may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
IN COURT OF APPEALS
Department of Veterans Affairs,
Commissioner of Economic Security,
Department of Economic Security
File No. 4748UC97
Dale E. Parker, Office of Regional Counsel, V. A. Medical Center, One Veterans Drive, Building 73, Minneapolis, MN 55417 (for respondent Department of Veterans Affairs)
Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)
Considered and decided by Schumacher, Presiding Judge, Short, Judge, and Davies, Judge.
Charles Rosenbloom, a former federal employee, appeals by certiorari from a determination that he committed gross misconduct disqualifying him from receiving reemployment insurance benefits. The commissioner's representative found that Rosenbloom knowingly provided false information on a federal application for a job promotion -- a felony under federal law.
Rosenbloom separately appeals the commissioner's decision that he must repay the benefits that he received prior to the disqualification. We affirm both decisions.
Rosenbloom began working as a cemetery caretaker for the Fort Snelling National Cemetery, a federal agency, in January 1992. Because a cemetery caretaker was required to operate vehicles for the cemetery, the job description required a valid driver's license.
Rosenbloom's driver's license had been suspended in August 1987. His license was reinstated on January 29, 1992, but was again suspended in December 1993 and in August and September 1994, for failure to pay fines. In addition, during his employment for the cemetery, Rosenbloom received non-work-related citations for driving without insurance.
In 1993 and 1994, Rosenbloom was involved in ten work-related accidents. After he damaged a cemetery tractor, a review board examined Rosenbloom's accident record and recommended that he refrain from operating vehicles for a period of time to be specified by his supervisor.
During his employment with the cemetery, Rosenbloom received at least two promotions, and in February 1997, he filled out an application for another promotion. In conjunction with the application, Rosenbloom completed a federal "Ability to Drive Safely" form. He responded "n/a" to questions whether he had received any traffic violations, whether he had any restrictions on his present driver's license, and whether he had been involved in any accidents. He responded "no" to the question whether the violations or accidents occurred on the job, and stated that his license had not been revoked or suspended.
When the cemetery director was informed that Rosenbloom's driver's license had been suspended, he told Rosenbloom that he must provide documentation that he had a valid driver's license that had not been suspended. Rosenbloom did not provide the required documentation, and he was discharged for falsifying the federal job form and failing to have a valid driver's license.
1. A claimant may be disqualified from receiving reemployment insurance benefits on the basis of gross misconduct only if the alleged gross misconduct caused the claimant's separation from employment. Hansen v. C.W. Mears, Inc., 486 N.W.2d 776, 780 (Minn. App. 1992), review denied (Minn. July 16, 1992). "The cause of an employee's separation is a question of fact." Meehan v. Lull Corp., 466 N.W.2d 14, 16 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991). When reviewing the commissioner's fact findings, we are limited to determining whether the evidence reasonably tends to support those findings. Id.
There is evidence in the record that reasonably supports the commissioner's finding that Rosenbloom was discharged in part because of his falsification of the federal job form. The cemetery's letter notifying Rosenbloom of his proposed removal, as well as statements submitted to the department by both parties, indicate that Rosenbloom was discharged at least in part because of his falsification of the federal job form.
2. A claimant is disqualified from receiving reemployment benefits if he was discharged for gross misconduct that was connected with his employment or for gross misconduct that interfered with and adversely affected his employment. Minn. Stat. § 268.09, subd. 1(d) (1996).
The legislature has defined "gross misconduct" as "any * * * act, including theft, the commission of which amounts to a felony or gross misdemeanor." Id. An employer has the burden of proving by a preponderance of the evidence that an employee committed gross misconduct. Manos v. First Bank Minnehaha, 357 N.W.2d 372, 374-75 (Minn. App. 1984). Ultimately, the question of whether an employee committed gross misconduct is one of law. Hansen, 486 N.W.2d at 779.
The commissioner's representative concluded that Rosenbloom's knowing and willful falsification of the federal job form constituted a felony under federal law, which provides:
Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the * * * Government of the United States, knowingly and willfully
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title or imprisoned not more than 5 years, or both.
18 U.S.C. § 1001 (1996); see also 18 U.S.C. § 3559 (a)(5) (1994) (classifying offense as felony). Rosenbloom argues that, to be considered gross misconduct, his actions must constitute a felony under Minnesota, not federal, law. See Seemann v. Little Crow Trucking, 412 N.W.2d 422, 426 (Minn. App. 1987) ("assum[ing] the legislature intended the elements of a felony or misdemeanor to be defined by reference to Minnesota law."). But the Seeman opinion addressed an alleged violation of Minnesota, not federal law. Because Minnesota citizens are subject to federal law every day, we must assume the legislature intended to include federal felonies as gross misconduct.
Rosenbloom argues that he did not intend to misrepresent his driving record or work-related accidents on the federal job form. But the commissioner's representative found that Rosenbloom knowingly provided a false answer on the form, and we defer to the commissioner's credibility determination. See Manos, 357 N.W.2d at 376 (determining facts and evaluating witness credibility is Commissioner's role). Rosenbloom also claims that he believed the questions on the federal job form referred only to non-work-related traffic violations. The form itself belies this claim.
Finally, Rosenbloom argues that he did not commit gross misconduct because his acts did not interfere with or adversely affect his employment. Gross misconduct interferes with or adversely affects employment if, by reason of the employee's action, "he can no longer effectively perform the services for which he was employed." Schmidt v. City of Duluth, 346 N.W.2d 671, 674 (Minn. App. 1984). The record reasonably supports the commissioner's representative's finding that Rosenbloom was required to have a valid driver's license to perform his duties. Without such license, Rosenbloom could no longer effectively perform his job duties.
3. Because we conclude that Rosenbloom was disqualified from receiving benefits, we agree with the commissioner's representative that Rosenbloom must refund overpaid benefits to the reemployment insurance fund, pursuant to Minn. Stat. §§ 268.101, subd. 6, 268.18, subd. 1 (1996).