IN THE SUPREME COURT
STATE OF NORTH DAKOTA
| Janis Schweitzer, |
| Petitioner/Appellant, Supreme Ct. No. 20080071 |
| v. District Ct. No. 07-C-00159 |
| Job Service North Dakota, |
| Respondent/Appellee. |
| and |
| LM Glasfiber (ND) Inc., |
| Respondent. |
APPEAL FROM THE DISTRICT COURT
GRAND FORKS COUNTY, NORTH DAKOTA
NORTHEAST CENTRAL JUDICIAL DISTRICT
HONORABLE KAREN K. BRAATEN
BRIEF OF RESPONDENT/APPELLEE
JOB SERVICE NORTH DAKOTA
| State of North Dakota |
| Wayne Stenehjem |
| Attorney General |
| By: Michael Pitcher |
| Assistant Attorney General |
| State Bar ID No. 06369 |
| Office of Attorney General |
| 500 North 9th Street |
| Bismarck, ND 58501-4509 |
| Telephone (701) 328-3640 |
| Facsimile (701) 328-4300 |
| Attorneys for Job Service North Dakota. |
| TABLE OF CONTENTS |
| Table of Authorities iii |
| Statement of the Issues 1 |
| I. LM Glasfiber terminated Schweitzer's employment because Schweitzer contacted a temporary staffing agency and portrayed herself in a position of authority at LM Glasfiber in an attempt to get her brother hired with the company. Misconduct occurs when an employee disregards a standard of behavior which the employer has the right to expect of the employee and can include a single incident. Should this Court affirm the finding of misconduct by the referee? 1 |
| II. Whether Schweitzer is precluded from alleging the appeals referee failed to consider evidence of tape recorded conversations in a fair and impartial manner when Schweitzer did not raise the issue in her specifications of errors or at the district court? 1 |
| III. During cross-examination of LM Glasfiber's representatives, Schweitzer referred to recorded conversations she had with them. These conversations were described on the record and were not contested. Schweitzer asked the referee where she should send the recordings, and the referee said he did not need them. Schweitzer did not object and agreed the hearing could be closed. Did the referee consider all the evidence in a fair and impartial manner? 1 |
| Statement of the Case 1 |
| Statement of the Facts 2 |
| Law and Argument 4 |
| I. The Court's review of Job Service's decision is limited 4 |
| II. Schweitzer's Actions Constitute Misconduct 5 |
| A. Job Service's findings of fact sustain the finding of misconduct 6 |
| B. Job Service's findings of fact are supported by the preponderance of the evidence 10 |
| C. Public policy supports Job Service's decision 11 |
| III. Schweitzer was provided a fair and impartial hearing 11 |
| A. Schweitzer waived this argument by not arguing it at the district court 12 |
| B. The appeals referee did not abuse his discretion in not admitting the tape recordings into evidence 14 |
| Conclusion 16 |
| TABLE OF AUTHORITIES |
| Cases |
| Barnes County v. Garrison Diversion Conservancy Dist., 312 N.W.2d 20 (N.D. 1981) 5 |
| Blueshield v. Job Service North Dakota, 392 N.W.2d 70 (N.D. 1986) 8, 9 |
| Bottineau County Water Res. Dist. v. N.D. Wildlife Soc'y, 424 N.W.2d 894 (N.D. 1988) 5 |
| Boynton Cab Co. v. Neubeck, 296 N.W. 636 (Wis. 1941) 6 |
| Christenson v. Job Service North Dakota, 399 N.W.2d 300 (N.D. 1987) 13 |
| Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401 (N.D. 1994) 14 |
| Johnson v. Job Service North Dakota, 1999 ND 42, 590 N.W.2d 877 8, 10 |
| Knudson v. Dir., N.D. Dep't of Transp., 530 N.W.2d 313 (N.D. 1995) 14 |
| Kryzsko v. Ramsey County Soc. Servs., 2000 ND 43, 607 N.W.2d 237 4 |
| Lovgren v. Job Service North Dakota, 515 N.W.2d 143 (N.D. 1994) 9, 10 |
| Marion v. Job Service North Dakota, 470 N.W.2d 609 (N.D. 1991) 6 |
| Medcenter One, Inc. v. Job Service North Dakota, 410 N.W.2d 521 (N.D. 1987) 6 |
| Messer v. Bender, 1997 ND 103, 564 N.W.2d 291 13 |
| N.D. Real Estate Comm'n v. Boschee, 347 N.W.2d 331 (N.D. 1984) 5 |
| Nagel v. City of Bismarck, 2004 ND 9, 673 N.W.2d 267 14 |
| Neubauer v. Job Service North Dakota, 512 N.W.2d 428 (N.D. 1994) 6 |
| Otto v. Job Service North Dakota, 390 N.W.2d 550 (N.D. 1986) 10 |
| Perske v. Job Service North Dakota, 336 N.W.2d 146 (N.D. 1983) 5-6 |
| ProServe Corp. v. Rainey, 536 N.W.2d 373 (N.D. 1995) 8 |
| Schadler v. Job Service North Dakota, 361 N.W.2d 254 (N.D. 1985) 5, 8 |
| Skjonsby Truck Line, Inc. v. Elkin, 325 N.W.2d 271 (N.D. 1982) 13 |
| Sonterre v. Job Service North Dakota, 379 N.W.2d 281 (N.D. 1985) 4-5, 10 |
| Stalcup v. Job Service North Dakota, 1999 ND 67, 592 N.W.2d 549 8 |
| State v. Whalen, 520 N.W.2d 830 (N.D. 1994) 14 |
| Steele v. Job Service North Dakota, 445 N.W.2d 635 (N.D. 1989) 5, 6 |
| Tehven v. Job Service North Dakota, 488 N.W.2d 48 (N.D. 1992) 8 |
| Turnbow v. Job Service North Dakota, 479 N.W.2d 827 (N.D. 1992) 5 |
| Williams County Soc. Servs. Bd. v. Falcon, 367 N.W.2d 170 (N.D. 1985) 13 |
| Yardville Supply Co. v. Bd. of Review, Dep't of Labor, 554 A.2d 1337 (N.J. 1989) 11 |
| Statutes and other Authorities |
| N.D.C.C. § 28-32-35 14 |
| N.D.C.C. § 28-32-46 4 |
| N.D.C.C. § 52-01-05 11 |
| N.D.C.C. § 52-06-02(2) 5 |
| N.D.C.C. § 52-06-19 2 |
| 5 Am.Jur.2d Appellate Review § 160 (1995) 13 |
STATEMENT OF THE ISSUES
I. LM Glasfiber terminated Schweitzer's employment because Schweitzer contacted a temporary staffing agency and portrayed herself in a position of authority at LM Glasfiber in an attempt to get her brother hired with the company. Misconduct occurs when an employee disregards a standard of behavior which the employer has the right to expect of the employee and can include a single incident. Should this Court affirm the finding of misconduct by the referee?
II. Whether Schweitzer is precluded from alleging the appeals referee failed to consider evidence of tape recorded conversations in a fair and impartial manner when Schweitzer did not raise the issue in her specifications of errors or at the district court?
III. During cross-examination of LM Glasfiber's representatives, Schweitzer referred to recorded conversations she had with them. These conversations were described on the record and were not contested. Schweitzer asked the referee where she should send the recordings, and the referee said he did not need them. Schweitzer did not object and agreed the hearing could be closed. Did the referee consider all the evidence in a fair and impartial manner?
STATEMENT OF THE CASE
Crystal Schweitzer (Schweitzer) appeals the decision of Job Service North Dakota (Job Service) denying her unemployment benefits because she was discharged from her employment with LM Glasfiber (ND) Inc. (LM Glasfiber), for reasons constituting misconduct.
Schweitzer was discharged from her position as a facilities associate at LM Glasfiber on January 18, 2008. C.R. 55. Schweitzer subsequently filed a claim for unemployment benefits with Job Service. C.R. 1. Job Service determined Schweitzer was discharged from her employment for reasons that constitute misconduct so as to disqualify her from job insurance benefits and, accordingly, denied her benefits. C.R. 21. Schweitzer appealed this decision, and the appeals referee noticed and held a hearing on March 4, 2008. C.R. 25, 28, 46-47. On March 19, 2008, the appeals referee issued a decision finding Schweitzer was discharged from her employment for reasons that constitute misconduct and thus disqualified her from receiving unemployment insurance benefits. C.R. 130-33.
Schweitzer appealed the referee's decision to Job Service acting as the Bureau. C.R. 151-57. The Bureau denied Schweitzer's request for review because there is no right of review when the appeals referee affirms the initial decision. C.R. 183; see N.D.C.C. § 52-06-19. Schweitzer subsequently filed a Petition for Judicial Review of the Job Service Decision. C.R. 184-95.
On October 14, 2008, the district court issued its Memorandum Decision and Order Affirming Job Service Decision, concluding that Schweitzer was discharged from her employment for reasons that constitute disqualifying misconduct. App. 18. A Judgment affirming the decision of Job Service was entered on October 22, 2008. App. 8. It is from that Judgment which Schweitzer appeals. App. 5.
STATEMENT OF THE FACTS
Schweitzer began work at LM Glasfiber as a full-time, facilities associate in February 2005. C.R. 65. As a facilities associate she was responsible for performing routine janitorial duties on the plant premises. C.R. 55.
LM Glasfiber maintains its own staff of permanent employees who are hired internally; however, on occasion LM Glasfiber hires temporary employees through a staffing agency, Express Personnel Services ("Express"). C.R. 56-57, 63. LM Glasfiber's Human Resources department is responsible for all hires whether permanent or temporary. C.R. 63. Rick Sandwick (Sandwick), and in his absence, Tricia Weber handles all of LM Glasfiber's temporary staffing needs through Express Personnel Services. C.R. 40, 63-64, 84-85.
LM Glasfiber's hierarchy of authority included Team Leads, Supervisors, and Managers. Team Leads, Supervisors and Managers have no authority to make hiring decisions and are not authorized to contact the temporary staffing agency to request new employees. C.R. 63, 70, 86. Schweitzer believed she was a Team Lead and had authority over a team of 4-5 temporary employees. C.R. 96. She testified she could tell them when to take breaks and where they should be sweeping on the plant floor. C.R. 95, 131. However, Schweitzer recognized she was not an official Team Lead, receiving no pay increase or a change in her paper work. C.R. 95.
The event that led to Schweitzer's termination stemmed from a conversation Schweitzer had with Express on Friday, December 14, 2007. On that day, Schweitzer contacted Alysa Haugen (Haugen), Staffing Coordinator at Express. Schweitzer told Haugen she was a supervisor at LM Glasfiber and LM Glasfiber had an opening on the maintenance (cleaning) team. C.R. 15, 57. Schweitzer also stated she wanted to get her brother (Jodi Schweitzer) hired through the Express process. C.R. 15, 57. Haugen told Schweitzer she was unaware of any openings and she is only contacted by Sandwick about positions being filled. Id.
Schweitzer erroneously believed there was an opening in the maintenance department, due to a temporary employee Thomas Cogsdell allegedly being permanently hired. C.R. 15, 99-100. However, LM Glasfiber was not trying to fill the vacant position. C.R. 71. In fact, the Human Resources department had not been contacted about an opening in the maintenance department. C.R. 61. At no time did Schweitzer contact her supervisor, Gerald Muizelaar (Muizelaar), concerning her brother's desire to be employed with LM Glasfiber. C.R. 77, 85, 100. During the hearing, Schweitzer acknowledged that she was not directed by anyone at LM Glasfiber to contact Express Personnel Services. C.R. 109. She also testified her employer's records do not indicate she was a "lead," and she was not being paid as one. C.R. 95, 108.
On December 17, 2007, Sandwick, LM Glasfiber's human resources generalist, received an e-mail from Haugen documenting the call from Schweitzer. Sandwick called Haugen several times to verify the details of her conversation with Schweitzer and had Haugen sign a copy of the e-mail message. C.R. 81-82, 131.
Following the email, several attempts to set up a meeting between Schweitzer and LM Glasfiber personnel to discuss the matter failed. On January 18, 2008, Dan Gordon (Gordon), LM Glasfiber's Human Resources Director, sent a letter to Schweitzer informing her that her employment with LM Glasfiber had been terminated after an internal review of the matter.
LAW AND ARGUMENT
I. The Court's review of Job Service's decision is limited.
This Court's review of Job Service decisions is governed by N.D.C.C. § 28-32-46, which requires Job Service's decision be affirmed if the findings of fact are supported by a preponderance of the evidence, the conclusions of law are supported by the findings of fact, the decision is in accordance with the law and does not violate the claimant's constitutional rights, and the procedures did not deprive the claimant of a fair hearing. See Kryzsko v. Ramsey County Soc. Servs., 2000 ND 43, ¶ 5, 607 N.W.2d 237. The Court is required to affirm Job Service's decision unless one of the enumerated reasons listed in § 28-32-46 is found. This Court has explained the standard it and district courts follow when reviewing administrative agency decisions:"(1) [W]e do not make independent findings of fact or substitute our judgment for that of the agency, but determine only whether a reasoning mind could have reasonably determined that the factual conclusions were supported by the weight of the evidence; (2) we exercise restraint when we review administrative agency findings; (3) it is not the function of the judiciary to act as a super board when reviewing administrative agency determinations; and (4) we will not substitute our judgment for that of qualified experts in the administrative agencies."Sonterre v. Job Service North Dakota, 379 N.W.2d 281, 283-84 (N.D. 1985) (quoting N.D. Real Estate Comm'n v. Boschee, 347 N.W.2d 331, 335 (N.D. 1984) (citations omitted)). Further, "[b]ecause of the doctrine of separation of powers, all courts must exercise restraint in reviewing administrative determinations." Barnes County v. Garrison Diversion Conservancy Dist., 312 N.W.2d 20, 25 (N.D. 1981) (citation omitted). "Ordinarily, determinations of an administrative body are presumed to be correct and valid." Id.; see also Turnbow v. Job Service North Dakota, 479 N.W.2d 827, 828 (N.D. 1992). An agency is also afforded a "reasonable range of informed discretion in the interpretation and application of its own rules." Bottineau County Water Res. Dist. v. N.D. Wildlife Soc'y, 424 N.W.2d 894, 900 (N.D. 1988).
II. Schweitzer's Actions Constitute Misconduct.
North Dakota unemployment compensation law provides an individual shall be disqualified from receiving benefits if the individual is discharged for misconduct in connection with employment. N.D.C.C. § 52-06-02(2). The employer has the burden to establish by a preponderance of the evidence that the employee's acts constitute misconduct which results in a disqualification from benefits. Schadler v. Job Service North Dakota, 361 N.W.2d 254, 257 (N.D. 1985). Misconduct which would be grounds for dismissal is not necessarily grounds for disqualification from unemployment compensation benefits. Steele v. Job Service North Dakota, 445 N.W.2d 635, 642 (N.D. 1989); Perske v. Job Service North Dakota, 336 N.W.2d 146, 148-49 (N.D. 1983).
The term "misconduct" is not defined in the North Dakota Unemployment Compensation statutes. This Court has adopted the following definition of misconduct:
"[Misconduct] is limited to conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violations or disregard 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, 336 N.W.2d at 148-49 (quoting Boynton Cab Co. v. Neubeck, 296 N.W. 636, 640 (Wis. 1941)).
Misconduct is a mixed question of fact and law. Steele, 445 N.W.2d at 642; Marion v. Job Service North Dakota, 470 N.W.2d 609, 611-12 (N.D. 1991); Medcenter One, Inc. v. Job Service North Dakota, 410 N.W.2d 521, 524 (N.D. 1987). "Thus, for the agency's decision to be upheld, the evidence must support its findings of fact which, in turn, must sustain its conclusion regarding misconduct." Medcenter One, 410 N.W.2d at 524. If confronted with disputed facts, deference is given to Job Service's factual conclusions and a reviewing court only ascertains whether a reasoning mind could have reasonably determined the factual conclusions were proven by a preponderance of the evidence. Neubauer v. Job Service North Dakota, 512 N.W.2d 428, 431 (N.D. 1994).
The record in this case contains sufficient evidence supporting Job Service's conclusion Schweitzer's conduct is misconduct within the Perske definition.
A. Job Service's findings of fact sustain the finding of misconduct.
Job Service found Schweitzer deliberately violated a standard of behavior she owed to LM Glasfiber as LM Glasfiber's employee when she contacted the staffing agency, with no authority or valid reason to do so, to discuss the hiring of her brother. C.R. 133. Schweitzer misrepresented her authority to the staffing representative and indicated that LM Glasfiber had an open maintenance position, which was untrue. C.R. 133. The referee further found that Schweitzer had no authority to discuss hiring for the company, and had no authority to direct the staffing representative's actions. Id.
Schweitzer argues she did not advise the representative she was a supervisor but only indicated she was a "lead." C.R. 131. However, the record shows Schweitzer knew she was not in an official lead position at LM Glasfiber. C.R. 108. Regardless of the characterization of her position, Schweitzer misrepresented her position to the staffing service representative and attempted to portray herself in a position of authority. Beyond the false impression Schweitzer gave the staffing representative is the fact that team leads and supervisors do not have authority to make hiring decisions. Therefore, even assuming Schweitzer honestly believed she was a valid team lead, there is nothing in the record suggesting it was proper for her to attempt to act for the company in making hiring decisions. This is particularly true when one looks at the nature of Schweitzer's employment. Schweitzer was hired as a maintenance associate to sweep and do general janitorial duties in the plant. Additionally, all hiring decisions at LM Glasfiber went through Sandwick and the human resources department. Thus, Schweitzer's intentional conduct in contacting the temporary staffing agency demonstrated a willful disregard of her employer's interest.
That Schweitzer made a call to the temporary staffing agency attempting to get her brother hired is undisputed and that LM Glasfiber has the right to expect its employees not to act beyond the scope of their authority goes without saying. Schweitzer wantonly disregarded LM Glasfiber's interest by "misrepresenting her authority and entering an arena she had no business entering." C.R. 133. Schweitzer acted in complete disregard of the standards of behavior LM Glasfiber has the right to expect of its employees.
That Schweitzer's actions all occurred on one day does not change the fact that her behavior constituted misconduct. This Court has repeatedly held that an isolated incident may constitute misconduct. See Stalcup v. Job Service North Dakota, 1999 ND 67, ¶ 24, 592 N.W.2d 549 (single incident of testing positive for marijuana was misconduct); ProServe Corp. v. Rainey, 536 N.W.2d 373, 379 (N.D. 1995) (single incident of fighting held to be disqualifying misconduct); Johnson v. Job Service North Dakota, 1999 ND 42, ¶ 21, 590 N.W.2d 877 (executive director's refusal to answer questions at meeting of board of directors concerning grievance filed against her was misconduct); Tehven v. Job Service North Dakota, 488 N.W.2d 48, 52 (N.D. 1992) (single incident of employee violating employer's confidentiality policy constitutes misconduct); Blueshield v. Job Service North Dakota, 392 N.W.2d 70, 74-75 (N.D. 1986) (employee's single incident involving physical force against a co-worker held misconduct); Schadler v. Job Service North Dakota, 361 N.W.2d 254, 257 (N.D. 1985) (employee's single incident of failing to follow policy and call in sick held misconduct). "Whether or not an isolated incident constitutes 'misconduct' depends upon the facts and circumstances of each individual case." Blueshield, 392 N.W.2d at 74. The nature of the employee's work, including the harm done to the employer by the misconduct, should be considered in determining whether or not the particular action constituted misconduct. Schadler, 361 N.W.2d at 257. Not just the harm that occurred to the employer should be considered, but also the harm that might have occurred. Tehven, 488 N.W.2d at 52; Blueshield, 392 N.W.2d at 75 (Levine, J., concurring).
Schweitzer argues that her actions are not grounds for disqualifying misconduct because she did not violate an explicit company policy. She cites to the fact that LM Glasfiber had no direct rule in the handbook against employees calling a staffing service. C.R. 85. However, every possible form of misconduct need not be written in a handbook for it to be considered disqualifying misconduct against the employer's interest. For example, if an employee were to physically assault his employer, it would be considered misconduct regardless of whether it was in the company handbook. See e.g., Blueshield, 392 N.W.2d at 74 ("We do not believe it can be seriously questioned that a single incident involving an employee's use of physical force also can be of critical importance rising to the level of misconduct."). Likewise an employee falsifying company records would be considered misconduct regardless of whether it was a one time incident or if there was an explicit policy of the company against it. See e.g., Lovgren v. Job Service North Dakota, 515 N.W.2d 143, 146 (N.D. 1994) ("It is also uncontested that falsification of the tally sheets would be a serious offense."). Similarly, in this case, Schweitzer's deliberate attempt to enter the arena of hiring personnel for LM Glasfiber, knowing full well she had no authority to do so, amounts to an intentional disregard of her employer's interest, as well as of her own duties and obligations. When asked to describe what she believed the duties of a team lead were, Schweitzer responded, "I believe a Team Lead should guide and direct who they are leading and to guide and direct their breaks, any questions they have, also I believe that, well, that's pretty much it." C.R. 108. There is nothing in the record to suggest Schweitzer believed her role was to hire employees. Additionally, the record shows Schweitzer was not involved in determining whether the company wished to add new employees to its work force. Schweitzer's duties, thus, did not include hiring new employees or recommending new employees to be hired.
For a janitorial employee to be calling a staffing agency in an attempt to get a family member hired, without direction to do so, is not only far below what LM Glasfiber expected of its employees but is far below the reasonable standard any similarly situated employer would expect of its employees. Schweitzer's actions constitute disqualifying misconduct.
B. Job Service's findings of fact are supported by the preponderance of the evidence.
As finder of fact, Job Service resolves conflicting testimony and determines credibility of witnesses. Lovgren, 515 N.W.2d at 145; Otto v. Job Service North Dakota, 390 N.W.2d 550, 553 (N.D. 1986) (Vande Walle, J., concurring). "If confronted with disputed facts, [courts] defer to Job Service's factual conclusions and ascertain only whether a reasoning mind could have reasonably determined the factual conclusions were proven by a preponderance of the evidence." Johnson, 1999 ND 42, ¶ 12, 590 N.W.2d 877. This Court's role is not to make independent findings of fact or substitute its judgment for that of Job Service. Sonterre, 379 N.W.2d at 283. In the present case, Job Service resolved the conflicting evidence and accepted the testimony offered on behalf of LM Glasfiber.
Job Service made the factual determination that Schweitzer "telephoned the staffing service when she had no authority to do so." C.R. 133. The referee also found that "[t]here was no indication by the employer that the vacancy within the maintenance department was going to be advertised or filled; thus, [Schweitzer's] statement to the staffing service representative was not true." Id. The referee further explained, Schweitzer's misconduct was compounded by the fact she directed the staffing service representative to "begin the process" of getting her brother hired so he could start employment. Id. By these actions the hearing officer reasonably found Schweitzer was acting outside the scope of her position, regardless of whether she portrayed herself as a supervisor or team lead. Schweitzer deliberately embarked upon a course of action which she knew, or at least reasonably should have known, would jeopardize her employment.
Schweitzer's explanation that she told Haugen, the Express representative, she was a "lead" and that she did not represent herself as a supervisor was implicitly viewed as being far reaching and was not accepted as true and accurate. LM Glasfiber's human resource director spoke to the staffing service representative on at least three occasions to verify that her account of the matter was accurate, and the hearing officer found his testimony credible. C.R. 133. The fact LM Glasfiber had the Express staffing representative sign her statement shows it is entitled to more deference. C.R. 131. This is true because there is no motive for the Express representative to fabricate what she heard.
Job Service reasonably found that Schweitzer deliberately misrepresented herself to be in a position of authority at LM Glasfiber and attempted to improperly get her brother hired. No reasonable employee in Schweitzer's position would reasonably believe she would have authority to make hiring decisions. This is particularly true when LM Glasfiber did not have an open position it was attempting to fill.
C. Public policy supports Job Service's decision.
The purpose of North Dakota's unemployment compensation law is to provide benefits to those who "become unemployed through no fault of their own." N.D.C.C. § 52-01-05. Unemployment because one acts contrary to the employer's interests is unemployment through the individual's own fault. Schweitzer's own actions caused her unemployment. The policy of North Dakota's unemployment compensation law, therefore, requires Schweitzer be denied unemployment benefits. "The basic policy of the law is advanced as well when benefits are denied in improper cases as when they are allowed in proper cases." Yardville Supply Co. v. Bd. of Review, Dep't of Labor, 554 A.2d 1337, 1338 (N.J. 1989). This is an improper case to award benefits because Schweitzer's actions constituted misconduct.
II. Schweitzer was provided a fair and impartial hearing.
During cross examination of LM Glasfiber employees, Schweitzer referred to tape recorded conversations she had maintained. Schweitzer's questions described the recorded conversations and LM Glasfiber's employees acknowledged the conversations took place. Near the close of the hearing the following dialogue took place:
Mr. Schnase: Okay, then I don't have any other questions at this point for the parties. Anything else for the record Ms. Schweitzer before we close?
Ms. Schweitzer: No, I was wondering where do I send these tapes to for
Mr. Schnase: I don't need those tapes Ma'am.
Ms. Schweitzer: Okay.
Mr. Schnase: There's no place to send them right now.
Ms. Schweitzer: Okay.
Mr. Schnase: Any objection if I close the record?
Ms. Schweitzer: No.
Mr. Schnase: How about you Mr. Gordon anything further then?
Mr. Gordon: No, objections and nothing further.
Mr. Schnase: And no objections to closing the record?
Ms. Schweitzer: No.
Mr. Schnase: Mr. Gordon, no objections?
Mr. Gordon: No objections.
C.R. 111. Schweitzer alleges she was denied a fair hearing because the referee failed to admit or listen to the tape recordings. The referee did not abuse his discretion in not admitting the tape recordings into evidence because (1) Schweitzer did not raise this argument below and (2) because the tape recordings were not offered into evidence, nor were they crucial to the dispositive issue of misconduct.
A. Schweitzer waived this argument by not arguing it at the district court.
"It is well settled that one of the guidelines for an appeal on any issue or contention is that the issue on appeal was adequately raised in the lower court." Williams County Soc. Servs. Bd. v. Falcon, 367 N.W.2d 170, 176 (N.D. 1985). See also Skjonsby Truck Line, Inc. v. Elkin, 325 N.W.2d 271, 275 (N.D. 1982) (general rule "also applies to consideration of issues on appeal from administrative agency proceedings.") This Court's decision in Christenson v. Job Service North Dakota, 399 N.W.2d 300 (N.D. 1987) is instructive on the matter of preserving issues.
In Christenson, Barbara Christenson applied for unemployment benefits after quitting her job. Id. at 301. Christenson's application was denied on the grounds she had voluntarily left her employment. Id. Christenson appealed the administrative decision to the district court and argued she was entitled to benefits on two separate grounds. Id.
One of the grounds relied upon by Christenson on appeal was that she was entitled to benefits because she resigned in the face of certain discharge. Id. This Court declined to consider this argument on appeal, explaining that: "[Christenson] did not raise this matter before Job Service as a ground upon which she was claiming unemployment benefits. Consequently, she has not preserved this issue for appeal." Id. at 303. See also Messer v. Bender, 1997 ND 103, ¶¶ 10, 11, 564 N.W.2d 291 ("'[I]t is unfair to allow a party to choose to remain silent in the trial court in the face of error, taking a chance on a favorable outcome, and subsequently assert error on appeal if the outcome in the trial court is unfavorable.'") (quoting 5 Am.Jur.2d Appellate Review § 160 (1995))
In this case, Schweitzer did not allege in her specifications of errors or argue in her district court brief that she was denied due process because the referee refused to consider or admit the tape recordings. While Schweitzer's specifications of errors do allege errors based on the referee's failure to consider certain evidence, the evidence alleged as not being considered did not include the tape recordings. See App. 2, Doc. 1. On appeal to the district court, Schweitzer's evidentiary argument referred to the following: 1) a written and signed statement from Jodi Schweitzer (Schweitzer's brother); 2) testimony given by Joleen Bermeister; 3) testimony given by Dan Berry, and 4) Schweitzer's Alltel telephone records. See App. 2, Doc. 9, pp. 15-16. The brief is silent as to the tape recordings.
Additionally, Schweitzer did not allege at the administrative hearing that the referee's failure to listen to the tape recordings was improper and that it violated her due process rights. Therefore, Schweitzer is barred from raising this argument for the first time on appeal.
B. The appeals referee did not abuse his discretion in not admitting the tape recordings into evidence.
Even if this Court finds Schweitzer properly raised this issue, this Court should still affirm the referee's decision because the referee considered all the evidence in a fair and impartial manner.
Appeals Referees have discretion to "regulate the course of [a] hearing." N.D.C.C. § 28-32-35. This discretion includes the introduction of evidence. See Knudson v. Dir., N.D. Dep't of Transp., 530 N.W.2d 313, 316 (N.D. 1995). An appellate court reviews an evidentiary ruling by an administrative agency hearing officer under an abuse of discretion standard. Id.; Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401, 441 (N.D. 1994); State v. Whalen, 520 N.W.2d 830 (N.D. 1994). A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or capricious manner. Nagel v. City of Bismarck, 2004 ND 9, ¶ 10, 673 N.W.2d 267.
Schweitzer referred to tape recorded conversations during the hearing. The content of the each tape recording was described in the record. The hearing officer, therefore, already knew what was on the tape recordings. Thus, there was no need for him to listen to the recordings, and Schweitzer's argument that the hearing officer rejected the evidence is erroneous. Additionally, Schweitzer did not offer the tape recordings into evidence. Schweitzer simply asked the referee where she was supposed to send the tapes but did not offer them into evidence. In fact, when the referee told Schweitzer he did not need the tapes, Schweitzer did not complain or argue the tape recordings were essential to her case or that it was vital for the recordings to be included in the record. C.R. 111.
Further, Schweitzer's description of the tape recorded conversations was not contested by LM Glasfiber. In fact, LM Glasfiber personnel Muizelaar and Gordon acknowledged the conversations Schweitzer identified as being recorded did take place. Therefore, there is no dispute as to the contents of the recordings. See C.R. 72, ll. 1-12 (Muizelaar, Schweitzer's supervisor, acknowledging LM Glasfiber postponed a scheduled meeting with Schweitzer to discuss the misconduct); C.R. 72, ll. 14-33; C.R. 73, ll. 1-8; C.R. 80, ll. 5-14 (voice recording regarding whether plant director Bill Berta would be present at the meeting to discuss Schweitzer's misconduct); C.R. 73, ll. 9-21, C.R. 98, ll. 15-18 (Muizelaar acknowledging he had a conversation with Schweitzer regarding Production Supervisor Pam Hune asking Schweitzer to help out with the temporary staff employees in an unofficial lead capacity).
Additionally, none of the recorded conversations referenced by Schweitzer refer to the dispositive issue on appeal regarding whether Schweitzer misrepresented her authority to Express in an effort to get her brother hired. Therefore, the evidence was not crucial to the referee's decision.
The hearing officer adequately addressed all the evidence and as the finder of fact made an appropriate determination based on a preponderance of the evidence. Because the findings of fact support Job Service's conclusions of law, Job Service properly found Schweitzer's actions constitute disqualifying misconduct.
CONCLUSION
Job Service respectfully requests this Court affirm its decision Crystal Schweitzer was discharged from her employment for reasons that constitute disqualifying misconduct.
Dated this day of March, 2009.
| State of North Dakota |
| Wayne Stenehjem |
| Attorney General |
| By: __ |
| Michael Pitcher |
| Assistant Attorney General |
| State Bar ID No. 06369 |
| Office of Attorney General |
| 500 North 9th Street |
| Bismarck, ND 58501-4509 Telephone (701) 328-3640 |
| Facsimile (701) 328-4300 |
| Attorneys for Job Service North Dakota. |