Opinion
No. C5-03-188.
Filed August 5, 2003.
Appeal from the Department of Employment and Economic Development, File No. 12352 02.
Fanny Livaditis, (relator pro se)
Matthew R. Zahn, Gislason Hunter LLP, (for respondent Minnesota Credit Association)
Lee B. Nelson, Philip B. Byrne, (for respondent Commissioner)
Considered and decided by Hudson, Presiding Judge, Klaphake, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Pro se relator Fanny Livaditis challenges a decision by a representative of the respondent Commissioner of Economic Security that she was disqualified from receiving unemployment benefits because respondent Minnesota Credit Association (MCA) discharged her for employment misconduct. Because relator was not denied due process of law during the hearing before the unemployment law judge and because the record contains admissible, competent evidence that reasonably establishes that she committed employment misconduct, we affirm.
DECISION
Our review of unemployment insurance cases is limited to determining whether the record reasonably supports the decision of the commissioner's representative. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995); Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992); Cent. Specialties, Inc. v. Comm'r of Econ. Sec., 622 N.W.2d 833, 835 (Minn.App. 2001), review denied (Minn. May 15, 2001).
I.
Employment misconduct is defined as "intentional conduct" by an employee that "disregards the employee's duties and obligations to the employer." Minn. Stat. § 268.095, subd. 6(a)(1) (2002). The supreme court has interpreted this statutory definition to require record evidence that
the employee not only engaged in intentional conduct, but also intended to, or engaged in conduct that evinced an intent to ignore or pay no attention to his or her duties and obligations or the standards of behavior the employer has a right to expect.
Houston v. Int'l Data Transfer Corp., 645 N.W.2d 144, 150 (Minn. 2002). The supreme court concluded that this definition is "consistent with the remedial nature of unemployment compensation and the declared public policy that unemployment benefits are for those who are `unemployed through no fault of their own.'" Id. (quoting Minn. Stat. § 268.03, subd. 1 (2000)).
The issue of whether a particular act or series of acts constitute misconduct is a question of law, which this court reviews de novo. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). "As a general rule, refusing to abide by an employer's reasonable policies and requests amounts to disqualifying misconduct." Id. (citation omitted). "Because the nature of an employer's interest will vary depending upon the job, what constitutes disregard of that interest, and therefore misconduct, will also vary." Id. at 806 (quotation omitted).
Based on the documents submitted and on the testimony presented at the evidentiary hearing, the commissioner's representative found that (1) relator was employed by MCA as a telemarketer and credit counselor, and her main duties involved answering incoming calls; (2) MCA had published policies regarding personal telephone usage during business hours, and relator was aware of those policies; (3) in early 2002, relator threatened to strike a coworker with a stapler; (4) on June 3, relator received a verbal warning from her supervisor for ignoring incoming telephone calls while writing a multi-page e-mail to a friend; (5) on June 26, relator received a revised written policy statement emphasizing that personal calls must be minimized during working hours; (6) on June 28, relator initiated an unauthorized 53-minute long distance personal telephone call, missed business related calls during this unauthorized call, and did not end the call until she became aware of the presence of her supervisor; and (7) relator was discharged on July 1 for violating MCA's telephone policy and neglecting her job responsibilities. These findings are reasonably supported by the evidence in the record and amply support the conclusion that relator committed employment misconduct by acting intentionally and in disregard of her employer's interests.
Relator complains that the decision is improperly supported by hearsay statements from witnesses whom she could not cross-examine. Hearsay evidence, however, is admissible in unemployment cases as long as "it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs." Minn. R. 3310.2922 (2001). Here, MCA's president testified regarding his personal observations of relator's conduct during the incidents in question and the reasons behind his decision to discharge relator. This testimony does not constitute inadmissible hearsay, particularly in the context of an unemployment hearing.
Relator further claims that the commissioner's representative inappropriately relied on irrelevant and prejudicial evidence regarding her altercation with a co-worker in early 2002. Relator acknowledged that the incident had occurred. MCA's president testified regarding the incident in order to explain that relator's work performance started to deteriorate at about the time of this incident and to explain that relator's final unauthorized telephone call was merely the last of a series of actions on her part that contributed to her discharge. Thus, the commissioner's representative could properly consider this incident because it was not entirely irrelevant to the events leading up to relator's eventual discharge.
II.
Relator argues that her due process rights were violated because she was unfairly prejudiced by the proceedings before the unemployment law judge. She claims that she was unfairly surprised by the allegations made by MCA at the hearing about the reasons for her discharge because those reasons were substantially different from the basis for MCA's appeal of the department's initial determination that she was entitled to benefits.
Here, MCA's appeal letter stated that relator was discharged for spending nearly one hour on a personal, long distance phone call, during which she ignored several incoming calls from prospective clients. The letter further stated that relator "had been told time and again that inbound calls take priority and that personal calls and internet use are for break times." These statements fairly apprised relator that the issue of prior warnings would be discussed at the hearing. Even if relator was surprised at the hearing, she did not claim surprise at the time or otherwise request a continuance or seek an opportunity to present additional evidence. She should not now be allowed to claim unfair surprise as a basis to reverse the commissioner's decision.
We affirm the determination of the commissioner's representative that relator was discharged due to employment misconduct.