Michael J. Harvey, Relator, vs. The Wackenhut Corporation (1995), Respondent, Department of Employment and Economic Security, Respondent.

Michael J. Harvey, Relator, vs. The Wackenhut Corporation (1995), Respondent, Department of Employment and Economic Security, Respondent. A05-299, Court of Appeals Unpublished, December 27, 2005.

This opinion will be unpublished and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

A05-299

 

Michael J. Harvey,

Relator,

 

vs.

 

The Wackenhut Corporation (1995),

Respondent,

 

Department of Employment and Economic Security,

Respondent.

 

Filed December 27, 2005

Affirmed Worke, Judge

 

Department of Employment and Economic Security

File No. 14206 04

 

Michael J. Harvey, 4020 Bellaire Avenue, Apt. 6, White Bear Lake, MN 55110 (pro se relator)

 

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

 

            Considered and decided by Willis, Presiding Judge; Worke, Judge; and Crippen, 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 by the senior unemployment review judge that he was discharged for employment misconduct and disqualified from receiving unemployment benefits because he refused to cooperate with an investigation into whether he had violated respondent-employer's sexual-harassment policy.  Relator argues that he had been laid off rather than terminated for misconduct; alternatively, that he quit for good cause; and that respondent-employer did not timely challenge his unemployment claim.  We affirm.

FACTS

            Relator Michael J. Harvey worked as a security officer for respondent The Wackenhut Corporation.  Wackenhut is a contract security business that provides security officers for its clients.  Wackenhut's policy prohibits any type of sexual harassment.  When relator was hired he watched a video on sexual harassment, took a test, and signed and received a copy of Wackenhut's sexual-harassment policy.    

            On February 20, 2004, Wackenhut received a complaint from one of its clients regarding allegations from two female employees who received a card and a poem from relator.  Wackenhut's client asked that relator be removed from his assignment.  Later that day, Carrie Pope, area supervisor, met with relator to discuss the allegations.  Pope asked relator if he knew the reason for the meeting and relator replied that he thought two employees had probably complained and that Pope may receive more complaints.  Relator explained that he had given cards to several women and that the women should have told him if they did not like them.  Pope showed relator the card and poem that were the center of the allegations.  Relator admitted to giving the card and poem, but insisted that there was nothing wrong with them.  Pope explained that the allegations amounted to a sexual-harassment complaint against relator and that he needed to submit a written response to the complaint.  Generally, in a situation of this nature, Pope would have requested a written response on the day of the initial meeting, however, relator asked to go home and prepare his statement.  Relator was put on unpaid administrative leave pending an investigation.   

            Relator called Pope on February 23, 2004, to set up a meeting to review his written response to the complaint.  A meeting was scheduled for the following day, but relator failed to appear.  Pope called relator and left a message for relator to come in to see her.  Relator called Pope two days later and left a message that he was planning on getting a haircut, but that he could come in that day if she wanted.  Pope left relator a message that it was fine if he could not make it in that day.  Pope left another message for relator on March 3, 2004, to meet with her right away.  Two days later, Pope called relator again and left another message for him to come in that day with his written statement or to call and schedule a meeting.  On March 8, 2004, Wackenhut received a letter from relator stating that he would respond to the allegations, but that he first required a written statement of the accusations because he could not, and would not, reply to a rumor or hearsay.   

            On March 15, 2004, John Bruce, area manager, sent a letter to relator scheduling a formal meeting for March 19, 2004, to discuss the allegations.  Relator failed to appear; instead, relator sent a letter indicating that he declined to participate.  Specifically, relator stated: "I'm under no obligation to provide any information until I receive a written complaint specifying an allegation, and the evidence that supports it. . . . In my view, no complaint yet exists.  Thus, a meeting . . . at present would be a waste of [Bruce's] time and my own."  On March 22, 2004, Bruce sent a letter to relator indicating that he would make a determination on the harassment complaint based on the facts he had.  Relator responded by letter that he would participate, but only after he received a written complaint.  Relator was terminated on April 7, 2004, for not responding to Bruce's request for a meeting.   

            The day before relator was terminated he applied for unemployment benefits and established a benefit account effective April 4, 2004.  Relator indicated that he had been laid off for reasons such as lack of work, seasonal or temporary layoff, elimination of his position, business closing, or plant shutdown.  On April 8, 2004, Wackenhut, as relator's last employer, received notice that relator had applied for unemployment benefits.  Wackenhut was instructed to provide additional information by April 19, 2004.  Wackenhut responded that relator was discharged for misconduct and that his last day of work was February 19, 2004.     

            On July 23, 2004, Wackenhut wrote to respondent Department of Employment and Economic Security (DEED) indicating that although Wackenhut's records indicated that they submitted a timely protest against relator's application for unemployment benefits, they had not received a determination of relator's eligibility and their account had been charged.  DEED then requested information from relator regarding the reason for his discharge.  Relator responded that on February 19, 2004, he was placed on administrative leave, that Wackenhut failed to abide by its disciplinary rules and procedures provided in its employee handbook, and that he had done nothing to warrant termination of his employment.   

            On September 9, 2004, a determination of nondisqualification was issued.  It was determined that relator was not disqualified from receiving unemployment benefits because he had been discharged when placed on administrative leave and that Wackenhut did not submit a timely response to a request for information.  The next day Wackenhut appealed, indicating that relator had been terminated for violating company rules and policies.   

            On October 5, 2004, an unemployment law judge (ULJ) conducted a telephone hearing.  Relator suggested that the card and poem were not objectionable and contained no sexual content.  Relator further challenged the allegations, stating that he "certainly did the poem and the card to the girls . . . [there was] no proof that [the girls] personally were offended."  Relator stated that he did not provide a written statement because he first wanted to see the results of an investigation because the allegations were ambiguous, i.e., Pope described relator's conduct as sexual harassment, but the complaint Pope received indicated only that employees were harassed by relator.  On October 22, 2004, the ULJ determined that relator's refusal to comply with Wackenhut's reasonable request to meet with a representative and provide a written statement constituted employment misconduct. Additionally, Wackenhut was under no obligation to provide relator with a written statement detailing the accusations against him because he was offered sufficient verbal information.   

            Relator appealed the ULJ's decision and the senior unemployment review judge (SURJ) issued a decision on January 20, 2005.  The SURJ found that relator had given a valentine and a romantic poem to women at his work site, that a harassment complaint had been filed, and that it was requested that relator be removed from his assignment.  Additionally, the SURJ found that relator was told about the complaint and was suspended without pay pending an investigation.  The SURJ also found that relator agreed to provide a written statement in response to the complaint after first going home to consider the matter, but that relator ultimately refused to meet with Wackenhut because he had not been provided with a statement of the accusations.  Finally, the SURJ found that Wackenhut protested the payment of unemployment benefits to relator on July 23, 2004, a determination of nondisqualification was mailed on September 9, 2004, and Wackenhut appealed that determination on September 10, 2004.  The SURJ decided that relator was discharged for employment misconduct and disqualified from receiving unemployment benefits.  This certiorari appeal follows.     

D E C I S I O N

Relator's refusal to meet with his employer constituted employment misconduct.

 

            Relator argues that not meeting with Wackenhut or providing a written response to the allegations did not constitute misconduct because he requested a written complaint from Wackenhut and did not receive it.  An employee discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2003).  "Whether an employee engaged in conduct that disqualifies the employee from unemployment benefits is a mixed question of fact and law."  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  The factual findings of the SURJ are "viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed."  White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).  But whether specific acts constitute misconduct is a question of law, which we review de novo.  Schmidgall, 644 N.W.2d at 804.

            Misconduct constitutes "intentional, negligent, or indifferent conduct . . . (1) that envinces 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).  As a general rule, if an employer's request is reasonable and does not impose an unreasonable burden on the employee, the employee's refusal to abide by the request constitutes misconduct.  Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985).  "What is ‘reasonable' will vary according to the circumstances of each case."  Id.         

            Here, relator's employment was terminated after he repeatedly refused to meet or to submit a written statement in response to harassment allegations.  "[A]n employee's intentional refusal to perform a task, as opposed to negligent forgetfulness, supports the commissioner's representative's decision that an employee committed misconduct."  Vargas v. Nw. Area Found., 673 N.W.2d 200, 207 (Minn. App. 2004), review denied (Minn. Mar. 30, 2004).  This court determined that an employee's intentional refusal to participate in a reasonable employment-performance plan constituted employment misconduct and disqualified the employee from receiving benefits.  Id. at 207.  In Vargas, after having agreed to complete a performance-improvement plan, the employee failed to complete any of the requirements of the plan.  Id. at 204.  The employer followed up with the employee, who refused to complete the plan.  Id.  Finally, after another unsuccessful meeting, the employer terminated the employee.  Id.  In ruling that the employee's conduct constituted misconduct, this court concluded that the employee's actions were both an intentional and a conscious disregard of his duties and obligations as an employee, thereby satisfying the statutory definition of "misconduct" then in effect under Minn. Stat. § 268.095 (2002).  Vargas, 673 N.W.2d at 206-07.

            In this case, relator was instructed on numerous occasions to meet and/or provide a written statement that was to aid Wackenhut in conducting an investigation into the harassment allegations.  Relator was first instructed to provide a written statement on the day he was informed about the allegations, but relator requested time to prepare.   Wackenhut attempted several times to schedule a meeting with relator or to obtain his written statement, but was unsuccessful because relator disregarded his obligation by not returning Wackenhut's calls, by scheduling a haircut instead of attending a meeting, and then by conditioning his written statement on first receiving a written statement of the allegations. 

            The SURJ noted that Wackenhut has a right to establish reasonable work rules and that Wackenhut had provided testimony that relator was given a sufficient verbal explanation of the allegations.  See Whitehead v. Moonlight Nursing Care, Inc. 529 N.W.2d 350, 352 (Minn. App. 1995) ("When the parties have presented conflicting evidence on the record, this court must defer to the Commissioner's ability to weigh the evidence; we may not weigh that evidence on review.").  Pope explained the nature of the allegations to relator and relator even suggested that Pope might receive more complaints because he had given cards to two other women.  Pope had copies of the card and the poem when she met with relator and discussed the inappropriateness of the contents.  At that time, relator had sufficient information in which to respond to the allegations.

            Relator testified during the telephone hearing that the card and the poem were not objectionable, contained no sexual content and challenged the allegations because he had no proof that the women were offended.  This is the information that relator could have included in his written statement.  Relator had all the information he needed after his initial meeting with Pope in which to form his arguments.  Wackenhut was under no obligation to meet relator's demand for a written statement of the allegations before relator would comply with their request for a written statement.  Wackenhut's request was reasonable and did not impose an unreasonable burden on relator.  Therefore, relator's refusal to abide by Wackenhut's request was an intentional and a conscious disregard of his obligation as an employee and constituted employment misconduct.  

Relator did not quit for good cause.

            Relator argues that he was not terminated, but rather that he quit for good cause. Under Minn. Stat. § 268.095, subd. 1(1) (2004), "[a]n applicant who quit employment shall be disqualified from all unemployment benefits . . .  except when: (1) the applicant quit the employment because of a good reason caused by the employer[.]"  Under Minn. Stat. § 268.095, subd. 3(a) (2004):

            A good reason caused by the employer for quitting is a reason:

                        (1) that is directly related to the employment and for which the employer is responsible;

                        (2) that is adverse to the worker; and

                        (3) that would compel and average, reasonable worker to quit and become unemployed rather than remaining in the employment." 

 

            "The standard of what constitutes good cause to quit is whether the reason was compelling, real and not imaginary, substantial and not trifling, reasonable and not whimsical or capricious."  Trego v. Hennepin County Family Day Care Ass'n, 409 N.W.2d 23, 26 (Minn. App. 1987) (quotation omitted).   Good reason caused by the employer "embraces situations where employees, through no fault of their own, leave their employment due to factors or circumstances directly connected therewith."  Krantz v. Loxtercamp Transp., Inc., 410 N.W.2d 24, 26 (Minn. App. 1987). 

            Relator cannot argue that he had a good reason to quit caused by his employer because relator caused the circumstances leading to his discharge.  Relator admitted to giving the card and the poem that instigated the harassment allegations.  Wackenhut offered relator numerous opportunities to provide a written statement with his side of the story, but relator refused.  Relator suggests that Wackenhut's refusal to provide him with a written statement of the allegations was good cause for him to quit, but relator created this condition and Wackenhut was under no obligation to provide relator with additional information. 

            Further, "[a] suspension from employment without pay of more than 30 calendar days shall be considered a discharge."  Minn. Stat. § 268.095, subd. 5(a) (2002).  On February 20, 2004, relator was put on unpaid leave.  Relator applied for unemployment benefits on April 6, 2004.  Because more than 30 days had passed from the time relator was put on unpaid leave to the time he applied for unemployment benefits, relator's argument that he quit for good cause fails.        

Wackenhut timely challenged relator's claim for unemployment benefits.

 

            Relator also challenges the timeliness of Wackenhut's appeal of the September 9, 2004 determination of nondisqualification by the department.  The SURJ determined that Wackenhut's appeal on September 10, 2004, was timelyoccurring a day after the determination was mailed.  Relator argues, however, that the determination was issued on August 11, 2004.  "The commissioner shall determine any issue of disqualification raised by an employer . . . ."  Minn. Stat. § 268.101, subd. 2(b) (2002).  "If any time within 24 months from the establishment of a benefit account the commissioner finds the applicant failed to provide, on an application for unemployment benefits . . . requested information on an issue of eligibility, the commissioner shall determine the issue of eligibility . . . ."   Minn. Stat. § 268.101, subd. 3(c) (Supp. 2003).

            Here, within 24 months of relator establishing a benefit account, Wackenhut    raised an issue of relator's eligibility; specifically that relator was discharged for employment misconduct.  Relator suggests that Wackenhut had ten calendar days in which to raise an issue; however, relator relies on statutory language that applies to employers who were not the applicant's most recent employer.  See Minn. Stat. § 268.101, subd. 2(b).  Wackenhut was relator's most recent employer and as such had 24 months in which to raise an issue. 

              When relator applied for benefits, he provided that he had been laid off for reasons such as lack of work, seasonal or temporary layoff, elimination of his position, business closing, or plant shutdown.  Under Minn. Stat. § 268.101, subd. 1(a) (Supp. 2003):

                                   In an application for unemployment benefits, each applicant shall report the name and the reason for no longer working for the applicant's most recent employer . . . . If the reason reported for no longer working for any of those employers is other than a layoff due to lack of work, that shall raise an issue of disqualification that the department shall determine.

 

Because relator indicated that he had been laid off, an issue of disqualification was not automatically raised.  After Wackenhut raised an issue regarding relator's eligibility, a determination of nondisqualification was issued.  Wackenhut had 30 days in which to appeal that determination and did so one day after it was issued.  See Minn. Stat. § 268.101, subd. 2(e) (2002) ("A determination of disqualification or a determination of nondisqualification shall be final unless an appeal is filed by the applicant or notified employer within 30 calendar days after mailing.").  Therefore, Wackenhut's appeal was timely. 

           Affirmed.

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