1

IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 37622

SHANNA R. LOCKER,

 Claimant-Appellant,

v.

HOW SOEL, INC., dba LOGAN’S

FOODTOWN, Employer, and IDAHO

DEPARTMENT OF LABOR,

 Respondents-Respondents on Appeal. 

)

)

)

)

)

)

)

)

)

)

)

Boise, June 2011 Term

2011 Opinion No. 101

Filed: November 1, 2011

Stephen Kenyon, Clerk

Appeal from the Industrial Commission of the State of Idaho.

The decision of the Industrial Commission is affirmed.

Law Offices of Cynthia J. Woolley, PLLC, Ketchum, for appellant. Cynthia J. 

Woolley argued.

Salladay Law Office, Boise, for respondent How Soel, Inc. dba Logan’s 

Foodtown. G. Lance Salladay argued.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent Idaho 

Department of Labor. Tracey K. Rolfsen argued.

 _______________________________________________

HORTON, Justice.

Shanna Locker (Locker) appeals the Industrial Commission’s (Commission) finding that 

she was insubordinate when she failed to provide a medical release at the request of her 

employer, Logan’s Foodtown. The Commission found that this constituted employment-related 

misconduct which rendered Locker ineligible for unemployment insurance benefits. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Locker was employed by Logan’s Foodtown from July 17, 2008 through June 1, 2009. 

During her interview for employment, Locker informed assistant manager Brian Cruz (Cruz) that 

she suffered from multiple sclerosis (MS). Logan’s Foodtown hired Locker and employed her in 

a variety of positions, accommodating Locker’s MS-related limitations by scheduling her on 
2

days that did not involve moving freight and allowing other employees to do heavy lifting or 

above-the-head reaching on Locker’s behalf. 

In April 2009, Locker took a six-week long medical leave in order to undergo and 

recover from a hysterectomy. She returned to work on June 1, 2009. Locker had expressed 

interest in becoming the deli manager, and she took up that role upon her return. On Locker’s 

first day back to work, she engaged in a conversation with manager Barb Chandler (Chandler), 

which she characterized as “girl talk.” In that conversation, Locker and Chandler spoke about 

hysterectomies. Locker told Chandler that the surgery had been more difficult than she had 

expected, that she “still felt weak,” and that being on her feet at work had increased the bleeding 

she was experiencing after the surgery. 

On this first day back to work, after two to three hours performing inventory and freight

duties, Locker informed Chandler and Cruz that she could not continue to work. Although 

Locker later testified that balance problems caused by MS were causing her difficulty at work

that day, both Cruz and Chandler testified that Locker did not mention her MS when she told 

them that she needed to leave work. Locker testified that she did not tell Cruz or Chandler that 

she was in pain, however, the two managers testified to the contrary. According to Chandler, 

Locker was crying and in visible pain. Chandler informed Greg Jarolimek (Jarolimek), manager 

and part owner of Logan’s Foodtown, that Locker left work because she had not yet healed from 

the hysterectomy. 

Jarolimek testified that when Locker returned to work two days later, he told her he 

needed “some information from a doctor that would let me know what limitations she might 

have . . . . Or if she actually needed more time off, you know, something that would give me 

something that I could work with, you know, to plan for the next two or three weeks, you know, 

if she took more time.” Jarolimek testified that Locker never provided a medical release as 

requested,1 which “made it hard for me to determine what she could or could not do. . . . [If] you 

bring me the information, I can determine what we can do, what changes we need to make . . . .” 

According to Jarolimek, he told Locker that “if you gave me something from your doctor, you 

know, so that we can determine what you can do and what you can’t do, you know.” 

 1 According to Locker, a nurse denied her request to obtain a medical release from her surgeon’s office. Locker did 

not inform anyone at Logan’s Foodtown of this circumstance.
3

Later that week, Locker returned to Logan’s Foodtown to check the work schedule. She 

had an impromptu meeting with Cruz, Chandler, and a third manager. There is conflicting 

evidence in the record regarding the conversation that day. Cruz testified that he told Locker “I 

was concerned for her safety and her well being and that . . . I needed a safety note from the 

doctor or a release note and she fired at me and she said are you firing me and I said, no, I’m not 

firing you, just concerned for your safety and until I get a note there is nothing I can do.” Cruz 

also testified that “I just talked to her about her safety and well being and how I was under the 

impression of a doctor’s note that I needed, so I could tell what she could and could not do.” 

According to Chandler, however, she heard Cruz tell Locker that Locker “needed to be able to do 

the job details of a deli manager and that he had to let her go, because she cannot do that work 

entailed in that – in the lifting.” Locker testified that she left the meeting with the clear 

impression that she was no longer employed by Logan’s Foodtown. Locker left work and did 

not return.

Locker filed for unemployment benefits, and the Idaho Department of Labor found her 

ineligible for benefits because she had quit without cause. Locker appealed. The appeals 

examiner affirmed the eligibility determination on alternative grounds, finding that Logan’s 

Foodtown had terminated Locker’s employment and that Locker had committed misconduct by 

failing to produce the requested medical release. Locker appealed the issue to the Industrial 

Commission and asserted, for the first time, claims arising under the Family Medical Leave Act 

(FMLA). The Commission concluded that Locker’s FMLA claims were waived as untimely and 

for lack of evidence that the Act was applicable, adopted the appeals examiner’s findings of 

fact,

2 and affirmed the appeals examiner’s decision denying Locker’s request for unemployment 

benefits. Locker appeals the Commission’s order and raises claims arising under the Americans 

with Disabilities Act (ADA) and the Idaho Human Rights Act (IHRA). Locker and the 

Department of Labor request attorney fees on appeal.

II. STANDARD OF REVIEW

This Court upholds decisions of the Industrial Commission unless (1) the Commission 

has acted without jurisdiction or in excess of its powers; (2) the Commission’s findings of fact 

are not based on substantial and competent evidence; (3) the findings of fact, order or award 

 2 The adopted finding of fact most pertinent to this appeal states that Locker “was advised by [Cruz] that they were 

concerned for her safety and wellbeing and they needed a medical release. [Cruz] advised [Locker] that he had to let 

her go as she had not shown that she could perform the job duties.” (Emphasis added).
4

were procured by fraud; (4) as a matter of law, the findings of fact do not support the order or 

award. I.C. § 72–732. When this Court reviews a decision of the Industrial Commission, we

exercise free review over questions of law. Funes v. Aardema Dairy, 150 Idaho 7, ___, 244 P.3d 

151, 154 (2010) (citations omitted). However, our review of questions of fact is limited to a 

determination of whether substantial and competent evidence supports the Commission’s 

findings. Id. “Substantial and competent evidence is relevant evidence that a reasonable mind 

might accept to support a conclusion. Because the Commission is the fact finder, its conclusions 

on the credibility and weight of the evidence will not be disturbed on appeal unless they are 

clearly erroneous.” Id.

III. ANALYSIS

A. The Commission’s conclusion that Locker was terminated for misconduct is supported 

by substantial and competent evidence.

Article V, section 9 of the Idaho Constitution, conferring jurisdiction upon this Court to 

review orders of the Commission, applies to unemployment compensation cases. Idaho Mut. 

Ben. Ass’n v. Robison, 65 Idaho 793, 800, 154 P.2d 156, 159 (1944). This section provides, in 

pertinent part: “On appeal from orders of the industrial accident board the court shall be limited 

to a review of questions of law.” Id.; Idaho Const. art. V, § 9. Thus, this Court is 

“constitutionally compelled to defer to the Industrial Commission’s findings of fact where 

supported by substantial and competent evidence.” Teffer v. Twin Falls School Dist. No. 411,

102 Idaho 439, 439, 631 P.2d 610, 610 (1981). 

Locker asserts that she was discharged because MS prevented her from performing the 

deli manager role and that the Commission’s conclusion that she was discharged for committing 

misconduct is not supported by the record. We are constitutionally constrained to disagree.

An employee is ineligible for unemployment benefits if she was “discharged for 

misconduct in connection with h[er] employment.” I.C. § 72-1366(5). The employer must prove 

misconduct by a preponderance of the evidence. Appeals Exam’r of Idaho Dep’t of Labor v. J.R. 

Simplot Co., 131 Idaho 318, 320-21, 955 P.2d 1097, 1099-100 (1998). Misconduct may take the 

form of “wilful, intentional disregard of the employer’s interest; a deliberate violation of the 

employer’s rules; or a disregard of standards of behavior which the employer has a right to 

expect of his employees.” Johns v. S. H. Kress & Co., 78 Idaho 544, 548, 307 P.2d 217, 219 
5

(1957). Misconduct does not include “[m]ere inefficiency, unsatisfactory conduct, [or] failure of 

good performance as the result of inability or incapacity.” IDAPA 09.01.30.275.03. 

The Commission determined that the standards of behavior test applied to Locker’s case. 

That test requires the employer to prove that (1) the employee’s conduct fell below a standard of 

behavior (2) which the employer subjectively expected of its employee, and (3) that the 

employer’s expectation was objectively reasonable. Adams v. Aspen Water, Inc., 150 Idaho 408,

___, 247 P.3d 635, 640 (2011). In order to be reasonable, an employer’s expectation should flow

naturally from the employment relationship or be communicated to the employee. Id. In the 

present case, Logan’s Foodtown communicated to Locker that it expected her to produce a 

medical release that would clarify what types of work she was able to perform, as is 

demonstrated by the testimony of both Cruz and Jarolimek, and therefore the second and third 

prongs of the test are satisfied. The remaining question, then, is whether Locker’s conduct fell 

below the standard of behavior expected of her.

This Court has recognized insubordination as one form of conduct that violates the 

standard-of-behavior test. Avery v. B & B Rental Toilets, 97 Idaho 611, 614, 549 P.2d 270, 273 

(1976). Insubordination is an employee’s “deliberate or wilful refusal . . . to obey a reasonable 

order or directive which an employer is authorized to give and entitled to have obeyed.” Id. 

When reviewing claims of insubordination, this Court looks to the facts of each case to 

determine whether an employee’s conduct is reasonable under the circumstances. Thus, an 

employee’s expression of disagreement or discontentment to her employer may not be an act of 

insubordination. Folks v. Moscow School Dist. No. 281, 129 Idaho 833, 838, 933 P.2d 642, 647 

(1997) (holding that employee lacked requisite intent where the interaction that led to her 

discharge was emotionally charged and instigated by stress); Avery, 97 Idaho at 615, 549 P.2d at 

274 (stating that the law does not require “unswerving docility and servility” of employees, and 

that “[a] single incident of comparatively nonserious disrespect by complaining and arguing is 

not misconduct.”); cf. Pimley v. Best Values, Inc., 132 Idaho 432, 435, 974 P.2d 78, 81 (1999) 

(holding that employee’s use of vulgar, disrespectful language in presence of retail customers fell 

below employer’s reasonable standard of behavior). Likewise, an employee who informs his 

employer about circumstances that prevented compliance may protect himself against discharge 

for misconduct. Whittier v. Dep’t of Health & Welfare, 137 Idaho 75, 79, 44 P.3d 1130, 1134

(2002). Thus, the applicable law takes the social realities of the workplace into account. 
6

We are unable to conclude, as a matter of law, that an employee has not willfully and 

deliberately disregarded the employer’s order when the employee has both failed to comply with 

her employer’s order and also failed to communicate any justification for her lack of compliance. 

Id. (stating that employee “should have communicated to [his supervisor] the obstacles 

preventing him from performing her order.”). 

Thus, although there was a substantial conflict in the evidence presented to the 

Commission, we consider whether there is substantial evidence in the record which supports the 

Commission’s factual determination that Locker was discharged for insubordination. It is 

uncontradicted that Locker did not provide a release to Logan’s Foodtown. Although Jarolimek 

and Cruz each informed Locker that she could not return to work until she provided a medical 

release that “show[ed] that she could perform the job duties,” Locker did no more than make a 

single phone call to request the release. When she was rebuffed by her surgeon’s nurse, Locker 

neither pursued other avenues of obtaining a medical release, nor took the simple step of 

informing her employer that she was experiencing difficulty in obtaining the release. As was the 

case in Whittier, Locker both failed to comply with her employer’s reasonable directive and 

failed to communicate the circumstances that prevented her compliance. 

Additionally, while Locker contends that she lacked the physical capacity to perform the 

deli manager role because of MS, she did not express that concern to anyone at Logan’s 

Foodtown when her continued employment was conditioned on receipt of a medical release. 

Rather, the very day Locker returned to work after a six-week long medical leave for a 

hysterectomy, she discussed difficulties associated with that surgery with a female manager and 

soon after informed management that she could not continue to work that day. While Logan’s 

Foodtown was aware that Locker suffered from MS, Locker’s attempt to obtain the requested 

medical release from her surgeon indicates that she understood that Cruz and Jarolimek believed 

that any limitations on her ability to work were related to the surgery. A reasonable person could 

conclude that if Locker believed her inability to work was MS-related, she would have both 

informed Logan’s Foodtown as such and requested accommodations similar to those she had 

received in the past. Thus, substantial and competent evidence supports the Commission’s 

conclusion that Locker was not terminated because she lacked the capacity to work, but rather 

because she failed to provide the medical release that Logan’s Foodtown requested in order to 
7

determine the types of work she was able to perform. We therefore affirm the decision and order 

of the Industrial Commission.

B. Locker waived all claims arising under the ADA and IHRA.

Locker raised FMLA claims before the Commission, but she raises ADA and IHRA 

claims for the first time on appeal. “Issues not raised before the Industrial Commission and 

presented for the first time on appeal will not be considered by this Court.” Creps v. Idaho Dep’t 

of Labor, 149 Idaho 634, 640, 238 P.3d 1284, 1290 (2010) (citing Higgins v. Larry Miller 

Subaru–Mitsubishi, 145 Idaho 1, 6, 175 P.3d 163, 168 (2007)). Accordingly, we do not address 

Locker’s ADA and IHRA claims.

C. Under Smith v. Washington County, we may not award attorney fees on appeal.

All parties to this appeal request attorney fees under I.C. § 12–117. However, “I.C. § 12–

117(1) does not allow a court to award attorney fees in an appeal from an administrative 

decision.” Smith v. Washington Cnty., 150 Idaho 388, ___, 247 P.3d 615, 618 (2010). Although 

the Department of Labor and Logan’s Foodtown are the prevailing parties, we lack the power to 

award attorney fees in this case. 

IV. CONCLUSION

We affirm the decision and order of the Industrial Commission finding Locker ineligible 

for unemployment benefits. Costs, but not attorney fees, to Respondents. 

Chief Justice BURDICK and Justices EISMANN, J. JONES and W. JONES CONCUR.