This opinion will be unpublished and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
Alex M. Popel,
CommonBond Housing (Corp), and
Department of Employment and Economic Development,
Department of Employment and Economic Security
File No. 55105
Thomas E. Marshall, Natalie Wyatt-Brown, Jackson Lewis, LLP,
Linda A. Holmes, Minnesota Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent-department)
Alex M. Popel,
Considered and decided by Shumaker, Presiding Judge; Wright, Judge; and Ross, Judge.
This case involves an apartment manager’s separation from employment after he failed to remedy his employer’s dissatisfaction with his performance. Relator Alex M. Popel challenges the decision of the senior unemployment review judge that Popel is disqualified from receiving unemployment benefits because he was discharged by respondent CommonBond Housing Corporation for employment misconduct. We affirm.
CommonBond is a
nonprofit corporation that operates housing communities throughout
CommonBond hired Alex Popel as site manager of its 99-unit
Westminster Place Apartments in
In January 2003,
Graham placed a memorandum in Popel’s personnel file concerning a “resident file
Popel received an
oral warning in February 2003 for failing to timely submit
Popel received a written warning in July 2003 for failing to timely submit service-vendor invoices to CommonBond. The writing warned that “[c]ontinued failure to submit invoices or any other time sensitive paperwork could lead to termination.” In August, he received a written reprimand for failing to timely prepare a vacated apartment for a new tenant. The warning observed that Popel had previously failed to timely prepare vacated apartments and cautioned that he could be terminated for failing to do so in the future.
Popel received another written warning in January 2004 pertaining
to poor maintenance of the
As the site manager of Westminster Place Apartments, part of your duties include supervision of your assistant manager [Marlene Zigas] as she does the recertification process and filing of documentation in the resident files. You, ultimately, are responsible to see that the work is done within compliance of HUD and CommonBond standards.
You have been told several times that your files are in poor shape and need to be cleaned up[.]
. . . .
With the 2003 Management Review, it has again come to my attention that your files are still not in compliance with the standards in place for a number of years.
Popel’s April 2004 performance appraisal indicates “commendable” work in nearly every category. Popel’s supervisor comments, “Alex has been a great asset to the property as the residents see him working to improve the place. It has restored their confidence in management.” But the appraisal also indicates that Popel “needs improvement” in “us[ing] effective time management/planning and organizational skills to meet [annual tenant-income recertification] deadlines” and in communicating with his supervisor about problems. One of the three “key operational goals” set out on the appraisal was for Popel to decrease late annual recertifications by 50 percent.
assigned Kathy Katzenberger, the assistant property manager of another
CommonBond property, to assist with the management of
nothing had been done for re-certifications that were due [in] 30 days, 60 days, and 90 days into the future, and that no tracking system was in place for the re-certification process. [She] also found that improper paperwork was being used when completing re-certifications, and the property was out of compliance with some annual re-certifications . . . being completed in some cases 60 days late.
Katzenberger reported that when she asked Popel about the status of the recertifications, “[o]n many occasions he indicated that he knew the paperwork was wrong” and that people were complaining that their recertifications were not being timely completed. Popel told Katzenberger that he had asked his assistant manager to do the paperwork more diligently but “she would say ‘I know’ and continue doing things the same way, and he felt that he didn’t want to push the issue.”
The CommonBond compliance administrator began an audit of the
Graham issued Popel a written reprimand on October 19, 2004, stating that “[t]he files are much worse than anticipated” and reminding Popel that he “was told that while [his] assistant manager was doing the re-certifications, [he] had to check her work and timeliness.” The reprimand warned Popel that his failure to correct the site situation could lead to his termination. When Graham met with Popel to discuss the reprimand, Popel became angry, demanded the rest of the week off, “stated that he never had any support in his job from CommonBond,” and “stated [that] CommonBond was despicable and he would not work for a company that does not keep its word.”
Popel sent CommonBond a letter on October 27, 2004, stating that
his failure to effectively manage
CommonBond terminated Popel’s employment on November 3, 2004, on
the ground that his “work product, specifically management of [the] site
occupancy files, ha[d] been of extremely poor quality since January of 2003”
despite repeated communications, warnings, and reprimands from his
supervisor. The termination letter
stated that despite being provided with additional staff to improve site file
compliance, Popel failed to improve the files or to correct the deficiencies
discovered during the September 2004 internal audit. The letter also mentioned that Commonbond had
learned that after his October 19 reprimand, Popel had disparaged CommonBond to
An unemployment law judge (ULJ) determined that Popel was discharged because of the disorganized tenant files and because of his disparaging comments about CommonBond. But the ULJ concluded that the state of the files did not constitute employment misconduct because, in light of Popel’s many responsibilities, he could not reasonably be expected to make “sure the files were in perfect order.” The ULJ also concluded that the disparaging comments did not constitute misconduct because they were either unsubstantiated or did not rise above general complaining.
On appeal by CommonBond, the senior unemployment review judge (SURJ) concluded that Popel’s neglect of his assigned duties that related to the timely maintenance of the resident files, as well as his failure to communicate problems to his superiors, “clearly displayed a serious violation of the standards of behavior” that CommonBond had the right to reasonably expect him to meet and therefore constituted employment misconduct that disqualifies him from unemployment benefits. The SURJ did not base the decision on the alleged disparaging comments. This appeal followed.
the SURJ’s disqualification decision. An
employee who is discharged for employment misconduct is disqualified from receiving
unemployment benefits. Minn. Stat. §
268.095, subd. 4 (2004). The statute
defines misconduct as “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
On certiorari appeal,
we review the decision of the SURJ and not that of the ULJ. Tuff v.
Knitcraft Corp., 526 N.W.2d 50, 51 (
The SURJ found that “Popel’s neglect of his duties related to the maintenance of the [resident] files alone is sufficient to conclude his conduct clearly displayed a serious violation of the standards of behavior an employer has the right to reasonably expect of an employee and a substantial lack of concern for his employment.” Popel argues that “none of the testimony or documents” of record support this finding, contending that the evidence shows instead that “the alleged comments [he] made” about CommonBond were “the only reason” he was discharged. He also disputes whether these comments were ever made. Popel’s argument is flawed. The evidence supports a finding that Popel consistently failed to ensure that the files were properly maintained, despite warnings, reprimands, and the assignment of other employees to assist him. Additionally, the SURJ specifically concluded that Popel’s failure to maintain the files constituted misconduct regardless of whether he made the disparaging comments. Popel’s argument concerning the disparaging comments is therefore irrelevant. Popel’s assertions concerning the mechanic’s lien, his failure to prepare vacant apartments for new residents, and his failure to timely submit vendor invoices to the Commonbond corporate office are similarly irrelevant, since the SURJ’s determination rests on his file-maintenance failures.
Popel challenges the weight-of-evidence and credibility determinations of the SURJ, arguing that when properly evaluated, the evidence and testimony demonstrate that his assistant manager was responsible for maintaining resident files in compliance with HUD and MHFA, and that the failure to maintain the files was the result of CommonBond’s refusal to provide requested training for his assistant manager. The SURJ reached different, fully supported factual conclusions. We defer to the SURJ’s evidentiary decisions and will not weigh the evidence on appeal. See Whitehead, 529 N.W.2d at 352.
Popel also argues that time spent on other duties prevented him
from rectifying the resident-file situation.
But it is the employer’s prerogative to set employee objectives and
priorities. The supreme court has
explained that, “[a]s a general rule, refusing to abide by an employer’s
reasonable policies and requests amounts to disqualifying misconduct.” Schmidgall,644 N.W.2d at 807; see also Brown v. Nat’l Am.
Univ., 686 N.W.2d 329, 333 (Minn. App. 2004) (holding that after a warning
has been given, a teacher’s refusal to comply with an employer’s warnings to
refrain from borrowing money from students was misconduct), review denied (Minn. Nov. 16, 2004). We have held that a pattern of failing to
follow policies and procedures and ignoring directions and requests is
misconduct. Gilkeson v. Indus. Parts & Serv., Inc., 383 N.W.2d 448, 451-52
We observe that the issue before us is not whether Popel was
dedicated to his position or whether he made positive contributions to