Joel E. Mills, Relator, vs. Bigos Management, Inc., Respondent, Department of Employment and Economic Development, Respondent.

Joel E. Mills, Relator, vs. Bigos Management, Inc., Respondent, Department of Employment and Economic Development, Respondent. A04-2205, Court of Appeals Unpublished, September 6, 2005.

This opinion will be unpublished and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

A04-2205

 

Joel E. Mills,

Relator,

 

vs.

 

Bigos Management, Inc.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed September 6, 2005

Affirmed

Kalitowski, Judge

 

Department of Employment and Economic Development

File No. 13753 04

 

Joel E. Mills, 3374 South Arizona Avenue, Camp Verde, AZ 86322-6101 (pro se relator)

 

Bigos Management, Inc., 6400 Barrie Road, Suite 1400, Edina, MN 55435-2320 (respondent)

 

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

 

            Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Relator Joel Mills challenges the decision of the senior unemployment review judge that he was discharged for employment misconduct and 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 of the Department of Employment and Economic Development.  This court reviews 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).  This court defers to findings of fact that are reasonably sustained by the record.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  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 [SURJ'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 unemployment benefits only if the conduct for which the individual was discharged constitutes employment misconduct.[2]  See Minn. Stat. § 268.095, subd. 4(1) (Supp. 2003).  "Employment misconduct" is defined to include "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(a) (Supp. 2003).  "The general rule is that if the request of the employer is reasonable and does not impose an unreasonable burden on the employee, a refusal will constitute misconduct.  What is ‘reasonable' will vary according to the circumstances of each case."  Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985) (citation omitted).

Here, the SURJ adopted the finding that relator chose not to follow the requirements set forth by his employer that he work from 8:30 a.m. to 5:00 p.m. and that he call his supervisor upon arrival and before leaving each day.  This finding was made based on the following facts:  (1) at the time of his discharge, relator was working as a roving maintenance technician; (2) on July 16, 2004, relator's supervisor called relator at 3:00 p.m. to service a building; and (3) relator informed his supervisor that he was already home, that he had worked eight hours, and he refused to take the service call.  But relator testified that he later realized he had only worked seven-and-a-half hours.  On Monday, July 19, 2004, the supervisor gave relator a written warning.  The warning letter stated that relator was expected to put in eight hours of work for eight hours of pay and that relator was expected to change his performance by:

Adhering to the company policy of hours 8:30 am to 5pm with a half an hour for lunch (as close to the middle of those hours) as the job at hand allows.  Also, for the next 10 working days (or longer if necessary) you will call me when you arrive in the AM and before you leave at the end of the day.  You will speak to me in a professional manner and their will be no more outbursts from you.

 

. . . .

 

If the poor behavior that you have exhibited continues to happen, you can expect further disciplinary action up to and including termination.

 

            The supervisor met with relator on Monday, July 19, 2004, to give relator a copy of the warning letter.  Relator testified that he refused to sign the warning when asked to do so because he disagreed with its contents.  Relator failed to call his supervisor as directed and continued to work from 7:30 a.m. to 4:00 p.m. for the rest of the week.  On Thursday, July 22, the decision was made to terminate relator, and he was discharged effective July 23, 2004.

Relator takes issue with the incident of July 16, 2004, and whether or not it warranted a warning or disciplinary action.  But the SURJ based the determination of disqualification on relator's refusal to work the hours set by his supervisor on July 19, 2004.  The SURJ found that it was not an unreasonable request to ask relator to work from 8:30 a.m. to 5:00 p.m., nor did it create an unreasonable burden on relator.  The SURJ concluded that relator's "conduct was in serious violation of standards of behavior that the employer had the right to expect of Mills as an employee, and demonstrated a lack of concern by [relator] for the employment."  Because the record supports the SURJ's findings, we affirm the decision that relator was discharged for employment misconduct.

Affirmed.

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

[2]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, but retaining term "disqualified from"); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 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 to Minn. Stat. § 268.085, subd. 13b).