This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Independent School District #834,
Department of Employment and Economic Development,
Department of Employment and Economic Development
File No. 18271 05
Robert A. Klover,
Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (respondent department)
Considered and decided by Hudson, Presiding Judge; Shumaker, Judge; and Minge, Judge.
Relator challenges the unemployment law judge’s (ULJ) determination that he was disqualified from receiving unemployment benefits because he was discharged for employment misconduct. Because we conclude that the ULJ’s finding that relator’s misrepresentations on his employment applications were the reason for his discharge, and the finding that those misrepresentations constitute employment misconduct are supported by substantial evidence, we affirm.
Robert Klover applied for a full-time custodial position with respondent,
I hereby declare that all statements made on this application are true[,] complete, and correct to the best of my knowledge and belief. I understand these statements are subject to verification. I understand that falsification of this application will disqualify me from employment or be grounds for termination on discovery[.]
The application asked relator to provide his work experience, starting with his most recent employer. Relator listed three employers for which relator worked between 1988 and 2002. But relator did not include his custodial job with the Mahtomedi school district or his short-term employment with the Roseville Area Schools. The Mahtomedi school district had employed relator as a custodian from August 1, 2000 to December 18, 2001. But relator resigned after the Mahtomedi district suspected him of stealing computer equipment and told him that he could resign or he would be terminated.
After relator applied for a full-time position with respondent, respondent notified relator that it had a job opening for a substitute custodian. Relator went to the school offices on February 18, 2003, completed an application for substitute employment with respondent, and began work immediately afterwards. This application asked whether relator had “ever been terminated from employment or resigned, by request of the employer or by mutual consent, for cause of alleged misconduct[,] alleged unsatisfactory performance, or alleged improper or illegal acts[.]” Despite being forced to resign from his Mahtomedi custodial position due to suspected theft, relator checked “No.”
Respondent did not learn of relator’s Mahtomedi employment, or the circumstances surrounding relator’s separation, until 2005. At that time, respondent investigated several staff members, including relator, because a female student reported that someone was spying on her in the locker room. Upon learning of the Mahtomedi situation and its omission from relator’s employment applications, respondent terminated relator’s employment. Relator subsequently filed for unemployment benefits. The request was denied. Relator appealed. After a hearing, the unemployment law judge (ULJ) concluded that relator was not entitled to benefits due to his employment misconduct. Upon relator’s request for reconsideration, the ULJ affirmed the denial of benefits. This certiorari appeal follows.
The first issue is
whether the ULJ’s finding that relator’s employment was terminated because he
misrepresented his work history on his employment applications is supported by
substantial evidence. A ULJ’s
determination of the reasons for an employee’s separation is a factual
determination. Vargas v. Nw. Area Found., 673 N.W.2d 200, 204 (
Relator’s primary argument is that respondent used his misrepresentations of work history as a pretext for terminating his employment. Relator argues that the real reason respondent terminated him was that he was suspected of involvement in the locker-room spying incident, but that there was not enough evidence to support discharging him for that reason.
The ULJ found, by
a preponderance of the evidence, that relator was terminated due to his
misrepresentation and falsification of his employment applications. The record discloses that at the hearing, the
ULJ asked Eric Davis, respondent’s human resources supervisor, whether “the
incident in the locker room had [any] bearing on [relator]’s discharge . . .”
The next issue is whether relator’s misrepresentation of his work history in his first application and falsification of his second application constituted employment misconduct. An employee who is discharged by an employer because of employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (Supp. 2005). 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). Here, relator does not dispute the ULJ’s finding that relator’s omissions from his employment applications were intentional.
question of whether an employee’s misrepresentation on an employment
application is misconduct depends on whether the misrepresentation is material
to the duties of the position sought by the applicant. Indep.
Sch. Dist. No. 709 v. Hansen, 412 N.W.2d 320, 322-23 (
even though the ULJ made no explicit materiality finding, the ULJ applied the
statute’s plain language and concluded respondent “had a right to reasonably
expect” relator would not falsify or intentionally misrepresent his
applications for employment. The
materiality of relator’s omitted employment history, and falsification, is
implicit in the ULJ’s conclusion that respondent “had a right” to expect
relator to honestly complete the application and is further supported by the
record. At the hearing, respondent testified
that “[h]ad [relator] been honest on his applications . . . this
Respondent also testified that relator’s trustworthiness was “of paramount concern to [respondent].” The custodial position relator sought and held with respondent and relator’s duties at Mahtomedi were similar. A school custodian has access to property belonging to the school, students, and teachers, and custodians may see papers, including confidential documents, that might be on the desks of teachers, counselors, and administrators. The trustworthiness of custodians is an important concern of school districts.
The record further indicates that relator deliberately failed to include this Mahtomedi work history in completing his employment application. He admitted that he realized it might affect respondent’s hiring decision. Respondent expected candor. Finally, it is significant that relator’s resignation at Mahtomedi was not stale. Relator left that school custodial position about one year before applying for work with respondent.
Based on this record, we conclude that the ULJ’s finding that relator was terminated for misrepresenting his employment applications is supported by substantial evidence and that the ULJ’s implicit finding that relator’s omission from his application was material and therefore employment misconduct is also supported by substantial evidence. We affirm.
 We are not oblivious to claims that employment
disqualification based on prior criminal convictions may have a discriminatory
effect. See Meads v. Best Oil Co., 725 N.W.2d 538, 546 (