This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Ralph F. Martin,





Metropolitan Council,



Department of Employment and Economic Development,


Filed November 8, 2005


Toussaint, Chief Judge


Department of Employment and Economic Development

Agency File No. 16513 04

Ralph F. Martin, 7521 Lyndale Avenue South, Apt. #211, Richfield, MN 55423 (pro se relator)


Peter Anthony Hanf, Diane M. Cornell, Office of General Counsel, 230 East Fifth Street, St. Paul, MN 55101 (for respondent Metropolitan Council)


Linda Alison Holmes, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent DEED)


            Considered and decided by Toussaint, Chief Judge; Randall, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge


            Relator challenges the senior unemployment review judge’s (SURJ) decision that he is disqualified from receiving unemployment benefits because of employment misconduct.  Because we conclude that the record reasonably supports the department’s final decision and relator’s conduct constituted employment misconduct, we affirm.


            The SURJ adopted the unemployment law judge’s (ULJ’s) findings and conclusion that relator had committed employment misconduct because the determinative facts were not in dispute.  Relator then appealed the SURJ’s decision to this court. 

            Our review of a decision by the SURJ is limited to whether the evidence in the record reasonably supports the decision.  Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992).  Whether an employee has committed misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros. Inc., 346 N.W.2d 159, 161 (Minn. 1984).  Although we defer to the SURJ’s findings of fact if they are reasonably supported by the record, we review de novo whether the actions constitute misconduct.  Smith v. Employers’ Overload Co., 314 N.W.2d 220, 221 (Minn. 1981).

            Employment misconduct 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.”  Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003).

            Relator was a bus driver with respondent Metropolitan Council from August 2001 to April 25, 2004.  He was discharged because he told his supervisor that he had been charged with a felony domestic assault on his wife, he had been in jail, and he hoped to get the felony charge reduced to a gross misdemeanor.  Respondent had a policy against retaining drivers who had committed “crimes against individuals . . . misdemeanor, gross misdemeanor, or felony”; relator was aware of this policy, which was contained in the driver’s guide book.  Respondent gave relator the choice of resigning or being suspended without pay pending the conclusion of the criminal matter.  Relator resigned rather than face a discharge upon conclusion of the criminal matter.

            The record contains no documentary evidence of respondent’s policy or relator’s charge, plea, or conviction.  Nevertheless, respondent and relator testified to their existence.  Relator testified that, at the time of his resignation, he had committed an assault against his wife, was charged with a felony, spent time in jail prior to his April 25 meeting with respondent, and hoped to plead guilty to a gross misdemeanor.  Similarly, respondent testified to relator’s admission of these facts.  Relator later admitted at the hearing before the ULJ that on June 14, he had been sentenced to 180 days in jail with a “stay of imposition” and then served the 180 days thereafter.

            Respondent generally described its policy as requiring discharge of a driver if that driver “has crimes against individuals, which is a misdemeanor, gross misdemeanor or felony.”  Its decision to advise relator that he would be put on unpaid leave if he didn’t resign was based on relator’s representations that he planned to plead to a misdemeanor domestic assault.

            Relator’s main argument on appeal is that he was not “convicted” of a crime.  The ULJ observed, however, that relator admitted that he served 180 days after pleading and one does not serve 180 days if there is no conviction.  Whether relator was or was not actually convicted, however, is not critical to relator’s case because he represented to respondent the facts that established a breach of the employer’s policy and he then chose to resign based on those facts.  He knew at the time he chose to resign that if he had a good chance of avoiding conviction he could have taken the unpaid suspension, rather than resign, and then he would have gotten has job back.

            The SURJ found that relator had been discharged from his employment, stating that “[a]n indefinite suspension without pay is the same as a discharge for the purposes of unemployment insurance law.”  The SURJ also concluded that relator had committed misconduct because he knew that a crime against an individual would cost him his job and the evidence showed that he served 180 days for such a crime.

            Relator’s position as a bus driver required that he have contact with passengers and in fact be responsible for their welfare.  He knew that an assault would violate respondent’s policy and that respondent considered such conduct a serious matter.  Reasonable evidence in the form of the parties’ testimony shows that the policy existed, it set a reasonable
expectation of the employee, relator knew of the policy, relator admitted a serious violation, and relator breached the policy.