Gregory C. Zupfer, Relator, vs. Sears Roebuck and Co., Respondent, Commissioner of Employment and Economic Development, Respondent.

Gregory C. Zupfer, Relator, vs. Sears Roebuck and Co., Respondent, Commissioner of Employment and Economic Development, Respondent. A04-1167, Court of Appeals Unpublished, March 15, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1167

 

 

Gregory C. Zupfer,

Relator,

 

vs.

 

Sears Roebuck and Co.,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

 

Filed March 15, 2005

Affirmed

Halbrooks, Judge

 

 

Department of Employment and Economic Development

File No. 2318 04

 

Gregory C. Zupfer, 8001 12th Avenue South, Apartment 211, Bloomington, MN 55425 (relator)

 

Sears Roebuck and Co., c/o Talx UCM Services, Inc., P.O. Box 283, St. Louis, MO 63166-0283 (respondent)

 

Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent commissioner)

 

 

            Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            By writ of certiorari, relator challenges the order of the Department of Employment and Economic Development commissioner's representative disqualifying him from receiving unemployment benefits.  Because the record reasonably supports the decision of the commissioner's representative that relator quit without good cause, we affirm. 

FACTS

            Relator Gregory C. Zupfer was employed as a seasonal cashier at Sears Roebuck and Co. from October 15, 2003, to January 3, 2004.  All seasonal employees were to be terminated on January 3, but Sears invited relator to continue working beyond the seasonal period.  At first, relator accepted the position.  But on December 27, he notified Sears that his last day of employment would be January 10.  Because seasonal employment ended on January 3, Sears notified him that if he did not accept a permanent position, his employment would be terminated on January 3.  He agreed to work until January 3.  On December 29, relator called Sears' attendance line to report that he would not be coming in that day.  Relator did not show up for work on the four days he was scheduled during the week of December 29. 

            A Department of Employment and Economic Development (department) adjudicator determined that relator was disqualified from receiving unemployment benefits.  Relator appealed the determination but did not appear at the scheduled evidentiary hearing before the unemployment law judge (ULJ).  Two witnesses appeared and testified on Sears' behalf.  The ULJ concluded that Sears discharged relator because relator submitted a resignation effective January 10, 2004.  The ULJ determined that relator was disqualified "effective on the Sunday of the week which contains the intended date of quitting."  Relator appealed the ULJ's decision to the department, and the commissioner's representative concluded that (1) Sears discharged relator for employment misconduct, (2) relator quit without good reason caused by the employer, and (3) relator was disqualified from receiving benefits.  This appeal follows.  

D E C I S I O N

            On appeal, we grant considerable deference to a decision by the commissioner's representative.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  We review the factual findings of the commissioner's representative in the light most favorable to the representative's decision.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  We will only disturb these findings if the record could not reasonably tend to support them.  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  We also defer to the commissioner's representative's determinations regarding witness credibility and conflicting evidence.  Jenson v. Dep't of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000).  But the commissioner's representative's determination that a person is ineligible to receive unemployment compensation is a question of law, which we review de novo.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

Employment misconduct is defined by statute as "any intentional, negligent, or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment."  Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003).  To amount to employment misconduct under Minn. Stat. § 268.095, subd. 6(a)(1), an employee's conduct must "(1) be intentional and (2) disregard standards of behavior the employer has a right to expect or the employee's duties and obligations to the employer."  Houston v. Int'l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  Absence because of illness or injury with proper notice to the employer is not employment misconduct.  Minn. Stat. § 268.095, subd. 6(a).

            Here, the commissioner's representative found that relator accepted an offer of continuing work but later gave notice that he was quitting and that his last day of work would be January 10, 2004.  The commissioner's representative found that relator was discharged on January 3 because he failed to report for scheduled work on four days.  The commissioner's representative concluded that relator's failure to report for work "evinced a serious violation of the standards of behavior an employer has the right to reasonably expect of an employee and a substantial lack of concern for his employment."

            Relator argues the commissioner's representative erred in finding that he committed misconduct because he called the store each day he missed work and reported that he was not feeling well.  Relator also asserts that he assumed he was not required to go to work.  According to relator, someone at the store told him on December 29 to quit calling because he was not welcome there.  Evidence in the record supports the commissioner's representative's findings that relator only called in on the date of his first absence and that he did not say he was not feeling well.  Because we defer to the commissioner's representative's determinations of credibility and of the weight of the evidence, we will not re-evaluate the credibility of the parties or re-weigh the evidence.  See Jenson, 617 N.W.2d at 631 (noting that credibility decisions rest with the commissioner's representative and that testimony should not be "reweighed on appeal").  Because the record contains support for the commissioner's representative's conclusions, the commissioner's representative did not err in concluding that relator committed employment misconduct.

            The commissioner's representative also concluded that relator quit on January 10.  Because we agree with the commissioner's representative conclusion that relator was discharged for misconduct and disqualified from unemployment payments as of January 3, 2004, we do not reach this additional issue.

            Affirmed.