Opinion
No. 4-774 / 04-0179
Filed December 22, 2004
Appeal from the Iowa District Court for Polk County, Carla T. Schemmel, Judge.
Bonnie Kern appeals from the district court's ruling on judicial review affirming the Employment Appeal Board's decision denying her claim for unemployment benefits. AFFIRMED.
Ann Holden Kendell of Brown, Winick, Graves, Gross, Baskerville Schoenebaum, PLC, Des Moines, for appellant.
Anita M. Garrison, Des Moines, for appellee.
Considered by Sackett, C.J., and Mahan and Hecht, JJ.
Bonnie Kern appeals from the district court's ruling on judicial review affirming the Employment Appeal Board's decision denying her claim for unemployment benefits. We affirm.
I. Background Facts and Proceedings.
Bonnie Kern was employed as an advocate and investigator for Iowa Protection and Advocacy Services. She was called by her supervisor, Sylvia Piper, to discuss a "Memorandum of Deficiency" on December 17, 2002. The memorandum outlined four aspects of Kern's performance Piper deemed deficient. Also present at the meeting was Marsha Gelina, an experienced advocate whom Piper had decided should work prospectively with Kern to correct the perceived performance deficiencies.
Piper initially read the memorandum aloud during the December 17 meeting. She then gave a copy of the document to Kern and invited her to review it in private if she wished. In addition to outlining the perceived deficiencies, the memorandum stated "these deficiencies are serious; several which constitute immediate dismissal per the Iowa PA Personnel Policies. Termination will be necessary if improvement is not evident by January 24th." The memorandum disclosed that Kern's employment duties were to be curtailed while she attempted to eliminate the deficiencies. The memorandum included a signature block where Kern was directed to acknowledge "[t]his Memorandum of Deficiency has been discussed with me and I have received a copy." Below the space designated for Kern's signature was a space in which she could comment on the memorandum, presumably to respond to the alleged deficiencies. There is no evidence in the record tending to establish that Kern was told she must sign the memorandum in order to remain employed. Substantial evidence in the record would support a finding that Piper told Kern during the meeting that she was a good and dedicated advocate; and that Piper informed Kern of her desire to keep Kern as an employee.
After a few minutes of private review, Kern returned to the discussion and stated that she could not sign the memorandum, and that she would pack up her things and leave. As she returned to her desk to retrieve her belongings, Gelina followed her and commented that she wished Kern would think about her decision. Another co-worker inquired of Kern as to why she was retrieving her belongings to which Kern replied that she had been fired. Gelina testified she promptly controverted this statement by Kern and informed Kern that she had not been fired.
When Kern subsequently applied for unemployment insurance benefits, those benefits were denied because the Iowa Workforce Development found Kern voluntarily quit the job without good cause attributable to the employer. The January 27, 2003 initial decision on eligibility for benefits concluded that a voluntary quit after being reprimanded is presumed to be without good cause, and hence Kern was ineligible. Kern requested a hearing before an administrative law judge (ALJ), who affirmed the agency's initial decision on February 29, 2003.
Kern filed a timely appeal which was heard before the Employment Appeal Board on May 20th. A majority of the Board affirmed the ALJ's decision denying benefits on the ground that Kern had voluntarily quit the employment. Kern sought judicial review of the Board's decision and a hearing before the district court was held on November 14, 2003. The district court affirmed the agency decision that Kern voluntarily quit the job without good cause attributable to her employer. Kern now appeals, contending the district court erred in affirming the agency determination because the employer did not meet its burden to establish that she voluntarily quit, and because the agency acted in an arbitrary and capricious manner in this case.
II. Standard and Scope of Review.
Review of an agency determination is for errors at law. Cobb v. Employment Appeal Bd., 506 N.W.2d 445, 447 (Iowa 1993). As the district court is itself acting in an appellate capacity to correct errors of law on the part of the agency, on appeal "we apply the standards of Iowa Code section 17A.19(8) to the agency action to determine whether our conclusions are the same as those of the district court." Swanson v. Employment Appeal Bd., 554 N.W.2d 294, 296 (Iowa Ct.App. 1996). An agency's findings of fact are binding on the court of appeals where such determinations "are clearly vested by a provision of law in the discretion of the agency." Iowa Code § 17A.19(10)( f) (2001); Mycogen Seeds v. Sands, 686 N.W.2d 457, 465 (Iowa 2004). The agency, "on the basis of facts found by the representative, shall determine whether or not the claim is valid . . . and whether any disqualification [under section 96.5] shall be imposed." Iowa Code § 96.6(2). As the responsibility to make the factual determinations in this case is clearly vested in the agency by section 96.6, on review we must affirm the factual determinations made by the agency if supported by substantial evidence. Mycogen Seeds, 686 N.W.2d at 465. Evidence is substantial if a reasonable mind would accept it as adequate to reach a finding. Swanson, 554 N.W.2d at 296. An agency acts in an arbitrary and capricious manner if its decision is clearly against the weight of the evidence or otherwise unreasonable. See Iowa Code § 17A(19)(f), (i), (m), (n).
III. Discussion.
Iowa Code section 96.5(1) provides "[a]n individual shall be disqualified for benefits . . . if the individual has left work voluntarily without good cause attributable to the individual's employer. . . ." An employee voluntary quits her job only if she intends to quit and carries out that intent by some overt act. Peck v. Employment Appeal Bd., 492 N.W.2d 438, 440 (Iowa Ct.App. 1992). Accordingly it was the employer's burden in this case to prove Kern manifested her intent to quit by some overt act. See Iowa Code § 96.6(2) ("The employer has the burden of proving that the claimant is disqualified for benefits.").
We conclude substantial evidence supports the agency's finding that Kern intended to quit and manifested her intention in an overt manner. We also find substantial evidence in the record supporting the agency's finding that Iowa Protection and Advocacy Services did not mislead Kern to reasonably believe she had been dismissed. In fact Piper, Kern's supervisor, indicated during the discussion that she felt that Kern was a good and dedicated advocate and that she wished to keep Kern in her employ. Although Kern was asked to sign the memorandum, there is no evidence in the record tending to prove that she was told she must sign it if she wished to remain employed.
We also reject Kern's contention that the agency's decision was arbitrary and capricious. The plain language of the memorandum, when considered in context with the December 17 conversation between Kern, Piper and Gelina, would not mislead a reasonable person in Kern's position to believe she had been dismissed. The first paragraph of the memorandum indicates that the employer, while curtailing Kern's workload, intended Kern to remain employed at least until her performance would be reviewed on January 24, 2003. And although the memorandum indicated that several of Kern's deficiencies were serious and could justify "immediate dismissal per the Iowa PA Personnel Policies," no reasonable person in Kern's position could interpret the document and the employer's verbal communications as a contemporaneous termination. Not having been misled to reasonably believe she had been dismissed, Kern's statement that she could not sign the memorandum and that she would get her things and leave constituted substantial evidence of her intent supporting the agency's finding that Kern's separation was voluntary. Moreover, Kern's intent was overtly manifested when she actually gathered her possessions and left the office. Our determination that the agency did not act arbitrarily or capriciously is strongly influenced by substantial evidence tending to prove that Gelina, Kern's co-worker, asked Kern to reconsider her decision to leave and expressly informed Kern before she left that she had not been dismissed. Any confusion on Kern's part as to whether she had been terminated left the office that day was not the responsibility of her employer.