This opinion will be unpublished and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

A03-995

 

Arthur Katz,

Relator,

 

vs.

 

Municipal Parking, Inc.,

Respondent,

 

Commissioner of Employment and

Economic Development,

Respondent.

 

Filed April 20, 2004

Affirmed

Gordon W. Shumaker, Judge

 

Department of Employment and Economic Development

File No. 708 03

 

 

 

Arthur Katz, 8525 West 28th Street, St. Louis Park, MN 55426-2945 (pro se relator)

 

Municipal Parking, Inc., Attn: Dennis E. Carter, 215 South 11th Street, Suite 200, Minneapolis, MN 55403-2503 (respondent employer)

 

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

 

 

Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER,Judge

 

Relator challenges the decision by the commissioner’s representative that he was disqualified from receiving unemployment benefits because he had been discharged for misconduct.  The representative found that relator had been previously warned for engaging in biased behavior, abandoning his post without authorization, absenteeism, and tardiness, and was discharged after the final incident in which he was sleeping on the job and failed to change a security videotape.  Relator argues that that he was late to work because of side effects of medication and symptoms of medical conditions, that he worked diligently, and that his case does not meet the legal criteria for employment misconduct.  Because we find the relator repeatedly disregarded his employer’s interests, even after reprimand, we affirm.

FACTS

            Relator Arthur Katz worked full time as a security officer for respondent Municipal Parking from March 20, 1990 through October 31, 2002.  Katz worked in a control room where he watched a console of surveillance monitors wired to video cameras positioned throughout a parking ramp.  The employer’s security officers rotate every hour and are required to maintain video surveillance by changing VCR tapes.  The security officers are not allowed to leave their post unless properly relieved. 

            The record shows that, throughout his employment at Municipal Parking, Katz received oral and written reprimands and warnings, including reprimands for reading the newspaper and not watching the console, for insubordination, and for being outside smoking when he was supposed to be watching the console.  He also was given a one-day suspension for being outside by his car instead of in the security office where he was supposed to be. 

Three particular incidents in 2002 led to Katz’s separation from Municipal Parking.  The record shows that the first incident occurred in May 2002, when a number of drawings and comments were found at Katz’s workstation.  The drawings were on tennis balls and depicted African American, Somali, and homosexual stereotypes.  The comments referenced gay Somalis and Somalis attending a Bin Laden training camp.  Some of Katz’s co-workers found this very offensive.  Katz was warned about this behavior but continued to draw similar illustrations and write comments on paper.  Katz was warned again and was moved to a different security station.  Katz was put on notice that his job was in jeopardy.  On May 10, 2002, Katz received “a written warning and a 5-day suspension for displaying comments and pictures that contain racial and bias connotations, in the presence of individuals who find said illustrations offensive.”  Katz argued that he was practicing describing suspects and that he was not the only employee who engaged in that behavior.  The record shows that the officers are given a detailed form for describing suspects and, therefore, would not need to use tennis balls and paper to describe suspects. 

            The second incident occurred in July 2002, when Katz worked approximately three and one half hours beyond his normal shift because the officer scheduled to relieve him did not arrive.  The record shows that Katz was aware that Municipal Parking has a policy requiring employees to remain at work until the next shift officer arrives.  Katz attempted to arrange for someone to relieve him, but ultimately left before another officer arrived.  On July 31, 2002, Katz received a written warning and a five-day suspension for this incident. 

The third incident occurred on October 29, 2002, when Katz was caught with his head down on the console when he should have been watching the monitors.  He also had not changed the VCR tapes that day.  He was given a written warning and a reprimand, stating that Katz was “[s]leeping on[the] [c]onsole, [n]ot performing job with monitors, leaving them without taping abilities all day, [and] [b]eing [t]ardy or absent 18 times and most were unexcused.”  The reprimand also recommended “termination for the serious security infractions of not taping for a whole shift and sleeping on [the] console.  These infractions are terminating offenses.  Mr. Katz appears to have NO desire to change his job performance.” 

Katz was discharged on October 31, 2002.  He argues that most of his behavior leading up to his discharge was because of illness or the medication he was taking for his illness.  There is nothing in the record to suggest that Katz ever discussed his health problems with Municipal Parking.  Municipal Parking denies “having any knowledge of [Katz’s] health that would have had a direct impact in the way [Katz] perform[ed] the essential functions of his position.” 

Katz established a benefit account with the Minnesota Department of Employment and Economic Development effective November 3, 2002.  A department adjudicator determined that Katz was disqualified from receiving benefits.  Katz appealed.  An unemployment law judge reversed the initial determination.  Municipal Parking appealed.  A representative of the commissioner issued the final decision on June 25, 2003, determining that Katz was discharged because of employment misconduct and therefore disqualified from receiving unemployment benefits.  Katz appeals that decision on a writ of certiorari. 

D E C I S I O N

I

            As a threshold issue, we must first determine which definition of employment misconduct applies to this case.  The legislature amended the statute defining employment misconduct effective August 1, 2003.  Minn. Stat. § 268.095, subd. 6 (Supp. 2003).  Respondent argues that because Katz’s benefit year runs until November 1, 2003, the amended definition should apply.  We disagree.

            The commissioner’s representative’s decision is dated June 25, 2003.  Thus, he could not have applied a statutory definition that was not in effect until August 1, 2003.  In addition, Minn. Stat. § 268.095 (2002), which contains the disqualification provisions, applies to “all covered employment, full time or part time, temporary or of limited duration, permanent or of indefinite duration, that occurred in Minnesota during the base period, the period between the end of the base period and the effective date of the benefit account, or the benefit year.”  Minn. Stat. § 268.095, subd. 11.  This is not a situation such as re-employment or acts or omissions after separation that would require the commissioner’s representative to review a benefit period.  Id., subds. 7, 8.  The issue before the commissioner’s representative was whether Katz was disqualified from receiving unemployment benefits at the time Katz filed his claim.  Thus, the applicable definition is that which is found in Minn. Stat. § 268.095, subd. 6 (2002), which was in effect at that time.

II

            Katz argues that he did not engage in employment misconduct and therefore should not be disqualified from receiving unemployment benefits.  Whether a former employee is disqualified from receiving unemployment benefits is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  The determination of whether the employee committed a particular act is a question of fact.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  A determination that a particular act constitutes employment misconduct is a question of law.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  This court defers to the factual determinations of the commissioner’s representative if they are reasonably supported by evidence in the record, but exercises independent judgment with respect to questions of law.  Id.  This court must defer to the commissioner’s representative’s ability to weigh the evidence and make credibility determinations, and may not weigh that evidence on review.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

An employee discharged for misconduct is not eligible for unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1).  At the time of the commissioner's representative’s decision, “employment misconduct” was defined 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.

(b) Inefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.

 

Minn. Stat. § 268.095, subd. 6(a)(1), (b).  See also Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002) (explicating statutory definition). 

In Houston, the Minnesota Supreme Court articulated a two-prong test to determine whether an employee’s actions constitute “employment misconduct” within the meaning of Minn. Stat. § 268.095, subd. 6(a).  Houston, 645 N.W.2d at 149.  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.  The second prong of the Houston test 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 Houston test for employment misconduct requires “that the employee not only engaged in intentional conduct, but also intended to, or engaged in conduct that evinced an intent to, ignore or pay no attention to his or her duties and obligations or the standards of behavior the employer has a right to expect.”  Id.

Regarding the first prong of the Houston test, a single isolated incident based on a misunderstanding, or a good-faith error in judgment not adversely affecting the employer’s interests is not sufficient to find intentional misconduct.  Sticha v. McDonald’s No. 291, 346 N.W.2d 138, 140 (Minn. 1984) (finding no disqualifying misconduct where employee inadvertently misled employer to believe employee was taking time off for funeral rather than wake).  Instead, to satisfy the first Houston prong, disqualifying misconduct must be deliberate, calculated, and intentional.”  McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 596 (Minn. 1988). 

Here it appears that none of the incidents were isolated.  The record shows that Katz was repeatedly tardy and absent even after warnings and reprimands.  Katz denies sleeping on the job but admits that he failed to watch the monitors on occasion and that he continued to engage in offensive behavior even after he was warned not to do so.  It appears that Katz’s disqualifying misconduct was deliberate, calculated, and intentional.  Thus, the first Houston prong is satisfied.

The second Houston prong requires intent that is separate and distinct from an employee’s intent to engage in the conduct in question.  Houston, 645 N.W.2d at 150.  To satisfy the second Houston prong, Municipal Parking must show that Katz possessed the requisite intent to disregard the standards of behavior his employer had a right to expect.  Id. 

When determining whether an employee has disregarded the conduct the employer has a right to expect, this court does not look solely to employment contracts, but reviews employers’ policies, rules, or reasonable requests.  Montgomery v. F & M Marquette Nat’l Bank, 384 N.W.2d 602, 604 (Minn. App. 1986), review denied (Minn. June 13, 1986).  See, e.g., Schmidgall, 644 N.W.2d at 805 (injury reporting policy); McGowan, 420 N.W.2d at 595-96; (reasonable request to pick up prescription); Sivertson v. Sims Sec. Inc., 390 N.W.2d 868, 871 (Minn. App. 1986) (guard rule), review denied (Minn. Aug. 20, 1986); Duc Van Luu v. Carley Foundry Co., 374 N.W.2d 582, 585 (Minn. App. 1985) (absenteeism policy). 

The human-resources director for Municipal Parking testified that there were policies regarding sleeping on the job, watching the monitors, changing the VCR tapes, staying at the security post, absenteeism and tardiness.  Katz admitted that he was aware of these policies.  The record also shows that Katz was counseled about offensive behaviors after the first tennis ball incident and was told his job was in jeopardy, but he continued to engage in the offensive behaviors.  The record shows that Municipal Parking reasonably required Katz to arrive for work on time, watch the monitors, stay at his post unless relieved, and not engage in offensive behaviors, and that Katz disregarded the conduct Municipal Parking has a right to expect.

Katz argues that he had excuses for his tardiness.  Even if not willful or deliberate, chronic and excessive absenteeism and tardiness may amount to misconduct.  Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985).  “The employer has a right to expect an employee to work when scheduled.”  Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984).  Excessive tardiness or absences, particularly after warnings, may evidence an employee’s disregard of an employer’s interest or lack of concern for the employment.  McLean v. Plastics, Inc., 378 N.W.2d 104, 107 (Minn. App. 1985).  Moreover, an employee who fails to properly notify an employer of intended absences and to comply with employer policies regarding attendance demonstrates a lack of concern for the employment and commits disqualifying misconduct.  See Edwards v. Yellow Freight Sys., 342 N.W.2d 357, 359 (Minn. App. 1984) (holding that employee committed misconduct by repeatedly failing to comply with employer’s regulation to provide two-hours advance notice when unable to report for work).

When the unemployment law judge asked Katz why he was tardy on so many occasions, Katz responded, “Yes, I was late.  The reason I couldn’t remember at the time for each date, he gave me a specific date I did not remember the reason for each date as I recall in general some days, couple of days I was ill, physically which caused me to be a few minutes late.”  He also said that one day his car did not start, one day traffic was backed up because of an accident, and one day heavy rains caused him to “detour around.”  There is nothing in the record to show that Municipal Parking had knowledge of how Katz’s health problems would have affected his ability to perform his duties.  Given the fact that Katz was warned and reprimanded, Katz’s excessive absences and tardiness evidence his disregard of Municipal Parking’s interest. 

Katz argues that other employees were tardy, looked away from the monitors, and engaged in offensive behaviors.  But violation of the employer’s rules by other co-workers does not insulate an applicant from a claim of employment misconduct.  Sivertson, 390 N.W.2d at 871.

The record supports the commissioner’s representative’s findings of fact and that under Minn. Stat. § 268.095, subd. 6(a)(1), (b), and Houston, 645 N.W.2d at 149, Katz engaged in employment misconduct and therefore does not qualify for unemployment benefits.

Affirmed.