This opinion will be unpublished and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

A03-1696

 

Steven C. Grounds,

Relator,

 

vs.

 

Archer Daniels Midland Company,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed August 24, 2004

Affirmed

Anderson, Judge

 

Department of Employment and Economic Development

File No. 408 03

 

Steven C. Grounds, 66 Ninth Street East, Unit 1308, St. Paul, MN  55101-4701 (pro se relator)

 

Archer Daniels Midland Company, Mankato Location #284, c/o TALX UCM Services, Inc., P.O. Box 283, St. Louis, MO  63166-0283 (respondent); and

 

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

 

            Considered and decided by Peterson, Presiding Judge; Anderson, Judge; and Forsberg, Judge.*

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

 

            Respondent terminated relator’s employment in November 2002.  Relator established an unemployment benefits account with the Department of Employment and Economic Development (department), and the department adjudicator initially determined that relator was eligible to receive unemployment compensation.  Respondent appealed, and the unemployment law judge (ULJ) decided that relator was disqualified from receiving unemployment benefits because relator had committed employment misconduct.  The commissioner’s representative affirmed the decision of the ULJ.  Relator now appeals by writ of certiorari.  We affirm.

FACTS

 

            Respondent, Archer Daniels Midland Company (ADM), employed relator, Steven Grounds, from 1996 until 2002.  ADM terminated the employment of Grounds because he wrote unauthorized messages in a logbook that was reserved for employee communications regarding safety and operation of the boiler at ADM.

            In July 2002, ADM became aware that Grounds made unauthorized entries in the logbook, including remarks about managers trying to entrap employees, a supervisor discriminating on the basis of religion, workers attempting to undermine the company, a supervisor exhibiting signs of a psychological break, and details about his own psychological assessment.  In October 2002, ADM told Grounds that entries in the logbook were reserved for safety and operational issues and that he was not permitted to make entries in the logbook about other issues.  ADM also posted a sign by the logbook outlining the purpose of the logbook, identifying acceptable and unacceptable entries.

            In late October or early November, Grounds again made unauthorized entries in the logbook, which included complaints about the plant superintendent, alleged violations of federal labor laws during union contract negotiations, statements about paranoia, references to the prison population of the United States, and a childhood experience of Grounds.  These entries did not meet either the standard for entries that ADM communicated orally to Grounds or the posted standards.

            ADM terminated the employment of Grounds because of the repeated unauthorized entries in the logbook. 

D E C I S I O N

 

Standard of Review

 

An employee discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Houston v. Int’l Data Transfer Corp. sets forth a two-prong test to determine whether an employee’s actions constitute “employment misconduct” under Minn. Stat. § 268.095, subd. 6 (2002).  645 N.W.2d 144, 149-50 (Minn. 2002).  The employee’s misconduct “must (1) be intentional and (2) disregard [either] standards of behavior the employer has a right to expect or the employee’s duties and obligations to the employer.”  Id. at 149.  In cases of employment misconduct, “[w]hether an employee engaged in conduct that disqualifies the employee from unemployment benefits is a mixed question of fact and law.”  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether the employee committed the act alleged to be misconduct is a fact question, but whether that act is employment misconduct is a question of law.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  A reviewing court generally defers to the factual findings of the commissioner’s representative, but exercises independent judgment with respect to questions of law.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

As a preliminary matter, the commissioner’s representative determined that Grounds was disqualified from receiving unemployment benefits under Minn. Stat. § 268.095, subd. 6 (2003).  But the alleged misconduct occurred in 2002.  This court recently concluded that “[a]n employee’s conduct should be judged against the law in effect at the time of the termination; that is the date that the employer terminated the employee for committing [the] conduct.”  Bray v. Dogs & Cats Ltd. (1997), 679 N.W.2d 182, 186 (Minn. App. 2004).  Therefore, the application of the 2003 statute in this case is an error of law.  Id.  Because the commissioner’s representative used the incorrect legal standard in disqualifying Grounds, we independently apply the correct statute, Minn. Stat. § 268.095, subd. 6 (2002), to the present facts to determine whether Grounds committed employment misconduct.  See Ress, 448 N.W.2d at 523 (stating that the appellate courts exercise independent judgment with respect to questions of law).

Grounds argues that the decision of the commissioner’s representative should be reversed because: (1) Grounds suffered from various medical conditions that the commissioner’s representative did not have the authority to ignore; (2) Grounds was harassed by his employer; (3) the working conditions at ADM were unsatisfactory; (4) ADM communicates by example the standards of behavior that it has a right to expect, and his behavior was within these standards; (5) the logbook entries did not constitute employee misconduct; and (6) the boiler operators did not use or rely on the logbook, therefore, the logbook entries constituted simple, unsatisfactory performance, not misconduct. 

Waived issues

Grounds does not elaborate either on how ADM harassed him or what working conditions at ADM were unsatisfactory.  The failure to cite authorities or argue the issues results in a waiver of these arguments.  See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (stating issues regarding assignment of error based on mere assertion and unsupported by argument or authority are waived unless error is obvious); see also Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (declining to address allegations unsupported by legal analysis or citation).

Issues properly on appeal

Grounds argues that the commissioner’s representative did not have authority to ignore his medical conditions, that Grounds acted within the standards of behavior that ADM had a right to expect of him, that his entries in the log book did not constitute employment misconduct, and that because the boiler operators did not use the logbook, his unauthorized entries constituted simple, unsatisfactory performance, not misconduct.  We disagree. 

The claim by Grounds that the commissioner’s representative did not have the authority to ignore his medical conditions is essentially an attack on the commissioner’s representative’s authority to weigh the evidence and determine credibility.  We defer to the ability of the commissioner’s representative to weigh conflicting evidence and to make credibility determinations regarding proffered testimony.  Jenson v. Dept. of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Dec. 20, 2000).  The commissioner’s representative specifically found that, although Grounds submitted medical documentation into evidence to explain why he made the unauthorized entries, the “evidence does not support a finding that [Grounds] made an error in judgment.  The evidence supports a finding that Grounds knew at the time he made the entries that he was violating company policy.”  Because we defer to the ability of the commissioner’s representative to weigh evidence and make credibility determinations, and because the evidence supports the commissioner’s representative’s decision, the challenge to the authority of the commissioner’s representative fails.

We deal concurrently with the next two arguments made by Grounds – that he acted within the standard of behavior that ADM had a right to expect of him and that his entries in the logbook did not constitute employment misconduct.  Grounds misinterprets Minn. Stat. § 268.095, subd. 6 (2002), which states employment misconduct is “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.”  Minn. Stat. § 268.095, subd. 6 (2002).  The standard of behavior referred to in subdivision 6, under a plain reading of the statute, is an objective standard, not a subjective one, as Grounds contends. 

We have concluded that failure to comply with an employer’s reasonable requests violates the standard of behavior that the employer has a reasonable right to expect.  Schmidgall, 644 N.W.2d at 804.  Here, ADM’s request that employees refrain from making entries into the logbook that did not pertain to boiler safety and operation issues was a reasonable request, and ADM had a reasonable right to expect that Grounds would honor that request.  Because Grounds intentionally made irrelevant entries in the logbook after ADM warned him not to, Grounds intentionally violated the standard of behavior that ADM had a right to expect.  We conclude that Grounds’ actions constituted employment misconduct as a matter of law.  See Schmidgall, 644 N.W.2d at 807(concluding that relator’s refusal constituted employment misconduct). 

Finally, Grounds argues that because boiler operators only infrequently used the logbook, his entries constituted simple, unsatisfactory performance and not misconduct.  But Grounds cites no authority supporting this proposition and does not argue persuasively why this would be the case.  Because Grounds refused to comply with a reasonable request of his employer, his actions constituted employment misconduct.  See id.

            Affirmed.



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