This opinion will be unpublished and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

A06-280

 

 

Patricia A. Shambour,

Relator,

 

vs.

 

Property Upkeep Services,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

 

Filed December 19, 2006

Affirmed

Halbrooks, Judge

 

 

Department of Employment and Economic Development

File No. 16445 05

 

 

Robin M. Wolpert, Kathleen K. Statler, Greene Espel, P.L.L.P., 200 South 6th Street, Suite 1200, Minneapolis, MN 55402 (for relator)

 

Property Upkeep Services, 2930 Old Bavaria Road, Chaska, MN 55318 (respondent)

 

Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent department)

 

 

            Considered and decided by Halbrooks, Presiding Judge; Randall, Judge; and, Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            On appeal from reconsideration by an unemployment law judge (ULJ) for denial of unemployment benefits, relator claims that her off-work DWI was not misconduct.  We affirm.

FACTS

            Relator Patricia Shambour was a seasonal employee with Property Upkeep Services of Minnetonka, Inc.  Her primary job was chemical application, but in the fall, she worked on lawn-cleanup crews, generally until mid-November.  On October 12, 2005, relator was not working because she was sick; on that day, relator was cited for driving while intoxicated (DWI) with an alcohol concentration of .21.

            After spending a few days in detox, relator met on October 19 with Tom Polak, the owner of Property Upkeep, to talk about the effect of the DWI charge on her job responsibilities, which included driving herself and, at times, crews to work sites.  Relator knew then that her driver’s license would be revoked.  Polak testified that he told relator that the company’s insurer would not cover drivers with a DWI conviction and that he could not employ her if she was not insurable.  Because relator planned to challenge the DWI charge and license revocation on the ground that some Nyquil she had taken had affected her alcohol concentration, Polak asked relator to talk with her lawyer and then to contact him.  They had no subsequent contact.  Relator testified that she left the October 19 meeting thinking that she still had her job and that it was not until she was denied unemployment benefits that she learned that she had been fired due to her DWI.

            Relator appealed the denial of benefits.  The ULJ determined that Property Upkeep discharged relator for employment misconduct based on the DWI, because work was still available for relator at the time of her separation from employment.  As a result, relator was disqualified from receiving unemployment benefits.  The ULJ affirmed the decision upon reconsideration.  This appeal by writ of certiorari follows.

D E C I S I O N

            Our review of ULJ decisions is governed by Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005), which states:

The Minnesota Court of Appeals may affirm the decision of the unemployment law judge or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioner may have been prejudiced because the findings, inferences, conclusion, or decision are:

                        (1)       in violation of constitutional provisions;

(2)       in excess of the statutory authority or jurisdiction of the department;

(3)       made upon unlawful procedure;

(4)       affected by other error of law;

(5)       unsupported by substantial evidence in view of the entire record as submitted; or

(6)       arbitrary or capricious.

 

“Substantial evidence” has been defined as “(1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety.”  Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 466 (Minn. 2002). 

            The ULJ determined that relator was discharged for misconduct because her DWI interfered with or adversely affected her employment because there was still work available as of October 19 but relator could no longer drive to job sites, one of her job duties.

“A driving offense in violation of sections 169A.20, 169A.31, or 169A.50 to 169A.53 that interferes with or adversely affects the employment is employment misconduct.”  Minn. Stat. § 268.095, subd. 6(d) (2004) (referring to DWI statutes).  Minnesota law defines DWI as a person who drives, operates, or is in physical control of a motor vehicle while under the influence of alcohol, a controlled substance, a hazardous substance that substantially impairs the person’s ability to drive, a combination of the above, or an alcohol concentration of at least .08.  Minn. Stat. § 169A.20, subd. 1 (2004).  Sentencing includes among other penalties, id., subd. 3 (2004), license revocation for 90 days, or 180 days for a conviction following a prior impaired-driving incident within the past ten years or an alcohol concentration of at least .20.  Minn. Stat. § 169A.52, subd. 4(a) (2004).

            Whether an employee committed employment misconduct is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether the employee committed a particular act is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Upon review, this court views the ULJ’s factual findings “in the light most favorable to the decision,” Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996), giving deference to the credibility determinations made by the ULJ, Jenson v. Dep’t of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000).  We will not disturb the ULJ’s factual findings unless the findings are unsupported by substantial evidence.  Minn. Stat. § 268.105, subd. 7(d). 

But whether the act committed by the employee constitutes employment misconduct is a question of law, which this court reviews de novo.  Scheunemann, 562 N.W.2d at 34.  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.”  Minn. Stat. § 268.095, subd. 6(a) (2004).  “A single deliberate act that adversely affects the employer may constitute misconduct.”  Vargas v. N.w. Area Found., 673 N.W.2d, 200, 206 (Minn. App. 2004), review denied (Minn. Mar. 30, 2004).  In contrast, “[i]nefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, [or] conduct an average reasonable employee would have engaged in under the circumstances” is not employment misconduct.  Minn. Stat. § 268.095, subd. 6(a). 

I.

Relator disputes that her DWI from off-work activities constitutes employment misconduct.  Property Upkeep identified misconduct both in relator’s inability to drive during the period of her license revocation and subsequently due to Property Upkeep’s ongoing inability to secure insurance coverage for relator as a driver. 

Relator was cited for DWI, an offense defined as employment misconduct if the offense “interferes with or adversely affects the employment.”  Minn. Stat. § 268.095, subd 6(d).  Although relator had not been convicted and still had her license when she met with Polak, both parties anticipated that her license would be revoked.  Relator’s circumstances qualified her for an automatic 180-day license revocation under the implied-consent law.  See Minn. Stat. § 169A.52, subd. 4(a).  Her conduct is at least “indifferent” conduct sufficient for employment misconduct.  SeeMinn. Stat. § 268.095, subd 6(a). 

Polak testified that relator’s inability to drive interfered with Property Upkeep’s ability to assign workers to lawn clean-up crews.  And although relator argues that there was less work that fall and that she was soon to be laid off, Polak testified that continuing work would have been available for relator.  The ULJ found that there was continuing work available to relator at the time of her separation from the company, and we defer to the ULJ’s credibility determination.

Because relator was unable to drive to job sites as a part of her work, relator’s DWI “interferes with or adversely affects the employment.”  We, therefore, conclude that the ULJ’s determination is supported by substantial evidence.

            Affirmed.