This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-01-114

 

William G. Peak, Jr.,

Relator,

 

vs.

 

Handicabs International, Inc.,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

Filed August 7, 2001

Reversed

Willis, Judge

 

Department of Economic Security

File No. 589700

 

William G. Peak, Jr., P.O. Box 80563, Minneapolis, MN  55408 (pro se relator)

 

Handicabs International, Inc., 1154 North 5th Street, Minneapolis, MN  55411 (respondent)

 

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN  55101 (for respondent Commissioner)

 

            Considered and decided by Halbrooks, Presiding Judge, Willis, Judge, and Hanson, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Relator challenges a determination by the commissioner’s representative that he is disqualified from receiving unemployment benefits because of aggravated employment misconduct.  Because we conclude that the record does not reasonably support the commissioner’s representative’s determination, we reverse.

FACTS

Pro-se relator William G. Peak, Jr. (Peak) was employed as a driver by Handicabs International, Inc., a company that provides transportation services to vulnerable adults.  A state rule requires that drivers such as those employed by Handicabs are required to have a criminal record clear of convictions of crimes “against persons” and crimes “reasonably related to providing special transportation services.”  Minn. R. 8840.5900, subp. 1(E) (1999).  As required by the rule, Handicabs conducted yearly criminal background checks on its drivers.  In June 2000, Handicabs discovered that, in 1999, Peak had been arrested for and charged with second-degree assault.  Handicabs suspended Peak without pay until the matter was “clear[ed] up.”  Peak then applied for unemployment benefits.

The Department of Economic Security determined that Peak was not disqualified from receiving unemployment benefits because his act did not constitute aggravated employment misconduct.  Handicabs appealed, and an unemployment-law judge affirmed the department’s decision.  At that hearing, Peak refused to discuss the circumstances of the charge against him, even though he was told that the unemployment-law judge was entitled to draw adverse inferences from his refusal to testify. 

Handicabs appealed to the commissioner’s representative, who remanded the matter to an unemployment-law judge to receive documentary evidence pertaining to the status of Peak’s criminal charge, including:  a copy of the police report and the criminal complaint; a record of the final disposition, if any, of the criminal case; and any other relevant documents.  Peak again refused to testify about the facts surrounding his arrest, and the unemployment-law judge reversed the earlier determination.  The commissioner’s representative affirmed.  Peak appeals to this court by writ of certiorari.

D E C I S I O N

When reviewing a determination of the commissioner’s representative, appellate courts must consider whether there is reasonable support in the evidence to sustain it.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995); see also Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996) (explaining that reviewing courts will not disturb commissioner’s representative’s findings when, viewed in light most favorable to decision, those findings are reasonably supported by evidence). 

An individual is disqualified from receiving unemployment benefits if that individual was discharged because of employment misconduct or aggravated employment misconduct.  Minn. Stat. § 268.095, subd. 4 (2000).  Whether an employee has engaged in disqualifying misconduct is a mixed question of fact and law.  McCourtney v. Imprimis Tech., Inc., 465 N.W.2d 721, 724 (Minn. App. 1991).  The determination of whether the employee committed a particular act is a question of fact.  Tilseth v. Midwest Lumber Co., 295 Minn. 372, 375, 204 N.W.2d 644, 645-46 (1973); Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  But whether the act constitutes misconduct is a question of law on which appellate courts are free to exercise their independent judgment.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

Peak was disqualified from receiving benefits on the ground that he committed aggravated employment misconduct.  Peak argues that because he was not convicted of the crime with which he was charged, he should not have been disqualified.  But while a conviction would be relevant, whether Peak was convicted is not the only relevant inquiry.  Aggravated employment misconduct is defined as

the commission of any act, on the job or off the job, that would amount to a gross misdemeanor or felony if the act interfered with or adversely affected the employment * * * .

 

Minn. Stat. § 268.095, subd. 4a(1) (emphasis added).  Therefore, commission of an act, even without a conviction, can be aggravated employment misconduct.

Peak was charged with second-degree assault, which is a felony.  Minn. Stat. § 609.222 (2000).  Minnesota Rule 8840.5900, subp. 1(E) (1999), provides that second-degree assault is “considered [a crime] against persons or reasonably related to providing special transportation services or both.”  In determining that Peak was disqualified from receiving benefits due to aggravated employment misconduct, the commissioner’s representative concluded:

The evidence in the record shows that [Peak] was arrested and charged.  The evidence indicates that there was probable cause for the charge.  [Peak] has refused to offer evidence to rebut the probable cause finding and that suggests that [he] is responsible for the illegal activity charge.

 

The commissioner’s representative, therefore, found that there was probable cause that Peak committed the offense with which he was charged and that his failure to rebut that evidence of probable cause allowed the commissioner’s representative to draw an adverse inference against Peak.

In a civil case, it is permissible for a fact-finder to draw adverse inferences from a party or witness’s invocation of the Fifth Amendment privilege.  Wartnick v. Moss & Barnett, 490 N.W.2d 108, 111 n.1 (Minn. 1992); see also Minn. R. 3310.2922 (1999) (explaining that unemployment-law judge may draw adverse inferences “from the refusal of a party or witness to testify on the basis of any privilege”).  But there is no evidence in the record to support the commissioner’s representative’s assertion that there was probable cause for the charge against Peak. 

The record is devoid of evidence bearing on whether Peak actually committed the act with which he was charged.  Peak did not testify to the circumstances of the charge against him, and the record contains no testimony from or affidavit of the arresting officer, any witness, or the victim of the alleged assault.  And, despite the terms of the commissioner’s representative’s remand order, there is in the record no copy of the criminal complaint, of a police report, or of any other document relevant to the charge against Peak.  Therefore, there was no basis for drawing an adverse inference against Peak because there was no evidence offered against him.  See Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S. Ct. 1551, 1558 (1976) (noting that “the Fifth Amendment does not forbid adverse inferences against parties in civil actions when they refuse to testify in response to probative evidence offered against them.”) (emphasis added).

The Minnesota Supreme Court has held that an adverse inference based on an individual’s refusal to testify cannot, by itself, establish that a party committed an offense.  See Commissioner of Revenue v. Fort, 479 N.W.2d 43, 50 (Minn. 1992) (holding that because tax commissioner used party’s invocation of privilege as the only basis for concluding that she committed an offense and because commissioner provided no facts to show that she committed the offense, adverse use of her assertion of right against self-incrimination “would penalize her for an exercise of her constitutional right.”).  Other jurisdictions have followed similar reasoning.  See, e.g., Doe v. Glanzer, 232 F.3d 1258, 1264 (9th Cir. 2000) (noting that “lower courts interpreting Baxter have been uniform in suggesting that the key to the Baxter holding is that such adverse inference can only be drawn when independent evidence exists of the fact to which the party refuses to answer.”); Custody of Two Minors, 487 N.E.2d 1358, 1363 (1986) (explaining that adverse inference drawn from silence of a party is insufficient, “by itself, to meet an opponent’s burden of proof” and “a case adverse to the interests of the party affected [must be] presented” before an adverse inference may be drawn).

We conclude that there is no evidence in the record to sustain the commissioner’s representative’s determination that there was probable cause that Peak committed the act with which he was charged, and thereby there was no basis for the commissioner’s representative to draw an adverse inference from Peak’s assertion of his Fifth Amendment privilege.

            Reversed.