Susan Wahl Storbeck, Relator, vs. ACS Enterprise Solutions, Inc., Respondent, Department of Employment and Economic Development, Respondent.

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Susan Wahl Storbeck, Relator, vs. ACS Enterprise Solutions, Inc., Respondent, Department of Employment and Economic Development, Respondent. A06-271, Court of Appeals Unpublished, January 16, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-271

 

Susan Wahl Storbeck,
Relator,
 
vs.
 
ACS Enterprise Solutions, Inc.,
Respondent,
 
Department of Employment and Economic Development,
Respondent.

 

Filed January 16, 2007

Affirmed

Wright, Judge

 

Department of Employment and Economic Development

File No. 14786 05

 

 

Susan W. Storbeck, 2111 25th Street South, St. Cloud, MN  56301 (pro se relator)

 

ACS Enterprise Solutions, Inc., P.O. Box 283, St. Louis, MO  63166 (respondent)

 

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

 

 

            Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Wright, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Relator challenges the decision by the unemployment law judge affirming his earlier decision that relator was discharged for employment misconduct and, therefore, is disqualified from receiving unemployment benefits.  We affirm.

FACTS

            Since March 1982, relator Susan Storbeck worked as a data administrator for ACS Enterprise Solutions, Inc. (ACS).  Each year, ACS requires employees to take an ethics exam.  On August 31, 2005, Storbeck was discharged for refusing to take the ethics exam.  Storbeck applied for unemployment benefits, and a Department of Employment and Economic Development (department) adjudicator determined that Storbeck was discharged for employment misconduct and, therefore, disqualified from receiving unemployment benefits.

Storbeck appealed, and a telephonic hearing was held before an unemployment law judge (ULJ) on October 26, 2005.  Peggy McKevitt from ACS's human-resources department appeared on behalf of ACS.  McKevitt testified that, in April 2005, ACS issued a memo to all employees advising that the annual ethics exam would be available online and that "it was mandatory for all employees to take the exam, and they had until August 31 to do so."  To take the online exam, an employee was required to read workplace scenarios and answer questions about ethical workplace behavior.  After learning that Storbeck was refusing to take the exam, McKevitt contacted Storbeck on August 26 and advised her that the exam was a "requirement" of her employment.  In response, Storbeck stated that she was not taking the exam because ACS was unethical.  In a letter to McKevitt, Storbeck detailed her complaints and described her work environment as "very hostile, very unhealthya very sick culture."  Storbeck's letter concluded: "If ACS can give me some assurance that things will CHANGE, that things will IMPROVE[,] . . . I'll reconsider taking the Ethics Exam.  But until that time, to even consider taking this exam is simply too hypocritical." 

When McKevitt spoke with Storbeck on August 31, she advised that Storbeck's letter had been submitted to the ethics office.  McKevitt testified that she informed Storbeck that ACS would address her ethics complaints.  McKevitt again advised Storbeck that she needed to take the ethics exam and warned that Storbeck would be terminated if she failed to do so.  When Storbeck responded that she would not take the ethics test, McKevitt confirmed Storbeck's position and told her, "[Y]ou need to leave today."  McKevitt testified that, had Storbeck taken the test on August 31, Storbeck "definitely" would have remained employed and her concerns would have been investigated. 

Storbeck testified that she had taken the exam in past years but that in 2005 "someone had to draw a line in the sand and say this, this type of treatment of our people has to stop."  According to Storbeck, the only thing she could do was "not take this test and try to bring this information to light."  On August 29, when she received an email reminder to complete the exam from another ACS employee, Storbeck responded by sending a copy of the letter she had sent to McKevitt to explain why she was not going to take the test.    

On October 28, 2005, the ULJ issued his findings of fact and order.  The ULJ determined that Storbeck's refusal to take the ethics exam despite repeated requests was a refusal to comply with a reasonable request of ACS and that she was discharged for employment misconduct.  After granting Storbeck's request for reconsideration, the ULJ affirmed his earlier decision.  This certiorari appeal followed.

D E C I S I O N

When reviewing the decision of a ULJ, we may affirm the decision, remand the case for further proceedings, or reverse or modify the decision if the substantial rights    of the relator 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) (2006).[1]

            Whether an employee committed employment misconduct is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether the employee committed a particular act is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  The ULJ's factual findings are viewed in the light most favorable to the decision, Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996), and will not be disturbed when substantial evidence supports them, Minn. Stat. § 268.105, subd. 7(d)(5).  Because credibility determinations are the exclusive province of the ULJ, they are accorded deference on appeal.  Munro Holding, LLC v. Cook, 695 N.W.2d 379, 384 (Minn. App. 2005).  Whether the act committed by the employee constitutes employment misconduct is a question of law, which we review de novo.  Scheunemann, 562 N.W.2d at 34. 

Employment misconduct is "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."  Minn. Stat. § 268.095, subd. 6(a) (2004).  But "a single incident that does not have a significant adverse impact on the employer" is not employment misconduct.  Id.; see Pierce v. DiMa Corp., 721 N.W.2d 627, 630 (Minn. App. 2006) (holding that single violation of employer's cash-register policy that does not involve theft or mishandling money and has no adverse impact on employer is not employment misconduct); Skarhus v. Davanni's Inc., 721 N.W.2d 340, 344 (Minn. App. 2006) (holding that cashier's single incident of theft from employer of items of minimal value has significant adverse impact on employer and constitutes employment misconduct because it undermines employer's ability to assign essential job functions to employee).  An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2005). 

An employer has a right to expect its employees to abide by reasonable instructions and directions.  Vargas v. Nw. Area Found., 673 N.W.2d 200, 206 (Minn. App. 2004), review denied (Minn. Mar. 30, 2004).  When an employer makes a reasonable request that does not impose an unreasonable burden on its employee, an employee's refusal to comply with the request constitutes employment misconduct.  Id.; Soussi v. Blue & White Serv. Corp., 498 N.W.2d 316, 318 (Minn. App. 1993); Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985).  A knowing violation of an employer's directives, policies, or procedures also constitutes employment misconduct because it demonstrates a substantial lack of concern for the employer's interests.  Schmidgall, 644 N.W.2d at 804.

Storbeck does not claim that ACS's request that she take the ethics exam was unreasonable.  Rather, she argues that her refusal to take the ethics exam does not constitute employment misconduct because it was a single incident that occurred on August 31 and had no adverse impact on ACS.

The ULJ found that Storbeck "repeatedly" refused to take the ethics exam, which "was more than a . . . [s]ingle incident."  Our review of the record establishes that this finding is supported by substantial evidence.  Indeed, Storbeck admitted that, in response to ACS's requests that she take the ethics exam, she sent a copy of her letter explaining the reason for refusing to take the exam to McKevitt on August 26 and to another ACS employee on August 29.  And the record includes a document prepared by Storbeck in which she describes her letter as "outlining precisely why [she] refused to take this year's exam."  Contrary to Storbeck's argument, it is evident from her words and actions that, even she considered her earlier communications with ACS regarding the exam to be refusals.  When the ULJ's findings are viewed in the light most favorable to the decision, there is substantial evidence to support the finding that Storbeck's refusals to take the ethics exam were not a single incident of employment misconduct. 

            Storbeck also argues that she was never given notice that her failure to take the ethics exam would result in immediate termination of her employment.  Storbeck's argument is unavailing for two reasons.  First, the law does not require a warning before an employee can be terminated for employment misconduct.  See Auger v. Gillette Co., 303 N.W.2d 255, 257 (Minn. 1981) (stating that warning was not essential to demonstrate employees acted in willful disregard of employer's interest).  Second, the ULJ's findings that "McKevitt told Storbeck that taking the exam was a requirement of her employment" and that this statement was not "ambiguous to any degree" are supported by McKevitt's testimony.

Finally, although Storbeck argues that she refused to take the ethics exam to call attention to ACS's hypocritical and unethical corporate practices, the ULJ correctly reasoned that Storbeck's rationale does not alter the determination that she refused to comply with a reasonable request of ACS.  And while Storbeck claims that the ULJ's characterization of Storbeck's behavior as "insubordinate" is erroneous in light of her years of outstanding service to ACS, the term accurately describes her refusal to comply with ACS's reasonable directive.  See Daniels v. Gnan Trucking, 352 N.W.2d 815, 816-17 (Minn. App. 1984) (holding that employee's refusal to unload cargo when required to do so was single, deliberate act of insubordination constituting employment misconduct).

Because each refusal to take the ethics exam was intentional conduct that displayed clearly Storbeck's refusal to comply with ACS's reasonable request, her actions do not constitute a single incident under Minn. Stat. § 268.095, subd. 6(a). Accordingly, the ULJ properly determined that Storbeck is disqualified from receiving unemployment benefits because she was discharged for employment misconduct.

Affirmed.


[1] This standard of review applies to decisions made by the ULJ on or after June 25, 2005.  2005 Minn. Laws ch. 112, art. 2, § 34.