This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-00-1494

 

Jason E. VanWert,

Relator,

 

vs.

 

Little Six, Inc.,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

Filed March 27, 2001

Affirmed
Klaphake, Judge

 

Department of Economic Security

File No. 418500

 

Jason E. VanWert, 2432 Ogema Place, Apt. 210, Minneapolis, MN  55404-4013 (pro se relator)

 

Little Six, Inc., Attn: Steve Peterson, 2400 Mystic Lake Boulevard, Prior Lake, MN  55372 (respondent employer)

 

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

 

            Considered and decided by Amundson, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

Pro se relator Jason E. VanWert challenges a decision by a representative of the respondent Commissioner of Economic Security determining that relator was discharged from his employment with respondent Little Six, Inc. for misconduct. Because relator has not made consistent efforts to control his alcoholism, his failure to report to work as scheduled, whether due to his alcoholism or to his incarceration, constituted misconduct.  We therefore affirm.

D E C I S I O N

            This court’s review is restricted to whether the evidence in the record reasonably supports the commissioner’s representative’s decision.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).

            An employee is disqualified from receiving unemployment benefits if the employee is discharged from work because of employment misconduct.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 1999).  The definition of misconduct includes:

(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.

 

Minn. Stat. § 268.095, subd. 6 (Supp. 1999).  However, “absence because of illness or injury with proper notice to the employer” does not constitute misconduct.  Minn. Stat. § 268.095, subd. 6(b).  A discharge resulting from an employee’s chemical dependency constitutes misconduct if the employee

has previously been diagnosed chemically dependent or had treatment for chemical dependency, and has failed to make consistent efforts to control the chemical dependency. 

 

Minn. Stat. § 268.095, subd. 6(c).

            Courts have typically interpreted this statute to mean that an employee who makes consistent efforts to control his chemical dependency is entitled to benefits.  See Moeller v. Minnesota Dep’t of Transp., 281 N.W.2d 879, 881-82 (Minn. 1979) (where record shows employee very concerned about retaining job and made reasonable effort to do so by attempting to control addiction to alcohol, employee qualified to receive benefits); Independent Sch. Dist. No. 709 v. Hansen, 412 N.W.2d 320, 325 (Minn. App. 1987) (employee’s continued AA attendance sufficient to establish consistent efforts to maintain treatment).  Courts have also denied an employee benefits if he fails to make these consistent efforts.  See, e.g., Umlauf v. Gresen Mfg., 393 N.W.2d 198, 200 (Minn. App. 1986) (employee failed to attend aftercare program as part of treatment); Torgerson v. Goodwill Indust., Inc., 391 N.W.2d 35, 38 (Minn. App. 1986) (employee failed to participate in AA on regular basis, as was advised by counselor and as he had agreed to do); Kemp v. United States Dep’t of Agriculture, 385 N.W.2d 879, 883 (Minn. App. 1986) (employee failed to regularly attend alcoholic’s support group, as he had been advised to do).

            In this case, the commissioner’s representative concluded:

The record in this matter clearly establishes a pattern of attendance violations on the part of the [relator], culminating in the final incident when he did not appear for work because he was incarcerated, which demonstrates a disregard of the standards of behavior which the employer has a right to expect of its employees.  Further, the record does not indicate that the exception to the disqualification should be applied insofar as the applicant had been diagnosed as chemically dependent but had failed to make consistent efforts to control the chemical dependency.

 

            The record reasonably supports the conclusion that relator has failed to make consistent efforts to control his alcoholism.  Although relator completed an outpatient treatment program several months prior to his discharge, his attendance at required weekly aftercare sessions and Alcoholics Anonymous meetings was “sporadic.”  And when police detained him and placed him on a 36-hour hold for suspicion of possession of a controlled substance, he admitted that he was intoxicated.  Under these circumstances, relator has failed to make consistent efforts to control his alcoholism.

            Moreover, in most of his statements, relator does not even claim that his final absence and discharge was due to his alcoholism.  Rather, in his initial statements to the department, he admitted that he had been warned that if he got one more attendance point, he would lose his job.  At the hearing before the unemployment law judge, relator testified that he has a problem with alcohol and was missing work because of alcohol.  But he claimed that he was incarcerated and placed on the 36-hour hold not because of his alcoholism, but because he “was in the wrong place at the wrong time.”

            We therefore affirm the decision of the commissioner’s representative that relator is disqualified from receiving unemployment benefits.

            Affirmed.