This opinion will be unpublished and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
Sears Roebuck and Co.,
Department of Employment and Economic Development,
Filed May 8, 2007
Department of Employment and Economic Development
File No. 1811 06
and Co., c/o TALX UCM Services, Inc.,
Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Ste. E200, St. Paul, MN 55101-1351 (for respondent-department)
Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
Relator Holyfield James challenges the decision that he was disqualified from receiving unemployment benefits because he was discharged for misconduct. He argues that (a) the testimony and the record do not support the decision and (b) even if he engaged in some misconduct, it did not rise to the level to disqualify him from receiving unemployment benefits. Because his allegations hinge on credibility issues, and because we must give deference to the ULJ’s credibility determinations, we affirm.
Holyfield James worked for Sears Roebuck and Company as a merchandise customer-service representative. In October 2005, a visibly shaken customer approached James’s supervisor, Peggy Omarzu, and complained that James had yelled and threatened to call the police on him and that he had feared for his personal safety. The event was formally documented.
In November 2005, a store assistant told Omarzu that James had yelled, sworn, and made gestures at a customer, making her cry. James became hostile when the assistant tried to speak with him. Omarzu asked an operations manager, John Owen, to speak with James and tell him to end his shift if he became belligerent. James began yelling and screaming at Owens and ran through the department and down an escalator, while screaming and pushing customers. James never contacted Sears or returned to work, and the company discharged him in late November.
James applied for, and was initially granted, unemployment benefits. Sears appealed, and after a hearing the unemployment law judge (ULJ) decided that James was discharged because of misconduct and, therefore, was disqualified from employment benefits. At the hearing, James testified that he was never rude to customers, that he never yelled, and that he had not returned to work because he was not on the schedule and no one contacted him about his hours. Consistent with Omarzu’s testimony, Sears produced Omarzu’s written documentation of the October 13 incident, as well as a statement written by the upset customer; documentation of James’s rudeness to a customer on November 22, 2005; and a written account of the November 26 incident. James filed a request for reconsideration, and the ULJ affirmed the decision. This appeal followed.
D E C I S I O N
James argues that (a) the testimony and the record do not support the decision and (b) even if he engaged in some misconduct, it did not rise to the level to disqualify him from receiving unemployment benefits.
This court will reverse a
ULJ’s decision when it reflects an error of law, is “arbitrary or capricious,”
or the findings are “unsupported by substantial evidence in view of the entire
record.” Minn. Stat. § 268.105,
subd. 7(d) (2006).
This court defers to the
ULJ’s determinations regarding witness credibility and conflicting
evidence. Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App.
2006). “When the parties have presented
conflicting evidence on the record, this court must defer to the [ULJ’s]
ability to weigh the evidence; we may not weigh that evidence on review.” Whitehead
v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (
Testimony and Evidence
argues that the record does not support the ULJ’s conclusion. Although James testified that he never yelled
or insulted customers and did not know why he was sent home as he had done
nothing wrong, credibility
determinations are the province of the ULJ and are accorded deference on
appeal. Nichols v. Reliant Eng’g & Mfg., Inc., 720 N.W.2d 590, 594 (
applicant is disqualified from receiving unemployment benefits when the applicant was discharged
due to employment misconduct. Minn.
Stat. § 268.095, subd. 4(1) (Supp. 2005).
Employment misconduct is defined as “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.”
Whether an employee committed employment misconduct is a mixed
question of fact and law.
employer has a right to expect its employees to abide by reasonable
instructions and directions. Vargas v. Nw. Area Found., 673 N.W.2d
200, 206 (Minn. App. 2004), review denied
As part of her testimony, Omarzu testified that a workplace-conduct sheet establishing company policy was posted in public areas and that James signed the handbook containing the policies when he was hired. The sheet indicates examples of unacceptable conduct leading to termination, including “[f]ailing to conduct yourself in a reasonable and businesslike manner with customers, fellow associates, supervisors and management” and “[d]isorderly conduct, including fighting with or assaulting other associates or customers.” The ULJ held, and the facts show, that James was aware of the Sears workplace-conduct policy, and that there were at least two documented incidents of James violating these policies by yelling and exhibiting threatening behavior towards customers and Sears employees. James’s inappropriate behavior on these occasions constitutes misconduct, and he was discharged accordingly. Since this sort of conduct is clearly prohibited by Sears, and witnesses testified that James violated the policy, we hold that the ULJ’s determination is supported by the evidence.