Sally K. Silva, Relator, vs. Meadow Creek, Inc., Respondent, Department of Employment and Economic Development, Respondent.

Sally K. Silva, Relator, vs. Meadow Creek, Inc., Respondent, Department of Employment and Economic Development, Respondent. A05-2191, Court of Appeals Unpublished, August 8, 2006.

This opinion will be unpublished and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

A05-2191

 

 

Sally K. Silva,

Relator,

 

vs.

 

Meadow Creek, Inc.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

 

Filed August 8, 2006

Affirmed

Willis, Judge

 

Department of Employment and Economic Development

File No. 1217605

 

 

Sally K. Silva, 640 11th Street Southwest, #4, Pine City, MN 55063 (pro se relator)

 

Meadow Creek, Inc., 1706 University Avenue West, St. Paul, MN 55104-3614 (respondent)

 

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

 

 

            Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Relator challenges the determination of the unemployment law judge (ULJ) that she committed employment misconduct.  Because evidence supports the ULJ's findings, and we see no error in the determination, we affirm.

D E C I S I O N

Relator Sally Silva worked for respondent Meadow Creek, Inc., as a chemical-health technician.  Driving clients in respondent's van was a major part of her job.  She was discharged after incidents on February 22, 2005, when she was seen speeding; on April 2, 2005, when she was reported to be speeding and tailgating; and on July 5, 2005, when she damaged the van by colliding with a post in a garage.

She applied for benefits.  A department adjudicator determined that she had been discharged "for reasons other than employment misconduct."  Respondent appealed.  After a telephone hearing, an unemployment law judge (ULJ) found 

that [relator] struck an immovable object which had been there when she parked the van and that at the very least this was an episode of careless operation of the employer's motor vehicle.

 

While this conduct is merely negligent, it is not simply a single isolated incident without substantial adverse impact on the employer.  [Relator] had been warned about careless driving behavior twice in the preceding six months.  Under the circumstances this was employment misconduct.

 

Relator requested reconsideration, and the ULJ affirmed the previous findings and decision.

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.  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). 

            Respondent's expectations of its employees with regard to their driving conduct were set forth in its "RULES FOR DRIVERS."  These included:

1.         Drive conservatively and cautiously.  Never take any chances.  Remember that our vans do not accelerate, stop, or turn as easily as your family car.

 

2.         Observe ALL traffic laws.

 

. . . .

 

14.       . . . Vans have very poor visibility to the rear, so whenever possible park in such a manner that when you leave again you will not need to back up.  If you must back up, look for obstacles behind the vehicle before you get in.  Look again using the back windows and rearview mirror before starting the vehicle in motion.  Because of the poor visibility, you should always back up as slowly as possible.

 

            The first incident occurred when respondent's facilities manager saw respondent's van, driven by relator,  speed past him on the freeway.  He testified:

I was driving down the freeway . . . and I did see [relator] fly by me . . .  going very fast. . . . I was even afraid to try to keep up with her so I did not.

 

. . . .

 

She passed me quite quickly, and she kept on going way ahead of me.  I was going with the . . . flow of traffic, so if my speedometer [was] off, I would have to guess that everyone else's was off also . . . .

 

Relator's supervisor was informed about the incident.  She prepared a memo for relator's file that read:

This memo serves as written documentation of our conversation on February 28, 2005, regarding using excessive speed while transporting clients. 

 

For your safety and the safety of residents driving policies need to be enforced.

 

Should this happen again, consequences will happenup to and including termination of your employment.

 

Relator agreed that she had received this warning memo from her supervisor, and she did not deny speeding when she testified about the incident.  In a letter to respondent's CFO, she said the report of this incident was probably accurate.

            The second incident occurred when respondent received a call about relator's driving.  The van bore a phone number that people could call to report on how the van was being driven.  A caller reported that "[relator] was tailgating in center lane, for 1 1/2 miles, traveling at a paced speed of 70 mph in a posted 55 mph zone."  Relator was suspended for a day, and her supervisor prepared another memo for the file.

This memo serves as written documentation of our conversation on April 20, 2005, regarding using excessive speed and tailgating while transporting clients. 

 

For your safety and the safety of residents driving policies need to be enforced.  This is the second incident of reported unsafe driving practices.  Further reports of unsafe driving practices will not be tolerated.  Should this happen again, your employment . . . will be terminated.

 

When she testified about this incident, relator said that she did not think the called-in report was reliable, that she had not been on the freeway where the caller said she was speeding and tailgating, and that she "didn't think [she] was speeding." But in her letter to respondent's CFO, she said that "this [called-in] report said I was going 70 in a 55 and since I admittedly was not exactly sure then where the [speed] zone changes were within the city limits, I guess I can not confirm or deny it."

Respondent's CFO testified that:

[T]here's no reason why someone driving down the street would just randomly decide to report somebody for unsafe driving . . . so I had to believe that there was a high probability that that report was accurate. . . .  [W]e've had a number of [reports called in], sometimes they report positive driving, sometimes negative driving, but we don't have any reason to believe that they're not accurate.  . . .  Sometimes the details, you know, people don't have exactly right, the highway they're on or whatever, but by and large, the behavior, we believe, is being reported as accurate.

 

            The third incident resulted in more than $1,000 in damage to respondent's van.  Relator was asked to write up an account. 

[T]here were support beams in the parking area. . . . I proceeded to look left and right several times and I began backing up.  I was barely moving (speed-wise).  I cranked the wheel to the right so I could back out and all of a sudden, wham, the mirror and the front quarter panel caught the pole and stopped us. . . .

 

She testified that "I evidently should have known where that pole was because I'm the one who put the vehicle there, but in my defense I'll tell you, the van was parked in a certain position. . . . [W]hen I walked around to get in the driver's side, I probably should've [seen] that pole, but I didn't."

Relator did not comply with respondent's policy for drivers in that she failed to obey the speed limits and did not back up slowly and carefully.  Refusing to comply with an employer's reasonable policy can be misconduct.  Bray v. Dogs & Cats Ltd. (1997), 679 N.W.2d 182, 184 (Minn. App. 2004).  The ULJ's determination that relator committed misconduct was not erroneous.

During the hearing, relator said the third incident "was absolutely caused by my inattentiveness" but made no other reference to her attentiveness.  In her request for reconsideration and in her brief on appeal, she said she suffered from a significant attention deficit disorder that was the cause of all her errors in driving.  But the ULJ was not free to consider this new argument or the evidence supporting it.  See Minn. Stat. § 268.105, subd. 2 (c) (Supp. 2005) ("In deciding a request for reconsideration, the unemployment law judge shall not . . . consider any evidence that was not submitted at the evidentiary hearing conducted under subdivision 1.").  Because the ULJ did not consider this evidence, this court also is barred from considering it.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that this court does not consider material not presented to and considered by the previous decision-maker).

            We see no error in the determination that relator was discharged for misconduct.

Affirmed.