Meranda M. Garcia, Relator, vs. Farmers Insurance Group, Respondent, Department of Employment and Economic Development, Respondent.

Meranda M. Garcia, Relator, vs. Farmers Insurance Group, Respondent, Department of Employment and Economic Development, Respondent. A05-2064, Court of Appeals Unpublished, July 25, 2006.

This opinion will be unpublished and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

A05-2064

 

 

Meranda M. Garcia,

Relator,

 

vs.

 

Farmers Insurance Group,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed July 25, 2006

Affirmed

Lansing, Judge

 

Department of Employment and Economic Development

File No. 1040005

 

Meranda M. Garcia, 27042 310th Street Southwest, Crookston, MN 56716-8932(pro se relator)

 

Farmers Insurance Group, David Leonardi, 4216 Gateway Drive, Grand Forks, ND 58203 (respondent)

 

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

 

            Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            By writ of certiorari, Meranda Garcia argues that substantial evidence does not support an unemployment law judge's (ULJ) determination that she was discharged for employment misconduct and is therefore disqualified from receiving unemployment benefits.  Because substantial evidence supports the ULJ's determination that Garcia's employer discharged her for failing to follow an established and reasonable procedure of providing notice for employee absences, we affirm.

F A C T S

Meranda Garcia was employed as a secretary for an agency of Farmers Insurance Group from December 2004 to June 2005.  David Leonardi, the owner of the agency, discharged Garcia on June 20, 2005, after she was twice absent from work without providing proper notice. 

Leonardi testified that he was not in his insurance office on a regular forty-hour basis because he was engaged in other businesses.  He further testified that the secretary was the only in-office employee, and he therefore required notice if the secretary would be unable to open the office or keep it open during regular business hours.  When Garcia began her employment, Leonardi instructed her that, on any day she was unable to open the office, she must contact and speak to either him or his wife, who was employed by the agency and worked out of their home.  Leonardi did not have a positive working relationship with Farmers Insurance, and Farmers Insurance was closely watching Leonardi's business, to ensure that he was in compliance with his contract, which requires the office to remain open during regular business hours.  Garcia knew that Farmers was monitoring Leonardi's agency because of past problems.  Leonardi provided Garcia with the numbers for both his cell phone and his home phone.

On June 2, 2005, Garcia did not report for work.  She left a message on Leonardi's cell phone, which he did not receive; she did not call the Leonardi home.  Leonardi discovered that the office was closed when a client contacted him late that day.  Leonardi called Garcia on June 2 and reminded her of the notification procedure for absences and the need to call his home if she did not reach him on his cell phone.  He repeated this reminder on June 3.  Garcia said that she would comply with the notification procedure.

On June 13 Garcia did not report for work.  Leonardi was out of state on a business trip.  Garcia testified that she left a message on Leonardi's cell phone.  Leonardi's wife testified that she was at home all day on June 13 and did not receive a call from Garcia.  Garcia called Leonardi's wife at home on June 14 to say that she would be unable to work that day and that she had also been absent the day before.  Leonardi's wife stated that it was during this call that she first learned that Garcia had not been at the office the previous day.  After Leonardi returned from his business trip, he discharged Garcia.

The Department of Employment and Economic Development determined that Garcia was disqualified from receiving unemployment benefits because she was discharged for employment misconduct.  Following a hearing, a ULJ found that Garcia was aware of Leonardi's policy for absences, that she had failed to follow the notification procedure, and that she was therefore discharged for employment misconduct and disqualified for unemployment benefits.  Garcia requested reconsideration of the denial, and in September 2005, the ULJ sustained the findings of employment misconduct.  Garcia appeals this determination by writ of certiorari,arguing that substantial evidence does not support the ULJ'sdecision. 

D E C I S I O N

            A discharge for employment misconduct results in disqualification from unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1)(2004).  "Employment misconduct" is intentional, negligent, or indifferent conduct that clearly displays either "a serious violation of the standards of behavior the employer has the right to reasonably expect" or "a substantial lack of concern for the employment."  Id., subd. 6(a) (2004).  Whether an employee committed a particular act is a fact question, but whether the act constitutes employment misconduct is a question of law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  We will affirm a ULJ's determination unless it is unsupported by substantialevidenceor relies on an error of law.  Id. § 268.105, subd. 7(d)(4)-(5) (Supp. 2005).  The parties agree that Garcia was ill and missed work but dispute whether Garcia provided proper notice of her absences.

An employer has the right to establish and enforce reasonable rules governing absences from work, and the record supports the ULJ's determination that Garcia did not follow her employer's procedure for giving notice of her absences and that this constituted disqualifying misconduct.  See Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985) (stating that employer may enforce reasonable rules on absenteeism).  Although Garcia disputed whether she was instructed on the notice procedure when she began her employment, she acknowledged that Leonardi told her on June 2 and June 3 that she had to actually contact him and that leaving a message on his cell phone was not acceptable.  Garcia also testified that she called the Leonardi home on June 2, but her phone records show only that she called Leonardi's cell phone.  Leonardi's wife testified that, when Garcia had been ill before the June absences, Garcia had followed the procedure and called the Leonardis' home to notify them.  On June 13 Garcia again failed to call the Leonardis' home when she knew that she would be absent, and, as a result, the office was closed the entire day.

Garcia argues that the ULJ erroneously admitted hearsay by allowing Leonardi's wife to testify that she overheard the June 2 telephone call in which Leonardi told Garcia that, if she planned to be absent from work, she had to call his home if she did not reach him on his cell phone.  The ULJ pointed to this testimony in finding that Leonardi was more credible than Garcia.  We defer to the ULJ's determination of credibility and further note that proceedings before a ULJ are not subject to common law and statutory rules of evidence.  See Minn. Stat. § 268.105, subd. 1(b) (2004) (discussing evidentiary standards for unemployment proceedings); Munro Holding, LLC v. Cook, 695 N.W.2d 379, 384 (Minn. App. 2005) (noting appellate court's deference to decision-maker's determinations of credibility).

Because substantial evidence supports the ULJ's determination that Garcia failed to follow her employer's reasonable policy governing absences and that this constitutes employment misconduct, we affirm.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.