MARZETTI FROZEN PASTA, INC. , Plaintiff - Appell ant , vs. EMPLOYMENT APPEAL BOARD , Defendant - Appell ee .
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IN THE COURT OF APPEALS OF IOWA
No. 8-627 / 08-0288
Filed October 29, 2008
MARZETTI FROZEN PASTA, INC.,
Plaintiff-Appellant,
vs.
EMPLOYMENT APPEAL BOARD,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Karen A. Romano,
Judge.
Employer appeals a ruling on petition for judicial review affirming the
decision of the Employment Appeal Board and remanding to the Workforce
Development Claims Division to address the issue of alien disqualification under
Iowa Code section 96.5(10). AFFIRMED.
Jeffery W. Lanz, Huber, Book, Cortese, Happe & Lanz, P.L.C., West Des
Moines, for appellant.
Richard Autry, Des Moines, for appellee.
Considered by Huitink, P.J., and Mahan and Vaitheswaran, JJ.
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MAHAN, J.
Marzetti Frozen Pasta, Inc., appeals from the district court‟s ruling on its
petition for judicial review affirming the decision of the Employment Appeal
Board, which concluded that the termination of its employee, Oscar Bermudez,
was not for misconduct, and remanding to the Iowa Workforce Development
Claims Division to address the issue of alien disqualification under Iowa Code
section 96.5(10). Marzetti contends the district court erred in affirming the Board
because (1) Bermudez is disqualified for benefits due to his misconduct; (2)
Bermudez is disqualified for benefits as an alien; and (3) the claims division has
already determined that Bermudez is not available for work and therefore remand
is unnecessary. The only issue properly before this court is whether Bermudez
was disqualified for misconduct.
Because we conclude the lapse of one‟s
employment authorization card under the circumstances presented here cannot
be deemed misconduct, we affirm.
I. Background Facts and Proceedings.
Oscar Bermudez is an alien from El Salvador who began working for
Marzetti Frozen Pasta, Inc., in December 2004 full-time by virtue of an I-766
employment authorization document (EAD) issued by the Department of
Homeland Security, Immigration and Naturalization Service. The EAD must be
renewed annually. As in the past, in 2006 Marzetti reminded Bermudez that he
should apply for reauthorization.1
1
Bermudez was aware the reauthorization
The record is unclear when exactly this reminder occurred, but perhaps in August
2006.
The website for United States Citizenship and Immigration Services
(www.USCIS.gov) indicates: “Renewal EAD: You cannot file for a renewal EAD more
than 120 days before your original EAD expires.”
3
process would take some time, but did not file his application until August 28,
2006, because he did not earlier have the money for the processing fee.2
Bermudez continued to work for Marzetti after his authorization card expired on
September 9, 2006.
On April 17, 2007, Marzetti discharged Bermudez because he was not
able to produce documents that proved he was eligible to be employed.
Bermudez filed
for
unemployment
benefits.
contending Bermudez was “discharged for misconduct.”
Marzetti
protested,
Bermudez received
notice from Iowa Workforce Development that his request for benefits was
denied: “This disqualification was made under law section 96.5-2A.” Bermudez
appealed to workforce development appeal division.
After a hearing, the administrative law judge ruled that Bermudez‟s failure
to have a work authorization card was the sole reason for his separation from
Marzetti. The administrative law judge concluded that while Marzetti
perhaps should have filed sooner, the administrative law judge is
not convinced he would have had an authorization as of the date of
discharge. It was his testimony that it usually takes five months to
process a renewal application. Therefore, Mr. Bermudez had
reason to expect a new authorization by the end of January of
2007. As of the date of the hearing [May 7, 2007], he still has not
received his new work authorization.
The administrative law judge is satisfied Mr. Bermudez made
a good-faith attempt to obtain a new work authorization. The delay
does not appear to be on his part. He should not be held
accountable for delays caused by government procedures. The
term “misconduct” connotes volition. Huntoon v. Iowa Department
of Job Service, 275 N.W.2d 445 (Iowa 1979). The administrative
law judge cannot conclude that Mr. Bermudez deliberately and
intentionally failed to obtain the work authorization necessary to
work for Marzetti.
2
Currently $340.
4
The administrative law judge noted that Marzetti was required to discharge
Bermudez or face legal consequences because it could not legally employ a
noncitizen who was not authorized to work. The administrative law judge further
noted, however, that circumstances that might warrant a discharge from
employment do not necessarily require disqualification from benefits.
The
administrative law judge remanded to workforce development claims division to
determine Bermudez‟s availability for work.
Marzetti appealed to the employment appeal board, which issued a
decision adopting and affirming the “administrative law judge‟s Findings of Fact
and Reasoning and Conclusions of Law.” Marzetti asked for a rehearing before
the appeal board, which was denied.
Marzetti filed a petition for judicial review before the district court. The
district court rejected Marzetti‟s argument that Bermudez is disqualified from
receiving unemployment insurance benefits due to his misconduct. The district
court noted that while “it may have been careless for Bermudez to wait to file his
renewal, an allegation of misconduct based on carelessness must actually
indicate a „wrongful intent‟ to be disqualifying.”
The court concluded the
administrative law judge‟s decision was not wholly irrational, unreasonable,
arbitrary, or capricious; was not based upon an irrational, illogical, or wholly
unjustifiable interpretation of a provision of law; and was supported by substantial
evidence.
The district court ruled that the employer‟s contention that Bermudez was
disqualified because of his alien status under Iowa Code section 96.5(10) had
not been raised before.
The court wrote, “While Bermudez‟s alien status is
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implicated under [96.5(2)(a) and 96.5(10)], he must have notice of the basis for
his disqualification in order for his due process rights to be protected and to be
able to properly defend.”
Finally, the district court rejected Marzetti‟s invitation to find that Bermudez
was unavailable for work. The court stated that the administrative law judge had
remanded that issue to the claims division and the outcome of the remand was
not in the record. The court concluded remand was appropriate because, “[t]he
issue of „eligibility‟ is a week-to-week determination which can change depending
on whether an individual is able and available to work at a given point in time.”
Marzetti appeals.
II. Scope and Standard of Review.
The scope of review in cases arising out of the Iowa Administrative
Procedures Act is limited to the corrections of errors at law. Foods, Inc. v. Iowa
Civil Rights Comm'n, 318 N.W.2d 162, 165 (Iowa 1982). Iowa Code section
17A.19(10)(l) provides in a contested case the court shall grant relief from an
agency decision that is based upon an “irrational, illogical, or wholly unjustifiable
interpretation of a provision of law whose interpretation is clearly vested by a
provision of law in the discretion of the agency.” Section 17A.19(10)(m) requires
that the court grant relief if the agency‟s decision is based upon an “irrational,
illogical, or wholly unjustifiable application of law to fact.” The district court itself
acts in an appellate capacity to correct errors of law on the part of the agency.
Bridgestone/Firestone, Inc. v. Employment Appeal Bd., 570 N.W.2d 85, 90 (Iowa
1997). A district court decision rendered in an appellate capacity is reviewed to
determine whether the district court correctly applied the law.
Id.
If our
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conclusions are the same, we must affirm. Hanson v. Reichelt, 452 N.W.2d 164,
166 (Iowa 1990).
III. Merits.
Marzetti claims that awarding Bermudez benefits contradicts state law and
federal law. However, the only issue properly before us is whether Bermudez
was disqualified for misconduct under Iowa Code section 96.5(2)(a) (2007), the
section for which Bermudez received notice he was disqualified.
The purpose of Iowa‟s unemployment compensation law is to protect from
financial hardship workers who become unemployed through no fault of their
own. Bridgestone/Firestone, 570 N.W.2d at 96. “We construe the provisions of
that law liberally to carry out its humane and beneficial purpose. Conversely, we
are to interpret strictly the law‟s disqualification provisions, again with a view to
further the purpose of the law.” Id. (citations omitted).
An individual is disqualified from receiving unemployment benefits if the
department finds the individual has been discharged for misconduct in
connection with the individual‟s employment. Marzetti asks us to conclude, as a
matter of law, that Bermudez‟s failure to have his employment authorization
document (EAD) timely renewed constitutes misconduct under Iowa Code
section 96.5(2). We decline.
An employee may be denied unemployment insurance benefits if the
employee was discharged for misconduct in connection with his or her
employment. See Iowa Code § 96.5(2). The employer has the burden to prove
the discharged employee is disqualified for benefits for misconduct. See Sallis v.
Employment Appeal Bd., 437 N.W.2d 895, 896 (Iowa 1989).
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Misconduct is defined in the Iowa Administrative Code as:
[a] deliberate act or omission by a worker which constitutes a
material breach of the duties and obligations arising out of such
worker's contract of employment. Misconduct as the term is used
in the disqualification provision as being limited to conduct evincing
such willful or wanton disregard of an employer's interest as is
found in deliberate violation or disregard of standards of behavior
which the employer has the right to expect of employees, or in
carelessness or negligence of such degree of 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 the 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.
Iowa Admin. Code r. 871-24.32(1)(a) (emphasis added).
Marzetti claims Bermudez knew his EAD was going to expire on
September 9, 2006, and that it would take “a long time to renew.” The employer
argues Bermudez intentionally did not take action at such time that his EAD
would be renewed prior to the expiration date, putting the employer in the
situation that it could not legally employ him. Marzetti contends this constitutes
intentional disregard of the employer‟s interests and likens the circumstances to
those in Cook v. Iowa Dept. of Job Service, 299 N.W.2d 698 (Iowa 1980).
In Cook, our supreme court concluded, as a matter of law, that Cook was
appropriately denied benefits for misconduct. The court noted that Cook was a
truck driver, but his repeated traffic violations rendered him uninsurable and thus
unemployable.
While he received most of his driving citations during non-work
hours and in his personal car, they all bore directly on his ability to
work for Hawkeye. Cook knew this, and even expressed fear to
Hawkeye about losing his license. He does not claim that anyone
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forced him to violate the laws of the road, yet he persisted in doing
so. The district court correctly construed the law in classifying this
case as a separation for misconduct . . . .
Cook, 299 N.W.2d at 702.
Cook is not on point.
The appeal board here found no intentional
disregard for the employer‟s interests.
Bermudez did file to renew his EAD.
Unlike Cook—who could control his driving—Bermudez has no control over when
and if his EAD will be renewed.
In fact, at the time of hearing—some nine
months after his EAD had expired—Bermudez had yet to receive authorization.
Marzetti has not shown that Bermudez could have filed in a “timely” manner to
ensure renewal.
(We note that the United State Citizens and Immigration
Services website inform aliens that one cannot file for a renewal “more than 120
days before your original EAD expires.”) Under these circumstances, we cannot
find misconduct as a matter of law.
Marzetti asks us to find that Bermudez is disqualified as an “alien” under
Iowa Code section 96.5(10) and that Bermudez is not available to work as a
matter of law. We would first state that those matters are not as simple as they
might seem. See 72 Fed. Reg. 161, 46649-46653 (Aug. 21, 2007) (discussing
extension of temporary protected status for El Salvadorans). Moreover, contrary
to Marzetti‟s insistence, we have no authority to make findings of fact and declare
the parties‟ rights. See Bridgestone/Firestone, 570 N.W.2d at 97. Marzetti is
adequately protected and has sufficient methods through which to make its case
before the agency—with proper notice to the employee—for alien disqualification
and unavailability for work.
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IV. Conclusion. The district court properly concluded that Bermudez
was not discharged for misconduct under section 96.5(2). Whether Bermudez is
subject to alien disqualification under section 96.5(10) has not been determined
by the agency, nor has Bermudez‟s availability for work. The issues are properly
remanded to the agency. We affirm.
AFFIRMED.
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