Tina M. Sorenson, Relator, vs. Life Style, Inc., 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This opinion will be unpublished and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 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1505

Tina M. Sorenson,

Relator,

 

vs.

 

Life Style, Inc.,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed June 15, 2004

Reversed

Randall, Judge

 

Department of Employment and Economic Development

File No. 7634 03 

 

Peter B. Knapp, Michael Miller, Certified Student Attorney, William Mitchell College of Law, 875 Summit Avenue, St. Paul, MN 55105 (for relator)

 

Mark Carver, Dow Einhaus Mattison & Carver, 202 North Cedar, P.O. Box 545, Owatonna, MN 55060 (for respondent Life Style, Inc.)

 

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

           

            Considered and decided by, Hudson, Presiding Judge, Randall, Judge, and Forsberg, Judge*.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            Relator challenges the commissioner's representative's finding that she was discharged for employment misconduct and disqualified from receiving unemployment benefits.  The record shows that relator was discharged because of domestic disputes in her home, which the commissioner's representative specifically found not to constitute employment misconduct.  Relator is entitled to unemployment benefits.  We reverse.

FACTS

Relator Tina Sorenson began working as a resident property manager for respondent Life Style, Inc., in August 2001.  Relator was paid an hourly wage for maintenance, responding to resident complaints, and activities like coordinating painting or cleaning crews or showing townhomes for lease.  Relator also received the use of a townhouse in the Horizon Heights Townhomes complex, of which she was the manager. 

            During the time that relator worked as the resident property manager, a number of issues came to Life Style's attention.  Relator failed to pay a security deposit on time, and failed to pay her garage rent on time for several months.  Life Style served relator with different eviction notices for failure to pay these amounts, but she ultimately paid them and retained her position and her townhouse.  In January 2002, relator's husband committed an act of domestic assault against her, and she sought an order for protection against him.  Relator's husband moved out of the townhouse, but the couple later reconciled, and he returned to the home.

            On January 21, 2003, relator's supervisor, Dan Appel, performed an on-site review at Horizon Heights.  He noticed some problems, including the fact that relator did not have a home telephone connected in her townhouse.  On February 26, Appel performed another on-site review.  He noted that relator still did not have a home telephone, although he had told her to obtain one a month earlier.  He told relator that it was very important that she obtain a home telephone so that she would be available to residents and company management 24 hours a day in case of emergency.  Appel left relator a written warning that if she did not have a telephone installed in her townhome by March 3, she may face termination. 

            On March 3, Appel received a call from the mother of a Horizon Heights resident reporting that the police had been called to relator's home for a domestic disturbance on March 1.  Appel called relator and told her "that in light of that, in light of the phone situation and other issues that [he] had noted it wasn't gonna work out" and terminated her employment as resident manager.  Appel sent relator and her husband a letter stating that relator was terminated as resident manager due to:

Inability to pay garage rent per Lease. 

 

Inability to maintain a telephone in [her] residential unit.

 

Police visits regarding domestic situations at your home.  [Emphasis in original.]
 

            Relator applied for unemployment benefits and was denied.  Both an unemployment law judge and the commissioner's representative affirmed the denial of benefits, finding relator committed employment misconduct by failing to obtain a home telephone as directed by her employer.  As relator points out, the commissioner specifically found that the police visits to relator's home were a landlord/tenant issue and did not constitute employment misconduct.  This certiorari appeal follows.

D E C I S I O N

            The commissioner's determination that an employee is disqualified from receiving unemployment benefits for reasons of misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).    While this court defers to the commissioner's findings of fact if reasonably supported by the record, whether an employee's acts constitute misconduct is a question of law on which we are free to exercise our independent judgment.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). 

            An employee discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (2002); Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  An employee's acts constitute employment misconduct if they are intentional and show a deliberate disregard for the standards of behavior the employer has a right to expect or the employee's duties and obligations to the employer.  Minn. Stat. § 268.095, subd. 6(a) (2002); Houston v. Int'l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002). 

            Here, the commissioner found that relator committed employment misconduct by failing to obtain a home telephone as directed by her employer.  But the record shows that relator had a cellular phone to which some residents had access, that residents were able to contact relator in person at her home, and that realtor took the cordless phone from the management office home with her during off-hours and could be reached that way.  Relator's supervisor could not think of an occasion in which it took relator a long time to return phone messages or when she was unavailable in an emergency.  The day that the employer called relator to tell her she was being let go, the employer called her on the phone.  The record is clear that relator was intent on getting a home phone, but because of her husband's credit problems, which she told her supervisor about, she would not be able to obtain a home phone for approximately one week, between February 6 and March 3.  This is not egregious conduct on relator's part.

Certainly, the employer's request to relator to obtain a home phone was not unreasonable.  But on these facts, relator's failure to do so within a short time frame simply did not constitute employment misconduct.  The record does not show it materially affected her ability to perform her responsibilities.  The record does not show a deliberate disregard for the employer's expectations.   See Houston, 645 N.W.2d at 149 (stating that conduct must not only be intentional, but must also show a deliberate disregard for the employer's expectations). 

In examining the termination letter, we have to agree with relator that the "phone issue" is a pretext and that respondent Life Style discharged her because of domestic disturbances in her home. 

Relator's domestic disturbance problems were a reasonable issue for Life Style to look at.  Any employer can expect that a resident property manager will refrain from engaging in conduct on the property that requires police attention.  But, the commissioner's representative specifically stated that the "domestic disturbances by [relator's] husband do not constitute employment misconduct on her part."  Thus, since we affirm the commissioner's representative's conclusion that the domestic disturbance issue was not grounds to deny unemployment compensation, we have to reverse the commissioner's representative's conclusion that relator committed employee misconduct by reason of not having a home phone in a narrow time frame.  Rather, the record shows conclusively that relator's domestic disturbance issues were the reason she lost her job and was denied benefits.

The domestic disturbance police calls to relator's home do not constitute employment misconduct and do not disqualify relator from receiving unemployment benefits.

Reversed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.