State of Minnesota, Respondent, vs. Ronald Richard Radke, Appellant.

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This opinion will be unpublished and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

C7-98-158

Michelle Andrews,

Relator,

vs.

Manpower, Inc.,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed September 29, 1998

Affirmed

Crippen, Judge

Dep't of Economic Security

File No. 7697UC97

Michelle Andrews, 1312 16th Avenue North, Minneapolis, MN 55411 (pro se relator)

Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner)

Considered and decided by Crippen, Presiding Judge, Toussaint, Chief Judge, and Klaphake, Judge.

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

CRIPPEN, Judge

Relator Michelle Andrews disputes the commissioner's representative's determination that she was not entitled to receive reemployment insurance benefits because she was separated from employment due to misconduct. We affirm.

D E C I S I O N

The determination of whether an employee committed disqualifying misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). We review the commissioner's representative's findings of fact in the light most favorable to the decision and we will uphold the decision if the evidence reasonably tends to sustain those findings. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). The employer bears the burden of proving by the greater weight of the evidence that it discharged the employee for misconduct. Lumpkin v. North Central Airlines, Inc., 296 Minn. 456, 459-60, 209 N.W.2d 397, 400 (1973). The ultimate determination of whether an employee is disqualified from receipt of reemployment benefits is a question of law that this court reviews de novo. Ress, 448 N.W.2d at 523.

Relator primarily contends that the findings of fact are incorrect. She argues that (1) she did not work on July 21 and 22 because she was given time off to take a trip to Chicago,[1] (2) that her supervisor at Manpower called her mother on July 22 and told her that relator was not to report to work the next day until she talked to her at Manpower, and (3) that her supervisor could not have been calling her for missing work at 7:45 a.m., on July 23 because she started work at 8:00 a.m.[2] Ultimately, relator claims that her supervisor's testimony was a lie, fabricated to conceal other reasons for her discharge.

Appellant's claims were contradicted by her supervisor's testimony. Thus, the commissioner's representative was forced to make a credibility determination and we must defer to the commissioner's representative on credibility issues. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). Because the supervisor's testimony supports the findings, they are not clearly erroneous.

Relator also challenges the representative's legal conclusion that she was discharged for misconduct. An employee who is discharged for misconduct is disqualified from receiving unemployment benefits. 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." Minn. Stat. § 268.09, subd. 12 (Supp. 1997). Contrary to relator's contentions, sustainable findings of fact, as well as the underlying evidence, support the representative's conclusions that relator's failure to call to report her absence on July 23 "indicated a lack of concern for her job" and that her conduct "exhibited a disregard of the duties and obligations implicit in the employment relationship." Relator was informed on three different occasions of the policy requiring her to call in and report her absences. See Kemp v. United States Dep't of Agric., 385 N.W.2d 879, 882 (Minn. App. 1986) (finding misconduct where employee ignored repeated warnings regarding attendance policy); Gustafson v. IRC Indus., 374 N.W.2d 594, 597 (Minn. App. 1985) (misconduct found where employee repeatedly failed to notify employer of absences). We affirm the representative's conclusion that relator's failure to call in on July 23 constituted disqualifying misconduct.

Affirmed.

[1] Appellant points to phone records in her appendix as evidence that she was in Chicago on those dates, but those records were not a part of the record before the commissioner's representative. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (prohibiting consideration of matters not received in evidence below).

[2] Relator's supervisor testified that relator's hours were either 7:30 a.m.-4:00 p.m. or 8:00 a.m.-5:00 p.m.