Steven S. Thompson, Relator, vs. Natural Environments Corp., Respondent, Department of Employment and Economic Development, Respondent.

Steven S. Thompson, Relator, vs. Natural Environments Corp., Respondent, Department of Employment and Economic Development, Respondent. A05-1515, Court of Appeals Unpublished, March 7, 2006.

This opinion will be unpublished and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

A05-1515

 

 

Steven S. Thompson,

Relator,

 

vs.

 

Natural Environments Corp.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

 

Filed March 7, 2006

Affirmed

Wright, Judge

 

Department of Employment and Economic Development

File No. 332705

 

 

Steven S. Thompson, 13428 Orchard Road, Hopkins, MN 55305 (pro se relator)

 

Natural Environments Corp., 6098 Highway 55, Golden Valley, MN 55422 (respondent)

 

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

 

 

            Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

WRIGHT, Judge

            Relator challenges the decision of the senior unemployment review judge (SURJ) that he is disqualified from receiving unemployment benefits because he was discharged for employment misconduct.  We affirm.

FACTS

Relator Steven Thompson worked for respondent employer Natural Environments Corp. from June 1, 2003, to January 17, 2005, as a sales person, project coordinator, and manager.

On December 13, 2004, Thompson learned that his brother had died in Florida, and on December 17, Terry Sanders, president of Natural Environments Corp., approved Thompson's leave for the funeral.  Sanders thought they had agreed to a one-week leave of absence and understood that Thompson had a January 1, 2005, deadline for a project he was working on.  Thompson thought the approved leave was open with no set date to return but also understood that he had a deadline of "the first of the year" for his project.  

Thompson testified that he returned from Florida on Christmas Eve (one week after Sanders approved his leave), phoned Sanders sometime after Christmas, and returned to Florida about January 2.  Thompson had no recollection of what was discussed in the telephone call but said it was very short.  He also testified that he returned from his second trip to Florida on Friday, January 7, and called his employer on Sunday, January 9, to say that he planned to return to work the following day.  But on Monday, January 10, he called in sick.  Thompson returned to work a week later on Monday, January 17, met with Sanders, and was discharged. 

The Department of Employment and Economic Development adjudicator, the unemployment law judge (ULJ), and the SURJ concluded that Thompson had committed employment misconduct by failing to report to work.  This certiorari appeal followed.

D E C I S I O N

            Thompson argues that the SURJ erred when it found that he did not call in sick on January 10 and that January 1 was the deadline for his project.  He also argues that he was discharged for economic reasons, not for employment misconduct.

            The factual findings of the SURJ are "viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed."  White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).   On questions of law, we are not bound by the SURJ's conclusions.  Markel v. City of Circle Pines, 479 N.W.2d 382, 384 (Minn. 1992).  Whether an employee committed a specific act is a question of fact, but whether specific acts constitute employment misconduct is a question of law, which we review de novo.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). 

            Employment misconduct includes "intentional, negligent, or indifferent conduct" that violates reasonably expected standards of behavior or shows a "substantial lack of concern for the employment."  Minn. Stat. § 268.095, subd. 6(a) (2004).  Failure to report to work is employment misconduct, and the employer has a right to expect that an employee will work as scheduled.  Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984). 

            The SURJ made the following factual findings:  Thompson was granted leave on December 17; no set date was discussed for his return; both parties agreed January 1 was the project deadline; the phone conversation in late December 2004 was "not very significant"; Thompson called the employer on January 9, saying that he would return on January 10; and Thompson returned to work on January 17.  The SURJ also found that the preponderance of the evidence "shows that Thompson failed to contact his employer regarding his protracted absence."

Thompson claims that it was incorrect for the SURJ to find that he did not call in about his illness on January 10.  On this issue, Thompson testified that he called in to say he was sick on that date.  Sanders testified that Thompson did not call in and that his employees were unable to contact Thompson.  Based on the conflicting testimony, the SURJ reasonably could find that Thompson failed to advise Sanders that he was ill.    Although in his brief Thompson added more specificity about his call, we review the decision of the SURJ based on the testimony adduced at the hearing before the ULJ.

Thompson also argues that the SURJ placed too much emphasis on the January 1 deadline. But both parties testified that January 1 was the deadline for Thompson's project, and no one testified that the deadline had been extended. Under these circumstances, the employer reasonably could have expected compliance with the January 1 deadline.

Finally, Thompson argues that he was discharged solely for economic reasons.  This position also is not supported by the evidence.  Sanders received no meaningful communication from Thompson for approximately three weeks.  Sanders testified that, during this period, he expected Thompson to return to work, meet the January 1 deadline, and give proper notice of any absence.  These were reasonable expectations under these circumstances, and it was unreasonable for Thompson to think he had unlimited leave with no stipulations.

Accordingly, the SURJ did not err in concluding that Thompson was disqualified from receiving unemployment benefits because he committed employment misconduct.

Affirmed.