This opinion will be unpublished and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

A03-1021

 

 

Dennis A. Thom,

Relator,

 

vs.

 

Bailey Nurseries Services, Inc.,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

 

Filed February 3, 2004

Affirmed
Klaphake, Judge

 

Department of Employment and Economic Development

File No. 19537 02

 

Dennis A. Thom, 20755 Addison Drive, Prior Lake, MN  55372-8825 (relator pro se)

 

Gregory Peters, Seaton Beck & Peters, 7301 Ohms Lake, Suite 320, Edina, MN  55439 (for respondent Bailey Nurseries Services)

 

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

 

            Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Pro se relator Dennis A. Thom challenges a decision by a representative of the respondent Commissioner of Employment and Economic Development disqualifying him from receiving unemployment benefits.  The commissioner’s representative determined that relator was discharged from his employment with respondent Bailey Nurseries Services, Inc. for employment misconduct, after Bailey discovered that he had misrepresented his qualifications and work history.

            In this certiorari appeal, relator claims that the representative’s findings are flawed because they were based on an untruthful letter sent by Bailey’s attorney and that this court should follow the decision of the unemployment law judge, who determined that relator did not attempt to mislead Bailey and thus did not commit employment misconduct.  Because we review the decision of the commissioner’s representative, not that of the unemployment law judge, and because the record evidence reasonably supports the representative’s decision that relator made material misrepresentations to Bailey regarding his work history and qualifications, we affirm.

D E C I S I O N

            Our review of unemployment insurance cases is limited to determining whether the record reasonably supports the decision of the commissioner’s representative.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995); Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992); Cent. Specs., Inc. v. Comm’r of Econ. Sec., 622 N.W.2d 833, 835 (Minn. App. 2001), review denied (Minn. May 15, 2001).  We review the decision of the commissioner’s representative, not that of the unemployment law judge, even on issues involving witness credibility and conflicting evidence.  Tuff, 526 N.W.2d at 51.

            An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Employment misconduct is defined to mean:

(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.

 

Id., subd. 6(a) (2002).[1]

            Here, the evidence showed:  (1) in response to a newspaper ad that Bailey had placed for a human resources position, relator sent a cover letter and resume, which indicated that he was employed by Certainteed Corporation from “6/97 to present”;  (2) during interviews with Bailey representatives on February 6 and March 15, 2002, relator failed to disclose that he had left Certainteed three years earlier and spoke of his position there in the present tense, which led Bailey to believe that he was still employed;  (3) Bailey decided not to fill the position at that time and informed relator by letter; (4) in August 2002, Bailey contacted relator when it reconsidered hiring a human resources person; (5) relator was again interviewed and Bailey offered him a job as safety director/human resources generalist, which relator accepted; (6) relator represented that he had computer skills, and was familiar with Word and Excel; (7) within a month after relator began his employment, several other employees questioned his lack of basic computer skills, including his inability to minimize or maximize a screen, which led Bailey to investigate his previous work history; (8) Bailey discovered that relator had left his job at Certainteed in February 1999; (9) Bailey claimed that it would not have interviewed or hired relator had it known that he had not been working in the human resources field for over three years; (10) on November 7, 2002, Bailey discharged relator for misrepresenting his qualifications and work history.

This evidence reasonably supports the conclusion that relator’s actions were intentional under Minn. Stat. § 268.095, subd. 6(a)(1).  See Houston v. Int’l Data Transfer, 645 N.W.2d 144, 149 (Minn. 2002) (stating that in order for conduct to be intentional, it must be deliberate and not accidental).  Relator admitted during his testimony that, as a job-hunting strategy, he left the word “present” on his resume when referring to his employment at Certainteed:  “[W]ell, I know I left [the word ‘present’] there because I did not have another period of employment that had comparable type experience for the job that I was looking for.”  And, according to Bailey representatives who interviewed relator, relator spoke of his job at Certainteed in the present tense and failed to specifically inform them that he had not worked at Certainteed for three years.  Finally, although relator claims that Bailey must have known that he was no longer working for Certainteed and that the obligation was on Bailey to verify his resume, relator’s silence can easily be viewed, as the commissioner’s representative viewed it, as intentional conduct on his part.

This evidence further supports the conclusion that relator’s actions either disregarded “the standards of behavior” that Bailey had a right to expect of him or disregarded his “duties and obligations to” Bailey.  Minn. Stat. § 268.095, subd. 6(a)(1).  As the commissioner’s representative noted, “[a]n employer has a right to expect honesty from its employees” and “a material misrepresentation on an employment application constitutes employment misconduct.”  This court has specifically stated that when an employee makes misrepresentations on a resume or employment application that are material to the position, he or she commits misconduct.  See, e.g., Indep. Sch. Dist. No. 709 v. Hansen, 412 N.W.2d 320, 323 (Minn. App. 1987); Heitman v. Cronstroms Mfg., 401 N.W.2d 425, 427-28 (Minn. App. 1987).

Here, Bailey’s human resources manager testified that he would not have interviewed or hired relator had he known that relator had not worked in the preceding three years.  Relator claims that following his departure from Certainteed, he was self-employed developing property with his wife; Bailey’s witnesses, however, testified that relator did not disclose this additional experience to them when he was interviewed or hired.  In any event, Bailey’s human resources manager testified that he wanted someone with recent experience in the human resources field and that he became suspicious after relator demonstrated a lack of basic computer skills, something that the manager assumed anyone with recent employment in the field would have.  Thus, the evidence supports the conclusion that relator’s misrepresentation was material to the position he obtained.

Relator’s arguments are rambling and difficult to understand, but basically challenge the commissioner’s representative’s rejection of relator’s assertions that his failure to update his resume was a legitimate job-hunting strategy and that Bailey was somehow at fault for not verifying his resume.  When witness credibility and conflicting evidence are at issue, we must defer to the ability of the commissioner’s representative to weigh the evidence and make credibility determinations.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  Here, relator admitted that he failed to update his resume and acknowledged that employers are entitled to rely upon information submitted in a resume when hiring.  Relator’s own testimony defeats his argument that Bailey should have known that his resume was not accurate and demonstrates that he knew he was violating Bailey’s reasonable expectation that he was truthful on his resume.

Finally, in the “conclusion” section of his brief, relator suggests that Bailey was happy with his performance until it discovered that he was 68 years old and that the real reason for his discharge was his age.  Relator made a similar statement to this effect in his closing argument to the unemployment law judge, but offered no testimony or other evidence to support his claim.  Absent evidence to support relator’s claim that another reason existed for his discharge and given the record evidence that reasonably supports the decision by the commissioner’s representative that relator was discharged for materially misrepresenting his work history and qualifications, we decline to consider whether relator’s age might have played a role in his discharge.

We therefore affirm the decision of the commissioner’s representative that relator is disqualified from receiving benefits because he committed employment misconduct when he materially misrepresented his work history and qualifications.  Under Minn. Stat. § 268.095, subd. 6(a)(1), relator’s conduct was “intentional” and exhibited a disregard for “the standards of behavior that an employer has the right to expect of [an] employee” or a disregard for “the employee’s duties and obligations to the employer.”

Affirmed.



[1] This definition was amended effective August 1, 2003.  2003 Minn. Laws ch. 3, art. 2, §§ 13, 20(g) (1st Spec. Sess.).  Relator’s discharge took place in November 2002, well before the effective date of the new statutory definition.  The commissioner’s representative applied the 2002 version of the statute when he issued his July 2003 decision denying relator benefits.  Because all of the relevant events took place prior to the effective date of the new statutory definition, we apply the 2002 version of the statute.