This opinion will be unpublished and

may not be cited except as provided by

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








Thomas D. Bushard,





Express Scripts, Inc.,



Department of Employment and Economic Development,




Filed August 8, 2006


Peterson, Judge


Department of Employment and Economic Development

File No. 1495205



Thomas D. Bushard, 3636 Blaisdell Avenue, Minneapolis, MN 55409 (pro se relator)


Express Scripts, Inc., c/o Thomas & Thorngren, Inc., Post Office Box 280100, Nashville, TN 37228 (respondent)


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



            Considered and decided by Dietzen, Presiding Judge; Klaphake, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


Relator Thomas Bushard challenges the decision of an unemployment law judge (ULJ) that he is disqualified from receiving unemployment benefits because he was discharged from his employment for misconduct.  Because substantial evidence in the record supports the ULJ’s finding that relator committed disqualifying misconduct, we affirm.


Bushard was employed as a patient-care advocate by respondent Express Scripts, Inc. from January 24 to August 25, 2005, when he was discharged.   His application for unemployment benefits was initially granted, but the employer appealed, claiming that Bushard was discharged for intentionally disconnecting telephone calls from customers.  After a hearing at which both parties appeared, the ULJ found that

[a] preponderance of the evidence in the record, in the form of documentation from Express Scripts, shows that during the period from July 25, 2005, through August 19, 2005, Bushard disconnected several dozen callers, most after only a few seconds.  This violated Express Scripts’ policies and procedures and was grounds for immediate discharge from employment.  Bushard denied this conduct, but the reliable documentary evidence submitted by Express Scripts is persuasive.  Bushard’s testimony that this was a systems problem simply is not believable in light of the testimony and evidence presented by Express Scripts.


The ULJ concluded that Bushard was disqualified from receiving unemployment benefits because he was discharged from employment for misconduct.  Following Bushard’s request for reconsideration, the ULJ affirmed this decision, and this certiorari appeal followed.[1] 

This court may

affirm the decision of the unemployment law judge or remand the case for further proceedings; or it may reverse or modify the decision if  the substantial rights of the petitioner may have been prejudiced because the findings, inferences, conclusion, or decision are:

(1) in violation of constitutional provisions;

(2) in excess of the statutory authority or jurisdiction of the department;

(3) made upon unlawful procedure;

(4) affected by other error of law;

(5) unsupported by substantial evidence in view of the entire record as submitted; or

(6) arbitrary or capricious.


Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005).

An employee is disqualified from receiving unemployment benefits under Minn. Stat. § 268.095, subd. 4(1) (Supp. 2005), when the employee has been discharged because the employee’s “intentional, negligent, or indifferent conduct . . . displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or . . . displays clearly a substantial lack of concern for the employment.”  Minn. Stat. §  268.095, subd. 6(a) (2004).  Bushard does not dispute that disconnecting telephone calls from customers is employment misconduct; he denies that he disconnected customers’ telephone calls.  Therefore, the issue before us is whether the ULJ’s finding that Bushard disconnected several dozen callers is unsupported by substantial evidence in view of the entire record as submitted.  We conclude that the finding is supported by substantial evidence in the record.

Bushard’s supervisor, Theresa Stearns, testified that Express Scripts’ policy was that a patient-care advocate did not disconnect customer telephone calls and, instead, was supposed to wait until the customer disconnected.  If the customer did not disconnect, but also did not say anything, the patient-care advocate was supposed to follow a script before releasing the call.  The script was also supposed to be followed if a call was answered and no one seemed to be on the line.   It took at least 15 to 20 seconds to complete the script.   

Stearns and Jen Meland, Express Scripts’ human-resources manager, testified that the telephone and computer systems used by the patient-care advocates are independent and a “witness system” is used to monitor for quality assurance.  The witness system allows the company to view the patient-care advocates’ computer screens during each call in real time. 

            A large number of very short telephone calls prompted the company to look into Bushard’s records.  The company presented a 73-page exhibit showing Bushard’s phone records from July 25 through August 19.  Bushard had received several dozen calls and released them in less time than it would have taken to complete the required script.  In most cases, the calls were released in two to three seconds.  Additional exhibits showed that when some of the calls were released, there were non-work-related images on Bushard’s computer screen, including a job posting, personal emails, and a recipe.

Relator denied that he disconnected calls.  He was surprised when he was confronted with his records on August 25, but was unable to rebut the records.  He testified that many times a call would come in and there would be nobody there; there would not be time to follow the script because another call would come in and the calls would disconnect really fast; and several times technicians were called in to re-spin his computer.  But Stearns testified that company records showed that Bushard physically released the calls, it was his choice not to follow the script, and re-spinning the computer would have nothing to do with the telephone system. 

On this record, the ULJ could find that Bushard’s testimony that a problem with the telephone and computer systems caused the calls to disconnect was not credible and that Bushard disconnected the calls.  See Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995) (deferring to review judge’s ability to weigh evidence and make credibility determinations).  


[1] Relator filed an informal brief and moved for acceptance of additional evidence.  This court denied the motion.