Boyd D. Amsler, Jr., Relator, vs. Phoenix Medical Services, Inc., Respondent, Department of Employment and Economic Development, Respondent.

Boyd D. Amsler, Jr., Relator, vs. Phoenix Medical Services, Inc., Respondent, Department of Employment and Economic Development, Respondent. A06-1884, Court of Appeals Unpublished Decision, October 30, 2007.

This opinion will be unpublished and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
A06-1884
 
Boyd D. Amsler, Jr.,
Relator,
 
vs.
 
Phoenix Medical Services, Inc.,
Respondent,
Department of Employment and Economic Development,
Respondent.
 

 

Filed October 30, 2007

Affirmed

Stoneburner, Judge

 

Department of Employment and Economic Development

File No. 7357 06

 

Boyd D. Amsler, Jr., 4541 Colorado Avenue North, Crystal, MN 55422 (pro se relator)
 
Donald C. Willeke, Willeke & Daniels, 201 Ridgewood Avenue, Minneapolis, MN 55403 (for respondent employer)
 
Lee B. Nelson, Minnesota 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 Wright, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.

 

U N P U B L I S H E D   O P I N I O N

STONEBURNER, Judge

            Relator challenges respondent Department of Employment and Economic Development's decision that he was discharged from employment for misconduct, disqualifying him from receiving unemployment benefits.  Relator argues that the evidence shows that he was discharged before his employer became aware of his alleged misconduct and that the determination that he committed misconduct should be vacated.  Because the record supports respondent's determination that relator was discharged for misconduct, we affirm.

FACTS

Relator Boyd D. Amsler, Jr., was employed by respondent Phoenix Medical Services, Inc. (Phoenix), a medical supply and distribution company, as a director of operations from October 2, 2003, until Phoenix terminated his employment on April 5, 2006.  Amsler was responsible for overseeing the day-to-day operations of the company, including ensuring regulatory compliance and paying bills.

In March 2006, Amsler asked Phoenix's president and owner, Joan Nerz, to obtain a bank loan of at least $100,000 because he thought the company would not have enough funds to pay all of its bills.  On March 31, 2006, Nerz received a notice from the bank about changes made to Phoenix's checking account and business checking overdraft account.  Nerz, who thought that there should have been sufficient funds to cover the bills, became suspicious and went to the office on Saturday, April 1, to look at the company's financial records.  Nerz found evidence that Amsler had written Phoenix checks to himself without authorization or documentation, and she found receipts indicating that Amsler had reimbursed himself for the purchase of personal items.  Writing checks without supporting documentation violated Phoenix's policies and procedures.   

On Monday, April 3, 2006, Nerz questioned Amsler about her discovery and told him that the company would undergo an internal financial investigation.  On April 4, 2006, Nerz asked Amsler to attend a meeting the following day at 9:00 a.m.  Amsler said he might be sick and might not attend.  On April 5, Amsler sent Nerz an email stating he was sick and would not attend the meeting.  Nerz was unable to reach Amsler by telephone.  She emailed Amsler notifying him that he was discharged and sent a letter confirming his discharge.

Amsler applied to respondent Minnesota Department of Employment and Economic Development (DEED) for unemployment benefits.  DEED initially determined that Amsler was not discharged for misconduct and was eligible to receive benefits.  Phoenix appealed, and an unemployment law judge (ULJ) found that Amsler was discharged for misconduct and was therefore disqualified from receiving benefits.  Amsler requested reconsideration, and the ULJ affirmed.  This appeal by writ of certiorari followed.

D E C I S I O N

Amsler asserts that the record shows Nerz was not aware of any employment misconduct at the time she fired him, therefore the record does not support the ULJ's finding that he was discharged because of employment misconduct.  We disagree.

On certiorari appeal, this court may affirm the ULJ's decision, remand it for further proceedings, or reverse or modify it if the relator's substantial rights "may have been prejudiced because the findings, inferences, conclusion, or decision are . . . affected by . . . error of law" or "unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. § 268.105, subd. 7(d)(4), (5) (Supp. 2005).  Because in this case the ULJ's findings are supported by substantial evidence, Amsler's argument is without merit.

            Whether an employee committed 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."  Skarhus v. Davanni's Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).  This court reviews findings of fact in the light most favorable to the ULJ's decision, giving deference to the ULJ's determinations of credibility.  Id.  This court will not disturb the ULJ's factual findings when those findings are supported by substantial evidence.  Minn. Stat. § 268.105, subd. 7(d)(5); Skarhus, 721 N.W.2d at 344.  But whether an employee's act constitutes disqualifying misconduct is a question of law, which this court reviews de novo.  Schmidgall, 644 N.W.2d at 804.

            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).  Amsler argues that Phoenix was unaware of his misconduct when he was discharged on April 5, therefore his misconduct could not have been the reason for his discharge.  But Nerz's testimony about her investigation and findings prior to Amsler's termination shows that Phoenix was aware of Amsler's inappropriate use of company funds at the time of his discharge.  Nerz testified that Amsler "was terminated for theft of company funds and property."  The ULJ found Nerz's testimony credible.  "Credibility determinations are the exclusive province of the ULJ and will not be disturbed on appeal."  Skarhus,721 N.W.2d at 345.  Nerz's testimony was sufficient to support the ULJ's findings.  See Norman v. Rosemount, Inc., 383 N.W.2d 443, 445 (Minn. App. 1986) (stating that when an employer has a burden of proof to establish misconduct, the uncorroborated testimony of the employer is sufficient to meet that burden), review denied (Minn. May 22, 1986).

            Relying on outdated law, Amsler also contends that Phoenix failed to meet its burden of proving that Amsler's termination was for misconduct.  In 1999, the legislature changed the common law burden-of-proof requirements relating to the grant or denial of unemployment benefits.  1999 Minn. Laws ch. 107, § 40.  Employment misconduct is now determined by a preponderance of the evidence without regard to any common-law burden of proof.  Minn. Stat. §§ 268.069, subd. 2, .101, subd. 2(d), .105, subd. 1(b) (2004); Vargas v. Nw. Area Found., 673 N.W.2d 200, 205 (Minn. App. 2004).  Amsler also references Minn. Stat. § 268.10, subd. 1(b), although it is unclear how this law, which was repealed in 1996, would support his argument that his misconduct was unknown at the time of discharge. 

            Based on his assertion that Phoenix did not know about his alleged misconduct before terminating his employment, Amsler states in a footnote in his appellate brief that it is unnecessary for this court to determine whether his conduct was proper or improper, but implies that a determination that he committed theft cannot be made in the context of an unemployment hearing.  But whether or not Amsler is charged with and convicted of the crime of theft is irrelevant to a determination of whether he violated the standard of behavior that Phoenix had a right to reasonably expect of a general manager.  Nerz testified that Amsler's failure to provide supporting documentation for checks violated Phoenix's policies and procedures.  An employee's lack of "scrupulous adherence" to an employer's procedure for handling employer funds constitutes misconduct.  McDonald v. PDQ, 341 N.W.2d 892, 893 (Minn. App. 1984). 

Without citing any facts or authority, Amsler asserts that the determination that he committed misconduct should be vacated.  "[A]ssignment of error based on mere assertion and not supported by any argument or authorities . . . is waived . . . unless prejudicial error is obvious on mere inspection."  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).  Even if Amsler has not waived his argument, ample evidence exists in the record supporting the ULJ's findings that Amsler committed the acts in question and that those acts constituted employment misconduct. 

            Affirmed.