This opinion will be unpublished and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

CX-00-1841

 

Alan D. Pearson,

Relator,

 

vs.

 

Ken Streiff Company,

Respondent,

 

The Commissioner of Economic Security,

Respondent.

 

Filed April 24, 2001

Affirmed

Hanson, Judge

 

Minnesota Department of Economic Security

Appeal No. 5501 00

 

 

Alan D. Pearson, 5341 39th Avenue South, Minneapolis, MN 55417 (relator pro se)

 

Kenneth  E. Streiff, Streiff Company, 2509 East 42nd Street, Minneapolis, MN 55406 (respondent)

 

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

 

 

            Considered and decided by Hanson, Presiding Judge, Crippen, Judge, and Harten, Judge.

 

U N P U B L I S H E D   O P I N I O N

HANSON, Judge


Relator challenges the decision by the commissioner's representative that he was discharged for employment misconduct and, thus, was disqualified from receiving unemployment benefits.  We affirm.

FACTS

Relator Alan Pearson worked for respondent Ken Streiff Company (“Streiff”) from April 1, 2000, until May 5, 2000.  Streiff expressed dissatisfaction with Pearson’s job performance on a particular construction project.  On April 28, 2000, Streiff informed Pearson that he should not return to that specific job site and should call in to ascertain his work schedule for the following week.  Streiff expressly informed Pearson that he was not being fired.  Later that day, a phone call between Pearson and Streiff ended before they discussed Pearson’s future work schedule.

Over the weekend, Pearson left phone messages for Streiff inquiring about his work schedule.  Streiff did not return those calls.  On May 2, 2000, Pearson contacted the construction manager from the previous job site and said that he had been fired and was concerned about being paid.  Pearson also stated that he was considering filing a lien against the construction project in order to obtain wages owed to him. 

Streiff next spoke to Pearson on May 5, 2000, when he personally delivered Pearson’s letter of discharge.  Streiff stated in the letter that Pearson did not fulfill his duties in a diligent manner, failed to report to work or ascertain his work schedule and had threatened a company customer with unwarranted and unjustified legal action. 

The Minnesota Department of Economic Security disqualified Pearson from receiving unemployment benefits because he had been discharged for employment misconduct.  Pearson appealed this decision to a department unemployment law judge, who reinstated his benefits upon a finding that no employment misconduct had occurred because Pearson had called to find out his work schedule and Streiff had not returned his calls.  Streiff appealed this decision to the Commissioner of Economic Security, whose representative reversed the unemployment law judge’s decision upon a finding that Pearson’s discharge was a result of employment misconduct.  The representative concluded that Pearson’s misconduct consisted of his failure to report for work and his threat of legal action.  This appeal followed.

D E C I S I O N

A determination by the commissioner’s representative that an employee committed misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  We view the representative’s factual findings in a light most favorable to the decision, and we will not disturb those findings if there is evidence reasonably tending to sustain them.  White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).  Whether those findings support a misconduct determination is a question of law, which we review de novo.  Cook v. Playworks, 541 N.W.2d 366, 368 (Minn. App. 1996).  We will affirm if the findings of fact are supported by the evidence and if the conclusions are not contrary to law.  Colburn, 346 N.W.2d at 161.

Pearson argues that the representative’s decision that he was discharged for misconduct is not supported by the evidence.  The declared policy of the law provides “that benefits extend only to persons unemployed through no fault of their own.”  Auger v. Gillette Co., 303 N.W.2d 255, 257 (Minn. 1981).  Misconduct is defined under Minnesota law as 

(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(a) (2000).

The evidence supports the representative’s finding that Pearson was terminated for employee misconduct.  More specifically, the evidence supports the finding that Pearson was not terminated on April 28, 2000, when Streiff told him that he was no longer needed at the one job site; that Pearson thereafter failed to ascertain his work schedule; and that Streiff had other work available for Pearson during the period when he failed to call in.  Although Pearson had called during the weekend to obtain his work schedule for Monday, the commissioner’s representative found that he did not call again and that his

failure to report for work or to contact the owner after April 28, 2000 * * * was intentional conduct that disregard[ed] the standards of behavior which the employer has the right to expect of its employees. 

 

An employee’s “knowing violation of an employer’s policies, rules, or reasonable requests constitutes misconduct.”  Montgomery v. F & M Marquette Nat’l Bank, 384 N.W.2d 602, 604 (Minn. App. 1986) (citations omitted), review denied (Minn. June 13, 1986).  It is reasonable for an employer to “expect an employee to keep it apprised of his whereabouts.  Without this information, an employer cannot adequately plan its staffing needs.”  Winkler v. Park Refuse Serv., Inc., 361 N.W.2d 120, 123 (Minn. App. 1985). 

The commissioner’s representative also concluded that Pearson’s threat to file a lien against the project amounted to misconduct.  Because the finding on Pearson’s failure to call in or report to work was sufficient misconduct to justify the denial of benefits, we need not reach this issue on appeal.

Affirmed.