This opinion will be unpublished and may

not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-00-894

 

 

Ubaldo Ramos,

Relator

 

vs.

 

Minnesota Mutual Life,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

Filed October 24, 2000

Affirmed

Lansing, Judge

 

Department of Economic Security

File No. 108700

 

Ubaldo Ramos, 6836 West River Road, Brooklyn Center, MN 55430 (pro se relator)

 

Minnesota Mutual Life, 400 North Robert Street, St. Paul, MN 55101-2098 (respondent employer)

 

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)

 

            Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Schumacher, Judge.

U N P U B L I S H E D   OP I N I O N

LANSING, Judge

            Ubaldo Ramos challenges the Commissioner of Economic Security’s decision disqualifying him from receiving reemployment compensation.  Because the evidence reasonably supports the commissioner’s finding that respondent violated Minnesota Mutual Life’s written attendance policies, and the commissioner did not err in concluding that the violation constituted misconduct, we affirm.

FACTS

Ubaldo Ramos worked for Minnesota Mutual as an insurance agent from July 1999 until his discharge in January 2000.  After hiring Ramos, Minnesota Mutual provided him with its written attendance policy.  The policy stated that employees were responsible for promptly notifying supervisors of unplanned absences.  Employees who failed to report to work for two consecutive days without timely notifying supervisors of the absence were considered to have voluntarily terminated employment.  Also, employees were expected to work for eight hours and 45 minutes a day, with no more than a 45-minute lunch period. 

            The record shows that Ramos was absent without notice and exceeded the 45-minute lunch period repeatedly during his employment with Minnesota Mutual.  In November 1999, Minnesota Mutual placed Ramos on probation for the rest of that year due to his attendance and production difficulties.  During the probationary period, Ramos could have no more than one unplanned absence.  Despite his probation status, Ramos missed work December 28-31, 1999, and did not call his supervisors to alert them that he would be absent.  When he returned to work, Ramos was discharged.

            The Department of Economic Security denied Ramos reemployment-compensation benefits, and a reemployment-compensation judge and a commissioner’s representative affirmed the denial.  Ramos appeals by writ of certiorari, contending that his failure to comply with the attendance policy resulted from miscommunication and did not constitute misconduct.

D E C I S I O N

            On review, the court must view the commissioner’s representative’s factual findings in the light most favorable to the decision and will not disturb those findings if evidence in the record reasonably tends to sustain them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  Whether an employee’s acts constitute misconduct, however, is a question of law upon which a reviewing court remains “free to exercise its independent judgment.”  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989) (citation omitted).

An employee is disqualified from receiving reemployment compensation if discharged for employment misconduct.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 1999).  “Employment misconduct” is any intentional conduct that “disregards the standards of behavior that an employer has the right to expect of the employee” or any negligent conduct that “demonstrates a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (Supp. 1999).  But “absence because of illness or injury with proper notice to the employer” is not employment misconduct.  Id., subd. 6(b) (Supp. 1999). 

The commissioner’s representative found that (1) Minnesota Mutual had provided Ramos with its absence policy; (2) Ramos chose not to read the policy; (3) Ramos was “on notice that further attendance violations could jeopardize” his employment; (4) Minnesota Mutual placed Ramos on probation on November 4, 1999, because of his continuing lack of production and excessive absences from work; (5) on several occasions in October 1999 and even after being placed on probation in November 1999, Ramos took longer than 45 minutes for lunch; and (6) Ramos was absent from work without notice to his employer on December 28-31, 1999.  The evidence in the record supports these findings.

An employee who fails to report to work and to properly notify an employer of unplanned absences commits disqualifying misconduct.  See, e.g., Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984) (holding that one unexcused absence constituted misconduct); Del Dee Foods, Inc. v. Miller, 390 N.W.2d 415, 418 (Minn. App. 1986) (holding that a discharged employee’s failure to appear at work when promised was misconduct); Kemp v. United States Dep’t of Agric., 385 N.W.2d 879, 882 (Minn. App. 1986) (being absent from work and repeatedly ignoring written rules and warnings requiring prior approval for absences is misconduct); Gustafson v. IRC Indus., 374 N.W.2d 594, 596 (Minn. App. 1985) (holding that unplanned and unapproved work absences following warnings not to be absent is misconduct). 

The record contains sufficient evidence to support the commissioner’s findings and, on those findings, the commissioner did not err in concluding that Ramos was discharged for misconduct. 

Affirmed.