Mahler v. State, Dept. of Employment Security Div.

discharged for misconduct connected to his work. The appeals referee reversed, concluding that appellant "made an error in judgment," but that there was no adverse effect to Guardsmark and, thus, disqualifying misconduct had not been established. The Board of Review, however, found that disqualifying misconduct had been established and therefore reversed the appeals referee's decision and directed appellant to repay the overpaid benefits received. On judicial review, the district court denied appellant's petition in part, affirming the Board's decision to deny benefits based on disqualifying misconduct, but granted the petition as to the Board's directive that appellant repay an unspecified amount of overpaid benefits received. This appeal followed. We conclude that the Board's decision to deny unemployment benefits based on disqualifying misconduct was not arbitrary or capricious or an error of law. NRS 233B.135(3); McCracken v. Fancy, 98 Nev. 30, 31, 639 P.2d 552, 553 (1982) (setting forth the standard of review). Substantial evidence in the record supports the Board's factual determinations, and appellant does not contest that he was sitting in a personally-owned chair, had removed his shoes, and was reading a book while on duty. See Kolnik v. Nev. Emp't Sec. Dep't, 112 Nev. 11, 16, 908 P.2d 726, 729 (1996) (defining substantial evidence). Appellant also does not contest that he called the client representative to ask her on a date, though he disputes the factual circumstances leading up to the telephone call. These actions violated the reasonable policies of the security company, which required a proper uniform at all times, alertness and careful watch over the area of responsibility, and which prohibited personal reading material and dating or becoming "overly friendly" with a client's employees. Despite the assertion of our dissenting colleague that

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any employer could allege after termination that an employee violated company policies in order to preclude unemployment benefits, here, appellant does not deny that he did in fact violate Guardsmark's policies. Thus, we find no abuse of discretion or error of law in the Board's determination that disqualifying misconduct was shown. NRS 612.385; Garman u. State, Emp't Sec. Dep't, 102 Nev. 563, 565, 729 P.2d 1335, 1336 (1986) (defining disqualifying misconduct as "a deliberate violation or a disregard of reasonable standards, carelessness or negligence showing [a] substantial disregard of [the employee's] duties" (quotation marks omitted)); see also Kolnik, 112 Nev. at 16, 908 P.2d at 729 (explaining that whether an employee's negligence is of such a nature as to constitute willful misconduct for the purpose of denying unemployment benefits is a question of law). Accordingly, we affirm the district court's order denying in part judicial review as to appellant's disqualifying misconduct. See Leeson v. Basic Refractories, 101 Nev. 384, 385-86, 705 P.2d 137, 138 (1985) (explaining that the Board's decision will not be disturbed if it is supported by substantial evidence). It is so ORDERED. 2

Parraguirre

CHERRY, J., dissenting: Because I disagree with my colleagues' decision to affirm the district court's order denying appellant's petition for judicial review, I must dissent. Although appellant does not deny the conduct at issue, his actions did not rise to the level of showing "a deliberate violation or a disregard of reasonable standards, [or] carelessness or negligence showing [a] substantial disregard of [the employee's] duties." Garman v. State, Emp't Sec. Dep't, 102 Nev. 563, 565, 729 P.2d 1335, 1336 (1986) (internal quotation omitted). Therefore, appellant's actions lacked the necessary element of wrongfulness and did not constitute misconduct disqualifying him from receiving unemployment benefits. See NRS 612.385; Kolnik v. Neu. Emp't Sec. Dep't, 112 Nev. 11, 15-16, 908 P.2d 726, 729 (1996). Furthermore, Nevada is an at-will employment state, see Ozawa v. Vision Airlines, Inc., 125 Nev. 556, 560, 216 P.3d 788, 791 (2009), and applying such a deferential standard to the Board's decisions could allow any employer to allege after termination that the employee violated company policies in order to preclude unemployment benefits. For these reasons, I would reverse the district court's order denying judicial review as to appellant's disqualifying misconduct.

Footnotes

[2] We have considered appellant's other arguments and conclude they lack merit. In light of this order, we deny appellant's May 19, 2015, motion for leave to proceed according to NRAP 46(b) and file a reply brief. SUPREME COURT OF NEVADA 3 (0) 1947A ce Cherry Chuusr J. cc: Hon. Jerry A. Wiese, District Judge John Mahler State of Nevada/DETR Eighth District Court Clerk SUPREME COURT OF 4 NEVADA (0) 1947A ero