Jason V. Levar, Relator, vs. Zupancich Brothers Inc., Respondent, Department of Employment and Economic Development, Respondent.

Jason V. Levar, Relator, vs. Zupancich Brothers Inc., Respondent, Department of Employment and Economic Development, Respondent. A06-2348, Court of Appeals Unpublished Decision, November 27, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS
A06-2348
 
Jason V. Levar,
Relator,
 
vs.
 
Zupancich Brothers Inc.,
Respondent,
 
Department of Employment and Economic Development,
Respondent.

 

 

 

Filed November 27, 2007

Affirmed

Worke, Judge

 

Department of Employment and Economic Development

File No. 12468 06

 

 Jason V. Levar, 1213 East Washington Street, Ely, MN 55731 (pro se relator)
 
Lee B. Nelson, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, Suite 200, St. Paul, MN 55101 (for respondent Department)

 

            Considered and decided by Klaphake, Presiding Judge; Shumaker, Judge; and Worke, Judge.

 

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            On certiorari appeal from the unemployment-law judge's decision that relator was discharged for misconduct and disqualified from receiving unemployment benefits, relator argues that his absence from work should have been excused because he called in sick to care for his ill fiancée.  We affirm. 

D E C I S I O N

When reviewing the decision of an unemployment-law judge (ULJ), this court may affirm the decision, remand the case for further proceedings, or reverse or modify the decision if the substantial rights of the relator have been prejudiced because the findings, inferences, conclusion, or decision are "(1) in violation of constitutional provisions; (2) in excess of the statutory authority or jurisdiction of the department; (3) made upon unlawful procedure; (4) affected by other error of law; (5) unsupported by substantial evidence in view of the entire record as submitted; or (6) arbitrary or capricious."  Minn. Stat. § 268.105, subd. 7(d) (2006).

The ULJ determined that relator Jason V. Levar was disqualified from receiving unemployment benefits because he was discharged for employment misconduct.  Whether an employee has committed employment misconduct is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  "Whether the employee committed a particular act is a question of fact."  Skarhus v. Davanni's Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).  In making factual findings, the ULJ must make credibility determinations, which we accord deference and review the findings in the light most favorable to the decision.  Id.  The ULJ's findings will not be disturbed when they are substantially supported by the evidence.  Id.  But whether an act constitutes employment misconduct is a question of law, which we review de novo.  Id.  

Employment misconduct is "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."  Minn. Stat. § 268.095, subd. 6(a) (2006).  The ULJ found that relator engaged in employment misconduct because he received several warnings for failing to report to work, leaving work early, and for not having a compelling reason for calling in sick the night before he was discharged. 

            An employer has a right to expect that employees will work when scheduled and has a right to "establish and enforce reasonable work rules relating to absenteeism."  Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985); Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984).  "[A]bsence because of illness or injury with proper notice to the employer [is] not employment misconduct."  Minn. Stat. § 268.095, subd. 6(a).  But absenteeism as a result of circumstances within the employee's control has been recognized as employment misconduct.  Jenkins v. Am. Express Fin. Corp., 721 N.W.2d 286, 290 (Minn. 2006).  A knowing violation of absenteeism-related rules constitutes employment misconduct because it demonstrates a substantial lack of concern for the employer's interests.  See Schmidgall, 644 N.W.2d at 806-07; see also McLean v. Plastics, Inc., 378 N.W.2d 104, 107 (Minn. App. 1985) (holding that tardiness constituted misconductwhen employee was tardy 13 times in one year, had received two warnings, and the tardiness was unrelated to illness or injury); Evenson v. Omnetic's, 344 N.W.2d 881, 883 (Minn. App. 1984) (holding that repeated tardiness, particularly when combined with warnings, is employment misconduct).

            Similarly, an employee's failure to give proper notice of an absence may demonstrate a lack of concern for employment that constitutes disqualifying misconduct.  Edwards v. Yellow Freight Sys., 342 N.W.2d 357, 359 (Minn. App. 1984); Flahave v. Lang Meat Packing, 343 N.W.2d 683, 686 (Minn. App. 1984) (holding that repeated failure to report to work without proper notice, combined with written warnings, demonstrated substantial disregard of employer's interest); see also Del Dee Foods, Inc. v. Miller, 390 N.W.2d 415, 418 (Minn. App. 1986) ("[A]n employee engages in misconduct if he is absent even once without notifying his employer.").  This principle is particularly applicable when the employee has been previously warned.  McLean, 378 N.W.2d at 107.  But an employer is not required to give a warning before discharging an employee for employment misconduct.  See Auger v. Gillette Co., 303 N.W.2d 255, 257 (Minn. 1981) (stating that a warning was not essential to demonstrate that employees acted in willful disregard of employer's interest).

            Here, relator worked as a grocer for respondent Zupancich Brothers Inc.  During the summer of 2006, relator began taking unapproved time off from work.  On June 25, relator left work two hours early; on June 28, relator failed to show up for work; on July 13, relator left work three hours early; on July 15, relator left work nearly four hours early; on July 17, relator left work four hours early; on July 29, relator left one hour early; on July 30, relator failed to work the second half of his shift; on August 10, relator left two hours early; on August 14, relator went home sick without anyone to cover his shift; and on August 15, relator was forty-five minutes late and failed to work the second half of his shift.  On August 18, relator's fiancée was not feeling well.  Relator called in sick to take care of his fiancée and take her children to visit their father.  Relator stated that he would report to work after he dropped the children off if his fiancée was feeling better, but she was not feeling well and relator did not go to work.  Relator was discharged the next day. 

            Jim Zupancich, the store's manager, testified that relator never gave a reason for leaving early or for failing to show up for work.  Zupancich further testified that he warned relator on three or four occasions that his behavior had to stop.  Relator admitted that Zupancich talked to him about taking off too much time and that he described relator's behavior as "job threatening."  Relator claimed that he always had someone to cover his shifts and that he took time off from work to work on a home he purchased. Relator's repeated disregard for his work schedule constitutes misconduct because his behavior "displays clearly" 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."  See Minn. Stat. § 268.095, subd. 6(a).  The reasons that relator gave for leaving work were under his control and he had received warnings.  The ULJ did not err in determining that relator was discharged for employment misconduct and disqualified from receiving unemployment benefits. 

            Relator also argues that he had proof that he was not at a saloon on the day that he called in sick to care for his fiancée.  But the ULJ's decision was based on relator's absences from work.  Relator also argues that he wants to subpoena witnesses.  But relator failed to subpoena witnesses for the evidentiary hearing, and the ULJ determined in his affirmation that the subpoenas would not change the decision.  

            Affirmed.