This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Arrowhead Regional Corrections,
Department of Employment and Economic Development,
Filed August 23, 2005
Department of Employment and Economic Development
File No. 14388 04
Linda A. Holmes, Minnesota Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent Department of Employment and Economic Development)
Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.
U N P U B L I S H E D O P I N I O N
Relator Allan Wayne Anderson challenges the decision of the senior unemployment review judge that he was discharged from employment for misconduct, disqualifying him from receiving unemployment benefits. Anderson’s discharge resulted from Anderson losing his driver’s license following a DWI conviction. We affirm.
February 1997 until August 16, 2004, Anderson was employed as a corrections
counselor by respondent Arrowhead Regional Corrections (ARC) at the Northeast
Regional Corrections Center (NERCC). The
D E C I S I O N
An employee discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2004). Whether an employee has committed employment misconduct presents a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984). The senior unemployment review judge determines the fact question of whether an employee committed the alleged acts of misconduct. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). The factual findings of the senior unemployment review judge are “viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.” White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). This court reviews de novo whether the employee’s actions constituted employment misconduct that disqualifies the employee from receiving unemployment benefits. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).
Minn. Stat. § 268.095, subd. 6 (2004), states:
(a) Employment misconduct means any intentional, negligent, or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment.
(b) Conduct that was a direct result of the applicant’s chemical dependency is not employment misconduct unless the applicant was previously diagnosed chemically dependent or had treatment for chemical dependency, and since that diagnosis or treatment has failed to make consistent efforts to control the chemical dependency.
. . . .
(d) A driving offense in violation of sections 169A.20, 169A.31, or 169A.50 to 169A.53 that interferes with or adversely affects the employment is employment misconduct.
Anderson was convicted of fourth-degree driving while impaired. See Minn. Stat. § 169A.27 (2002) (defining fourth-degree driving while impaired as a violation of Minn. Stat. § 169A.20). Anderson argues that ARC should have accommodated him because the offense resulted from his chemical dependency. While subsection (b) generally provides that conduct that directly results from chemical dependency is not employment misconduct, subsection (d) applies specifically to alcohol-related driving offenses. When statutory provisions conflict, a specific provision prevails over a general provision. Minn. Stat. § 645.26, subd. 1 (2004); see also Markel v. City of Circle Pines, 479 N.W.2d 382, 385 (Minn. 1992) (in holding that DWI was employment misconduct (prior to the enactment of subsection (d)), the supreme court noted the culpability of driving under the influence and the legislature’s determination of the seriousness of this offense).
that the loss of his driver’s license did not interfere with or adversely
affect his employment. But Salmela
testified that transportation is an essential function of a corrections
officer, and a driver’s license is required to perform that function. This court defers to the senior unemployment
review judge’s ability to weigh conflicting evidence and make credibility
determinations. Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (
that this case is distinguishable from Markel
because, here, ARC did not discharge him until 16 months after his arrest. But
unemployment review judge properly determined that
Effective August 1, 2004, the decision-maker
formerly referred to as the commissioner’s representative is referred to as a
senior unemployment review judge. Minn.
Stat. § 268.105, subd. 2 (2004); 2004