Jerry A. Washington, Relator, vs. Dunwoody College of Technology, Respondent, Commissioner of Employment and Economic Development, Respondent.

Jerry A. Washington, Relator, vs. Dunwoody College of Technology, Respondent, Commissioner of Employment and Economic Development, Respondent. A04-864, Court of Appeals Unpublished, March 1, 2005. This opinion will be unpublished and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

A04-864

 

Jerry A. Washington,
Relator,
 
vs.
 
Dunwoody College of Technology,
Respondent,
 
Commissioner of Employment and Economic Development,
Respondent.

 

Filed March 1, 2005

Affirmed

Peterson, Judge

 

Department of Employment and Economic Development
 

Jerry A. Washington, 44 1/2 Division Street Southeast, Suite 58, Grand Rapids, MI  49503 (pro se relator)

 

 

Carl D. Crosby Lehmann, Gray Plant Mooty Mooty & Bennett, P.A., 500 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402-3796 (for respondent Dunwoody College of Technology)

 

 

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

 

            Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

Relator Jerry A. Washington challenges the decision by the commissioner's representative that he was disqualified from receiving unemployment benefits because he was discharged for employment misconduct.  We affirm.

FACTS

            Washington was employed by respondent Dunwoody College of Technology as a custodian from December 2001 until June 18, 2003.  Washington's supervisor was Facilities Director Bill Jordan.  Jordan and Washington lived in the same apartment building, and Jordan was also Washington's landlord.

            Washington is chemically dependent on drugs, including alcohol, marijuana, and cocaine.  Washington voluntarily received inpatient treatment in 1998 and 2002.  In March 2003, Washington was evaluated for chemical dependency in the mental-health department at Aspen Medical Group.  From April 9, 2003, through May 20, 2003, Washington canceled three out of five appointments at Aspen and failed to submit to a chemical-dependency reevaluation recommended by Aspen.

            After May 20, 2003, Washington began using alcohol one to three times a month, and he also used crack cocaine on June 1 and 15, 2003.  On June 15, 2003, Washington phoned Jordan and said that he would be late with the rent.  Jordan asked whether Washington was maintaining sobriety.  Washington admitted that he had relapsed that weekend but said that he had already talked to a human-resources employee about getting into a treatment program.  On June 15, Washington phoned Jordan's assistant to report that he would not be at work on Monday, June 16, because he needed to make phone calls and appointments to obtain treatment.  Washington phoned the assistant again on Monday, June 16, to report that he would miss work on Tuesday, June 17, for the same reason.  On June 17, 2003, Washington made an appointment for an assessment at a treatment center the following morning.

            Washington admitted that he lied when he told Jordan on June 15 that he had obtained permission from human resources to attend treatment.  Washington testified that he lied because he was afraid he might lose his job otherwise.  He testified that he knew that he needed to talk to human resources about obtaining treatment "because . . . that's part of formalities, you have to go, you have to get permission to go through proper formalities for obtaining treatment." [1]

            Washington did not contact human resources on June 16 or 17.  In the afternoon, on June 17, T.J. Shelton, a human-resources employee, phoned Washington, and Washington told her that he had an appointment for an intake interview at a treatment center the following morning.  Shelton instructed Washington to come to work after the intake interview.

            Washington was discharged from employment on June 18, 2003.  Jordan and Shelton informed Washington that he was being discharged for lying to Jordan about having contacted human resources about attending treatment and for using improper procedures to obtain time off to attend treatment.

Washington's claim for unemployment benefits was denied by an adjudicator for the Department of Employment and Economic Development.  Washington appealed to an unemployment law judge (ULJ).  Following an evidentiary hearing, the ULJ determined that Washington was discharged from employment for misconduct and affirmed the denial of benefits.  A commissioner's representative affirmed the ULJ's decision.  This certiorari appeal followed.

D E C I S I O N

            An employee discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Whether an employee has committed employment misconduct presents a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  The commissioner's representative determines the fact question of whether an employee committed the alleged acts of misconduct.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  The factual findings of the commissioner's representative are "viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed."  White v. Metro.  Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).  This court reviews de novo whether the employee's actions constituted employment misconduct that disqualifies the employee from receiving unemployment benefits.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

            Employment misconduct means "any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee's duties and obligations to the employer."  Minn. Stat. § 268.095, subd. 6(a)(1) (2002).[2]  To be intentional, the conduct must be deliberate and not accidental.  Houston v. Int'l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  There must also be a showing that the employee intended to violate the standards of behavior the employer has a right to expect.  Id. at 150.  "A single incident can constitute misconduct when an employee deliberately chooses a course of conduct that is adverse to the employer."  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 806 (Minn. 2002).

Employment misconduct that was a result of the employee's chemical dependency is still considered to be employment misconduct if the employee "has previously been diagnosed chemically dependent or had treatment for chemical dependency, and has failed to make consistent efforts to control the chemical dependency."  Minn. Stat. § 268.095, subd. 6(c) (2002). 

The evidence supports the commissioner's representative's finding that Dunwoody discharged Washington for missing work and for lying about getting permission to miss work to enter a treatment program.  Washington admitted that he lied when he told Jordan on June 15 that he had obtained permission from human resources to attend treatment and that he knew that he needed to talk to human resources about obtaining treatment "because . . . that's part of formalities, you have to go, you have to get permission to go through proper formalities for obtaining treatment."  Although Washington argues in his brief that he followed the proper procedure for obtaining time off to attend treatment, his testimony shows that he knowingly violated Dunwoody's policy regarding getting time off work to attend treatment.

Washington's conduct in missing work in violation of Dunwoody's policy and in lying constituted employment misconduct.  See Baron v. Lens Crafters, Inc., 514 N.W.2d 305, 307-08 (Minn. App. 1994) (dishonesty that is connected with employment may constitute misconduct); Montgomery v. F & M Marquette Nat'l Bank, 384 N.W.2d 602, 604 (Minn. App. 1986) (generally, an employee's "knowing violation of an employer's policies, rules, or reasonable requests constitutes misconduct"), review denied (Minn. June 13, 1986). 

The commissioner's representative concluded that Washington's conduct was the result of his chemical dependency, but that Washington's conduct met the requirements of Minn. Stat. § 268.095, subd. 6(c), and, therefore, the conduct was employment misconduct.   The evidence supports the commissioner's representative's findings that Washington received chemical-dependency treatment in 1998 and 2002, and then, after an evaluation for chemical dependency at Aspen in the spring of 2003, Washington canceled three out of five appointments, failed to submit to a recommended chemical-dependency reevaluation, and resumed using alcohol and cocaine.  Based on these findings, the commissioner's representative correctly concluded that Washington's conduct was employment misconduct.

The only witness who testified for Dunwoody was Human Resources Generalist Carter Nickolay.  Washington objects to Nickolay's testimony because Nickolay was not employed at Dunwoody while Washington was employed there.  At the evidentiary hearing, the ULJ noted that Nickolay lacked personal knowledge of the circumstances surrounding Washington's termination and that his testimony was based on documents in a human-resources file.  Under Minn. Stat. § 268.105, subd. 1(b) (2002), the commissioner may adopt evidentiary rules that do not conform to common-law or statutory rules of evidence, and under Minn. R. 3310.2922 (2003), the ULJ "may receive any evidence which possesses probative value, including hearsay, if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs."  This rule permitted the ULJ to receive Nickolay's hearsay testimony that was based on documents in Washington's human-resources file.

            Washington argues that the commissioner's representative erred in finding that he contacted Jordan's assistant on June 16 and 17 and that Shelton contacted Washington on June 18.  The record shows that Washington contacted Jordan's assistant on June 15 and 16 and that Shelton contacted Washington on June 17.  The erroneous dates are not prejudicial because they are irrelevant as to whether Washington followed proper procedure for obtaining time off work to attend chemical-dependency treatment and whether he lied about contacting human resources.  Nonprejudicial errors are not a basis for reversal.  See Minn. Stat. § 14.69 (2002) (stating grounds for reversal of administrative decision).

The commissioner's representative did not err in concluding that Washington was discharged from employment for misconduct.

            Affirmed.

*   Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The record does not contain a copy of Dunwoody's policy, but Carter Nickolay testified that the procedure is for the employee to notify human resources that he wants time off to attend a substance-abuse program and that this procedure is stated in the employee handbook.

 

[2] Minn. Stat. § 268.095 was amended effective August 1, 2003. 2003 Minn. Laws 1st Spec.  Sess. Ch. 3, art. 2, §§ 13, 20(g); see Minn. Stat. § 645.02 (2002) (providing that laws are effective as of August 1 of the year enacted unless otherwise specified).  Washington was discharged from employment on June 18, 2003, so the amendments do not apply to this case.  See Bray v. Dogs & Cats Ltd. (1997), 679 N.W.2d 182, 186 (Minn. App. 2004) (holding that the statutory definition in effect when the employee was discharged applies).