Jane B. Lease, Relator, vs. Lawrence B. Carlson, Respondent, Commissioner of Employment and Economic Development, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-724

Jane B. Lease,

Relator,

vs.

Lawrence B. Carlson,

Respondent,

Commissioner of Employment and Economic Development,

Respondent.

Filed May 4, 2004

Affirmed

Lansing, Judge

Department of Employment and Economic Security

File No. 18691 02

Jane B. Lease, 2063 Jade Street, Mora, MN 55051 (pro se relator)

Lawrence B. Carlson, Suite 123, 7101 Northland Circle North, Minneapolis, MN  55428-1517 (respondent)

Lee B. Nelson, Katrina I. Smith, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN 55101 (for respondent Commissioner)

            Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Jane Lease appeals, by writ of certiorari, from a determination that she is disqualified from receiving unemployment benefits because she was discharged for employee misconduct for repeated violations of established employment policies on personal phone calls and smoking breaks.  The evidence as a whole reasonably sustains the decision of the commissioner's representative that Lease's violation of the policies constituted employment misconduct within the meaning of Minn. Stat. § 268.095, subd. 6(a) (2002), and we affirm.

            Woodland Development Corporation, a real estate development company owned by Lawrence Carlson, employed Jane Lease as a bookkeeper from December 1997 until October 2002.  Because the number of phone lines in the office was limited, Woodland implemented a phone-use policy that required employees to keep personal calls at a minimum and of brief duration.  In the summer of 2002, the company also instituted a policy of restricting smoking breaks to one in the morning and one in the afternoon. 

The company president testified that Lease consistently violated the policies restricting personal phone calls and limiting smoking breaks.  The president warned Lease in May 2002 that her excessive personal phone use was affecting her work and that she was on a zero-tolerance policy for personal calls.  The president also told Lease that the company owner had instructed that if Lease continued to accept personal phone calls her employment would be terminated.  Two weeks later, on June 12, the president again warned Lease about two personal calls made during working hours on that day and taking four smoking breaks in addition to her lunch hour.

During the week of October 16, 2002, while reviewing tax files with the company president, Lease received a personal call.  The next day the president verified with the receptionist that Lease's husband regularly called one to three times a day and that Lease sometimes took three smoking breaks in the morning plus one to two in the afternoon.  Woodland terminated Lease's employment.

A department of economic security adjudicator denied Lease unemployment benefits.  On appeal to an unemployment law judge, Lease disputed that she made excessive outgoing calls and testified that she only received incoming personal calls, including emergency calls.  She testified that despite being instructed to report emergency calls to Woodland's president, she did not.  Woodland's receptionist testified that leading up to Lease's termination, she was receiving one to three personal calls a day, none of which were identified as emergency calls.  The unemployment law judge reversed the denial of benefits, finding that Lease's violation of Woodland's policies was unsatisfactory conduct, but not intentional.

On further appeal by Woodland, the commissioner's representative reversed, concluding that the employer's requests of Lease were reasonable, that she repeatedly failed to comply with them, and that her repeated violation of policies and procedures evinced an intent to ignore her duties and obligations to the employer or the standards of behavior the employer had the right to expect.  The commissioner's representative concluded that Lease's actions constituted employment misconduct and disqualified her from receiving unemployment benefits.  Lease appeals by writ of certiorari.

D E C I S I O N

A person who is discharged for employment misconduct is not entitled to receive unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Employment misconduct is "any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee's duties and obligations to the employer."  Minn. Stat. § 268.095, subd. 6(a)(1) (2002).  Employment misconduct is also "negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment."  Id., subd. 6(a)(2). 

            Whether a former employee is disqualified from receiving unemployment benefits is a mixed question of law and fact.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  The determination of whether an employee committed a particular act or a series of acts is a question of fact.  Tilseth v. Midwest Lumber Co., 295 Minn. 372, 375, 204 N.W.2d 644, 645-46 (1973).  Whether that act constitutes employment misconduct is a legal question.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).

An employee's deliberate refusal to comply with an employer's request constitutes misconduct "if the request of the employer is reasonable and does not impose an unreasonable burden on the employee."  Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985); see also Gilkeson v. Indus. Parts & Serv., Inc., 383 N.W.2d 448, 452 (Minn. App. 1986) (employee's tendency to ignore employer's directions and requests demonstrated disregard for employer's interest and constituted misconduct).

Woodland's written telephone policy stated that because of the limited number of phone lines in the office, personal calls were to be kept to a minimum and of brief duration during working hours.  Lease maintains that receiving personal phone calls was not a deliberate violation because she immediately terminated incoming calls if the calls were personal.  Woodland's receptionist testified that Lease received one to three personal phone calls a day that did not appear to be emergency calls and were not reported as emergency calls.  When Woodland's president was discussing tax issues with Lease the meeting was interrupted by a nonemergency personal call.

The evidence reasonably supports the determination by the commissioner's representative that Lease's excessive telephone use is a violation of an employment policy.  Because the employer has a right to expect compliance with this policy, Lease's actions constitute misconduct.  At a minimum, her violation of Woodland's phone policy amounted to indifferent conduct demonstrating a lack of concern for her employment. 

The commissioner's representative based his determination of misconduct on Lease's violations of Woodland's policy limiting phone calls and its policy restricting smoking breaks.  Lease objects to any reliance on a violation of the smoking-break policy because it was not separately raised at the hearing.  The evidentiary hearing before the unemployment law judge is a fact-gathering hearing.  Minn. Stat. § 268.105, subd. 1(b) (2002).  Lease's personnel file contained notes indicating that she took four to five smoking breaks a day, significantly in excess of Woodland's policy and that she had been warned in June 2002 about excessive smoking breaks.  These exhibits formed part of the record before the unemployment law judge and the commissioner's representative, and the commissioner's representative may rely on the documentary evidence.  Ginsberg v. Minn. Dep't of Jobs & Training, 481 N.W.2d 138, 143 (Minn. App. 1992), review denied (Minn. Apr. 9, 1992).  Substantial evidence in the record as a whole reasonably supports the decision of the commissioner's representative on both bases, and we affirm.  

            Affirmed.