Sheehy v. Albin ( 2023 )


Menu:
  •                         IN THE NEBRASKA COURT OF APPEALS
    MEMORANDUM OPINION AND JUDGMENT ON APPEAL
    (Memorandum Web Opinion)
    SHEEHY V. ALBIN
    NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
    AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
    ANGELA D. SHEEHY, APPELLANT,
    V.
    JOHN ALBIN, COMMISSIONER OF THE NEBRASKA DEPARTMENT OF LABOR, NEBRASKA
    DEPARTMENT OF LABOR, AND PRINT EXPRESS, INC., APPELLEES.
    Filed January 31, 2023.   No. A-22-450.
    Appeal from the District Court for Lancaster County: DARLA S. IDEUS, Judge. Affirmed.
    Mark T. Bestul, of Legal Aid of Nebraska, for appellant.
    Katie S. Thurber and Elizabeth Cano, of the Nebraska Department of Labor, for appellees
    John Albin and the Nebraska Department of Labor.
    John L. Selzer, of Simmons Olsen Law Firm, P.C., L.L.O., for appellee Print Express, Inc.
    MOORE, BISHOP, and WELCH, Judges.
    WELCH, Judge.
    INTRODUCTION
    Angela D. Sheehy appeals from the Lancaster County District Court’s order affirming the
    Nebraska Department of Labor’s determination that Sheehy was disqualified from receiving
    unemployment benefits because she was discharged from her employment for misconduct. For the
    reasons set forth herein, we affirm.
    STATEMENT OF FACTS
    Sheehy was employed as an office assistant and graphic designer for Print Express, Inc.
    (Print Express) from March 2020 until she was terminated in October 2020. The month following
    her termination, Sheehy filed an application for unemployment benefits. In late November 2020,
    -1-
    the Nebraska Department of Labor issued a qualifying determination that Sheehy was entitled to
    receive employment benefits because the evidence did not support a finding that she was
    terminated from her employment for misconduct. Print Express appealed the adjudicator’s
    determination to the Nebraska Appeal Tribunal (Tribunal).
    The hearing before the Tribunal was originally scheduled in January 2021 but was
    continued to March due to issues with the recording device. Although the hearing was held on the
    scheduled date in March, Sheehy failed to appear. During the hearing, the Tribunal heard evidence
    from Connie Booth, the owner of Print Express. Booth testified that Sheehy was terminated due to
    multiple instances of arriving late for work, poor performance, poor attitude, and customer
    complaints regarding Sheehy’s rudeness. Booth testified that Sheehy violated the employer’s
    policies and expectations for timeliness, customer relations, and job performance.
    In May 2021, the Tribunal reversed the qualifying determination finding that Print Express
    had met its burden to show that Sheehy was terminated for misconduct and was disqualified from
    receiving unemployment benefits. Shortly after this determination, Sheehy filed a request to
    reconsider the May 2021 decision indicating that “she did not find out about the hearing until after
    the hearing occurred.” The Tribunal granted Sheehy’s request to reconsider after finding that there
    was good cause to reopen the matter. A notice of hearing was then sent to the parties indicating
    the date and time of the new hearing, instructions for attending the telephone conference, and a
    statement that the issue noticed for the hearing was whether Sheehy was terminated from her
    employment for misconduct.
    The second hearing was held telephonically in July 2021. The Tribunal took official notice
    of the record and the decision from the previous hearing and received additional evidence from
    both parties. Testimony was again received from Booth which resembled her testimony from the
    prior hearing. Additional testimony was received from Stephanie Wise, the general manager of
    Print Express, and Sheehy. Booth and Wise testified that Sheehy arrived late to work on multiple
    occasions, failed to notify Print Express when she was going to be late, received three customer
    complaints for rude behavior, took personal calls during work in violation of Print Express’s policy
    against cellular phone usage, and repeatedly failed to perform her job duties as expected. For
    example, Wise testified that on one occasion, Sheehy showed up to work 2 hours late. After Wise
    was unable to reach Sheehy despite multiple attempts, Wise contacted Sheehy’s sister in an effort
    to locate her. Wise testified that in September 2020 she received customer complaints regarding
    Sheehy’s rude behavior. The following month, Booth discharged Sheehy. Although Sheehy did
    not deny that she had taken calls during work or that she had sometimes arrived to work late, she
    testified that Booth never discussed the incidents with her. Additionally, Sheehy offered copies of
    her cell phone records into evidence to show that Wise did not attempt to contact her on the day
    she was 2 hours late for work.
    In August 2021, the Tribunal issued its decision finding that Sheehy had committed
    misconduct and determined that Sheehy was disqualified from receiving unemployment benefits.
    In its decision, the Tribunal stated in relevant part:
    The Tribunal originally found that [Sheehy] was discharged under disqualifying
    circumstances because [Sheehy] was often late for work and because of customer
    complaints concerning [Sheehy’s] rude behavior. The Tribunal reversed the Notice of
    -2-
    Determination in this matter and held that [Sheehy] was discharged for misconduct and
    should be assessed a benefit disqualification. [Sheehy] submitted phone records at the
    re-hearing which were intended to prove a record of communication between her and her
    employer which disputed whether she had been contacted by her employer on certain dates.
    [Sheehy] did not produce sufficient evidence to overturn the Tribunal’s order issued on
    05/03/2021.
    ....
    Here, the evidence at both hearings showed that [Sheehy] had been late for work and the
    customer complaints had been made against her to the employer. The Tribunal therefore
    affirms its decision on 05/03/2021 which reversed the Notice of Determination.
    Sheehy appealed to the Lancaster County District Court. Following a hearing, the district
    court affirmed the Tribunal’s decision finding that Sheehy was discharged for misconduct and
    finding no procedural error in the proceedings conducted by the Tribunal. More specifically the
    district court found that “Sheehy’s right to due process was not violated,” that “[t]he Appeal
    Tribunal committed no error in requiring Sheehy to present evidence on reconsideration to
    overturn” the May 2021 decision, and that “Sheehy was discharged for misconduct.” Sheehy now
    appeals the order of the district court which affirmed the Tribunal’s decision.
    ASSIGNMENTS OF ERROR
    Sheehy assigns, renumbered and restated, that the district court erred in (1) affirming the
    Tribunal’s decision which improperly shifted the burden of proof in the July 2021 rehearing to
    Sheehy, (2) failing to find that Sheehy’s due process rights were violated because she did not
    receive notice that she bore the burden of proof in connection with the July 2021 rehearing, and
    (3) affirming the Tribunal’s decision which found that Sheehy was terminated from her
    employment for misconduct which disqualified her from receiving unemployment benefits.
    STANDARD OF REVIEW
    In an appeal from the Tribunal to the district court regarding unemployment benefits, the
    district court conducts the review de novo on the record, but on review by the Nebraska Court of
    Appeals or the Nebraska Supreme Court, the judgment of the district court may be reversed,
    vacated, or modified for errors appearing on the record. Badawi v. Albin, 
    311 Neb. 603
    , 
    973 N.W.2d 714
     (2022). When reviewing a judgment for errors appearing on the record, the inquiry is
    whether the decision conforms to law, is supported by competent evidence, and is neither arbitrary,
    capricious, nor unreasonable. 
    Id.
     An appellate court, in reviewing a district court judgment for
    errors appearing on the record, will not substitute its factual findings for those of the district court
    where competent evidence supports those findings. 
    Id.
    The determination of whether the procedures afforded an individual comport with
    constitutional requirements for procedural due process presents a question of law. Barnett v. City
    of Scottsbluff, 
    268 Neb. 555
    , 
    684 N.W.2d 553
     (2004). On a question of law, an appellate court is
    obligated to reach a conclusion independent of the determination reached by the court below. 
    Id.
    -3-
    ANALYSIS
    Before reaching the merits on appeal, we briefly review the laws governing unemployment
    benefits.
    In Nebraska, unemployment benefits are governed by the Employment Security Law.
    Badawi v. Albin, 
    supra.
     A variety of conditions can disqualify an otherwise eligible individual
    from receiving unemployment benefits. 
    Id.
     
    Neb. Rev. Stat. § 48-628.10
     (Reissue 2021) provides
    in relevant part that “[a]n individual shall be disqualified for benefits for the week in which he or
    she has been discharged for misconduct connected with his or her work, if so found by the
    commissioner, and for the fourteen weeks immediately thereafter.”
    In a disputed claim for unemployment benefits, the employer bears the burden of proving
    an individual is disqualified from receiving benefits because he or she was discharged for
    misconduct under § 48-628.10. Badawi v. Albin, 
    supra.
    BURDEN OF PROOF
    Sheehy first assigns that the district court erred in affirming the Tribunal’s decision which
    she alleges improperly shifted the burden of proof at the July 2021 rehearing to require her to
    provide sufficient evidence in order to overturn the Tribunal’s May 2021 decision. Although
    Sheehy acknowledges the Tribunal had the right to rely upon evidence from both the March and
    July hearings in reaching its decision, Sheehy argues that the Tribunal had no right to shift the
    burden of proof onto her in the second hearing to overcome the Tribunal’s decision from the first
    hearing. Stated differently, Sheehy argues that it was not her burden to present evidence to overturn
    the Tribunal’s prior decision; rather it was Print Express’s burden to prove that she was disqualified
    from receiving benefits due to misconduct.
    Generally, in a disputed claim for unemployment benefits, the employer bears the burden
    of proving an individual is disqualified from receiving benefits because he or she was discharged
    for misconduct under § 48-628.10. Badawi v. Albin, 
    311 Neb. 603
    , 
    973 N.W.2d 714
     (2022). But
    the procedure followed in hearings before the appeal tribunal is markedly different from that
    followed in a criminal case, or even a civil case, in a judicial forum. Id.; 
    224 Neb. Admin. Code § 1-001
    .
    Here, during the July 2021 hearing, the Tribunal took official notice of the March 2021
    hearing and the Tribunal’s subsequent decision. After considering the evidence from both
    hearings, the Tribunal rendered its decision in August 2021 finding that Sheehy did not produce
    sufficient evidence to overturn the Tribunal’s prior determination and that the evidence at both
    hearings showed that Sheehy had been late for work and that customer complaints had been made
    to Print Express regarding her. On appeal to the district court, Sheehy argued that the Tribunal
    improperly shifted the burden of proof by relying on its prior decision after granting a rehearing.
    In its de novo review, the district court found:
    Notwithstanding the new docket number, the July 1, 2021, rehearing is “part of the original
    action,” and the Appeal Tribunal “may base its decision on the record of the original
    hearing and on the evidence presented at the rehearing.” Id. at 1174-1175, 510 N.W.2d at
    568. That is what the Appeal Tribunal did. It based its decision on reconsideration on the
    record of the original March 24, 2021, hearing and the additional evidence presented at the
    -4-
    July 1, 2021, rehearing. It was, therefore, not error for the Appeal Tribunal to defer to the
    May 3rd decision that is based on the record of the original hearing.
    Moreover, since the Appeal Tribunal had already determined in its May 3rd decision
    that Print Express presented sufficient evidence at the original hearing to demonstrate that
    Sheehy was often late to work, thereby, satisfying its burden of establishing misconduct, it
    was not error for it to then shift the burden of proof to Sheehy at the July 1, 2021, rehearing.
    In City of Omaha v. Wade, 
    1 Neb. App. 1168
    , 1174, 
    510 N.W.2d 564
    , 568 (1993), this
    court held that administrative agencies may receive additional evidence on reconsideration or
    rehearing stating:
    The question of whether to reopen an administrative record to allow additional evidence is
    one addressed to the discretion of the administrative agency; further proceedings in a
    reopened matter are part of the original action, and the administrative agency may base its
    decision on the record of the original hearing and on the evidence presented at the
    rehearing.
    Sheehy argues that while City of Omaha v. Wade, 
    supra,
     stands for the proposition that the
    Tribunal can consider evidence from the original hearing, it does not stand for the proposition that
    she had the burden of proof in the second hearing to overcome the decision from the first hearing.
    Contrary to Sheehy’s assertion, the Tribunal expressly acknowledged in its May 2021
    determination that Print Express had the burden to prove Sheehy was terminated for misconduct
    and that Print Express had satisfied that burden. After making the decision to reopen the
    administrative record, the Tribunal heard evidence from both parties during the second hearing
    held in July 2021. Following that second hearing, the Tribunal expressly acknowledged that in
    rendering its final decision, it relied upon evidence from both hearings and decided to reaffirm its
    decision reached in the first. The Tribunal’s acknowledgment that it reviewed evidence from both
    hearings in rendering its final decision suggests that it followed the dictates of this court’s opinion
    from City of Omaha v. Wade, 
    supra.
     As we read the language of the Tribunal’s August 2021
    determination, we reject Sheehy’s argument that the Tribunal shifted the burden of proof onto her
    in the second hearing and find that the Tribunal properly placed the burden of proof on Print
    Express while considering the evidence from both hearings in reaching its final determination. We
    view the language of the Tribunal’s determination as simply indicating that, after viewing the
    record from both hearings as a whole, it did not change their view of the result reached in the first.
    This assignment fails.
    DUE PROCESS
    Sheehy next assigns that the district court erred in finding that her due process rights were
    not violated by the Tribunal’s failure to provide notice to her prior to the second hearing that the
    burden of proof shifted to her. She argues that neither the notice of hearing nor the Administrative
    Appeal Judge provided her with any notice that she had the burden to present sufficient evidence
    in order to overturn the Tribunal’s May 2021 decision. Rather she asserts that the order granting
    -5-
    reconsideration indicated that a new docket number would be issued which implied a separate and
    new hearing on the issue of her misconduct for which Print Express bore the burden of proof.
    A party appearing in an adjudication hearing before an agency or tribunal is entitled to due
    process protections similar to those given to litigants in a judicial proceeding. Prokop v. Lower
    Loup NRD, 
    302 Neb. 10
    , 
    921 N.W.2d 375
     (2019). Due process does not guarantee an individual
    any particular form of state procedure. 
    Id.
     Instead, the requirements of due process are satisfied if
    a person has reasonable notice and an opportunity to be heard appropriate to the nature of the
    proceeding and the character of the rights which might be affected by it. 
    Id.
     Procedural due process
    in an administrative proceeding requires notice, identification of the accuser, factual basis for the
    accusation, reasonable time and opportunity to present evidence concerning the accusation, and a
    hearing before an impartial board. Whittle v. State, 
    309 Neb. 695
    , 
    962 N.W.2d 339
     (2021). Due
    process requires notice reasonably calculated to inform the party to the action of the subject and
    issues involved in the proceeding. Prokop v. Lower Loup NRD, supra.
    Here, the district court found that Sheehy’s due process rights were not violated. We agree.
    Because, as we found earlier in this opinion, the Tribunal did not shift the burden of proof onto
    Sheehy in connection with the second hearing, we reject Sheehy’s second assignment of error that
    she was denied due process because of a failure to notify her of a shifting burden. This assignment
    of error fails.
    FINDING OF MISCONDUCT
    Sheehy finally assigns that the district court erred in affirming the Tribunal’s determination
    that Sheehy committed misconduct which was sufficient to disqualify her from receiving
    unemployment benefits. Sheehy generally asserts that her conduct either did not constitute
    misconduct or was tolerated by the employer without warning so as to waive the claim of her
    misconduct.
    “Misconduct” is not defined in § 48-628.10, but our cases have long defined it to include
    behavior which evidences (1) wanton and willful disregard of the employer’s interests; (2)
    deliberate violation of rules; (3) disregard of standards of behavior which the employer can
    rightfully expect from the employee; or (4) negligence which manifests culpability, wrongful
    intent, evil design, or intentional and substantial disregard of the employer’s interests or of the
    employee’s duties and obligations. Badawi v. Albin, 
    311 Neb. 603
    , 
    973 N.W.2d 714
     (2022). The
    Nebraska Supreme Court has never held that an employer meets its burden of proving misconduct
    simply by showing that an employee was discharged for violating a rule, policy, or order. 
    Id.
    Rather, cases have generally required a showing that the rule, policy, or order at issue was
    reasonably designed to protect the employer’s business relationship. 
    Id.
    Under the definition of “misconduct” developed in our caselaw, misconduct generally
    involves intentional actions as indicated by the phrases “wanton and willful disregard of the
    employer’s interests,” “deliberate violation of rules,” and “disregard of standards of behavior.”
    Meyers v. Nebraska State Penitentiary, 
    280 Neb. 958
    , 965, 
    791 N.W.2d 607
    , 613 (2010). Further,
    misconduct may also involve negligence on the part of the employee, but only when it “manifests
    culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer’s
    interests or of the employee’s duties and obligations.” 
    Id.
    -6-
    Here, the evidence before the district court established that Sheehy was late to work on
    multiple occasions, that she did not give prior notice of her tardiness, that she used her phone
    during work hours in violation of the company handbook, and that Print Express received at least
    three customer complaints related to Sheehy’s behavior towards those customers. Sheehy did not
    dispute that she had used her phone during work hours on occasions and that she had been late to
    work, however Sheehy argued:
    It was just a series of events . . . the law doesn’t require perfect employees to be qualified
    for benefits. It requires . . . sort of reasonable employees . . . to what . . . constitutes
    misconduct that’s sufficient to justify disqualification from unemployment benefits. There
    can be misconduct. No doubt about that. There were things that she did that were against
    policy and were things that the employer did not like and — and that doesn’t mean that . .
    . alleviates the payment of benefits or disqualifies her from a payment of benefits. That
    misconduct has to be of such a type that is . . . more than . . . what happened here. I mean
    here she was — through evidence, that she was talked to about phone calls. That she was
    talked to about the being late to work and that she was . . . told the consequences of what
    would happen if she was late to work and then there is no evidence that . . . ever happened
    again.
    When reviewing a judgment for errors appearing on the record, the inquiry is whether the
    decision conforms to law, is supported by competent evidence, and is neither arbitrary, capricious,
    nor unreasonable. Badawi v. Albin, 
    311 Neb. 603
    , 
    973 N.W.2d 714
     (2022). An appellate court, in
    reviewing a district court judgment for errors appearing on the record, will not substitute its factual
    findings for those of the district court where competent evidence supports those findings. 
    Id.
    The district court, in its order, found that the evidence in the record supported that Sheehy
    was repeatedly tardy from work, violated the company’s cell phone policy, was rude and
    disrespectful to customers, and that her testimony was not credible. In relation to those findings,
    the district court found:
    Sheehy’s actions viewed in their totality do not stem from poor judgment or an inability to
    cope with situations, and are not occasional incidents of nondeliberate failure to precisely
    follow established rules and procedures, but rather, her actions are the kind of deliberate
    misconduct that disqualifies an employee from receiving unemployment benefits.
    Sheehy argues that the district court’s factual findings do not support the legal definition
    of misconduct. In support of that argument, Sheehy cites to Smith v. Sorenson, 
    222 Neb. 599
    , 603,
    
    386 N.W.2d 5
    , 8 (1986), for the proposition that “[g]enerally, a single act is not sufficient to fall
    within the definition of ‘misconduct’; nor is a series of acts, for example, if the employer tolerated
    those actions without warning the employee of possible consequences.” But, following our review
    of the record, we do not see this case as an isolated incident or as falling into the category of a
    series of actions by Sheehy which were tolerated by Print Express without warning. Instead, we
    find that the district court’s extensive factual findings are supported by competent evidence and
    that those factual findings comport with the law in that they support a finding of misconduct as
    -7-
    that term has been defined. As a result, we find no error on the record and affirm the decision of
    the district court.
    CONCLUSION
    For the reasons stated herein, we affirm the district court’s order.
    AFFIRMED.
    -8-