Pamela L. Ott, Relator v. Timberland Partners Management Co. (Corp), Department of Employment and Economic Development

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA
IN COURT OF APPEALS
A13-2222

Pamela L. Ott,
Relator,

vs.

Timberland Partners Management Co. (Corp),
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed August 25, 2014
Affirmed
Larkin, Judge

Department of Employment and Economic Development
File No. 31492531-3

Pamela L. Ott, Apple Valley, Minnesota (pro se relator)

Malcolm P. Terry, Sarah Lynn Krans, Bernick Lifson P.A., Minneapolis, Minnesota (for
respondent employer)

Lee B. Nelson, Minnesota Department of Employment and Economic Development,
St. Paul, Minnesota (for respondent department)

Considered and decided by Larkin, Presiding Judge; Bjorkman, Judge; and Smith,

Judge.
 UNPUBLISHED OPINION

LARKIN, Judge

Relator challenges an unemployment-law judge’s decision that she is ineligible for

unemployment benefits because she was discharged for employment misconduct. We

affirm.

FACTS

Relator Pamela L. Ott began working for respondent Timberland Partners

Management Co. as a community manager in 2012. Ott was discharged on August 1,

2013. Ott established an unemployment-benefits account with respondent Department of

Employment and Economic Development (DEED), and DEED issued a determination of

eligibility. Timberland appealed the determination, and an unemployment-law judge

(ULJ) held a telephonic hearing. The ULJ concluded that Ott was discharged for

employment misconduct and is therefore ineligible for unemployment benefits. Ott

requested reconsideration, and the ULJ affirmed the decision. This certiorari appeal

follows.

DECISION

This court may reverse or modify a ULJ’s decision “if the substantial rights of the

petitioner may have been prejudiced because the findings, inferences, conclusion, or

decision” are “unsupported by substantial evidence in view of the entire record as

submitted” or “affected by other error of law.” Minn. Stat. § 268.105, subd. 7(d) (2012).

Substantial evidence is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Minneapolis Van & Warehouse Co. v. St. Paul

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Terminal Warehouse Co., 288 Minn. 294, 299, 180 N.W.2d 175, 178 (1970) (quotation

omitted).

An employee who is discharged for employment misconduct is ineligible to

receive unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2012). Employment

misconduct means “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 expect of the employee; or (2) a substantial lack of concern for

the employment.” Id., subd. 6(a) (2012). “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 an employee committed employment misconduct “is a mixed question of

fact and law.” Id. Whether a particular act constitutes employment misconduct is a

question of law, which we review de novo. Scheunemann v. Radisson S. Hotel, 562

N.W.2d 32, 34 (Minn. App. 1997). Whether the employee committed the particular act,

however, is a question of fact. Id. We review the ULJ’s factual findings “in the light

most favorable to the decision” and defer to the ULJ’s credibility determinations.

Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).

The ULJ found that Ott was discharged for three reasons. First, Ott failed to meet

Timberland’s expectations regarding her supervision of J.S., a maintenance supervisor.

Second, Ott was unreasonably behind on her invoicing duties. Third, Ott submitted a

false report regarding the status of vacant apartments. Because the third finding is

dispositive, we address it first.

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 At the hearing before the ULJ, Ott’s supervisor testified that Ott’s responsibilities

as a community manager included preparation and submission of a report indicating

whether recently vacated apartments were “rent ready.” Ott’s supervisor explicitly

instructed her to personally inspect each vacant apartment prior to submitting the report.

Ott acknowledged that she submitted her July 2013 report without personally inspecting

the apartments and, as a result, inaccurately reported that several apartments were rent

ready. Ott’s failure to personally inspect the apartments before submitting her report, as

Timberland reasonably requested, is employment misconduct. See Schmidgall, 644

N.W.2d at 804.

Ott argues that “[i]t is not employment misconduct if the performance problem

was a single incident which did not have a significant negative effect on the employer.”

Under Minnesota Statutes, “[i]f the conduct for which the applicant was discharged

involved only a single incident, that is an important fact that must be considered in

deciding whether the conduct rises to the level of employment misconduct.” Minn. Stat.

§ 268.095, subd. 6(d) (2012).

We conclude that Ott’s failure to comply with Timberland’s reasonable request

that she personally inspect vacant apartments before including them in her report rises to

the level of single-incident employment misconduct. By submitting the report, Ott

implied that she had personally inspected the apartments as she had been instructed to do.

That was a false representation, and it resulted in an inaccurate report. Because the report

was an act of dishonesty that prevents Timberland from entrusting Ott with her job

duties, it rises to the level of employment misconduct. See Skarhus, 721 N.W.2d at 344

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(concluding that a cashier’s theft “had a significant adverse impact on the employer” and

thus “did not fall under the [then-existing] single-incident exception to employment

misconduct set forth in Minn. Stat. § 268.095, subd. 6 (2004),” because “Davanni’s could

no longer entrust [the cashier] with . . . the essential functions of the job”).

Ott argues that she assumed the apartments were rent ready because she “had

provided J.S. [(the maintenance supervisor)] detailed work orders for each item in need

of maintenance in each apartment.” But Ott testified at the hearing that J.S. was not

performing up to her expectations and that she had been instructed to document J.S.’s

failures. In addition, Ott testified that the day before her report was due, she went to the

rental property looking for J.S. and was informed that no one had seen him. Nonetheless,

Ott submitted a report stating that the apartments were rent ready without personally

inspecting them. Given Ott’s testimony regarding J.S.’s inadequate performance and her

knowledge that he had not been at the property the day before her report was due, Ott

cannot justify her failure to personally inspect the apartments by relying on what appears

to have been an unreasonable assumption that J.S. would complete the work orders.

Ott also argues that she relied on “[t]he precedent . . . that changes could be made

on the [report]” after submission. This argument is unpersuasive. Ott testified that she

intended to personally inspect the apartments before submitting her report and that she

“made a mistake by doing the report first.” In addition, Ott heavily focuses on her

positive July 2, 2013 annual performance review. Because Ott’s review is not part of the

record, we cannot consider it. See Appelhof v. Comm’r of Jobs & Training, 450 N.W.2d

589, 591 (Minn. App. 1990) (stating that on certiorari review of an unemployment-

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benefits hearing, “evidence which was not received below may not be reviewed as part of

the record on appeal”). Even if the performance review were considered, it would not

negate Ott’s intentional submission of a false report, which “undermined” Timberland’s

“ability to assign [her] the essential functions of the job.” See Skarhus, 721 N.W.2d at

344.

Lastly, Ott argues that the ULJ’s findings of fact are inaccurate regarding her

employment start date, the contents of an “action plan,” and the date on which Ott’s

supervisor learned of her invoice backlog. But to prevail on certiorari review, Ott must

show that her substantial rights were prejudiced. See Minn. Stat. § 268.105, subd. 7(d).

The challenged findings are not relevant or necessary to the ULJ’s supported finding that

Ott submitted a false report to her employer. Therefore, even if the challenged findings

are inaccurate, they do not prejudice Ott or provide a basis for reversal.

Because the false report constitutes employment misconduct, it is unnecessary to

determine whether Ott’s failure to meet Timberland’s expectations regarding supervision

of J.S. and compliance with invoicing procedures is also employment misconduct. We

nonetheless note that it is difficult to reconcile Timberland’s testimony that members of

Ott’s staff were not “meeting . . . the company’s expectations” and that invoicing can be a

“daunting task,” and the ULJ’s findings that Ott generally worked hard and that there

were staffing shortages, with a misconduct determination. See Minn. Stat. § 268.095

subd. 6(b)(2), (3), (5) (2012) (stating that the following is not misconduct: “conduct that

was a consequence of the applicant’s inefficiency or inadvertence,” “simple

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unsatisfactory conduct,” or “conduct that was a consequence of the applicant’s inability

or incapacity”).

In sum, Ott’s intentional submission of a false report in violation of her

employer’s reasonable request that she personally inspect apartments before submitting

an apartment readiness report is employment misconduct. The ULJ therefore did not err

in determining that Ott is ineligible for unemployment benefits.

Affirmed.

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