State of Minnesota, Appellant, vs. Brian Scott Ederhoff, Respondent.

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This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-97-2219

Gloria J. Magnuson,

Relator,

vs.

Creamery Cafe,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed July 7, 1998

Affirmed

Peterson, Judge

Department of Economic Security

File No. 7402US97

Gloria J. Magnuson, 311 4th Avenue North, Isanti, Minnesota 55040 (pro se relator)

Creamery Cafe, Darcar Inc., 104 West Main Street, Isanti, Minnesota 55040 (for respondent)

Kent E. Todd, 390 North Robert Street, St. Paul, Minnesota 55101 (for respondent Commissioner of Economic Security)

Considered and decided by Amundson, Presiding Judge, Peterson, Judge, and Shumaker, Judge.

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

Relator Gloria J. Magnuson challenges the decision of respondent Commissioner of Economic Security disqualifying her from receiving reemployment insurance benefits on the ground that respondent Creamery Cafe discharged her for misconduct. Magnuson argues that the record demonstrates that she never committed any misconduct and was unemployed through no fault of her own. We affirm.

FACTS

Magnuson worked as a waitress for Creamery Cafe. On July 7, 1997, Magnuson failed to show up at 7:30 a.m. for her scheduled shift. That morning at about 7:25, Magnuson called her boss, Darrell Carlberg, and said that she had overslept and would be into work in about 45 minutes. Carlberg told her that this would not be a problem because an extra server was on duty.

At about 7:37 a.m., Magnuson's husband called Creamery Cafe and told Carlberg that his wife would not be reporting to work that day because she had to babysit. Carlberg asked to talk to Magnuson, but her husband said she was in the bathroom and would have to call him back. Carlberg asked that Magnuson call him back within ten minutes. Carlberg waited 20 minutes, then called Magnuson again and left a message on her answering machine indicating that he would have to talk to her before she came in for her next scheduled shift. At about 8:50 a.m., Carlberg left another message on Magnuson's answering machine asking her to call him and informing her that she would be receiving a letter because she had not returned his calls.

Magnuson never showed up for her scheduled shift, and she did not return any of Carlberg's calls. On July 7, 1997, Carlberg mailed a certified letter to Magnuson telling her that she was discharged for failing to report for her scheduled shift and for not returning his telephone calls.

D E C I S I O N

The Commissioner contends that Magnuson's brief and appendix contain material that was not in the record below.

It is well settled that an appellate court may not base its decision on matters outside the record on appeal, and that matters not produced and received in evidence below may not be considered.

Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977). "[P]roduction of record evidence is never allowed in an appellate court for the purpose of reversing a judgment." Id. at 584.

The record in this case consists of the papers and exhibits filed with the reemployment insurance judge and the transcript of the hearing before the reemployment insurance judge. Minn. R. Civ. App. P. 110.01, 115.04. On review of reemployment insurance cases, the commissioner or an authorized representative makes findings "on the basis of the evidence submitted at the hearing before the reemployment insurance judge." Minn. Stat. § 268.105, subd. 3(b) (Supp. 1997). We will not consider any evidence not submitted to the reemployment insurance judge.

Magnuson contends that the commissioner's representative erred in considering hearsay evidence regarding a telephone conversation between her husband and Carlberg.

Economic security hearings may be conducted in conformance with the Commissioner's own rules, whether or not they are technically in compliance with the Minnesota Rules of Evidence or other rules of procedure. Hearsay may be admissible and sufficient to support the Commissioner's decision.

Youa TrueVang v. A-1 Maintenance Serv., 376 N.W.2d 479, 482 (Minn. App. 1985) (citations omitted). The hearsay evidence was properly considered by the commissioner's representative.

Magnuson argues that the record demonstrates that she never committed any misconduct and was unemployed through no fault of her own. She contends that the telephone conversation between her husband and Carlberg had nothing to do with her conduct and that Carlberg left only one message on her answering machine stating that she had been replaced for work on July 7 and 8, and requesting that she call Carlberg before her next scheduled shift on July 10.

On appeal, this court reviews factual findings in the light most favorable to the decision and will not disturb findings that are reasonably supported by the evidence. White v.Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). Whether an employee's "acts constitute misconduct is a question of law upon which this court is 'free to exercise its independent judgment'". Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32 (Minn. App. 1997) (quoting Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989)).

A claimant who is discharged from employment by an employer shall not be disqualified from benefits:

(1) unless the claimant was discharged because of misconduct that interfered with and adversely affected that employment.

Minn. Stat. § 268.09, subd. 10 (Supp. 1997).

Misconduct is intentional conduct showing a disregard of:

(1) the employer's interest;

(2) the standards of behavior that an employer has the right to expect of the employee; or

(3) the employee's duties and obligations to the employer. * * *

Id., subd. 12 (Supp. 1997).

Even a single incident can be misconduct if it represents a sufficient disregard for the employer's expectations. Blau v. Masters Restaurant Assos., Inc., 345 N.W.2d 791, 794 (Minn. App. 1984). A single unexcused absence may constitute misconduct. Del Dee Foods, Inc., v. Miller, 390 N.W.2d 415, 417 (Minn. App. 1986); see also Fresonke v. St. Mary's Hosp., 363 N.W.2d 328, 330 (Minn. App. 1985) (employee's failure to return to work, although an isolated incident, deliberately and directly contravened employer's directive and demonstrated employee's lack of concern for retaining job). Also,

if an employer's request is reasonable and does not impose an unreasonable burden on the employee, the employee's refusal to accede to that request constitutes misconduct.

Soussi v. Blue & White Serv. Corp., 498 N.W.2d 316, 318 (Minn. App. 1993).

Evidence in the record supports the findings that (1) Magnuson called Creamery Cafe and informed Carlberg that she had overslept and would be into work in about 45 minutes; (2) a short time later, Magnuson's husband called Carlberg and told him that Magnuson would not be into work because she had a prior commitment to babysit; (3) Carlberg requested that Magnuson call him back within 10 minutes; (4) Carlberg left two messages on Magnuson's telephone answering machine, requesting that Magnuson call him; and (5) Magnuson did not report to work, and she did not return any of Carlberg's telephone calls.

The record supports the commissioner's representative's conclusion that Magnuson was disqualified from receiving reemployment insurance benefits because she committed misconduct that showed a disregard for her employer's interests and a lack of concern for her job. Magnuson's failure to report for work and her failure to return Carlberg's telephone calls as requested constituted misconduct.

Even if it is true that the telephone conversation between Magnuson's husband and Carlberg had nothing to do with her conduct, the remaining evidence indicates that Magnuson called to say that she would be at work in 45 minutes, but she did not report to work. Also, although Magnuson contends that Carlberg left only one message on her answering machine and that the substance of the message was different than found by the commissioner's representative, there is contrary evidence that reasonably supports the findings regarding the telephone messages.

Affirmed.