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Zack D. Koch v. Department of Employment

January 31, 2013

ZACK D. KOCH, APPELLANT (PETITIONER),
v.
DEPARTMENT OF EMPLOYMENT, UNEMPLOYMENT INSURANCE COMMISSION, APPELLEE (RESPONDENT).



Appeal from the District Court of Albany County The Honorable Jeffrey A. Donnell, Judge

The opinion of the court was delivered by: Voigt, Justice.

Before KITE, C.J., and GOLDEN,*fn1 HILL, VOIGT, and BURKE, JJ.

[¶1] The appellant, Zack D. Koch, was terminated from his employment with HIS-Garden Inn Laramie, Inc. (Hilton) on December 10, 2009. The appellant applied for and was initially granted unemployment benefits. Hilton appealed that determination and, after a telephonic hearing where testimony and evidence was received, a hearing examiner affirmed the initial decision and found that the appellant was entitled to unemployment benefits. Hilton then appealed the hearing examiner's decision to the Unemployment Insurance Commission (Commission), which reversed the hearing examiner's decision and found that the appellant was not entitled to unemployment benefits. The appellant appealed the Commission's decision to the district court, which affirmed the Commission's denial of benefits. The appellant now appeals the Commission's decision to this Court. We affirm the Commission's decision.

ISSUES

[¶2] 1. As a matter of law, did the Commission act within its authority when it reviewed and reversed the hearing examiner's decision to grant the appellant unemployment benefits?

2. Was the Commission's decision that the appellant engaged in misconduct and thereby not entitled to unemployment benefits supported by substantial evidence in the record?

FACTS

[¶3] The appellant was terminated from his employment with Hilton on December 10, 2009. The appellant applied for and was granted unemployment benefits. Hilton contested the grant of benefits, and a hearing examiner held a telephonic contested case hearing on April 27, 2010. Hilton claimed that the appellant was not entitled to unemployment benefits because he was terminated for misconduct when he refused to shovel snow from the property. The appellant asserted that he did shovel the snow and was fired in retaliation for filing a previous complaint against Hilton. After receiving the evidence submitted by each party, including witness testimony, the hearing examiner concluded that the appellant had not engaged in misconduct and, therefore, was entitled to receive unemployment benefits.

[¶4] Hilton then appealed the hearing examiner's decision to the Commission. In its notice to the parties regarding when the Commission would meet regarding Hilton's appeal, the Commission informed the parties that it "does not accept new evidence, testimony or witnesses. Pursuant to Wyo. Stat. Ann. § 27-3-400(b), the Commission may affirm, modify or reverse the findings and conclusions of the hearing officer based upon evidence presented before the hearing officer at your previous hearing." (Emphasis in original.) On June 22, 2010, the Commission found that the appellant had engaged in misconduct when he did not shovel the snow and reversed the hearing examiner's determination that he was entitled to unemployment benefits. The appellant appealed the Commission's decision to the district court, which reversed and remanded the decision because the Commission failed to notify the appellant's attorney of the Commission's meeting.

[¶5] On August 23, 2011, the Commission held another meeting, which was attended by the appellant and his attorney. In its order, the Commission stated that it did not consider any additional evidence at the meeting and, instead, relied upon the evidence presented before the hearing examiner and listened to the tape recording of the contested case hearing. After reviewing the evidence, the Commission determined that the appellant did not remove snow as he was supposed to on December 9, 2009, and that on December 10, 2009, he told his supervisors at Hilton that he did not remove the snow. The Commission found that the appellant's behavior constituted misconduct and he was, therefore, disqualified from receiving unemployment benefits.

[¶6] The appellant again appealed the Commission's decision to the district court. The district court found that, despite the appellant's claims to the contrary, the Commission used the proper procedure when reviewing the hearing examiner's decisions, that the Commission's decision was supported by substantial evidence, and that the Commission's decision was not arbitrary and capricious, not an abuse of discretion, and was otherwise in accordance with the law. Thus, the district court affirmed the decision of the Commission. The appellant has now appealed the Commission's decision to this Court.

DISCUSSION

As a matter of law, did the Commission act within its authority when it reviewed and reversed the hearing examiner's decision to grant the appellant unemployment benefits?

[¶7] The appellant devotes most of his brief to the proposition that the Commission did not review the hearing examiner's decision to grant unemployment benefits using an appellate standard of review, similar to what the district court and this Court employs when reviewing an agency decision. He argues that the Commission's second review of the evidence presented at the contested case hearing goes beyond the Commission's authority and violates the Wyoming Administrative Procedure Act (WAPA). The appellant asserts that the Commission's decision was arbitrary, capricious, and an abuse of discretion.

[¶8] The standard of review we use when reviewing an agency decision is found at Wyo. Stat. Ann. § 16-3-114 (LexisNexis 2011). That statute states that

[t]he reviewing court shall:

(ii) Hold unlawful and set aside agency action, findings and ...


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