This opinion will be unpublished and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

A03-356

 

Keith T. Bryant,

Relator,

 

vs.

 

ZipSort Corporation,

Respondent,

 

Commissioner of

Employment and Economic Development,

Respondent.

 

Filed December 30, 2003

Affirmed

Hudson, Judge

 

Department of Employment and Economic Development

 

Keith T. Bryant, 2916 Northway Drive, Apartment 304, Brooklyn Center, Minnesota 55430-2447 (pro se relator)

 

Zip Sort Corporation, 277 – 12th Avenue North, Minneapolis, Minnesota 55401-1026 (respondent)

 

Lee B. Nelson, Philip B. Byrne, Department of Employment and Economic Development, 390 Robert Street North, St. Paul, Minnesota 55101 (for respondent Commissioner)

 

            Considered and decided by Harten, Presiding Judge; Peterson, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

In this pro se certiorari appeal, relator seeks reversal of the commissioner’s representative’s decision that he was terminated for employment misconduct.  Because our standard of review is narrow and the record reasonably supports the commissioner’s representative’s findings that relator committed employment misconduct, we affirm.

FACTS

Relator, Keith Bryant, was employed as a machine operator for respondent, ZipSort Corporation (ZipSort), from December 4, 2000, to December 3, 2002.

On March 22, 2002, Bryant filed a discrimination claim with the Minneapolis Department of Human Rights alleging he was subjected to discrimination due to his race.  In his discrimination claim Bryant claimed he did not receive dental benefits and pay increases and was disciplined when others were not.

On December 3, 2002, Bryant’s supervisor and three other employees observed that Bryant had slurred speech, was unstable on his feet, and had a smell of alcohol on his breath.  Bryant was asked to go to the human resources director’s office, where Bryant met with his supervisor, the human resources director, and another employee.  After ZipSort’s drug and alcohol testing policy was read to him, Bryant was asked to submit to drug and alcohol testing.[1]  Bryant’s supervisor explained to him that if he refused to be tested, ZipSort would terminate him.  Bryant refused testing and was terminated.  On December 31, 2002, a department adjudicator initially determined that ZipSort discharged Bryant for reasons that amounted to employment misconduct, and that he was disqualified from receiving unemployment benefits.  Bryant appealed, and a de novo hearing was held before a department unemployment law judge.  The unemployment law judge affirmed the initial determination.  Bryant appealed, and a representative of the commissioner of the department (commissioner’s representative) determined that Bryant had been discharged for employment misconduct, as he was under the influence of alcohol at work and refused to submit to the drug and alcohol tests required by ZipSort’s policy.  Bryant filed a writ of certiorari with this court.

D E C I S I O N

Bryant argues that he did not commit misconduct and that he refused to take the drug and alcohol test because the test was being conducted in retaliation for filing the discrimination claim against ZipSort.  Bryant further notes that his supervisor testified he was a good and dependable worker.

The standard of review in an economic security appeal is very narrow.  Markel v. City of Circle Pines, 479 N.W.2d 382, 383 (Minn. 1992).  This court reviews the factual findings of a commissioner’s representative’s determination in the 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).  “When the parties have presented conflicting evidence on the record, this court must defer to the Commissioner’s ability to weigh the evidence . . . .”  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995). 

An employee discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Whether an employee committed a specific act of misconduct is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether an employee committed misconduct that disqualifies a person from eligibility for 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 a specific act constitutes misconduct is a question of law reviewed de novo.  Schmidgall, 644 N.W.2d at 804.  Generally, an employee commits misconduct by refusing to comply with an employer’s reasonable requests and/or policies.  See id. at 806.

            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).[2]

            We conclude that the commissioner’s representative’s findings are reasonably supported in the record.  The commissioner’s representative found that Bryant was under the influence of alcohol while at work on December 3, 2002, and that Bryant’s discrimination charge had nothing to do with his discharge.  The commissioner’s representative found Bryant was aware of ZipSort’s drug and alcohol testing policy.  Furthermore, the testimony in the record from Bryant’s supervisor and the human resources director supports the commissioner’s representative’s finding that Bryant was under the influence of alcohol and refused to take the required drug and alcohol test.  The commissioner’s representative also found that Bryant’s refusal to submit to the required tests evinced an intentional violation of the standards of behavior an employer has the right to expect of an employee and was an intentional disregard of his duties and obligations to ZipSort.

The record contains credible evidence that Bryant committed employment misconduct, because he was under the influence of alcohol while at work and refused to comply with ZipSort’s reasonable alcohol and drug testing policy.  Because the commissioner’s representative’s findings are supported in the record, we will not disturb them.

Affirmed.



[1] ZipSort’s drug and alcohol policy provides that all employees are subject to paid alcohol and drug testing if the employee acts in an abnormal manner which has been witnessed by a supervisor or manager or other employee, and employees who refuse to take such an examination will be considered to have voluntarily terminated their employment with the company.

[2] Minn. Stat. § 268.095, subd. 6(a) (2002) has been amended.  2003 Minn. Laws ch. 3, art. 2, § 13.  The new definition of employment misconduct, effective August 1, 2003, is “any intentional, negligent, or indifferent conduct, on the job or off the job, (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment.”  Id. (amending Minn. Stat. § 268.095, subd. 6(a)); Minn. Stat. § 645.02 (2002) (providing laws effective August 1 of year enacted unless otherwise specified).