This opinion will be unpublished and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

C6-00-2226

 

 

Patrice N. Montpetit,

Relator,

 

vs.

 

Whitaker Lincoln,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

 

Filed June 26, 2001

Affirmed

Schumacher, Judge

 

Department of Economic Security

File No. 689200

 

 

Stephen L. Smith, The Law Firm of Stephen L. Smith, PLLC, 700 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for relator)

 

Whitaker Lincoln, 1290 East 50th Street, Inver Grove Heights, MN 55077 (respondent)

 

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

 

 

Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Anderson, G. Barry, Judge.

U N P U B L I S H E D O P I N I O N

SCHUMACHER, ROBERT H., Judge

Relator Patrice N. Montpetit challenges the commissioner's representative's decision finding that she was discharged for employment misconduct and was disqualified from receiving unemployment benefits. We affirm.

FACTS

Montpetit was employed by respondent Whitaker Lincoln from April 4, 2000 to June 14, 2000 as a special finance manager. Montpetit claims she was hired with the understanding that she would set her own schedule. According to Montpetit, Whitaker wanted her to work a regular schedule but she refused because she had to be available to meet with customers at all hours. Whitaker claims it allowed Montpetit some flexibility in her schedule, but that it generally expected her to work from 10:00 a.m. to 6:00 p.m.

Whitaker's posted schedule showed Montpetit's hours were 2:00 p.m. to 9:00 p.m. on Monday and 10:00 p.m. to 6:00 p.m. Tuesday, Wednesday, Thursday, and Saturday, with Friday and Sunday off. Montpetit was frequently away from work during her scheduled hours. Whitaker received complaints from customers about Montpetit's absences. Whitaker warned Montpetit on May 15, 2000 that she must adhere to her schedule and check in and out with the switchboard. On May 22, 2000, customers were looking for Montpetit, and Whitaker employees did not know her whereabouts. Montpetit was again warned to adhere to her schedule.

On June 13, 2000, Montpetit had a dispute with Whitaker's controller about her bonus check. Montpetit had expected to receive a $3,000 bonus check but she received a check for $0. She became upset, packed up some items from her office, and left Whitaker at 3:00 p.m. Montpetit claims she was free to leave because she had no more appointments that day. She also claims she was waiting for Whitaker's owner to call her regarding the erroneous paycheck and did not come into work the next day until 2:00 p.m., although she was scheduled to work at 10:00 a.m. When Montpetit returned to work, she was discharged.

The Department of Economic Security determined Montpetit was not disqualified from receiving benefits. An unemployment law judge affirmed, and Whitaker appealed to the commissioner's representative. The commissioner's representative reversed, finding Montpetit was discharged due to employment misconduct consisting of "unexcused absenteeism and failure to adhere to the employer's schedule."

D E C I S I O N

The commissioner's representative's findings of fact are viewed in the light most favorable to the decision and will not be disturbed if there is reasonable evidence to support them. McGowan v. Executive Express Transp. Enters., 420 N.W.2d 592, 594 (Minn. 1988). Whether an employee's acts constitute misconduct is a question of law upon which courts are free to exercise their independent judgment. Ress v. Abbott Northwestern Hosp., 448 N.W.2d 519, 523 (Minn. 1989).

An employee discharged for misconduct is disqualified from receiving unemployment benefits. Minn. Stat. 268.095, subd. 4(1) (2000). The statute defines disqualifying misconduct 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).

An employee's failure to report to work when scheduled is employment misconduct. Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984). Likewise, repeated failure to notify the employer of expected absences or tardiness constitutes misconduct. Gustafson v. IRC Indus., 374 N.W.2d 594, 597 (Minn. App. 1985) (citation omitted). Leaving work early without notice or permission is also disqualifying employment misconduct. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).

Whitaker and Montpetit gave conflicting testimony about Montpetit's schedule. The commissioner's representative, however, credited Whitaker's testimony that Montpetit was generally expected to work from 10:00 a.m. to 6:00 p.m.; that she was asked to check in and out with the switchboard; and that Whitaker warned Montpetit on at least two occasions of its expectations. Montpetit, however, failed to keep regular hours, failed to check in and out, left several hours early on June 13, and reported to work several hours late on June 14, 2000. Montpetit's actions constituted

intentional conduct * * * 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.

 

Minn. Stat. 268.095, subd. 6(a). The record reasonably supports the commissioner's representative's decision that Montpetit was discharged for employment misconduct.

Affirmed.