This opinion will be unpublished and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

C7-03-404

 

 

Mary Ann Meyer,

Relator,

 

vs.

 

Metropolitan Airports Commission,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

 

Filed November 18, 2003

Affirmed

Halbrooks, Judge

 

 

Department of Employment and Economic Development

File No. 979302

 

 

Mary A. Meyer, 3929 43rd Avenue South, Minneapolis, MN 55406-3511 (pro se relator)

 

Metropolitan Airports Commission, c/o Employers Unity, Inc., P.O. Box 74900, Arvada, CO 80006-9000 (respondent)

 

Lee B. Nelson, Philip B. Byrne, 390 Robert Street North, St. Paul, MN 55101 (for respondent commissioner)

 

 

 

            Considered and decided by Hudson, Presiding Judge, Randall, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

Relator challenges the commissioner’s representative’s decision that she was discharged for intentional employment misconduct and is, therefore, disqualified from receiving unemployment-insurance benefits.  Because we conclude that the commissioner’s representative’s findings of fact have reasonable evidentiary support and that relator committed employment misconduct as a matter of law, we affirm.

FACTS

Relator Mary Ann Meyers worked as a carpenter for the Metropolitan Airports Commission (MAC) from September 1991 until her termination in April 2002.  During her employment, relator received several warnings about inappropriate conduct in the workplace.  In August 1997, MAC issued relator a performance plan directing that relator’s “hostile, offensive, argumentative, embarrassing and humiliating conduct toward others” cease.  In February 1998, relator was suspended for two days after an argument with a coworker in a pickup truck, where relator abruptly applied the vehicle’s brakes, spilling tea on the coworker.  In July 2001, relator was given a second two-day suspension after she falsely reported herself as sick in order to attend a workshop and attended a yoga class during work without permission.  In February 2002, relator received a five-day suspension for (1) telling a coworker that she had a security employee fired for sexual harassment and that she could “make it easy or hard for [the coworker] to work with her,” (2) insinuating that she would rather crash her MAC truck into a tree than allow her coworker to smoke in the vehicle, and (3) falsely accusing a coworker of sexual harassment.  Although relator admits that she was disciplined for these actions, she denies telling her coworker that she had a security employee fired or that she threatened to drive a MAC truck into a tree to prevent her exposure to second-hand smoke.

Two final issues arose in April 2002.  After relator’s request for a substitute locker was denied, she removed a coworker’s belongings from his locker while he was on vacation and replaced them with her own.  Relator defends her actions by asserting that she needed a larger locker to accommodate her gear.  Second, MAC learned that relator was secretly tape-recording a coworker’s workplace conversations, a possible violation of MAC’s policy against harassing surveillance.  Relator admitted recording conversations in the workplace but stated that she did it because she felt threatened and wanted to protect herself.  Shortly thereafter, relator was suspended pending an administrative hearing. 

An administrative hearing was held on April 16, 2002, and MAC discharged relator two days later.  Relator subsequently applied for unemployment benefits, and an adjudicator determined that she was not disqualified from receiving benefits.  On appeal, the unemployment law judge reversed, finding that relator was discharged for employment misconduct and was, therefore, disqualified from receiving benefits.  The commissioner’s representative affirmed the unemployment law judge’s decision. 

D E C I S I O N

When reviewing unemployment-benefit cases, we accord particular deference to the decisions of the commissioner’s representative.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The commissioner’s representative’s determination that an employee is disqualified for misconduct involves a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).  Whether an employee committed the specific act or acts alleged to be misconduct is a fact question.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  We review the commissioner’s representative’s factual findings in the light most favorable to the decision and will not disturb them if the record reasonably tends to sustain them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  But whether an employee’s acts constitute misconduct is a question of law, which we review de novo.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). 

Our first inquiry is whether the evidence is sufficient to sustain the commissioner’s representative’s factual findings.  Relator argues that MAC misrepresented the facts at the hearing and asks this court to retry the facts and accept her version of the events.  But we must defer to the commissioner’s representative’s ability to weigh the evidence and make credibility determinations; we may not weigh that evidence on review.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

The commissioner’s representative found that relator was disciplined several times during her employment with MAC, including (1) a two-day suspension for inappropriate conduct with a coworker; (2) a two-day suspension for attempted abuse of sick leave, failure to follow work directions, deceit, and insubordination; and (3) a five-day suspension for falsely accusing a coworker of sexual harassment and using the accusation as a form of harassment against him.  The commissioner’s representative also found that relator removed a coworker’s belongings from his locker and replaced them with her own and secretly tape-recorded workplace conversations. 

The record supports these findings.  The bases for the suspensions and other warnings are well documented.  Moreover, relator does not dispute many of the acts, including that she removed a coworker’s belongings from his locker and replaced them with her own, that she attended a workshop and yoga class without clear permission, and that she tape-recorded conversations in the workplace without permission.  Viewing the evidence in the light most favorable to the decision, it is more than sufficient to sustain the commissioner’s representative’s findings.

Next, we must determine as a matter of law whether relator committed employment misconduct.  Relator argues that MAC did not have just cause to terminate her and that her discharge was in retaliation for speaking about inappropriate workplace issues.  Essentially, relator is arguing that her conduct did not rise to the level of misconduct. 

Minnesota law defines employment misconduct 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).  A two-prong test is used to determine whether an employee’s actions constitute employment misconduct within the meaning of Minn. Stat. § 268.095, subd. 6(a).  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  The employee’s conduct must “(1) be intentional and (2) disregard standards of behavior the employer has a right to expect or the employee’s duties and obligations to the employer.”  Id.  For the conduct to be intentional under the first prong, it must be “deliberate,” and not “accidental.”  Id.  The second prong requires an analysis of the employee’s intent that is “separate and distinct” from the intentional conduct required in the first prong.  Id. at 150.  Thus, the test for employment misconduct requires both the intent to achieve the act in question and the intent to disregard certain standards or duties.  Id.

Relator does not argue that her conduct was not intentional; rather, she merely attempts to clarify the facts and circumstances surrounding that conduct.  For example, relator admits that she secretly tape-recorded workplace conversations, but claims she did so to protect herself.  Additionally, the other acts for which relator was disciplined, such as falsely reporting herself as sick, lying when confronted, falsely accusing a coworker of sexual harassment, and removing a coworker’s belongings from his locker, are clearly “deliberate” and not “accidental.”  Therefore, the first prong of the employment misconduct test is easily satisfied.

Under the second prong, the commissioner’s representative concluded that relator “clearly violated the standards of behavior the employer had a right to expect, and after warnings, her conduct evinced an intent to disregard those standards.”  We agree.  The supreme court has provided that “[a]s a general rule, refusing to abide by an employer’s reasonable policies and requests amounts to disqualifying misconduct.”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  In addition, leaving work early without permission is disqualifying misconduct.  Colburn, 346 N.W.2d at 161.  Misconduct may also be found where an employee takes time off work after a request to do so has been denied.  Little v. Larson Bus Serv., 352 N.W.2d 813, 814-15 (Minn. App. 1984).  Moreover, an employee who commits repeated infractions of an employer’s work policies demonstrates a substantial disregard for an employer’s interests.  Flahave v. Lang Meat Packing, 343 N.W.2d 683, 687 (Minn. App. 1984). 

Relator received progressive warnings and disciplinary actions during her employment with MAC, demonstrating that she was aware of the standards of behavior MAC required.  She nonetheless continued to violate those standards over a period of time.  The commissioner’s representative did not err in concluding that relator committed employment misconduct, thereby disqualifying her from receiving unemployment benefits.

Affirmed.