This opinion will be unpublished and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

A06-754

 

Raymond T. He,
Relator,

vs.

Cypress Semiconductor, (Minnesota) Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

 

Filed February 13, 2007

Affirmed

Wright, Judge

Concurring specially, Minge, Judge

 

Department of Employment and Economic Development

File No. 18063 05

 

 

Raymond He, 2717 Glenwood Avenue North, Minneapolis, MN  55405 (pro se relator)

 

Cypress Semiconductor, (Minnesota) Inc., 2401 East 86th Street, Bloomington, MN  55425 (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 Stoneburner, Presiding Judge; Minge, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

Relator challenges the decision by the unemployment law judge affirming on reconsideration his earlier decision that relator was discharged for employment misconduct and, therefore, is disqualified from receiving unemployment benefits.  We affirm.

FACTS

 

Relator Raymond He worked full-time on the production floor for respondent Cypress Semiconductor, Inc., from February 2001 until November 9, 2005.  During He’s tenure, Cypress paid employees on the production floor for their transit time into and out of the workroom, but its employees were not paid for their half-hour lunch break.  On an occasion in September 2005, He’s wife, who also worked for Cypress, punched He back in on his timecard before he returned to his work area after lunch.  After reminding He that he was allowed only one-half hour for lunch and paid transit time into and out of the workroom, He’s supervisor, Brian Walter, issued He an oral warning for falsifying his time records.  In October 2005, Walter and a production manager saw He in the lunchroom at about 1:00 p.m. and noted that He returned to work, after playing a computer card game, at 1:48 p.m.  But contrary to their observations, He’s timecard indicated that he punched out for lunch at 1:15 p.m. and punched back in at 1:42 p.m.  Walter and human-resources manager Casey Sarver met with He about the discrepancies between his timecard entries and his actual lunch breaks, and He admitted that he customarily took more than one-half hour for lunch.  Cypress subsequently prepared a written warning, and He was then discharged for falsifying his time records. 

He applied for unemployment benefits and a Department of Employment and Economic Development adjudicator determined that He was discharged for employment misconduct and, therefore, disqualified from receiving unemployment benefits.  He appealed, and a telephonic hearing was held before an unemployment law judge (ULJ).  In his findings of fact and decision, the ULJ determined that He engaged in employment misconduct and, therefore, is disqualified from receiving unemployment benefits.  After granting He’s request for reconsideration, the UJL affirmed his earlier decision.  This certiorari appeal followed.

D E C I S I O N

 

We review the decision of a ULJ to determine whether the substantial rights of the relator 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) (2006).[1]

            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).  The ULJ’s factual findings are viewed in the light most favorable to the decision, Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996), and will not be disturbed when substantial evidence supports them, Minn. Stat. § 268.105, subd. 7(d).  Because credibility determinations are the province of the ULJ, they are accorded deference on appeal.  Nichols v. Reliant Eng’g & Mfg., Inc., 720 N.W.2d 590, 594 (Minn. App. 2006).  But whether the act committed by the employee constitutes employment misconduct is a question of law, which we review 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).  An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2005). 

An employer has a right to expect its employees to abide by reasonable instructions and directions.  Vargas v. Nw. Area Found., 673 N.W.2d 200, 206 (Minn. App. 2004), review denied (Minn. Mar. 30, 2004).  A knowing violation of an employer’s directives, policies, or procedures constitutes employment misconduct because it demonstrates a substantial lack of concern for the employer’s interests.  Schmidgall, 644 N.W.2d at 804.

He argues that the ULJ erred by concluding that He is disqualified from receiving unemployment benefits for employment misconduct because Cypress discharged He without warning.  He’s argument is unavailing for two reasons.  First, a warning is not required before an employee’s termination for employment misconduct results in the disqualification for unemployment benefits.  See Auger v. Gillette Co., 303 N.W.2d 255, 257 (Minn. 1981) (stating that warning was not essential to demonstrate employees acted in willful disregard of employer’s interest). 

Second, the ULJ found that He was warned not to submit false time records and that He continued to deliberately falsify his timecards in violation of Cypress’s lunch policy.  There is ample evidentiary support for these findings in the record.  In September 2005, after discovering that He’s wife had punched his timecard in before he began his trip back to his work area from lunch, Walter explained Cypress’s lunch policy to He and issued an oral warning.  But in October 2005, He again took longer than one-half hour for lunch and punched his timecard to indicate falsely that he had not.  When confronted about violating this employment policy, He admitted that he customarily took more than one-half hour for lunch.  Thus, He’s claim for relief based on Cypress’s failure to warn him before he was discharged is supported by neither the law nor the facts. 

He also maintains that it is the general practice among employees on the production floor to take more than one-half hour for lunch.  Because other employees were not disciplined or discharged, He argues, he is the victim of discrimination.  The ULJ correctly concluded that neither the alleged misconduct of other employees nor Cypress’s alleged selective enforcement of its policy entitles He to receive unemployment benefits.  A valid defense to a determination of employment misconduct in an unemployment-benefits case does not include the violation of an employer’s policies by others, Dean v. Allied Aviation Fueling Co., 381 N.W.2d 80, 83 (Minn. App. 1986), or an employer’s alleged selective enforcement of its rules, see Sivertson v. Sims Sec. Inc., 390 N.W.2d 868, 871 (Minn. App. 1986) (stating that claims of selective enforcement are not relevant to whether relator’s violation of employer’s rules constitutes employment misconduct and thereby disqualifies relator from receiving unemployment benefits), review denied (Minn. Aug. 20, 1986). 

Moreover, He failed to present any evidentiary support for his assertions of selective enforcement and unlawful discrimination.  Thus, a finding of selective enforcement or unlawful discrimination would have been “unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 268.105, subd. 7(d)(5).  And given the import of the issue, we decline to render an advisory opinion on the ability to raise a well-founded employment discrimination claim as a defense to the disqualification for unemployment benefits.

He also challenges the credibility of Sarver’s testimony regarding the amount of time allowed to employees for lunch and whether Cypress hired a temporary employee to fill He’s position.  Specifically, He contends that Cypress’s true motives for discharging him were to avoid paying him an attendance bonus and to replace him with a lower-paid temporary employee.  These arguments are unavailing.  Credibility determinations are the province of the ULJ and will not be disturbed on appeal.  Nichols, 720 N.W.2d at 594.  

Accordingly, the ULJ’s determination that He committed employment misconduct and is, therefore, disqualified from receiving unemployment benefits is supported by substantial evidence in the record and does not constitute legal error.

Affirmed.

MINGE, Judge (concurring specially)

            I concur in the result, and except for the portion addressing the defense of selective enforcement, I concur in the opinion.

            I agree with the majority that relator does not present any evidentiary support for his assertion of selective enforcement and that the issue need not be reached.  I note that in the cases cited, Dean v. Allied Aviation Fueling Co., 381 N.W.2d 80, 83-84 (Minn. App. 1986) and Sivertson v. Sims Sec. Inc., 390 N.W.2d 868, 871 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986), it similarly appears that there was no evidentiary support for claims of inconsistent enforcement of work rules and that the abbreviated comments on the issue in those cases were not necessary to the decisions.  I observe that, if proven, inconsistent enforcement of a claimed work rule places doubt in both the bona fides of the alleged rule and the claim that the misconduct is the type of “intentional, negligent, or indifferent conduct” that disqualifies one for unemployment benefits.  See Minn. Stat. § 268.095, subd. 6(a) (2006).  I further note that the Dean and Sivertson cases were decided prior to the enactment of the present statutory definitions of employee misconduct.  This marginalizes the cases’ continuing applicability.    

            I recognize that the opinion in this case does not address the issue of discriminatory enforcement that implicates state and federal anti-discrimination legislation.  But, I observe that the laws prohibiting discrimination are not irrelevant to the administration of this state’s unemployment insurance program and I note that neither the Dean nor the Sivertson case considered whether a state agency’s denial of benefits in this context raises equal protection questions.  See U.S. Const. amend. XIV, § 1.

            In sum, I would not decide selective enforcement matters until we are presented with a case in which they are properly raised.