This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
Dennis R. Milbrandt,
Commissioner of Economic Security,
Toussaint, Chief Judge
Department of Economic Security
File No: 28699
Dennis R. Milbrandt, 601 35th Avenue NW, Backus, MN 56435 (Pro se relator)
Mike Hatch, Attorney General, Francis C. Ling, Assistant Attorney General, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101-2128 (for respondent Century Community)
Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)
Considered and decided by, Toussaint, Chief Judge, Klaphake, Judge, and Foley, Judge.*
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Relator Dennis R. Milbrandt worked for Century Community and Technical College as an instructor from September 1, 1991, until his discharge for misconduct on April 14, 1999. The Commissioner of Economic Security reversed a reemployment insurance judge’s decision affirming the Department of Economic Security’s initial determination that Milbrandt was entitled to reemployment insurance. By writ of certiorari, Milbrandt appeals from the commissioner’s representative’s decision of ineligibility. Because the evidence supports the commissioner’s representative’s findings of fact and his determination that Milbrandt committed misconduct is consistent with the law, we affirm.
The reemployment insurance fund is available only to persons involuntarily “unemployed through no fault of their own.” Minn. Stat. § 268.03, subd. 1 (1998). A claimant is disqualified from benefits if the claimant was discharged from employment due to misconduct that adversely affected that employment. Minn. Stat. § 268.095, subd. 4 (1) (1998); see also Minn. Stat. § 268.095, subds. 5, 6 (1998) (defining discharge and misconduct). We will not disturb a determination by the commissioner’s representative that a claimant committed misconduct if the evidence reasonably sustains the decision and it is not contrary to the law. See Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996) (noting appellate review of commissioner’s factual findings is limited and viewed in light most favorable to decision); Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984) (concluding determination by commissioner’s representative of misconduct is mixed question of fact and law). The ultimate determination that a person is ineligible for reemployment benefits presents a question of law subject to de novo review. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).
Milbrandt contends the commissioner’s representative erred in concluding he “engaged in intentional misconduct showing a disregard of [the college’s] interest and of standards of behavior, which the employer had a right to expect of its employees.” In Minnesota, misconduct exists where an employee deliberately chooses a course of action adverse to the employer’s interests. Colburn, 346 N.W.2d at 161. “Failure to report to work is misconduct within the meaning of [reemployment insurance law].” Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984) (finding an employer “has a right to expect an employee to work when scheduled”). This court has recognized that even a single unexcused absence may be disqualifying misconduct if it shows an employee’s disregard for the employer’s expectations. Del Dee Foods, Inc. v. Miller, 390 N.W.2d 415, 418 (Minn. App. 1986).
The record demonstrates Milbrandt: (1) requested unpaid leave in March 1998, despite being notified on January 24, 1998, of the college’s policy of denying unpaid leave requests absent emergency circumstances; (2) received written denials of his request for unpaid leave on March 22, 1998 and May 19, 1998; (3) bought a plane ticket departing on February 25 and returning on March 13, 1999; (4) left on February 25 without informing his employer that he was traveling out of state; and (5) returned to Minnesota on March 13, 1999. Milbrandt deliberately arranged a vacation to Florida in contravention of the college’s policy and denials of his requests for unpaid leave. While Milbrandt contends he intended to return to Minnesota on February 28, 1999, the evidence shows he: (1) only purchased a return ticket for March 13, 1999; (2) was flying an airline that did not offer standby flights; and (3) offered conflicting testimony about his plans to drive or fly to and from Florida.
Milbrandt also argues he was too sick to return to Minnesota for work on February 28, 1999, but the evidence shows he did not visit the doctor until March 4 and did not fill his prescriptions until March 5, 1999. While Milbrandt obtained a doctor’s statement in Florida, it was not signed and did not state he was unable to work during the period of his alleged illness. Moreover, the record demonstrates Milbrandt: (1) left voice-mail messages that he was sick before office hours on March 1, 2, and 3, 1999; (2) refused to provide a Florida address when the college contacted him on March 3; and (3) misled the college to believe he could be reached at his residence in Backus, Minnesota. The evidence calls into question his alleged illness and illustrates his evasive and uncooperative conduct while in Florida. Given these facts and the scope of review, we conclude the evidence supports the commissioner’s representative’s findings of fact and determination that Milbrandt was discharged for misconduct.
A. Evidence Considered
Because the commissioner’s representative did not explain his reasons for rejecting the findings of the reemployment insurance judge, Milbrandt argues the commissioner’s representative must have considered evidence outside the record. The commissioner's representative is not bound by the findings or decision of the reemployment insurance judge and may make any findings and draw any conclusion that, in the commissioner’s representative’s discretion, the evidence requires. See Minn. Stat. § 268.105, subd. 3(b) (1998); Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). Regardless of Milbrandt’s contrary evidentiary assertions regarding the reason for his discharge, this court only reviews the commissioner’s representative’s findings of fact to determine if there is evidence reasonably tending to sustain those findings. See Lolling, 545 N.W.2d at 377 (explaining review of commissioner’s representative’s findings of fact is limited and viewed in light most favorable to decision).
While Milbrandt concedes that the commissioner’s representative correctly concluded the appeal was filed in a timely manner, he contends it was improper not to refer to Minn. Stat. § 645.15 (1998) in the September 21, 1999, letter regarding the Notice of Appeal to the Representative of the Commissioner. Apparently, Milbrandt contends he assumed the only issue on appeal was whether there was a timely appeal to the representative of the commissioner. The September 21, 1999, notice stated:
[y]ou are afforded an opportunity to submit a written statement concerning the issue of timeliness of the appeal and what conclusions you feel should be made by the Representative of the Commissioner in the present matter concerning the merits and correctness of the [reemployment insurance] judge’s decision.
Because the letter clearly explains that the commissioner’s representative was considering more than the timeliness of the appeal, Milbrandt’s argument is without merit. There are no errors of law affecting the commissioner’s representative’s decision.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI §, 10.al