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 2013-09

Kulasinovic v. State of Nev. Dept. of Employment Security Div. ( 2013 )


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  •                 Review declined further review of the referee's determination, and
appellant filed a petition for judicial review in the district court, which
was denied. This appeal followed. On appeal, appellant argues that the
referee erred in finding that her termination was for misconduct that
disqualified her from receiving unemployment benefits and that the
district court did not have all of the relevant documents and surveillance
videos before it when it denied judicial review.
In reviewing an administrative decision in an unemployment
benefits matter, this court, like the district court, determines whether the
board acted arbitrarily or capriciously. NRS 233B.135(3)(f); McCracken v.
Fancy,
    98 Nev. 30
    , 31,
    639 P.2d 552
    , 553 (1982). The administrative
decision will not be disturbed if it is supported by substantial evidence.
Leeson v. Basic Refractories,
    101 Nev. 384
    , 385-86,
    705 P.2d 137
    , 138
(1985). "Substantial evidence is that which a reasonable mind could find
adequate to support a conclusion."       Kolnik v. Nev. Emp't Sec. Dep't,
    112 Nev. 11
    , 16,
    908 P.2d 726
    , 729 (1996).
Under NRS 612.385, if a person was discharged from work for
"misconduct," he or she is ineligible for unemployment benefits. A willful
violation of duties or disregard for an employer's interests may constitute
such misconduct.    Garman v. State, Emp't Sec. Dep't,
    102 Nev. 563
    , 565,
    729 P.2d 1335
    , 1336 (1986) (defining misconduct "as a deliberate violation
or a disregard of reasonable standards, carelessness or negligence showing
substantial disregard of duties" (internal quotation omitted)); see also
Emp't Sec. Dep't of Nev. v. Verrati,
    104 Nev. 302
    , 304,
    756 P.2d 1196
    , 1197-
98 (1988).
Having reviewed appellant's arguments and the record on
appeal, we conclude that substantial evidence supports the appeals
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referee's finding that appellant was discharged for reasons constituting
misconduct that disqualified her from unemployment benefits under NRS
612.385. The record reveals that appellant admits she made a dealer
error that caused a $600 loss to the casino and demonstrates that
appellant had made multiple dealer errors before the March 2011 incident
that had resulted in progressive levels of discipline, including a written
warning and a three-day suspension. The appeals referee considered
appellant's testimony and testimony from another witness and determined
that appellant's errors amounted to misconduct.       See Lellis v. Archie,
    89 Nev. 550
    , 554,
    516 P.2d 469
    , 471 (1973) (recognizing that this court will
not substitute its judgment for that of the referee on issues of credibility or
the weight of the evidence). Further, while appellant asserts that the
district court did not have certain necessary materials before it on judicial
review, because judicial review, whether by the district court or this court,
is limited to the record before the administrative agency, NRS
233B.135(1)(b), and these materials were never presented in the course of
the administrative review of her unemployment benefits claim, appellant's
reliance on the fact that these materials were not presented to the district
court is unavailing.
For the reasons set forth above, we conclude that substantial
evidence in the record supports the appeals referee's ruling that
appellant's conduct constituted misconduct under NRS 612.385, and
thereby, disqualified her from receiving unemployment benefits.             See
Kolnik,   112 Nev. at 16,
    908 P.2d at 729
     (noting that whether an
employee's negligence constituted willful misconduct is a question of law);
but see Garman, 102 Nev. at 565,
    729 P.2d at 1336
     (recognizing that when
misconduct becomes a mixed question of law and fact, the agency's
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determination must be given deference similar to that given to findings of
fact when supported by substantial evidence). Accordingly, the Board's
decision to affirm the appeals referee's ruling was not arbitrary or
capricious, and thus, we affirm the district court's denial of appellant's
petition for judicial review.
It is so ORDERED.
Gibbons
J
Douglas
Saitta
cc: Hon. Timothy C. Williams, District Judge
Zaga Kulasinovic
State of Nevada/DETR
Eighth District Court Clerk
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