This opinion will be unpublished and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
Scott P. Foster,
Vance Uniformed Protection Services, Inc.,
Department of Employment and Economic Development,
Filed April 11, 2006
Department of Employment and Economic Development
File No. 164505
Scott P. Foster,
Vance Uniformed Protection
Linda A. Holmes, Department
of Employment and Economic Development,
Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Relator Scott Foster challenges the decision by the senior unemployment-review judge (SURJ) that he was disqualified from receiving unemployment benefits because he had been discharged for misconduct. Relator argues that he was justified in not following his employer’s directive to take a training class and contends that a finding that he failed to follow another directive was clearly erroneous. Because relator failed to follow his employer’s reasonable directives and because the challenged finding is reasonably supported by the evidence, we affirm.
worked for respondent Vance Uniformed Protection Services as a security officer
from August 16, 2004, until December 7, 2004, when he was discharged. He was a site supervisor at a
As of November 10, relator still had not taken the class. The supervisor talked to him again, advising him that if he did not attend training within the 90-day period he would be removed, and the supervisor placed relator on a written action plan. Relator agreed to take the class. On December 7, when relator still had not taken the class, the supervisor talked to him again. Relator told his supervisor that the client did not feel that it was important enough for him to take the class.
Relator explained at the hearing that he did not take the class because he had a conversation with someone from the hospital who indicated that the hospital’s policy of allowing officers to wear handcuffs and use chemical agents was under review and suggested that relator delay taking the class. Relator did not advise his Vance supervisor about this, explaining that he was intimidated by the supervisor. Further, he was trying to please the client. He also testified that it was a matter of timing and scheduling.
The supervisor also had expressed concerns to relator as to whether relator was following the policy and ensuring that all of the officers he supervised initialed posted memos, indicating that they had read them, within a three-day period. The supervisor observed that only about half of the officers had initialed two memos, one concerning the schedule for doors that needed to be locked at the facility at night and the other concerning uniform appearance.
Relator testified that he had told his officers they needed to initial the memos. They did so, except for one officer who did not sign because he did not agree with the memo. Relator testified that his supervisor was mistaken when he said that only about half of the officers initialed the memos.
As a result of failing to follow these directives, Vance discharged relator. Relator established a benefit account with DEED. The department initially determined that relator had been discharged for reasons other than misconduct and was qualified for benefits. Vance appealed. After a hearing, the unemployment-law judge reversed the determination, finding that relator had been discharged for misconduct and was disqualified from receiving benefits. Relator appealed, and the SURJ issued the final agency decision, holding that relator was discharged for misconduct. This certiorari appeal by relator followed.
D E C I S I O N
court will review findings that were made by the SURJ under a clearly erroneous
standard. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (
who is discharged for misconduct is disqualified from benefits.
general rule, refusing to abide by an employer’s reasonable policies and
requests amounts to disqualifying misconduct.”
Schmidgall, 644 N.W.2d at 804,
807 (upholding misconduct determination when employee had been discharged for
violations of policy requiring report of any injury during shift in which it
occurred). This court has upheld a determination
of misconduct when a security guard violated the employer’s policy by leaving a
post without waiting for a replacement. Sivertson v. Sims Sec., Inc., 390 N.W.2d
868, 870-71 (Minn. App. 1986), review
Relator argues that the written contract between Vance and
Vance, not the hospital, was relator’s employer. There is no evidence that relator even attempted to discuss with Vance his belief that the hospital might no longer require handcuffing-and-chemical-agent training. The evidence supports the determination that relator was required to take the training class, rather than that it was merely suggested. Relator’s failure to take the required training class within 90 days after his assignment at the hospital constitutes misconduct.
The second basis for relator’s discharge was relator’s failure to have the officers he supervised initial two memos indicating that they read them within three days after posting, pursuant to Vance’s policy. His supervisor testified that only about half of the officers initialed the memos, while relator testified that 14 out 15 initialed them, with the exception of one officer who did not initial the memo because he did not agree with it. The SURJ credited the supervisor’s testimony over relator’s and found that the memos had been initialed by only about half of relator’s officers. This finding is reasonably supported by the evidence and also supports the determination of misconduct.
Relator also refers this court to a
memo not submitted to the ULJ and advises this court it is available if he is
allowed to submit it here. “It is well
settled that an appellate court may not base its decision on matters outside
the record on appeal, and that matters not produced and received in evidence
below may not be considered.” Plowman v. Copeland, Buhl & Co., 261
N.W.2d 581, 583 (
argues that the real reason he was terminated was a fundamental difference in
values and management style between Vance and him. This issue was not raised below, and relator
again attempts to cite facts for the first time on appeal. We will not consider such arguments. Thiele
v. Stich, 425 N.W.2d 580, 582 (
The decision of the SURJ that relator was discharged for misconduct and thereby disqualified from receiving unemployment benefits is affirmed.