This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Deanna M. Lara,
Commonbond Housing Corp.,
Filed April 1, 2003
Department of Economic Security
File No. 978301
Howard L. Bolter, Borkon, Ramstead, Mariani, Fishman & Carp, Ltd., Suite 100, Parkdale I, 5401 Gamble Drive, Minneapolis, Minnesota 55416 (for relator Lara)
Thomas E. Marshall, Jackson Lewis Schnitzler & Krupman, 150 Fifth Street Towers, Suite 2800, 150 South Fifth Street, Minneapolis, Minnesota 55402 (for respondent Commonbond Housing)
M. Kate Chaffee, Department of Economic Security, 390 North Robert Street, St. Paul, Minnesota 55101 (for respondent Commissioner)
Considered and decided by Kalitowski, Presiding Judge, Hudson, Judge, and Poritsky, Judge.*
U N P U B L I S H E D O P I N I O N
In this certiorari appeal from denial of unemployment benefits, relator Deanna Lara (Lara) challenges disqualification for employment misconduct, claiming that her poor job performance and unsatisfactory conduct do not amount to employment misconduct. Because the record supports the findings that establish employment misconduct within the meaning of Minn. Stat. § 268.095, subd. 6(1) (2002), we affirm.
Commonbond Housing (Commonbond), a nonprofit organization providing affordable housing throughout the state, hired Lara as a property manager in June 1998. As a property manager, Lara oversaw between six and eight properties in the metro area, including a 90-unit facility, Yorkdale Townhomes, and a 60-unit facility, Cathedral Hill Homes. Lara’s duties included oversight of site managers and staff at each housing complex, and oversight of the maintenance and administrative functions of each property.
Commonbond’s properties consist mainly of units for which the Federal Department of Housing and Urban Development (HUD) and the Minnesota Housing Finance Agency (MHFA) provide rent subsidies called housing assistance payments. To qualify to receive housing assistance payments, Commonbond must certify tenant incomes initially and then recertify them annually. Lara’s position also entailed developing and maintaining a budget for each property, submitting timely documentation of tenant income-eligibility certification and re-certification, and otherwise ensuring that the properties complied with the regulations and deadlines governing these subsidiary programs.
The record reflects that Lara consistently missed certification and recertification deadlines for the properties she supervised. Although Lara was behind with at least twenty recertifications at Yorkdale by January 2001, she denied responsibility for the situation despite regular communication from administrative staff. In June 2001, MHFA notified Lara that housing assistance payments for the Yorkdale property for August 2001 (estimated at $28,000) would be suspended if Lara did not provide MHFA with 39 outstanding recertifications. When contacted about this situation, Lara denied knowing about the problems at Yorkdale.
In early August 2001, Lara’s supervisor, Richard Hutsell, warned her about the pending subsidy cut-off and asked her to provide him with a “correction plan” immediately. MHFA then reported that thirteen recertifications were still outstanding, and warned that if they were not made current, MHFA would withhold its subsidy effective October 2001. Because Commonbond was unable to rectify the situation, MHFA withheld its subsidy for the month of October 2001 and Commonbond was unable to meet its mortgage payment for that month.
In addition to the recertification situation, Lara failed to properly supervise the collection of Yorkdale's rents and pay its invoices. Lara claimed that rental arrears were due to problems with the e-banking system. But as of June 30, 2001, the utilities for the rental properties risked shut-off for non-payment and $79,000 in receivables had not been collected. Moreover, in July 2001, Hutsell requested vendor information from Lara concerning a service contract that Lara had improperly terminated; Lara provided incomplete information, and Commonbond was ultimately held liable to the vendor for Lara’s breach of contract.
In May 2001, Lara received an employment evaluation from Hutsell outlining deficient areas of her work performance, including her failure to meet subsidy and occupancy rules, a late budget submission, and 34 tenant complaints. The record reflects that Lara habitually failed to return calls and demonstrated a pattern of rudeness and intolerance toward colleagues, tenants and vendors. In addition, in August 2001, a site manager reported that Lara left eighty-four work orders unresolved and failed to respond to virtually all maintenance requests. Lara refused to sign the evaluation. In addition, she consistently missed or cancelled meetings Hutsell scheduled to discuss any concerns she may have had. During the evaluation, Hutsell told Lara she would be reviewed again in ninety days, and that if her performance did not improve, including resolution of the Yorkdale recertifications, she would be discharged.
Commonbond terminated Lara on August 16, 2001. The Department of Economic Security denied her application for unemployment benefits, finding that her termination resulted from employee misconduct. An unemployment law judge and a representative of the Commissioner of Economic Security affirmed the denial of benefits, finding that Lara’s termination was the result of serious neglect constituting employee misconduct. This certiorari appeal followed.
This court applies a narrow scope of review to economic security appeals. We review the factual findings of a commissioner’s determination in a light most favorable to the findings, and we leave that determination intact so long as the record reasonably supports the factual findings. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). An employee discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4 (2002). Whether an employee committed misconduct that disqualifies an individual from receiving unemployment benefits is a mixed question of law and fact. Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984). Whether an employee committed a specific act is a question of fact. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). Whether a specific act constitutes misconduct is a question of law reviewed de novo. Schmidgall, 644 N.W.2d at 804.
Disqualifying misconduct is defined by statute as
(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) (2002). Misconduct must be shown by a preponderance of the evidence. Minn. Stat § 268.03, subd. 2 (2002).
Determining whether an act constitutes misconduct is a “fact-based inquiry.” Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 524 (Minn. 1989). Generally, an employee commits misconduct by refusing to comply with an employer’s reasonable requests and/or policies. McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 596 (Minn. 1988). Applying these principles to the facts of this case, we find ample evidence that Lara committed employment misconduct, and is therefore disqualified from receiving unemployment benefits.
The commissioner’s representative found that Lara committed misconduct by engaging in negligent conduct that demonstrated a substantial lack of concern for her employment. Lara consistently missed deadlines to the financial detriment of her employer. In February 2000, for example, one of Lara's properties lost $12,500 because Lara failed to apply for a vacancy supplement. In addition, MHFA withheld its entire subsidy for the Yorkdale property in October 2001, because Lara failed to complete tenant recertifications. This severely threatened the financial viability of the property.
The record contradicts Lara’s contention that Hutsell told her that she had to address the recertification problem on her own. The record demonstrates that Hutsell repeatedly asked Lara for updates on the Yorkdale recertifications, showing that he attempted to work with Lara to resolve the problem. Moreover, several e-mails in August 2001 reflect that other Commonbond employees were attempting to assist Lara in completing the Yorkdale recertifications. Eventually, MHFA withheld funds because Commonbond could not timely remedy the situation that Lara had created.
The record also demonstrates that Lara consistently acted in an unprofessional manner toward colleagues, vendors and tenants. This behavior was documented in her job evaluation. Hutsell frequently received complaints of Lara’s rude and short-tempered responses, recording each in a daily telephone log. In her May 2001, evaluation, the telephone log showed 34 tenant complaints against Lara in the previous year.
The record demonstrates an ample basis for the commissioner’s representative’s factual findings supporting his conclusion that Lara’s “neglect of her work was so pervasive, so grave, and so obviously likely to harm the employer that it can only be deemed negligent or indifferent conduct showing a substantial lack of concern for the employment.”
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.