimately advised Hulse that he had the option of resigning by September 18, 1991, or being terminated. Hulse chose to resign.

Hulse applied for job insurance benefits with Job Service. A claims deputy held that Hulse was not entitled to benefits because he was discharged for reasons constituting misconduct under NDCC § 52-06-02. Hulse appealed and a hearing was held before a Job Service appeals referee. The referee reversed the determination of the claims deputy, concluding that Hulse’s remark “was an isolated case of negligence and may not be deemed as misconduct.”

Boys Ranch then appealed to the Executive Director of Job Service. The Director reversed the referee’s decision, concluding on review of the record that:

“The Dakota Boy’s [sic ] Ranch Association is a licensed child care facility. In this setting, the employer has a right to [606]*606expect their workers to exhibit a behavior which would not be detrimental to the emotions of children in the facility who are in their care.
“[Hulse] admits that he made the remark about [Smith]. Although [he] was given an opportunity to resign, it was brought about because of an act of misconduct by clearly violating [Boys Ranch] personnel policy standards.” 1

Having exhausted his administrative remedies, Hulse appealed to the district court. The district court summarily affirmed Job Service’s final decision denying benefits.

Hulse now appeals to this court, arguing that the facts and circumstances of this case do not support a finding that his isolated statement constitutes benefit-disqualifying misconduct under NDCC § 52-06-02. Job Service, asserting otherwise, claims applicable case law requires that we affirm the denial of unemployment compensation benefits. For the reasons explained below, we agree with Hulse.

“[W]hen an administrative agency decision is appealed to this court from a district court, we review the final decision of the agency and not that of the district court.” Hins v. Lucas Western, 484 N.W.2d 491, 494 (N.D.1992). Section 28-32-19, NDCC, governs the scope of our review of administrative agency decisions. The determination of whether a person’s behavior constitutes misconduct is a mixed question of fact and law. Hins, 484 N.W.2d at 495; Marion v. Job Service North Dakota, 470 N.W.2d 609, 611-12 (N.D.1991). Our review of a mixed question of fact and law involves a determination of whether the evidence supports the agency’s findings of fact and, in turn, whether those findings of fact sustain the agency’s conclusion regarding misconduct. Marion, supra; Medcenter One, Inc. v. Job Service North Dakota, 410 N.W.2d 521, 524 (N.D.1987). If confronted with disputed facts, we defer to the agency’s factual conclusions and consider only whether a reasoning mind could have reasonably determined that the factual conclusions were proved by a preponderance of the evidence. Marion, supra. But, where, as here, the agency’s conclusion of law regarding misconduct is based on undisputed facts and contradictory inferences cannot reasonably be drawn from the undisputed facts, we review that conclusion anew. Id. Thus, we review the agency’s legal conclusion anew, and the dispositive issue is whether Hulse’s remark constitutes disqualifying misconduct as a matter of law.

NDCC § 52-06-02(2) declares that a person who has been discharged for misconduct in connection with that person’s latest employment is disqualified from receiving unemployment compensation benefits. The term “misconduct” is not statutorily defined, but we have maintained for nearly a decade that misconduct, for purposes of NDCC § 52-06-02(2), is:

“[C]onduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violations or [607]*607disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed ‘misconduct’ within the meaning of the statute.” Perske v. Job Service North Dakota, 336 N.W.2d 146, 148-49 (N.D.1983) [quoting Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941) ].

Subsection two, with its common law definition of misconduct, is, like each of the other benefit-disqualifying provisions of NDCC § 52-06-02, an exception to this state’s remedial unemployment compensation laws. Cf. Newland v. Job Service North Dakota, 460 N.W.2d 118

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Hulse v. Job Service North Dakota
492 N.W.2d 604 (North Dakota Supreme Court, 1992)

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Bluebook (online)
492 N.W.2d 604, 1992 N.D. LEXIS 234, 1992 WL 340911, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hulse-v-job-service-north-dakota-nd-1992.