STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1550

Alex M. Popel,

Relator,

CommonBond Housing (Corp), and

Department of Employment and Economic Development,

Respondents.

Filed July 11, 2006

Affirmed

Ross, Judge

Department of Employment and Economic Security

File No. 55105

Thomas E. Marshall, Natalie Wyatt-Brown, Jackson Lewis, LLP, 150 South Fifth Street, Suite 1450, Minneapolis, MN 55402 (for respondent-employer)

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

Alex M. Popel, 4390 Canton Court, Webster, MN 55088-2440 (relator – prose)

Considered and decided by Shumaker, Presiding Judge; Wright, Judge; and Ross, Judge.

U N P U B L I S H E D O P I N I O N

ROSS, Judge

This case involves an apartment manager’s separation from employment after he failed to remedy his employer’s dissatisfaction with his performance. Relator Alex M. Popel challenges the decision of the senior unemployment review judge that Popel is disqualified from receiving unemployment benefits because he was discharged by respondent CommonBond Housing Corporation for employment misconduct. We affirm.

FACTS

CommonBond is a nonprofit corporation that operates housing communities throughout Minnesota for individuals who qualify for rent subsidies pursuant to programs administered by the Federal Department of Housing and Urban Development (HUD) and the Minnesota Housing Finance Agency (MHFA). Both HUD and MHFA require that CommonBond certify tenant incomes initially and recertify them annually in order to qualify for rent subsidies.

CommonBond hired Alex Popel as site manager of its 99-unit Westminster Place Apartments in St. Paul in September 2002. As site manager, Popel managed the “day to day operations of the site” and “ensured compliance with applicable state, federal, and local laws.” These responsibilities required “timely compliance with HUD/MHFA annual [tenant income-eligibility] recertification process” and “oversee[ing the] comprehensive maintenance program.” Deb Graham, the Westminster Place property manager and Popel’s supervisor, testified that Popel’s primary responsibility was to maintain a file on each resident to ensure timely compliance with the annual tenant-income recertification inspection.

In January 2003, Graham placed a memorandum in Popel’s personnel file concerning a “resident file problem” at Westminster Place. The memorandum noted: “Forms are missing or are incomplete. Duplicate copies are in file causing confusion. Bottom line: files are a mess.” The memorandum noted that because Popel had only recently started as site manager, he “did not get a written warning [but was informed that] fixing resident files and keeping them fixed [is] a priority.” The memorandum directed that “[i]f the assistant manager, who has been working with the files, does not clean them up, [Popel] needs to write her up or fix them himself.”

Popel received an oral warning in February 2003 for failing to timely submit Westminster Place electricity and telephone bills to the CommonBond corporate offices. In March, Graham informed Popel that a vendor who had performed maintenance work at Westminster Place in October 2002 had filed a mechanic’s lien against the property because the vendor went unpaid, which was because Popel had never submitted the vendor’s bill to CommonBond for payment. Graham issued a written warning to Popel, stating that any failure to contact her about potential legal problems could lead to his termination. In April 2003, Popel received a performance review stating that he should reduce by 75 percent the number of late annual tenant-income recertifications.

Popel received a written warning in July 2003 for failing to timely submit service-vendor invoices to CommonBond. The writing warned that “[c]ontinued failure to submit invoices or any other time sensitive paperwork could lead to termination.” In August, he received a written reprimand for failing to timely prepare a vacated apartment for a new tenant. The warning observed that Popel had previously failed to timely prepare vacated apartments and cautioned that he could be terminated for failing to do so in the future.

Popel received another written warning in January 2004 pertaining to poor maintenance of the Westminster Place resident files. This warning stated, in part:

As the site manager of Westminster Place Apartments, part of your duties include supervision of your assistant manager [Marlene Zigas] as she does the recertification process and filing of documentation in the resident files. You, ultimately, are responsible to see that the work is done within compliance of HUD and CommonBond standards.

You have been told several times that your files are in poor shape and need to be cleaned up[.]

. . . .

With the 2003 Management Review, it has again come to my attention that your files are still not in compliance with the standards in place for a number of years.

Popel’s April 2004 performance appraisal indicates “commendable” work in nearly every category. Popel’s supervisor comments, “Alex has been a great asset to the property as the residents see him working to improve the place. It has restored their confidence in management.” But the appraisal also indicates that Popel “needs improvement” in “us[ing] effective time management/planning and organizational skills to meet [annual tenant-income recertification] deadlines” and in communicating with his supervisor about problems. One of the three “key operational goals” set out on the appraisal was for Popel to decrease late annual recertifications by 50 percent.

CommonBond assigned Kathy Katzenberger, the assistant property manager of another CommonBond property, to assist with the management of Westminster Place beginning in August 2004 and specifically “to bring the property into compliance with HUD regulations by completing all annual and interim re-certifications that had not been completed.” Katzenberger found that

nothing had been done for re-certifications that were due [in] 30 days, 60 days, and 90 days into the future, and that no tracking system was in place for the re-certification process. [She] also found that improper paperwork was being used when completing re-certifications, and the property was out of compliance with some annual re-certifications . . . being completed in some cases 60 days late.

Katzenberger reported that when she asked Popel about the status of the recertifications, “[o]n many occasions he indicated that he knew the paperwork was wrong” and that people were complaining that their recertifications were not being timely completed. Popel told Katzenberger that he had asked his assistant manager to do the paperwork more diligently but “she would say ‘I know’ and continue doing things the same way, and he felt that he didn’t want to push the issue.”

The CommonBond compliance administrator began an audit of the Westminster Place resident files in September 2004. After the administrator completed the audit of ten files, the findings of numerous deficiencies were communicated to Popel with instructions to correct the errors. Popel did not perform the corrections. After completing ten more audits, the administrator contacted the CommonBond head of property management to indicate how bad the files were and refused to accept any more files for auditing until Katzenberger created a new file for each resident.

Graham issued Popel a written reprimand on October 19, 2004, stating that “[t]he files are much worse than anticipated” and reminding Popel that he “was told that while [his] assistant manager was doing the re-certifications, [he] had to check her work and timeliness.” The reprimand warned Popel that his failure to correct the site situation could lead to his termination. When Graham met with Popel to discuss the reprimand, Popel became angry, demanded the rest of the week off, “stated that he never had any support in his job from CommonBond,” and “stated [that] CommonBond was despicable and he would not work for a company that does not keep its word.”

Popel sent CommonBond a letter on October 27, 2004, stating that his failure to effectively manage Westminster Place “was inevitable considering requested resources were consistently denied [by CommonBond].” He also stated that CommonBond “failed miserably to support the staff at Westminster Place” and suggested that he was unfairly “being held responsible for the disarray in the resident files” when in fact, the disarray was either not as serious as it appeared or predated his employment.

CommonBond terminated Popel’s employment on November 3, 2004, on the ground that his “work product, specifically management of [the] site occupancy files, ha[d] been of extremely poor quality since January of 2003” despite repeated communications, warnings, and reprimands from his supervisor. The termination letter stated that despite being provided with additional staff to improve site file compliance, Popel failed to improve the files or to correct the deficiencies discovered during the September 2004 internal audit. The letter also mentioned that Commonbond had learned that after his October 19 reprimand, Popel had disparaged CommonBond to Westminster Place residents and co-workers.

An unemployment law judge (ULJ) determined that Popel was discharged because of the disorganized tenant files and because of his disparaging comments about CommonBond. But the ULJ concluded that the state of the files did not constitute employment misconduct because, in light of Popel’s many responsibilities, he could not reasonably be expected to make “sure the files were in perfect order.” The ULJ also concluded that the disparaging comments did not constitute misconduct because they were either unsubstantiated or did not rise above general complaining.

On appeal by CommonBond, the senior unemployment review judge (SURJ) concluded that Popel’s neglect of his assigned duties that related to the timely maintenance of the resident files, as well as his failure to communicate problems to his superiors, “clearly displayed a serious violation of the standards of behavior” that CommonBond had the right to reasonably expect him to meet and therefore constituted employment misconduct that disqualifies him from unemployment benefits. The SURJ did not base the decision on the alleged disparaging comments. This appeal followed.

D E C I S I O N

Popel challenges the SURJ’s disqualification decision. An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4 (2004). The statute defines misconduct as “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).

On certiorari appeal, we review the decision of the SURJ and not that of the ULJ. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). The standard of review is “very narrow.” Markel v. City of Circle Pines, 479 N.W.2d 382, 383 (Minn. 1992). “Whether an employee engaged in conduct that disqualifies the employee from unemployment benefits is a mixed question of fact and law.” Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). The SURJ determines the fact question of whether an employee committed the alleged acts of misconduct. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). The SURJ’s factual findings are “viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.” White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). When factual determinations rest on witness credibility and conflicting evidence, we defer to the SURJ’s ability to weigh the evidence and to make those determinations, and we do not reweigh the evidence on review. Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995). But whether a particular act constitutes disqualifying misconduct is a question of law, which we review de novo. Schmidgall, 644 N.W.2d at 804.

The SURJ found that “Popel’s neglect of his duties related to the maintenance of the [resident] files alone is sufficient to conclude his 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 his employment.” Popel argues that “none of the testimony or documents” of record support this finding, contending that the evidence shows instead that “the alleged comments [he] made” about CommonBond were “the only reason” he was discharged. He also disputes whether these comments were ever made. Popel’s argument is flawed. The evidence supports a finding that Popel consistently failed to ensure that the files were properly maintained, despite warnings, reprimands, and the assignment of other employees to assist him. Additionally, the SURJ specifically concluded that Popel’s failure to maintain the files constituted misconduct regardless of whether he made the disparaging comments. Popel’s argument concerning the disparaging comments is therefore irrelevant. Popel’s assertions concerning the mechanic’s lien, his failure to prepare vacant apartments for new residents, and his failure to timely submit vendor invoices to the Commonbond corporate office are similarly irrelevant, since the SURJ’s determination rests on his file-maintenance failures.

Popel challenges the weight-of-evidence and credibility determinations of the SURJ, arguing that when properly evaluated, the evidence and testimony demonstrate that his assistant manager was responsible for maintaining resident files in compliance with HUD and MHFA, and that the failure to maintain the files was the result of CommonBond’s refusal to provide requested training for his assistant manager. The SURJ reached different, fully supported factual conclusions. We defer to the SURJ’s evidentiary decisions and will not weigh the evidence on appeal. See Whitehead, 529 N.W.2d at 352.

Popel also argues that time spent on other duties prevented him from rectifying the resident-file situation. But it is the employer’s prerogative to set employee objectives and priorities. The supreme court has explained that, “[a]s a general rule, refusing to abide by an employer’s reasonable policies and requests amounts to disqualifying misconduct.” Schmidgall,644 N.W.2d at 807; see also Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 333 (Minn. App. 2004) (holding that after a warning has been given, a teacher’s refusal to comply with an employer’s warnings to refrain from borrowing money from students was misconduct), review denied (Minn. Nov. 16, 2004). We have held that a pattern of failing to follow policies and procedures and ignoring directions and requests is misconduct. Gilkeson v. Indus. Parts & Serv., Inc., 383 N.W.2d 448, 451-52 (Minn. App. 1986). The record amply supports the SURJ’s finding that beginning in January 2003, CommonBond repeatedly informed Popel that file maintenance was a priority and was ultimately his responsibility. The record indicates that between January 2003 and his termination in November 2004, Popel continually failed to timely update resident-certification files, which is critical to the continuing receipt of HUD or MHFA subsidies. The SURJ did not err in concluding that Popel’s continued failure to perform his assigned duties and to comply with CommonBond’s repeated demands and warnings that he ensure proper file maintenance constituted employment misconduct.

We observe that the issue before us is not whether Popel was dedicated to his position or whether he made positive contributions to Westminster Place during his tenure as site manager. The record—including Popel’s performance reviews—indicates that in many respects, Popel performed effectively (even commendably) in a demonstrably demanding position. Nor do we attempt to determine the prudence of CommonBond’s decision to terminate Popel. Our scope of review is narrow, limited to determining whether the SURJ abused his discretion in finding that Popel committed certain acts or erred in concluding that those acts constituted employment misconduct. Because the record supports the SURJ’s findings of fact and conclusions of law, we affirm his decision that Commonbond terminated Popel for employment misconduct, rendering him disqualified from receiving unemployment benefits.

Affirmed.