This opinion will be unpublished and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

C0-01-1289

 

Melody L. Bolstad,

Relator,

 

vs.

 

Computer Concepts & Services, Inc.,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

Filed ­February 26, 2002

Affirmed

Harten, Judge

 

Department of Economic Security

Agency File No. 1634-01

 

Peter B. Knapp, Reynaldo Aligada (certified student attorney), c/o William Mitchell College of Law, 875 Summit Avenue, St. Paul, MN 55105 (for relator)

 

Philip B. Byrne, Scott Hemer, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)

 

            Considered and decided by Harten, Presiding Judge, Anderson, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

Relator challenges the decision by the commissioner’s representative disqualifying her from receiving unemployment insurance benefits because of misconduct.  Relator contends that her refusal to accept an assignment that would require extended overnight travel away from her ill daughter was not misconduct.  Because relator knew her job could require overnight travel, we affirm.

F A C T S

            On March 1, 1999, relator Melody Bolstad began work at Computer Concepts and Services, Inc. (CCSI) as a computer consultant.  CCSI is located in St. Cloud and provides computer consulting services primarily in Minnesota, but also in other parts of the country. 

             CCSI president Patti Delano interviewed relator for the CCSI job.  Delano testified that she informed relator that the job might require travel “on certain projects, depending on where the client is located” and that such projects might take, “multiple days and multiple weeks, or months, of travel.”  Paul Abram, a former vice-president at CCSI, testified that it was common for computer consultants to travel overnight and that some employees at CCSI had done so while he worked there.

Relator testified she did not know that CCSI served clients located outside Minnesota or more than a commuter’s drive from St. Cloud.  She stated that she was never told that she might be required to travel and stay overnight for any given assignment nor did she know other employees at CCSI who were required to do so. 

             Relator is a single mother of a teenage daughter who suffers from mental illness.  Relator was never assigned to a project that required more than commuter travel until December of 2000 when Delano alerted her that she would be assigned to a project in Sleepy Eye, Minnesota, beginning in January.  The length of the project was unknown.  Relator said she was led to believe that the project could last up to six months.  Delano testified that relator did not tell her of relator’s daughter’s mental illness; relator only told her that “she could not be gone out of town overnight because of her daughter.”  Relator refused the assignment.

On January 5, 2001, CCSI terminated relator for refusing the assignment.  Relator applied for unemployment insurance benefits from the Minnesota Department of Economic Security.  The department denied her request, finding that relator had not “quit because of a good reason caused by the employer.”  Relator appealed to an unemployment law judge.  After a hearing, the unemployment law judge amended the department’s decision, finding that relator was disqualified because of misconduct. 

            Relator appealed to the commissioner’s representative.  The commissioner’s representative affirmed the findings and conclusions of the unemployment law judge.  This appeal followed.

D E C I S I O N

Under Minnesota law, 

[a]n applicant who was discharged from employment by an employer shall not be disqualified from any unemployment benefits except when:

(1)       the applicant was discharged because of employment misconduct.

 

Minn. Stat. § 268.095, subd. 4 (2000).

 

            On appeal, we review the decision of the commissioner’s representative, rather than that of the unemployment judge.  Kalberg v. Park & Recreation Bd. of Minneapolis, 563 N.W.2d 275, 276  (Minn. App. 1997).  Decisions of the commissioner’s representative are accorded particular deference.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).

            The commissioner’s representative’s determination that an employee is disqualified for reasons of misconduct is a mixed question of law and fact.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).  We review factual findings in the light most favorable to the decision and determine only whether there is evidence in the record that tends to reasonably support those findings.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  We review de novo the ultimate question of whether an employee has committed misconduct.  Id.  Our review is confined to the record.

             The commissioner’s representative found that relator knew her job at CCSI would require travel, including possible overnight assignments, that CCSI had made reasonable efforts to assign relator to local job sites, that relator never gave CCSI any documentation about her daughter’s illness, and that there was no evidence that relator attempted to make any arrangements for her daughter for the times that relator would be away from home.

            Relator insists that she did not know her job could require overnight travel.  Although the parties dispute what CCSI told relator during the interview process, we are obliged to view the facts in a light most favorable to the commissioner’s decision.  CCSI president Delano testified that she told relator at her interview that the job would require travel.  Former CCSI vice president Abram testified that it was common for computer consultants to travel to other states and that CCSI employees had done so in the past.  The record supports the commissioner’s representative’s finding that relator knew extended overnight travel was a possibility when she accepted the job. 

            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.

 

Minn. Stat. §268.095, subd. 6 (2000).

            Relator’s argument is based on her assertion that she did not know her job might require travel.  She claims that

 [b]ecause CCSI failed to adequately communicate its expectations of overnight travel * * *, her refusal did not disregard such expectations or her obligations.

 

But because there is evidence supporting the finding of the commissioner’s representative that CCSI did communicate its expectations regarding travel to relator during her interview, we must credit that finding.

Relator also argues that even if she knew that overnight travel was a possibility, the project in Sleepy Eye was still unreasonable because its length was indefinite and could last up to six months.  Delano testified that CCSI estimated the project would take “between a couple of weeks and a couple of months,” that the initial phase was to determine the exact length, and that, depending on the nature of the project, relator could have worked some days in the St. Cloud office.  There is no evidence that relator investigated the project to determine how long it would last or if she would be able to work from St. Cloud.  Nor is there evidence that she attempted to explain the details of her situation to CCSI or investigate even short term childcare for her daughter. 

Because relator knew that some overnight travel was a possibility, her outright refusal to take the Sleepy Eye project without any further inquiry or action could reasonably be considered a breach of her duty to CCSI and therefore was misconduct under section 268.095, subdivision 6.  See also Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985) (refusal to perform a reasonable request is considered misconduct). The commissoner’s representative did not err in finding that relator was disqualified from receiving benefits because she committed misconduct.[1]

Affirmed.



[1] Because relator did not contest the department’s refusal to issue a subpoena for a desired witness at the hearing, we do not consider the issue on appeal.  See Reserve Mining Co. v. Gorecki, 316 N.W.2d 547, 549 (Minn. 1982) (court refused to decide whether an employee’s action disqualified her from receiving unemployment benefits when the argument was not properly raised during agency proceedings).  Even if it were properly before us, it would fail because relator did not mention the subpoena at the hearing before the employment law judge.