Nevada Supreme Court Reports
CLARK CNTY. SCH. D. v. BUNDLEY, 122 Nev. Adv. Op. 119, 46725
(12-28-2006) CLARK COUNTY SCHOOL DISTRICT, Appellant, v.
HARRIET BUNDLEY AND EMPLOYMENT SECURITY DIVISION,
DEPARTMENT OF EMPLOYMENT, TRAINING AND REHABILITATION,
Respondents. No. 46725. Supreme Court of Nevada. December
28, 2006.
Appeal from a district court order denying judicial review
in an unemployment compensation matter. Eighth Judicial
District Court, Clark County; Kenneth C. Cory, Judge.
Reversed and remanded with instructions.
L. Steven Demaree, Assistant General Counsel, Las Vegas,
for Appellant.
Kummer Kaempfer Bonner Renshaw & Ferrario and J. Thomas
Susich, Carson City, for Respondents.
BEFORE BECKER, HARDESTY and PARRAGUIRRE, JJ.
OPINION
PER CURIAM.
In this appeal, we clarify that when an employer asserts
that a former employee’s misconduct disqualifies her from
receiving unemployment benefits, the employer bears the
burden of demonstrating that the employee’s discharge was
due to disqualifying misconduct. The employer may do this
by making an initial showing of willful misconduct related
to the employment. To avoid being disqualified from
receiving benefits, the former employee must then
demonstrate that the nature of the misconduct was not of
the type for which disqualification is warranted.
In this case, the administrative agency failed to
appropriately determine whether the employer had met its
burden to show that its former employee was discharged for
willful misconduct with regard to her unauthorized
absences. Accordingly, we reverse the district court’s
order denying judicial review of the administrative decision
awarding unemployment compensation, and we remand this
matter to the district court with instructions that it, in
turn, remand the matter to the administrative agency for
further proceedings with regard to this issue.
FACTS AND PROCEDURAL HISTORY
Respondent Harriet Bundley was discharged from her position
with appellant Clark County School District as an “in-house
suspension” teacher. According to the termination notice,
Bundley was discharged for several general reasons and,
specifically, for being “absent without leave” on eight
occasions — January 18, 19, and 20, 2005, and
February 9, 10, 17, 18, and 24, 2005 — for a total
of seven full days, despite having previously received
relevant admonishments.
Thereafter, Bundley filed for unemployment benefits, which
she was granted by respondent Employment Security Division
of the Nevada Department of Employment, Training, and
Rehabilitation. The school district challenged Bundley’s
right to receive those benefits, however, alleging that
Bundley was discharged for misconduct in connection with
her work. Specifically, the school district indicated that
Bundley had “excessive attendance” problems, of which she
had been warned could lead to job loss.
Before and at the subsequent administrative hearing, the
school district submitted as evidence four written
admonishments that Bundley had received in the fall of
2004, reminding her that she (1) had been absent five days
since the beginning of the school year, and late once; (2)
had in some instances notified the wrong person of her
absences, and was instead required to report any absences
to, and obtain approval therefor from, the principal or
assistant principal; and (3) had, apparently before May 26,
2004, experienced some problems with excessive absences
and/or absences taken before a sufficient amount of leave
had accrued. While the school’s principal stated, during
the hearing, that Bundley had been discharged for
attendance problems, her testimony focused on one
precipitating factor: Bundley’s alleged failure to report
her absences on February 17, 18, and 24, 2005. With regard
to this issue, the principal relayed that neither herself,
nor the assistant principal or school secretaries, recalled
Bundley having called in on those three days.
Bundley, on the other hand, testified that she had called
in to report those absences and had spoken once to the
assistant principal and twice to the principal. She also
testified that she was absent because she had to see a
doctor about her broken foot and, on February 24th, to take
care of her ill daughter, whose illness was apparently the
result of a continuing medical condition of which the
school was aware. Bundley averred that she had applied, or
had planned to apply, for additional sick leave from the
school’s sick leave bank. Finally, she indicated that she
was willing to submit documentation to support her claims as
to having called the school on the days in question, broken
her foot, and applied for leave from the sick leave bank.
After the hearing concluded, an appeals referee determined
that the school principal’s assertions that Bundley had not
phoned to report her absences were more credible. The
appeals referee thus concluded that Bundley was discharged
because of attendance problems and her failure to notify
her employer that she would be absent on February 17, 18,
and 24, in contravention of the school’s policy. According
to the appeals referee, Bundley’s failure to notify her
employer of her inability to report to work on those three
days constituted misconduct disqualifying her from
receiving benefits under NRS 612.385, which provides that
an employee who is discharged for work-related misconduct
may not receive benefits. Bundley administratively
appealed.
After reviewing the evidence that had been presented to the
appeals referee, the Board of Review reversed the appeals
referee’s decision, determining that Bundley had credibly
testified that her absence on the days in question was due
to her and her daughter’s illnesses and that she had timely
notified her supervisor of those absences. Noting that
Bundley was admittedly absent without leave but that nothing
appeared in the record to show that Bundley had failed to
report her absences, the Board concluded that, for
unemployment benefits purposes, mere absence resulting from
illness is not disqualifying misconduct.
The school district’s subsequent petition for judicial
review was denied, and consequently, it appeals.
DISCUSSION
When reviewing an administrative unemployment compensation
decision, this court, like the district court, examines the
evidence in the administrative record to ascertain whether
the Board acted arbitrarily or capriciously, thereby
abusing its discretion.[fn1] With regard to the Board’s
factual determinations, we note that the Board conducts de
novo review of appeals referee decisions.[fn2] Therefore,
when considering the administrative record, the Board acts
as “an independent trier of fact,” and the Board’s factual
findings, when supported by substantial evidence, are
conclusive.[fn3]
Accordingly, we generally review the Board’s decision to
determine whether it is supported by substantial evidence,
which is evidence that a reasonable mind could find
adequately upholds a conclusion.[fn4] In no case may we
substitute our judgment for that of the Board as to the
weight of the evidence.[fn5] Thus, even though we review de
novo any questions purely of law,[fn6] the Board’s
fact-based legal conclusions with regard to whether a
person is entitled to unemployment compensation are
entitled to deference.[fn7]
Disqualifying misconduct carries an element of wrongfulness
We have recognized that the protective purpose behind
Nevada’s unemployment compensation system is to provide
“temporary assistance and economic security to individuals
who become involuntarily unemployed.”[fn8] To further this
purpose, the unemployment compensation law, NRS Chapter
612, presumes that an employee is covered by the system and
does not allow the employee to waive his or her rights under
the system.[fn9] Because the system is not designed to
provide assistance to those persons who are deemed to have
become voluntarily unemployed, however, NRS 612.385
disqualifies a person from receiving unemployment benefits
“if [she] was discharged from . . . employment for
misconduct connected with [her] work.”
Disqualifying misconduct occurs when an employee
deliberately and unjustifiably violates or disregards her
employer’s reasonable policy or standard,[fn10] or
otherwise acts in such a careless or negligent manner as to
“`show a substantial disregard of the employer’s interests
or the employee’s duties and obligations to [her]
employer.'”[fn11] As we have previously suggested, because
disqualifying misconduct must involve an “element of
wrongfulness,”[fn12] an employee’s termination, even if
based on misconduct, does not necessarily require
disqualification under the unemployment compensation
law.[fn13] Instead, determining whether misconduct
disqualifies a person from receiving unemployment benefits
“requires a separate and distinct analysis”:[fn14] “[w]hen
analyzing the concept of misconduct, the trier of fact must
consider the legal definition [of disqualifying misconduct]
in context with the factual circumstances surrounding the
conduct at issue.”[fn15] Generally, then, an employee’s
absence will constitute misconduct for unemployment
compensation purposes only if the circumstances indicate
that the absence was taken in willful violation or
disregard of a reasonable employment policy (i.e., was
unjustified and, if appropriate, unapproved),[fn16] or
lacked the appropriate accompanying notice.[fn17]
As the determination of whether Bundley’s acts constituted
misconduct is, thus, a fact-based question of law, the
Board’s decision is entitled to deference.[fn18]
Nevertheless, the school district essentially argues that
the Board overlooked two ways in which Bundley engaged in
disqualifying misconduct: (1) she was admittedly absent
eight times without available leave, and she failed to
submit evidence documenting that her absences were
justified or approved, or that she had even applied for
additional leave; and (2) she failed to demonstrate that
she had timely notified the school that she would be absent
on February 17, 18, and 24, despite being aware of the
school’s policy that she do so.
The employer bears the burden of demonstrating
disqualifying misconduct
Preliminarily, we note that both of the school district’s
arguments arise from the same flawed premise — that
Bundley was responsible for demonstrating that her absences
did not constitute misconduct. Bundley, however, did not
bear the burden to demonstrate that she had not committed
disqualifying misconduct. Instead, the school district
carried the burden to show that Bundley had engaged in
conduct disqualifying her from receiving unemployment
benefits under NRS 612.385.
As several other jurisdictions have noted in similar
contexts, the discharged employee is not always aware of
the circumstances surrounding her dismissal, but rather,
the employer is in the “`unique position to know the
reasons for [the] employee’s discharge.'”[fn19] Further,
“`access to the facts relating to that discharge will be
more readily obtained by the employer than the
employee.'”[fn20] The practical result is that the employer
can usually more easily prove employee misconduct than the
employee can disprove the employer’s assertion that she
engaged in such misconduct.[fn21]
For these reasons, and in light of the unemployment
compensation system’s protective purposes, as described
above, we conclude that in Nevada, if an employer asserts
that a former employee is disqualified from receiving
unemployment benefits because that employee was discharged
due to misconduct, the employer bears the burden of so
proving by a preponderance of the evidence.[fn22] Once the
employer makes an initial showing of willful misconduct,
however, the burden shifts to the former employee to
demonstrate that the conduct cannot be characterized as
misconduct within the meaning of NRS 612.385, for example,
by explaining the conduct and showing that it was
reasonable and justified under the circumstances.[fn23]
Mere absence without leave is not disqualifying misconduct,
but an employer may meet its initial burden by
demonstrating excessive unauthorized absences
The school district asserts that, because the Board
recognized that absence without leave is misconduct leading
to termination, it necessarily erred when it determined
that no disqualifying misconduct occurred. But, as noted
above, whether Bundley’s absences disqualified her from
receiving unemployment benefits requires a separate analysis
in light of the definition of misconduct pertaining to the
unemployment compensation law — Bundley’s conduct
must have been in willful violation or disregard of the
school’s standards.
In this vein, the school district argues that Bundley’s
seven days of absences were unauthorized and in direct
contravention of school policy and prior school directives.
With respect to the latter assertion, that Bundley’s
absences violated school policy and directives, the record
does not contain the school district’s absence policy, and
the directives merely order Bundley to “[c]ome to work as
assigned,” indicating that, in the past, she had improperly
used leave that had not yet accrued and had not contacted
the right person to report her absences.[fn24] Accordingly,
it is not clear that Bundley’s 2005 absences violated any
policy or directive.
Moreover, even if Bundley’s absences were in violation of
school policy, the school district submitted no evidence to
contradict Bundley’s testimony as to the reasons for the
three absences discussed during the hearing, which the
Board concluded showed that the absences were justified.
The school district failed to contradict this testimony
even though it acknowledged that, at the time she was
discharged, Bundley had informed the school authorities
that at least some of the absences were the result of her
daughter’s illness.[fn25] Accordingly, the school district
failed to show that Bundley, whom the law presumes is an
employee covered by the system, deliberately and
unjustifiably violated any school absence policy, and the
Board’s decision with regard to the alleged policy
violations is based on substantial evidence.[fn26]
With respect to the school district’s former assertion,
that Bundley was absent without authorization eight times
within approximately one month, however, it is unclear
whether the school district met its initial burden. As
recognized by the Supreme Court of Florida, when an
employee is absent without authorization, that conduct is
inherently detrimental to the employer’s interests in
efficiently operating its business.[fn27] And if the
unauthorized absences are many, their excessiveness tends
to show a willful disregard of such interests. Accordingly,
if an employer shows a clear pattern of unauthorized
absenteeism, a presumption of willful misconduct arises,
which can be rebutted only if the former employee shows
that the absences did not constitute misconduct within the
meaning of NRS 612.385.[fn28]
Here, the Board failed to consider whether Bundley’s
admitted-to unauthorized absences were excessive, and thus
whether the school district met its initial burden to prove
willful misconduct.[fn29] Further, although Bundley then
testified that as to the nonvoluntary nature of the three
absences on which the school district based its arguments
during the administrative hearing, it is unclear whether
the other five absences in 2005 were justifiable, as they
were not discussed during the administrative hearing. Since
neither the appeals referee nor the Board adequately
considered this issue, we reverse the district court’s
decision and remand this matter with instructions that the
court remand the matter to the Board for further
proceedings with respect to this issue.[fn30]
When conflicting testimony exists, misconduct is not
necessarily demonstrated by an alleged failure to report
absences
Regarding the allegation that Bundley failed to notify the
school district of her last three absences, we recognize
that even if Bundley’s absences themselves do not
constitute misconduct, any unreasonable failure on her part
to notify the school that she was going to be absent could
show a substantial disregard of her employer’s interests so
as to disqualify her from receiving unemployment benefits
under NRS 612.385.[fn31] The school district, however, did
not show that Bundley failed to timely report her absences.
Although the school’s principal initially testified that
Bundley had not called in on February 17, 18, and 24, she
later testified that she could not recall whether Bundley
had called, and that neither the assistant principal nor the
school secretaries could remember any calls from Bundley on
those days, either. Bundley, on the other hand, insisted
that she had telephoned on each of the three days in
question and had spoken once with the assistant principal
and twice with the principal. Accordingly, as the Board was
free to rely on Bundley’s testimony,[fn32] its determination
that Bundley is not disqualified due to any failure to
notify her employer is entitled to deference.
CONCLUSION
As the employer challenging its former employee’s right to
receive unemployment benefits, under NRS 612.385’s
disqualification for misconduct provision, the school
district bore the burden of demonstrating, by a
preponderance of the evidence, that Bundley committed the
alleged misconduct. As the school district did not show
that Bundley engaged in misconduct disqualifying her from
receiving unemployment benefits with regard to school
policy and directive violations or with respect to
non-notification, the Board’s determination that Bundley
was not disqualified from receiving benefits on these
grounds is based on substantial evidence and is thus
entitled to deference. Because the appeals referee and the
Board failed to adequately consider the school district’s
assertion that disqualification was warranted based on
Bundley’s excessive unauthorized absences, however, we
reverse the district court’s order denying judicial review,
and we remand this matter to the district court so that it
may remand the matter to the Board for further proceedings
consistent with this opinion.
[fn1] State, Emp. Sec. Dep’t v. Holmes, 112 Nev. 275, 279,
914 P.2d 611, 614 (1996); see also NRS 233B.135(3).
[fn2] Kraft v. Nev. Emp. Sec. Dep’t, 102 Nev. 191, 193-94,
717 P.2d 583, 585 (1986).
[fn3] State, Emp. Security v. Hilton Hotels, 102 Nev. 606,
609, 729 P.2d 497, 499 (1986); see also NRS 612.530(4)
(providing that, “[i]n any judicial proceedings. . ., the
finding of the Board of Review as to the facts, if
supported by evidence and in the absence of fraud, is
conclusive”); Black’s Law Dictionary 105-06 (8th ed. 2004)
(defining “appeal de novo,” generally, as a procedure in
which the reviewing body considers the lower tribunal’s
record but reviews the evidence and law without deference
to the lower tribunal’s rulings).
[fn4] Kolnik v. State, Emp. Sec. Dep’t, 112 Nev. 11, 16, 908
P.2d 726, 729 (1996).
[fn5] Holmes, 112 Nev. at 279, 914 P.2d at 614.
[fn6] Kolnik, 112 Nev. at 16, 908 P.2d at 729.
[fn7] Id.
[fn8] State, Emp. Sec. v. Reliable Health Care, 115 Nev.
253, 257, 983 P.2d 414, 417 (1999).
[fn9] See id.; NRS 612.700.
[fn10] Holmes, 112 Nev. at 282, 914 P.2d at 616 (recognizing
that an employee’s deliberate violation of “a company rule
reasonably designed to protect the legitimate business
interests of his employer” may constitute disqualifying
misconduct (internal quotations omitted)); Kolnik, 112 Nev.
at 15-16, 908 P.2d at 728-29 (noting that, essentially,
before unemployment benefits may be denied for misconduct,
it must be shown that the act or acts leading to
termination involved “an element of wrongfulness” (internal
quotations omitted)).
[fn11] Kolnik, 112 Nev. at 15, 908 P.2d at 729 (quoting
Barnum v. Williams, 84 Nev. 37, 41, 436 P.2d 219, 222
(1968)); see also Holmes, 112 Nev. at 282, 914 P.2d at 616
(recognizing that the repetition of acts may show
willfulness) (citing Clevenger v. Employment Security
Dep’t, 105 Nev. 145, 150, 770 P.2d 866, 868 (1989)).
[fn12] Kolnik, 112 Nev. at 15-16, 908 P.2d at 729 (quoting
Garman v. State, Employment Security Dep’t, 102 Nev. 563,
565, 729 P.2d 1335, 1336 (1986)).
[fn13] Id. at 15, 908 P.2d at 728 (recognizing that
misconduct warranting termination and misconduct warranting
a denial of unemployment benefits are two separate issues).
[fn14] Div. Emp. Sec. v. Gardner-Denver Mach., 941 S.W.2d
13, 15 (Mo.Ct.App. 1997).
[fn15] Kolnik, 112 Nev. at 15, 908 P.2d at 729; see also
Gardner-Denver Mach., 941 S.W.2d at 15.
[fn16] See, e.g., Hilton Hotels, 102 Nev. at 608, 729 P.2d
at 499; Kraft, 102 Nev. at 194, 717 P.2d at 585; State,
Emp. Sec. Dep’t v. Evans, 111 Nev. 1118, 1119, 901 P.2d
156, 156-57 (1995) (recognizing that work absences will
disqualify a person from receiving unemployment benefits
only if the absences fall within the description of
misconduct); Gardner-Denver Mach., 941 S.W.2d at 16
(“Violation of an employer’s absence policy, which may be
adequate cause for dismissal, is not, standing alone,
necessarily a finding of misconduct connected with the
work, so as to deny unemployment benefits.”).
[fn17] Kraft, 102 Nev. at 194, 717 P.2d at 585.
[fn18] Id.
[fn19] Bean v. Montana Bd. of Labor Appeals, 965 P.2d 256,
260-61 (Mont. 1998) (quoting Parker v. St. Maries Plywood,
614 P.2d 955, 959 (Idaho 1980), and noting that “a majority
of states require an employer to bear this burden” of
proving misconduct); see also Kivalu v. Life Care Centers
of America, 127 P.3d 165, 167 (Idaho 2005) (“The burden of
proving the alleged misconduct is on the employer.”);
Business Ctrs. v. Labor & Ind. Rel. Com’n, 743 S.W.2d 588,
589 (Mo.Ct.App. 1988) (“[T]he employer has the burden of
proving misconduct. . . .” (citing Clemons v. Blache, 501
So. 2d 1020, 1022 (La.Ct.App. 1987); Santos v. Director of
Div. of Employment Sec. 498 N.E.2d 118, 120 (Mass. 1986);
Engler v. Marshall Turkey Plant, 409 N.W.2d 570, 572-73
(Minn.Ct.App. 1987); Looney v. Unemp. Comp. Bd. of Review,
529 A.2d 612, 613-14 (Pa.Commw.Ct. 1987)); Shiazza v. Com.,
Unemploy. Comp. Bd. of R., 420 A.2d 33, 34 (Pa.Commw.Ct.
1980).
[fn20] Bean, 965 P.2d at 261 (quoting Parker, 614 P.2d at
959). For example, in the underlying matter, Bundley’s
termination notice indicated that she was discharged for
being absent without leave. The hearing notice stated
merely that the issue to be decided was whether Bundley was
discharged for misconduct. Accordingly, Bundley was not
fully aware that the school district would assert that her
alleged failures to notify the school of her absences on
February 17, 18, and 24 were causes for her discharge. We
note, too, that NRS 233B.121(2)(d) requires the hearing
notice to include “[a] short and plain statement of the
matters asserted” and provides that, if the notice merely
states the relevant issues, a party may obtain by request
“a more definite and detailed statement.” See also NAC
612.225(3) (limiting the hearing’s scope “to issues
identified in the notice of hearing, unless the parties are
provided with proper notice and the opportunity to request
a continuance with respect to other issues”).
[fn21] Bean, 965 P.2d at 261.
[fn22] See Dalton Brick & Tile Company v. Huiet, 115 S.E.2d
748, 750 (Ga.Ct.App. 1960) (stating that an employer
seeking to deny unemployment benefits to an otherwise
eligible employee under an excepting clause must prove that
the excepting clause applies “by a preponderance of the
evidence”); Charbonnet v. Gerace, 457 So. 2d 676, 679 (La.
1984) (same); Lumpkin v. North Central Airlines, Inc., 209
N.W.2d 397, 400 (Minn. 1973) (providing that the employer
must establish disqualifying misconduct for unemployment
benefits purposes by the “greater weight of the evidence”).
[fn23] See, e.g., Mason v. Load King Mfg. Co., 758 So. 2d
649, 654 (Fla. 2000); Cargal v. Review Bd. of Ind. Empl.
Sec. Div., 428 N.E.2d 85, 87 (Ind.Ct.App. 1981); Kelly v.
Unemploy. Comp. Bd. of Review, 747 A.2d 436, 438-39
(Pa.Commw.Ct. 2000); Virginia Employment Com’n v. Gantt,
376 S.E.2d 808, 811 (Va.Ct.App. 1989), opinion adopted on
en banc rehearing, 385 S.E.2d 247 (Va.Ct.App. 1989).
[fn24] Bundley, when testifying before the appeals referee,
indicated that the school’s policy was to allow up to five
consecutive days’ absence before any action to discharge
the employee was taken, which did not occur here.
[fn25] See Croy v. Division of Employment Security, 187
S.W.3d 888, 893 (Mo.Ct.App. 2006) (recognizing that
absences due to illness or emergency are generally not
considered willful misconduct, especially when reported,
and that when the employer fails to provide evidence of its
relevant policies and the alleged misconduct, including
whether any claimed illness existed, no disqualification is
warranted); Randolph M. James, P.C. v. Lemmons, 629 S.E.2d
324, 332 (N.C.Ct.App. 2006) (noting that an employee has
little control over absences caused by illness, so that
disqualification may not be warranted therefor). We note
that the record contains no indication that the school
district even requested documentation as to Bundley’s or
her daughter’s illnesses and doctor’s appointments. See
generally NAC 612.225(2) (providing that, upon showing
necessity, a party may obtain a subpoena).
[fn26] See Wright v. State, Dep’t of Motor Vehicles, 121
Nev. 122, 125, 110 P.3d 1066, 1068 (2005) (recognizing that
substantial evidence can be “`inferentially shown by [a]
lack of [certain] evidence'” (quoting City of Reno v.
Estate of Wells, 110 Nev. 1218, 1222, 885 P.2d 545, 548
(1994))).
[fn27] Mason, 758 So. 2d at 653.
[fn28] Id. at 654 (noting that, before the burden will be
shifted to the former employee, the employer must present
“satisfactory proof . . . of a serious and identifiable
pattern of excessive absenteeism”); id. at 656 (pointing
out that the employer’s burden of proving excessive
unauthorized absenteeism is a “heavy” one).
[fn29] We note that Bundley submitted evidence showing that
she joined the sick leave bank the following school year,
and she indicated that she thought that she would be able
to obtain additional leave therefrom to cover her January
and February 2005 absences. In reviewing this issue on
remand, these assertions should also be considered in
determining whether the school district met its burden.
[fn30] See, e.g., id. at 655-56 (concluding that the
employer’s proof that the former employee had four
absences, four late arrivals, and one early quitting time
was sufficient to show willful misconduct, but discussing,
with approval, the trial court’s conclusion in Blumetti v.
Unemployment Appeals Com’n, 675 So. 2d 689, 691
(Fla.Dist.Ct.App. 1998), that the employer failed to meet
its initial burden of showing excessive absenteeism when
some of the absences relied upon where not shown to be the
former employee’s fault); see also Tallahassee Primary Care
v. Florida UAC, 930 So. 2d 824 (Fla.Dist.Ct.App. 2006)
(concluding that the employer presented competent evidence
of excessive and unauthorized absences, but that the former
employee had rebutted the presumption of misconduct arising
therefrom by showing that her absences were due, among
other things, to her sick child).
[fn31] Kraft, 102 Nev. at 194, 717 P.2d at 585.
[fn32] The school district also argues that the Board’s
decision was arbitrary and capricious because, even though
it considered no additional evidence, it came to the
opposite credibility determinations as did the appeals
referee, without any grounds on which to do so. See Reno v.
Estate of Wells, 110 Nev. 1218, 1222, 885 P.2d 545, 548
(1994) (recognizing that “arbitrary” and “capricious” have
been defined, in the governmental action context, as “`an
apparent absence of any grounds or reasons for the
decision'” (quoting Tighe v. Von Goerken, 108 Nev. 440,
442-43, 833 P.2d 1135, 1136 (1992))). As noted above,
however, the Board is free, during its de novo review, to
review the evidence without deferring to the appeals
referee’s conclusions. Further, the Board’s decision to
afford the school’s principal’s testimony less weight was
not unreasonable; although Bundley asserted that she had
phoned the school to report her absences, the principal
merely could not recall whether she had received any calls,
and the school district did not provide any additional
evidence demonstrating that Bundley did not call. See,
e.g., Hilton Hotels, 102 Nev. at 609, 729 P.2d at 499
(noting that the Board was free to assign probative values
to testimony adduced during a hearing).