This opinion will be unpublished and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

A06-496

 

Dennis L. Goodburn,

Relator,

 

vs.

 

Spee Dee Delivery Service,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed March 27, 2007

Affirmed

Shumaker, Judge

 

Department of Employment and Economic Development

File No. 16533 05

 

 

Dennis L. Goodburn, 324 West Weisel Street , Apt. 4 , Litchfield , MN 55355 (pro se relator)

 

Chad W. Strathman, John F. Bowen, Ford & Harrison LLP, 225 South Sixth Street, Suite 3150, Minneapolis, MN 55402 (for respondent Spee Dee Delivery Service, Inc.)

 

Lee B. Nelson, Linda A. Homes, Minnesota 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 Klaphake, Presiding Judge; Willis, Judge; and Shumaker, Judge.

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER , Judge

            Relator challenges the unemployment-law judge’s decision disqualifying him from receiving unemployment benefits, arguing that the evidence is insufficient to support the findings that he engaged in employment misconduct and that the judge made evidentiary and procedural errors during the hearing.  Because the evidence supports the findings of misconduct, and because the judge did not err during the hearing, we affirm.

FACTS

            Relator Dennis Goodburn worked as a truck driver for Spee Dee Delivery Service, Inc.  Spee Dee maintains a policy that requires employees to use company time prudently and states that “absenteeism and tardiness . . . may result in termination.”  Personal cell-phone use during work is also prohibited.  Spee Dee customarily gives official reprimands for policy violations, and an employee who receives three official reprimands within 12 months is subject to termination.  It is undisputed that Goodburn was aware of Spee Dee’s policies.

            Goodburn received official reprimands for a driving-related incident, missing work, using a personal cell phone during work, and being tardy in his work because he stopped at a fast-food restaurant.  Spee Dee discharged Goodburn after he received his fourth official reprimand within six months.

            Goodburn applied for unemployment benefits, and a Department of Employment and Economic Development (DEED) adjudicator found that he was qualified to receive benefits.  Spee Dee appealed and a hearing was held before an unemployment-law judge (ULJ).      

Before the hearing, Goodburn mailed Spee Dee a request for certain documents and information.  Spee Dee did not receive the request, prompting DEED to send Spee Dee a subpoena three days before the hearing.  Spee Dee responded to the subpoena the day before the hearing, faxing the information to DEED and mailing copies to Goodburn. 

At the hearing Goodburn disputed Spee Dee’s characterization of his conduct giving rise to his official reprimands.  Goodburn argued that he informed his managers that he would miss work on certain days, that he did not use his personal cell phone at work, and that stopping for food during work did not violate company policy.  Other evidence, including testimony from Goodburn’s own witness, contradicted Goodburn’s arguments.

The ULJ found that Spee Dee discharged Goodburn for misconduct, disqualifying him from receiving benefits.  Goodburn sought reconsideration, and the ULJ affirmed his decision.  This certiorari appeal followed.

D E C I S I O N

            This court will reverse a ULJ’s decision when it reflects an error of law, is “arbitrary or capricious,” or the findings are “unsupported by substantial evidence in view of the entire record.”  Minn. Stat. § 268.105, subd. 7(d) (2004).  Minnesota courts have defined “substantial evidence” 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).

            This court defers to the ULJ’s determinations regarding witness credibility and conflicting evidence.  Skarhus v. Davanni’s, Inc. , 721 N.W.2d 340, 344 ( Minn. App. 2006).  “When the parties have presented conflicting evidence on the record, this court must defer to the [ULJ’s] ability to weigh the evidence; we may not weigh that evidence on review.”  Whitehead v. Moonlight Nursing Care, Inc. , 529 N.W.2d 350, 352 ( Minn. App. 1995).

1.         Discharge For Misconduct

            Goodburn argues that the evidence is insufficient to support the ULJ’s decision that he was discharged for misconduct. 

An applicant is disqualified from receiving unemployment benefits when the applicant was discharged due to employment misconduct.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2005).  Employment misconduct is defined as “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 (2004).  Generally, failure to follow an employer’s reasonable policies and requests amounts to employment misconduct.  Schmidgall v. FilmTec Corp. , 644 N.W.2d 801, 804 ( Minn. 2002).   

            Whether an employee engaged in conduct disqualifying the employee from unemployment benefits is a mixed question of law and fact.   Id .   Whether the employee committed an act alleged to be misconduct is a fact question, but whether that act amounts to misconduct is a question of law reviewed de novo.  Id

            Goodburn contends that the evidence does not support the findings that he missed work, that he used a personal cell phone during work, and that his fast-food stop violated company policy. 

Although Goodburn cites potentially conflicting evidence regarding the characterization of his absenteeism, he does not dispute that he missed work or that he knew about the consequences of missing work.  Because we do not reweigh conflicting evidence, the managers’ testimony regarding Goodburn’s absenteeism is sufficient to support the ULJ’s findings.  See Skarhus , 721 N.W.2d at 344.

Next, Goodburn questions the credibility of witnesses who testified to his cell-phone use and argues that phone records show that he did not use his cell phone during work.  But the ULJ found those witnesses credible, and we defer to the ULJ’s credibility determination.  Skarhus , 721 N.W.2d at 344.  Additionally, Goodburn’s own witness testified that Goodburn used a personal cell phone at work, and the heavily redacted phone records that he supplied at the hearing do not show otherwise.  Thus, the record fully supports the ULJ’s finding that Goodburn used a personal cell phone at work in violation of company policy.

            Goodburn also argues that the evidence does not show that stopping for food during work violated Spee Dee policy.  But the record reflects, through testimony and exhibits, that Goodburn’s stop caused work delays, and Spee Dee policy prohibits using company time in such a manner.  Therefore, we conclude that the evidence is sufficient to support the ULJ’s finding that Goodburn’s stop violated company policy. 

The record fully supports the ULJ’s findings that Goodburn violated company policy by missing work, using a personal cell phone during work, and by causing delays.  A de novo review also supports the ULJ’s conclusion that Goodburn’s repeated violations of company policy amount to disqualifying misconduct.  Schmidgall , 644 N.W.2d at 804.    

2.         Hearing Procedure

            Goodburn also challenges various procedural and evidentiary rulings by the ULJ.

            First, Goodburn challenges the testimony of two Spee Dee managers, arguing that that he did not receive notice of their participation before the hearing.  The law requires a party, upon demand of another party, to produce the names of witnesses and representatives participating in the hearing within three working days after receiving the demand.  Minn. R. 3310.2914, subd. 2 (2005).  But the record shows that Spee Dee never received Goodburn’s demand and that it promptly responded to a subpoena issued only three days before the hearing.  Goodburn also fails to show that he was prejudiced as a result of not receiving the witnesses’ names in advance.  Therefore, we hold that the ULJ did not err by overruling Goodburn’s objections to Spee Dee’s witnesses.

            Next, Goodburn argues that the ULJ improperly admitted documents during the hearing.  But Goodburn did not object to the documents, nor has he shown that he was prejudiced by their inclusion in the record.  See Thiele v. Stich , 425 N.W.2d 580, 582 ( Minn. 1988) (stating that a reviewing court must “generally consider ‘only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.’”) (quoting Thayer v. Am. Fin. Advisers, Inc., 322 N.W.2d 599, 604 ( Minn. 1982)) .   Spee Dee submitted its documents promptly after receiving the subpoena, and Goodburn has not shown any error in admitting the documents.  The evidence was properly admitted.

            Goodburn also argues that the ULJ improperly prohibited his questioning of a Spee Dee manager about other employees’ misconduct.  Because “[v]iolation of an employer’s rules by other employees is not a valid defense to a claim of misconduct,” the ULJ properly prohibited Goodburn’s line of questioning.  Dean v. Allied Aviation Fueling Co. , 381 N.W.2d 80, 83 ( Minn. App. 1986); see Minn. R. 3310.2922 (2005) (stating that a ULJ may exclude irrelevant evidence).

            Finally, Goodburn seems to argue that the ULJ erred by not providing him with a telephone number or other documentation relating to a witness.  But Goodburn did not object to the testimony during the hearing, nor has he shown that he was prejudiced by not receiving the information.  Thiele , 425 N.W.2d at 582.  Therefore, the ULJ did not err by allowing the witness to testify.

            The evidence is sufficient to support the ULJ’s determination that Spee Dee discharged Goodburn for misconduct, and the ULJ did not commit procedural or evidentiary errors.

            Affirmed.