Gene A. Baran, Relator, vs. Capital City Properties (Corp), Respondent, Department of Employment and Economic Development, Respondent.

Gene A. Baran, Relator, vs. Capital City Properties (Corp), Respondent, Department of Employment and Economic Development, Respondent. A05-303, Court of Appeals Unpublished, November 8, 2005.

This opinion will be unpublished and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

A05-303

 

 

Gene A. Baran,

Relator,

 

vs.

 

Capital City Properties (Corp),

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

 

Filed November 8, 2005

Affirmed

Toussaint, Chief Judge

 

Department of Employment and Economic Development

Agency File No. 15662 04

    Gene A. Baran, 1866 Western Avenue, Roseville, MN 55113 (pro se relator)

 

Capital City Properties Corp, c/o Talx UceXpress, P.O. Box 283, St. Louis, MO 63166-0283 (respondent)

 

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

 

 

            Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Dietzen, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

TOUSSAINT, Chief Judge

 

            Relator challenges the determination of a senior unemployment review judge (SURJ) that relator is not entitled to unemployment benefits because he was discharged for misconduct.  Because the SURJ's findings of fact have support in the record, we affirm.

D E C I S I O N

            Relator Gene Baran, a restaurant chef, was disciplined by his employer, respondent Capital City Properties, for sexual harassment of another employee on August 3, 2004.  Relator does not dispute either committing the offense or the discipline imposed. Respondent discharged relator on August 13, 2004, not because of the offense but because relator discussed the matter with other employees. 

            Relator applied for unemployment benefits, and a department adjudicator determined that he had not been discharged for misconduct and was entitled to benefits.  Respondent appealed, and, following a hearing, a ULJ determined that relator had been discharged for misconduct.  Relator appealed; a SURJ conducted a de novo review and affirmed the determination that relator had been discharged for misconduct.  Relator now challenges that determination.

            Misconduct is defined as "any intentional, negligent, or indifferent conduct . . . (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee . .  . ."  Minn. Stat. § 268.095, subd. 6(a) (2004).  A determination that an employee is not entitled to benefits for reasons of misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros. Inc., 346 N.W.2d 159, 161 (Minn. 1984).  However, whether an employee's acts constitute misconduct is a question of law that this court reviews de novo.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  This court will affirm the SURJ's findings of fact as long as there is evidence that reasonably tends to sustain those findings.  White v. Metro Med. Ctr. 332 N.W.2d 25, 26 Minn. (1983).

            It is not disputed that relator discussed the incident with his coworkers; the parties' dispute is over whether respondent had told him to keep the incident confidential.  Relator testified that he "was never told about any confidentiality."  When asked, "At no point were you told to not discuss it with anyone?"   He answered "No." 

             Respondent's food and beverage director was asked when he told relator that he could not discuss the incident with anyone.  He answered by giving two specific dates on which he had told relator to keep the incident confidential: August 3 & 10, 2004.  The director was asked what, specifically, he had told relator.  He answered, "I explained to him that he was not to discuss this with anybody for two reasons.  One, it's no one's business, and two, so there was no retaliation on the victim."  The director testified that he had also told relator that, if he did discuss the incident with other employees, "there would be further disciplinary action because retaliation is grounds for instant termination."  When the SURJ asked the director to respond to relator's claim that no one had told him to keep the matter confidential, the director said, "I did [tell him.]  I was very specific and clear about it."

            The SURJ found that, "Although [relator] denied that he had been directed by [respondent's] restaurant manager not to discuss the incident with his coworkers, after a careful review of the evidence, we are persuaded that [respondent's] evidence in this regard was more credible than [relator's] self-serving testimony" and concluded that "[Relator's] behavior in violating [respondent's] request to keep the matter confidential clearly displayed a serious violation of the standards of behavior [respondent] had a right to reasonably expect of [relator]."  See Minn. Stat. § 268.095, subd. 6(a)(1) (misconduct is conduct that violates the standard of behavior the employer has a right to reasonably expect of the employee).  The SURJ's finding has support in the record; the conclusion is not contrary to the statutory mandate.  Moreover, refusal to abide by an employer's reasonable policies and requests amounts to misconduct.  Schmidgall, 644 N.W.2d at 804.  Respondent's request to keep the incident confidential for the protection of the victim was reasonable; relator's refusal to abide by it was misconduct.  We affirm the SURJ's decision.

            Affirmed.