Peter J. Reber, Relator, vs. J-Berd Mechanical Contractors, Inc., Respondent, Department of Employment and Economic Development, Respondent.

Peter J. Reber, Relator, vs. J-Berd Mechanical Contractors, Inc., Respondent, Department of Employment and Economic Development, Respondent. A06-1262, Court of Appeals Unpublished, July 3, 2007.

This opinion will be unpublished and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

A06-1262

 

Peter J. Reber,
Relator,
 
vs.
 
J-Berd Mechanical Contractors, Inc.,
Respondent,
 
Department of Employment and Economic Development,
Respondent.

 

Filed July 3, 2007

Affirmed

Wright, Judge

 

Department of Employment and Economic Development

File No. 4495 06

 

 

Peter J. Reber, 1013 East Minnesota Street, P.O. Box 514, St. Joseph, MN  56374 (pro se relator)

 

Corie J. Tarara, Seaton, Beck & Peters, 7300 Metro Boulevard, Suite 500, Minneapolis, MN  55439 (for respondent J-Berd Mechanical Contractors, Inc.)

 

Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Department)

 

            Considered and decided by Minge, Presiding Judge; Wright, Judge; and Collins, Judge.*

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

Relator challenges the unemployment law judge's decision on reconsideration that relator was discharged for misconduct and, therefore, is disqualified from receiving unemployment benefits.  We affirm. 

FACTS

Relator Peter Reber worked as a foreman for respondent J-Berd Mechanical Contractors, Inc. from April 2000 until March 1, 2006.  Reber was assigned a company van, and his job duties required him to transport tools to and from worksites both within and outside the state of Minnesota. 

In approximately 2002, Reber was convicted of driving while impaired by alcohol (DWI).  His driving privileges were restricted, and he was placed in outpatient chemical-dependency treatment and aftercare.  Although he was able to get rides to and from worksites with members of his crew and made efforts to schedule his court obligations on his days off, Reber occasionally had to leave work early to fulfill the conditions of his probation.  On these occasions, his crew was left unsupervised.  After a subsequent assault conviction, Reber's probation limited his ability to travel outside Minnesota and prohibited his use of alcohol.  In November 2005, Reber used alcohol in violation of the terms of his probation and again lost his driver's license.  Reber admits that, before this arrest, he had not taken steps to abstain from alcohol, but after the November arrest, Reber took 12 weeks of medical leave and entered an inpatient alcohol-treatment program.  After Reber advised his supervisor, Rick Morford, that his driver's license was revoked, Reber was discharged.

Reber applied for unemployment benefits, and a Department of Employment and Economic Development adjudicator determined that Reber was discharged for employment misconduct and, therefore, disqualified from receiving unemployment benefits.  Reber appealed, and a telephonic hearing was held before an unemployment law judge (ULJ).  In her findings of fact and decision, the ULJ determined that Reber engaged in employment misconduct and is disqualified from receiving unemployment benefits.  After reconsideration, the UJL affirmed her earlier decision.  This certiorari appeal followed.

D E C I S I O N

 

We review the decision of a ULJ to determine whether the substantial rights of the relator have been prejudiced because the findings, inferences, conclusion, or decision are "(1) in violation of constitutional provisions; (2) in excess of the statutory authority or jurisdiction of the department; (3) made upon unlawful procedure; (4) affected by other error of law; (5) unsupported by substantial evidence in view of the entire record as submitted; or (6) arbitrary or capricious."  Minn. Stat. § 268.105, subd. 7(d) (2006).

            Whether an employee committed employment 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.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  On review, we consider the ULJ's factual findings in the light most favorable to the decision, Skarhus v. Davanni's Inc., 721 N.W.2d 340, 344 (Minn. App. 2006), and will not disturb them when they are supported by substantial evidence, Minn. Stat. § 268.105, subd. 7(d).  Because credibility determinations are the province of the ULJ, we accord them deference on appeal.  Nichols v. Reliant Eng'g & Mfg., Inc., 720 N.W.2d 590, 594 (Minn. App. 2006).  But whether the act committed by the employee constitutes employment misconduct is a question of law, which we review de novo.  Scheunemann, 562 N.W.2d at 34. 

An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2005).  Employment misconduct is "any 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."  Id., subd. 6(a) (2004).  Conduct that results in the loss of a driver's license necessary for the performance of job duties has been determined to be employment misconduct.  Markel v. City of Circle Pines, 479 N.W.2d 382, 385 (Minn. 1992).  But "conduct that was a direct result of the applicant's chemical dependency is not employment misconduct unless the applicant was previously diagnosed chemically dependent or had treatment for chemical dependency, and since that diagnosis or treatment has failed to make consistent efforts to control the chemical dependency."  Minn. Stat. § 268.095, subd. 6(b) (2004); cf. Markel, 479 N.W.2d at 385 n.1 (noting that although there was some indication applicant was an alcoholic, he made no claim of discharge because of chemical dependency or offered any proof of efforts of treatment, the statutory exception to disqualification was not satisfied).

            The ULJ determined that Reber's intentional use of alcohol in violation of his probation is conduct that showed a substantial lack of concern for his employment and, therefore, constitutes employment misconduct.  And because Reber had chemical-dependency treatment in the past and at the time of the November 2005 incident failed to make consistent efforts to control his chemical dependence, the exception to disqualification set forth in Minn. Stat. § 268.095, subd. 6(b), is inapplicable.

The job duties of a foreman at J-Berd require the ability to transport a crew and tools to worksites within a five-state area.[1]  When Reber received his initial DWI, J-Berd made accommodations to transport Reber and the tools needed for the job to and from the worksite.  But as the ULJ found, J-Berd is not obligated to make such accommodations again.  Morford testified that changing crew assignments so that Reber could ride with a crew member who lived nearby created concerns of unfairness and affected employee morale.  J-Berd was eventually compelled to change its policy and require foreman employees to have driver's licenses.[2] 

Reber also argues that, because he is an alcoholic, his loss of a driver's license for violating the terms of his probation was unintentional.  Therefore, he was not discharged for employment misconduct.  But subdivision 6(a) does not require intentional conduct showing a lack of concern for the employment; rather, such conduct may be "negligent[ ] or indifferent."  Id., subd. 6(a).  In light of his job responsibilities, which required him to drive, Reber's consumption of alcohol in violation of the terms of his probation, which resulted in the revocation of his driver's license, was negligent or indifferent conduct that displayed a lack of concern for his employment.  His argument, therefore, is unavailing.

Substantial evidence exists in the record to sustain the ULJ's factual findings, and the ULJ correctly applied the law.  Because Reber was discharged for employment misconduct, he is disqualified from receiving unemployment benefits.

Affirmed.

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

[1] Reber argues that the ULJ erroneously found that Reber was restricted from traveling outside the state of Minnesota because of his assault conviction.  Reber asserts that, "[w]ith permission from my probation officer, I could travel at any time including out of state."  But Reber cites no evidence in the record for this contention, and we may not base our decision on Reber's unsubstantiated assertions.  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).

[2] Reber argues that "J-Berd lied about what kind of employee I was and the ULJ believed everything they said," including whether Morford was aware that Reber had lost his driver's license, whether the company had a policy against employing a foreman without a driver's license, and whether Reber received warnings.  Because credibility determinations are the province of the ULJ, and the findings are supported by the record, we will not disturb them on appeal. Nichols, 720 N.W.2d at 594.