George H. Kanany, Relator, vs. Walgreen Co., Respondent, Department of Employment and Economic Development, Respondent.

George H. Kanany, Relator, vs. Walgreen Co., Respondent, Department of Employment and Economic Development, Respondent. A05-655, Court of Appeals Unpublished, November 8, 2005.

This opinion will be unpublished and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

A05-655

 

 

George H. Kanany,

Relator,

 

vs.

 

Walgreen Co.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

 

Filed November 8, 2005

Affirmed

Toussaint, Chief Judge

 

Department of Employment and Economic Development

Agency File No. 177 05

    George H. Kanany, 6145 Carmen Avenue East, Inver Grove Heights, MN 55076 (pro se relator)

 

Walgreen Drug Co., c/o Talkucm Services Inc., P.O. Box 283, St. Louis, MO 63166-0283 (respondent)

 

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

 

 

            Considered and decided by Toussaint, Chief Judge; Lansing, Judge; and Dietzen, Judge.

U N P U B L I S H E D  O P I N I O N

TOUSSAINT, Chief Judge

 

             Relator George Kanany challenges the order of the senior unemployment review judge (SURJ) adopting the decision of the unemployment law judge (ULJ) that relator was not entitled to benefits because he had been discharged for misconduct.  Because the findings of fact are supported by the evidence, we affirm.

D E C I S I O N

            Relator worked for respondent Walgreen Co. from October 2003 until his discharge in November 2004.  When he was hired, he was informed of respondent's policies.  One policy required the investigation of every sexual harassment claim; another policy provided that employees who did not cooperate with these investigations could be terminated.

            About two weeks prior to relator's discharge, the store manager (SM) was told that another employee reported that relator had made inappropriate sexual remarks to her during a phone conversation.  The SM contacted a loss prevention supervisor (LPS) to investigate.  The LPS scheduled a meeting with relator.  At the meeting, relator refused to provide or verify any information, including his name and his social security number. 

            The SM explained to relator, in private, that he had 24 hours in which to decide to cooperate with the investigation, that he should go home and come back 24 hours later, and that his failure to cooperate would result in termination.  Relator then left the workplace and did not return.   He was notified that he had been discharged.

            Relator applied for unemployment benefits.  A department adjudicator determined that relator was not entitled to benefits because he was discharged for misconduct, and relator appealed. A ULJ, after conducting an evidentiary hearing, affirmed that determination.  Relator appealed again, and a SURJ, pursuant to Minn. Stat. § 268.105, subd. 2a(a) (2004), declined to conduct de novo review and issued an order adopting the ULJ's findings of fact and decision. Relator appeals from that order.

            Misconduct is defined as "any intentional, negligent, or indifferent conduct . . . (1) that "displays clearly" a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee . .  . ."  Minn. Stat. § 268.095, subd. 6(a) (2004).  A determination that an employee is not entitled to benefits for reasons of misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros. Inc., 346 N.W.2d 159, 161 (Minn. 1984).  However, whether an employee's acts constitute misconduct is a question of law that this court reviews de novo.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  This court will affirm the findings of fact as long as there is evidence that reasonably tends to support these findings.  White v. Metro Med. Ctr. 332 N.W.2d 25, 26 (Minn. 1983).            

            The ULJ found that:

[Relator] would not verify his name or his social security number with [the LPS].  He refused to answer any questions until he was told what the issue was.  [The LPS] then told him the issue had to do with improper remarks made during a telephone conversation.  [Relator] continued to refuse to answer any questions.

 

 

 The LPS testified that:

 I asked [relator] to verify his name, and he said you know my name.  And I said, well, I know what it says on the things here, but I need to verify your identity, and he said, no, what's the issue, I need to know what the issue is.  And he repeated that throughout the entire initial questioning.  He wouldn't answer any questions.  He would not confirm his social security number.  I asked, I said, well, is the information that is in the computer correct, and he said as far as I know it's correct in there.  And I said, well, I printed out a copy of the information that was in the computer and . . . I'll just go through these one at a time and you just confirm that this is correct, yes or no.  And he just kept saying what's the issue, what's the issue, no, I'm not telling you that, I already told you that, that's in the computer.  And it just went along that mode.  After he repeatedly kept asking what the issue was and continued to refuse to answer the questions regarding his identity, identifying information, I informed him there had been a complaint regarding comments he had made during a telephone conversation, and he said I never talked to anybody on the telephone, and that was about the only response he had.

 

            The SM testified, "It's unfortunate that the questioning was not allowed to take place.  What we were simply after was just [relator]'s answers to some of the questions and we never really got to ask any questions.  [Relator] just did not cooperate in answering any."  Thus, both the LPS and the SM provided testimony that supports the finding.

            Relator's own testimony also supports the finding that he did not cooperate.  He was asked why he wouldn't answer or verify his name and social security number, and answered, "I said to [the LPS] it's in the computer . . .  [and] what is the issue, I said."  Relator also testified that he had not cooperated because "[T]he whole atmosphere was fire.  . . . I feel the anger, I feel the guy [the LPS] he is not in balance with me. . . . I mean his mood was too bad . . . [and] was not controlled."  The ULJ found that, "Although [relator] testified that he was threatened and intimidated by [the LPS, the SM and the LPS] gave credible testimony that although there was frustration with [relator's] demeanor, at no time did the interview become hostile towards [relator]."  This court defers to the ULJ's credibility determinations, as adopted by the SURJ.  See Ress v. Abbott Northwestern Hosp., Inc., 448 N.W. 519. 523 (Minn. 1989) (this court defers to commissioner's findings of fact if they are reasonably supported by evidence in record). 

            Relator's conduct in refusing to cooperate with the investigation showed "a serious violation of the standards of behavior" respondent had a right to expect from him.  See  Minn. Stat. § 268.095, subd. 6(a).  The conclusion that relator committed misconduct is not contrary to the statutory mandate.  Moreover, refusal to abide by an employer's reasonable policies and requests amounts to misconduct. Schmidgall, 644 N.W.2d at 804.   Respondent's policy of requiring employees to cooperate with investigations of sexual harassment claims is reasonable.  Relator committed misconduct by refusing to cooperate. 

            Affirmed.