This opinion will be unpublished and
may not be cited except as provided
by
Minn. Stat. § 480A.08, subd. 3
(1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
CX-99-1332
Jeffrey J. Pothen,
Relator,
vs.
Bloomington Super 8 Motel,
Respondent,
Commissioner of Economic Security,
Respondent.
Filed March 21, 2000
Affirmed
Shumaker, Judge
Department of Economic Security
File No. 2216UC99
Jeffrey
J. Pothen, 12101 Grouse Street Northwest, #108, Coon Rapids, MN 55448
(relator-pro se)
William
A. Bowen, 506 South Wilson Street, Aberdeen, South Dakota 57401-5082 (for
respondent-employer)
Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent-Commissioner)
Considered
and decided by Crippen, 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
SHUMAKER, Judge
Relator
Jeffrey J. Pothen appeals from the commissioner’s determination that he is
disqualified from reemployment insurance benefits because of his misconduct in
failing to prevent or adequately supervise a destructive party given by his
daughter at a motel over which he had managerial authority. We affirm.
FACTS
Relator
Jeffrey J. Pothen began employment as a regional manager of Bloomington Super 8
Motel, a motel chain, on November 29, 1998.
On March 3, 1999, the employer’s vice-president told Pothen that he must
resign his position or he would be terminated.
Pothen resigned.
The
employer offers three reasons for its action against Pothen. First, some of the motel managers whom Pothen
supervised complained that he was arrogant toward them. The vice-president warned him about this
conduct. Second, Pothen failed to
supervise a party that his daughter had at one of employer’s motels. Third, Pothen attended meetings with the
employer’s staff and franchisees in Las Vegas, and he fell asleep and snored
during the meetings.
After
Pothen applied for reemployment benefits, the commissioner’s representative
ultimately determined that Pothen’s forced resignation was a discharge and that
the discharge was for misconduct relating to the party Pothen’s daughter held.
The
factual record before the commissioner’s representative revealed that Pothen’s
daughter wanted to have her 18th birthday party on February 13, 1999, at one of
the motels her father supervises.
Pothen tried to dissuade her by telling her the motel was full. But she went to the motel without Pothen’s
knowledge, identified herself as Pothen’s daughter, reserved three rooms, and
stated that her father would pay for them.
When
Pothen discovered that his daughter had rented the rooms he confronted
her. She assured him that there would
be only a few friends attending and there would be no problems. Pothen, in turn, assured the motel manager
that there would be no problems and said he and his wife would stay on the
premises to make sure things did not get out of control.
The
party began early in the evening and ended at 3:00 a.m. the next day. Seventy to 80 people attended. Underage party-goers drank alcohol. The party was noisy, causing other motel
guests to complain that teenagers were running through the halls until early
morning. Several party-goers got into a
fight in the motel lobby and the police had to be called. One of the rooms was damaged, as was a motel
guest’s van in the parking lot.
Pothen
alleged that, except for a couple of brief periods away, he stayed on the
premises throughout the duration of the party.
He indicated that he did not do any of the damage and is not responsible
for damage caused by his adult daughter.
He stated that he successfully intervened in the fight and tried his
best to keep things orderly.
The
commissioner’s representative concluded that Pothen, as the employer’s regional
manager, had a responsibility to protect his employer’s interests but failed to
do so. His failure fell below the
standard of conduct the employer had a right to expect of Pothen, and, as such,
constituted misconduct.
D E C I S I O N
On appeal, we review the decision of the commissioner’s
representative, not the decision of the reemployment insurance judge. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn.
1995). In reviewing a decision of the
commissioner’s representative our scope of review is very narrow. Markel v. City of Circle Pines, 479 N.W.2d 382, 383
(Minn. 1992). Findings of fact are
viewed in the light most favorable to the decision and will not be disturbed if
there is evidence reasonably tending to sustain them. Id. at
383-84. The ultimate determination whether
an employee committed misconduct, however, is a question of law on which this
court is free to exercise its independent judgment. Ress v. Abbott
Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).
The issue in this case is whether Pothen committed misconduct within the meaning of Minn. Stat. § 268.095, subd. 6 (1998). An employee who is discharged from employment is not disqualified from receiving benefits, unless the employee was discharged because of misconduct that interfered with and adversely affected that employment. Minn. Stat. § 268.095, subd. 4(1) (1998). Misconduct is defined by statute as intentional conduct showing a disregard for:
(1) the employer’s interest;
(2) the standards of behavior that an employer has the right to expect of the employee; or
(3) the employee’s duties and obligations to the employer. Misconduct also includes negligent conduct by an employee demonstrating a substantial lack of concern for the employment. Inefficiency, inadvertence, simple unsatisfactory conduct, or poor performance as a result of inability or incapacity are not misconduct.
Minn. Stat. § 268.095, subd. 6; see also Tilseth v. Midwest Lumber Co., 295
Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (defining misconduct as “evincing
such willful or wanton disregard of an employer’s interests as found in
deliberate violations or disregard of standards of behavior which the employer
has a right to expect of his employee * * * or to show an intentional and
substantial disregard of the employer’s interests or of the employee’s duties
and obligations to his employer.”).
In determining whether an employee has committed disqualifying misconduct, this court considers:
(1) whether an employee deliberately violated standards of behavior which the employer has a right to expect of its employee, (2) whether an employee’s conduct adversely affected the business or other employee’s morale, and (3) whether an employee ignored past warnings.
Ress, 448 N.W.2d at 524 (citing Auger v. Gillette Co., 303 N.W.2d 255, 257 (Minn. 1981)).
Here, Pothen claims that his
employer never informed him that his resignation was because he committed
misconduct. As support for his argument
he relies on this court’s unpublished opinion Niederer v. Super 8 Motel, No. C4-97-1340
(Minn. App. Feb. 10, 1998). Because Niederer is neither
on point nor controlling it is not necessary to address that portion of his
argument. See Minn. Stat. § 480A.08, subd. 3(b) (1998)
(unpublished decisions are not precedential).
Additionally, throughout his argument Pothen challenges the
commissioner’s representative’s findings and credibility determinations. An appellate court reviews “the findings of
the commissioner or the commissioner’s representative, not those of the
referee, even though those findings might involve witness credibility.” Tuff, 526 N.W.2d at 51 (citing Semanko v. Department of Employment Servs.,
309 Minn. 425, 428, 244 N.W.2d 663, 665 (1976)). We will uphold a commissioner’s representative’s findings of
fact, even if they conflict with those of the referee, if the evidence
reasonably supports them. Ress, 448 N.W.2d at
523.
There is evidence that Pothen’s daughter reserved motel rooms and said
that Pothen would pay for them. Had
Pothen inquired of the motel manager he would have learned this and could have
prevented the party altogether by refusing to pay for the rooms. The evidence shows that when the party went
forward with numerous teenagers in attendance and with underage alcohol consumption,
Pothen did nothing but stand by in case there was a problem. He did not directly supervise the party,
disallow the drinking, try to quell the noise, or even speak to his daughter
about the situation.
An employer has a right to expect that a managerial employee will
protect the employer’s business interests.
In the context of this case, the employer had a right to expect that
Pothen, as regional manager, would take clear and strong action to prevent
illegal alcohol consumption, excessive noise, and property damage from
occurring on the motel premises.
Because Pothen’s inaction evinces a disregard of his employer’s
interests, he committed misconduct as defined by Minn. Stat. § 269.095,
subd. 6. The commissioner’s
representative did not err in disqualifying Pothen from reemployment insurance
benefits.
Affirmed.