This opinion will be unpublished and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
Patricia A. Shambour,
Property Upkeep Services,
Department of Employment and Economic Development,
Filed December 19, 2006
Department of Employment and Economic Development
File No. 16445 05
Robin M. Wolpert, Kathleen K. Statler, Greene Espel, P.L.L.P., 200 South 6th Street, Suite 1200, Minneapolis, MN 55402 (for relator)
Property Upkeep Services,
Lee B. Nelson, 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; Randall, Judge; and, Kalitowski, Judge.
On appeal from reconsideration by an unemployment law judge (ULJ) for denial of unemployment benefits, relator claims that her off-work DWI was not misconduct. We affirm.
Relator Patricia Shambour was a seasonal employee with Property Upkeep Services of Minnetonka, Inc. Her primary job was chemical application, but in the fall, she worked on lawn-cleanup crews, generally until mid-November. On October 12, 2005, relator was not working because she was sick; on that day, relator was cited for driving while intoxicated (DWI) with an alcohol concentration of .21.
After spending a few days in detox, relator met on October 19 with Tom Polak, the owner of Property Upkeep, to talk about the effect of the DWI charge on her job responsibilities, which included driving herself and, at times, crews to work sites. Relator knew then that her driver’s license would be revoked. Polak testified that he told relator that the company’s insurer would not cover drivers with a DWI conviction and that he could not employ her if she was not insurable. Because relator planned to challenge the DWI charge and license revocation on the ground that some Nyquil she had taken had affected her alcohol concentration, Polak asked relator to talk with her lawyer and then to contact him. They had no subsequent contact. Relator testified that she left the October 19 meeting thinking that she still had her job and that it was not until she was denied unemployment benefits that she learned that she had been fired due to her DWI.
Relator appealed the denial of benefits. The ULJ determined that Property Upkeep discharged relator for employment misconduct based on the DWI, because work was still available for relator at the time of her separation from employment. As a result, relator was disqualified from receiving unemployment benefits. The ULJ affirmed the decision upon reconsideration. This appeal by writ of certiorari follows.
Our review of ULJ decisions is governed by Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005), which states:
The Minnesota Court of Appeals 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.
evidence” has been defined as “(1) such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion; (2) more than a scintilla of
evidence; (3) more than some evidence; (4) more than any evidence; or (5) the
evidence considered in its entirety.”
The ULJ determined that relator was discharged for misconduct because her DWI interfered with or adversely affected her employment because there was still work available as of October 19 but relator could no longer drive to job sites, one of her job duties.
“A driving offense
in violation of sections 169A.20, 169A.31, or 169A.50 to 169A.53 that
interferes with or adversely affects the employment is employment
an employee committed employment misconduct is a mixed question of fact and
law. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (
But whether the act committed
by the employee constitutes employment misconduct is a question of law, which
this court reviews de novo. Scheunemann, 562 N.W.2d at 34. Employment misconduct is “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 employment.” Minn. Stat. § 268.095, subd. 6(a) (2004). “A single deliberate act that adversely
affects the employer may constitute misconduct.” Vargas
v. N.w. Area Found., 673 N.W.2d,
200, 206 (Minn. App. 2004), review