A06-884

Lynne Lenzmeier,

Relator,

vs.

APR Capital Mortgage Corp.,

Respondent,

Department of Employment and Economic Development,

Respondent.

Filed April 10, 2007

Affirmed

Willis, Judge

Department of Employment and Economic Development

File No. 18252 05

Paul A. Jeddeloh, Jeddeloh & Snyder, P.A., 803 West St. Germain Street, St. Cloud, MN 56301 (for relator)

APR Capital Mortgage Corp., 35 Wilson Avenue Northeast, #100, St. Cloud, MN 56304-1804 (respondent)

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 (for respondent Department)

Considered and decided by Stoneburner, 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

Relator appeals by writ of certiorari the determination of the unemployment-law judge’s affirmance of his initial determination that relator was discharged for employment misconduct and is therefore disqualified from receiving unemployment benefits. She argues that her refusal to train her supervisor regarding an office procedure was reasonable because, as an employee compensated solely by commission, she would not receive compensation for the time spent training her supervisor. We affirm.

FACTS

Relator Lynne Lenzmeier was a loan processor and a loan officer for respondent APR Capital Mortgage Corporation (APR) from February 2003 until October 15, 2005. Lenzmeier was compensated solely by commissions that she received on revenues generated by loans that she processed for APR.

In September 2005, Lenzmeier failed to draft loan documents for a pending transaction in a timely manner, and her supervisor “struggled to process the documents” in time to complete the transaction. Lenzmeier was asked to train her supervisor on the procedure, but she refused the request, stating that “she was not being paid to train other workers.” On October 15, 2005, Lenzmeier was discharged for her refusal to train her supervisor.

Lenzmeier applied for unemployment benefits, and an adjudicator from respondent Department of Employment and Economic Development determined that she was not discharged for employment misconduct, noting that “[a]lthough [Lenzmeier] may have used poor judgment in her refusal to train the manager,” the refusal did not amount to employment misconduct.

APR appealed the adjudicator’s decision to an unemployment-law judge (ULJ), who reversed the adjudicator, finding that Lenzmeier was discharged for “refusing to perform a reasonable instruction within what had been her normal job duties.” The ULJ found that “it is apparent that there were any number of tasks . . . that were expected to be performed by whomever was in the office and could do so without specific regard to the nature of their compensation.” Thus, because Lenzmeier’s “income . . . was dependent in part upon the overall efficiency of the office,” the ULJ reasoned, “it was unreasonable for her to refuse to assist a supervisory employee in learning office procedures.” Lenzmeier moved for reconsideration of the ULJ’s decision, and the ULJ affirmed his earlier determination. This certiorari appeal follows.

D E C I S I O N

Lenzmeier argues that her refusal to train her supervisor was reasonable and therefore not misconduct. On review of a ULJ’s decision, this court may affirm, remand for further proceedings, reverse, or modify the decision. Minn. Stat. § 268.105, subd. 7(d) (2006). Whether an employee’s acts constitute misconduct is a mixed question of fact and law. Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002). The ULJ’s factual findings regarding an employee’s acts are entitled to deference, and this court will affirm unless, in relevant part, the findings are unsupported by substantial evidence in view of the entire record or the decision was affected by an error of law. Id.; see Minn. Stat. § 268.105, subd. 7(d). Whether the acts constitute misconduct is a question of law, which we review de novo. Schmidgall, 644 N.W.2d at 804.

There is no dispute that Lenzmeier was discharged. An employee who is discharged is entitled to unemployment benefits unless the employee was discharged for employment misconduct. Minn. Stat. § 268.095, subd. 4 (2004). Employment misconduct is any intentional, negligent, or indifferent conduct (1) that displays clearly a serious violation of the standards of behavior the employer has a reasonable right to expect or (2) that displays clearly a “substantial lack of concern for the employment.” Minn. Stat. § 268.095, subd. 6 (2004).

As an initial matter, Lenzmeier argues that the ULJ’s findings of fact are clearly erroneous because it was the company’s practice to require an employee who receives training from another employee to pay the trainer for that training. This was not raised at the evidentiary hearing, and the ULJ, therefore, made no findings on the claim. Indeed, although Lenzmeier testified at the evidentiary hearing regarding the training that she herself received, she did not testify that she paid to be trained or that she expected to be paid for training that she offered to other employees. Further, Lenzmeier testified that APR’s chief executive officer had been “very helpful” in teaching her without stating that she compensated the chief executive officer for the training. And APR’s chief executive officer testified that there is “an ongoing policy within [APR] that every individual in every role trains other employees as they grow.”

The record shows that Lenzmeier first claimed that the company’s practice was to require employees to compensate their trainers in her request for reconsideration. The ULJ affirmed his earlier order without addressing the claim. And Lenzmeier does not allege that the ULJ erred by failing to reopen the record in light of the claim. See Minn. Stat. § 268.105, subd. 2(c) (Supp. 2005) (providing that the ULJ shall not consider new evidence on a request for reconsideration unless an additional evidentiary hearing is required because the new evidence (1) would likely change the outcome, and there was good cause for not previously submitting it or (2) would show that evidence submitted was likely false and that the false evidence had an effect on the decision). Consequently, we do not consider it on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (noting that an appellate court may not base its decision on matters outside the record and may not consider evidence not introduced in the proceeding below).

The ULJ determined that Lenzmeier was “essentially [discharged] for refusing to perform a reasonable instruction within what had been her normal job duties.” An employer has the right to expect that its employees will obey reasonable requests. Vargas v. Nw. Area Found., 673 N.W.2d 200, 206 (Minn. App. 2004), review denied (Minn. Mar. 30, 2004). It is therefore well accepted that an employee’s refusal to obey an employer’s reasonable request is misconduct. Soussi v. Blue & White Serv. Corp., 498 N.W.2d 316, 318 (Minn. App. 1993).

Lenzmeier argues that her refusal to train her supervisor was reasonable because the request would have “required [her] to provide unpaid services to the employer.” The ULJ determined that even though Lenzmeier was not compensated for the time she spent training other employees, “[h]er income . . . was dependent in part upon the overall efficiency of the office, and it was unreasonable for her to refuse to assist a supervisory employee in learning office procedures.” We agree. To perform their duties, all employees have to be trained in office procedures, and there are common tasks, as the ULJ noted, that are shared among employees for the benefit of the entire office. Lenzmeier herself testified that she received on-the-job training and assistance from APR’s chief executive officer.

We agree with the ULJ that APR’s request that Lenzmeier train her supervisor was reasonable. Thus, her refusal to obey that request was employment misconduct, and she is, consequently, disqualified from receiving unemployment benefits.

Affirmed.