Opinion
No. 56513.
06-15-2012
Marguerite MARMOLEJO, Appellant, v. LAS VEGAS ATHLETIC CLUB and the State of Nevada Department of Employment, Respondents.
Timothy C. Williams, District Judge Marguerite Marmolejo State of Nevada/DETR
Timothy C. Williams, District Judge
Marguerite Marmolejo
State of Nevada/DETR
ORDER OF AFFIRMANCE
This is a proper person appeal from a district court order denying a petition for judicial review of an administrative order denying unemployment benefits. Eighth Judicial District Court, Clark County; Timothy C. Williams, Judge.
Appellant was an employee for respondent Las Vegas Athletic Club, where she worked as a graveyard shift manager and front desk attendant. Her employment was terminated after another employee reported finding her asleep at work, an allegation that appellant disputes. After being terminated, appellant filed a claim for unemployment benefits, which respondent State of Nevada, Department of Employment, Training, and Rehabilitation, Employment Security Division denied. Specifically, the appeals referee found that appellant had been asleep while on duty, and that, in this case, sleeping while on duty constituted misconduct that warranted appellant's disqualification for unemployment benefits. The Employment Security Division's Board of Review declined further review of the referee's determination, and appellant filed a petition for judicial review in the district court. The district court denied the petition, and now appellant appeals to this court. On appeal, appellant argues that the referee erred in finding that her termination was for misconduct that disqualified her from unemployment benefits.
In reviewing an administrative decision in an unemployment compensation matter, this court, like the district court, determines whether the board acted arbitrarily or capriciously. NRS 233B.135 ; McCracken v. Fancy, 98 Nev. 30, 31, 639 P.2d 552, 553 (1982). The administrative decision will not be disturbed if it is supported by substantial evidence. Leeson v. Basic Refractories, 101 Nev. 384, 385–86, 705 P.2d 137, 138 (1985) (citing State, Sec. Dep't. v. Weber, 100 Nev. 121, 124, 676 P.2d 1318, 1320 (1984) ). “Substantial evidence is that which a reasonable mind could find adequate to support a conclusion.” Kolnik v. State. Emp. Sec. Dep't, 112 Nev. 11, 16, 908 P.2d 726, 729 (1996). Further, this court's review is limited to the record below. McCracken, 98 Nev. at 31, 639 P.2d at 553.
Appellant argues that the hearing transcript before the referee is incorrect and requests that this court review audio tapes of the hearing. We have reviewed the alleged discrepancies that appellant listed in her opening brief in the district court and conclude that, regardless of any corrections to these statements, there is substantial evidence in the record to support the administrative decision. Furthermore, where the district court does not address a motion below by order, this court considers the motion denied. See
Under NRS 612.385, if a person was discharged from work for “misconduct,” he or she is ineligible for unemployment benefits. A willful violation of duties or disregard for an employer's interests may constitute such misconduct. Garman v. State Employment Sec. Dep't, 102 Nev. 563, 565, 729 P.2d 1335, 1336 (1986) (defining misconduct “as ‘a deliberate violation or a disregard of reasonable standards, carelessness or negligence showing substantial disregard of duties' ”); see also Employment Sec. Dep't v. Verrati, 104 Nev. 302, 304, 756 P.2d 1196, 1197–98 (1988).
Having reviewed appellant's arguments and the record on appeal, we conclude that substantial evidence supports the referee's finding that appellant was discharged for reasons constituting misconduct that disqualified her from unemployment benefits under NRS 612.385. The referee heard testimony from appellant and other witnesses and determined that appellant was asleep in the manager's office when her duties required her to be at the athletic club's front desk. This court will not substitute its judgment for the referee's on issues of credibility or the weight of the evidence. Lellis v. Archie, 89 Nev. 550, 554, 516 P.2d 469, 471 (1973) (citing No. Las Vegas v. Pub. Serv. Comm'n, 83 Nev. 278, 281, 429 P.2d 66, 68 (1967) ).
We have previously determined that “nodding off” while on the job may constitute misconduct that disqualifies an employee from unemployment benefits. Verrati, 104 Nev. at 304, 756 P.2d at 1198. Other jurisdictions have also concluded that sleeping on the job may constitute disqualifying misconduct, after taking into account the specific circumstances of the case. See, e.g., Richardson v. Division of Employment Sec, 361 S.W.3d 425 (Mo.Ct.App.2011) ; Brandon v. Lockheed Martin Corp., 872 So.2d 1232, 1241–42 (La.Ct.App.2004). Considering the circumstances of the instant appeal, we conclude that substantial evidence in the record supports the referee's determination that appellant's conduct demonstrated disregard for her employer's interests and her duties as an employee, and thus constituted misconduct under NRS 612.385. See Kolnik, 112 Nev. at 16, 908 P.2d at 729 (noting that whether an employee's negligence constituted willful misconduct is a question of law); but see Garman, 102 Nev. at 565, 729 P.2d at 1336 (recognizing that when misconduct becomes a mixed question of law and fact, the agency's determination must be given similar deference to findings of fact when supported by substantial evidence). Accordingly, we conclude that the referee's decision was not arbitrary or capricious, and thus we
ORDER the judgment of the district court AFFIRMED.
Bd. of Gallery of History v. Datecs Corp., 116 Nev. 286, 289, 994 P.2d 1149, 1150 (2000).