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Kanany v. Walgreen Co.11/8/2005
Relator George Kanany challenges the order of the senior unemployment review judge (SURJ) adopting the decision of the unemployment law judge (ULJ) that relator was not entitled to benefits because he had been discharged for misconduct. Because the findings of fact are supported by the evidence, we affirm.
DECISION
Relator worked for respondent Walgreen Co. from October 2003 until his discharge in November 2004. When he was hired, he was informed of respondent's policies. One policy required the investigation of every sexual harassment claim; another policy provided that employees who did not cooperate with these investigations could be terminated.
About two weeks prior to relator's discharge, the store manager (SM) was told that another employee reported that relator had made inappropriate sexual remarks to her during a phone conversation. The SM contacted a loss prevention supervisor (LPS) to investigate. The LPS scheduled a meeting with relator. At the meeting, relator refused to provide or verify any information, including his name and his social security number.
The SM explained to relator, in private, that he had 24 hours in which to decide to cooperate with the investigation, that he should go home and come back 24 hours later, and that his failure to cooperate would result in termination. Relator then left the workplace and did not return. He was notified that he had been discharged.
Relator applied for unemployment benefits. A department adjudicator determined that relator was not entitled to benefits because he was discharged for misconduct, and relator appealed. A ULJ, after conducting an evidentiary hearing, affirmed that determination. Relator appealed again, and a SURJ, pursuant to Minn. Stat. § 268.105, subd. 2a(a) (2004), declined to conduct de novo review and issued an order adopting the ULJ's findings of fact and decision. Relator appeals from that order.
Misconduct is defined as "any intentional, negligent, or indifferent conduct . . . (1) that "displays clearly" a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee . . . ." Minn. Stat. § 268.095, subd. 6(a) (2004). A determination that an employee is not entitled to benefits for reasons of misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros. Inc., 346 N.W. 2d 159, 161 (Minn. 1984). However, whether an employee's acts constitute misconduct is a question of law that this court reviews de novo. Schmidgall v. FilmTec Corp., 644 N.W. 2d 801, 804 (Minn. 2002). This court will affirm the findings of fact as long as there is evidence that reasonably tends to support these findings. White v. Metro Med. Ctr. 332 N.W.2d 25, 26 (Minn. 1983).
The ULJ found that:
[Relator] would not verify his name or his social security number with [the LPS]. He refused to answer any questions until he was told what the issue was. [The LPS] then told him the issue had to do with improper remarks made during a telephone conversation. [Relator] continued to refuse to answer any questions.
The LPS testified that:
I asked [relator] to verify his name, and he said you know my name. And I said, well, I know what it says on the things here, but I need to verify your identity, and he said, no, what's the issue, I need to know what the issue is. And he repeated that throughout the entire initial questioning. He wouldn't answer any questions. He would not confirm his social security number. I asked, I said, well, is the information that is in the computer correct, and he said as far as I know it's correct in there. And I said, well, I printed out a cop
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