                IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 45420

                                         )
 CARLA SPARKS,                           )
                                         )
        Claimant-Appellant,              )             Boise, August 2018 Term
                                         )
 v.                                      )             Filed: September 10, 2018
                                         )
 LAURA DRAKE INSURANCE AND )                           Karel A. Lehrman, Clerk
 FINANCIAL SERVICES, INC.,               )
                                         )
        Employer,                        )
                                         )
 and                                     )
                                         )
 IDAHO DEPARTMENT OF LABOR,              )
                                         )
        Respondent.                      )
________________________________________ )

       Appeal from Industrial Commission of the State of Idaho.

       The decision of the Commission is affirmed. Costs on appeal are
       awarded to IDOL.

       Carla Sparks, Buhl, appellant pro se.

       Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. M. Scott
       Keim argued.
                         _______________________________

BEVAN, J.
                                I.      NATURE OF THE CASE
       Carla Sparks appeals an Idaho Industrial Commission (the “Commission”) decision,
which affirmed an Idaho Department of Labor (“IDOL”) finding that she was not entitled to
unemployment benefits after being discharged by her employer, Laura Drake Insurance and
Financial Services, Inc. (“Drake Insurance”). The appeals examiner held a telephonic hearing to
determine Sparks’ unemployment benefit eligibility, but Sparks failed to appear. As a result,
Laura Drake’s sworn testimony about the details of Sparks’ termination was undisputed. The

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appeals examiner found that Sparks was terminated for cause and thus was not entitled to
unemployment benefits. The Commission affirmed, and Sparks appealed to this Court. We
affirm the Commission’s decision because Sparks was properly found ineligible for
unemployment benefits and the hearing officer/Commission’s denial of her request to provide
additional evidence after the initial hearing was not an abuse of discretion.

                       II.     FACTUAL AND PROCEDURAL BACKGROUND
       On March 31, 2017, IDOL issued a personal eligibility determination that found Sparks
was eligible to receive unemployment insurance benefits and that Drake Insurance was the
chargeable employer. On April 3, 2017, Drake Insurance appealed IDOL’s determination,
asserting that Sparks was terminated for cause. On April 14, 2017, IDOL mailed the notice for a
hearing on Drake Insurance’s appeal to Sparks’ address on record. The hearing was scheduled
for April 26, 2017. The administrative appeal was heard by the appeals examiner by telephone;
however, Sparks failed to appear. Laura Drake was present and her testimony was
uncontradicted due to Sparks’ absence. The appeals examiner reversed the initial personal
eligibility determination the next day, finding that Sparks was discharged for cause. On April 28,
2017, Sparks filed a request to reopen the hearing, stating she was unable to attend the hearing
because she did not receive notice. Sparks alleged that because the envelope was too large for
her mail box, she had to pick it up at the post office window, which was closed because it was
after hours. On May 1, 2017, the appeals examiner denied Sparks’ request to reopen the hearing.
       On May 5, 2017, Sparks filed an appeal with the Commission to reopen the evidentiary
proceedings. On June 5, 2017, the Commission issued its decision and found that Sparks had not
provided a compelling reason to allow an additional hearing. The Commission found that
Sparks’ negligence in failing to retrieve the notice of hearing, which had been properly served on
her, was insufficient to justify her failure to appear. The Commission also conducted a de novo
review of the appeals examiner’s decision and found that Sparks was terminated by Drake
Insurance for cause; therefore, Sparks was not eligible for unemployment benefits. On June 15,
2017, Sparks wrote to the Commission again, requesting to reopen the evidentiary proceedings.
On August 29, 2017, the Commission affirmed the decision of the appeals examiner. On
September 26, 2017, Sparks filed an appeal to the Idaho Supreme Court.

                                    III.    ISSUES ON APPEAL

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   1. Did the Commission abuse its discretion in denying Sparks’ request to reopen the
      evidentiary proceedings?
   2. Is the Commission’s holding that Sparks was not eligible for unemployment benefits
      supported by substantial and competent evidence?

                                  IV.     STANDARD OF REVIEW
       The Commission has discretion when determining whether to admit additional evidence.
Simpson v. Trinity Mission Health & Rehab of Midland L.P., 150 Idaho 154, 156, 244 P.3d 1240,
1242 (2010) (internal citation omitted). We review the Commission’s determination for an abuse
of discretion. Id. The test for an abuse of discretion is “whether the trial court: (1) correctly
perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion;
(3) acted consistently with the legal standards applicable to the specific choices available to it;
and (4) reached its decision by the exercise of reason.” Lunneborg v. My Fun Life, 163 Idaho
856, 863, 421 P.3d 187, 194 (2018).
       “When reviewing a decision by the Industrial Commission, this Court exercises free
review over the Commission’s conclusions of law, but will not disturb the Commission’s factual
findings if they are supported by substantial and competent evidence.” Serrano v. Four Seasons
Framing, 157 Idaho 309, 314, 336 P.3d 242, 247 (2014) (quoting Knowlton v. Wood River Med.
Ctr., 151 Idaho 135, 140, 254 P.3d 36, 41 (2011)). “Substantial and competent evidence is
relevant evidence that a reasonable mind might accept to support a conclusion.” Id. This Court
does not re-weigh evidence and will not disturb the Commission’s conclusions regarding the
credibility of evidence unless they are clearly erroneous. Id.

                                         V.      ANALYSIS
   A. The Commission did not abuse its discretion in denying Sparks’ request to reopen
       the evidentiary hearing.
       Sparks argues that Laura Drake’s statements at the evidentiary hearing were
misrepresentations and constituted fraud; therefore, the Commission erred by denying her
request for a new evidentiary hearing. Sparks relies on her own unsworn testimony within her
briefing as the basis for why the evidentiary hearing should have been reopened; however,
because Sparks’ unsworn testimony is not part of the record, we cannot consider the allegations
set forth in her brief on appeal. See State v. Johnson, 148 Idaho 664, 670, 227 P.3d 918, 924
(2010) (“[a]ppellate court review is limited to the evidence, theories and arguments that were

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presented below.”); See also State v. Mitchell, 124 Idaho 374, 376, n.1, 859 P.2d 972, 974 n.1
(Ct. App. 1993) (“It is axiomatic that an appellate court will not consider new evidence that was
never before the trial court. We are limited to review of the record made below”); Viveros v.
State Dep’t of Health and Welfare, 126 Idaho 714, 716, 889 P.2d 1104 (1995).
       Generally, the admission of additional evidence is an issue left to the discretion of the
Commission. Slaven v. Road to Recovery, 143 Idaho 483, 484, 148 P.3d 1229, 1230 (2006). This
Court will affirm the Commission’s determination unless there is an abuse of that discretion. Uhl
v. Ballard Med. Prods., Inc., 138 Idaho 653, 657, 67 P.3d 1265, 1269 (2003).
       Under Rule 7(C) of the Rules of Appellate Practice and Procedure Under the Idaho
Employment Security Law:
       Upon receipt of a timely request or receipt of the record of proceedings before the
       Appeals Examiner and expiration of the time allowed for interested parties to
       request a hearing, the Commission shall review the matter to determine whether
       the interests of justice require the presentation of additional evidence. If the
       Commission determines, in its discretion, to grant a request for hearing to permit
       receipt of additional evidence, all parties shall be promptly notified. The
       Commission may limit the evidence to be presented and may specify the
       witnesses who are permitted to testify. The Commission may also refer the matter
       back to the Appeals Examiner for further proceedings.

       We hold that the Commission did not abuse its discretion here. First, the Commission
correctly perceived the issue of whether to reopen the evidentiary proceedings as one of
discretion, expressly acknowledging that the “determination of whether to consider additional
evidence is within the Commission’s exclusive discretion.”
       The second and third elements are also satisfied. The Commission acted within the outer
boundaries of its discretion through its ability to either accept or reject Sparks’ explanation of
why the proposed evidence was not presented before the appeals examiner pursuant to Rule
7(C). Ultimately, the Commission considered the interests of justice in determining whether or
not to reopen the evidentiary proceedings, and determined that Sparks’ negligence in not
retrieving her mail was not a sufficient reason to allow additional evidence.
       Last, the Commission reached its decision through an exercise of reason. In its ruling, the
Commission explained that service of the notice of hearing was proper and presumed to be
complete as it was promptly mailed to Sparks’ last known address as required by Idaho Code
section 72-1368(5). The Commission also recognized that Sparks did not allege that the notice

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was sent improperly or to an incorrect address. Indeed, the only reason Sparks was unable to
retrieve the notification was because it was too large to fit in her post office box, making it
unavailable for pickup after normal business hours. The Commission exercised reason when it
considered these circumstances and determined they were insufficient to overcome the
presumption of service. Thus, we hold the district court did not abuse its discretion in denying
Sparks’ request to reopen the evidentiary hearing.
   B. The Commission’s holding that Sparks’ was not eligible for unemployment benefits
       because she was terminated for cause was supported by substantial and competent
       evidence.
       The personal eligibility conditions for unemployment benefits under Idaho law provide
that a claimant who is discharged for misconduct as part of her employment is not eligible for
unemployment benefits. I.C. § 72-1366(5). Misconduct in connection with employment includes
the following: “(1) a willful, intentional disregard of the employer’s interest; or (2) a deliberate
violation of the employer’s reasonable rules; or (3) a disregard of a standard of behavior which
the employer has a right to expect of his employees.” Adams v. Aspen Water, Inc., 150 Idaho
408, 413, 247 P.3d 635, 640 (2011); IDAPA 9.01.30.275.02.
       The burden falls on the employer to prove an employee’s discharge was for misconduct
in connection with employment. Adams, 150 Idaho at 413, 247 P.3d at 640; IDAPA
09.01.30.275.01. “Under the standard of behavior test, the employer must prove, by a
preponderance of the evidence, that (1) the employee’s conduct fell below the standard of
behavior expected by the employer, and (2) the employer’s expectations were objectively
reasonable under the circumstances.” Adams, 150 Idaho at 413, 247 P.3d at 640. The first inquiry
addresses the employer’s subjective expectations, while the second considers whether those
expectations are objectively reasonable. Id. An expectation is objectively reasonable if it is
communicated to the employee, or if it flows naturally from the employment relationship. Id.
“Whether the employer’s expectations were objectively reasonable is a question of fact.” Folks v.
Moscow Sch. Dist. No. 281, 129 Idaho 833, 838, 933 P.2d 642, 647 (1997). While the Court
exercises free review over the Commission’s conclusions of law, it will not disturb the
Commission’s factual findings as long as they are supported by substantial and competent
evidence. Serrano, 157 Idaho at 314, 336 P.3d at 247.


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        We hold that substantial and competent evidence supports the Commission’s finding that
Drake Insurance’s expectations were objectively reasonable, as they were communicated to
Sparks. Further, because Sparks failed to give any adequate legal or factual reason why she was
unable to attend the evidentiary hearing, Laura Drake’s uncontradicted testimony was established
as fact. Laura Drake’s testimony verified that Sparks was reasonably expected to make every
effort to perform her job duties in a timely and conscientious manner. Laura Drake’s testimony
also revealed that she expressed a verbal warning to Sparks that her performance was not
meeting her expectations and that “things weren’t working out and that her performance needed
to improve.” Laura Drake then set up weekly meetings with Sparks to go over her work and
discuss her performance. As the Commission noted, Sparks should have realized that she needed
to complete her work in a timely and conscientious manner. She failed to do so, despite Drake
Insurance’s efforts to correct the misconduct.
        On appeal Sparks’ alleges that she was not made aware of any deficiencies about her
performance. Even so, Sparks’ contentions cannot be addressed on appeal because the record is
not sufficient to rebut the Commission’s findings of fact. In Talbot v. Desert View Care Center,
we explained that the claimant did not provide sufficient evidence because he did not provide the
IDOL hearing’s transcript or audio recording. 156 Idaho 517, 521, 328 P.3d 497, 501 (2014). As
a result, we concluded that we were bound to the IDOL and Commission’s findings of fact for
the case. Id. As in Talbot, we are bound to accept IDOL’s findings of fact due to Sparks’ failure
to appear at the evidentiary hearing. We hold that substantial and competent evidence supports
the Commission’s conclusion that Sparks’ performance fell below Drake Insurance’s reasonable
expectations, which ultimately led to her discharge, so Sparks was properly found ineligible for
unemployment benefits.
                                        VI. CONCLUSION
        The Commission’s decision is affirmed. Costs on appeal are awarded to IDOL as a matter
of right.
        Chief Justice BURDICK, Justices HORTON, BRODY and STEGNER, CONCUR.




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