Opinion
No. A05-513.
Filed December 20, 2005.
Appeal from the Department of Employment and Economic Development, File No. 13809 04.
Richard G. Shatek, (pro se relator).
Mystic Lake Casino, Little Six, Inc., Division Hr, (respondent).
Linda A. Holmes, Department of Employment and Economic Development, (for respondent department).
Considered and decided by Willis, Presiding Judge; Minge, Judge; and Worke, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
Relator challenges the decision of the senior unemployment-review judge (SURJ) that he was discharged for employment misconduct and therefore disqualified from receiving unemployment benefits. We affirm.
FACTS
Relator Richard Shatek was employed as a slot bench technician for respondent Mystic Lake Casino from July 18, 1996, through August 9, 2004, when he was discharged. The problems leading to Shatek's discharge began on November 18, 2003, when he received an oral warning for his repeated failure to sign off on tasks and to verify that they were done correctly. He was put on notice that further occurrences could lead to termination. At the hearing, Shatek testified in explanation that he just had not had a chance to sign off. Also on November 18, 2003, Shatek received a written warning, which likewise contained a provision that further incidents could lead to termination, after he repeatedly argued with a carpet cleaner and then threw a clipboard to the floor near the carpet cleaner. The incident was videotaped. Shatek testified that he had been upset, but he denied arguing.
On March 1, 2004, Shatek received a three-day suspension for a videotaped February 26, 2004 altercation with another employee who was vacuuming. After Shatek unplugged the vacuum cleaner several times, he then told the employee that if it got plugged again he was going to "shove the hose up [your] -ss." Shatek acknowledged at the hearing that he had gotten into an argument with the employee and that he may have unplugged the vacuum cleaner several times. He denied using the obscenity but acknowledged he may have said something similar. The notice of suspension provided that further occurrences could lead to termination.
Finally, on August 4, 2004, Shatek was helping a gaming official license equipment. He told a fellow employee to "get your -ss out of the chair" so that the official could sit there, but the employee refused. Shatek became upset and walked away but returned to continue the argument in a loud and intimidating fashion several times over a period of a half-hour. The gaming official completed a complaint form regarding the incident and brought it to the attention of Shatek's supervisor, who reviewed a videotape of the incident and on August 9, 2004, discharged Shatek. At the hearing, Shatek admitted that he may have used poor judgment in allowing himself to get drawn into the argument and that he may have come back to address the employee in the chair more than once.
After his discharge, Shatek applied for unemployment benefits. The department adjudicator found that Shatek had been discharged for employment misconduct, and Shatek appealed to the unemployment law judge (ULJ), who affirmed. Shatek brought a further appeal to the SURJ, who also affirmed. This certiorari appeal follows.
DECISION
Shatek challenges the determination by the SURJ that he is disqualified from receiving unemployment benefits for employment misconduct. "Whether an employee engaged in conduct that disqualifies the employee from unemployment benefits is a mixed question of fact and law." Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). An appellate court reviews the SURJ's findings for clear error. Id. Questions of law are reviewed de novo. Id.
Misconduct is defined as "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). An employee's repeated rude behavior despite warnings can constitute misconduct. See Holton v. Gnan Trucking, Inc., 379 N.W.2d 571, 574 (Minn.App. 1985) (finding misconduct when three customers independently complained by letter of employee's offensive behavior); Pitzel v. Packaged Furniture Carpet, 362 N.W.2d 357, 357 (Minn.App. 1985) (finding misconduct when employee, despite several warnings, was aggressive and offensive with customers, refused to honor unwritten store policy regarding treatment of customers, and displayed erratic and disruptive personal behavior).
The SURJ found that an employer has a right to expect that its employees will treat each other with respect and that Shatek failed to do so, displaying a serious violation of the standards of behavior that the employer has a right to expect. He further found that Shatek's failure to change his behavior after being warned that further arguments could lead to termination clearly displayed a substantial lack of concern for his employment and concluded that Shatek was discharged for misconduct.
Shatek first argues that the hearing was not properly recorded. While a portion of the tape of the first hearing was blank, this was remedied by holding a new hearing. Shatek also challenges the fact that the SURJ used testimony from the second hearing. The second hearing was held because the record from the first hearing was incomplete, and there was no error in considering that evidence.
Shatek next challenges a minor error in the SURJ's factual findings regarding the incident witnessed by the gaming official. The SURJ used the incorrect name of the coworker involved in that incident, but this error is irrelevant to the ultimate determination of misconduct.
Next, Shatek contends that his supervisor was biased against him because Shatek reported the supervisor for theft of television signals. The employer acknowledged that the supervisor had been disciplined for this conduct and knew that Shatek had reported the illegal activity. But the employer also provided testimony showing that the incidents for which Shatek was disciplined were reported by individuals other than his supervisor, including the final incident, which was reported by the gaming official. In addition, three incidents were videotaped, allowing the employer to view them independently. The SURJ's decision that Shatek's discharge was not retaliatory is supported by the evidence and is not clearly erroneous.
Finally, Shatek argues that his conduct did not have any significant adverse impact on the employer and that he had a good work record. Under the statute, "a single incident that does not have a significant adverse impact on the employer" does not constitute misconduct. Minn. Stat. § 268.095, subd. 6(a). This section is not applicable because Shatek was not discharged because of a single incident.
The SURJ did not err by concluding that Shatek committed employment misconduct that disqualified him from receiving unemployment benefits because he failed to treat other employees with respect, displaying a serious violation of standards of behavior the employer has a right to expect, and because his failure to change the behavior despite warnings clearly displayed a substantial lack of concern for his employment.