Sandy A. Beitsch, Relator, vs. Laidlaw Transit Services Inc., Respondent, Department of Employment and Economic Development, Respondent.
Annotate this CaseThis opinion will be unpublished and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
A04-2242
Sandy A. Beitsch,
Relator,
vs.
Laidlaw Transit Services Inc.,
Respondent,
Department of Employment and Economic Development,
Respondent.
Filed September 13, 2005
Affirmed
Randall, Judge
Department of Employment and Economic Development
File No. 7131 04
Sandy A. Beitsch, 78 East Tenth Street, Apt. 505, Saint Paul, MN 55101-2248 (pro se relator)
Laidlaw Transit Services Inc., 1717 West County Road C, Roseville, MN 55113 (for respondent employer)
Linda A. Holmes, Minnesota Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent department)
Considered the decided by Toussaint, Presiding Judge; Randall, Judge; and Willis, Judge.
U N P U B L I S H E D O P I N I O N
RANDALL, Judge
Relator challenges the decision by the senior unemployment review judge that he was disqualified from receiving unemployment benefits because he had been discharged for misconduct. Because the record reasonably supports the decision of the senior unemployment review judge that relator committed misconduct, we affirm.
FACTS
Relator Sandy Beitsch was terminated by respondent Laidlaw Transit Services (Laidlaw) for employee misconduct because relator was allegedly engaged in personal conversations and inappropriate conduct with passengers in violation of company policy. From September 1, 1998, to March 1, 2004, relator was employed as a driver with Laidlaw, a specialized transportation company for disabled people who cannot use public transportation. Relator was aware that Laidlaw had a company policy prohibiting conversations with a caller or rider that could be construed as personal in nature.
On February 27, 2004, operations manager Bill Kobett received a call from a rider who complained about an inappropriate conversation she had with relator. During that conversation, relator had taken the rider's hand and asked her to touch his thigh, stating that it was "as hard as the rail on the bus." Laidlaw investigated the complaint, and the rider stated that relator often discussed his physical condition and his relationships with women. The investigation revealed that another rider felt uncomfortable with conversations she had with relator. The rider stated that she felt uncomfortable because of relator's statements that she should leave her ex-husband and come to him, that he invited her to piano bars, that he would sing loudly, and when asked to stop these activities he would continue with them. During the investigation, relator admitted to respondent that he often engaged many riders in personal conversations and stated that he did not see anything wrong with it.
On March 1, 2004, respondent suspended relator from employment. Shortly thereafter, on March 8, respondent terminated relator's employment for employment misconduct. Relator established an account with the Department of Employment and Economic Development, and the department adjudicator determined realtor to be qualified to receive unemployment compensation. However, the unemployment law judge reversed this initial determination and denied relator's unemployment claim. That decision was affirmed by the senior unemployment law judge. This certiorari appeal followed.
D E C I S I O N
On appeal, we review the decision of the SURJ, not that of the ULJ, and give special deference to the SURJ's decision. Tuff v. Knitcraft Corp., 526 N.W.2d, 50, 51 (Minn. 1995). The determination of whether an employee committed a specific act of misconduct is a question of fact. Scheunemann v. Radisson South Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). We review findings of fact made by the SURJ in the light most favorable to the decision and will not reverse such findings if they are reasonably supported by the record. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996). But whether a specific act or acts constitute misconduct is a question of law, which we review de novo. Id.
An employee discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4 (Supp. 2003).[1] Employment misconduct is "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." Id., subd. 6(a).[2]
An employee who refuses to comply with an employer's reasonable policies and requests engages in employment misconduct, thus disqualifying himself from receiving unemployment benefits. Schmidgall v. Filmtec Corp, 644 N.W.2d 801, 804 (Minn. 2002). "A single incident can constitute misconduct when an employee deliberately chooses a course of conduct that is adverse to the employer." Id. at 806. When there is inconsistent testimony in the record, we defer to the credibility determinations of the SURJ. Heitman v. Cronstroms Mfg. Inc., 401 N.W.2d 425, 427 (Minn. App. 1987).[3]
Relator claims that his actions did not amount to employee misconduct, because he did not exhibit intentional, negligent, or indifferent conduct, and he did not display a substantial lack of concern for the employment. Also, he argues that his direct testimony should be credited over respondent's hearsay evidence.
Here, the SURJ reviewed the conflicting testimony and made several findings, including that (1) relator took a rider's hand and asked her to touch his thigh, stating that it was as hard as the rail on the bus; (2) relator engaged another rider in personal conversation, asking her to leave her ex-husband and come with him and inviting her to piano bars; (3) relator knew that failing to refrain from engaging in conversations with riders that could be construed as personal in nature would violate company policy and could result in termination; (4) and relator admitted that he engaged riders in personal conversation, and stated that he did not see anything wrong with it. Relator conceded that he had engaged in some personal conversations with riders even though he knew company policy prohibited it.
In viewing the SURJ's findings in the light most favorable to the decision, the evidence reasonably supports the findings. The SURJ fairly concluded that relator's actions constituted employment misconduct and that he was disqualified from receiving unemployment benefits.
Affirmed.
[1] This court includes the following footnote in all unemployment cases citing to Minn. Stat. § 268.095, subds. 1, 4, 7, and 8(a) (Supp. 2003): The revisor's office inadvertently substituted the term "ineligible for" for the term "disqualified from" in Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (Supp. 2003). See Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (2002) (using term "disqualified from"); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 11 (making other changes to Minn. Stat. § 268.095, subd. 1, but retaining term "disqualified from"); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 20(j), (k) (directing revisor to change the term "disqualified from" to "ineligible for" only in Minn. Stat. § 268.095, subd. 12, and then to renumber to Minn. Stat. § 268.085, subd. 13b).
[2] The statutory definition in effect at the time of the discharge is the definition that controls. See Brown v. Nat'l Amer. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).
[3] The statutory term for the decision-maker changed to SURJ as of August 1, 2004. 2004 Minn. Laws ch. 183, § 71.
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