This opinion will be unpublished and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

A03-413

 

Louis A. Volk,

Relator,

 

vs.

 

E A H Schmidt & Associates,

Respondent,

 

Commissioner of Employment and

Economic Development,

Respondent.

 

 

Filed December 9, 2003

Affirmed

Hudson, Judge

 

Minnesota Department of Employment and

Economic Development

File No. 15026 02

 

Louis A. Volk, 8740 11th Avenue South, Bloomington, Minnesota 55420-3052 (pro se relator)

 

E A H Schmidt & Associates, Attn: Edward A.H. Schmidt, 3245 Winpark Drive, New Hope, Minnesota 55427-2023 (respondent)

 

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

 

            Considered and decided by Harten, Presiding Judge; Hudson, Judge; and Crippen, 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 challenges the commissioner’s representative’s decision that his employment was terminated for 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 Louis A. Volk (Volk) was employed by E A H Schmidt & Associates (Schmidt) from June 19, 1995, through August 7, 2002, as a full-time HVAC (heating, ventilating, and air conditioning) technician.  Volk established a benefit account with the Minnesota Department of Employment and Economic Development (Department), effective August 4, 2002.  Volk was discharged from his employment on August 7, 2002, for allegedly violating company rules, including refusing to carry out work assignments, having angry outbursts toward co-workers and customers, and submitting falsified billing and payroll forms.  Specifically, on a billing form Volk left with the customer on August 1, 2002, Volk wrote that he finished the job at 2:45 p.m.  However, on the payroll form Volk submitted to Schmidt, Volk changed the time and indicated that he finished the job at 3:45 p.m.  On August 23, 2002, a Department adjudicator determined that Volk was discharged for reasons that did not amount to employment misconduct, and therefore Volk was qualified to receive unemployment benefits.  Schmidt appealed the adjudicator’s decision, and a de novo hearing was held on November 19, 2002.  On November 26, 2002, an unemployment law judge affirmed the adjudicator’s decision.  Schmidt appealed the unemployment law judge’s decision, and on April 14, 2003, the commissioner’s representative issued the agency’s final determination that Volk had committed employment misconduct and was not eligible to receive unemployment benefits.  This certiorari appeal follows.

D E C I S I O N

On certiorari appeal, this court examines the decision of the commissioner’s representative, not the decision of the unemployment law judge.  Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997). 

Volk challenges the findings by the commissioner’s representative and argues that his employment record was exceptional, and he contends there was no evidence submitted about angry outbursts with customers.  Volk contends he only refused job assignments if he was not properly licensed or otherwise qualified to do the job, and notes there were no written warnings citing his failure to carry out job assignments before the unemployment judge.  Finally, Volk argues the evidence shows that the error on the billing form and payroll form was inadvertent.

Our standard of review in an economic security appeal is narrow.  McGowan v. Executive Express Transp. Enter., 420 N.W.2d 592, 594 (Minn. 1988).  We review the factual findings of the 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 (2002); Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether an employee committed a specific act of misconduct is a question of fact.  Id.  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) (2002).[1]

            We conclude that the commissioner’s representative’s findings are reasonably supported in the record.  The parties presented conflicting evidence on Volk’s conduct; therefore, we defer to the commissioner’s representative’s ability to weigh the evidence.  Whitehead, 529 N.W.2d at 352.  The commissioner’s representative found that Volk had been warned on several occasions for angry outbursts involving other employees and customers and was advised by Schmidt to seek anger management help.  The record contains a written warning regarding Volk’s outbursts, and notes that it is the second warning he received.  In addition, the commissioner’s representative found Volk had refused work assignments he did not like, which interfered with Schmidt’s business.  The commissioner’s representative also found that Volk submitted falsified billing and payroll forms.  The record contains the service report and billing and payroll forms, which shows that the two reports have different numbers for the time that Volk finished working.  Finally, the commissioner’s representative found Volk had received a copy of Schmidt’s employee handbook, which provided for discipline up to discharge for failure or refusal to follow instructions, abusive language, disrespectful behavior, insubordination, and providing false and inaccurate reports on timecards to the employer. 

            The record contains credible evidence that Volk committed employment misconduct because he was aware of Schmidt’s discipline policies regarding angry outbursts involving customers and employees, failing and refusing to carry out work assignments, and submitting falsified billing and payroll records.  See Schmidgall, 644 N.W.2d at 806 (finding an employee who refuses to comply with an employer’s reasonable policies and requests engages in employee misconduct).  Because the standard of review in an economic security appeal is narrow, and because the commissioner’s representative’s findings are supported in the record, we will not disturb them.

Affirmed.

 



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

[1] 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).