This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1043

 

Leonard R. Juenemann,

Relator,

 

vs.

 

Apperts, Inc.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed December 20, 2005

Affirmed

Stoneburner, Judge

 

Department of Employment and Economic Development

Agency File No. 652 05

 

Leonard R. Juenemann, 7763 State Street, Clear Lake, MN 55319 (pro se relator)

 

Robert Charles Justin, 1015 W. St. Germain Street, Suite 300, Box 1497, St. Cloud, MN 56302 (for respondent Apperts, Inc.)

 

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 Kalitowski, Presiding Judge; Stoneburner, Judge; and Crippen, Judge.*


U N P U B L I S H E D ††O P I N I O N

Stoneburner, Judge

 

††††††††††† Relator Leonard Juenemann challenges the determination of the senior unemployment review judge (SURJ) that he is not entitled to unemployment benefits because he was discharged for misconduct by his employer, respondent Apperts, Inc.† Because we see no error in the conclusion that relatorís acts constituted misconduct under Minn. Stat. ß 268.095, subd. 6(a) (2004), we affirm.

FACTS

 

††††††††††† Relator was employed by respondent from October 1991 until December 2004.† In February 2002, he signed a statement saying he had received respondentís updated handbook.† It set out respondentís policies on the use of company voicemail, e-mail, and Internet access.†

The Voice Mail system is the property of [respondent].† It has been provided by [respondent] for use in conducting [respondentís] business. . . .The Voice Mail system is to be used for [respondentís] purposes.

. . . .

Violations of [respondentís] Voice Mail policy may result in disciplinary action up to and including discharge.

. . . .

[Respondentís] mail equipment, photocopying and facsimile machines . . . are to be used for business purposes only.† Employees should not use these services for personal needs.

. . . .

Employees may not solicit any other employee during work time, nor may employees distribute literature in work areas at any time.

. . . .

The E-mail system is the property of [respondent].† It has been provided by [respondent] for use in conducting [respondentís] business. . . .The E-mail system is to be used for [respondentís] purpose only.† Use of the E-mail system for personal purposes, such as advertising apartments for rent, tickets for sale, pets for adoption, etc. is prohibited.†

. . . .

Employees have no right of personal privacy, nor should they expect privacy in any matter stored in, created, received, or sent over the [E-mail] system.

. . . .

Violations of [respondentís] E-mail policy may result in disciplinary action up to and including discharge.

 

††††††††††† While employed by respondent, relator also ran a home business.† He printed business cards for his home business giving respondentís voicemail number and e-mail address.

††††††††††† In October 2004, relatorís wife started a home business selling candles.† She and her distributer used relatorís e-mail account with respondent to transmit orders.† Relator testified, ď[T]hatís why you see about a dozen of these e-mails of hers coming through there, and they were all done at night, not during the day, not when I was working.Ē †When asked about the names of other e-mail addressees, relator also acknowledged that ďthere was more personal use [of respondentís e-mail] than just the candles.Ē

††††††††††† In November 2004, relator brought samples of a product sold in his home business to respondentís premises and distributed the samples to other employees.† He testified that ď[W]hen I was conducting my business inside [respondentís offices], when I dropped off produce . . . all I was doing was dropping off samples.† I think I spent maybe five seconds in four offices.† I was dropping off the sample and the sheet and I left . . . . Didnít take any orders . . . .Ē† He was reprimanded and told that his home business was to be conducted outside respondentís work hours and away from respondentís premises.

††††††††††† In December 2004, a business card used in relatorís home business, but giving respondentís phone number and e-mail address, was found on respondentís premises.† Investigation revealed that respondentís e-mail account had been used by relator and his wife for their home businesses.† Relator was discharged because he had used respondentís property for personal gain, in violation of respondentís policy.

††††††††††† Relator applied for unemployment benefits after his discharge.† A department adjudicator determined that relatorís use of company property for personal gain was misconduct and that he was not entitled to benefits.† Relator appealed, and, after a telephone hearing, an unemployment law judge found that he had not been discharged for misconduct because his use of company property was only ďtechnically a violationĒ rather than ďa serious violationĒ of respondentís policy.† Respondent appealed, and a SURJ, after conducting de novo review, determined that relator had been discharged for misconduct because he violated respondentís policy on the use of company property.† Relator challenges that determination.

D E C I S I O N

††††††††††† Whether an employee is eligible for benefits for reasons of misconduct is a mixed question of fact and law, but whether the employeeís acts constitute misconduct is a question of law that this court reviews de novo.† Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).† This court reviews factual findings in the light most favorable to the decision based on them and does not disturb them if the evidence reasonably tends to sustain them.† Id.

††††††††††† Misconduct is defined as ďany intentional, negligent, or indifferent conduct . . . (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.Ē †Minn. Stat. ß 268.095, subd. 6(a) (2004).† ď[S]imple unsatisfactory conduct . . . [is] not employment misconduct.Ē† Id.† ďAs a general rule, refusing to abide by an employerís reasonable policies and requests amounts to disqualifying misconduct.Ē †Schmidgall,644 N.W.2d at 804.After a warning has been given, refusal to comply with an employerís policy has repeatedly been considered misconduct.† See, e.g., Brown v. Natíl Am. Univ., 686 N.W.2d 329, 333 (Minn. App. 2004) (holding that continued practice of borrowing money from students despite warnings to refrain from that practice was misconduct), review denied (Minn. Nov. 16, 2004) Schmidgall, 644 N.W.2d. at 806 (failure to report injury after repeated warnings to do so was misconduct); Gilkeson v. Indus. Parts & Serv., Inc., 383 N.W.2d 448, 452 (Minn. App. 1986) (holding that pattern of failing to follow policies and procedures and ignoring directions and requests was misconduct).

††††††††††† Respondent explained that relator was fired for using company property for personal gain.† Relator admits that he did this, but argues in his brief that he did not know it was wrong because he did not pay much attention to the handbook and that, while he was guilty of misusing respondentís e-mail, that was unsatisfactory conduct rather than misconduct.† But relator knew from respondentís handbook that use of respondentís e-mail and voice mail systems for any purpose other than respondentís business could result in disciplinary action ďup to and including discharge.Ē †From this, it could easily be inferred that respondent considered such violations serious.† Relator was also warned personally that his home business had to be conducted completely independently of his job with respondent.† Even after these warnings, he continued to use respondentís e-mail for his own and his wifeís home businesses.† He violated the standards of behavior respondent had a reasonable right to expect from him and thus met the statutory definition of misconduct.

††††††††††† Affirmed.



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