Shumway v. IDOL

                       IN THE SUPREME COURT OF THE STATE OF IDAHO
                                      Docket No. 50045

AMY SHUMWAY,                              )
                                          )
      Claimant-Respondent,                )                   Boise, August 2023 Term
                                          )
v.                                        )                   Opinion filed: December 28, 2023
                                          )
EVANS CHIROPRACTIC,                       )                   Melanie Gagnepain, Clerk
PA, Employer,                             )
                                          )
      Defendant-Appellant,                )
                                          )
and                                       )
                                          )
IDAHO DEPARTMENT OF                       )
LABOR,                                    )
                                          )
      Respondents.                        )
__________________________________________)


           Appeal from the Idaho Industrial Commission.

           The decision of the Idaho Industrial Commission is reversed.

           Cooper & Larsen, Chtd., Pocatello, attorney for Appellant, Evans Chiropractic, P.A.
           Anthony Budge argued.

           Raúl R. Labrador, Idaho Attorney General, Boise, for Respondent, Idaho Department
           of Labor. Douglas Werth argued.

           Amy Shumway, pro se.

BEVAN, Chief Justice.
           This appeal stems from an Idaho Industrial Commission (“Commission”) decision that
awarded unemployment benefits to Amy Shumway.1 Shumway’s employment was terminated by
her employer, Appellant Evans Chiropractic, PA (“Evans Chiropractic”), for alleged misconduct.
Shumway applied for unemployment benefits, and an Appeals Examiner with Respondent Idaho



1
    Shumway is not participating in this appeal.
                                                   1
Department of Labor (“IDOL”) entered a determination finding Shumway eligible for benefits.
Evans Chiropractic appealed to the Commission, which affirmed IDOL’s decision but on different
grounds. Evans Chiropractic timely appealed to this Court. Evans Chiropractic argues that the
Commission should have found Shumway ineligible for benefits because her employment was
terminated for job-related misconduct. Evans Chiropractic asks this Court to reverse the
Commission’s decision and hold that Shumway is not eligible to receive benefits as a matter of
law. IDOL maintains that the Commission did not apply the correct legal standards, but it contends
that the proper procedure is to vacate the Commission’s award and remand the case. For the
reasons below, we reverse the Commission’s decision and hold that Shumway is ineligible for
benefits as a matter of law.

                            I.    FACTUAL AND PROCEDURAL BACKGROUND
        On June 15, 2019, Shumway was hired to work as a front desk receptionist for Evans
Chiropractic. Evans Chiropractic provides chiropractic and massage care for its patients. It shares
an office space with Brizee Family Medicine in Pocatello, Idaho. The owners of Evans
Chiropractic—Dr. Nathan Evans (“Evans”) and Dr. John Hitchcock (“Hitchcock”)—share certain
employees, such as receptionists, with Dr. David Brizee (“Brizee”) of Brizee Family Medicine.2
All providers share the same reception area. Shumway testified that Brizee had hired her, but the
Commission found she was hired by Evans. It is undisputed that Hitchcock did not hire her.
        Hitchcock terminated Shumway’s employment on or about April 14, 2022, for
insubordination. Although Hitchcock testified that Shumway had been discharged for several
reasons, the primary reason was that Shumway never saw him as her boss, and that she refused to
meet with him on several occasions. Hitchcock testified as follows:
            [Shumway], towards the end especially, never really saw me as her – as her
            boss and so it was very difficult to work with [her] or to have her come in for
            meetings. In fact, multiple times she refused to come meet with me and so that
            was the ultimate reason. There is [sic] others, but that was the main reason. I
            think on the third time I tried to – to communicate I needed to meet with her,
            she still refused, and that was the date that we ended up letting her go.
        The relationship between Shumway and Hitchcock began deteriorating following an
incident around March 16, 2022, when Shumway believed Hitchcock had left a patient on a muscle


2
 The Commission erroneously referred to a “Dr. Handcock” several times in its decision and order. In its opening
brief, Evans Chiropractic clarifies there is no Dr. Handcock at Evans Chiropractic.
                                                       2
stimulation therapy too long. As a result, Shumway informed the patient he did not need to pay for
his visit. Hitchcock, however, disagreed, and he directed Shumway to collect payment from the
patient. Shumway admitted that this event made her upset with Hitchcock.
       The next day, Shumway asked to have a private meeting with Evans to discuss her concerns
about Hitchcock. In her meeting with Evans, Shumway shared that Hitchcock commented that “he
had made it very well known that he had been the one that had fired massage therapists in the past
and he lorded it over our head to the point where you felt very intimidated by that and felt that if
you pushed his buttons the wrong way or if you got on his bad side that you would be terminated.”
Evans informed Shumway that he would talk to Hitchcock and get back to her.
       On March 22, Evans called Shumway to the back of the office and said Hitchcock would
like to speak with her to apologize. Shumway told Evans she did not feel comfortable being alone
with Hitchcock. Evans “suggested very heavily” that Shumway speak with Hitchcock, and so she
did. Shumway said her subsequent conversation with Hitchcock was “pretty intense.” Near the end
of the conversation, Shumway told Hitchcock to “stop micromanaging the scheduling up front.”
At that point, Shumway reported that Hitchcock’s “ears got bright red and he sat up in his chair,
he got very – his face – you know, you could tell that he was very upset . . . .” Shumway testified
that Hitchcock told her that “you are going to have to speak with me if you want to continue to
work here . . . .” Shumway said she did not feel comfortable after Hitchcock made that comment,
and she left the room.
       Around March 31, Shumway had another one-on-one meeting with Evans. In that meeting,
Shumway apologized for the situation with Hitchcock after which Evans reportedly assured
Shumway that her job was safe and that everything would be okay.
       Because Shumway worked in an open reception area in the front of the office and
Hitchcock was generally in a back office, Hitchcock tried to keep personnel matters private by
asking Shumway to talk to him in his office. Because his office was some distance from
Shumway’s workspace, when Hitchcock wanted to talk with Shumway he typically would
communicate via Skype and ask her to come back to see him. Hitchcock testified he tried to meet
with Shumway on April 4 and again on April 13 to no avail. Hitchcock explained that he had sent
Shumway a Skype message and worked in his office while he waited for her to come back, but
when he would go to the front office, he would see Shumway had already left. Shumway testified
that she did not meet with Hitchcock following the March 22 meeting because she did not feel
                                                 3
comfortable speaking to him alone. Together with attempting to meet with Shumway privately,
Evans Chiropractic held employee group meetings to address problematic behavior so Shumway
would not feel singled out.
       According to Hitchcock, Shumway was intense and antagonized patients and other
employees with her behavior. For example, Hitchcock testified that several employees had
expressed difficulties working with Shumway, which caused them to leave work early and some
even threatened to quit. Hitchcock also recounted several times when his patients complained that
Shumway was rude to them.
       Several employees told Hitchcock that Shumway said she was not willing to work for him
after the March 16 patient treatment/payment issue and she would not send out his appointment
reminders. Shumway denied that she deliberately failed to send out Hitchcock’s appointment
reminders, testifying that she must have gotten busy and forgotten to send them out. But she
admitted she had not forgotten to send out appointment reminders for the other two providers.
       Despite these problems, Evans and Hitchcock were willing to overlook many complaints
because Shumway did the focus of her job well. Evans Chiropractic had no written policies in
place to handle workplace conflicts.
       On Thursday, April 14, 2022, to make sure Shumway met with him, Hitchcock waited in
the conference room so Shumway could not leave without walking by him. When she walked by,
Hitchcock called her into the conference room and informed Shumway that her employment was
being terminated. Shumway felt Hitchcock fired her in retaliation for the March 16 patient
treatment/payment issue and testified that she would have preferred to have been fired by the
doctor who she says hired her, Brizee.
       After being fired, Shumway applied for unemployment benefits. Evans Chiropractic
contested her eligibility. Following a hearing in which both Shumway and Hitchcock testified, the
IDOL Appeals Examiner determined that Shumway had been discharged for insubordinate
conduct. Despite that finding, the Appeals Examiner held Shumway was eligible for benefits
because Shumway had never been put on notice that failure to meet with Hitchcock would result
in termination:
       The employer discharged the claimant for insubordinate conduct. . . . Without
       argument, the employer has a right to expect employees to meet with it when
       requested. This is a standard expectation in the workplace. However, . . . had the


                                               4
       claimant been put on notice that her failure to meet with the owner would result in
       discharge, this might well have had a different outcome.
       Evans Chiropractic appealed the decision to the Commission. The Commission concluded
that Shumway was eligible for benefits because Evans Chiropractic had failed to show that
Shumway breached a clearly communicated expectation of her employment. Evans Chiropractic
timely appealed to this Court.
                                  II.    STANDARDS OF REVIEW
       “In appeals from the Commission, this Court’s review is limited to questions of law, ‘which
include whether the Commission’s factual findings are supported by substantial and competent
evidence and the application of the facts to the law.’” Hiatt v. Health Care Idaho Credit Union,

, 

 (2020) (quoting Harper v. Idaho Dep’t of Labor, 

, 

 (2016)). When, as here, the employee was separated from employment
by a discharge, the employer has the burden of proving that the employee was discharged for
employment-related misconduct. Copper v. Ace Hardware/Sannan, Inc., 

, 

 (2016); IDAPA 09.01.30.275.01.

                                         III.   ANALYSIS
   A. The Commission erred by concluding that Evans Chiropractic had failed to meet its
      burden of proving Shumway was fired for job-related misconduct.
       Evans Chiropractic argues there is substantial evidence in the record that Shumway was
insubordinate when she continuously refused to comply with Hitchcock’s reasonable expectation
to meet to discuss her behavior at work. Thus, it argues there is sufficient evidence that Shumway
was terminated for job-related misconduct and that this Court should reverse the Commission’s
decision and hold Shumway is ineligible to receive benefits. IDOL agrees the Commission
misapplied the law in reaching its decision, but it argues that this conclusion requires a remand to
the Commission for further proceedings.
       Reviewing the record, we conclude that the Commission erred when it determined that
Evans Chiropractic failed to meet its burden of proving that Shumway was terminated for job-
related misconduct. “Claimants who have become unemployed through no fault of their own may
be entitled to unemployment insurance benefits.” Hiatt, 

, 

. But a
claimant is not entitled to benefits where the claimant’s unemployment is “because of the
claimant’s discharge for misconduct in connection with the claimant’s employment.” I.C. 72-

                                                 5
1366(5). As noted above, “[t]he burden of proving that a claimant was discharged for employment-
related misconduct rests with the employer.” IDAPA 09.01.30.275.01.
       “The focus of the inquiry is not whether the employer’s reason for discharge was
reasonable but, rather, whether the misconduct was work-related so as to make the employee
ineligible for unemployment benefits.” Adams v. Aspen Water, Inc., 

, 

 (2011) (citing Beaty v. City of Idaho Falls, 

, 

(1986)). Misconduct is defined in three ways: (1) a willful, intentional disregard of the employer’s
interest; (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 its employees. IDAPA
09.01.30.275.02.a-c. The claimant's subjective state of mind is irrelevant. IDAPA
09.01.30.275.02.c.
       Evans Chiropractic fired Shumway for insubordination. Insubordination may satisfy any
of the three categories of misconduct identified in IDAPA 09.01.30.275.02. But this Court has
noted that analyzing insubordination under the third category of misconduct, the “standards of
behavior” test, appears to be the most appropriate category. Folks v. Moscow Sch. Dist. No. 281,

, 

 (1997). We will thus apply this test to our analysis here.
       In a standards of behavior case, the test for misconduct is identified in Idaho’s regulations.
The Commission, as factfinder, must determine both of the following:
       i. Whether the claimant’s conduct fell below the standard of behavior expected
          by the employer; and
       ii. Whether the employer’s expectation was objectively reasonable in the
           particular case.
IDAPA 09.01.30.275.02.c.i–ii.
       The first condition addresses what the employer subjectively expected from the employee,
and the second considers whether the employer’s expectations are objectively reasonable. See
Adams, 

, 

. In Adams, we defined what “objectively reasonable”
means for an employer:
               In order for an employer’s expectation to be objectively reasonable, the
       expectation must be communicated to the employee, unless the expectation is the
       type that flows naturally from the employment relationship. An expectation flows
       naturally from the employment relationship when the expectations are common
       among employees in general or within a particular enterprise. Such expectations
       are generally limited to fundamental expectations and do not involve specific rules
                                                 6
       unless clearly embodied in the job at issue. See, e.g., Pimley v. Best Values, Inc.,
       

, 

 (1999) (holding that a retail employer has a
       reasonable expectation flowing naturally from the employment relationship that its
       employees will not make vulgar comments about coworkers and supervisors in the
       presence of customers and other coworkers); Bullard v. Sun Valley Aviation, Inc.,
       

, 

 (1996) (finding that an employer’s
       expectation that an employee will comply with federal rules and the employer’s
       manual, which both required permission prior to crossing a runway, flowed
       naturally from a line service position at an airport). In other words, the relevant
       question is whether the employee has breached “a standard of behavior that would
       flow normally from an employment relationship or which was communicated to
       [the employee] because of its uncommon nature.” Wulff v. Sun Valley Co., 

, 

 (1995).
Adams, 150 Idaho at 413–14, 247 P.3d at 640–41 (alterations in original).
       Thus, an expectation that flows naturally need not be communicated to an employee to be
objectively reasonable. Hiatt, 

, 

 (citing Adams, 

,

). “An expectation flows naturally from the employment relationship when the
expectations are common among employees in general or within a particular enterprise.” Adams,

, 

 (citing Appeals Exam’r of Idaho Dep’t of Labor v. J.R. Simplot
Co., 

, 

 (1998)).
       1. The Commission misapplied the standards of behavior test.
       We first take this opportunity to correct a misstatement of law by the Commission. Citing
Puckett v. Idaho Department of Corrections, 

, 

 (1985), the
Commission wrote that “[a]n employee can only be held accountable for breaching those
expectations that he or she understood, explicitly or implicitly, and was capable of satisfying.”
Puckett does not stand for this proposition. The Commission read too much into the following
statement in that case: “there is substantial evidence demonstrating that Puckett was indeed aware
and warned of his employer’s expectations.” 

 While it may be good practice for an employer to
communicate its expectations to its employees, it is not required to do so. We reiterate that the
correct statement of law is that under the standards of behavior test, an employer’s expectation is
objectively reasonable when it is either: (a) communicated to the employee; or (b) flows naturally
from the employment relationship. An expectation that flows naturally need not be communicated
to an employee to be objectively reasonable. Hiatt, 

, 

.


                                                7
        With this clarification noted, we hold the Commission misapplied the standards of behavior
test when it concluded that Evans Chiropractic failed to establish Shumway breached an
expectation that had been communicated to her. The correct application of the standards of
behavior test addresses “what the employer subjectively expected from the employee”—not the
subjective expectations of the employee. Adams, 

, 

 (emphasis
added). Here, the Commission incorrectly focused on Shumway’s subjective reasons for not
meeting with Hitchcock, rather than on Hitchcock’s and Evans Chiropractic’s expectations of
Shumway. Therefore, the Commission misapplied the standards of behavior rule for misconduct.

        2. Some of the Commission’s findings of fact are not supported by substantial evidence in
           the record.
        As we apply the facts to the appropriate law here, the Commission’s conclusion that Evans
Chiropractic failed to prove Shumway had been fired for job-related misconduct is not supported
by substantial evidence in the record. The Commission found (1) that Shumway was reasonable in
expecting that any meeting with Hitchcock would include a witness, (2) that Shumway was never
warned her job might be in jeopardy if she failed to meet with Hitchcock, and (3) that criticism or
concerns from Evans were addressed in a team meeting that allegedly took place on April 14,
2022.3 As we discuss below, reasonable minds would not accept the evidence in the record to
support the Commission’s conclusions. See Hartgrave v. City of Twin Falls, 

, 351,

 (2018).
        To start, nothing in the record suggests that Shumway asked Hitchcock or Evans if another
employee or supervisor could be present at meetings involving her and Hitchcock. Shumway told
Evans that she felt uncomfortable meeting with Hitchcock by herself, but this request came after
the first meeting between Hitchcock and Shumway in which Hitchcock informed Shumway that
they had to work together. Rather than ask for a witness to be present thereafter, Shumway’s
response was to repeatedly ignore Hitchcock and avoid meeting with him. As a result, there is no
substantial support in the record for the Commission’s finding that Shumway was reasonable in
refusing to meet with Hitchcock unless such a meeting included a witness. Instead, the opposite
was true. Shumway committed insubordination by repeatedly refusing to meet with Hitchcock.



3
 It appears no meeting occurred on April 14, as we discuss below, although there is no dispute that the concerns were
addressed in a team meeting at some point.
                                                         8
         The record likewise does not support the Commission’s finding that Shumway was never
warned that her job might be in jeopardy if she refused to meet with Hitchcock. The Commission
wrote:
                As of April 14, 2022, Dr. [Hitchcock] had met with [Shumway] regarding
                the incident on March 16, 2022, and Dr. Evans had met with [Shumway] to
                discuss her interactions with another employee. In neither case was
                [Shumway] told her job was in jeopardy. In fact, Dr. Evans assured
                [Shumway] that her job was not in jeopardy.
         The Commission’s conclusion, however, is not supported by substantial and competent
evidence. Hitchcock’s and Shumway’s testimony established that Shumway was put on notice that
her continued refusal to meet with Hitchcock could adversely affect her employment. Hitchcock
testified that, following that March 16 incident, he told her “we needed to work it out, because we
were both going to work here for a long time and needed to figure out a way to work better together
. . . .” According to Shumway’s own testimony, Hitchcock told her, “[Y]ou are going to have to
speak with me if you want to continue to work here” but, at that time, Shumway said she did not
feel comfortable and left the room. The Commission disregarded this direct testimony, including
Shumway’s own statement, in concluding Shumway was never told her job might be in jeopardy
and that she was never warned about her refusal to meet with Hitchcock.
         Finally, the Commission relied on this Court’s holding in Oxley v. Medicine Rock
Specialties, Inc., 

, 

 (2003), in finding for Shumway. In Oxley, we held
that an employer cannot discipline an employee (short of discharge) and then later discharge the
employee for the past behavior unless the employer can show the employee engaged in the same
behavior again. Applying this proposition, the Commission found that Shumway was part of a
team meeting on April 14, 2022, at which Hitchcock addressed his concerns about the March 16
incident, and then fired Shumway for the same conduct right after the meeting.
         There is no evidence that any group meeting took place on April 14 prior to Shumway’s
firing. Hitchcock testified about several group meetings but did not describe any meeting occurring
on or around April 14. Shumway also described several group meetings, but not one on the date
she was fired. Because there is no evidence in the record that a team meeting took place on April
14, 2022, the Commission’s finding that such a meeting occurred is clearly erroneous.
         In short, the Commission’s conclusion that Evans Chiropractic failed to prove Shumway
committed job-related misconduct is not supported by substantial evidence in the record.

                                                9
       3. The Commission’s factual findings support a different result: that Shumway’s actions
          constitute misconduct under the standards of behavior test.
       As stated above, the test for misconduct in a standards of behavior case requires the
Commission to determine both of the following: (1) the claimant’s conduct fell below the standard
of behavior expected by the employer; and (2) the employer’s expectation was objectively
reasonable. IDAPA 09.01.30.275.02.c.i–ii. Under the second prong of the test, an employer’s
expectation is objectively reasonable when it was either (a) communicated to the employee, or (b)
was one that “flows naturally” from the employment relationship. Hiatt, 

, 

 (citing Adams, 

, 

). An expectation that “flows
naturally” need not be communicated to an employee to be objectively reasonable. 

       First, the Commission’s “Findings of Fact” show that Shumway’s conduct fell below the
standard of behavior expected by Evans Chiropractic. Evans Chiropractic required Shumway to
meet with Hitchcock, but Shumway refused to meet with him on several occasions. The
Commission found that Shumway left the March 21 meeting with Hitchcock of her own volition,
and that Shumway failed to meet with Hitchcock after his repeated messages asking to meet with
her. Shumway’s failure to meet with Hitchcock satisfies the first prong of misconduct because her
conduct fell below the standard of behavior expected by her employer.
       Second, the Commission’s Findings of Fact show that Evans Chiropractic’s expectation
that Shumway meet with Hitchcock was objectively reasonable because that expectation was
directly communicated to Shumway. Evans told Shumway that Hitchcock wanted to meet with her
in advance of the March 21 meeting, but Shumway left that meeting. As indicated above, the
Commission also found that Hitchcock sent Shumway Skype messages on April 4 and 13 asking
her to meet with him. Evans’ requests for Shumway to meet with Hitchcock were clearly
communicated, which satisfies the second prong stated in Adams that the employer’s expectation
was objectively reasonable. 150 Idaho at 413–14, 247 P.3d at 640–41. Because these requests were
directly communicated and disregarded, there is no need for this Court to consider whether any
requests to meet with Shumway “flowed naturally” from the employment relationship. As a result,
we hold as a matter of law that Shumway was discharged for employee misconduct, and she is
ineligible for unemployment benefits.
       IDOL argues that we must remand this case to the Commission to reapply the law to the
facts set forth herein. We decline to do so because there is no reasonable dispute about the two

                                               10
prongs of the standards of behavior test being met. We apply this Court’s precedent from Stark v.
Assisted Living Concepts, Inc, 

, 

 (2012), to reach this
conclusion.
       In Stark, the employer operated assisted living facilities, and the claimant was a residence
director at one of the facilities. 

, 

. During a conversation with the
employer’s regional director of sales, Stark asked about a rumor that another facility was closing.

 Soon after, the employer’s CEO telephoned Stark and asked her about the source of the rumor.

 The employer’s CEO requested this information several times, but Stark felt uncomfortable
giving the CEO the names of her co-workers who gave her that information and refused to say
where she had heard the rumor. 

 Stark was eventually discharged because she refused to follow
a direct order from the CEO. 

, 

.
       The Commission found that Stark’s refusal to name the source of the rumor did not
constitute job-related misconduct and awarded benefits. 

 On appeal, this Court reversed the
Commission’s decision, holding that “[a]s a matter of law, Claimant’s conduct constituted
misconduct in connection with her employment under Idaho Code section 72-1366(5).” 

,

.
       Here, just as the employer in Stark, Hitchcock testified that he directly asked Shumway to
meet with him several times. Shumway, by her own testimony, ignored his requests and refused
to meet with Hitchcock, stating that she felt uncomfortable being alone with him. “The claimant’s
subjective state of mind is irrelevant.” IDAPA 09.01.30.275.02.c. As we explained previously, the
record on this point shows that Shumway violated a clearly communicated expectation that
Shumway meet with the employer. Therefore, the Commission based its decision in this case on
undisputed facts but reached an incorrect legal conclusion. We thus reverse its decision.

   B. We will not reach the additional grounds argued by IDOL and Evans Chiropractic to
      reach our decision.
       Both parties argue additional grounds related to their respective positions. IDOL argues
that if the case is remanded, this Court should make clear to the Commission that the “intentional
disregard of the employer’s interest” prong of misconduct does not require the employer prove
that the employee acted with “premeditated malice.” For its part, Evans Chiropractic argues that
if Shumway’s refusal to meet with Hitchcock is not misconduct, the Court should find that her
allegedly deliberate failure to send appointment reminders to Hitchcock’s patients constitutes an

                                                11
alternate basis for misconduct. Having decided that this case does not require remand because
Shumway’s refusal to meet with Hitchcock constituted misconduct, we decline to address the other
legal grounds asserted by Evans Chiropractic and IDOL in this matter.
                                     IV.    CONCLUSION
       As a matter of law, Shumway’s unemployment was because of her discharge for
misconduct in connection with her employment and she is not entitled to benefits under Idaho
Code section 72-1366(5). We reverse the order of the Industrial Commission.

       JUSTICES BRODY, STEGNER, MOELLER, and ZAHN CONCUR.




                                              12