                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1524
                                Filed July 6, 2017


DANIEL W. WILHARM,
     Plaintiff-Appellant,

vs.

EMPLOYMENT APPEAL BOARD and IOWA STEEL FABRICATION, L.L.C.,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, David May, Judge.



      Daniel Wilharm appeals an Employment Appeal Board decision

disqualifying him from receipt of unemployment benefits. AFFIRMED.




      John S. Allen and Lois Cox of the University of Iowa College of Law and

Andrew J. Workman, Nathan Converse, Kaitlin Boettcher, and Bradyn

Fairclough, Student Legal Interns, Iowa City, for appellant.

      Richard Autry of the Employment Appeal Board, Des Moines, for

appellees.



      Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

       Daniel Wilharm appeals an Employment Appeal Board                 decision

disqualifying him from receipt of unemployment benefits.

I.     Background Facts and Proceedings

       The Board found the following facts. Wilharm drove a truck for Iowa Steel

Fabrication.    His primary duty was to deliver parts.     Deliveries were “time-

sensitive.”    Wilharm “had a tardiness issue” for which he was issued two

warnings.

       Shortly after these warnings were given, Iowa Steel sent Wilharm to

deliver goods to a contractor three-and-a-half hours away. Wilharm left at 7:00

a.m. At about 4:00 p.m., the contractor notified Iowa Steel that Wilharm did not

arrive until after 3:30 p.m. and “jumped onto and ran the contractor’s forklift,

which was against both the Employer’s and contractor’s safety code.” When

questioned about his whereabouts, Wilharm told Iowa Steel he “took a nap.”

Following this incident, Wilharm received warnings for being late and for

“purchasing food with a gas card.”

       The morning after this napping incident, Iowa Steel gave Wilharm a load

to deliver to Kansas City. He was instructed to then pick up a load in Omaha.

The entire trip should have taken “seven hours and forty minutes, which included

loading and unloading.” At about 3:00 p.m., Wilharm called Iowa Steel and said

he was just leaving Kansas City for Omaha. He did not arrive in Omaha until

5:00 p.m., two hours after the plant closed. Iowa Steel asked about the delay.

Wilharm said he started the trip late because he had to go home and look for his

wallet. Iowa Steel terminated Wilharm the next day.
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      Wilharm made a claim for unemployment insurance benefits, which was

denied. Wilharm filed an agency appeal. Following an evidentiary hearing, an

administrative law judge reversed the denial. Iowa Steel appealed the reversal to

the Employment Appeal Board.        The Board reversed the administrative law

judge’s decision after concluding Wilharm “was discharged for disqualifying

misconduct.” The Board provided the following reasoning:

            [T]he record solidly supports that Mr. Wilharm’s behavior
      was a blatant disregard for the rights and obligations he owed to
      the Employer. His excuse that he took a nap on the 6th does not
      absolve his responsibility to make timely deliveries.           Any
      reasonable person should know that taking naps on company time
      is not acceptable behavior and an employee needn’t have a
      warning to know that. The Claimant failed to display even a
      modicum of concern for the Employer’s interests when he failed to
      contact the Employer on the 7th when he knew he would be late
      because he had to return home to retrieve his wallet.              In
      considering these final incidents, along with his verbal and written
      warnings, we see that the Claimant continued his pattern of failing
      to comply with company policy.

Wilharm petitioned for judicial review of the Board’s decision. The district court

affirmed the decision and this appeal followed.

II.   Misconduct

      An employee who is terminated for misconduct is disqualified from

receiving unemployment benefits for a period of time.         See Iowa Code §

96.5(2)(a) (2015). Misconduct is defined 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
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       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).

       Wilharm argues the Board’s fact findings are unsupported by substantial

evidence. See Iowa Code § 17A.19(10)(f). Substantial evidence “means the

quantity and quality of evidence that would be deemed sufficient by a neutral,

detached, and reasonable person, to establish the fact at issue when the

consequences resulting from the establishment of that fact are understood to be

serious and of great importance.” Id. § 17A.19(10)(f)(1). “In our evaluation of the

evidence, we focus not on whether the evidence would support a different finding

than the finding made by the [agency], but whether the evidence supports the

findings actually made.” Broadlawns Med. Ctr. v. Sanders, 792 N.W.2d 302, 306

(Iowa 2010).    “An appellate court should not consider evidence insubstantial

merely because the court may draw different conclusions from the record.” Arndt

v. City of Le Claire, 728 N.W.2d 389, 393 (Iowa 2007).

       The Board’s material fact findings are essentially undisputed. There is no

question Wilharm received warnings for tardiness before the two incidents that

precipitated his discharge,1 arrived late at the first delivery site because he took a

nap, and arrived late in Omaha because he went home to retrieve his wallet.



1
  We discern no error in the Board’s consideration of these warnings. See Ringland
Johnson, Inc. v. Hunecke, 585 N.W.2d 269, 271 (Iowa 1998) (“Past acts . . . can be used
to determine the magnitude of the current act.”).
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          Wilharm disputes the agency finding that he lacked permission to use a

forklift at the first delivery site. But he does not dispute the five-hour delay in his

arrival time and his failure to immediately notify Iowa Steel of the delay. While he

maintains he “could not stay awake on longer trucking hauls and was concerned

about causing an accident,” he did not inform his employer of his fatigue that day

or his need to take a lengthy nap.

          Wilharm also rationalizes his late arrival in Omaha by citing the need to

carry his driver’s license. He asserts he “made the decision to delay his trip and

retrieve his wallet instead of continuing on his route, in order to comply with Iowa

law.” But, again, he does not dispute the delay of up to four hours to obtain his

license and his arrival well after closing. He also does not dispute notifying Iowa

Steel only after an extended sojourn at home. Like the district court, we are

persuaded the agency fact findings were supported by substantial evidence.

          Wilharm next appears to challenge the Board’s application of law to fact.

See Iowa Code § 17A.19(10)(m). We find nothing irrational, illogical, or wholly

unjustifiable in the Board’s determination that “Mr. Wilharm’s behavior was a

blatant disregard for the rights and obligations he owed to the Employer.”

          Finally, Wilharm characterizes the Board’s decision as an “erroneous

interpretation of law.” At oral argument, he backed away from this assertion.

Suffice it to say the Board was not called upon to interpret the legal definition of

misconduct. In any event, we discern no legal error in the agency’s conclusions

of law.
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       We affirm the Board’s decision to deny Wilharm’s claim for unemployment

benefits.

       AFFIRMED.
