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Avenarius v. Employment Appeal Board

Court of Appeal of Iowa

November 20, 2013

THOMAS R. AVENARIUS, Claimant-Appellant,

Appeal from the Iowa District Court for Dubuque County, Michael J. Shubatt, Judge.

A former employee appeals the Employment Appeal Board's denial of unemployment benefits.

Steven J. Drahozal of Drahozal Law Office, P.C., Dubuque, for appellant.

Rick Autry of the Employment Appeal Board, Des Moines, for appellee.

Considered by Vogel, P.J., and Mullins and McDonald, JJ.


Thomas Avenarius appeals the district court's denial of his petition for judicial review, which sought to reverse the decision the Employment Appeal Board (EAB) denying him unemployment benefits. Avenarius asserts on appeal the district court erred as a matter of law by affirming the EAB's decision because he was not discharged for misconduct. Because we find substantial evidence supports the EAB's decision and we do not find the decision illogical, irrational, or wholly unjustifiable, we affirm the district court's denial of Avenarius's petition for judicial review.


Avenarius worked part time for Dubuque Fire Equipment, which is owned and operated by Avenarius's niece, Maggie Blaser, and her husband, Tom. The company decided to remodel the shop in December 2008 and placed Avenarius on temporary leave because there was nowhere for him to work during the remodel. In January 2009, Maggie discovered, while doing the year-end bookkeeping, Avenarius had been using the company gas card for personal use. She calculated over $4000 in gas purchases had been made over the past year. The usage was not caught earlier because Avenarius's daughter, Tamara, was doing the daily bookkeeping and paying the invoices without proper documentation from Avenarius. The gas card was even used by Avenarius after he was placed on temporary leave due to the remodel.

While Avenarius was still on leave, Maggie contacted him to obtain the card number and canceled the card. The Blasers also contacted the police to file charges against Avenarius but were told because it involved a family member it would not be pursued. The Blasers then filed an action in small claims court to recover the money Avenarius spent using the gas card.

This matter came before the EAB after the Blasers protested Avenarius's claim for unemployment benefits commencing in September 2009, approximately nine months after the temporary layoff began and six months after he would have been recalled following the remodel project. The Blasers maintained that Avenarius was fired for misconduct after they discovered he had made unauthorized purchases with the gas card. They also discovered he had been working with his son-in-law since March 2009 at a competing fire extinguisher business and soliciting their customers.

After a hearing in front of an administrative law judge (ALJ), Avenarius was denied unemployment benefits. The ALJ found Avenarius's testimony—that he was authorized to use the gas card in lieu of a pay raise—was not credible. The ALJ found the improper use of the gas card constituted misappropriation of the employer's property and was misconduct as defined in unemployment insurance law. Avenarius was "in essence, terminated due to his conduct and was not returned to work by the employer as planned on March 1, 2009." The ALJ also found Avenarius was not able and available for work during the period in question due to the services he was performing for his son-in-law's company. While he did not receive compensation for his time working for this company, he was devoting time and effort to becoming employed by his son-in-law once the new company was successful enough to afford to pay him. The ALJ also found there was no evidence he was actively looking for work during the time in question.

Avenarius appealed this decision to the EAB, which adopted the ALJ's decision as its own. A rehearing request was denied.

Avenarius then filed a petition for judicial review. After a hearing the district court affirmed the EAB's decision, denying the petition. The court found substantial evidence supported the agency's finding that the employer discharged Avenarius for misconduct on or about March 1, 2009, when it did not recall Avenarius from the temporary lay-off. Because it found substantial evidence, the district court concluded the agency's decision that Avenarius committed disqualifying misconduct was not wholly unjustifiable. The district court did not ...

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