Nevar D. Bennett, Relator, vs. Marcus Northstar, Inc., Respondent, Department of Employment and Economic Development,  Respondent.

Nevar D. Bennett, Relator, vs. Marcus Northstar, Inc., Respondent; Department of Employment and Economic Development,  Respondent. A06-1774, Court of Appeals Unpublished Decision, September 18, 2007.

This opinion will be unpublished and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

A06-1774

 

Nevar D. Bennett,

Relator,

 

vs.

 

Marcus Northstar, Inc.,

Respondent,

 

Department of Employment and Economic Development,

 Respondent.

 

Filed September 18, 2007

Affirmed

Randall, Judge

 

Department of Employment and Economic Development

File No. 9389 06  

 

 

Nevar D. Bennett, 4130 Aldrich Avenue North, Apt. 1, Minneapolis, MN 55412-1720 (pro se relator)

 

Crown Plaza Marcus Northstar Hotel, 618 Second Avenue South, Minneapolis, MN  55402 (respondent employer)

 

Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, 1st National Bank Building, 332 Minnesota Street, Suite E-200, Saint Paul, MN  55101-1351 (for respondent department)

 

            Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Randall, Judge.

 

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            Relator challenges the ULJ's decision disqualifying him from receiving unemployment benefits due to employment misconduct.  Relator claims that the determination is not supported by substantial evidence and relies on his testimony that he did not abandon his work, but was instead granted permission to take the day off.  We affirm.

FACTS

From October 25, 2005 to May 9, 2006, relator Nevar D. Bennett was employed as a steward and dishwasher by respondent Marcus Northstar, Inc.'s Crown Plaza Hotel (the hotel).  After discovering that relator left work in the middle of his shift, the hotel discharged relator for abandoning his employment and failing to complete scheduled tasks on May 3, 2006. 

Soon after, relator applied for unemployment benefits with respondent Department of Employment and Economic Development (department).  A department adjudicator initially determined that relator was entitled to benefits.  The hotel appealed the determination, and after a telephone hearing on the matter, an unemployment law judge (ULJ) reversed the decision, holding that relator was disqualified from receiving benefits due to employment misconduct. 

 

At the hearing, relator disputed the assertion that he was discharged for abandoning his work.  Relator testified that he was given permission to take off May 3, 2006, for his daughter's birthday.  Relator claimed that he originally received permission a week in advance while in a meeting with human resources manager, Kristi Gjerswold, executive chef, Ben Schneider, and an unidentified assistant manager.  According to relator, the parties to the meeting collectively agreed to allow him to take a vacation day.  Relator further testified that despite receiving permission, he later discovered that he was scheduled to work that day.  Relator reluctantly arrived at work for the shift, which was scheduled for 5:00 p.m. to 1:00 a.m., but he claimed that at some point that evening, the executive sous chef Jon Szarke remembered that he had requested the night off and granted him permission to leave.  After allegedly speaking with Szarke, relator claimed that he continued to work, but eventually decided to leave after taking his work break from 9:30 to 10:00 p.m.  Relator admitted that he did not clock out before proceeding to break, which was not permitted by hotel rules. 

Testimony from the hotel's personnel controverts relator's account of the day in question.  Human resources manager, Kristi Gjerswold, testified that relator was not given permission to take the day off.  Gjerswold recalled discussing relator's request for time off at a meeting, but disputed that she granted the request.  Instead, she allegedly informed relator that the appropriate procedure for requesting time off was to submit a request in writing, which relator did not do.  Gjerswold further testified that hotel security cameras showed relator leaving the hotel premises without clocking out for about an hour, and upon returning, relator clocked out and abandoned his position for the remainder of the evening, even though his shift was not scheduled to end for another three hours.  Gjerswold also mentioned that relator's abandonment of his work and failure to complete all necessary tasks was expressly prohibited by the hotel's discipline and discharge policy. 

Schneider similarly testified that he had not given relator permission to take the day off.  When Schneider arrived at work the day after relator had left early, he found that relator had not performed any of his duties, including taking out the garbage, sweeping and mopping the floors, and washing the dishes and silverware.  Schneider further noted that relator had been given written warnings on two previous occasions for failing to perform his duties. 

Finally, Szarke testified that during the week prior to the date in question, relator had requested the day off from him.  He allegedly told relator that he would confer with Schneider about his request, but forgot to do so.  Szarke also denied authorizing relator to leave on the day in question, and, instead, reminded relator to ensure that the kitchen was clean before he left at the end of his shift. 

Following the ULJ's adverse determination, relator filed a request for reconsideration, but the ULJ affirmed the decision.  This certiorari appeal followed.                       

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 employee's substantial rights "may have been prejudiced because the findings, inferences, conclusion, or decision are . . . unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. § 268.105, subd. 7(d)(5) (Supp. 2005).  "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 ULJ's decision, and deference is given to the ULJ's determinations of credibility.  Id.  This court will not disturb the ULJ's factual findings when those findings are supported by substantial evidence.  Minn. Stat. § 268.105, subd. 7(d)(5).  Whether an act by the employee constitutes employment misconduct is a question of law which this court reviews de novo.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). 

        Here, relator was denied unemployment benefits due to claimed employment misconduct.  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."  Minn. Stat. § 268.095, subd. 6(a) (2004).

            The finding of employment misconduct was premised on relator's alleged abandonment of his work during the middle of a work shift and his failure to complete all necessary tasks, both of which constituted violations of the hotel's written policies.  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.  Schmidgall, 644 N.W.2d at 804.  Relator does not challenge the legal basis for the finding, but disputes whether it is supported by substantial evidence.  Relator relies on his testimony that he was granted permission to take the night off by Gjerswold, Schneider, and an assistant manager, and was later allowed to leave by Szarke. 

            Although relator's testimony contradicts the determination that he committed employment misconduct, evidence exists to support the ULJ's decision.  Gjerswold and Schneider testified that relator was not given the day off because he failed to make a request in writing.  Gjerswold also testified that the security cameras captured relator leaving without clocking out, and Schneider noted that relator did not complete any of his duties before leaving.  Similarly, Szarke disputed the claim that he permitted relator to leave, and recalled instructing relator to clean the entire kitchen before he left for the night.  In addition, relator acknowledged that he did not perform his duties or clock out for his break, and despite his request to take the day off, he admitted that he was still scheduled to work that night.  Therefore, substantial evidence exists of relator's abandonment of his work and failure to complete necessary tasks. 

            Furthermore, "[w]hen the credibility of an involved party or witness testifying in an evidentiary hearing has a significant effect on the outcome of a decision, the [ULJ] must set out the reason for crediting or discrediting that testimony."  Minn. Stat. § 268.105, subd. 1(c).  In denying relator benefits, the ULJ weighed the conflicting testimony and determined that relator's assertions lacked credibility:

[Relator] claimed he was given permission to have the day of May 3, 2006 off.  [Relator] had an unbelievable explanation as to why he came in anyway, and then proceeded to work after being told he could go home.  [Relator] further claimed he didn't punch out and leave for just under an hour on May 3, 2006, for reasons that did not make any sense.  [The hotel personnel's] testimony was more credible than [relator's] because it was more believable. . . . There is no proof that [relator] was given permission to have the day off.  [Relator] did work on May 3, 2006.  [Relator] failed to do his job duties and he left early without punching out and without permission, and then returned and punched out later.

 

            Credibility determinations are within the purview of the ULJ.  The evidence in the record substantially supports the ULJ's findings.  Northstar's case is not the strongest, but we find that it does suffice.  The ULJ's finding of employment misconduct was not erroneous.

            Affirmed.