Jon E. Bell, Relator, vs. Anamax Transportation, Respondent, Department of Employment and Economic Development, Respondent.

Jon E. Bell, Relator, vs. Anamax Transportation, Respondent, Department of Employment and Economic Development, Respondent. A06-814, Court of Appeals Unpublished, March 6, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-814

 

Jon E. Bell,

Relator,

 

vs.

 

Anamax Transportation,

Respondent,

 

Department of Employment and

Economic Development,

Respondent.

 

Filed March 6, 2007

Affirmed
Crippen, Judge*

 

Department of Employment and Economic Development

File No. 725 06

 

Jon E. Bell, 144 West Frost Street, South St. Paul, MN  55075 (pro se relator)

 

Anamax Transportation, 505 Hardman Avenue South, South St. Paul, MN  55075 (respondent)

 

Linda A. Holmes, Minnesota Department of Employment and Economic Development, 1st National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent Department)

 

            Considered and decided by Toussaint, Chief Judge, Wright, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Relator Jon Bell challenges the decision of the unemployment law judge (ULJ) that he was disqualified from receiving unemployment benefits because he had been discharged for misconduct based on excessive absences and arguing about scheduled work and routes.  Finding no merit in relator's assertion that arguing about alternate routes and schedules does not constitute misconduct, we affirm.

FACTS

            On September 11, 2002, relator began work at respondent-employer Anamax Transportation Corp.  A series of warnings and events beginning in November 2005 led to relator's December 16, 2005, discharge from his employment.  Relator applied for unemployment benefits, but in January 2006 respondent Department of Employment and Economic Development determined that relator was disqualified because he had been discharged for employment misconduct.  On appeal from that determination, relator and the employer's representatives appeared for a telephone hearing.  After the hearing, the ULJ issued his findings of fact and conclusion that relator was discharged for misconduct.

            The ULJ found that relator drove a truck on assigned routes and that relator often argued about the routes or asked to be reassigned.  On November 30, 2005, relator was told that his attendance record was unsatisfactory and was warned not to argue about his assignments or ask for changes.  Despite this warning, relator called to say he could not run his route on December 1.  Relator explained that his furnace was not working and, although his wife was at home, she was sick, and he was needed.  Anamax issued relator another warning for poor attendance and poor work performance on December 6.  Two days later, relator asked to run a shorter route than the one assigned to him.  Relator wanted to be home earlier so he could take his son bowling.  Relator received the shorter route and agreed to talk to Anamax's Employee Assistant Program about his attendance problem.

            The ULJ found that on December 13 relator again argued about his assigned route.  He objected to driving a route he had driven only once before and expressed some concern about dinner with his wife the next night.  Later that day, relator developed pain in his knee, went to the doctor, and did not work on December 14.  When relator's supervisor discussed relator's objections to the December 13 assignment with him, relator said that he was angry that his route had been changed and that he did not receive enough notice of assignments. 

            On December 16, 2005, relator was discharged for these events.  In February 2006, the ULJ issued a decision that relator's discharge was for disqualifying misconduct.  The ULJ specifically found that Anamax's testimony presented a "more believable chain of events" than relator's testimony.  Relator requested reconsideration, but in March 2006, the ULJ's decision was reaffirmed.

D E C I S I O N

On certiorari appeal this court may affirm the ULJ's decision, remand it for further proceedings, or reverse or modify it if the relator's substantial rights "may have been prejudiced because the findings, inferences, conclusion or decision are . . . affected by . . . error of law" or "unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. § 268.105, subd. 7(d) (2006).

            Whether an employee committed misconduct is a mixed question of fact and law. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether the employee committed a particular act is a question of fact.  Skarhus v. Davanni's Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).  Findings of fact are reviewed in the light most favorable to the judge's decision, and deference is given to the judge's determinations of credibility.  Id.  This court will not disturb factual findings that are supported by substantial evidence.  Id.; see also Minn. Stat. § 268.105, subd. 7(d)(5).  But whether an employee's act constitutes disqualifying misconduct is a question of law, which we review de novo.  Schmidgall, 644 N.W.2d at 804.

An employee who was discharged for misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (Supp. 2005). "Employment misconduct" means:

[A]ny intentional, negligent, or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment.

 

Inefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, good faith errors in judgment if judgment was required, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.

 

Minn. Stat. § 268.095, subd. 6(a) (2004).  A knowing violation of an employer's directives, policies, or procedures constitutes employment misconduct because it demonstrates a substantial lack of concern for the employer's interests.  See Schmidgall, 644 N.W.2d at 806-07.  Refusal to abide by an employer's reasonable policies and requests ordinarily amounts to employment misconduct.  See, e.g., McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 596 (Minn. 1988). 

The ULJ found that relator often argued about his assigned routes and continued to argue despite warnings that he must accept assignments without argument.  After being warned about arguing on November 30, and about his performance one week later, relator still argued and requested changes on December 1, 8, and 13.  The record substantially supports these findings and reflects that relator's arguments and requests for changes disrupted the employer's routing system.

Relator argues that on December 1 he drove his assigned route, that on December 9 he worked a nine-hour shift, and that on December 13 Anamax changed the route too often.  But even when relator worked his assigned route on a day that he argued about it, the argument disrupted Anamax's routing system.  Substantial evidence in the record reflects that arguing and requesting changes continued to be a problem until relator's discharge on December 16.  The ULJ found that relator's testimony contained inconsistencies and Anamax's testimony was more believable and persuasive.  See Skarhus, 721 N.W.2d at 344 (deferring to credibility determinations made by fact-finder).  We defer to the ULJ's credibility determination that relator argued about his assignments and asked for route changes.  Anamax reasonably expected that relator would take instruction and complete his assigned tasks.  See McGowan, 420 N.W.2d at 596 ("One in charge of a business must be allowed to expect that reasonable orders will be followed.").

In regard to Anamax's concern about his absenteeism, relator also argues that most of his missed days were for medical reasons.  But this does not affect the issue of relator's pattern of arguing about assignments, and the record shows that none of his requests for route changes after the November 30 warning was for medical reasons.

Affirmed.

 

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