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Continued: Shoreview man wins benefits fight, months after his death

  • Article by: DAVID PHELPS , Star Tribune
  • Last update: January 25, 2012 - 8:43 AM

On the ice, Jim Cunningham was an enforcer, a strong man who wasn't afraid to get in a scrap to protect his teammates and win the game.

Cunningham's toughness propelled him through Mounds View High School to the junior leagues and into minor-league hockey. He made it all the way to National Hockey League, appearing in one game for the Philadelphia Flyers.

Later in life, Cunningham showed the same sort of grit as he recovered from a series of strokes. And when he believed he was unjustly fired from a stock clerk position, Cunningham wouldn't back down -- even though it meant facing off against Wal-Mart, the world's largest retailer. He won that fight from his grave.

Just one day after a key filing in his effort to recoup unemployment benefits, Cunningham was struck and killed by a train. In late December, the Minnesota Court of Appeals ruled that the state and Wal-Mart were wrong to deny unemployment benefits after Cunningham was fired.

"My dad felt he had been treated unfairly and he wanted to correct that," said his daughter Heidi Schauer. "The decision brought magic back to 2011, and Dad would have been proud of that."

Of the 31,000 judicial decisions involving state unemployment cases last year, 354 were taken to the Appeals Court. Of those, only seven were reversed.

Adding to the unlikelihood of his case, Cunningham was represented pro bono by Justin McCluskey, a law student from a legal aid clinic at William Mitchell College of Law. McCluskey had never argued a case in a courtroom prior to appearing before the state Court of Appeals on behalf of Cunningham.

"I'd be lying if I said I wasn't nervous, but it was not intimidating," said McCluskey, a 27-year old St. Paul resident who made the dean's list and graduated cum laude.

"It was never about money," the lawyer added. "It was about Jim being treated right."

Sidelined by strokes

Cunningham's one game in the NHL back in 1978 was notable for the two fights he had on the ice. You can even see one of them on YouTube.

"But Jim didn't like the fighting and walked away from hockey," said older brother Mike Cunningham, referring to the his brother's last season in 1983-'84.

So Cunningham, an avid outdoorsman and deer hunter, moved to Alaska and joined the crew of a commercial fishing boat. For four years, he made a living fishing for salmon and halibut, but the business soured after the Exxon Valdez oil spill in 1989.

He returned to Minnesota, where he mainly worked in construction, living quietly in Shoreview with his family of nine brothers and sisters and two daughters, Heidi and Amber. A devout Catholic, he attended church daily.

In November 2008, at the family deer shack near Floodwood, Minn., Cunningham's brother, Mike, found him on the floor, paralyzed and unable to speak. He'd had a stroke.

Cunningham was taken to a Duluth hospital, where he suffered another. Emergency brain surgery saved his life.

"When he came out of surgery he had physical, speech and occupational therapy," Mike Cunningham said. "He was in a wheelchair but he made a recovery."

But the strokes left Cunningham unable to handle more than one task at a time. He stopped doing roofing and siding jobs because he was afraid he would lose his balance.

In April 2009, Cunningham, then 51, began working part time at Sam's Club in Fridley as an overnight shelf stocker for $9.90 an hour. He worked in the gum section with a crew of 11. A year later, the overnight crew was cut to six, and Cunningham's responsibilities were expanded. But he had trouble handling the additional work and frequently forgot all of his duties.

Cunningham told his supervisors about his medical condition and the trouble he was having with the increasing obligations of his job.

When his work problems persisted, managers asked Cunningham to go home and write an "action plan" for correcting his deficiencies. But Cunningham knew there was nothing he could do, his family said.

"He told his bosses he was doing the best he could and could he just go back to doing what he had been doing," Mike Cunningham recalled. "He said he didn't know what to tell them. He said, 'I'm not going to write something that's a lie.'"

When he didn't return to work because he had no action plan, he was fired.

Law student takes case

Cunningham's experience is an illustration of recessionary pressures -- getting more work from fewer employees, said John Budd, a labor expert at the University of Minnesota's Carlson School of Management.

"It's also a modern tale about the intersection of work and workers with disabilities and physical limitations," Budd said. "That's where it becomes very difficult to navigate. Where can people with physical limitations find a way to contribute and earn a living for their family?"

After he was fired, Cunningham filed for unemployment compensation. Sam's Club parent, Wal-Mart, challenged Cunningham's eligibility and a state unemployment law judge determined that Cunningham was ineligible for benefits because he'd been fired for misconduct.

That's when William Mitchell's legal aid clinic became involved. Cunningham was referred to clinic co-director Peter Knapp, who assigned the case to McCluskey, one of his best students.

"We found Mr. Cunningham to be a very engaging man and a good client to work with," Knapp said. "He was unfailingly kind."

Cunningham, said McCluskey, "felt he had been wronged, but he was not out for blood. He wanted to set things right and then be on his way.''

McCluskey filed an appeal in January 2011, and the critical brief supporting the appeal on April 28.

The next day, Cunningham was hiking along railroad tracks near his Shoreview home. He apparently didn't hear the train.

"I talked to the family to see what they wanted to do," McCluskey said. "When they realized they could go forward, their sentiment was like their father's. They wanted the situation to be made right."

The oral argument before a three-judge Appeals Court panel was held in September. On Dec. 27, the court reversed the Department of Employment and Economic Development's denial of unemployment benefits.

"The conduct for which Cunningham was discharged was a consequence of his mental impairment, he did not commit employment misconduct," the court wrote.

The Appeals Court decision means Cunningham can be paid unemployment benefits until the time of his death, an amount estimated to be a couple of thousand dollars, which likely will go to his survivors.

Wal-Mart did not respond to two written requests for comment.

"We couldn't hope for a better outcome for him," said McCluskey, who has since passed the bar exam and is currently doing contract work while looking for full-time legal opportunities. "This is a memorial for Mr. Cunningham."

For his family, the case was a chance to connect to a father and brother one last time, said Schauer, Cunningham's daughter.

"This decision was a gift to us."

David Phelps • 612-673-7269

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  • James Cunningham lived with his two daughters and other family in Shoreview.

  • “He was not out for blood,” law professor and legal aid clinic co-director Peter Knapp, left, said of client Jim Cunningham. At right is Justin McCluskey, who argued Cunningham’s case.

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