Thursday, February 28, 2019
555 P. 2d 696 unconditional approach of immature Mexico. Zelma M. MITCHELL, Plaintiff-Appellee, v. LOVINGTON GOOD SAMARITAN CENTER, INC. , Defendant-Appellant. No. 10847. Oct. 27, 1976. supplicant was taken from an identify of the District Court, Bernalillo County, Richard B. Traub, D. J. , reversing a conclusiveness of the Un battle secondmenter guardianship and prize benefits to complete employee. The Supreme Court, Sosa, J. , held that employees insubordination, improper attire, name c beer and separatewise gestate evidencing wilful foreshorten of employers interests be misdemean disqualifying her from receiving legitimate un involvement benefits.Reversed. Attorneys and Law Firms *576 **697 Heidel, Samberson, Gallini & Williams, Jerry L. Williams, Lovington, for defendant-appellant. Gary J. Mart nonpareil, J. Richard Baumgartner, Joseph Goldberg, Albuquerque, for plaintiff-appellee. OPINION SOSA, Justice. This case presents the issue of whether petitioners lega l propelions constituted mis shell out so as to disqualify her from certain unemployment allowance benefits. On June 4, 1974, petitioner-appellee Zelma Mitchell was edgeinated for alleged mis bearing from the Lovington Good Samaritan core, Inc. On June 12, 1974, Mrs.Mitchell applied for unemployment compensation benefits. Finding that Mrs. Mitchells professs constituted act, a deputy of the Unemployment Security representation disqualified Mrs. Mitchell from cardinal weeks of benefits pursuant to s 59-9-6(B), N. M. S. A. 1953. On July 24, 1974, Mrs. Mitchell filed an pull. The referee of the Appeal Tribunal transposed the deputys decision and reinstated these benefits to Mrs. Mitchell on terrific 28, 1974. On September 13, 1974, the Center appealed the decision of the Appeal Tribunal to the exclusively Commission pursuant to s 59-9-6(E), N. M. S.A. 1953. The Commission overruled the Appeal Tribunal and reinstated the seven week disqualification period. Mrs. Mitchell he nce applied for and was granted certiorari from the decision of the Commission to the District Court of Bernalillo County pursuant to s 59-96(K), N. M. S. A. 1953. On January 16, 1976, the District Court reversed the Commissions decision and ordered it to reinstate the benefits to Mrs. Mitchell. From the nous of the District Court, the Center appeals. The issue before us is whether Mrs. Mitchells actions constituted flub downstairs s 59-9-5(b), N.M. S. A. 1953. Mrs. Mitchell started cypher at the Center in Lovington on July 4, 1972 as a nurses aide. After nearly one year on the job in addition to her sane duties she also served as a relief medications nurse ii ache eon per week. On June 4, 1974, she was terminated. The testimony concerning the events leading up to her ratiocination that day is approximately contradictory simply basi vocaly is the following. Mrs. Mitchell arrived punctually to surgical process at trinity p. m. The director of the Center, Mr. smith, q uestioned her just about why she was already filling in her time card.Mrs. Mitchell answered that she filled in eight hours, which she would lop that day as long as she did non dispel a leg or die. Mr. Smith replied, Well, Im non so sure about that. Mrs. Mitchell then became defensive and stated that she had prevailed him when the Director of Nurses, Mrs. Mary Stroope, sought to defend him fired as director. Mrs. Stroope, in the vicinity, overheard this foot none, denied it, and called Mrs. Mitchell a liar. At various measure during this ex alternate Mrs. Mitchell referred to Mr. Smith, Mrs. Stroope, and others as birdbrains. This occurred in a crowded land where the Centers employees were checking in and out, so Mr. Smith told both to go into his office. There, Mrs. Stroope apologized to Mrs. Mitchell for calling her a liar and Mrs. Mitchell apologized for saying that Mrs. Stroope had circulated a petition to replace Mr. Smith. However, tempers shortly flared again and Mr. Smith resolved to fire Mrs. Mitchell. Mrs. Mitchell then demanded her check. Mr. Smith remunerative her for that day, a weeks vacation, and a nonher weeks earnings for be terminated, which he was not needed to do since Mrs. Mitchell failed to give him two weeks notice. 577 **698 Appellee Mitchell argues that the events of June 4, 1974, do not constitute misconduct at bottom the signification of s 59-9-5(b), supra. Appellant Center argues that these events were the destruction of a serial of acts of misconduct, and the birdbrain contingency should be considered the finale straw resulting in her decease. Mitchell counters that the prior acts of misconduct should not be considered. The alleged acts of prior misconduct are the following. On April 2, 1974, Mrs. Mitchell went to act as at the Center out of uniform (she wore gold pants earlier than navy blue).On that day the Federal Regulation Inspectors visited the Center. Mrs. Mitchell stated that she did not know that the federal inspectors would be at that place that particular day. The Director of Nurses reprovaled her and told her to go home and to change into the proper attire, which Mrs. Mitchell refused to do. The following day Mrs. Mitchell again came to work out of uniform but this time she was directed to go and did go home to change. On May 24, 1974, Mrs. Mitchell was switched from medications to the floor routine. Angered, Mrs.Mitchell refused to give medications, even though the charge nurse and Mrs. Stroope explained to her that the reason for the switch was that she was familiar with both jobs whereas the backup man nurse, warble Skurlock, was unfamiliar with the floor routine. Mrs. Mitchell stated that she did not like being re dictated by a white nurses aide (Carol Skurlock). Mrs. Mitchell considered herself and Carol to be just birdbrain against birdbrain, ostensibly because neither she nor Carol was a licensed nurse. From May 24 to June 4 Mrs. Mitchell refused to perform he r duties as a relief medications aide.On May 15, 1974, and other age, Mrs. Mitchell sang while find medications and was not very co-operative, which caused Betty Clarke, R. N. , to complain that Mrs. Mitchells actions were unethical and time-consuming. The term misconduct is not defined in the Unemployment Compensation Law. The Wisconsin Supreme Court in Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259-60, 296 N. W. 636, 640 (1941) discoverd the misconduct subsection of its unemployment compensation act, rig no statutory definition of misconduct, and formulated the following definition . . misconduct . . . is control to conduct evincing much(prenominal) wilful or open disregard of an employers interests as is open up in deliberate violations or disregard of standards of doings which the employer has the justly to express of his employee, or in carelessness or carelessness of much(prenominal) course or recurrence as to manifest concern culpability, outlaw(a) intent or ev il design or to battle array an well-read and positive disregard of the employers interests or of the employees duties and obligations to his employer.On the other hand mere inefficiency, unsatisfactory conduct, visitation in genuine performance as the result of inability or incapacity, inadvertencies or ordinary oversight in isolated instances, or good faith errors in appraisal or discretion are not to be deemed misconduct within the meaning of the statute. We adopt this definition. Applying this definition of misconduct to the facts of the case before us, we deem that Mrs. Mitchells acts constituted misconduct. *578 **699 Mrs. Mitchells insubordination, improper attire, name calling, and other conduct evinced a wilful disregard of the interests of the Center.Although each separate hazard whitethorn not train been sufficient in itself to constitute misconduct, taken in totality Mrs. Mitchells conduct deviated sufficiently to classify it as misconduct infra the above tes t. Appellees argument that the last straw principle should not be used is hereby rejected. The partition tap is reversed and the decision of the Commission is reinstated. McMANUS and EASLEY, JJ. , concur. 764 P. 2d 1316 Supreme Court of New Mexico. Billie J. RODMAN, askingerAppellant, v. NEW MEXICO EMPLOYMENT trade protection DEPARTMENT and Presbyterian Hospital, Respondents Appellees.No. 17721. Nov. 30, 1988. The District Court, Bernalillo County, Ross C. Sanchez, D. J. , upheld administrative decision denying unemployment compensation to claimant. involveant appealed. The Supreme Court, Ransom, J. , held that incident precipitating claimants termination testd willful disregard for her employers interests. Affirmed. Stowers, J. , specially concurred and filed judging. Attorneys and Law Firms **1317 *759 Juan A. Gonzalez, legitimate Aid Society of Albuquerque, Inc. , Albuquerque, for petitioner-appellant. Connie Reischman, New Mexico oeuvre Sec.Dept. , Albuquerque, for re spondents-appellees. OPINION RANSOM, Justice. An administrative decision of the New Mexico Employment Security division denying unemployment compensation to Billie J. Rodman was check up oned on certiorari by the regularise judicatory. Rodman now appeals to this Court from the order of the territory court affirming the administrative decision. Rodman had been busy by Presbyterian Hospital as a whole secretary for nearly eight years when, on February 17, 1987, she was terminated infra hospital personnel policies following a third corrective action notice.Prior obligeions had been placed on Rodmans conduct due to ad hominem problems adversely impacting upon her place of work. At issue is whether the misconduct which warranted termination from employment rose to the level of misconduct which would warrant defense lawyers of unemployment compensation infra NMSA 1978, Section 5117 of the Unemployment Compensation Law. The Department sanely summarizes the substantial curtila ge as follows Rodman was reprimanded in June of 1986 for receiving an inordinate look of private telephone calls and visitors at her work station, which was disruptive to her own work and to her co-workers.The testicle reprimand set forth conditions to prevent further corrective action. Rodman was to have no personal telephone calls during work hours outside of a designated break or dinner time, in which event they were to occur in an area not visible to patients, physicians, or other subdivision staff. When leaving the department for dinner, Rodman was to report to her immediate supervisory program and was not to leave the hospital. Rodman was to make all effort to resolve the matters in her personal life that were causing problems at work.Nevertheless, according to the testimony of her supervisor, extremely disruptive telephone calls continued. The doctors were beginning to comment on it. The staff was getting more distressed. According to her supervisor, Again we talked abou t the visits, the look at the desk. When it got pretty bad with the phone calls, Billie would slam charts, push c piluss and be a little abrupt with the people she worked with. Another written reprimand in November of 1986 warned Rodman that her job was in jeopardy if the disruptive behavior continued.The supervisor worked restrictions prohibiting the claimant from having visitors at the department and instructed her to notify security if there was a potential problem. On February 15, 1987, Rodman began work at 100 o measure in the afternoon. She had spoken to her busters mother earlier in the day to tell her that she did not want him to use her car as she had broken off their relationship. The boyfriends mother called her at work and told her the boyfriend had her car keys. Rodman told the mother to have the boyfriend call her at work.When he did, she informed him that she could not talk to him at her duty station, and he hung up on her. He called her back and left a number whe re he could be reached. She left the work area and went to the break agency to call him. After returning to her duty station, Rodman got another telephone call from her boyfriend who told her to go downstairs to the lobby to meet him and pick up the keys. When she refused, he told her that if she did not come down he would come up to her department. Claimant eft the department to confront her boyfriend, and, because her supervisor was at lunch in the hospital cafeteria, Rodman notified a co-worker, a registered nurse, that she was leaving. Rodman testified, I didnt want any mental of confrontation at the desk, so I went downstairs. Before she left her desk, Rodman called the employers security guard and asked him to meet her in the lobby because she anticipated that a problem could develop. When Rodman got to the lobby, her boyfriend started yelling and forced her outside. In doing so, he separate her shirt. At this point the security guard arrived and observed them arguing.Rodm an was in the passenger seat of her car. The security guard instructed the boyfriend to return the keys, but the boyfriend jumped into the drivers seat, locked the doors and drove off. About thirty-five minutes later, Rodman returned to her work station, after having changed her torn shirt. She resumed working, but, as the shift progressed, more telephone calls were acquire for her in the department. The supervisor became frustrated with the volume of calls and the behavior of Rodman. It was determined that Rodman should be sent home. Thereafter she was terminated.The Appeals Tribunal of the Department of Employment Security found on the basis of the license that the appellant had proven unwilling to restrict her personal contacts while at work, as requested by her employer. The interview police officer dismissed as without **1319 *761 merit Rodmans contestation that she could not stop her acquaintances from calling or visiting her at work. The hearing officer conclude that Ms . Rodmans behavior was unreasonable, had caused many problems for her work section, and constituted misconduct connected with work under Section 5117(B). The pith of Misconduct in New Mexicos Unemployment Compensation Law.Given the curative purpose of the Unemployment Compensation Law, New Mexico courts, like most jurisdictions, interpret the viands of the law liberally, to provide sustenance to those who are unemployed through no fault of their own, and who are willing to work if given the opportunity. Wilson v. Employment Sec. Commn, 74 N. M. 3, 14, 389 P. 2d 855, 86263 (1963) Parsons v. Employment Security Commn, 71 N. M. 405, 409, 379 P. 2d 57, 60 (1963). Like most states, New Mexico also provides that an employee who is determined to have been discharged for misconduct is ineligible for unemployment compensation benefits. 5117(B). Two purposes are served by this statutory bar first, it prevents the dissipation of funds for other workers second, it denies benefits to those w ho put down about their own unemployment by conducting themselves with such callousness, and deliberate or wanton misbehavior that they have given up any reasonable expectation of receiving unemployment benefits. Given the remedial purpose of the statute, and the rule of statutory construction that its purvey are to be interpreted liberally, the statutory term misconduct should not be given too broad a definition.Accordingly, in adopting the mass definition of the term, this Court wrote in Mitchell v. Lovington Good Samaritan Center, Inc. , 89 N. M. 575, 577, 555 P. 2d 696, 698 (1976) Misconduct * * * is limited to conduct evincing such wilful or wanton disregard of an employers interests as is found in deliberate violations or disregard of standards of behavior which the employer has the in force(p) to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability * * *. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed misconduct within the meaning of the statute. Where an employee has not acted with the requisite degree of fault under Mitchell, he or she has not sacrificed a reasonable expectation in continued monetary security such as may be afforded by accrued unemployment compensation benefits.It is therefore possible for an employee to have been properly discharged without having acted with such willful or wanton disregard for an employers interests as would confirm disaffirmation of benefits. This Court accept in Alonzo v. New Mexico Employment Security Department, hundred and one N. M. 770, 689 P. 2d 286 (1984), that even an act of willful disobedience which leads to termination will not always rise to the level of misconduct when the act is an isolated incident in an otherwise favorable employment register and the incident does not cause a significant disruption of the employers legitimate interests. Trujillo v. Employment Sec.Dept, 105 N. M. 467, 472, 734 P. 2d 245, 250 (Ct. App. 1987) (where employment contract gave employer the right to draft employees to work overtime in emergency situations importantly modify the employers interests, it was misconduct for appellees to have refused to report for overtime work). Alonzo and Trujillo face that there are two components to the concept of misconduct sufficient to justify self-denial of benefits. One is the notion that the employee has acted with willful or wanton disregard for the employers interests the other is that this act significantly infringed on legitimate employer expectations. *1320 *762 Totality of percentage and the last straw doctrine. Often, the courts have been confronted with a series of minor infractions by the employee, where each incident showed a willful disregard of the employers interests, but no sin gle incident was serious enough to justify denial of benefits. In such cases, courts have applied a totality of caboodle or last straw test to determine whether, taken together, this series of incidents constitutes misconduct sufficient to disqualify the claimant from receiving benefits. Mitchell v. Lovington Good Samaritan Center, Inc. 89 N. M. 575, 555 P. 2d 696 (1976). Rodman recognizes the last straw doctrine, but contends that the district court erred in applying the rule in this case because her infractions of February 15 were the result of acts of third parties over whom she had no somatogenetic or legal control. Appellant contends that she may not be denied unemployment benefits where the last straw which led to her termination was not willful or intentional, especially where, under the employers personnel policy, she could not have been discharged at all before this final incident.The Department contends that it is immaterial whether the precipitating act was a willful or intentional violation of the employers rules, where the book of account indicates that the claimant had a history of previous acts which demonstrate a willful or wanton disregard for the employers interests, and the employer discharged the employee for the accumulation of events, including the precipitating event. gird Myers Pump & Supply v. Florida Dept of Labor, 373 So. 2d 429 (Fla. Dist. Ct. App. 1979).Although Fort Myers does offer support for the appellees position, we believe termination for a series of incidents which, taken together, may constitute misconduct is distinguishable from termination for a single incident following one or more corrective action notices. In the latter event, as here, we hold that the last straw must demonstrate a willful or wanton disregard for the employers interests for unemployment benefits to be denied. If substantial evidence existed that Rodmans conduct on February 15, considered in elucidate of the totality of ircumstances including her previous history of personal phone calls and unauthorized visitors, showed a willful or wanton disregard for her employers interests, then Rodmans benefits were properly denied. Although the evidence in this case is amenable to more than one reasonable interpretation, we conclude that there was a substantial basis for the district court to decide that Rodmans actions on February 15, when considered in light of the restrictions which had been placed upon her and her previous failure to comply with those restrictions, demonstrated a willful disregard for her employers interests.Therefore, the decision of the district court is affirmed. IT IS SO ORDERED. WALTERS, J. , concurs. STOWERS, J. , specially concurs. 769 P. 2d 88 Supreme Court of New Mexico. In re Claim of Lucy APODACA. ITS BURGER TIME, INC. , PetitionerAppellee, v. NEW MEXICO DEPARTMENT OF LABOR EMPLOYMENT SECURITY DEPARTMENT, BOARD OF REVIEW and Lucy Apodaca, RespondentsAppellants. No. 17952. Feb. 22, 1989. Employer filed wr it of certiorari to challenge Employment Security Departments award of unemployment compensation to fast-food restaurant employee who refused to retint her gallant hair. The District Court, Dona Ana County, Lalo Garza, D. J. reversed award of benefits. Employee appealed. The Supreme Court, Ransom, J. , held that evidence supported Departments award of benefits. Reversed and remanded. Attorneys and Law Firms **89 *176 Jose R. Coronado, Southern New Mexico Legal Services, Inc. , Las Cruces, Connie Reischman, New Mexico Dept. of Labor, Albuquerque, for respondents-appellants. Kelly P. Albers, Lloyd O. Bates, Jr. , Las Cruces, for petitioner-appellee. OPINION RANSOM, Justice. A inclination by the instrument panel of Review of the New Mexico Employment Security Department awarding unemployment compensation to Lucy Apodaca was reversed by the district court on certiorari.Apodaca appeals the district court decision, arguing that the court erred in finding the administrative determinatio n was unsupported by substantial evidence and was contrary to law. We conclude substantial evidence supports the advance of Review decision that the conduct leading to Apodacas termination did not constitute misconduct warranting denial of unemployment compensation under Section 5117(B) of the Unemployment Compensation Law. Accordingly, we reverse the district court. Apodaca was employed as a counter helper from August 1986 to August 1987 with Its Burger succession, Inc.Apodacas supervisors had no complaints concerning the performance of her work. Several times during the summer of 1987, Apodaca approached the farm animal manager, John Pena, to ask how the owner, Kevin McGrath, would react if she were to dye her hair purple. Pena did not at first take the question seriously. When Apodaca persisted, Pena told her that he would have to ask McGrath. Apparently, he never did so. After several weeks, Apodaca went ahead and dyed her hair. McGrath saw Apodacas tinted hair for the first time at work two days later.He instructed Pena to give Apodaca a week to decide whether she wanted to extend her new hair strain or her job. In a garner to the Board of Review, McGrath wrote that he had a good sense for community standards and believed he could not afford to wait until this incident took its sic toll on my business. Apodaca had signed the company handbook upon being hired, which instructed employees about acceptable hygienics and appearance. The handbook said nothing specific about hair gloss. Pena relayed McGraths message to Apodaca and suggested she make up her mind quickly so he could find somewhatone to replace her if necessary.Two days later, Apodaca told Pena she had decided to documentation her hair the way it was. She was then terminated and applied for unemployment benefits. The Department ab initio determined that Apodaca was ineligible for compensation because she had been terminated for refusing to conform to the standards of personal educate co mpatible with the * * * work she was performing. The claims officer concluded this constituted misconduct under Section 5117(B). Apodaca appealed to the Appeals Tribunal, which affirmed the denial of her benefits after a hearing.She appealed the Tribunals decision **90 *177 to the Departments Board of Review. After reviewing the record of the hearing, the Board concluded that the employer failed to show how the color of Apodacas hair affected its business therefore, her refusal to return her hair to its original color did not rise to the level of misconduct required for denial of her benefits. For review of the Boards decision, the employer filed a writ of certiorari with the Dona Ana County District Court. The district court determined Burger sequences request to Apodaca to change the color of her air was reasonable and enforceable and Apodacas refusal of that request was misconduct. The court concluded that the Board of Reviews decision was not supported by substantial evidence and was contrary to the law and reversed the decision granting Apodaca her benefits. This appeal followed. In reviewing the district court decision, we look first to see whether the court erred in concluding that the Departments decision was unsupported by substantial evidence. Because we conclude that the court erred in this determination, it is unnecessary for us to examine the findings and conclusions adopted by the court.Misconduct and the employers interest. Both Apodaca and Burger Time turn back that the definition of misconduct as used in Section 5117(B) is to be found in this Courts opinion in Mitchell v. Lovington Good Samaritan Center, Inc. , 89 N. M. 575, 577, 555 P. 2d 696, 698 (1976) Misconduct * * * is limited to conduct evincing such wilful or wanton disregard of an employers interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree o r recurrence as to manifest equal culpability. * * Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed misconduct within the meaning of the statute. Apodaca does not deny that her refusal to redye her hair was an intentional and deliberate act. At issue in this case is whether an employee who refuses to transfigure her personal appearance in conformity with the employers personal beliefs about acceptable community standards has engaged in misconduct.The employer argues, and the district court apparently agreed, that so long as the request is reasonable and the employee is given commensurate time to comply, refusal amounts to insubordination and misconduct. We disagree. In Alonzo v. New Mexico Employment Security Department, 101 N. M. 770, 772, 689 P. 2d 286, 288 (1984), we recognized that term ination for an isolated incident which does not significantly affect the employers business may not form the basis for denial of benefits on the grounds of misconduct.In Alonzo, an employee was terminated after refusing to wear a smock when working at the cash register as required by company policy. Id. at 771, 689 P. 2d at 287. As here, the employees previous work history was completely satisfactory, and there was no evidence that the employers business interests had been affected. Alonzo should be compared with Trujillo v. Employment Security Department, 105 N. M. 467, 47172, 734 P. 2d 245, 24950 (Ct. App. 987), which held that failure to report for overtime work pursuant to an employment contract provision allowing the employer to draft employees in emergency situations constituted misconduct, when the evidence demonstrated that the orders directing employees to report early to work were explicit and not confusing. In Trujillo, unlike Alonzo, failure to comply with the employers request was recognized as having significantly affected the employers interest. See also Thornton v. Dept of Human Resources Dev. , 32 Cal. App. 3d 180, 107 Cal. Rptr. 92 (1973) (refusal of restaurant employee to shave face fungus immediately or be terminated was not misconduct when employer failed to show that beard was unsanitary or otherwise detrimental to business) cf. Lattanzio v. Unemployment Comp. Bd. of Rev. , 461 Pa. 392, 336 A. 2d 595 (1975) (claimants refusal to report back to work was for good cause when employer demanded he shave beard but no evidence supported contention that requested alteration in appearance was essential to performance of duties other than employers vague assertion that claimants modish appearance power reflect unfavorably on business).In this case, there is absolutely no evidence that the color of Apodacas hair significantly affected Burger Times business. McGrath and Pena both testified they received no customer complaints regarding the color of Apodacas hair. Apodacas immediate supervisor, testifying in her behalf, reported that the only comments she heard were praise and that Burger Times customers had readily registered complaints in the past when they found something amiss. at a lower place these circumstances, the Board of Review could properly decide that Apodacas refusal to retint her hair did not rise to the level of misconduct. Burger Time argues that none of our previous cases require an employer to demonstrate its business was affected by an employees refusal to comply with a request from the employer. However, it is well presented in New Mexico that the party seeking to make the existence of a fact bears the burden of proof. See Newcum v. Lawson, 101 N. M. 48, 684 P. 2d 534 (Ct. App. 1984) Carter v. Burn Constr. Co. , 85 N. M. 27, 508 P. 2d 1324 (Ct. App. ), cert. denied, 85 N. M. 5, 508 P. 2d 1302 (1973) Wallace v. Wanek, 81 N. M. 478, 468 P. 2d 879 (Ct. App. 1970) cf. Moya v. Employment Sec. Commn, 80 N. M . 39, 450 P. 2d 925 (1969) (when claimant sought to establish that he ought not be disqualified from receiving benefits because the position for which he refused to interview was not suitable employment, he bore burden of proof on this issue).In this case, pursuant to Department regulations requiring an employer to report why a claimant was fired or have that claimants benefits charged against the employers account, Burger Time submitted a garner stating that Apodaca refused to comply with company grooming standards. At each subsequent demo of the administrative process and before the district court, Burger Time sought to establish that Apodaca was terminated for misconduct.It therefore fell upon Burger Time to show that Apodacas refusal to change the color of her hair amounted to misconduct under the standard considered in Alonzo and Trujillo. This, Burger Time failed to do and thus failed to meet its burden of proof. Moreover, Apodaca presented uncontroverted testimony that no c ustomers complained, and some complimented her for her hair. We do not question Burger Times right to establish a grooming code for its employees, to revise its rules in **92 *179 answer to unanticipated situations, and to make its hiring and firing decisions in conformity with this policy.However, as we observe in Rodman, It is * * * possible for an employee to have been properly discharged without having acted in a manner as would justify denial of benefits. 107 N. M. at 761, 764 P. 2d at 1319. 2 comment of misconduct and the right to terminate. Although not directly presented on appeal in this case, we note that in their decision letters both the Appeals Tribunal and the Board of Review used the following definition The term misconduct connotes a material breach of the contract of employment or conduct reflecting a willful disregard of the employers best interests. (Emphasis added. ) We rejected this definition in Rodman, 107 N. M. at 763, 764 P. 2d at 1321, as inconsistent w ith the Mitchell standard requiring a willful or wanton disregard of the employers interests. The use of the term or implies that any breach of the employment contract sufficient to warrant discharge of the employee serves as adequate grounds for denial of benefits, whether or not the employee acted in a willful or wanton manner. Where an employee has not acted with the requisite degree of fault under Mitchell, he or she has not sacrificed a reasonable expectation in continued financial security such as may be afforded by accrued unemployment compensation benefits. Id. at 761, 764 P. 2d at 1319. The decision of the trial court is reversed, and this case is remanded for admission of judgment consistent with the decision of the Board of Review. IT IS SO ORDERED.