Herbert L. Carter, Jr., Appellant, vs. Minnesota Automobile Assigned Claims Bureau, et al., Respondents.

Annotate this Case
This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-98-1078

Kenny Peterson,

Relator,

vs.

American Commercial Security Services, Inc.,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed November 24, 1998

Affirmed

Harten, Judge

Department of Economic Security

Agency File No. 1814UC98

Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner)

Kenny Peterson, 5807 Shores Drive, Minneapolis, MN 55429-2414 (relator pro se)

American Commercial Security Services, Inc., c/o The Gibbons Company, Inc., P.O. Box 3930, Des Moines, IA 50322-3930 (respondent employer)

Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Harten, Judge.

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

HARTEN, Judge

Relator challenges the decision of the representative of respondent Commissioner of Economic Security holding that relator is not entitled to reemployment insurance benefits because he committed misconduct when he left a job site after being told to remain there to speak to his supervisor. We affirm.

FACTS

Relator Kenny Peterson began working as a security officer for respondent American Commercial Security Services, Inc. (ACSS) in March 1996. Although he had received sixteen scheduled hours of on-the-job training to work at the site of ACSS client Dayton-Hudson, complaints or adverse comments about him led ACSS to schedule him for additional training before permitting him to work alone at the Dayton-Hudson site.

When relator arrived at the site, he found another security officer assigned to work the same shift. Relator called his field coordinator, who told him about the additional training and directed him to remain on the site so that the field coordinator could come and talk to him. Relator responded angrily and left the site before the field coordinator arrived. A phone message that relator left for the field coordinator's supervisor was lengthy and agitated; it said that ACSS should accommodate relator and fire the field coordinator. Relator was terminated the next day in accord with ACSS policy that walking off a job site is a terminable offense.

Relator applied for reemployment insurance benefits. A Department of Economic Security (DES) adjudicator viewed relator's walking off the job as a consequence of a "misunderstanding" and held that relator was not disqualified from receiving benefits. ACSS appealed. Following a hearing, a reemployment insurance judge reversed, finding that relator had committed misconduct when he ignored his supervisor's instructions and left the site--ACSS, not relator, had the right to decide if relator needed additional training. Relator appealed that decision, asserting for the first time that he had received permission to leave from the on-site supervisor. The commissioner's representative affirmed, and relator challenges that affirmance.

D E C I S I O N

The determination of the commissioner that an employee committed misconduct is a mixed question of fact and law. A reviewing court will affirm if the findings of fact "are not without support in the evidence" and if "the conclusion on those facts is not contrary to the statutory mandate." Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).

Minn. Stat. § 268.09, subd. 12 (Supp. 1997), defines misconduct as intentional conduct showing a disregard of, among other things, the standards of behavior that an employer has the right to expect of the employee. An employer has a right to expect that an employee scheduled to work a shift will remain at the work site when told to do so by a supervisor. The commissioner's representative found that relator "clearly violated the standards of behavior the employer had a right to expect of [relator]." Sivertson v. Sims Sec., Inc., 390 N.W.2d 868, 871-72 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986), upheld a commissioner's finding of misconduct when a security guard, knowing that leaving a job was a terminable offense, left his post. "We must defer to factual findings by the Commissioner's representative which are reasonably supported by the record." Id. at 871. The commissioner's representative found, and relator does not dispute, that relator was told to remain and that he left.[1] The record here, like that in Sivertson, reasonably supports the finding that relator was lawfully discharged for misconduct.

Affirmed.

[1]Relator's claim that he had permission to leave is not properly before this court. The claim was never before the reemployment insurance judge, and the commissioner's representative decided not to remand for additional evidence. See Minn. Stat. § 268.105, subd. 3(b) (Supp. 1997) (providing that the commissioner may either make findings and a decision on the basis of the evidence submitted to the reemployment insurance judge or remand for additional evidence). The record before this court consists of "[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any * * *." Minn. R. Civ. App. P. 110.01. That record includes no evidence of relator's alleged permission to leave.