Opinion
No. 3-293 / 02-1136
Filed June 13, 2003
Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.
Tofflemire appeals from the district court's judicial review of the employment board decision denying her application for unemployment benefits. AFFIRMED.
James Gilliam of Brown, Winick, Graves, Gross, Baskerville Schoenebaum, P.L.C., Des Moines, for appellant.
Richard Ramsey of the Employment Appeal Board, Des Moines, for appellee.
Considered by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
Tofflemire appeals from the district court's judicial review of the employment board decision denying her application for unemployment benefits. We affirm.
I. Background Facts and Proceedings. Cynthia Tofflemire was employed as an attorney by the Iowa Department of Labor (DOL) from August 1992 until January 12, 2001. With the knowledge and approval of her supervisors, Tofflemire maintained a private law practice during her employment with the DOL.
In December 2000, Commissioner Orton received a communication from the Iowa Department of Revenue and Finance disclosing that Tofflemire reported $97,438.00 in 1099R miscellaneous income and $60,153.00 income from her DOL salary. This information, coupled with complaints from Tofflemire's co-workers that she was often unavailable during her scheduled work hours, convinced Orton to begin an investigation to determine whether Tofflemire's private practice was interfering with her duties as a DOL attorney. His investigation revealed that on twenty-four occasions, Tofflemire had claimed sick leave and on the same date billed hours to the Public Defender for indigent defense work during the period from January 1, 2000 through September 15, 2000. On six dates, Tofflemire had billed in excess of twenty-four hours total to the DOL and Public Defender.
On January 9, 2001, Orton met with Tofflemire to discuss his findings. Tofflemire was suspended with pay until Orton could conclude his investigation. On January 12, Orton again met with Tofflemire, and she offered explanations for six of the dates in question. During both of these conversations, Tofflemire maintained her private practice was not interfering with her job at the DOL. At the conclusion of the January 12 meeting, Tofflemire was given a written notice of termination, stating
This action is being taken because you abused sick leave during the period of time beginning January 1, 2000 and ending September 15, 2000 by performing indigent legal defense work for which you received payment from the State of Iowa while utilizing paid sick leave, and because you gave less than honest and forthright answers during the course of our investigation.
Tofflemire filed a grievance with the Iowa Department of Personnel (IDOP) pursuant to the collective bargaining agreement. Her grievance was denied, and her termination was affirmed by IDOP on March 20, 2001. Tofflemire then filed a claim for unemployment benefits. A telephone fact-finding interview was held, and the fact-finder denied Tofflemire's unemployment benefits. Tofflemire appealed and a hearing was held before an administrative law judge (ALJ). The administrative law judge affirmed the fact-finder's decision. Tofflemire appealed to the employment appeal board (EAB), which affirmed the ALJ's decision. Tofflemire then petitioned for judicial review, and the district court affirmed the EAB's decision. Tofflemire appeals, asserting (1) the DOL failed to prove Tofflemire was terminated for misconduct, and (2) the agency erred by admitting evidence created after her termination.
II. Standard of Review. Our review is for errors at law. Harlan v. Iowa Dep't of Job Serv., 350 N.W.2d 192, 193 (Iowa 1984). The decisions of the agency are binding on us if they are supported by substantial evidence and correct conclusions of law. Heatherly v. Iowa Dep't of Job Serv., 397 N.W.2d 670, 670 (Iowa 1987). We will look at the record as a whole to determine if agency action is supported by substantial evidence. Evidence is substantial if a reasonable mind would accept it as adequate to reach a conclusion. Aluminum Co. of America v. Employment Appeal Bd., 449 N.W.2d 391, 394 (Iowa 1990).
III. Substantial Evidence Supporting the EAB's Decision. Tofflemire claims the EAB's determination that she was terminated for misconduct for abusing sick leave and lying during the investigation is not supported by substantial evidence. She contends that because the DOL never provided documentation establishing the IDOP's written sick leave policy, the department could not have proven she violated that policy. However, the EAB's determination of Tofflemire's eligibility for unemployment benefits is not based on whether she violated a written policy, but whether she was terminated for misconduct as defined by the Iowa Administrative Code. An individual is disqualified from unemployment benefits if "the department finds that the individual has been discharged for misconduct in connection with the individual's employment." Iowa Code § 96.5(2)(a) (2001).
"Misconduct" is defined as a deliberate act or omission by a worker which constitutes a material breach of the duties and obligations arising out of such worker's contract of employment. Misconduct as the term is used in the disqualification provision as being limited to conduct evincing such willful or wanton disregard of an employer's interest as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of employees, or in carelessness or negligence of such degree of 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 the 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.
Iowa Admin. Code r. 871-24.32(1)(a) (1997).
The EAB determined that the DOL proved Tofflemire was terminated for misconduct because she abused sick leave and lied during the investigation. Our review of the record convinces us that there is substantial evidence to support the EAB's finding that Tofflemire abused sick leave. Because of our determination on that issue, we do not address the EAB's finding that Tofflemire lied during the investigation.
Although Tofflemire provided explanations for the occasions on which she utilized sick leave from the DOL tending to establish that she did not perform indigent defense work during the hours she claimed sick leave from the DOL, when evidence is in conflict or where reasonable minds might disagree about the conclusions to be drawn, the findings of the agency are binding on the court. Freeland v. Employment Appeal Bd., 492 N.W.2d 193, 197 (Iowa 1992). The record contains evidence from which a reasonable fact finder could find that Tofflemire claimed sick leave on days on which she appeared in court, met with clients and judges, and performed other work for her indigent defense practice. This substantial evidence provides minimally sufficient support for EAB's determination that Tofflemire's conduct constituted misconduct as defined in the Iowa Administrative Code. We therefore affirm the agency's ruling.
IV. Admission of Documents Created After Tofflemire's Termination.
Tofflemire contends that the agency abused its discretion when it admitted certain documents created by the DOL after Tofflemire's termination. She relies on Lee v. Employment Appeal Board, 616 N.W.2d 661, 669 (Iowa 2000) for the proposition that sufficient proof of an employee's misconduct must exist on the date of termination. We agree with this proposition, but disagree that the agency relied on evidence that did not exist on the date of Tofflemire's termination. Many of the exhibits Toflflemire finds objectionable are merely compilations of information used by the DOL in its decision to terminate her employment. Even if the other documents were improperly admitted, the record indicates no prejudice resulting from their admission. See Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000). We agree with the district court's determination that the agency did not rely on these documents in its decision, and we find no reversible error on this issue.