Mustafa Adam, Relator, vs. Securitas Security Services USA, Inc., Respondent, Commissioner of Employment and Economic Development, Respondent.

Mustafa Adam, Relator, vs. Securitas Security Services USA, Inc., Respondent, Commissioner of Employment and Economic Development, Respondent. A05-1408, Court of Appeals Unpublished, May 30, 2006.

This opinion will be unpublished and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

A05-1408

 

Mustafa Adam,
Relator,
 
vs.
 
Securitas Security Services USA, Inc.,
Respondent,
Commissioner of Employment and Economic Development,
Respondent.

 

Filed May 30, 2006

Affirmed

Stoneburner, Judge

 

Department of Employment and Economic Development

File No. 18874 04

 

Peter B. Knapp, Anthony Kuehn, Certified Student Attorney, 875 Summit Avenue, St. Paul, MN 55105 (for relator)

 

Paul C. Peterson, William L. Davidson, Susan M. Stepaniak, Lind, Jensen, Sullivan & Peterson, P.A., Suite 1700, 150 South Fifth Street, Minneapolis, MN 55402 (for respondent employer)

 

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

 

            Considered and decided by Klaphake, Presiding Judge; Stoneburner, Judge; and Harten, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Relator challenges the senior unemployment-review judge's (SURJ) decision that relator was disqualified from receiving unemployment benefits because he was discharged for misconduct after engaging in inappropriate and insubordinate behavior toward his supervisors.  Because the SURJ's findings of fact are not clearly erroneous and we conclude that relator's conduct constituted misconduct, we affirm.

FACTS

 

Relator Mustafa Adam was employed as a security guard by respondent Securitas Security Services, USA Inc. from July 2, 2001, until November 21, 2004.  Securitas provides security services to residential apartment buildings.  The company's personnel handbook provides that "insubordination" and/or "derogatory behavior toward supervisory or management personnel" is grounds for immediate dismissal even on the first occurrence.  Relator testified that he was aware of this policy and that he understood what insubordination meant, but the term was not defined in the handbook or on the record. 

On November 16, 2004, relator's co-worker, guard Carrie Dillard, reported to Securitas supervisor Antre Stone that on November 15, she had denied a person without proper identification entry into the building she was guarding.  According to Dillard, relator overruled her and allowed the person to enter. 

Stone found relator outside one of the buildings and asked him about Dillard's allegation.  According to Stone, relator immediately jumped up in an "explosive" manner and shook his finger in Stone's face, and raised his voice.  Stone described relator's behavior as "aggressive" and stated that he found it threatening because no employee had ever acted like that.  Stone testified that relator then calmed down somewhat and later went with him to Dillard's post to discuss Dillard's allegations further.  Because of relator's initial reaction, Stone called in field supervisor Curvin Richards to be present for this discussion, but Richards did not arrive until the discussion was concluded.  Stone described the events to Richards.  Stone also filled out a disciplinary form and a two-page typewritten report giving his description of the events of that evening.[1]

On November 17, 2004, another incident occurred involving the same person who had entered the building on November 15 (Ali).  Richards and relator were present.  The testimony concerning what happened on November 17 varied significantly.  According to Richards, relator said he knew the person who was trying to enter, but refused to identify Ali to Richards and put his hands in Richards's face.  Ali called the police, and when they arrived, relator told the police that Ali had shown Richards appropriate identification.  Richards testified that this was a lie.  Richards wrote contemporaneous notes about this incident and prepared a disciplinary-counseling form to give to relator.  The SURJ credited Richard's testimony and found that "[relator] put his hands in the field supervisor's face and told him to find out the name of the individual himself.  [Relator] was insubordinate toward the field supervisor." 

Richards and Stone testified that on November 21, when they gave the disciplinary action forms to relator for his review and signature, relator "snatched" the forms out of Richards's hands, shook his hand in Richards's face, called the forms "bullst" and "stupid," and refused to sign an acknowledgement on the forms that he had read the report and that it had been discussed with him.  Relator testified that he does not remember using the words attributed to him, would not sign the forms because he disagreed with the descriptions of the incidents, and did not shake his hand in anyone's face.  The SURJ credited the testimony of Richards and Stone and found that relator "became angry and he was insubordinate toward the field supervisor" when he was given the forms to read and sign.  Relator was discharged for inappropriate behavior and insubordination toward supervisory personnel on November 21. 

            The SURJ concluded that an employer has the right to "expect its employees will be respectful and act appropriately toward its supervisory personnel.  The testimony of Securitas and [relator] conflicted.  However, Securitas provided the more credible testimony [relator] was insubordinate [based on the incidents of November 16, 17 and 21, as described in the SURJ's findings] and acted inappropriately when given disciplinary action reports."  The SURJ found that relator's "denial of acting inappropriately and being insubordinate toward the supervisory personnel is not credible."   The SURJ concluded that relator had committed disqualifying employment misconduct.  This appeal by writ of certiorari followed.

D E C I S I O N

 

            This court reviews the SURJ's findings of fact under a clearly erroneous standard.  See Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002) (stating that findings will not be disturbed if evidence reasonably supports them).  This court reviews the SURJ's findings, not those of the ULJ.  Winkler v. Park Refuse Serv., Inc., 361 N.W.2d 120, 123 (Minn. App. 1985).  We defer to the SURJ on factual matters as long as the record reasonably sustains them.  Lolling v. Midwest Patrol,545 N.W.2d 372, 377 (Minn. 1996).  And findings of fact are viewed in the light most favorable to the decision.  Risk v. Eastside Beverage, 664 N.W.2d 16, 19 (Minn. App. 2003).  This court's deference to the SURJ's findings of fact "extends to the [SURJ's] findings that are contrary to those of a [ULJ]."  Id. (citing Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995)). 

            Issues of law are reviewed de novo.  Lolling, 545 N.W.2d at 377.  "Whether an employee engaged in conduct that disqualifies the employee from unemployment benefits is a mixed question of fact and law."  Schmidgall, 644 N.W.2d at 804. The issue of whether an employee committed a particular act is a question of fact.  See Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  But whether an act constitutes employment misconduct is a question of law, which we review de novo.  Id. 

            A discharged employee is disqualified from receiving unemployment benefits if the conduct for which the individual was discharged constitutes employment misconduct as defined by the unemployment statute.  Minn. Stat. § 268.095, subd. 4(1) (2004).  "Employment misconduct" is defined by the statute to include "any intentional, negligent, or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment."  Id., subd. 6(a) (2004). 

Inefficiency, inadvertence, simple 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, [and] good faith errors in judgment if judgment was required . . . are not employment misconduct.

 

Id. "[T]he statutory definition of misconduct in effect at the date of discharge [i]s controlling" in the determination of whether a discharge was due to misconduct.  Brown v. Nat'l Am. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).

Relator contends that the SURJ's decision was wrong as a matter of law for three reasons.  First, he contends that it is unclear on what basis the SURJ determined that misconduct had occurred and argues that none of the incidents, standing alone, constitutes employment misconduct.  But the SURJ found that relator's conduct was insubordinate on each occasion and concluded that relator committed misconduct by being insubordinate on all three of the occasions. 

Relator next argues that raising one's voice to a supervisor is not misconduct as a matter of law under Minnesota cases and that this court must consider his supervisors' actions in provoking the incident.  Relator cites Tester v. Jefferson Lines, 358 N.W.2d 143 (Minn. App. 1984), review denied (Minn. Mar. 13, 1985), in which an employee shouted a profanity at a supervisor and attempted to block one of the employer's buses during a strike and attempts to distinguish relator's conduct from Tester's conduct by arguing that (1) his behavior was not as egregious or pejorative as the employee's behavior in Tester and (2) Tester is not controlling because "the activities in Tester were determined to be unprovoked, while in this case each outburst was preceded by provocative, personally emotional circumstances." 

The SURJ did not merely find that relator raised his voice on the three occasions.  The SURJ found that relator, in addition to raising his voice, shook his hand or finger in the supervisor's face on each occasion, that relator's behavior was threatening on at least one occasion, and that relator's behavior on each occasion was insubordinate.  We disagree with relator's assertion that the definition of insubordination is so broad as to be meaningless.  The SURJ's findings are supported by evidence in the record, and we have previously held that an employer has the right to expect nonviolent behavior from its employees.  Shell v. Host, Int'l, 513 N.W.2d 15, 17 (Minn. App. 1994).

Also, relator's arguments that he was somehow provoked into what he calls "outbursts" seems to rely on factual findings that the SURJ never made and that this court cannot make.  Relator appears to suggest that this court should simply accept his version of events in light of starkly conflicting testimony regarding those events.  But this court's role is not to make such findings or to resolve credibility issues or conflicts.  It is the fact-finder who weighs the evidence, determines credibility, and outlines the facts to be used in the misconduct determination.  Scheunemann, 562 N.W.2d at 34 (Minn. App. 1997); see also Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995) ("When the parties have presented conflicting evidence on the record, this court must defer to the [SURJ's] ability to weigh the evidence; we may not weigh that evidence on review.").  The SURJ specifically found relator's version of the incidents not credible.

Relator further asserts that "there is nothing in the record to demonstrate any adverse impact on the employer arising from any of the individual incidents."  But we conclude that insubordination toward supervisors has an adverse impact on the employer and note that relator was warned in the handbook that this employer would not tolerate insubordination.  We find no merit in relator's argument that because he was insubordinate to supervisors rather than customers there was no impact on the employer.

Relator cites Vargas v. Nw. Area Found., 673 N.W.2d 200 (Minn. App. 2004), review denied (Minn. Mar. 30, 2004), for the proposition that "in order for the refusal of a request to serve as the basis of misconduct, the request must be reasonable" and argues that his refusal to sign the corrective reports on November 21 was a refusal of an unreasonable employer request and was, therefore, not misconduct.  But the SURJ's findings about this incident reveal that the misconduct was not relator's refusal to sign the forms, but rather relator's angry reaction.

Finally, relator argues that, taken as a whole, his conduct does not constitute misconduct and that he did not have adequate warning that his conduct was insubordinate.  Previous warnings may be evidence of the deliberateness of an employee's acts based on a revealed awareness of a previously unknown standard.  See Brown, 686 N.W.2d at 333(stating that when a supervisor "tells an employee that certain employment conduct is inappropriate, the supervisor thereby reveals a standard of employment behavior").  But there is no authority for the proposition that a warning is required in all instances of misconduct or to establish the standard that an employer has the right to reasonably expect.  When the employee's conduct is sufficiently deliberate or intentional, even a single incident can be misconduct, thus negating the idea that warnings or counseling are a prerequisite in all situations.  See Ress v. Abbott Nw. Hosp., 448 N.W.2d 519, 524 (Minn. 1989) (stating that single incident of deliberate conduct may constitute misconduct).  Furthermore, the employer warned relator about his conduct by giving him the disciplinary reports on November 21, at which time relator engaged in further insubordination.  We conclude that relator's conduct constituted misconduct.

Affirmed.

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

[1] Relator's version of the events that night differed drastically from Stone's.  Relator testified that he did not become upset and that Stone pursued him for 1-2 hours about Dillard's allegations, following him around the building and trying to get relator to admit or acknowledge that others had been entering the building using Securitas IDs, a fact that relator disputed.  Relator also believed that Stone had prior knowledge that Dillard had acted derogatorily toward him, other employees, and residents, and that Dillard was falsifying reports.