This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-235

 

Sarah M. Williams,
Relator,

vs.

Catholic Charities of St. Paul & Minneapolis
Respondent,

 

Commissioner of Employment and

Economic Development,

Respondent.

 

Filed November 25, 2003

Affirmed
Crippen, Judge
*

 

Department of Employment and Economic Development

File No. 10824 02

 

Sarah M. Williams, 240 1/2 Western Avenue South, St. Paul, MN 55102 (pro se relator)

 

Mary L. Setter, 4301 Ewing Avenue South, Minneapolis, MN 55410 (for respondent)

 

Lee B. Nelson, Philip B. Byrne, Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN 55101 (for respondent Commissioner of Employment and Economic Development)

 

            Considered and decided by Schumacher, Presiding Judge, Lansing, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Relator challenges the decision of the representative of the commissioner of economic security[1] that she was terminated from her job for intentional employment misconduct and is therefore disqualified from receiving unemployment insurance benefits.  Because we conclude the commissioner’s representative’s findings of fact have reasonable evidentiary support and support an ultimate finding of misconduct, we affirm.

FACTS

            Relator Sarah Williams was terminated from her employment with respondent Catholic Charities of St. Paul & Minneapolis after failing to report to work or call in from June 11 through June 13, 2002.  Relator contends her work schedule was irregular and flexible and she was not required to inform her supervisor of her schedule or absences from work.  Respondent denies this, contending that relator was expected to work a fixed schedule and notify respondent of her schedule and absences.  Respondent attempted to contact relator on each of the three days she was absent, but relator failed to contact respondent until June 13, when she called to report that she was resigning, a decision she admits having made earlier in the week.  By the time respondent received this message, it had already decided to terminate relator’s employment.  The commissioner’s representative determined that relator had engaged in employment misconduct by disregarding the standards of behavior the employer had a right to expect.

D E C I S I O N

            Decisions of the commissioner’s representative are accorded deference.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  We review the commissioner’s representative’s factual findings in the light most favorable to the decision and will not disturb them if the record reasonably tends to support them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  Although a misconduct determination is primarily a fact-based inquiry, disqualification is a question of law.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523-24 (Minn. 1989). 

            An employee discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (2002).   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. 

 

Id., subd. 6(a)(1), (2) (2002).  An employee’s failure to report to work when scheduled constitutes employment misconduct.  Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984).  An employee’s repeated failure to notify the employer of expected absences also constitutes misconduct.  Gustafson v. IRC Indus., 374 N.W.2d 594, 597 (Minn. App. 1985). 

The fact that the commissioner’s representative failed to resolve the principal dispute between the parties makes resolution of this appeal difficult.  Relator insisted she had a flexible schedule and no obligation to report her work schedule to her supervisor.  Although the commissioner’s representative noted relator’s position, he merely determined that relator and her supervisor had met to discuss a fixed schedule. 

Nonetheless, additional undisputed findings of the commissioner’s representative support the misconduct decision.  Most significantly, the commissioner’s representative found that “the employer attempted to contact [relator] each day she was not at work, yet [relator] did not call the employer back until June 13.”  Indeed, relator acknowledges she received several messages and yet deliberately failed to promptly contact her employer, perhaps because she had already made the decision to resign.  An employer could reasonably expect an employee to respond to messages left by the employer.  Thus, the stated findings of the commissioner’s representative support his determination that relator committed employment misconduct.

            Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]As of July 1, 2003, the commissioner of economic security is now known as the commissioner of employment and economic development and the Minnesota Department of Economic Security is now known as the Minnesota Department of Employment and Economic Development.