STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1237

Arnester T. Winans,

Relator,

vs.

Quality Building Maintenance,

Respondent,

Department of Employment and Economic Development,

Respondent

Filed July 17, 2007

Affirmed

Ross, Judge

Department of Employment and Economic Development

File No. 6345 06

Arnester T. Winans, 220 Center Street, Mankato, MN 56001-3936 (pro se relator)

Quality Building Maintenance, Inc., 2814 22nd Street Southeast, Rochester, MN 55904-5807 (employer)

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

Considered and decided by Peterson, Presiding Judge; Shumaker, Judge; and Ross, Judge.

U N P U B L I S H E D O P I N I O N

ROSS, Judge

Arnester Winans challenges an unemployment law judge’s decision that he is disqualified from receiving unemployment benefits because he was discharged from employment for misconduct. Winans challenges the credibility of his employer’s testimony that he failed to work his required hours, misrepresented the hours he worked, and stole client merchandise. Because we conclude that the unemployment law judge’s determination is supported by substantial evidence in the record, we affirm.

FACTS

Quality Building Maintenance, Inc., a janitorial-services provider, employed Arnester Winans as an overnight manager from March 2004 until April 2006. Winans worked primarily at Menards, one of Quality Building’s clients in Mankato.

Quality Building terminated Winans for his actions during a March 2006 shift. The company attributed its decision to Winans’s tardiness, misuse of the company’s time-reporting system, and theft by consumption of Menards food product. Quality Building also cited numerous complaints that Winans was not completing his work on time, in part due to his tardiness.

After his termination, Winans applied to the Department of Employment and Economic Development for unemployment benefits. The department denied benefits after concluding that Winans was discharged for employment misconduct, finding that Quality Building terminated Winans for not following time-keeping procedures and for falsely reporting the hours he worked. Winans appealed, and an unemployment law judge (ULJ) determined that Winans was discharged for employment misconduct. Winans requested reconsideration, and the ULJ affirmed. By writ of certiorari Winans challenges the ULJ’s decision.

D E C I S I O N

Winans asks this court to hold that he is not disqualified from receiving unemployment benefits. When an employer discharges an employee for employment misconduct, the employee is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1)(Supp. 2005). Employment misconduct is intentional, negligent, or indifferent conduct that displays clearly either “a serious violation of the standards of behavior the employer has the right to reasonably expect” or “a substantial lack of concern for the employment.” Id., subd. 6(a) (2004). Whether an employee engaged in employment misconduct presents 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 factual question, but whether the act constitutes employment misconduct is a question of law. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). We review factual findings in the light most favorable to the decision and will not disturb them as long as there is evidence that reasonably tends to sustain those findings. Schmidgall, 644 N.W.2d at 804. We will affirm a ULJ’s determination unless the decision derives from unlawful procedure, relies on an error of law, or is unsupported by substantialevidence. Minn. Stat. § 268.105, subd. 7(d)(3)-(5) (Supp. 2005). “Credibility determinations are the exclusive province of the ULJ and will not be disturbed on appeal.” Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 345 (Minn. App. 2006).

Winans argues that his employer failed to provide adequate proof to support its allegations. We note first that any one of the three alleged violations—failure to work as scheduled, falsifying hours actually worked, or stealing food items—would independently support the ULJ’s determination that Winans was discharged for employment misconduct and is disqualified from receiving unemployment benefits. See Schmidgall, 644 N.W.2d at 804 (stating that “refusing to abide by an employer’s reasonable policies and requests amounts to disqualifying misconduct”); Wichmann v. Travalia & U.S. Directives, Inc., 729 N.W.2d 23, 29 (Minn. App. 2007) (indicating that tardiness and falsification of timecard could establish employment misconduct); Pierce v. DiMa Corp., 721 N.W.2d 627, 630 (Minn. App. 2006) (recognizing that even “[a] single incident of theft by an employee is employment misconduct”); Skarhus, 721 N.W.2d at 344-45 (concluding that cashier’s single act of eating employer’s food without paying constituted employment misconduct); Evenson v. Omnetic’s, 344 N.W.2d 881, 883 (Minn. App. 1984) (concluding that continued tardiness after several warnings was disqualifying misconduct). The success of Winans’s appeal therefore depends on his challenge to the ULJ’s factual findings. Substantial evidence in the record supports the ULJ’s findings.

The ULJ concluded that Winans failed to work his scheduled hours of 9:30 p.m. to 5:30 a.m. during his March 29, 2006 overnight shift. The evidence supports the finding that Winans both arrived late and left early. Winans’s direct supervisor saw him arrive at Menards at 9:45 p.m. At 4:45 the next morning, the supervisor noticed that Winans’s van was gone from the store’s parking lot, and he could not find Winans inside. Quality Building’s computerized time-reporting system indicated that Winans’s arrival and departure times were 9:45 p.m. and 4:45 a.m., respectively.

Winans could not explain why the system displayed the time of arrival call at 9:45 p.m. But he testified that the schedule was from 9:00 p.m. until 5:00 a.m., and that he worked those hours. The dispute over whether the shift began at 9:00 or 9:30, or ended at 5:00 or 5:30, is of no consequence. The ULJ credited the testimony of Quality Building’s witnesses concerning the time of Winans’s calls and his arrival and departure. This testimony establishes that Winans did not work all the required hours under either schedule.

Winans also contends that it would have been impossible for him to have reported late and left early because Menards is a “locked-down facility,” meaning that an alarm would sound if he tried to enter or leave while the building was locked. But Quality Building’s owner testified that the building would have been unlocked when Winans arrived late at 9:45 p.m. and departed early at 4:45 a.m.

There was considerable evidence that Winans had been warned about tardiness previously. Winans’s supervisor and the operations manager testified that they had warned Winans about his tardiness at least weekly. The manager also testified that on many occasions he had to assist at the Menards store because of Winans’s tardiness. He testified that Winans was generally late by fifteen to thirty minutes and that Winans would then take another hour before beginning to work. The testimony establishes that Winans’s failure to work his required hours during his March 29 shift was not an isolated incident and that his ongoing tardiness had an adverse effect on Quality Building’s services.

The record also supports the ULJ’s finding that Winans misrepresented the hours he worked during the March 29 shift. Winans testified that he reported his time by cellular phone shortly after he arrived between 9:00 p.m. and 9:05 p.m. But Winans was aware that, under Quality Building’s policy, he was required to report his arrival and departure by using a Menards store phone rather than his cellular phone so that the caller-identification system would confirm the reporting employee’s actual presence in the store. Additionally, Winans reported leaving at 5:30 a.m., but his cellular phone number displayed at 4:45 a.m. and Winans could not explain the discrepancy. Winans’s knowingly improper use of his cellular telephone rather than a Menards telephone to report his hours bolsters the ULJ’s finding of falsification.

And the record supports the ULJ’s finding that Winans consumed Menards food product improperly without purchasing it. The ULJ heard testimony that Winans’s supervisor saw Winans in the closet eating beef jerky and noticed that a trash bin contained empty beef-jerky wrappers. Winans did not respond when his supervisor confronted him. Quality Building’s managers considered Winans’s behavior to be theft, and its owner testified that theft could jeopardize the company’s client relationships.

Winans admitted in testimony that he ate beef jerky without purchase. But he denied that it was theft because he claimed that the food had been left in the break area by Menards employees or customers and that Quality Building employees had permission to consume the food. The ULJ reasonably concluded that Winans’s explanation about the food was improbable and that Winans committed theft. Winans’s own testimony supports an inference that he had been committing similar thefts for the two years that he worked at Menards.

Deferring to the ULJ’s credibility determinations, we conclude that the ULJ did not err in deciding that Winans is disqualified from receiving unemployment benefits.

Affirmed.