Jerie Heille, Relator, vs. YMCA Greater Saint Paul, Respondent, Commissioner of Employment and Economic Development, Respondent.

Jerie Heille, Relator, vs. YMCA Greater Saint Paul, Respondent, Commissioner of Employment and Economic Development, Respondent. A04-1868, Court of Appeals Unpublished, August 9, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1868

 

Jerie Heille,

Relator,

 

vs.

 

YMCA Greater Saint Paul,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed August 9, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Department of Employment and Economic Development

File No. 16321 03

 

 

Jerie L. Heille, 1636 Selby Avenue, Apt. 2, St. Paul, MN 55104-6271 (pro se relator)

 

YMCA of Greater Saint Paul, 2125 East Hennepin Avenue, Minneapolis, MN 55413-1766 (respondent-employer)

 

Linda A. Holmes, Minnesota Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite #E200, St. Paul, MN 55101-1351 (for respondent commissioner)

 

 

            Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Shumaker, Judge.

 

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            Relator challenges the decision of the senior unemployment review judge that she was disqualified from receiving unemployment benefits because she was terminated for employment misconduct.  Relator argues that there was no evidence that she conducted her own graphic-design business during work hours.  Because the evidence supports the senior unemployment review judge's decision, we affirm.

FACTS

            Relator Jerie Heille worked for respondent-employer, YMCA of St. Paul, as a graphic designer from June 1, 1999, through August 25, 2003.  Heille was terminated on August 25, 2003, after she continued to work for outside clients on YMCA time, using YMCA equipment despite repeated warnings not to do so. 

Before March 2003, YMCA employees were permitted to do unpaid graphic-design work for outside clients during their breaks.  Because the YMCA had a very lenient policy regarding break time, management was unable to determine when the designers were on a break.  On March 10, 2003, Mary Beth Arthaud, Heille's supervisor, observed that Heille was working on an outside project during YMCA work time and was using her YMCA computer.  Heille was also observed working on two outside projects by a co-worker, Ann McKinnon.  After Heille left the room, Arthaud went to Heille's computer and saw that she was working on a project for the National Park Service, which was not a YMCA client.  Arthaud testified that she confronted Heille later in the day and informed her that "under no circumstances was she allowed to do work at the YMCA for paid clients."  Arthaud also requested that she be informed when Heille was on a break and was working on any personal projects. 

At a department meeting with the graphic-design staff one week later, Arthaud reiterated the YMCA policy that any personal work done by the designers had to be unpaid and done while on breaks.  Arthaud testified that she specifically recalled that Heille was present at this meeting.  McKinnon also testified that Heille was present at the meeting. 

            After the staff meeting, Heille was observed continuing to complete work for outside clients using YMCA equipment and time.  McKinnon testified that she found logo designs for a realtor (not a YMCA client) on the large laser printer in the office.  She further testified that she and Heille often spoke about outside graphic-design projects and that each had her own graphic-design business.  Bette Fenton, the vice-president of marketing and communications, testified that Heille continued to receive faxes as well as e-mails from outside clients while at work.

On August 14, 2003, Fenton and the vice-president of human resources met with Heille to discuss her continued use of YMCA equipment and work time to complete projects for outside clients.  At the meeting, Heille was again admonished to refrain from conducting her own graphic-design business while at work.  Specifically, she was told that if she continued to work for private clients using company time and equipment her employment would be terminated. 

            On August 21, 2003, two YMCA employees witnessed Heille working on non-YMCA projects.  The following day, Fenton was informed by the graphic-design staff that Heille was working on outside projects on company time.  Specifically, Heille was working for the Jewish Community Relations Council and had informed them to contact her at her work e-mail address.  Fenton also testified that Heille was repeatedly e-mailing her private clients despite the warnings regarding outside work by the YMCA management.  Heille e-mailed her own clients on August 14, 15, 18, 19, and 21 regarding private projects. 

            Heille was suspended on August 22, 2003, pending an investigation and later terminated on August 25, 2003.  The senior unemployment review judge determined that Heille was informed of the YMCA policy regarding outside work but continued to violate the policy.  Because she was discharged for employment misconduct, she was disqualified from receiving unemployment benefits. 

D E C I S I O N

            We review the commissioner's representative's[1] factual findings in the light most favorable to the decision, and we will not disturb those findings if the record reasonably tends to sustain them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  This court defers to the senior unemployment review judge's ability to weigh conflicting evidence and to make credibility determinations about proffered testimony.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  However, whether an employee's acts constitute misconduct is a question of law, which we review de novo.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

            An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.[2]  Minn. Stat. § 268.095, subd. 4 (Supp. 2003).  Employment misconduct is defined as "any intentional, negligent or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment."  Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003). 

            Heille essentially argues that the senior unemployment review judge erred in believing the testimony of Arthaud, McKinnon, and Fenton regarding her use of YMCA equipment and company time to complete projects for private clients.  Although Heille contests most of the factual assertions made by respondent-employer, she admits that "[t]he evidence and determination of who's telling the truth are what the case is all about." 

The evidence reasonably supports the determination that Heille continued to work on outside projects for private clients despite repeated warnings from her employer.  Arthaud testified that Heille was warned individually and at a staff meeting about conducting her private graphic-design business while at work.  Both Arthaud and McKinnon testified that Heille was present at the staff meeting where the use of break time to work for outside clients was discussed.  Despite Heille's presence at the meeting, the record contains numerous e-mails from Heille to the Jewish Community Relations Council as well as to a realtor, neither of which was a client of the YMCA.  Heille does not dispute that the e-mails occurred or that she worked for at least two private clients but argues that (1) much of her outside work was done for friends, and (2) she was on breaks when she did the work.  In fact, Heille testified that she continued to correspond with and work for her outside clients while at the YMCA.  Additionally, she admitted that she took multiple unscheduled breaks throughout the day in order to complete her outside work.  Heille was at least aware that working for paying private clients while at the YMCA was against her employer's policy. 

Further, Arthaud testified that she requested to be informed whenever Heille was working on outside projects.  Heille testified that she understood that Arthaud wanted to know "what I'm doing, you know, because she's the supervisor and I should just keep her apprised to what I'm up to, you know."  However, Heille failed to comply with her employer's reasonable request.  As a general rule, refusing to abide by an employer's reasonable policies and requests amounts to disqualifying misconduct.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Because Heille failed to comply with her employer's reasonable request and continued to work on outside projects despite repeated warnings, the evidence supports the senior unemployment review judge's determination that Heille was discharged for employment misconduct.

            Affirmed.

[1]  Effective with decisions issued after August 1, 2004, the statutory title of the individual conducting review proceedings under Minn. Stat. § 268.105, subd. 2, has been changed to "senior unemployment review judge."  2004 Minn. Laws ch. 183, § 71.

[2]  The revisor's office inadvertently substituted the term "ineligible for" for the term "disqualified from" in Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (Supp. 2003).  See Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (2002) (using term "disqualified from"); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 11 (making other changes to Minn. Stat. § 268.095, subd. 1, § 20(j), (k) (directing revisor to change the term "disqualified from" to "ineligible for" only in Minn. Stat. § 268.095, subd. 12, and then to renumber the subsection to Minn. Stat. § 268.085, subd. 13b).