Opinion
No. 5-864 / 05-0139
Filed December 7, 2005
Appeal from the Iowa District Court for Black Hawk County, Stephen C. Clarke, Judge.
Petitioner appeals from a district court ruling that upheld the decision of the Employment Appeal Board denying her claim for unemployment compensation benefits. AFFIRMED.
Dave Nagle, Waterloo, for appellant.
Richard Autry, Des Moines, for appellee Board.
Mark Rolinger, Cedar Falls, for appellee employer.
Considered by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
Julie Patterson appeals from the district court ruling that upheld the decision of the Employment Appeal Board (Board) denying her claim for unemployment compensation benefits. We affirm the district court.
Patterson commenced employment with D L Subways, Inc. (Subway) on January 18, 2001. She served as the manager of a Subway store until August 11, 2003, when her employment was terminated.
The incident giving rise to Patterson's discharge occurred on July 30, 2003. On that day Mike Messer, a senior supervisor at Subway, conducted a routine visit to the store managed by Patterson. Messer discovered that on July 18 and 20 food had been found to be out of safe temperature range and there was no indication any corrective action was taken. This was not the first problem with food safety compliance at the store. On July 15 Patterson had been warned food safety procedures "are to be done by the book and any breach . . . that resulted in a food safety compliance issue would result in [her] termination."
Both hot and cold foods were to be served within certain safe temperature ranges. When food was discovered to be out of temperature range, certain corrective action was required, which included recording the condition and corrective action in a log.
During his visit with Patterson on July 30, Messer instructed her to meet with each of her assistant managers that same day and to make them fully aware of the correct procedures. Patterson worked on July 30 and 31, August 1 and 2, and August 4 through 6. Patterson then took vacation from August 7 through 10. During another visit by Messer on August 7, he discovered that on August 3 food temperatures were again out of range and no corrective action was taken.
According to Subway president Kevin Loy, Messer spoke with Patterson's assistant managers and "none of them admitted to or remembered [Patterson] having any meeting or discussion with them after 7/30 in regards to" the food temperature issues. Loy stated he met with Patterson on August 11, and "all she could say was that she was trying" to instruct the assistant managers. Patterson was terminated "for failure to comply with a supervisor's direct instruction on July 30th in regards to training and ensuring all assistant managers were fully aware of the temp-taking and disposal of any product out of temp range."
Patterson applied for unemployment benefits, but was found ineligible on the basis that she had been discharged for misconduct. See Iowa Code § 96.5(2)(a) (2003). Patterson appealed, and the matter proceeded to a contested hearing before an administrative law judge (ALJ). At the hearing Patterson admitted she had told Loy she was "trying," but asserted she had "repeatedly" trained her assistant managers on food safety procedures, both before and after July 30. The ALJ affirmed the decision denying benefits. The ALJ found Patterson had failed to follow the orders of a supervisor to instruct her employees regarding food safety policy and determined this failure constituted misconduct. Patterson appealed to the Board, which adopted and affirmed the ALJ's decision.
Patterson filed a petition for judicial review. She asserted the Board erred by attributing to her the negligent acts of her employees, and that she was in reality discharged for job performance issues rather than misconduct. The district court affirmed the Board's decision, finding it was supported by substantial evidence. This appeal followed.
Our review is for the correction of errors at law. Iowa R. App. P. 6.4. As the party challenging agency action, Patterson bears the burden of demonstrating the action's invalidity and resulting prejudice. Iowa Code § 17A.19(8)(a). This can be shown in a number of ways, including proof the action was legally erroneous or unsupported by substantial evidence in the record when that record is viewed as a whole. Id. § 17A.19(10). Evidence is substantial when the entirety of the record is sufficient to allow a reasonable and neutral person to reach the same conclusion as the agency. Id. § 17A.19(10)(f).
In this appeal, Patterson reasserts the issues she raised before the district court. In essence, she contends she was an otherwise good and capable employee who was terminated because she was unable to successfully train her employees, which is in and of itself insufficient to constitute misconduct. See Richers v. Iowa Dep't of Job Serv., 479 N.W.2d 308, 311 (Iowa 1991) (noting that because failure in good job performance as a result of inability is not volitional, it is not sufficiently culpable to be deemed misconduct).
The problem with Patterson's argument is that the basis for termination found by the Board was not her inability to train her employees or ensure their compliance with company policy, but her own volitional failure to follow an order given her by a supervisor. For the reasons which follow, we conclude the Board did not err in determining such failure was sufficient to establish misconduct.
The burden to establish misconduct is on the employer. Savage v. Employment Appeal Bd., 529 N.W.2d 640, 642 (Iowa Ct.App. 1995). Misconduct is a deliberate, intentional act or omission that constitutes "willful or wanton disregard of an employer's interest." Id. Misconduct can be shown by a deliberate violation or disregard of standards of behavior which the employer has the right to expect of employees, Iowa Admin. Code r. 871-24.32(1)(a), or "where an employee manifests an intent to disobey the reasonable instructions of his employer," Pierce v. Iowa Dep't of Job Serv., 425 N.W.2d 679, 680 (Iowa Ct.App. 1988). While termination must be based on a current act of misconduct, past acts and warnings can be used to determine the magnitude of the current act. Iowa Admin. Code r. 871-24.32(8).
Here, Messer's instruction that Patterson immediately meet with and instruct her assistant managers on food safety procedures was reasonable in light of the significant consequences of the ongoing food safety violations. The record substantially demonstrates that conducting such a meeting was one of Patterson's job duties and that Patterson had the ability and capability to comply with Messer's directive. The record also substantially demonstrates that lack of compliance with food safety procedures not only impaired Subway's ability to comply with the State health code, see Iowa Code § 137F.2, it impacted Subway's ability to retain its franchise license and ensure the health and safety of its customers.
Although Patterson contends she repeatedly instructed employees on food safety issues, Loy's testimony substantially supports a finding that Patterson deliberately and intentionally did not follow Messer's instruction to meet with all of her assistant managers on July 30. See Titan Tire Corp. v. Employment Appeal Bd., 641 N.W.2d 752, 755 (Iowa 2002) (noting assessing the weight of evidence is a matter within the agency's exclusive domain). In addition, there is substantial evidence in the record that Patterson understood the seriousness of the issue and the possibility of her termination in the event of further noncompliance.
Because we conclude substantial evidence supports the Board's finding of misconduct, we find no error in the Board's decision to deny Patterson unemployment benefits. The district court's ruling is affirmed.