This opinion will be unpublished and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

C7-00-2073

 

 

Ray Shawn D. Taylor,

Relator,

 

vs.

 

Metro Sales, Inc.,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

 

Filed July 3, 2001

Affirmed

Schumacher, Judge

 

Department of Economic Security

File No. 635100

 

 

Ray Shawn D. Taylor, 8310 Fairfield Road, Brooklyn Park, MN 55444 (pro se relator)

 

Frederick W. Vogt, Mackall, Crounse & Moore, PLC, 1400 AT&T Tower, 901 Marquette Avenue, Minneapolis, MN 55402-2859 (for respondent Metro Sales)

 

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

 

 

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


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

SCHUMACHER, ROBERT H., Judge

Relator Ray Shawn D. Taylor challenges the determination that he was disqualified from receiving unemployment benefits, contending that he was not discharged for misconduct. We affirm.

FACTS

Taylor worked for respondent Metro Sales, Inc., from May 5, 1999 until June 8, 2000. In May 2000, he received an annual performance review and was told that his attendance was a concern and he would be receiving unpaid time off for further absences. Taylor was also told that he would receive a four percent raise and that he would be moved to a Richfield location. He expressed discomfort with the amount of the raise and the relocation to another office.

Shortly thereafter, during the first week of June 2000, he called in sick on two consecutive days, June 5 and 6, on which he told coworkers he was going to job interviews. On June 7, his manager attempted to reach him at work during his scheduled shift and found out that Taylor had come in and left without explanation. On June 8, 2000, he was notified of discharge; the discharge letter did not give a specific reason.

Taylor applied for unemployment benefits and the Department of Economic Security issued a determination of nondisqualification. Metro Sales appealed, contending that Taylor was discharged for misconduct. An unemployment law judge held an evidentiary hearing at which witnesses testified on behalf of Metro Sales. Taylor did not appear and was not represented at the hearing.

Taylor appealed from the unemployment law judge's subsequent decision that he had been discharged because of misconduct. The commissioner's representative affirmed the disqualification determination.

D E C I S I O N

The commissioner's determination that an employee is disqualified for reasons of misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). While we defer to the commissioner's findings of fact if they are reasonably supported, we exercise independent judgment with respect to questions of law. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). Whether an employee's acts constitute misconduct is a question of law that this court reviews de novo. Id.

We first consider whether the findings of fact are reasonably supported by evidence in the record. The commissioner's representative's factual findings are viewed in the light most favorable to the decision and are not disturbed if evidence in the record reasonably tends to sustain them. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).

Taylor suggests that he was not fired for excessive absenteeism as claimed by Metro Sales but because he had complained about not receiving a raise he had been promised. But since Taylor did not appear at the evidentiary hearing, his version of the facts is not properly in the evidentiary record. See Heisler v. B. Dalton Bookseller, 368 N.W.2d 314, 316 (Minn. App. 1985); Minn. R. 3310.2922 (1999). Even if Taylor's version of the facts was properly in the record, evidence in the record reasonably tends to sustain the commissioner's representative's factual findings.

Whether an employee's acts constitute misconduct is a question of law upon which reviewing courts remain free to exercise their independent judgment. Ress, 448 N.W.2d at 523.

(a) Employment misconduct means:

 

(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.

 

(b) Inefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.

 

* * * *

 

(e) The definition of employment misconduct provided by this subdivision shall be exclusive.

 

Minn. Stat. 268.095, subd. 6 (2000). Excessive absenteeism may constitute disqualifying misconduct. Tuff v. Knitcraft Corp., 520 N.W.2d 483, 486 (Minn. App. 1994), rev'd on other grounds, 526 N.W.2d 50 (Minn. 1995).

Here, there is no dispute that Taylor was willfully absent from work in June 2000. Apparently upset over the amount of his raise and the pending relocation to Richfield, which he felt was retaliatory, Taylor purposely avoided interaction with his manager while missing work to look for another job. The evidence in the record readily establishes Taylor's lack of concern for his employment. His conduct demonstrates a sufficient disregard of the employer's interest so as to constitute disqualifying misconduct as a matter of law.

Affirmed.