Milt Owens, Relator, vs. Olu's Home, Inc., Respondent, Department of Employment and Economic Development, Respondent.

Milt Owens, Relator, vs. Olu's Home, Inc., Respondent, Department of Employment and Economic Development, Respondent. A05-1976, Court of Appeals Unpublished, August 22, 2006.

This opinion will be unpublished and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

A05-1976

 

Milt Owens,
Relator,
 
vs.
 
Olu's Home, Inc.,
Respondent,
Department of Employment and Economic Development,
Respondent.

 

Filed August 22, 2006

Affirmed

Stoneburner, Judge

 

Department of Employment and Economic Development

File No. 8845 05

 

Milt Owens, P.O. Box 11325, Minneapolis, MN 55411 (pro se relator)

 

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

 

Olu's Home, Inc., P.O. Box 11665, Minneapolis, MN 55411-0665 (respondent-employer)

 

            Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Parker, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Relator challenges the determination of an unemployment-law judge (ULJ) that his employment was terminated for misconduct thereby disqualifying him from receiving unemployment benefits.  Because the record supports the ULJ's findings and the findings support the conclusion that relator was discharged for misconduct as that term is defined in the statute, we affirm.

FACTS

 

            Relator Milt Owens was a house manager for Olu's Home, Inc. (Olu's), from November 15, 2004, until his employment was terminated in May 2005.  Olu's operates residential facilities for developmentally disabled persons.  Owens managed two homes and reported directly to Gloria Freeman, Olu's executive director.  Candice Ellis was the program manager for the homes and a coworker of Owens.

            Freeman listed 10 examples of "violations regarding your management duties" in an email terminating Owens's employment: (1) taking off work without proper documentation, (2) falling asleep at meetings, (3) failure to complete monthly manager/supervisor sheets, (4) failure to complete mandatory forms needed for the clients, (5) delayed submission of timesheets, (6) failure of carrying programs for clients, (7) overage of Olu's cellular-phone bill on a consistent basis, (8) missing of clients' medical appointments, (9) losing company materials and property, and (10) abusive tone and language exhibited towards Freeman when she questioned Owens's whereabouts on company time. 

            Owens applied for unemployment benefits and was initially determined to be disqualified based on a finding that Owens was discharged for having left work without informing his employer.  Owens appealed the determination, arguing that he had informed his employer of his absence on the referenced occasion and that his position as an exempt employee allowed him the flexibility to make his own schedule.

            At the hearing, Freeman asserted that Owens was terminated for all of the reasons stated in the termination email.  Testimony was taken on all of the issues raised in the termination email without objection.  The ULJ determined that although Owens offered reasonable explanations for some of the reasons given for his termination, "a preponderance of the evidence nevertheless shows that Owens did engage in employment misconduct."  Specifically, the ULJ found that Owens refused to submit requested monthly documentation of his activities, failed to create a payment plan for his personal use of the business cellular phone, made unjustified use of flexibility he was allowed in his work hours, and was sleeping or "nodding" during several meetings.  Owens requested reconsideration, and the ULJ affirmed the disqualification.  This appeal by writ of certiorari followed.

D E C I S I O N

 

            The legislature has provided that this court may affirm the ULJ's decision, remand it for further proceedings, reverse, or modify it if

the substantial rights of the petitioner may have been prejudiced because the findings, inferences, conclusion or decision are:

(1)              in violation of constitutional provisions;

(2)              in excess of the statutory authority or jurisdiction of the department;

(3)              made upon unlawful procedure;

(4)              affected by other error of law;

(5)              unsupported by substantial evidence in view of the entire record as submitted; or

(6)              arbitrary or capricious.

 

Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005).[1]  Owens primarily contends that the ULJ's findings are not supported by substantial evidence in the record.

            Misconduct includes "any intentional, negligent, or indifferent conduct, on the job or off the job . . . 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).  Whether an employee's acts constitute misconduct is a question of law, which this court reviews de novo.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  But factual findings are reviewed in the light most favorable to the decision and will not be disturbed if there is evidence that "reasonably tends to sustain" them.  Id.

            Owens first argues that the ULJ's decision addressed issues not discussed in the initial determination of disqualification and that he was not prepared to discuss these additional issues at the hearing.  But Owens received the termination email from Freeman, which provided adequate notice that his termination included all of the reasons addressed at the hearing.  We find no merit in Owens's assertion that the initial disqualification determination limited the scope of the hearing before the ULJ.

            Owens argues that the ULJ made incorrect findings of fact, apparently based on the ULJ's having rejected Owens's version of the facts.  The record reveals that the testimony of Freeman and Ellis differed significantly from Owens's testimony.

            Freeman testified that Owens was expected to work a 40-hour week from nine o'clock to five o'clock, Monday through Friday, but his hours were not rigid because Owens was also expected to work any shift that needed coverage.  Owens testified that when he was hired, Freeman specifically agreed that Owens could make his own work schedule "as long as I did 50 hours a week." 

            Freeman stated that one of the reasons for Owens's termination was that he was not present at the homes when she called and that she was not able to locate him.  Owens agreed that he may not have been at the homes when Freeman called and that he did not always answer his cellular phone when she called.  He emphasized that his was a managerial position that did not require him to report his hours or whereabouts.  Owens testified that although he had to be at the homes for scheduled meetings and events, he was otherwise not required to be at the homes.  Owens testified that he did not report his work hours to Freeman or Ellis on a day-to-day basis but informed staff when he was not going to be available.  "Protocol was that if they called me and couldn't reach me for an emergency, to contact [Freeman] . . . . And if I wasn't available, I would call [Freeman] and let her know, hey, I wasn't going to be available on specific times, and you may get phone calls."  Owens testified that he was averaging 60 hours per week.  Freeman testified that she had no idea Owens was working that many hours per week, but Owens was never counseled about his work hours or location even though Freeman thought that he was not working sufficient hours or getting his work done. 

            Freeman and Ellis testified that all employees, including Owens, were expected to fill out a form requesting time off two weeks in advance and that Owens had not filled out such a form or made any prior request for time off when he announced to Freeman on May 1 or 2, 2005, that he would be taking the following Thursday and Friday off.  Owens testified that the two-week-notice provision did not apply to his position.  He stated "people take time off all the time at the management level, and all we need to do [is] just let [Freeman] know and find out if she can cover it."  He testified that Freeman agreed to his request for the two days off and that his practice on that occasion was not different from his usual practice.  Freeman testified that Owens announced, rather than requested, the time off, and that she never approved it.  Owens testified that Freeman asked him if he could change his plans for those two days, but he said no.

            Owens also agreed that he refused a request by Freeman to meet at 5 p.m. on May 2, 2005, because he had personal plans.  Owens testified that it was unusual for him to be at the homes at that time.  Owens acknowledged he had responsibility for certain things at the homes and stated that he met these responsibilities by assigning staff to perform the tasks or doing them himself when no staff was available.

            Freeman testified that on or about May 2, 2005, Owens left work without notifying anyone. Owens testified that after a confrontation with Freeman on that morning, in which Freeman had told him to "get out of her face," he left her office, ate lunch, and then left work because he was not feeling well.  Owens testified that he left a voice-mail message for Freeman saying that he was going home.  Freeman testified that she was not able to locate Owens after he left her office on that day.  The ULJ credited Freeman's testimony.

            "As a general rule, refusing to abide by an employer's reasonable policies and requests amounts to disqualifying misconduct."  Schmidgall, 644 N.W.2d at 804.  Based on the evidence in the record, with deference to the ULJ's credibility determinations, we conclude that there is substantial evidence to support the ULJ's finding that despite the flexibility in Owens's hours of employment, "[flexibility] simply does not justify all of Owens' conduct."  The evidence also supports the ULJ's conclusion that Owens's misuse of the flexibility in his scheduling was a serious violation of the standards of behavior that his employer had a right to reasonably expect.

            The ULJ also credited Freeman's and Ellis's testimony that Owens was sleeping or nodding off during several meetings with social workers and that Owens had been counseled about the inappropriateness of this behavior, despite Owens's denial that he ever slept or nodded off during any meetings.  The ULJ additionally credited Freeman's and Ellis's testimony that from the beginning of his employment Owens was supposed to, but failed to, submit monthly manager sheets about his activities.  Owens agreed that he did not submit the manager sheets but asserted that his job did not require him to do so.  Sleeping during meetings and failing to submit requested information further supports the conclusion that Owens's was discharged for misconduct. 

            Furthermore, the record clearly supports the ULJ's finding that Owens failed to pay for his personal use of the business cellular telephone, despite repeated requests from Freeman and despite having had adequate time to review telephone bills and develop a payment plan.  The ULJ correctly concluded that this conduct constituted misconduct. 

            Affirmed.

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

[1] In 2005, the legislature amended section 268.105.  See Minn. Laws ch. 112, art. 2, § 34.  The amendment applies to ULJ decisions issued "on or after 30 days following final enactment of this act."  Id.  The governor signed the act on May 26, 2005.  Id. at § 43.  In this case, the ULJ issued findings on July 22, 2005, which is more than 30 days after the final enactment.  As such, the amended statute applies.