Angela M. Ketola, Relator, vs. EMPI Corporation, Respondent.

Angela M. Ketola, Relator, vs. EMPI Corporation, Respondent. A06-1273, Court of Appeals Unpublished, July 3, 2007.

This opinion will be unpublished and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

A06-1273

 

Angela M. Ketola,

Relator,

 

vs.

 

EMPI Corporation,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

 

Filed July 3, 2007

Affirmed; motion denied Worke, Judge

 

Department of Employment and Economic Development

File No.  4303 06

 

 

Angela M. Ketola, 3635 140th Avenue N.E., Ham Lake, MN 55304 (pro se relator)

 

EMPI Corp., 599 Cardigan Road, St. Paul, MN 55126 (respondent employer)

 

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

 

            Considered and decided by Stoneburner, Presiding Judge; Worke, Judge; and Parker, Judge.[*]

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

On certiorari appeal, relator challenges the decision by the unemployment-law judge (ULJ) that she was discharged for employment misconduct when she refused to comply with her supervisor's directive to bill her files as soon as possible, arguing that (1) she was discharged for poor performance, which is not misconduct and (2) her supervisor's testimony was inconsistent.  Relator also moves this court to remand the matter in order for her to obtain a subpoena to compel the employer to give her previously requested records.  We affirm the ULJ's decision and deny relator's motion to remand.

D E C I S I O N

When reviewing the decision of an unemployment-law judge (ULJ), this court may affirm the decision, remand the case for further proceedings, or reverse or modify the decision if 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).

The ULJ determined that relator Angela M. Ketola was discharged for employment misconduct and disqualified from receiving unemployment benefits.  Relator argues that she did not commit misconduct, but was discharged because of a one-time occurrence of poor performance.  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).  The ULJ's factual findings are viewed 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 be disturbed when supported by substantial evidence.  Minn. Stat. § 268.105, subd. 7(d)(5).  Because credibility determinations are the exclusive province of the ULJ, they are accorded deference on appeal.  Skarhus, 721 N.W.2d at 344.  Whether the employee's act constitutes employment misconduct is a question of law, which we review de novo.  Scheunemann, 562 N.W.2d at 34. 

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."  Minn. Stat. § 268.095, subd. 6(a) (2004).  "Inefficiency, inadvertence, simple unsatisfactory conduct, [or] a single incident that does not have a significant adverse impact on the employer . . . are not employment misconduct."  Id.; see, e.g., Pierce v. DiMa Corp., 721 N.W.2d 627, 630 (Minn. App. 2006) (holding that a single violation of employer's cash-register policy that does not involve theft or mishandling money and has no adverse impact on employer is not employment misconduct).  But a single incident when an employee deliberately chooses a course of action adverse to the employer can constitute misconduct.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 160-61 (Minn. 1984).  If the employee's conduct shows disregard for the interests of the employer, the employee may be disqualified from unemployment compensation.  Auger v. Gillette Co., 303 N.W.2d 255, 257 (Minn. 1981). 

            Here, relator worked for respondent EMPI Corporation as a salesperson.  One morning, relator's supervisor, Michael Billadeau, observed relator working on non-work-related material.  Billadeau then heard that relator was holding her billing until the next month.  Billadeau questioned relator about her conducting personal business and holding her billing.  Relator told Billadeau that she did not have enough work to keep her busy and that she was holding her billing because she would not make any commission billing in the current month.  Billadeau told relator that her files needed to be billed because the company was depending on the revenue.  Relator replied, "[W]e'll see."  Billadeau told relator that if she did not bill the files then someone else would do it.  Again, relator replied, "[W]e'll see" and that she might quit but she had to talk to her husband. 

            Billadeau discovered that relator had approximately 128 files; 16 were new and untouched.  Billadeau told relator that she must bill $4,000, a goal he considered reasonable based on relator's past performance, by the end of the day or she would have to resign or be terminated.    The next morning, Billadeau reviewed relator's daily sales report that showed that she billed only $404 and left work early. Billadeau discharged relator and distributed her files to other team members who billed $10,192.67.

            During the hearing before the ULJ, relator admitted that she was holding her files in order to earn more commission, that Billadeau told her that she could not hold her files   and that she must bill $4,000, and that she did not bill $4,000 by the end of the day.  Billadeau testified that relator's failure to bill her files was adverse to the employer because it was important for the employer to receive revenue as soon as possible.  Billadeau directed relator to bill a certain dollar amount; this was a reasonable request, and relator intentionally failed to comply with the request.  The ULJ did not err in determining that relator's act was employment misconduct and that she was, therefore, disqualified from receiving unemployment benefits.  

            Relator also argues that there were inconsistencies in Billadeau's testimony. "When witness credibility and conflicting evidence are at issue, we defer to the [ULJ's] ability to weigh the evidence and make those determinations."  Nichols v. Reliant Eng'g & Mfg., Inc., 720 N.W.2d 590, 594 (Minn. App. 2006).  The ULJ determined that "[relator's] testimony differs from Billadeau's testimony.  [Relator's] testimony contains inconsistencies.  Billadeau describes a more believable chain of events than [relator].  Billadeau's testimony is more persuasive than [relator's] testimony."  Because this court defers to the ULJ's credibility determinations, the determination that Billadeau was more credible than relator must be upheld.  

            Finally, relator moves to have this matter remanded in order for her to subpoena records.  Two months after the ULJ issued the decision that relator was disqualified from receiving unemployment benefits, relator requested documents from the employer.  Because relator requested the documents after the ULJ's decision, her motion to remand is denied.  

            Affirmed; motion denied.

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