Daniel L. Schilling, Relator, vs. Leader Supply and Building, Respondent, Commissioner of Employment and Economic Development, Respondent.

Daniel L. Schilling, Relator, vs. Leader Supply and Building, Respondent, Commissioner of Employment and Economic Development, Respondent. A04-849, Court of Appeals Unpublished, February 8, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-849

 

Daniel L. Schilling,

Relator,

 

vs.

 

Leader Supply and Building,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed February 8, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Department of Employment and Economic Development

File No. 17391 03

 

 

Daniel L. Schilling, 23319 200th Street, Long Prairie, MN 56347-5498 (pro se relator)

 

Leader Supply & Building LLC, Attn: Todd Emmons, P.O. Box 161, Garfield, MN 56332-0161 (respondent-employer)

 

Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, E-200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent-commissioner)

 

 

            Considered and decided by Shumaker, Presiding Judge; Randall, Judge; and Halbrooks, Judge.

 

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            Relator Daniel Schilling brings a certiorari appeal from the commissioner's representative's decision disqualifying him from receiving unemployment benefits because he was discharged for employment misconduct.  Schilling argues that the record does not support the commissioner's representative's decision that his failure to use the employer's computer system and unannounced absences from work constitute employment misconduct.  Schilling further argues that the record does not support a finding that he referred customers to other contractors capable of underbidding respondent, Leader Supply and Building, LLC.  Because the commissioner's representative's decision is reasonably supported by the record, we affirm.

FACTS

Relator Daniel Schilling worked for Leader Supply as a building salesman from March 17, 2003, to September 19, 2003.  Upon starting his employment, Schilling received an employee handbook that outlined Leader Supply's policies and practices. Specifically, the handbook stated that (1) all estimates must be done accurately using the employer's bid worksheets; (2) all quotes, estimates, and contracts must be created and kept on the employer's computer system; and (3) all appointments must be tracked and entered into the employer's computer system.  Additionally, the handbook explained that employees were required to provide two-weeks' notice for all non-emergency personal time off work.  Schilling signed a document acknowledging receipt of the handbook when hired. 

Schilling was terminated on September 19, 2003.  The decision to terminate Schilling's employment was made by Kevin McCormick (Schilling's immediate supervisor), Todd Emmons (the general manager), and Bill Wussow (the owner of Leader Supply).  Emmons testified that the decision was made because of Schilling's continued failure to follow company policy.  Specifically, Emmons testified that Schilling was terminated because he failed to use the employer's computer system for estimates, contracts, and appointment tracking.  Schilling was also overheard lining up "side work," referring customers to contractors other than Leader Supply who could do the required work at a cheaper rate. 

            When Schilling arrived at work the morning of September 19, 2003, his desk was cleaned out, his files were gone, and McCormick handed him a termination letter.  The letter did not provide any reasons for Schilling's termination. 

            Schilling was denied unemployment benefits because the stated reason for his termination was employment misconduct.  A department adjudicator initially determined that Schilling was discharged for reasons other than employment misconduct and Leader Supply appealed.  On December 29, 2003, a hearing was held before a department judge who reversed the adjudicator and determined that Schilling was terminated for employment misconduct.  Schilling appealed to a representative of the commissioner.  The commissioner's representative issued the final decision determining that Schilling was discharged for employment misconduct and, therefore, was disqualified from receiving unemployment benefits. 

            The commissioner's representative concluded that Leader Supply had the right to expect employees to follow company policies and that it was not unreasonable to ask Schilling to provide advance notice of absences.  Further, despite conflicting testimony, there was evidence that Schilling was lining up side work for Leader Supply's customers.  Because failure to follow company policies and lining up side work violated Leader Supply's reasonable expectations of Schilling's employment behavior, the commissioner's representative determined that Schilling was terminated for employment misconduct.  Schilling petitioned for writ of certiorari.

D E C I S I O N

            This court reviews the findings of the commissioner's representative rather than the findings of the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  On appeal, the findings made by the commissioner's representative are viewed in the light most favorable to the commissioner's representative's decision and where the evidence reasonably sustains the findings they should not be disturbed.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  Further, this court defers to the ability of the commissioner's representative to weigh conflicting evidence.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995). 

            An employee who is discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268. 095, subd. 4(1) (Supp. 2003).  Effective August 1, 2003, the statutory definition for employment misconduct was amended to provide:

Employment misconduct means any intentional, negligent, or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment.

 

Inefficiency, inadvertence, simply unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, good faith errors in judgment if judgment was required, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.

 

Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003).  Whether an employee committed the disqualifying misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  Whether the employee committed a particular act is a question of fact.  Scheunemann v. Radisson South Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether the act constitutes misconduct is a question of law which an appellate court reviews de novo.  Ress, 448 N.W.2d at 523.

            Schilling does not appear to contest the fact that he violated several of Leader Supply's employment policies.  Instead, he argues that the employment policies were inefficient and irrelevant.  In general, the rule "is that if the request of the employer is reasonable and does not impose an unreasonable burden on the employee, a refusal will constitute misconduct."  Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985); see Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002) (stating that refusing to abide by an employer's reasonable policies amounts to disqualifying misconduct.).

Schilling argues that he used the employer's computer system to track appointments and calculate estimates and bids when he was in the office.  However, because he lives 45 minutes west of the office, it was inefficient and unreasonable for the employer to expect him to enter information into the computer system in the morning and then drive in the opposite direction to make an appointment with a customer.  Schilling was repeatedly asked by McCormick, Emmons, and Wussow to comply with the policy regarding use of the employer's computer system.  On May 13, 2003, Emmons asked Schilling to use the employer's bid worksheet when selling a new project to a customer.  On May 19, 2003, and again on September 2, 2003, McCormick reminded Schilling to use the employer's computer system to track appointments and create estimate spreadsheets.  Finally on August 18, 2003, Wussow and Emmons spoke with Schilling about his continued difficulties in using the company computer system.  Whether or not it was inconvenient to Schilling as an employee, it was reasonable for Leader Supply to require Schilling to use the computer system and his repeated failure to do so constitutes employment misconduct.

            Schilling further asserts that his unannounced absences from work did not amount to misconduct under the statutory definition, stating that if he was absent from work, he was most likely on his way to a sales call.  But it is not unreasonable for an employer to require advance notice of absences and to expect an employee to regularly come to the office.  Further, Schilling was given a copy of the employer's handbook containing Leader Supply's policy regarding absences from work.  Schilling's continued difficulties in following Leader Supply's policy on absences from work constitute employment misconduct.

Schilling also argues that he did not line up "side work" and assist customers in locating contractors capable of underbidding Leader Supply for the same work.  He asserts that he helped customers who bought "materials only" packages locate other contractors and did this in an effort to accommodate Leader Supply's construction schedule and to satisfy the customer.  Further, because he continued to make money for Leader Supply, Schilling contends that his actions cannot be construed as misconduct.  Although the commissioner's representative acknowledged that there was conflicting testimony on this issue, there is sufficient evidence in the record to support the commissioner's representative's finding.  This court will defer to the credibility determinations of the commissioner's representative and the representative's ability to evaluate conflicting evidence.  Whitehead, 529 N.W.2d at 352.  Referring customers to other contractors who could perform the same services as Leader Supply for less money does constitute employment misconduct.

Affirmed.