This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-614

 

Robert Klover,
Relator,

vs.

Independent School District #834,
Respondent,

Department of Employment and Economic Development,
Respondent.

 

Filed February 13, 2007

Affirmed

Minge, Judge

 

Department of Employment and Economic Development

File No. 18271 05

 

 

Robert A. Klover, 419 Mahtomedi Avenue, Mahtomedi, MN 55115-1681 (pro se relator)

 

Independent School District #834, Central Service Building, 1875 Greeley Street South, Stillwater, MN 55082-6079 (respondent employer)

 

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

 

            Considered and decided by Hudson, Presiding Judge; Shumaker, Judge; and Minge, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Relator challenges the unemployment law judge’s (ULJ) determination that he was disqualified from receiving unemployment benefits because he was discharged for employment misconduct.  Because we conclude that the ULJ’s finding that relator’s misrepresentations on his employment applications were the reason for his discharge, and the finding that those misrepresentations constitute employment misconduct are supported by substantial evidence, we affirm.

FACTS

 

            Relator Robert Klover applied for a full-time custodial position with respondent, Independent School District # 834, on January 6, 2003.  The employment application contained the following statement just above relator’s signature:

I hereby declare that all statements made on this application are true[,] complete, and correct to the best of my knowledge and belief.  I understand these statements are subject to verification.  I understand that falsification of this application will disqualify me from employment or be grounds for termination on discovery[.]

 

            The application asked relator to provide his work experience, starting with his most recent employer.  Relator listed three employers for which relator worked between 1988 and 2002.  But relator did not include his custodial job with the Mahtomedi school district or his short-term employment with the Roseville Area Schools.  The Mahtomedi school district had employed relator as a custodian from August 1, 2000 to December 18, 2001.  But relator resigned after the Mahtomedi district suspected him of stealing computer equipment and told him that he could resign or he would be terminated. 

            After relator applied for a full-time position with respondent, respondent notified relator that it had a job opening for a substitute custodian.  Relator went to the school offices on February 18, 2003, completed an application for substitute employment with respondent, and began work immediately afterwards.  This application asked whether relator had “ever been terminated from employment or resigned, by request of the employer or by mutual consent, for cause of alleged misconduct[,] alleged unsatisfactory performance, or alleged improper or illegal acts[.]”  Despite being forced to resign from his Mahtomedi custodial position due to suspected theft, relator checked “No.”

            Respondent did not learn of relator’s Mahtomedi employment, or the circumstances surrounding relator’s separation, until 2005.  At that time, respondent investigated several staff members, including relator, because a female student reported that someone was spying on her in the locker room.  Upon learning of the Mahtomedi situation and its omission from relator’s employment applications, respondent terminated relator’s employment.  Relator subsequently filed for unemployment benefits.  The request was denied.  Relator appealed.  After a hearing, the unemployment law judge (ULJ) concluded that relator was not entitled to benefits due to his employment misconduct.  Upon relator’s request for reconsideration, the ULJ affirmed the denial of benefits.  This certiorari appeal follows.

 

D E C I S I O N

 

I.

The first issue is whether the ULJ’s finding that relator’s employment was terminated because he misrepresented his work history on his employment applications is supported by substantial evidence.  A ULJ’s determination of the reasons for an employee’s separation is a factual determination.  Vargas v. Nw. Area Found., 673 N.W.2d 200, 204 (Minn. App. 2004), review denied (Minn. Mar. 30, 2004).  We review the ULJ’s factual determinations “in the light most favorable to the decision” and give deference to the ULJ’s credibility determinations.  Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).  We will not disturb the ULJ’s findings of fact when those findings are supported by substantial evidence.  Minn. Stat. § 268.105, subd. 7(d)(5) (Supp. 2005).

Relator’s primary argument is that respondent used his misrepresentations of work history as a pretext for terminating his employment.  Relator argues that the real reason respondent terminated him was that he was suspected of involvement in the locker-room spying incident, but that there was not enough evidence to support discharging him for that reason. 

The ULJ found, by a preponderance of the evidence, that relator was terminated due to his misrepresentation and falsification of his employment applications.  The record discloses that at the hearing, the ULJ asked Eric Davis, respondent’s human resources supervisor, whether “the incident in the locker room had [any] bearing on [relator]’s discharge . . .”  Davis responded, “[Relator’s] discharge is solely pursuant to falsifying the application. . . .  [T]he act to terminate him is based solely on how he misrepresented his employment history on his application.”  Respondent’s official termination letter, and respondent’s position throughout the termination process, is consistent with respondent’s position at the hearing.  Relator’s termination quickly followed respondent’s discovery of the misrepresentation and falsification, and the locker-room incident investigation did not end upon relator’s termination.  Although evidence presented at the hearing could have allowed the ULJ to conclude that respondent’s reason was pretextual, the evidence also supported the conclusion that respondent’s decision was not pretextual.  We defer to the ULJ’s credibility and factual determinations and will not re-weigh the evidence.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Here, because there is substantial evidence to support the ULJ’s finding, we affirm that finding. 

II.

The next issue is whether relator’s misrepresentation of his work history in his first application and falsification of his second application constituted employment misconduct.  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) (Supp. 2005).  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).  Here, relator does not dispute the ULJ’s finding that relator’s omissions from his employment applications were intentional.

            The question of 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 by the applicant.  Indep. Sch. Dist. No. 709 v. Hansen, 412 N.W.2d 320, 322-23 (Minn. App. 1987); Heitman v. Cronstroms Mfg., Inc., 401 N.W.2d 425, 428 (Minn. App. 1987).  In Heitman, we found that the employee intentionally omitted information about a prior back injury, and we remanded for a finding of whether the employee’s misrepresentation was material to the position sought.  Heitman, 401 N.W.2d at 428.  But nonmaterial misrepresentations do not disqualify an employee from receiving unemployment benefits.  Hansen, 412 N.W.2d at 323.  In Hansen, the employee failed to disclose his alcoholism in his application for a chef position at a school.  Id. at 321.  There, we relied on evidence that a truthful answer to the employment application question “would not necessarily have prevented [the employee] from being hired,” to conclude that the misrepresentation was nonmaterial and, therefore, not misconduct.  Id.at 323.

            Here, even though the ULJ made no explicit materiality finding, the ULJ applied the statute’s plain language and concluded respondent “had a right to reasonably expect” relator would not falsify or intentionally misrepresent his applications for employment.  The materiality of relator’s omitted employment history, and falsification, is implicit in the ULJ’s conclusion that respondent “had a right” to expect relator to honestly complete the application and is further supported by the record.  At the hearing, respondent testified that “[h]ad [relator] been honest on his applications . . . this School District could have discovered at the time of his hire that his employment history [raised] sufficient concerns, [and that information] would have caused us not to extend [relator] an offer of employment.”

            Respondent also testified that relator’s trustworthiness was “of paramount concern to [respondent].”  The custodial position relator sought and held with respondent and relator’s duties at Mahtomedi were similar.  A school custodian has access to property belonging to the school, students, and teachers, and custodians may see papers, including confidential documents, that might be on the desks of teachers, counselors, and administrators.  The trustworthiness of custodians is an important concern of school districts. 

            The record further indicates that relator deliberately failed to include this Mahtomedi work history in completing his employment application.  He admitted that he realized it might affect respondent’s hiring decision.  Respondent expected candor.  Finally, it is significant that relator’s resignation at Mahtomedi was not stale.  Relator left that school custodial position about one year before applying for work with respondent.[1]   

            Based on this record, we conclude that the ULJ’s finding that relator was terminated for misrepresenting his employment applications is supported by substantial evidence and that the ULJ’s implicit finding that relator’s omission from his application was material and therefore employment misconduct is also supported by substantial evidence.  We affirm.

            Affirmed.