Dan Delk, III, Relator v. Pan-O-Gold Baking Co. (Corp.), Department of Employment and Economic Development ( 2015 )

This opinion will be unpublished and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
A14-1269
Dan Delk, III,
Relator,
vs.
Pan-O-Gold Baking Co. (Corp.),
Respondent,
Department of Employment and Economic Development,
Respondent.
Filed April 20, 2015
Affirmed
Halbrooks, Judge
Department of Employment and Economic Development
File No. 32251008-3
Thomas H. Boyd, Matthew C. Robinson, Winthrop & Weinstine, P.A., Minneapolis,
Minnesota (for relator)
Pan-O-Gold Baking Co. (Corp.), St. Cloud, Minnesota (respondent)
Lee B. Nelson, Munazza Humayun, Minnesota Department of Employment and
Economic Development, St. Paul, Minnesota (for respondent Department of Employment
and Economic Development)
Considered and decided by Larkin, Presiding Judge; Halbrooks, Judge; and
Johnson, Judge.
UNPUBLISHED OPINION
HALBROOKS, Judge
Relator challenges the decision of the unemployment-law judge (ULJ) that he is
ineligible for unemployment benefits because he was discharged for employment
misconduct, arguing that he did not commit misconduct by failing to work two scheduled
shifts after his Family Medical Leave Act (FMLA) leave ended. We affirm.
FACTS
Relator Dan Delk, III was employed by respondent Pan-O-Gold Baking Co. as a
full-time production divider operator from September 2000 to January 6, 2014, when he
was discharged after failing to report for scheduled shifts on January 2 and 4. In May
2013, Pan-O-Gold had approved Delk’s request for a 12-week FMLA leave of absence to
undergo knee surgery, and after at least one extension, Delk was expected to return to
work in January 2014. The employer asserted that Delk expressly agreed to return to
work on January 2 and that he was told to check his schedule. Delk contends that no
particular return date was set and that he was awaiting a scheduling call from a
supervisor.
It is undisputed that Delk saw his nurse practitioner on December 31 and received
a medical statement clearing him to return to work as of that date. On January 4, a
supervisor called Delk and told him to report to a meeting with human resources on
January 6. On January 6, Delk returned to his nurse practitioner, told her that he had
been having transportation problems, and asked her to add “January 6” to his medical
clearance statement, which she did. Delk then met with human resources and offered the
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medical statement with two return-to-work dates on it. Pan-O-Gold discharged Delk
after the meeting. Delk’s separation notice provides that Delk “didn’t come back after
FMLA” and that he “[t]ried to cover up the reason why he didn’t come back.”
Delk applied for unemployment benefits and was found ineligible because he had
been discharged for employment misconduct. On appeal, the ULJ held a hearing at
which Delk and two human resources employees testified. The ULJ found that Delk
agreed to return to work on January 2, knew or should have known that he was scheduled
to work on January 2 and 4, and failed to return to work due to transportation problems.
The ULJ determined that Pan-O-Gold “discharged Delk because it believed Delk lied
about his reasons for not returning to work and because he was a no call/no show on
January 2 and 4” and that Delk is ineligible for unemployment benefits because he was
discharged for employment misconduct. Upon reconsideration, the ULJ affirmed the
decision. This certiorari appeal follows.
DECISION
We review a ULJ’s decision to determine whether a party’s substantial rights were
prejudiced because the findings, inferences, conclusion, or decision are unsupported by
substantial evidence in view of the record as a whole or affected by an error of law.
Minn. Stat. § 268.105, subd. 7(d) (2014). An employee who was discharged is eligible
for unemployment benefits unless the discharge was for employment misconduct. Minn.
Stat. § 268.095, subd. 4(1) (2014). “Employment misconduct” is “any intentional,
negligent, or indifferent conduct, on the job or off the job that displays clearly: (1) a
serious violation of the standards of behavior the employer has the right to reasonably
3
expect of the employee; or (2) a substantial lack of concern for the employment.” Id.,
subd. 6(a) (2014). Whether an employee engaged in employment misconduct presents a
mixed question of law and fact. Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn.
App. 2006). “Whether the employee committed a particular act is a question of fact.” Id.
Whether that act constitutes employment misconduct is a question of law, which we
review de novo. Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011).
I.
Delk argues that the ULJ’s factual findings that (1) Delk agreed that he would
return to work from medical leave on January 2, (2) Delk knew or should have known
that he was scheduled to work on January 2 and 4, and (3) transportation problems
hindered Delk’s return are unsupported by substantial evidence. Substantial evidence is
“(1) such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more
than any evidence; or (5) the evidence considered in its entirety.” Minn. Ctr. for Envtl.
Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 466 (Minn. 2002). “We
view the ULJ’s factual findings in the light most favorable to the decision . . . .” Skarhus,
721 N.W.2d at 344.
Delk and Pan-O-Gold’s human resources director contradicted each other’s
testimony on whether Delk agreed to return to work on January 2 and whether Delk knew
or should have known that he was scheduled to work on January 2 and 4. There was no
other direct evidence on these questions. The ULJ credited the human resources
director’s testimony, finding that “[i]t is believable that Delk originally agreed to return
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to work on January 2” and that the employer’s testimony was “credible because it was
persuasive, reasonable, and described a more plausible sequence of events.” The ULJ
found that the employer’s version was consistent with the date change on the nurse
practitioner’s note and with Delk’s testimony about transportation problems.
Delk testified that although he had asked to return to work in January and was
cleared to return to work as of December 31, he expected a supervisor to call him to
inform him of his schedule. But he also testified that on January 6, he asked his nurse
practitioner to alter his medical clearance statement because he had experienced
transportation problems. The human resources director testified that Delk had told him in
late November or early December that he would return to work on January 2 and that
Delk knew that it was his responsibility to confirm his schedule. Specifically, he
testified:
Every . . . employee is to check their own schedule. He was
told to check when his schedule was. . . . We have 1200
employees in this company. . . . The policy here is that the
employee, if they’ve been out of work, they check their own
schedule. They either call down here or they show up here
and check that schedule and he was told to do that.
The ULJ noted that her findings were “based in large part on the employer’s
testimony which was credible.” The ULJ implicitly discredited Delk’s testimony that he
had missed work because no one called to inform him of his schedule. Credibility
therefore had a significant impact on the ULJ’s decision. See Wichmann v. Travalia &
U.S. Directives, Inc., 729 N.W.2d 23, 29 (Minn. App. 2007) (concluding that credibility
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has a significant effect on the decision when the ULJ’s misconduct determination rests on
disputed testimony).
We defer to the ULJ’s credibility determinations when (1) the ULJ sets forth a
valid reason for crediting or discrediting testimony that may significantly affect the
ultimate decision and (2) the determinations are supported by substantial evidence.
Ywswf v. Teleplan Wireless Servs., Inc., 726 N.W.2d 525, 531-33 (Minn. App. 2007); see
also Minn. Stat. § 268.105, subd. 1a(a) (2014)1 (providing that the ULJ “must set out the
reason for crediting or discrediting that testimony” when the witness’s credibility “has a
significant effect on the outcome of a decision”). Delk argues that neither prerequisite to
deference is satisfied, and therefore we must reverse, or at least remand. We disagree.
The ULJ credited the human resources director’s testimony by weighing its plausibility in
light of the other evidence presented and evaluating its reasonableness.2 See Ywswf, 726
N.W.2d at 533 (providing that a comparison of testimony to other evidence is a
permissible factor in evaluating credibility). Although we encourage a more thorough
explanation of the reasons for crediting or discrediting a witness’s testimony, in the
context of this record we are satisfied that the ULJ’s explanation is sufficient.
1
The 2014 legislation recodified subdivision 1a(a) and merely clarified its language and
therefore applies to pending litigation. See Braylock v. Jesson, 819 N.W.2d 585, 588
(Minn. 2012) (“When the Legislature merely clarified preexisting law, the amended
statute applies to all future or pending litigation.”).
2
Notably, the ULJ did not credit all of the human resources director’s testimony. After
considering documentary exhibits, the ULJ rejected as speculation his testimony that
Delk could have returned to work on December 1, 2013, but was fulfilling other
obligations in December.
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Based on the testimony of the human resources director, Delk’s acknowledgment
that he had asked to come back to work in January and was cleared to return as of
December 31, his testimony that he told his nurse practitioner that he was experiencing
transportation problems—which was at odds with his testimony that he had missed shifts
due to lack of notice—and his effort to alter the medical clearance date on the statement,
we conclude that the ULJ’s reasons for her credibility determinations are supported by
the record. Because the ULJ gave reasons for her credibility determinations and they are
supported by the record, there is no basis to overturn the credibility determinations.
Giving deference to the ULJ’s credibility determinations, there is substantial
evidence in the record to support the findings that Delk agreed to return to work on
January 2, that he knew or should have known that he was scheduled to work on January
2 and 4, and that Delk did not return to work due to transportation problems. Viewing
the factual findings in the light most favorable to the decision, the factual findings are
supported by substantial evidence in view of the record as a whole. “[T]his court will not
disturb the ULJ’s factual findings when the evidence substantially sustains them.”
Peterson v. Nw. Airlines Inc., 753 N.W.2d 771, 774 (Minn. App. 2008), review denied
(Minn. Oct. 1, 2008). Thus, the ULJ’s factual findings will not be disturbed.
II.
Delk argues that the ULJ erred in determining that his conduct constituted
employment misconduct because his absences were the result of good-faith error,
miscommunication, and confusion regarding the FMLA policy. But because we uphold
the ULJ’s findings that Delk agreed to return to work on January 2, knew or should have
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known that he was scheduled to work on January 2 and 4, and missed work due to
transportation problems, we cannot conclude that his absences were the result of good-
faith error, miscommunication, or confusion regarding the FMLA policy.
Delk also argues that his two absences should be viewed as a single incident. If
the basis for the discharge “involved only a single incident, that is an important fact that
must be considered.” Minn. Stat. § 268.095, subd. 6(d) (2014). But Delk cites no
authority in support of his argument that missing work twice is a single incident. And
generally, a single unexcused absence from work may constitute a serious violation of the
standards an employer has the right to reasonably expect, unless the absence was “beyond
the employee’s control and did not display a disregard for employment.” Hanson v.
Crestliner Inc., 772 N.W.2d 539, 542-43 (Minn. App. 2009); see also Del Dee Foods,
Inc. v. Miller, 390 N.W.2d 415, 417-18 (Minn. App. 1986) (discussing several Minnesota
cases that have held that a single absence may constitute misconduct).
Even if Delk’s absences were characterized as a single incident, under the facts
found by the ULJ, this single incident would qualify as misconduct. See Hanson, 772
N.W.2d at 543; see also Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 806 (Minn.
2002) (“A single incident can constitute misconduct when an employee deliberately
chooses a course of conduct that is adverse to the employer.”). The ULJ’s factual
findings do not support a conclusion that Delk’s absences were beyond his control or that
he did not display a disregard for employment.
Failure to return to work after a medical leave ends may also demonstrate an
employee’s “substantial lack of concern” for the job and be characterized as disqualifying
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misconduct. See Fresonke v. St. Mary’s Hosp., 363 N.W.2d 328, 330 (Minn. App. 1985)
(interpreting 1983 version of the statute). And “[d]ishonesty that is connected with
employment may constitute misconduct.” Baron v. Lens Crafters, Inc., 514 N.W.2d 305,
307-08 (Minn. App. 1994); see also Skarhus, 721 N.W.2d at 342, 344 (concluding that
employee’s theft of an order of cheese bread and extra meat constituted disqualifying
misconduct because it undermined the employer’s ability to assign essential job functions
to her). The ULJ found that Pan-O-Gold discharged Delk in part because human
resources personnel believed he had lied about the reasons for failing to return after his
leave ended, and the record supports this finding.
“A good faith misunderstanding of the employer’s rules or policies does not
constitute misconduct.” Tuckerman Optical Corp. v. Thoeny, 407 N.W.2d 491, 493
(Minn. App. 1987). But the ULJ found that Delk knew or should have known that he was
supposed to be at work and did not report due to transportation problems. There was no
misunderstanding. We conclude that the ULJ did not err in determining that “Delk’s
conduct was a serious violation of standards of behavior the employer had a right to
reasonably expect and showed a substantial lack of concern for his employment,” and
that he is ineligible for unemployment benefits because he committed employment
misconduct.
Affirmed.
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