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Schweitzer v. Job Service North Dakota

July 21, 2009

CRYSTAL SCHWEITZER, PETITIONER AND APPELLANT
v.
JOB SERVICE NORTH DAKOTA, RESPONDENT AND APPELLEE AND LM GLASFIBER (ND) INC., RESPONDENT



Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Karen Kosanda Braaten, Judge.

The opinion of the court was delivered by: Crothers, Justice.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

[¶1] Crystal Schweitzer appeals from a district court judgment affirming a Job Service decision concluding LM Glasfiber terminated Schweitzer's employment for reasons that constitute disqualifying misconduct and denying her claim for unemployment benefits. We affirm, concluding Job Service's findings of fact are supported by a preponderance of the evidence and its conclusion that Schweitzer engaged in disqualifying misconduct is supported by its findings.

I.

[¶2] Schweitzer began working full time for LM Glasfiber in February 2005, and later began working as a facilities associate doing janitorial work for the company. LM Glasfiber maintained its own staff of permanent workers, but also relied on temporary workers hired through Express Personnel Services, a staffing agency. The LM Glasfiber human resources department was responsible for hiring all employees including those hired through the staffing agency.

[¶3] In September 2007, Pam Hune, the production manager working during Schweitzer's shift, requested that Schweitzer provide some direction for the temporary janitorial workers, including directing where the workers were to clean and when they were to take breaks. Schweitzer testified she believed she was an unofficial lead worker without the pay increase that normally accompanied the position.

[¶4] On December 14, 2007, Schweitzer contacted Alysa Haugen, a representative of Express Personnel, to inquire about the possibility of hiring Schweitzer's brother for a position in Schweitzer's department. Schweitzer testified she told Haugen she was a lead without pay within the janitorial staff at LM Glasfiber and she wanted to recommend her brother for a position she believed was open in the janitorial department.

[¶5] On December 17, 2007, Haugen sent an email about Schweitzer's phone call to Rick Sandwick, a LM Glasfiber human resources department employee. Haugen's email said:

"Crystal Schweitzer contacted me on Friday, December 14 2007, stating that she was a shift supervisor at LM Glassfiber [sic] and that there was an opening in the maintenance (cleaning) weekend shift. She also stated that she wanted me to get her brother (Jodi Schweitzer) through our process and have him start.

"I informed her that I was unaware that there was an opening and that I am only contacted by Rick.

"She also informed me that Thomas Cogsdell was no longer an Express Employee and that he was LM's."

Sandwick testified he spoke to Haugen about this email on at least three occasions to verify the accuracy of her account of the phone call. Sandwick also received from Haugen a signed copy of the email attesting to the conversation.

[¶6] The LM Glasfiber human resources manager contacted Schweitzer to set up a meeting to discuss Haugen's email. The first meeting was cancelled, and the human resources manager attempted to reschedule it, but Schweitzer refused to attend the meeting unless the plant supervisor would be present. After an internal review of Schweitzer's phone call to Haugen, on January 18, 2008, the human resources manager sent Schweitzer a letter informing her LM Glasfiber was terminating her employment.

[¶7] Schweitzer filed a claim for unemployment benefits with Job Service of North Dakota. Job Service determined she was discharged for misconduct and denied her claim. Schweitzer appealed the decision and a hearing was held on March 4, 2008. During the hearing, Schweitzer attempted to submit audio tapes, but the appeals referee denied her request. The appeals referee found:

"The claimant denied representing herself as the shift supervisor. In the absence of direct testimony from the staffing service representative, it is not clear whether this individual misunderstood the claimant's title or, in the interest of ensuring that her brother have [sic] a chance at being hired, the claimant actually portrayed herself as someone in authority. The human resource director; however, spoke to the staffing service representative on at least three occasions to verify that her account of the matter was accurate. His testimony on that issue is deemed to be credible.

"What is clear is that the claimant telephoned the staffing service when she had no authority to do so. There was no indication by the employer that the vacancy within the maintenance department was going to be advertised or filled; thus, the claimant's statement to the staffing service representative was not true. The matter is further compounded by the claimant's directive to `begin the process' of getting her brother hired so he ...


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