Jonathan T. Almquist, Relator, vs. Infoscan Inc., Respondent, Commissioner of Employment and Economic Development, Respondent.

Jonathan T. Almquist, Relator, vs. Infoscan Inc., Respondent, Commissioner of Employment and Economic Development, Respondent. A04-1733, Court of Appeals Unpublished, July 5, 2005.

This opinion will be unpublished and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

A04-1733 Jonathan T. Almquist,
Relator,
 
vs.
 
Infoscan Inc.,
Respondent,
 
Commissioner of Employment and Economic Development,
Respondent.

 

Filed July 5, 2005

Affirmed

Stoneburner, Judge

 

Department of Employment and Economic Development

File No. 11210 04

 

Jonathan T. Almquist, 251 Carriage Lane, Burnsville, MN 55306 (pro se relator)

 

Infoscan, Inc., Suite 4200, 80 South Eighth Street, Minneapolis, MN 55402-2223 (respondent employer)

 

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

 

            Considered and decided by Hudson, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.

U N P U B L I S H E D  O P I N I O N

STONEBURNER, Judge

 

            Relator Jonathan T. Almquist challenges the senior unemployment review judge's (SURJ) decision which adopted, without further review, the decision of the unemployment law judge (ULJ) that relator was terminated from employment for employment misconduct and is, therefore, disqualified from receiving unemployment benefits.  We affirm.

FACTS

 

            Relator, whose employment involved a certain amount of driving to visit clients, received a DWI on June 13, 2004, and was informed at the time that his driver's license would be suspended on June 21.  Relator did not relay this information to his employer until June 21, when he told his supervisor that he was going to the department of motor vehicles to apply for a work permit, which would allow him to drive for employment purposes. 

At the DMV, relator learned he could not get a work permit for several weeks and called his supervisor to report that he would not be returning to work.  His supervisor told him to return by taxi, but relator declined to do so because of the cost.  His supervisor had difficulty contacting relator for the rest of that day, but the president of the company finally reached relator by cell phone, and relator agreed to come to an 8:00 a.m. meeting on June 22. 

Late at night on June 21, relator went to his office, retrieved his computer, and left a Post-it note informing his supervisor that he was taking "a couple of days" as personal leave.  Relator did not attend the meeting on June 22 and could not be contacted for the entire day.  The letter terminating his employment was drafted on June 22.  Relator acknowledged that he did not follow the correct procedure for obtaining personal leave, which had to be approved by the supervisor. 

Relator was initially found to be disqualified from receiving unemployment benefits, and after a hearing, the disqualification was affirmed by a ULJ.  Relator appealed.  A SURJ determined that no material facts were in dispute, declined further review, and affirmed the decision of the ULJ.  This appeal by writ of certiorari followed.

D E C I S I O N

 

            Whether a discharged employee engaged in employment misconduct is a mixed question of fact and law.  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  We defer to findings of fact that are reasonably sustained by the record.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  But whether an act constitutes employment misconduct is a question of law, which we review de novo.  Id.  "When the parties have presented conflicting evidence on the record, this court must defer to the [agency decision-maker's] ability to weigh the evidence; we may not weigh that evidence on review."  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

            Generally, an employee who is discharged due to employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (Supp. 2003).[1]  Employment misconduct is "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."  Id., subd. 6.

            In this case, the ULJ found that relator displayed a substantial lack of concern for his employment when he "took unauthorized time off from work on June 21 and June 22, 2004, . . . failed to give proper notice to the employer about his absences, and failed to maintain contact with the employer."  The record supports these determinative facts, which were not in material dispute.

            The employer testified that Almquist had previously been orally warned about tardiness and absenteeism.  The employer provided an "events list" that purportedly documented several incidents of tardiness or absenteeism and three oral warnings.  Relator presented an exhibit challenging the events list, stating that he was with a client, working at home, or, in one case, on jury duty on the dates of the purported incidents.  And relator testified that he was never told that his working hours were 8 a.m. to 5 p.m. or warned about tardiness or absenteeism.  But relator admitted that he failed to return to work on June 21, did not attend a scheduled meeting on the morning of June 22, and failed to follow company policy to obtain personal leave.  Relator also admitted that he was not in contact with his employer on June 22.  The employer testified that it was the events of June 21 and 22 that led to relator's termination from employment.

            Absenteeism is a form of employment misconduct.  Smith v. Am. Indian Chem. Dependency Diversion Project, 343 N.W.2d 43, 45 (Minn. App. 1984).  An employee who fails to give proper notice of intended absences and fails to comply with attendance policies demonstrates a lack of concern for his employment.  Edwards v. Yellow Freight Sys., 342 N.W.2d 357, 359 (Minn. App. 1984).  We conclude that relator's failure to come to work on the afternoon of June 21 and on June 22, his unauthorized use of personal leave, and his unavailability to his employer, who had a legitimate need for information from relator, demonstrated relator's substantial lack of concern for his employment constituting employment misconduct.

            Affirmed.

[1] The revisor's office inadvertently substituted the term "ineligible for" for the term "disqualified from" in Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (Supp. 2003).  See Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (2002) (using term "disqualified from"); 2003 Minn. Laws 1st Spec. Sess. Ch. 3, art. 2, § 11 (making other changes to Minn. Stat. § 268.095, subd. 1, § 20(j), (k) (directing revisor to change the term "disqualified from" to "ineligible for" only in Minn. Stat. § 268.095, subd. 12, and then to renumber the subsection to Minn. Stat. § 268.085, subd. 13(b)).