This opinion will be unpublished and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

A05-1217

 

Ellen Barlow,

Relator,

 

vs.

 

Women of Nations (Inc.),

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed June 27, 2006

Affirmed

Toussaint, Chief Judge

 

Department of Employment and Economic Development

File No. 663 05

 

Ellen Barlow, 111 Kellogg Boulevard East, Apartment 3E, St. Paul, MN 55101 (pro se relator)

 

Mark S. Mathison, Gray, Plant, Mooty, Mooty & Bennett, 80 South Eighth Street, Suite 500, Minneapolis, MN 55402 (for respondent Women of Nations)

 

Linda A. Holmes, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent Department)

 

            Considered and decided by Toussaint, Chief Judge; Willis, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            In this appeal from the determination by the senior unemployment review judge (SURJ) that relator Ellen Barlow is disqualified from receiving unemployment benefits, Barlow argues she did not knowingly misrepresent her criminal record on her employment application; the unemployment law judge (ULJ) erred in allowing exhibits into the record and in denying her motion to continue the hearing; and respondent Women of Nations (Inc.) violated her constitutional right to privacy.  Because the evidence reasonably supports the determinations that Barlow committed disqualifying misconduct and that the ULJ properly conducted the hearing and because Barlow did not adequately brief her constitutional claim, we affirm.

FACTS

On January 5, 2004, Barlow signed and dated an application for employment with Women of Nations that asked:  “Have you ever been convicted of a crime, excluding misdemeanors and summary offenses, which has not been annulled, expunged or seal[ed] by court?  (A ‘yes’ response does not automatically disqualify your application.).”  Barlow checked “No.”  The application further stated:

The above information is true and correct.  I understand that . . . I shall be subject to dismissal if any information that I have given in this application is false or misleading or if I have failed to give any information herein requested, regardless of the time elapsed after discovery.

 

Barlow was told that Women of Nations would conduct a background check, and she signed an authorization for the Minnesota Bureau of Criminal Apprehension (BCA) to perform the check.

On December 6, 2004, Barlow was discharged from her position as an accountant with Women of Nations when it learned she had a 1986 felony conviction from Illinois.  Barlow applied for unemployment benefits, and respondent Department of Employment and Economic Development (DEED) initially adjudicated that Barlow’s actions did not constitute employment misconduct because she believed the conviction had been expunged. 

Women of Nations appealed, and after a hearing, the ULJ determined that Barlow lied on her application, was discharged for employment misconduct, and was therefore disqualified from receiving benefits.  Barlow appealed to the SURJ, who independently decided Barlow was discharged for disqualifying misconduct.  Barlow petitioned this court for further review.

D E C I S I O N

I.

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) (2004).  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.”  Id., subd. 6(a) (2004).  The “definition of employment misconduct provided by this subdivision shall be exclusive and no other definition shall apply.”  Id., subd. 6(e) (2004).

We review the decision of the SURJ, rather than that of the ULJ, and afford particular deference to the SURJ’s decision.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Whether an employee is discharged for employment misconduct is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether an employee committed the particular act that led to discharge is a finding of fact, which we review in the light most favorable to the decision and will not disturb as long as the fact-finding is reasonably supported by evidence in the record.  Vargas v. Nw. Area Found., 673 N.W.2d 200, 204 (Minn. App. 2004), review denied (Minn. Mar. 30, 2004).  We will not disturb credibility determinations.  Munro Holding, LLC v. Cook, 695 N.W.2d 379, 384 (Minn. App. 2005).  But whether the employee’s actions constitute employment misconduct is a question of law, which we review de novo.  Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). 

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.  Heitman v. Cronstroms Mfg., Inc., 401 N.W.2d 425, 427-28 (Minn. App. 1987); see Indep. Sch. Dist. No. 709 v. Hansen, 412 N.W.2d 320, 322-23 (Minn. App. 1987) (affirming determination that misrepresentation regarding alcoholism was not material to position as chef). 

Norma Renville, a representative for Women of Nations, was informed on November 29, 2004, that Barlow had a felony charge pending in Ramsey County.  On December 1, Renville learned that the charge was being dismissed for lack of probable cause and that Barlow had been determined ineligible for a pretrial-diversion program because of a prior felony conviction.  Renville then did further background checks and learned that Barlow was convicted of felony embezzlement in Illinois in 1986.

Barlow testified that she pleaded guilty to the felony in 1986, but believed the conviction had been expunged because she had cleared “over ten” background checks since then and because she met the conditions of probation.  But Barlow acknowledged that she had no expungement document.  When asked whether she was “informed by the court or by [her] attorney that the matter would be expunged after [she] completed the terms of probation,” Barlow replied, “You know, I don’t remember exactly.  It’s been about 20 years, but that’s what I was led to believe, and I can’t say yes or no that the language was there, but that’s what I believed.”  Barlow admitted she had “taken no steps” to have the conviction expunged or annulled and never asked anyone at Women of Nations to explain the meaning of “annulled, expunged, or sealed” on her application.

Barlow argues that she was acting in good faith when she completed her application, but neither the ULJ nor the SURJ was persuaded by her testimony.  Specifically, the SURJ found that Barlow’s testimony was not reasonable or believable.  The record amply supports that fact-finding. 

Barlow’s contention that she was terminated in retaliation for filing a human rights complaint in October 2004 lacks support in the record.  The SURJ determined that the complaint “had no bearing on her discharge.” Renville discharged Barlow because she lied on the employment application and because Barlow was responsible for Women of Nations’ finances.  The prior conviction of embezzlement was material to her employment as an accountant, which involved reconciling accounts, paying bills, processing payroll, and preparing deposits. 

The SURJ’s findings that “Barlow was discharged for material misrepresentation” and that “Barlow’s conduct clearly displayed a serious violation of the standards of behavior an employer has the right to reasonably expect of an employee and a substantial lack of concern for her employment” are supported by the record.  And those facts support the SURJ’s conclusion that an “employer has the right to expect honesty from its employees, particularly those with fiduciary responsibilities.  Although Barlow pled guilty to a felony embezzlement charge in 1986 she answered “NO” to a question related to the existence of a prior criminal conviction.”  Barlow was terminated for employment misconduct and was therefore disqualified from receiving benefits.

II.

Barlow claimed on appeal to the SURJ, and again on this appeal, that the ULJ was biased against her, that the hearing was unfair, and that she was denied due process when the ULJ received the DEED’s and Women of Nations’ untimely documents into evidence and failed to grant her a continuance.

 Administrative hearings must follow basic rules of fairness and procedural due process, including adequate notice and an opportunity to be heard.  Seemann v. Little Crow Trucking, 412 N.W.2d 422, 425 (Minn. App. 1987); see Thompson v. County of Hennepin, 660 N.W.2d 157, 160-61 (Minn. App. 2003) (reversing when review of record indicated relator did not receive full opportunity to present defense).  But ULJ hearings may follow the rules adopted by the DEED and need not follow the common law or statutory rules of evidence and procedure.  Minn. Stat. § 268.105, subd. 1(b) (2004).  The ULJ must “ensure that all relevant facts are clearly and fully developed.”  Id.  Refusal to reschedule a requested hearing is reviewed for an abuse of discretion.  Id.; see Goodwin v. BPS Guard Servs., Inc., 524 N.W.2d 28, 30 (Minn. App. 1994).   

A review of the transcript indicates that Barlow received due process in the form of adequate notice of the allegations against her and a full and fair opportunity to be heard, in accordance with the rules.  At the hearing before the ULJ, Barlow did not object to the ULJ receiving the DEED exhibits as evidence.  Barlow did request a continuance when the Women of Nations offered additional documents into evidence, which Barlow had received only two days earlier, on a Saturday.  The ULJ denied the continuance but faxed the documents to Barlow’s attorney and ruled that any events after the date of employment termination were irrelevant.

Although the rules generally require document exchanges prior to the hearing, they do not preclude later-submitted exhibits.  Minn. R. 3310.2912 (2003).   Here, the documents produced at the hearing were not a surprise to Barlow.  She was in possession or aware of the documents, and the testimony supported the SURJ’s finding that those documents were not “relevant to the issue of whether [Barlow] falsified her application for employment.”  Therefore, the ULJ did not abuse his discretion in denying Barlow’s motion for a continuance.

Barlow also failed to timely provide her own attorney with documents for the hearing.  Although the record reflects the ULJ’s frustration and the time wasted as a result, there is no indication that this affected the manner in which the hearing was conducted, the testimony of witnesses, or the exhibits received.  To the contrary, the ULJ accommodated both parties and permitted a thorough direct and cross-examination of all witnesses.   The SURJ correctly determined that the ULJ properly exercised his discretion in the conduct of the hearing.

III.

Finally, because Barlow cites no legal authority in support of her contention that her constitutional right to privacy was violated by Women of Nations and fails to address how any such violation affects the SURJ’s decision in this case, we decline to address the issue.  See State, Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (declining to address issue not adequately briefed).   Insofar as Barlow claims a fundamental right of privacy in her Illinois court records, her felony conviction is not “private” information, and the research into or disclosure of such information would not violate her privacy rights.  See Doe v. Carlson, 619 N.E.2d 906, 909 (Ill. App. Ct. 1993) (discussing Illinois statute making all court documents public records). 

Because the SURJ’s fact-findings are reasonably supported by the evidence in the record, and the material misrepresentation on Barlow’s application was employment misconduct under the unemployment law, the SURJ did not err in determining that Barlow was discharged for employment misconduct and disqualified from receiving benefits. 

            Affirmed.