Michael Rodriguez, Relator v. Arrowhead Economic Opportunity Agency, Department of Employment and Economic Development ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0827
Michael Rodriguez,
Relator,
vs.
Arrowhead Economic Opportunity Agency,
Respondent,
Department of Employment and Economic Development,
Respondent.
Filed January 19, 2016
Affirmed
Stauber, Judge
Department of Employment and Economic Development
File No. 33228099-3
Diane L. Longrie, Maplewood, Minnesota (for relator)
Arrowhead Economic Opportunity Agency, St. Louis, Missouri (respondent)
Lee B. Nelson, Department of Employment and Economic Development, St. Paul,
Minnesota (for respondent department)
Considered and decided by Halbrooks, Presiding Judge; Stauber, Judge; and Reyes,
Judge.
UNPUBLISHED OPINION
STAUBER, Judge
In this certiorari appeal from an unemployment-law judge (ULJ) decision, relator
argues that he should be eligible for unemployment benefits because the conduct for
which he was discharged did not constitute misconduct and challenges his employer’s
failure to disclose certain evidence before his unemployment hearing. We affirm.
FACTS
Relator Michael Rodriguez was employed by respondent Arrowhead Economic
Opportunity Agency (Arrowhead) from January 24, 2013, to December 23, 2014, as a
part-time bus driver. Arrowhead is a nonprofit agency that provides transportation
services in northeastern Minnesota. Relator was discharged for poor driving practices
and for failing to complete required bus inspections.
Three incidents comprise the factual basis for relator’s dismissal from
employment. In January 2014, relator received a written warning after a client
complained that he was driving “way too fast.” Relator’s immediate supervisor, transit
manager Voni Smolke, reviewed three days of camera footage from relator’s bus that
showed relator driving 80 miles per hour (mph) in a 70 mph posted speed-limit area.
Smolke testified that this conduct violated Arrowhead’s policy for drivers “to drive the
posted speed limit.” Relator denied that he was driving too fast but admitted that he
might have driven up to 76 mph in order to merge into traffic.
On December 14, 2014, a Walmart customer complained to Arrowhead about
relator’s “very erratic driving” on the previous day. The bus video from that date shows
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relator entering the Walmart parking lot by turning into a “do not enter” entrance that is
restricted to delivery vehicles.1 As relator approaches Walmart’s main entrance, he does
not stop at a stop sign, and, as he proceeds forward, an elderly gentleman located in a
crosswalk must “scoot to get out of the way.” Relator then drives on the sidewalk to
complete a three-point turn near two children and two adults, one of whom made the
complaint to Arrowhead. When leaving Walmart, relator again uses the prohibited
entrance, which is marked “do not enter” from both directions, stating: “I don’t care
what it says. I can do whatever I want.” Finally, relator makes a wide turn to enter
traffic.
The third ground for relator’s dismissal is his failure to complete required bus
inspections. Relator testified that he always does a full inspection including testing the
wheelchair ramp. Smolke reviewed three days of videos that included relator’s bus
inspections and discovered that relator did not complete the portion of his required
inspections that includes ensuring that the wheelchair lift is operational. At the hearing
before the ULJ, relator’s attorney objected to Smolke’s testimony, arguing that the videos
were not provided to relator before the hearing. The ULJ took the objection under
advisement but decided the case without specifically ruling on the motion.
Relator testified that his dismissal was pretextual and that “the real reason [for his
dismissal] is because I took a stand on my religious belief to not work on Sunday . . . and
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Contemporaneously with making this turn, relator says “bull crap.” The audio portion
of the video does not clarify whether that comment is made in response to something said
by a passenger or in response to the “do not enter” sign.
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[because I] became shop steward in the union.” The ULJ rejected this argument,
determining that “[t]he event that immediately preceded [his] termination was Arrowhead
receiving a complaint about his driving,” and that his driving conduct formed the basis
for Arrowhead’s decision to discharge him.
The ULJ decided that relator was dismissed for misconduct and therefore
ineligible to receive unemployment benefits. The ULJ relied “primarily on the video
evidence” from the December 13 Walmart incident, and “the testimony of Arrowhead’s
witnesses.” After the ULJ affirmed this decision on reconsideration, relator initiated this
certiorari appeal.
DECISION
Among other reasons, this court may reverse, modify, or remand a ULJ’s decision
if the petitioner’s rights have been prejudiced because the decision was “made upon
unlawful procedure,” “affected by other error of law,” or “unsupported by substantial
evidence in view of the entire record as submitted.” Minn. Stat. § 268.105, subd. 7(d)(3)-
(5) (Supp. 2015). This court views the ULJ’s findings of fact “in the light most favorable
to the decision” and gives deference to the ULJ’s credibility determinations. Peterson v.
Nw. Airlines, Inc., 753 N.W.2d 771, 774 (Minn. App. 2008), review denied (Minn. Oct.
1, 2008).
I. Misconduct determination
An applicant is ineligible to receive unemployment benefits if the applicant was
discharged for misconduct. Minn. Stat. § 268.095, subd. 4(1) (2014). Employment
misconduct is defined by statute as “any intentional, negligent, or indifferent conduct”
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that clearly displays “(1) a serious violation of the standards of behavior the employer has
the right to reasonably expect of the employee; or (2) a substantial lack of concern for the
employment.” Id., subd. 6(a) (2014). “As a general rule, refusing to abide by an
employer’s reasonable policies and requests amounts to disqualifying misconduct.”
Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002). Whether the employee
committed a particular act is a question of fact, and whether the act constitutes
employment misconduct is a question of law subject to de novo review. Skarhus v.
Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006). Factual findings will not be
disturbed if there is substantial evidence to sustain them. Id. at 345.
Relator challenges the ULJ’s determination that his driving through a stop sign
located on Walmart property was reckless and that his overall driving conduct showed an
intentional disregard of Arrowhead’s policies. As to going through a stop sign on
Walmart property, Smolke testified that relator’s driving conduct on December 13
“totally [went] against all company policies and safety violations” and violated traffic
laws. When specifically addressing the failure to stop at a stop sign, she said Arrowhead
employees go through training and “are well aware of their safety rules, company
policies,” which do not permit drivers to “run stop signs.” Although Smolke’s testimony
was contradicted by relator’s testimony that stopping at stop signs on private property
was discretionary, the ULJ was free to credit Smolke’s testimony rather than relator’s.
See Skarhus, 721 N.W.2d at 345 (stating that it is ULJ’s responsibility to make credibility
determinations).
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Contrary to relator’s assertion, the record also supports that relator’s driving
conduct was intentional. When confronted with the “do not enter” sign, relator said “I
don’t care what it says. I can do whatever I want,” and turned into that entrance.
Relator’s other driving conduct on December 13 also supports a finding that his conduct
was intentional: he entered Walmart through a prohibited entrance, did not stop at a stop
sign, drove close to one pedestrian, turned onto a sidewalk in front of four other
pedestrians, turned around on a sidewalk, and exited through a prohibited road. Given
that Smolke testified that relator’s conduct violated the employer’s policies, relator’s
numerous examples of poor driving on December 13 strongly demonstrate a deliberate
decision not to abide by Arrowhead’s reasonable policies, and therefore provide a proper
basis for the misconduct determination. See Houston v. Int’l Data Transfer Corp., 645
N.W.2d 144, 149 (Minn. 2002) (stating that for purposes of disqualifying an employee
from receiving benefits, the employee’s “conduct[,] to be intentional, . . . must be
deliberate”).
II. Procedural defect
Relator also argues that the ULJ erred by proceeding with the hearing after he
objected to the employer’s failure to provide him a copy of the video showing his bus
inspections. Relator relies on case law requiring fairness and full development of facts in
ULJ proceedings. Ywsuf v. Teleplan Wireless Servs., Inc., 726 N.W.2d 525, 529 (Minn.
App. 2007); Miller v. Int’l Express Corp., 495 N.W.2d 616, 618 (Minn. App. 1993). In
an unemployment hearing, the ULJ “must exercise control over the hearing procedure in
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a manner that protects the parties’ rights to a fair hearing” and “ensure that all relevant
facts are clearly and fully developed.” Minn. R. 3310.2921 (Supp. 2014).
The Minnesota Rules “establish procedures for hearings conducted by
unemployment law judges.” Minn. R. 3310.2901 (Supp. 2014). The notice of hearing on
appeal from an ineligibility determination must include “a statement that the parties
should arrange in advance for the participation of witnesses they need to support their
position,” “a statement that a party may find out . . . names of the witnesses that the other
party intends to have testify at the hearing, and an explanation of the process for making
the request,” “a statement that subpoenas may be available to compel the . . . production
of documents,” and “a statement and documents submitted by the parties that documents
contained in the department’s records that will be introduced at the hearing as possible
exhibits will be sent to the parties in advance of the hearing.” Minn. R. 3310.2905, subp.
2(D)-(G) (Supp. 2014). A hearing may be rescheduled before the hearing in order to
permit a party “additional time to obtain necessary evidence,” or continued due to “the
need to obtain documents.” Minn. R. 3310.2908, subps. 1-2 (Supp. 2014).
Further, parties “may” submit their exhibits to the department, and the department
will mail or electronically transmit them to all parties in advance of the hearing. Minn.
R. 3310.2912 (Supp. 2014). In addition to this procedure, the ULJ may admit other
documents into evidence at the hearing, leaving the record “open for sufficient time for
the submission of a written response to the documents.” Id. Under the second scenario,
the ULJ “may, when appropriate, reconvene the hearing to obtain a response or permit
cross-examination regarding the late filed exhibits.” Id.7
In advance of the unemployment hearing, Arrowhead provided to relator the video
showing relator’s December 13 driving conduct, and the video was played at the hearing.
No other videos were offered into evidence by Arrowhead, and the ULJ relied heavily on
the December 13 incident in reaching its decision. Under these circumstances, any
claimed error in the ULJ’s handling of this issue does not mandate a remand for a new
hearing or further proceedings. See Minn. R. 3310.2922 (Supp. 2014) (“[A ULJ] is not
bound by statutory and common law rules of evidence. The rules of evidence may be
used as a guide in determining the quality of evidence offered.”); cf. Plowman v.
Copeland, Buhl & Co., 261 N.W.2d 581, 585 (Minn. 1977) (stating with regard to
documents “presented and discussed” at a ULJ hearing but not included in the evidence
on appeal, that “in view of the sufficiency of the evidence and because we are convinced
that the appeal tribunal’s decision would be affirmed even if the disputed documents
were considered by us, any failure to formally admit them is harmless”).
Affirmed.
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