Deborah Brakefield, Relator v. IND. School District 2889, Department of Employment and Economic Development

• Court: Court of Appeals of Minnesota
• Decided: October 14, 2014
• Docket: A14-233
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn.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 A14-0233

Deborah Brakefield, Relator,

vs.

IND. School District #2889, Respondent,

Department of Employment and Economic Development, Respondent.

Filed October 14, 2014 Affirmed Hooten, Judge

Department of Employment and Economic Development File No. 31630819-4

Deborah Brakefield, Audubon, Minnesota (pro se relator)

ISD #2889, Lake Park, Minnesota (respondent employer)

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

Considered and decided by Cleary, Chief Judge; Halbrooks, Judge; and Hooten,

Judge. UNPUBLISHED OPINION

HOOTEN, Judge

Relator challenges the decision by an unemployment law judge (ULJ) that she was

discharged for employment misconduct and is ineligible for unemployment benefits,

arguing that the ULJ improperly relied on hearsay and improperly interpreted other

evidence; that she was prejudiced because certain evidence was not available; and that

she had been subjected to discrimination and a hostile environment. Because substantial

evidence supports the ULJ’s decision, relator received a fair hearing, and she did not raise

claims of discrimination or a hostile work environment to the ULJ, we affirm.

FACTS

Respondent Independent School District #2889 employed relator Deborah

Brakefield as the director of community education in a part-time position from 2004

through September 12, 2013, when she was discharged for falsification of her timesheets.

Brakefield applied for unemployment benefits and established a benefit account on

September 15, 2013. The Minnesota Department of Employment and Economic

Development (DEED) issued a determination of ineligibility on the ground that she had

been discharged for employment misconduct. On October 15, 2013, Brakefield appealed

the ineligibility determination, and a telephonic hearing was held.

Dale Hogie, the superintendent of the school district and Brakefield’s direct

supervisor, testified that Brakefield was scheduled to work 20 hours per week, Monday

through Friday, with shifts lasting from either 8 a.m. to noon, or 8 a.m. to 2 p.m. In late

May 2013, he asked Brakefield’s assistant whether Brakefield would be in the office that

2 day. The assistant said that she would not and then spontaneously told Hogie that she

tracked Brakefield’s absences on her calendar. He asked for and received a copy of her

calendar for the months of February through May 2013. When the school district’s

attorney later asked the assistant why she had been tracking Brakefield’s attendance, she

explained that she was doing so for “self-protection,” because Brakefield often

questioned her authority to act on matters they had not previously discussed during times

that Brakefield was away from the office.

Hogie compared Brakefield’s timesheets with her assistant’s calendar and saw

discrepancies on February 4, 7, 12, 14, and 21, March 26, and April 2 and 9 (“the days in

question”), because Brakefield reported hours worked when, according to her assistant’s

calendar, she had not been in the office. Investigating further, Hogie instructed the

technology coordinator to review security footage from videos of the northwest parking

lot where Brakefield parked, and he learned that neither Brakefield nor her motor vehicle

appeared in the videos on the days in question. On other days, when Brakefield reported

leaving early on her timesheets but her assistant’s calendar indicated that she had left

even earlier, the technology coordinator reported that both Brakefield and her motor

vehicle were seen in the northwest parking lot on the video.1

Hogie also asked the technology coordinator to investigate Brakefield’s e-mails

for the days in question and learned that Brakefield did not send any outgoing e-mails on

1 These earlier-than-reported departures were not the basis for her discharge because her statements that she left earlier to perform job-related duties outside of the office were accepted.

3 these days. By contrast, a review of her e-mails for six random days when she was

working showed that she sent a minimum of four e-mails on each of those days.

Following this investigation, on July 30, 2013, Hogie notified Brakefield that he

was placing her on administrative leave. On August 2, 2013, he and the chairperson of

the school board met with Brakefield to ask her to explain the discrepancies. The matter

was then brought to the school board for a Loudermill hearing,2 where Brakefield was

represented by counsel. On September 12, the school board terminated relator’s

employment because she had reported working her usual shifts on her timesheets on days

that she had not worked.

At the hearing, the ULJ also asked Brakefield to address these discrepancies. She

claimed that her assistant had created false calendar entries to retaliate for complaints

Brakefield had made about her job performance. Hogie confirmed that Brakefield, as

well as her assistant, had reported their dissatisfaction with each other’s job performances

to him. As to the e-mails, Brakefield did not assert that the reports of her e-mail activities

were incorrect, but explained the lack of sent e-mails on the days in question by stating

that she did not send many e-mails from work.

As to the lack of her presence in the northwest parking lot on the days in question,

Brakefield testified that she sometimes parked in the east lot, which did not have video

coverage, and on those days, the security camera for the northwest lot would not have

2 Due process requires that a “tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S. Ct. 1487, 1495 (1985).

4 recorded her arrivals. Brakefield testified that she liked parking in the east lot better than

in the northwest lot, even though the entrance nearest to the east lot is further from her

office than the entrance nearest to the northwest lot. She explained that she has parked in

the east lot since 2004; she likes the people who park there; it was a handy entrance if she

needed to bring something in from her car, because a utility cart is available in the

kitchen near the east entrance; and the building entrance was not much further from her

office than the entrance by the northwest lot was. The fact that she has not had a key to

the east-lot building entrance since early 2013 did not deter her, because those doors were

still unlocked when she started at 8 a.m. and, if locked, someone would let her in. Upon

direct questioning by the ULJ, she acknowledged that she did park in the northwest lot

periodically, but only if the east-lot doors were already locked, or if she just needed to

drop something off quickly, because the northwest lot is closer to her office. Hogie

testified that he had no reason to believe that Brakefield parked in the east lot as she

claimed and that he believed that she parked in the northwest lot on a daily basis.

On November 7, 2013, the ULJ issued a decision, finding that on February 4, 7,

12, 14, and 21, March 26, and April 2 and 9, 2013, Brakefield did not work the hours that

she reported on her timesheets. As a result, she was paid for hours that she did not work.

The ULJ concluded that based on the evidence presented, Brakefield’s testimony to the

contrary was not credible. The ULJ stated that the school district had reasonable

expectations that Brakefield would report her actual hours of work, that Brakefield

overreported her hours worked on several occasions, and that she falsified her timesheets

to include days when she did not work. He concluded that Brakefield’s overreporting of

5 hours worked and falsification of her timesheets was employment misconduct and, as a

result, she was ineligible for unemployment benefits upon her discharge for such

misconduct. Brakefield requested reconsideration, and the ULJ affirmed. This certiorari

appeal followed.

DECISION

When reviewing the ULJ’s determination of ineligibility for unemployment

benefits, we may affirm the decision, remand it for further proceedings, or reverse or

modify it, if the relator’s substantial rights have been prejudiced because the findings,

inferences, conclusion, or decision are unsupported by substantial evidence or are

affected by error of law. 2014 Minn. Laws ch. 271, art. 1, § 1 at 1028−29 (to be codified

at Minn. Stat. § 268.105, subd. 7(d)(4), (5) (2014)).3 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; and (5) evidence considered in its entirety.” CUP Foods, Inc. v. City of

Minneapolis, 633 N.W.2d 557, 563 (Minn. App. 2001), review denied (Minn. Nov. 13,

2001). “When the credibility of a witness testifying in a hearing has a significant effect

on the outcome of a decision, the unemployment law judge must set out the reason for

crediting or discrediting that testimony.” 2014 Minn. Laws ch. 251, art. 2, §§ 15, 24(b)

(to be codified at Minn. Stat. § 268.105, subd. 1a(a) (2014)).4

3 The 2014 amendment affected only subdivision 7(b) and subdivision 7(d) was unchanged. 4 The legislature amended Minn. Stat. § 268.105, subd. 1(c) (2012), which addressed credibility determinations by the ULJ, making nonsubstantive changes and recodifying it

6 “This court views the ULJ’s factual findings in the light most favorable to the

decision. This court also gives deference to the credibility determinations made by the

ULJ. As a result, this 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) (citations omitted), review denied (Minn. Oct. 1, 2008). “Whether an

employee engaged in conduct that disqualifies the employee from unemployment benefits

is a mixed question of fact and law.” Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315

(Minn. 2011) (quotation omitted). We review factual findings in the light most favorable

to the ULJ’s decision, but “whether a particular act constitutes disqualifying misconduct

is a question of law that we review de novo.” Id.

An applicant who is discharged for employment misconduct is ineligible for

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

misconduct is defined as “any intentional, negligent, or indifferent conduct, on the job or

off the job that displays clearly . . . a serious violation of the standards of behavior the

employer has the right to reasonably expect of the employee; or . . . a substantial lack of

concern for the employment.” Minn. Stat. § 268.095, 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). Failure to abide by an employer’s timecard policy and falsely reporting time

as subdivision 1(d). An instruction to the revisor directed that new subdivision 1(d) is to be recodified as subdivision 1a(a). Because the amendment “merely clarifies preexisting law, the amended statute applies to all future or pending litigation.” Braylock v. Jesson, 819 N.W.2d 585, 588 (Minn. 2012).

7 worked may constitute employment misconduct. Ruzynski v. Cub Foods, Inc., 378

N.W.2d 660, 662−63 (Minn. App. 1985) (holding that applicant who left work at 9:50

p.m. but signed out at 10:00 p.m. without obtaining the manager’s approval engaged in

employment misconduct).

Brakefield first challenges the ULJ’s findings because they were based in part on

hearsay. She contends that this was unfair because she did not have the opportunity to

cross-examine her former assistant or the technology coordinator, who did not testify.

“An unemployment law judge may receive any evidence that possesses probative value,

including hearsay, if it is the type of evidence on which reasonable, prudent persons are

accustomed to rely in the conduct of their serious affairs.” 39 Minn. Reg. 147, 154 (Aug.

4, 2014) (to be codified at Minn. R. 3310.2922 (Supp. 2014)); see Lamah v. Doherty

Emp’t Group, Inc., 737 N.W.2d 595, 603 (Minn. App. 2007). First, the ULJ properly

considered hearsay evidence, because Hogie, as the school superintendent, reasonably

relied on the statements from relator’s assistant and his technology coordinator. Second,

the ULJ’s findings as to relator’s misconduct was substantially supported by other

evidence in the record. The ULJ properly considered the hearsay evidence and there is

no reason to conclude otherwise.

Next, Brakefield contends that the ULJ unfairly credited the evidence that she did

not send any e-mails during work hours on the days in question and that it put her at a

disadvantage, because determining that lack of e-mail activity equated to job performance

or work activity set an unfair precedent. The ULJ did not rule that her failure to send e-

mails meant that she did not report to work on a particular day as a matter of law.

8 Instead, the ULJ considered the specific, undisputed facts, namely, that on a typical day,

she sent a minimum of four e-mails, while on the days in question, she sent none, along

with the rest of the evidence bearing on the issue of whether she had reported to work on

the days in question.

Brakefield next contends that she was unfairly prejudiced by the lapse of 67 days

between the time that Hogie first learned that she may have falsified her timesheets in

late May 2013, and the time that she was notified of this suspicion on August 2, 2013.

She contends that this did not allow her to reasonably defend herself, because all

evidence that would have supported her had been “purged” (recorded over) by that time,

referring to videos of the east lot and the login data. But the record shows Brakefield

acknowledged that no videos were taken of the east lot, although it appeared the login

data was not available after 30 days. The ULJ made every effort to give Brakefield a fair

hearing by painstakingly questioning her about the employer’s evidence and her claims

that she was at work on the days in question, and inviting her to provide any evidence

that would support her claim. The lack of login data after a 30-day period does not

provide grounds for reversing the ineligibility determination.

Next, Brakefield asserts that Hogie discriminated against her based on age and

disability. She also contends that she established that she was working in a hostile

environment. Brakefield did not raise these issues to the ULJ and cannot raise the issues

for the first time on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988)

(stating that generally, appellate courts must consider only issues presented to and

considered by the district court).

9 Finally, Brakefield contends that her assistant was a disgruntled employee who

had a motive to turn from the truth with malicious intent. The ULJ did not credit this

theory and it is not supported by record evidence. First, it was just happenstance that

Hogie learned that Brakefield’s assistant had been tracking Brakefield’s absences on her

calendar, when she spontaneously told him about it after he inquired whether Brakefield

would be in the office that day. Second, upon inquiry, the assistant explained to the

school district’s attorney that she had been tracking Brakefield’s attendance for “self-

protection” against Brakefield, because Brakefield questioned her authority to act when

Brakefield was out of the office. There was no evidence to support Brakefield’s

argument.

The ULJ considered Brakefield’s testimony that she did not falsify her timesheets

and that she worked as she reported; her challenges to the employer’s evidence on the

ground that it was largely circumstantial; her claim that her assistant’s records were

inaccurate; and her claim that Hogie and her assistant wanted her removed from

employment because they did not like her. In contrast, the ULJ cited the employer’s

evidence, which included her assistant’s calendar; video surveillance of the school’s

northwest parking lot, which showed no evidence of her presence on the days in question;

and the e-mail records, which showed that she had no outgoing e-mails on the days in

question. The ULJ held that “[c]onsidering [the assistant’s] records and report, the e-mail

records and the video footage, a preponderance of the evidence supports the employer’s

claims. Brakefield’s testimony is not credible.” See Peterson, 753 N.W.2d at 774

(holding that this court will not disturb the ULJ’s factual findings when the evidence

10 substantially sustains them). We have exhaustively reviewed the record and find no

reason to disturb the ULJ’s findings and credibility determinations. We hold that the

ULJ’s decision is supported by substantial evidence in the record and affirm.

Affirmed.