                IN THE SUPREME COURT, STATE OF WYOMING

                                        2014 WY 119

                                                              APRIL TERM, A.D. 2014

                                                                  September 24, 2014

TOMMY F. DOGGETT,

Appellant
(Petitioner),

v.
                                                     S-14-0012
WYOMING DEPARTMENT OF
WORKFORCE SERVICES,
UNEMPLOYMENT INSURANCE
COMMISSION,

Appellee
(Respondent).

                    Appeal from the District Court of Fremont County
                        The Honorable Marvin L. Tyler, Judge

Representing Appellant:
      Sky D. Phifer of Phifer Law Office, Lander, WY.

Representing Appellee:
      Peter Michael, Wyoming Attorney General; John D. Rossetti, Deputy Attorney
      General; Michael J. Finn, Senior Assistant Attorney General; and Samantha
      Caselli, Assistant Attorney General.

Before BURKE, C.J., and HILL, KITE*, DAVIS, and FOX, JJ.

*Chief Justice at time of expedited conference.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.

[¶1] Appellant Tommy F. Doggett was fired from Strokers, Inc., a Harley Davidson
service center in Lander, Wyoming. He applied for unemployment insurance benefits
and after a hearing, the hearing officer determined that Doggett’s discharge was not for
misconduct connected with his work. His employer appealed, and the Unemployment
Insurance Commission (“Commission”) reversed the hearing officer. Doggett then
sought review in district court, where the Commission was affirmed. This appeal
followed.

                                         ISSUE

[¶2]   Doggett presents one issue for our review:

             Was the decision of the Commission that the employee was
             properly discharged from his employment for misconduct
             supported by substantial evidence?

                                        FACTS

[¶3] In the summer of 2011 Tommy F. Doggett, an employee of Strokers USA, Inc., a
Harley Davidson service center in Lander, was assigned to repair a motorcycle belonging
to Strokers owner, Jeff Martin. Martin returned from an extended summer vacation
expecting his motorcycle to be fixed and ready to ride but that was not the case. Doggett
had not fixed the motorcycle and claimed that he was unaware Martin wanted him to fix
it while Martin was away.

[¶4] Doggett fixed Martin’s motorcycle immediately. In doing so, he chipped a fin on
the motor but repaired it. Doggett did not tell Martin of his error but Martin later
discovered it anyway. Later, problems were discovered with other motorcycles on which
Doggett had worked, including an installed dented cylinder, a dissatisfied customer, and a
loose rear-end on another bike.

[¶5] Doggett was discharged on October 11, 2011 after working over five years with
Strokers. Doggett claims that Martin terminated him by telling him, “I’m taking the shop
in a different direction. I can’t afford you anymore. I’m letting you go. Okay, I don’t
want you here anymore, [sic] leave.” Martin, on the other hand, claims that he fired
Doggett because of customer complaints and come backs resulting in additional costs to
Strokers to correct Doggett’s errors. In any case, Doggett filed for unemployment
benefits.

[¶6] In November of 2011 a deputy for the Unemployment Division determined that
Doggett was discharged for insubordination and poor workmanship. Doggett appealed


                                             1
and in January of 2012 a hearing officer conducted a hearing and issued a decision
awarding Doggett benefits, concluding that Doggett’s discharge was not for misconduct
connected with his work. On Strokers’ appeal to the Commission the Commission
reversed the hearing officer and ruled that Doggett was terminated for misconduct.
Doggett sought review in district court, where the court affirmed the Commission. This
appeal followed.

                              STANDARD OF REVIEW

[¶7] On appeal from a district court’s review of an administrative agency’s decision,
we do not give any deference to the district court’s decision. State v. Laramie County (In
re Ringrose), 2013 WY 68, ¶ 7, 302 P.3d 900, 902 (Wyo. 2013) (citing Dutcher v. State
ex rel. Wyo. Workers’ Safety & Comp. Div., 2010 WY 10, ¶ 9, 223 P.3d 559, 561 (Wyo.
2010)); Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 8, 188 P.3d 554, 557 (Wyo. 2008).
Our review is governed by Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2011):

             (c) To the extent necessary to make a decision and when
             presented, the reviewing court shall decide all relevant
             questions of law, interpret constitutional and statutory
             provisions, and determine the meaning or applicability of the
             terms of an agency action. In making the following
             determinations, the court shall review the whole record or
             those parts of it cited by a party and due account shall be taken
             of the rule of prejudicial error. The reviewing court shall:

                    (i) Compel agency action unlawfully withheld or
                    unreasonably delayed; and

                    (ii) Hold unlawful and set aside agency action, findings
                    and conclusions found to be:

                    (A) Arbitrary, capricious, an abuse of discretion or
                    otherwise not in accordance with law;

                    (B) Contrary to constitutional right, power, privilege or
                    immunity;

                    (C) In excess of statutory jurisdiction, authority or
                    limitations or lacking statutory right;

                    (D) Without observance of procedure required by law;
                    or



                                             2
                          (E) Unsupported by substantial evidence in a case
                          reviewed on the record of an agency hearing provided
                          by statute.

In accordance with § 16-3-114(c) we review the agency’s findings of fact by applying the
substantial evidence standard. Dale, ¶ 22, 188 P.3d at 561. Substantial evidence means

                  “such relevant evidence as a reasonable mind might accept as
                  adequate to support a conclusion.” Bush v. State ex rel. Wyo.
                  Workers’ Comp. Div., 2005 WY 120, ¶ 5, 120 P.3d 176, 179
                  (Wyo. 2005) (citation omitted). Findings of fact are supported
                  by substantial evidence when we can discern a rational
                  premise for those findings from the evidence preserved in the
                  record. Id. “We give great deference to the Commission’s
                  findings of fact in light of its expertise and extensive
                  experience in employment matters.” Weidner v. Life Care
                  Centers of America, 893 P.2d 706, 710 (Wyo. 1995). An
                  agency’s conclusions of law are reviewed de novo. Moss v.
                  State ex rel. Wyo. Workers’ Safety & Comp. Div., 2010 WY
                  66, ¶ 11, 232 P.3d 1, 4 (Wyo. 2010); Dale, ¶ 26, 188 P.3d at
                  561-62.

In re Ringrose, ¶ 9, 302 P.3d at 903. “Importantly, our review of any particular decision
turns not on whether we agree with the outcome, but on whether the agency could
reasonably conclude as it did[] based on all the evidence before it.” Davenport v. State ex
rel. Wyoming Workers’ Safety and Compensation Div., 2012 WY 6, ¶ 12, 268 P.3d 1038,
1042 (Wyo. 2012).

                                             DISCUSSION

[¶8] In Doggett’s only issue on appeal he contends that the Commission’s denial of
unemployment insurance benefits was not supported by substantial evidence. Instead he
claims the evidence is clear that, at the time he was fired, his employer did not know about
specific instances of misconduct. The Commission argues that its decision was supported
by substantial evidence and asserts that the record shows that Doggett acted contrary to his
employer’s interests and was discharged for misconduct connected to his work. See Wyo.
Stat. Ann. § 27-3-311(f) (LexisNexis 2013).1

1
    Wyo. Stat. Ann. 27-3-311(f) states:

          An individual shall be disqualified from benefit entitlement beginning with the effective
          date of an otherwise valid claim or the week during which the failure occurred, until he
          has been employed in an employee-employer relationship and has earned at least twelve
          (12) times the weekly benefit amount of his current claim for services after that date, if


                                                       3
[¶9]   Misconduct is defined as

               an act of an employee which indicates a disregard of (1) the
              employer’s interests or (2) the commonly accepted duties,
              obligations and responsibilities of an employee. This would
              include carelessness or negligence of such degree or
              recurrence as to reveal willful intent or an intentional disregard
              of the employer’s interests or of the employee’s duties and
              obligations to his employer. Inefficiency or failure in good
              performance as the result of inability or incapacity; ordinary
              negligence in isolated instances or good faith errors in
              judgment or discretion are not deemed to be misconduct
              within the meaning of the Law.

 Safety Medical Services, Inc. v. Employment Sec. Com’n of Wyoming, 724 P.2d 468, 472
(Wyo. 1986). Also,

                      Unemployment compensation statutes are to be
              liberally construed in favor of the claimants. Wyoming Dep’t
              of Employment, Div. of Unemployment Ins. v. Rissler &
              McMurry Co., 837 P.2d 686, 690 (Wyo. 1992). We construe
              the term misconduct “in a manner least favorable to working
              a forfeiture” because unemployment compensation is part of
              an employee’s compensation, not “a gratuity which may be
              withheld frivolously.” Id.

Aspen Ridge Law Offices, P.C. v. Wyoming Dep’t of Employment, 2006 WY 129, ¶ 16,
143 P.3d 911, 917 (Wyo. 2006).

[¶10] Here, the Commission found that Doggett’s employer proved that Doggett was
terminated from his employment because he engaged in misconduct. See Wyoming Dept.
of Employment, Div. of Unemployment Ins. v. Rissler & McMurry Co., 837 P.2d 686 at
690 (Wyo. 1992)

              When an employer contends that violation of its rule
              constitutes misconduct, the employer bears the burden of
              establishing the existence of the rule and its violation. If the
              employer establishes these elements, the burden shifts to the



       the department finds that he was discharged from his most recent work for misconduct
       connected with his work.


                                                 4
             employee to demonstrate either that the violation was justified
             or that the rule was unreasonable.

Thus, this Court must review the entire record and consider whether there is relevant
evidence which a reasonable mind might accept in support of the Commission’s decision.

[¶11] In its decision in the instant case the Commission made the following relevant
findings of fact:

                                 FINDINGS OF FACT

             A.     The claimant admitted to chipping the motor fin on the
             employer’s owner’s bike but failed to inform the employer’s
             owner.
             B.     The claimant admitted to installing a damaged motor
             cylinder in a customer’s bike and did not immediately report
             the damaged motor cylinder to the manufacturer or the
             employer’s owner.

                                   CONCLUSIONS

             A.     The claimant was discharged from his employment
             with the employer because the claimant chipped the motor fin
             on the employer’s owner’s bike and failed to inform the
             employer’s owner.
             B.     The claimant installed a damaged motor cylinder into a
             customer’s bike and did not immediately report the damaged
             motor cylinder to the manufacturer or the employer’s owner.
             C.     The claimant’s failure to inform the employer’s owner
             of the chipped motor fin and installing a damaged motor
             cylinder into a customer’s bike without reporting the
             damaged motor cylinder to the manufacturer or the
             employer’s owner demonstrate an intentional disregard of the
             employer’s interests and of his obligations as an employee.
             D.     The claimant was discharged from his most recent
             work for misconduct connected with his work.

[¶12] At the hearing Martin and Doggett testified extensively regarding Doggett’s work
on the specific motorcycles with a chipped fin and a dented cylinder. About his own
bike, Martin testified that he only discovered the chipped fin after Doggett was
terminated and after he hired another mechanic to examine the bike.

             Hearing Officer: When did you have Mr. Doggett look into


                                            5
             your bike?

             Martin: That was a motor that Tom had built for me in the
             spring of 2011.
             ….

             Hearing Officer: Okay. And when did you find out that there
             were problems with it?

             Martin: Initially the bike throughout the summer had puffed
             smoke. Uh, I … And the … And the motor always had a little
             excessive noise. I took into consideration that the motor was
             being broke in, so I didn’t, uh, I didn’t take too much concern
             about it, but towards the end of the summer I realized that on
             start-up how much smoke it was puffing and I’d . … I’d
             mentioned it to Tom and we just hadn’t had a chance to get
             back into the motor yet, but uh, I paid a mechanic that I, a new
             hire that I have here now, to go back through the motor and
             there was a lot of clearance issues with the motor.

             Hearing Officer: After Mr. Doggett was terminated from his
             employment,

             Martin: Yes, after. … But the motor was having problems
             prior to … And Tom knew about them.

             Hearing Officer: Okay. Well, if you were having so many
             comebacks from other people, customers, why would you trust
             Mr. Doggett with your own bike?

             Martin: Well, this was … I know Tom’s got the talent to do
             good work and I … don’t know why this, the year 2011 was
             just a bad year for him … maybe Tom has those answers.

[¶13] About Martin’s bike, Doggett testified:

                     But the thing about his motorcycles, when he came
             back, I was unaware that he had a ride that he was wanting to
             go on. The reason why his bike wasn’t put back together by
             the, when he got back was because I wanted to talk to him
             about the fact his pistons, his cylinders had been honed enough
             that, that every time the glaze had gotten broken on them they
             get a little bit bigger so I wanted to talk to him about possibly


                                             6
              getting a new set of pistons.

                     Well, he comes in and he’s got a ride he wants to go on
              in two days. All right? I don’t have the time to do that. He
              was upset because his motorcycle wasn’t together, came in,
              kind of got, uh, actually started off yelling at me, saying that it
              was disrespectful that his bike wasn’t back together. Well, if
              I’d have known his bike needed to be back together, I would
              have, if he’d a got, talked to me about and called me from
              Germany and said, “Hey, I want my bike back together,” I
              would have told him, “Well, you need new pistons,” and I
              would have ordered them. He’s leaving for Colorado in two
              days, so I just put his bike back together so he could go on the
              ride. I didn’t address the piston issues because he was mad,
              you know.

Also during the hearing, Mr. Martin asked Doggett, “Did you break the fin on my
cylinder head on my bike when you assembled the motor, and disguised it?” Doggett
responded:

                       When it, I was putting it on the BGS20, it chipped that
              little section out and I repaired it so that you could ride it. Uh,
              we, uh didn’t have time to … I had another cylinder, but I
              didn’t have time to have it powder coated and diamond cut for
              you, you know. I didn’t tell you about that because you
              wanted to go on, you was wanting to go on the ride, so I fixed
              it.

The Commission found that Doggett admitted to chipping the motor fin on Martin’s
motorcycle but failed to inform Martin and that Doggett was discharged from his
employment because he had chipped the motor fin on Martin’s bike and failed to inform
Martin.

[¶14] On appeal to the district court the court ruled and explained as follows:

                      A review of the record shows that, although Martin did
              not know the extent of the damage to the Employer’s Bike
              until after [Doggett] was fired, Martin did know, prior to
              [Doggett] being fired, that there were problems with the
              Employer’s Bike cause by [Doggett]. [Doggett] worked on
              the Employer’s Bike in the spring of 2011. In the process of
              putting the Employer’s Bike back together, [Doggett] chipped
              a fin. [Doggett] installed the chipped fin nonetheless. Upon


                                               7
             Martin’s return from his European vacation, he determined
             that there were problems with the Employer’s Bike. Martin’s
             testimony demonstrates that the Employer’s Bike emitted
             smoke and had a “little excessive noise.” Martin further
             testified that [Doggett] also knew of the problems with the
             Employer’s Bike. After [Doggett] was terminated from his
             employment, Martin paid a mechanic to “go back through the
             motor.” At the time, Martin discovered the issues with the
             motor. Therefore, the uncontroverted facts in the record
             demonstrate that even though Martin did not know the chipped
             fin on the Employer’s Bike was the precise cause of the
             problems associated with the Employer’s Bike, he did know
             that the Employer’s Bike had problems. Martin also knew that
             [Doggett] was the employee responsible for working on the
             Employer’s Bike. Consequently, the record reveals that
             although Martin did not know precisely the cause of the
             problems of the Employer’s Bike, [Doggett] was discharged
             from his employment for reasons associated with the chipped
             motor fin installed into the Employer’s Bike.

             Further, Martin testified that his decision to fire [Doggett]
             “was something that had been building for a couple of years
             between [Doggett] and Martin.” A review of the record shows
             that it is reasonable to conclude that [Doggett] was terminated
             from his employment because [Doggett] installed a chipped
             motor fin in the Employer’s Bike.

[¶15] Doggett claims that the Commission’s ruling is not only unsupported by the
evidence submitted at the hearing in this matter but that the evidence submitted
completely controverts the ruling. The evidence from the hearing shows that Doggett
worked on Martin’s motorcycle in the spring of 2011 and that afterwards the bike had
excessive noise and smoke. Doggett was fired in October of 2011. However, Martin did
not know about the chipped fin at the time of the discharge nor is there any evidence on
record that the repaired chipped fin affected the performance of Martin’s motorcycle.

[¶16] Bearing the foregoing facts in mind, we must also look to the evidence
surrounding the customer’s motorcycle with the dented cylinder. The installed dented
cylinder was also listed by the Commission as a portion of Doggett’s misconduct that
resulted in his termination from Strokers. At the hearing Martin did not testify that he
terminated Doggett due to the dented cylinder and furthermore, he testified that he did
not know the cylinder was dented when he fired Doggett. Doggett explained at the
hearing that if Martin would have asked, Doggett would have explained that he was not
finished working on the bike, as the cylinder came out of the box dented, the cylinder


                                            8
studs were not long enough, the foot pedal had yet to be installed, and the only reason the
cylinder was installed was to assure that the motor would fit into the frame after the
hammering to enlarge the frame to enable a good fit.

[¶17] The Commission made findings about the dented cylinder the general gist of
which is that Doggett admitted to installing a damaged motor cylinder in a customer’s
bike and did not immediately report the damage to the manufacturer or Martin. The
Commission then concluded that this demonstrated an intentional disregard of the
employer’s interests and of his obligations as an employee and justified Doggett being
discharged for misconduct.

[¶18] The district court had the task of determining whether there was substantial
evidence to support the Commission’s decision. In order to do so, the court determines if
there is “such relevant evidence as reasonable minds would accept as adequate to support
a conclusion.” Rissler & McMurry Co., 837 P.2d at 689. Unemployment compensation
statutes are to be liberally construed in favor of the claimants. In support of its decision
upholding the Commission’s decision, the district court stated:

                     The record reveals that although Martin did not know
              about the damaged cylinder specifically on the Customer’s
              Bike until after [Doggett] was fired, Martin did know that
              there were problems with the Customer’s Bike. The evidence
              and testimony also show that upon [Doggett] starting the
              Customer’s Bike it was apparent that the Customer’s Bike had
              problems because of the “excessive noise.” Problems with the
              Customer’s Bike indicated to Martin that Strokers would incur
              additional expenses in fixing the Customer’s Bike. …
              Consequently, the record demonstrates that although Martin
              did not know precisely the cause of the problems of the
              Customer’s Bike, [Doggett] was discharged from his
              employment for reasons associated with the damaged motor
              cylinder he installed into the Customer’s Bike.

[¶19] In both bike scenarios – the employer’s bike with the chipped fin and the
customer’s bike with dented cylinder – the district court accepted the Commission’s
findings, acknowledged that the “misconduct” listed by the Commission was actually
unknown by the employer at the time of Doggett’s discharge, but then unreasonably
affirmed the Commission with a generalized after-the-fact justification. The district court
concluded that the Commission was justified in its decision because the employer would
incur additional costs as a result of Doggett’s actions. However, the Commission
specifically found that

              21. The claimant told the employer’s owner that if there was


                                              9
             to be “come backs” that resulted from something he did
             wrong, he would work on that “come back” without charging
             the employer.
             22. The claimant believed he tried his best to do the work he
             did for the employer because his own professional reputation
             was a stake.

[¶20] The conclusion by the district court seems to be in direct contradiction of the
Commission’s findings. While the record does reflect that Martin was clear that his bike
was producing “excessive noise” and stated so prior to terminating Doggett, the
Commission’s findings were specific to the chipped fin and the dented motor. Those
precise instances of misconduct were not discovered until after Doggett’s termination.

[¶21] In other cases where we have determined that misconduct was proven pursuant to
the unemployment statute,

             there was evidence of a known obligation or responsibility and
             a willful and intentional failure to comply. For example, in
             Koch, ¶ 21, 294 P.3d at 894, the evidence established that
             shoveling snow was an “outstanding expectation” of the
             employee’s job duties, the employee was aware of the duty,
             and he admitted that he did not perform that task on the day
             before he was terminated. On the other hand, when the
             evidence demonstrates the employee did not willfully and
             intentionally violate a known work responsibility, we have
             consistently held that the employee did not commit
             misconduct justifying a denial of unemployment insurance
             benefits. To illustrate, an employee’s inadvertent violation of
             a company policy prohibiting visitors from leaving the mine
             check-out station without being logged in did not amount to
             misconduct in Safety Medical Services, 724 P.2d at 473, and a
             law firm employee’s failure to complete an affidavit in a
             timely fashion was an isolated instance of ordinary negligence
             which did not constitute misconduct in Aspen Ridge, ¶ 18, 143
             P.3d at 917-18. Even seemingly more egregious occurrences
             have been considered good faith errors in judgment rather than
             misconduct. In SF Phosphates, 976 P.2d at 202-03, the
             employee was entitled to unemployment benefits even though
             he made threatening statements against a former manager.

In re Ringrose, ¶ 17, 302 P.3d 900 at 905.

[¶22] Similar to the previous cases there is no evidence of a known obligation or


                                             10
responsibility and a willful and intentional failure to comply. As mentioned above, our
task is not to determine whether we agree with the outcome of the case. Dale, ¶ 22, 188
P.3d at 561. Our review is limited to whether, based upon all of the evidence presented
before it, the agency could reasonably conclude as it did. Id. We conclude that the
Commission’s decision that Doggett engaged in misconduct by chipping the motor fin on
his employer’s bike, and by installing a dented cylinder on a customer’s bike is not a
reasonable decision based upon the evidence that was before it. Given the testimony
elicited at the hearing, the employer did not know about the chipped fin or the dented
cylinder at the time of Doggett’s discharge. The hearing testimony does not support the
standard for dismissal. For that reason, the decision of the Commission is unsupported
by the record.

                                    CONCLUSION

[¶23] We reverse the district court’s decision to deny Tommy F. Doggett’s
unemployment compensation benefits and direct that benefits should be restored to him.
The district court’s decision is reversed and remanded for entry of an order reversing the
Commission’s decision.




                                             11
