Villwock v. State of Nev. Dept. of Employment Security Div. ( 2013 )

 standard of conduct, and thus, constituted misconduct that disqualified
him from receiving unemployment benefits. The Employment Security
Division's Board of Review declined further review of this determination
and appellant sought judicial review in the district court, which denied the
petition. This appeal followed. On appeal, appellant argues that the
referee erred in finding that his termination was for misconduct because
his employer knew that he had a health condition that should have
relieved him from driving that class of commercial truck, but appellant felt
he "had no choice but to comply" with the directive to make the delivery
out of fear of keeping his job.
In reviewing an administrative decision in an unemployment
benefits matter, this court, like the district court, determines whether the
board acted arbitrarily or capriciously. NRS 233B.135(3)(f); McCracken v.
Fancy, 98 Nev. 30, 31, 639 P.2d 552, 553 (1982). Judicial review, whether
by the district court or this court, is limited to the record before the
administrative agency, NRS 233B.135(1)(b), and the administrative
decision will not be disturbed if it is supported by substantial evidence in
the record. Leeson v. Basic Refractories, 101 Nev. 384, 385-86, 705 P.2d
137, 138 (1985). "Substantial evidence is that which a reasonable mind
could find adequate to support a conclusion." Kolnik v. Nev. Emp't Sec.
Dep't, 112 Nev. 11, 16, 908 P.2d 726, 729 (1996).
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, Emp't 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
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substantial disregard of duties" (internal quotation omitted)); see also
Emp't Sec. Dep't of Nev. v. Verrati, 104 Nev. 302, 304, 756 P.2d 1196, 1997-
98 (1988).
Having reviewed appellant's arguments and the record on
appeal, we conclude that substantial evidence supports the appeals
referee's finding that appellant was discharged for reasons constituting
misconduct, and thereby, disqualified from receiving unemployment
benefits. Notably, the appeals referee considered appellant's testimony,
and made the factual determination that appellant had not informed his
employer that his commercial driver's license had expired. The
administrative record supports this finding. See Lellis v. Archie, 89 Nev.
550, 554, 516 P.2d 469, 471 (1973) (recognizing that this court will not
substitute its judgment for that of the referee on issues of credibility or the
weight of the evidence).
Appellant's failures to maintain the necessary driver's license
for his employment, and to notify his employer that he did not possess a
valid license for the truck he was instructed to drive, demonstrates a
disregard of reasonable standards of conduct. See Richardson v. Miss.
Emp't Sec. Comm'n, 593 So. 2d 31, 34-35 (Miss. 1992) (concluding that the
failure to maintain a driver's license required as a condition of
employment amounted to misconduct disqualifying the appellant from
receiving unemployment benefits); see also Garman, 102 Nev. at 565, 729
P.2d at 1336 (explaining that when misconduct is a mixed question of law
and fact, the agency's determination must be given deference similar to
that given to findings of fact when supported by substantial evidence).
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Accordingly, the Board's decision to affirm the appeals referee's ruling was
not arbitrary or capricious, and thus, we affirm the district court's denial
of appellant's petition for judicial review.
It is so ORDERED.
Gibbons
Douglw
' J
Saitta
cc: Hon. Douglas W. Herndon, District Judge
Douglas Villwock
State of Nevada/DETR
Eighth District Court Clerk
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