Conrad J. Pedersen, Relator, vs. Omni Air International Inc., Respondent, Department of Employment and Economic Development, Respondent.

Conrad J. Pedersen, Relator, vs. Omni Air International Inc., Respondent, Department of Employment and Economic Development, Respondent. A06-2146, Court of Appeals Unpublished Decision, November 6, 2007.

This opinion will be unpublished and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
A06-2146
 
Conrad J. Pedersen,
Relator,

vs.

Omni Air International Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.
 
 

Filed November 6, 2007

Affirmed

Worke, Judge

 

Department of Employment and Economic Development

File No. 10962 06

 
Conrad J. Pedersen, One West Lake Street, #418, Minneapolis, MN 55408 (pro se relator)
 
Lee B. Nelson, Department of Employment and Economic Development, 1st National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101 (for respondent Department)

 

            Considered and decided by Ross, Presiding Judge; Kalitowski, Judge; and Worke, Judge.

 

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            Relator challenges the decision of the unemployment-law judge (ULJ) that he was disqualified from receiving unemployment benefits due to employment misconduct.  Because we conclude that the ULJ was justified in determining that relator was discharged for employment misconduct, we affirm.

D E C I S I O N

This court may affirm the decision of the unemployment-law judge (ULJ), remand the case for further proceedings, or reverse or modify the decision 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) (2006).  Findings of fact are viewed in the light most favorable to the ULJ's decision, and deference is given to the ULJ's credibility determinations.  Skarhus v. Davanni's Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).     

A discharge for employment misconduct results in disqualification from unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2005).  "Employment misconduct means 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" or "a substantial lack of concern for the employment."  Id., subd. 6(a) (2004).  Whether an employee committed a particular act is a fact question, but whether the act constitutes employment misconduct is a question of law, which this court reviews de novo.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).

            On June 29, 2006, relator Conrad J. Peterson and the other flight attendants were informed by the lead flight attendant that they were to meet in the hotel lobby (report to duty) at 12:30 a.m. on June 30.  Pursuant to respondent Omni Air International, Inc. (OAI) policy, flight attendants are prohibited from drinking within eight hours prior to reporting to duty, which meant that the crew was prohibited from drinking after 4:30 p.m. on June 29.  At 6:17 p.m. on June 29, the lead flight attendant learned that the computer system that handles crew-scheduling and -tracking information had been updated at 5:42 p.m. to show that the crew had been reassigned to another flight with a report time of 2:30 a.m.  Sometime between 6:17 p.m. and 6:30 p.m., the lead flight attendant found the crew in the hotel restaurant.  As she approached the table, she saw a carafe and wine glasses.  She reported to the base manager that she believed that the crew had been drinking, which would be a violation of the eight-hour rule.  The base manager, who was also present in the restaurant, did not witness the drinking so no further action was taken.  The crew boarded the flight as scheduled. 

            On July 5, 2006, the lead flight attendant reported her concerns regarding the drinking to OAI's human resources manager who commenced an investigation into the matter.  One flight attendant confirmed that she had consumed alcohol between 5:30 p.m. and 6:00 p.m. despite her report-to-duty time of 12:30 a.m.  Another flight attendant also admitted to consuming alcohol within the eight-hour period before her report to duty time, and stated that only one individual had checked the computer system prior to going to dinner and according to that individual, the computer system still showed that they were to report to duty at 12:30 a.m. 

            Relator also admitted to consuming alcohol between 5:30 p.m. and 6:00 p.m.; however, he informed the investigator that sometime between 5:00 p.m. and 5:15 p.m., he and another male flight attendant ran into the captain of another flight in the hotel lobby who informed them that their original flight was going to be delayed and they had been rescheduled to his flight.  The captain of the new flight informed the investigator that he did not recall having any type of conversation with two male flight attendants regarding any change to the report-to-duty times.  The only conversation the captain recalled having was with the lead flight attendant, which occurred at approximately 9:00 p.m. that evening.  On July 17, 2006, OAI discharged relator based on his admission that he had consumed alcohol within eight hours prior to when he was scheduled to report to duty. 

Relator argues that the ULJ erred in ruling that he was disqualified from receiving unemployment benefits because he was discharged for misconduct because of consuming alcohol within eight hours of reporting to duty, in violation of the employer's work rules and FAA regulations.  Relator's argument is based on the fact that (1) another ULJ ruled that a fellow employee who was discharged for the same reason arising out of the same incident had legally consumed alcohol and was not disqualified because their captain had informed them of a flight delay, extending the time in which they could consume alcohol; (2) the ULJ failed to address relevant facts and/or relied on company-supplied hearsay evidence; (3) the employer failed to provide subpoenaed information as required by the rules before the hearing, putting him at a severe disadvantage; (4) this event constituted a single incident without an adverse impact on the employer; and (5) he had never received a disciplinary action before.

These arguments, however, do not change the fact that appellant admitted to consuming alcohol between 5:30 p.m. and 6:00 p.m., which was within the eight-hour period before he was to report to duty.  The ULJ found that after a careful review of the record, relator knowingly consumed alcohol within eight hours of his originally scheduled report time; that at the time relator was drinking, he was still scheduled for a report time of 12:30 a.m.; and that because the computer system had not been changed until 5:42 p.m., there is no way the captain of the new flight could have known of the schedule change and notified relator of the new report time between 5:00 p.m. and 5:15 p.m.  The ULJ also found that the evidence presented by OAI "was more credible than [relator's] self-serving assertions and denials[,]" and we give deference to the ULJ's credibility determinations.  Skarhus, 721 N.W.2d at 344.  Based on the substantial evidence contained in the entire record, the ULJ was justified in determining that relator was terminated for employment misconduct.  Relator's conduct constituted a serious violation of OAI's company policy prohibiting the consumption of alcohol within eight hours prior to reporting to duty. 

            Affirmed.