This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2305

 

Isiah Wright,
Relator,

vs.

Versa Die Cast, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

 

Filed October 3, 2006

Affirmed

Wright, Judge

 

Department of Employment and Economic Development

File No. 997105

 

 

Michele R. Wallace, MacMillan, Wallace and Athanases, P.A., 9955 59th Avenue North, Suite 125, Minneapolis, MN  55442 (for relator)

 

Versa Die Cast Inc. 3943 Quebec Avenue North, New Hope, MN  55427 (respondent)

 

Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Department)

 

 

            Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

WRIGHT, Judge

Relator challenges the decision of the unemployment law judge that he is disqualified from receiving unemployment benefits because he was discharged for employment misconduct.  We affirm.

FACTS

Relator Isiah Wright was employed by Versa Die Cast, Inc. (Versa) as a furnace tender and forklift driver from June 17, 1994, until his discharge on May 16, 2005.  Wright was terminated after he operated a forklift in an unsafe manner on several occasions.  On February 22, 2001, Wright ran into and destroyed a soda machine while driving the forklift.  On March 5, 2002, Wright backed the forklift into a conveyor and destroyed equipment valued at $1,200.  Wright was retrained in forklift operation and, in January 2003, passed the fork-truck safety test.  After passing the safety test, Wright was again permitted to drive the forklift.  But Wright continued to have accidents.  On April 4, 2003, Wright stepped off the fork truck while it was in gear, causing the forklift to back into and rupture a large container of oily water.  Wright also caused an accident that did not involve the forklift.  On March 25, 2004, Wright was washing a die-cast machine when he accidentally sprayed water onto an open electrical current for another piece of equipment, causing damage.  Finally, at approximately 7:00 a.m. on May 11, 2005, Wright drove the forklift into the monorail system, breaking a fitting on the forklift and causing hydraulic fluid to leak onto the plant floor.  The accident was referred to a safety committee, which met a few hours after the incident.  During the meeting, the vice-president of operations smelled alcohol on Wright’s breath.  Wright submitted a urine sample for testing at 1:30 p.m. on the day of the accident.  The test results showed that Wright had an alcohol concentration of 0.069.  Wright was discharged after Versa received the test results. 

Wright applied for unemployment benefits with the Department of Employment and Economic Development.  A department adjudicator made an initial determination that Wright had been discharged for employment misconduct.  Wright appealed, and a hearing before an unemployment law judge (ULJ) was held on July 26 and August 30, 2005.  Wright was represented by counsel at the hearing.  The ULJ determined that the accidents were a result of Wright’s carelessness and that Wright had committed employment misconduct.  After Wright requested reconsideration, the ULJ affirmed her determination that Wright was disqualified from receiving unemployment benefits.  This certiorari appeal followed.

D E C I S I O N

 

An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (2004).  Employment misconduct means “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 employment.”  Id., subd. 6 (2004).   

Whether an employee committed employment misconduct is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether the employee committed a particular act is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  We view the ULJ’s factual findings in the light most favorable to the decision, Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996), giving deference to the credibility determinations made by the ULJ, Jenson v. Dep’t of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000).  In doing so, we will disturb the ULJ’s factual findings only when they are “unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 268.105, subd. 7(d)(5) (Supp. 2005).  Whether the act committed by the employee constitutes employment misconduct is a question of law.  Scheunemann, 562 N.W.2d at 34.

The ULJ found that Wright had six separate safety incidents over a period of four years at Versa, the last of which involved driving a forklift while under the influence of alcohol.  Testimony from Versa employees and Wright’s employment records established that the accidents were caused by Wright’s carelessness and unsafe driving.  The ULJ’s finding that the accidents were a result of Wright’s “negligent and inattentive behavior while performing his work responsibilities” is well supported by the record.  Accordingly, we next address whether Wright’s conduct constitutes employment misconduct as a matter of law.

Wright maintains that he should not be disqualified from receiving unemployment benefits because his conduct was not intentional; rather, his conduct was simply careless.  But Wright’s argument is misplaced.  Wright fails to acknowledge the current statutory definition of employment misconduct, which specifically provides that negligent or indifferent conduct seriously violating an employer’s expectations constitutes misconduct.  Minn. Stat. § 268.095, subd. 6.  Conduct need not be intentional to constitute employment misconduct.  Id. Therefore, Wright’s argument that his conduct was unintentional is unavailing.

Under the current statutory definition, Wright’s actions constitute employment misconduct because they were negligent and indifferent, seriously violating the employer’s expectations.  Apart from the other accidents involving Wright, Wright’s operation of Versa’s equipment with an alcohol concentration of 0.069 or more constitutes employment misconduct.  See Risk v. Eastside Beverage, 664 N.W.2d 16, 21 (Minn. App. 2003) (“Employees generally can be presumed to know the importance of responsible use of alcohol and that a truck driver’s duty and obligation to his employer precludes driving a truck while under the influence of alcohol during working hours.”); see Tilseth v. Midwest Lumber Co., 295 Minn. 372, 375, 204 N.W.2d 644, 646 (1973) (holding under caselaw definition of misconduct that truck driver who repeatedly consumed alcohol while working committed employment misconduct).  Wright’s job responsibilities included driving a piece of heavy machinery inside a facility near other workers and valuable equipment.  Versa could reasonably expect that Wright would operate that equipment with great care.  A review of the record demonstrates that Wright did not do so.  The combination of the forklift accidents, the spray-washing accident, and Wright’s alcohol-concentration level while operating heavy equipment during work hours is ample support for the conclusion that Wright committed employment misconduct.  Accordingly, Wright is disqualified from receiving unemployment benefits. 

Affirmed.