Trevor Zaun, Relator, vs. Koehnen's Standard, Inc., Respondent, Commissioner of Employment and Economic Development, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-02-2143

 

Trevor Zaun,

Relator,

 

vs.

 

Koehnen's Standard, Inc.,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed September 16, 2003

Affirmed

Halbrooks, Judge

 

 

Department of Employment and Economic Development

File No. 8754 02

 

Trevor Zaun, 1510 Millpond Court, Chaska, MN 55318-1391 (pro se relator)

 

Koehnen's Standard, Inc., 17415 Minnetonka Boulevard, Minnetonka, MN 55345€‘1006 (respondent)

 

Lee B. Nelson, Philip B. Byrne, 390 North Robert Street, St. Paul, MN 55101 (for commissioner)

 

 

            Considered and decided by Halbrooks, Presiding Judge, Anderson, Judge, and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

Relator challenges the decision of the commissioner's representative disqualifying him from receiving unemployment benefits.  Because the commissioner's representative's conclusion that relator was discharged for misconduct as a result of his failure to call in or report to work is reasonably supported by the evidence, we affirm.

FACTS

Relator Trevor Zaun began working as a general laborer for Koehnen's Standard Service, Inc. in October 1991.  Koehnen's is a service station owned by Jim Koehnen.

            Relator was unhappy with his job at Koehnen's.  He felt that changes needed to be made to improve the operation of the service station.  In relator's opinion, employee work habits needed to be improved and there needed to be better communication between employees and between employees and customers.  He expressed his unhappiness to Koehnen and his suggestions for improving Koehnen's business, but operations continued unchanged.  Relator testified that he made these suggestions to help improve Koehnen's business and customer service. 

            On or about Friday, May 17, 2002, relator explained to Koehnen the reasons why he was unhappy with the work environment.  Relator was not scheduled to work on Monday, May 20, 2002.  He returned to work on Tuesday, May 21, 2002.  But after about 90 minutes on the job, he told one of the mechanics that he was going home early because he was having back problems.[1]  Relator did not return to work on Wednesday or Thursday, and he did not call in to say that he was unable to work.  On Thursday or Friday, May 23 or 24, 2002, Koehnen called relator at home to find out why he had not been coming in to work.  Relator explained to Koehnen that he was unhappy with his job and unhappy that Koehnen had not taken any steps to make the changes relator had suggested.  Koehnen acknowledged that he knew relator had not been very happy with his job for the past couple of months and suggested that it might be time for them to "part company" and for relator to pursue other opportunities.  Relator agreed, and Koehnen terminated the employment relationship.[2]  Koehnen testified that he discharged relator because he failed to call in to report that he would not be at work.

            Relator established an unemployment benefit account with the Minnesota Department of Employment and Economic Development.  A department adjudicator held that relator was disqualified from receiving unemployment benefits because he engaged in employment misconduct by failing to call in or report for work.  Relator appealed the decision, and a hearing was held before an unemployment law judge.  The judge found that relator was not discharged for failing to report or call in to work, but that he was discharged because he was unhappy in his work environment.  The judge held that relator was entitled to benefits because he was not discharged for employment misconduct.  Koehnen appealed.  A representative for the Commissioner of Employment and Economic Development subsequently determined that relator was disqualified from receiving benefits because he engaged in employment misconduct by failing to call in or report for work when scheduled.  This appeal follows.

D E C I S I O N Relator argues that the commissioner's representative's finding that he was discharged for failing to call in or report for work is not reasonably supported by the record and that the representative erred in denying his application for employment benefits.  He asserts that he was not discharged because he did not call in or report for work when scheduled, but because he was unhappy with the work environment.  Thus, relator asserts that he is entitled to benefits because he was not discharged for employment misconduct.  Decisions of the commissioner's representative are accorded particular deference.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The commissioner's representative's factual findings are viewed in the light most favorable to the decision and are not disturbed if evidence in the record reasonably tends to sustain them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  While this court defers to the commissioner's findings of fact if they are reasonably supported by the evidence in the record, we exercise independent judgment with respect to questions of law.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  Whether an employee committed alleged acts of employment misconduct is a question of fact, but whether the acts constitute 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).  An employee who is discharged for engaging in employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. §§ 268.069, subd. 1(2), .095, subd. 4(1) (2002).

                        (a) Employment misconduct means:

            (1) any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee's duties and obligations to the employer; or

            (2) negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.  

                        (b) Inefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity, or absence because of illness or injury with proper notice to the employer, are not employment misconduct. 

 

            . . . .

 

                        (e) The definition of employment misconduct provided by this subdivision shall be exclusive. 

 

Minn. Stat. § 268.095, subd. 6(a)-(b), (e) (2002).

            For an employee's conduct to constitute employment misconduct under Minn. Stat. § 268.095, subd. 6(a)(1), the "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).  Generally, an employer has the right to expect an employee to report to work when scheduled, and the failure to report to work constitutes employment misconduct.  Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984).

            The parties do not dispute that relator was discharged.  The central issue in this case is whether relator was discharged for employment misconduct for failing to call in or report for work when scheduled, or whether he was discharged because he was unhappy at work and he and Koehnen decided it was time to go their separate ways. 

The record shows that, when asked on a department form why he fired relator, Koehnen answered: "Doesn't call me when not showing up for work."  On another department form when asked the reason for discharge, Koehnen stated, "Fails to call in when sick or injured.  Sometimes we didn't hear from him for 2 or 3 days."  The record also shows that, when asked at the hearing before the unemployment law judge what Koehnen's primary reason was for terminating relator's employment, Koehnen responded, "Not calling in.  Not calling me to say that he would not be in to work."  But Koehnen also provided a somewhat different reason for why he discharged relator when he testified as to the call he made to relator on May 23 or 24, 2002 to find out why relator had not been coming to work.  Koehnen testified:

Well, I asked him what was going on, what's wrong.  And we had a just general, I can't of course remember word for word, but I asked him if he'd been unhappy there and so forth.  And he kind of replied in a, that he kind of was.  And so I said maybe this is the time that we part company, you know, and pursue something else now because he definitely wasn't real happy at work for the past few months.  And so we mutually, I think, agreed that might be the better situation to part company at this time. 

 

            When relator was asked on a department form to explain why he was told he was discharged, relator answered, "Things weren't working out [and] it was time to move on to something else."  When asked on the form about the final incident that caused him to be discharged, relator explained, "I didn't show up for work because I was unhappy with how things were going.  So he called me [and] fired me over the telephone."

            Even though relator was unhappy with his job and Koehnen knew it, the evidence supports the conclusion that relator would still be employed if he had called in to report that he was not coming in to work or if he had reported for work when he was scheduled.  Relator's unhappiness with work may have played a role in his decision not to show up for work and in Koehnen's decision to discharge relator, but it was relator's failure to call in or report for work that prompted Koehnen to call relator and discharge him.  Viewing the evidence in the light most favorable to the commissioner's representative's decision, we conclude that the representative's factual finding that relator was discharged because he did not call in or report for work when scheduled is reasonably supported by the evidence.  Because the failure to call in or report to work constitutes employment misconduct under Minn. Stat. § 268.095, subd. 6(a), the commissioner's representative did not err in concluding that relator is ineligible for unemployment benefits.

            Affirmed.

 

 

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

[1] Relator testified that the back problems were not work-related, but were the result of playing in a golf tournament the previous day.

[2] Relator testified that he never said that he did not want to work at Koehnen's anymore and that Koehnen made the decision to terminate the employment relationship.