This opinion will be unpublished and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

C2-01-2198

 

Daniel R. Pidd,

Relator,

vs.

Bergquist Company,
Respondent,

Commissioner of Economic Security,
Respondent.

Filed August 5, 2002

Affirmed

Peterson, Judge

 

 

Department of Economic Security

File No. 633601

 

 

Daniel R. Pidd, 53 Riverside Terrace, Cannon Falls, MN  55009-1250 (pro se relator)

 

Bergquist Company, c/o Employers Unity, Inc., P.O. Box 749000, Arvada, CO  80006-9000 (respondent)

 

Philip B. Byrne, Department of Economic Security, 390 North Robert Street, St. Paul, MN  55101 (for respondent Commissioner of Economic Security)

 

            Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

Relator Daniel R. Pidd challenges a decision by a representative of the Commissioner of Economic Security that he is disqualified from receiving unemployment benefits because he was terminated for misconduct after using a company computer to send inappropriate e-mail.  We affirm.

FACTS

Respondent Bergquist Company employed Pidd from April 22, 1996, to April 19, 2001.  On April 15, 1998, Pidd signed a document affirming that he received a Bergquist policy manual.  In a section entitled “Internet Security Policy,” the policy manual provided:

Internet users have a responsibility to use the Internet appropriately in conducting Bergquist business.  Misuse of the Internet can result in disciplinary action, up to and including termination.  Examples of misuse include, but are not limited to, the following:

Accessing, reading or sending any material that is offensive and/or pornographic.

Downloading files, either legally or illegally, which are not required to conduct the Company’s business.  This restriction would include, but not be limited to, pornographic files and images and game software.  * * *

Sending * * * sexually explicit/harassing or other inappropriate messages/files.  * * *

* * * *

* * * The Bergquist Company monitors use of the Internet by its employees for business purposes to ensure compliance with this policy and reserves the right to * * * prescribe * * * disciplinary action for any employee found violating the terms of this policy.

 

            During April 2001, Bergquist employees informed Bergquist that computer games were being forwarded on the company computer system in violation of company policy.  In the course of investigating this report, Bergquist began checking e-mails and found that Pidd had received sexually explicit files, and on one occasion, he had forwarded one of these files (a series of cartoon characters engaged in sexual intercourse, with captions) to a co-worker.  Pidd admitted that he forwarded the file.  Pidd and four other employees were terminated from employment for using the company system to send sexually explicit e-mail.   

D E C I S I O N

            The commissioner’s determination that an employee is disqualified for reasons of misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).  A reviewing court will affirm if “the findings of fact are not without support in the evidence” and if “the conclusion on those facts is not contrary to the statutory mandate.”  Id. Whether an employee committed the acts alleged to be misconduct is a question of fact to be decided by the commissioner’s representative.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  But whether the acts committed constitute employment misconduct is a question of law upon which this court exercises its independent judgment.  Id.

Employment misconduct means:

(1) any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee’s duties and obligations to the employer; or

(2) negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.

 

Minn. Stat. § 268.095, subd. 6(a) (2000). 

            Pidd admitted that he used Bergquist’s computer system to send the e-mail that prompted his discharge.  Because the e-mail was sent during Pidd’s regular work hours, sending the e-mail was intentional conduct on the job.  Therefore, the issue is whether sending the e-mail disregarded the standards of behavior that Bergquist had the right to expect of Pidd.

            Pidd argues that Bergquist’s policy prohibits using the Internet to access, read, or send any material that is offensive and/or pornographic, and, therefore, he did not violate the policy because he used only Bergquist’s internal computer system when he sent the e-mail.  This argument was not made to the commissioner’s representative, and there is no factual determination whether sending the e-mail involved using the Internet.[1]  But even if Pidd did not use the Internet to send the e-mail, the commissioner’s representative’s decision was not that Pidd committed employment misconduct because he violated Bergquist’s policy; the decision was that Pidd committed employment misconduct because sending the e-mail violated the standards of behavior that Bergquist had a right to expect of Pidd.

            Even if the e-mail was sent via a completely internal e-mail system, as Pidd claims, and, therefore, sending the e-mail did not violate Bergquist’s Internet policy, we agree with the commissioner’s representative’s determination that sending the e-mail violated the standards of behavior that Bergquist had a right to expect of Pidd.  Sending the e-mail had nothing whatsoever to do with Pidd’s job responsibilities.  When Pidd sent the e-mail, he used Bergquist’s computer system for personal reasons during work hours.  And even if an isolated use of an employer’s computer system during work hours to perform a personal task might not, by itself, constitute employment misconduct, the nature of the e-mail Pidd sent made his conduct more egregious. 

            The content of the e-mail was sexually explicit, and although there is no evidence that the person to whom the e-mail was sent was offended by it, it is generally known that the presence of sexually explicit material in the workplace can create an offensive work environment.  Furthermore, even if Pidd was not generally aware that sexually explicit e-mail could create an offensive work environment, Bergquist’s Internet policy specifically identified sending sexually explicit files as misuse of the Internet, which put Pidd on notice that the company was concerned about sexually explicit computer files.

            In light of Bergquist’s Internet policy and the general awareness by employees that work time is not to be used to complete tasks that are not related to employment and that sexually explicit materials in the workplace can create an offensive work environment, Bergquist had the right to expect that Pidd would not use the company’s computer system to send a sexually explicit e-mail to another employee during work hours.

            Pidd claims that employees other than the five who were laid off for sending sexually explicit e-mails also regularly used Bergquist’s computers to send inappropriate e-mail jokes and that Bergquist’s management used the e-mails as a pretext to lay off the five employees without paying severance pay.  But Pidd made this claim during the hearing before the unemployment law judge, and the commissioner’s representative determined that Pidd was discharged because sending the e-mail “clearly violates the standards of behavior the employer has a right to expect and amounts to employment misconduct.”  Because there is testimony in the record stating that Pidd was discharged for sending the e-mail, we must defer to the commissioner’s representative’s conclusion about the reason for Pidd’s discharge.  See Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995) (“When the parties have presented conflicting evidence on the record, this court must defer to the Commissioner’s ability to weigh the evidence; we may not weigh that evidence on review.”).

             Finally, Pidd argues that Bergquist violated his right to privacy by inspecting his computer and e-mail files and that Bergquist violated his right to be disciplined in the privacy of a supervisor’s office.  However, because Pidd did not raise these issues before the unemployment law judge or the commissioner’s representative, they will not be considered for the first time on appeal.  See Haskins v. Choice Auto Rental, Inc., 558 N.W.2d 507, 512 (Minn. App. 1997) (unemployment compensation claimant’s claim that employer required him to sign illegal agreement would not be considered when raised for the first time on appeal to this court).

            Affirmed.



*   Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]The commissioner’s representative incorrectly determined that Bergquist’s policy permitted disciplinary action for sending “offensive and/or pornographic information or materials through [Bergquist’s] computer systems.”  The policy addresses only Internet use.