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Elavsky v. Transport Express LLC

Court of Appeals of Minnesota

November 18, 2013

Neil Elavsky, Relator,
v.
Transport Express LLC, Respondent, Department of Employment and Economic Development, Respondent.

UNPUBLISHED OPINION

Department of Employment and Economic Development File No. 30375072-3

Neil Elavsky, Minneapolis, Minnesota (pro se relator)

Transport Express LLC, Eagan, Minnesota (respondent employer)

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

Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and Chutich, Judge.

CHUTICH, Judge

Relator Neil Elavsky challenges the unemployment-law judge's decision that he is ineligible for unemployment benefits because he was discharged for employment misconduct. Elavsky asserts that his actions were not employment misconduct and that the unemployment-law judge erred by not considering certain evidence. Because the judge correctly determined that Elavsky was discharged for employment misconduct and the alleged evidence would not likely have changed the outcome of the decision, we affirm.

FACTS

Relator Neil Elavsky worked at respondent Transport Express LLC (Transport Express) as a full-time freight broker and sales representative from October 1, 2012, to October 23, 2012. Transport Express is a freight brokerage company that assists businesses with their freight routing needs. Elavsky's duty was to call prospective businesses that may need help with moving freight.

During the first week of employment, Elavsky complained to Nick Schultheis, the owner of Transport Express, that his ability to make calls was being slowed down because it took seven seconds from the time he dialed a phone number to the time the call connected. Transport Express's phone vendor reviewed the issue and decreased the time to five seconds between dialing and connection.

By the end of the second week of Elavsky's employment, Schultheis noticed that he had stopped making phone calls. On October 23, 2012, Schultheis met with Elavsky to talk about why he had stopped. Elavsky told Schultheis that his calls were being monitored and routed to "mystery callers" and "secret shoppers" and that Transport Express had promised him "a clean phone line." After Schultheis asked what could be done so Elavsky could continue the employment, Elavsky requested a "clean copper phone line." Schultheis asked whether "there's any hope of this going forward as a positive relationship" when that "level of distrust exists, " and Elavsky agreed that there probably was no hope. Schultheis then told Elavsky that he was discharged for his failure to perform his job duties.

Elavsky applied for unemployment benefits from respondent Department of Employment and Economic Development (department), and the department determined that he was ineligible for benefits because he was discharged for employment misconduct. Elavsky appealed this determination, and the unemployment-law judge held a hearing at which Elavsky and Schultheis testified.

Elavsky testified that "[his] phone traffic declined, " describing the decline as significant. But he said "there were no days that I refused to make any phone calls whatsoever." He explained that he "couldn't make phone calls without audio interference from live call monitoring or [his] calls being routed to mystery callers" and that the reason for a company to use mystery callers and secret shoppers is "[t]o steal accounts, gain revenue for the business and to keep wages down." But he did not believe that he was being asked by Transport Express to do ...


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