This opinion will be unpublished and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

A06-179

 

Michael A. Chung,

Relator,

 

vs.

 

SMSC Gaming Enterprises,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed January 2, 2007

Affirmed

Willis, Judge

 

Department of Employment and Economic Development

File No. 1631905

 

 

Michael A. Chung, 14805 Hallmark Drive, Apple Valley, MN  55124 (pro se relator)

 

Susan L. Allen, S. “Chloe” Thompson, Olson, Allen & Rasmussen, LLC, 8200 Humboldt Avenue South, Suite 200, Bloomington, MN  55431 (for respondent SMSC Gaming Enterprises)

 

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

 

            Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            By writ of certiorari, pro se relator challenges the decision of the unemployment-law judge (ULJ) that relator was discharged for employment misconduct and is therefore disqualified from receiving unemployment benefits.  Because substantial evidence supports the ULJ’s findings and those findings support the conclusion that relator was discharged for employment misconduct, we affirm. 

FACTS

Pro se relator Michael Chung was employed by SMSC Gaming Enterprises (SMSC) as a player-services representative at a casino from September 23, 2004, to October 5, 2005.  SMSC’s player-services representatives are required to have valid gaming licenses.  This requirement is set forth in the SMSC employment application that Chung completed.  And Chung was aware that criminal convictions could affect his gaming license.   On February 8, 2005, a police officer issued Chung a ticket for careless driving and for making an improper lane change, and Chung ultimately pleaded guilty to careless driving, a misdemeanor.  In September 2005, the Shakopee Mdewakanton Gaming Commission held a hearing, apparently to address Chung’s careless-driving conviction, and voted unanimously to revoke Chung’s gaming license.  The gaming commission is an entity entirely separate from SMSC, Chung’s former employer.  On October 5, 2005, SMSC discharged Chung from his employment because he no longer held a valid gaming license.  Chung sought unemployment benefits.

            An adjudicator from the Department of Employment and Economic Development (DEED) determined that Chung was qualified to receive benefits.  Mistakenly believing that Chung’s gaming license had been revoked by his employer, the adjudicator determined that Chung was discharged for reasons other than employment misconduct.  SMSC sought de novo review of that determination by an unemployment-law judge (ULJ).  The ULJ held a hearing on November 28, 2005, and issued findings of fact and a decision on November 30, 2005, reversing DEED’s initial determination and holding that Chung was disqualified from receiving unemployment benefits.  The ULJ found that SMSC has “the right to expect that its employees will avoid committing illegal acts that may result in the revocation of a gaming license,” and, therefore, “by driving his vehicle in a careless manner that resulted in a misdemeanor conviction, Chung’s conduct clearly displayed a serious violation of the standards of behavior that an employer has the right to reasonably expect of its employee.”  The ULJ concluded that Chung was discharged because of employment misconduct. 

            Chung filed a request for reconsideration with the ULJ under Minn. Stat. § 268.105, subd. 2 (Supp. 2005).  Before changes made by legislation in 2005, an applicant or employer could obtain de novo review of an unemployment-law judge’s decision by filing an appeal with a senior unemployment-review judge (SURJ),  previously called a “commissioner’s representative.”  See Minn. Stat. § 268.105, subd. 2 (2004).  Now, an applicant, an employer, or the commissioner may make a request for reconsideration, asking the ULJ who made the initial decision to reconsider that decision.  Minn. Stat. § 268.105, subd. 2 (Supp. 2005); see 2005 Minn. Laws, ch. 112, art. 2, § 34, at 704-10 (rewriting the former appeal provisions).  Because the ULJ who conducted Chung’s hearing and issued the November 30, 2005 decision was no longer employed by DEED, a second ULJ considered the request, as provided for by Minn. Stat. § 268.105, subd. 2(e).[1] 

The second ULJ affirmed the findings and decision of the first ULJ.  The second ULJ found that “Michael Chung knew he was required to maintain a license in order to work for the employer.  He did not do that, it being revoked by a separate entity, the Gaming Commission.”  Chung appeals by writ of certiorari, asking this court to review the second ULJ’s order affirming the decision that Chung is disqualified from receiving unemployment benefits because he was discharged for employment misconduct.          

D E C I S I O N

Chung makes three arguments on appeal: (1) that the second ULJ improperly based his decision on the “false assumption” that Chung’s driver’s license had been revoked; (2) that his gaming license was improperly revoked; and (3) that his careless-driving conviction does not constitute employment misconduct. 

First, Chung asserts that the second ULJ improperly based his decision on the false assumption that Chung’s driver’s license had been revoked and that the decision was therefore “factually and legally incorrect.”  Chung is simply mistaken.  The ULJ did not base his decision on such an assumption or even make such an assumption.  The language in the second ULJ’s decision to which Chung likely refers is: “This is no different than if Michael Chung’s job required that he maintain a driver’s license and the driver’s license was revoked and, therefore, he could no longer legally perform his job.”  The ULJ was comparing Chung’s situation to one in which a driver’s license had beenrevoked, not stating that Chung’s driver’s license had in fact been revoked.  Other than this mistaken assignment of error, Chung disputes no finding of fact by the ULJ.

Second, Chung argues that SMSC improperly revoked his gaming license and that the second ULJ erred when he declared that the evidence that Chung presented regarding the proper grounds for revocation of a gaming license was not “directly applicable.”  The evidence that Chung presented appears to be an excerpt from a Mystic Lake Casino Hotel Gaming Department handbook setting forth the grounds on which the gaming commission might revoke or deny an employee’s gaming license, and the second ULJ was correct when he determined that the quoted language is not directly applicable to the issue of whether Chung was discharged for employment misconduct.  Chung mistakenly argues that his former employer violated this standard and unlawfully revoked his gaming license.  As the second ULJ noted, the gaming commission, which revoked Chung’s gaming license, is an entity separate from SMSC, Chung’s former employer.  SMSC did not revoke Chung’s gaming license, unlawfully or otherwise; it discharged Chung because he no longer held a gaming license. 

The appropriateness of the gaming commission’s decision to revoke Chung’s gaming license was immaterial to SMSC’s decision to discharge Chung on the ground that he no longer held a gaming license.  And neither the transcript of Chung’s hearing before the gaming commission nor an explanation of the commission’s basis for its decision to revoke Chung’s gaming license was available to the ULJ, or to SMSC for that matter.  The only evidence as to what happened at the gaming-commission hearing—and in fact the only evidence that it was indeed a careless-driving conviction that prompted the commission to revoke Chung’s gaming license—was Chung’s own testimony at the hearing before the first ULJ.  Under the Shakopee Mdewakanton Sioux (Dakota) Community Gaming Ordinance, the proper procedure for appealing a decision of the gaming commission is to appeal to the Shakopee Mdewakanton Sioux (Dakota) Community’s Tribal Court.  There is no evidence that Chung exercised this right of appeal.              

Finally, Chung argues that his careless-driving conviction does not meet the definition of employment misconduct.  The issue before this court is not whether Chung’s careless-driving conviction was employment misconduct but whether Chung’s loss of his gaming license was employment misconduct, for that was the basis for SMSC’s decision to discharge Chung.  DEED and SMSC argue that Chung engaged in employment misconduct when he lost, through his negligent conduct, a gaming license that was required for his employment. 

A person who is discharged from employment because of employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (Supp. 2005).  “Employment misconduct” is defined 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.

           

Minn. Stat. § 268.095, subd. 6(a) (2004).  The legislature recently restated the standard of review that this court applies to ULJ decisions:

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.

 

Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005).

Whether an employee committed 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.  Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).  Findings of fact are reviewed in the light most favorable to the ULJ’s decision, and deference is given to the  ULJ’s determinations of credibility.  Id.  This court will not disturb the ULJ’s factual findings when those findings are supported by substantial evidence.  Id.; Minn. Stat. § 268.105, subd. 7(d)(5).  But whether an act by the employee constitutes disqualifying misconduct is a question of law, which we review de novo.  Schmidgall, 644 N.W.2d at 804.

SMSC argues that Chung’s conduct was “negligent and/or indifferent” under Minn. Stat. § 268.095, subd. 6(a).  We agree.  Because the record supports the finding that Chung knew that his employment required a gaming license and he knew that a criminal conviction could result in the revocation of his license, Chung’s conduct that resulted in a criminal conviction was “negligent” or “indifferent,” or both. 

To constitute “employment misconduct,” Chung’s conduct must also display clearly either “a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee” under Minn. Stat. § 268.095, subd. 6(a)(1), or “a substantial lack of concern for the employment” under Minn. Stat. § 268.095, subd. 6(a)(2).  SMSC argues that Chung’s conduct satisfies either definition.  We agree. 

SMSC is required by law to employ as player-services representatives only individuals with gaming licenses.  SMSC had the right to reasonably expect Chung to maintain his licensed status.  Chung failed to meet that expectation when the gaming commission revoked his license.  Failure to meet SMSC’s reasonable expectation that its employees maintain a valid gaming license is a “serious violation.”  Thus, Chung was discharged for “employment misconduct” under Minn. Stat. § 268.095, subd. 6(a)(1).   

SMSC and DEED argue that Chung’s behavior also qualifies as a “substantial lack of concern for the employment” under Minn. Stat. § 268.095, subd. 6(a)(2).   As did the second ULJ, DEED compares Chung’s situation to cases in which an employee’s job requires a driver’s license, and the employee engages in conduct that leads to the revocation of his driver’s license or otherwise affects his ability to drive.  SMSC asserts that because Chung knew that he was required to maintain a gaming license to keep his job, his failure to do so demonstrated a substantial lack of concern for his employment. 

SMSC relies on Markel v. City of Circle Pines, 479 N.W.2d 382, 385 (Minn. 1992) (concluding that the employee’s “conduct in driving drunk, thus putting at risk his ability to drive his employer’s vehicles due to loss of his driver’s license, is misconduct . . . because it showed an intentional and substantial disregard of his duties and obligations to his employer” and noting that this was particularly true when the employee understood the risk he was taking).[2]  We agree with SMSC that the present case is more similar to Markel than to other caselaw involving minor traffic offenses affecting an employee’s ability to drive a motor vehicle required for his employment. 

In Markel, the employee’s license was revoked for a year, and he was unable to secure the right type of limited license for work purposes, which rendered him completely unable to perform his duties and thus constituted a “substantial disregard” of his duties to his employer.  479 N.W.2d at 383, 385. In contrast, this court found no employment misconduct in Peterson v. Fred Vogt & Co., in which the employee’s license was revoked for only 90 days, and the employee would have been able to secure a limited license for work purposes if his employer had cooperated.  495 N.W.2d 875, 877, 879 (Minn. App. 1993); see also Swanson v. Columbia Transit Corp., 311 Minn. 538, 539-40, 248 N.W.2d 732, 733 (1976) (finding no employment misconduct when a bus driver’s three on-duty accidents did not render him unable to perform his duties); Eddins v. Chippewa Springs Corp., 388 N.W.2d 434, 434-36 (Minn. App. 1986) (finding no employment misconduct when an employee’s numerous off-duty traffic tickets caused his employer’s insurer to refuse coverage but did not result in the loss of the employee’s driver’s license, so the employee was still able to perform his duties).  Here, the revocation of Chung’s gaming license renders him completely unable to perform the requirements of his job. 

The record shows that Chung knew that his employment required a gaming license, and Chung concedes that he was aware that a criminal conviction could affect his gaming license.  Chung’s loss of his gaming license is employment misconduct under Minn. Stat. § 268.095, subd. 6(a)(2).  Because Chung was discharged for employment misconduct as defined in Minn. Stat. § 268.095, subd. 6(a), we affirm.               

            Affirmed.