James A. Gregg, Relator, vs. Buffalo Veneer & Plywood Co., Respondent, Department of Employment and Economic Development, Respondent.

James A. Gregg, Relator, vs. Buffalo Veneer & Plywood Co., Respondent, Department of Employment and Economic Development, Respondent. A04-2160, Court of Appeals Unpublished, August 9, 2005.

This opinion will be unpublished and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

A04-2160

 

James A. Gregg,

Relator,

 

vs.

 

Buffalo Veneer & Plywood Co.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed August 9, 2005

Affirmed

Kalitowski, Judge

 

Department of Employment and Economic Development

File No. 13935 04

 

James A. Gregg, 913 Sixth Avenue Northeast, Apartment 108, Buffalo, MN 55313-1866 (pro se relator)

 

Buffalo Veneer & Plywood Co., P.O. Box 95, Buffalo, MN 55313-0095 (respondent)

 

Linda A. Holmes, Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent Department of Employment and Economic Development)

 

            Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Relator James Gregg challenges the decision of the senior unemployment review judge that relator was discharged from his employment because he engaged in willful misconduct and was thus disqualified from receiving unemployment benefits.  We affirm. 

D E C I S I O N

            Appellate courts review the findings of the senior unemployment review judge (SURJ) rather than those of the unemployment law judge (ULJ).[1]  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Here, the SURJ adopted the findings of fact and decision of the ULJ as the final findings of fact and decision.  We review these factual findings in the light most favorable to the decision to determine whether the evidence reasonably sustains them.  Ress v. Abbott NW. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). 

            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).  But whether an act constitutes employment misconduct is a question of law, which we review de novo.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  "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).

            A discharged employee is disqualified from receiving unemployment benefits only if the individual was discharged for employment misconduct.  Minn. Stat. § 268.095, subd. 4(1) (2004).  "Employment misconduct" is defined to include "any intentional, negligent or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment."  Id., subd. 6 (2004).  Absence because of illness or injury does not constitute employment misconduct, if the employee provides proper notice to the employer.  Id. 

            Relator worked as a laborer for respondent Buffalo Veneer and Plywood Company from March 20, 2003, until he was discharged on August 13, 2004.  Respondent required absent employees to call one of three supervisors between 8:00 a.m. and 9:00 a.m. on the day of the absence.  Relator concedes that he was given a copy of respondent's attendance policy, but claims on appeal not to have known that he could be discharged for failing to call in between 8:00 a.m. and 9:00 a.m. when absent.  The attendance policy reads in part as follows:

1.         If you are unable to work your assigned shift you must call between the hours of 8:00 a.m. and 9:00 a.m. and speak with Judy, Paul, or Wally.

            . . . .

 

5.         Two missed workdays without a call is cause for immediate dismissal.

            Relator asserts that "[i]t doesn't state in the policy that there would be any type of punishment" for not calling between 8:00 a.m. and 9:00 a.m., and he interprets the above-quoted language to mean that "if an employee did not phone within two days that employee could be terminated."   The SURJ did not address this argument, and the record does not show that relator raised it at the hearing before the ULJ.  Therefore, we do not reach the argument on appeal.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that appellate courts generally will not consider matters not argued and considered by the district court).

            Importantly, relator does not challenge the finding that in 2004 he was absent at least eight times without calling in before 9:00 a.m.  Nor does relator take issue with the finding that he was warned several times that he had to call in before 9:00 a.m. if he was going to be absent.  Rather, relator states that he sometimes did not call in before 9:00 a.m. and that there were occasions where he notified his employer "by going to the office in person or telling [a supervisor] one or two days in advance."  Relator claims that the attendance policy was not consistently enforced and that he was discharged in retaliation for confronting a supervisor about the supervisor's abusive behavior.  But relator failed to present this retaliation argument in the hearing before the ULJ.  And we will not address it for the first time on appeal.  See id.

            The SURJ adopted specific findings that relator was absent without calling in before 9:00 a.m. on August 9, 10, and 11, 2004.  On appeal, relator appears to take issue with the finding related to August 9.  But at the hearing before the ULJ, relator reviewed a note written by respondent's human resources manager documenting relator's absences on August 9-12, 2004, and his failure to call before 9:00 a.m. on those days.  Relator made no specific challenge to the contents of the note.  And when asked why he did not call in before 9:00 a.m. on those days, relator simply stated that he could not answer that question and did not know what occurred on those days, but that respondent was well aware of the fact that he would need to miss work because of his illness and his wife's illness.

The record supports the findings of fact that relator violated respondent's attendance policy when he was absent from work without calling in between 8:00 a.m. and 9:00 a.m. on August 9, 10, and 11, 2004.  Respondent had a right to the reasonable expectation that relator would follow the attendance policy.  Because relator's conduct showed a substantial lack of concern for his employment, we affirm the determination that appellant was discharged because of employment misconduct and was properly disqualified from receiving unemployment benefits. 

            Affirmed.

[1] The legislature recently substituted the term "senior unemployment review judge" for "representative of the commissioner."  See 2004 Minn. Laws ch. 183, § 71.