This opinion will be unpublished and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

A03-617

 

Quang N. Nguyen,

Relator,

 

vs.

 

Mamac Systems, Inc.,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed ­­­December 23, 2003

Affirmed

Harten, Judge

Dissenting, Hudson, Judge

 

Department of Employment and Economic Development

Agency File No. 14743 02

 

Jonathan Geffen, Southern Minnesota Regional Legal Services, Inc., 300 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for relator)

 

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

 

Eric D. Satre, Connor, Satre & Schaff, L.L.P., 925 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for Mamac Systems, Inc.)

 

            Considered and decided by Harten, Presiding Judge, Peterson, Judge, and Hudson, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Relator challenges the determination of the commissioner’s representative that he was discharged for misconduct.  Because the record contains evidence that supports the findings of fact on which that determination was based, we affirm.

FACTS

 

            Relator Quang Nguyen began working for respondent Mamac Systems, Inc., in February 2000.  On 17 October 2001, relator received his first written warning stating that he had four tardies on his record, that three tardies was the equivalent of one unexcused absence, and that three unexcused absences within 12 months or one unexcused absence of more than three days made an employee subject to termination.  The warning was signed by relator and by an interpreter, who was present because relator’s understanding of English is limited. 

Relator and his wife, also respondent’s employee, bought airline tickets to go to Vietnam. After buying the tickets, on 22 April 2002, relator told respondent that he intended to miss work from 24 June to 25 July.[1]  On 10 May, respondent informed relator, in a written memo, with an interpreter present, that relator had requested 184 hours of vacation time, that he would have only 145 hours available, and that he had two options: either return after he used up the 145 hours or resign and reapply for a possible opening when he returned.  Relator signed the memo.  On 24 May, respondent sent a followup memo telling relator that he needed to let respondent know which option he was taking.  Relator circled option A: taking the 145 hours and returning to work.  An interpreter was present and signed the memo. 

            Relator did not change his ticket prior to departure. On 18 July 2002 relator sent respondent a fax from Vietnam stating that he would not be able to change his ticket, would not be back at work on 19 July, and would return to work on 25 July.  Relator was terminated on 22 July because that day was his third unexcused absence and because he had misrepresented to respondent when he intended to return to work. 

            Relator applied for unemployment benefits.  A departmental adjudicator determined that he was not disqualified from receiving benefits.  Respondent appealed and, after a hearing, an unemployment law judge (ULJ) affirmed that determination.  Respondent again appealed, and the commissioner’s representative reversed, concluding that relator had committed disqualifying misconduct.  Relator now challenges that conclusion, arguing both that the commissioner’s representative’s findings are not supported by the record and that relator’s acts did not meet the statutory definition of misconduct.

D E C I S I O N

 

1.         Findings of Fact

 

             This court examines the decision of the commissioner rather than the decision of the unemployment law judge.  Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).  We defer to the commissioner’s findings of fact if they are reasonably supported by the evidence in the record.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

Relator contends that the commissioner’s representative’s findings are not supported by the evidence.  But documentary evidence supports several findings, e.g., the findings that (1) “[respondent] informed [relator] that he could only take 145 hours of vacation since that is the time he had available to him [and that] . . . if [relator] wanted to stay beyond July 19, 2002, he could choose to resign from his position and reapply for a possible position upon his return;” (2) “[relator] knew well in advance of his trip that he would be expected to return to work on July 19, 2002;” and (3) “[o]n July 18, 2002, [the day before respondent expected him back at work,] [relator] faxed [respondent] a note from Vietnam that said that he wouldn’t be able to change his ticket and . . . [would] be at work on the 25th of July.”  

Testimony supports the other findings as well.  Relator testified that he left for Vietnam without a return ticket that would enable him to return to work on time; this testimony supports the findings that “[relator] did not change his flight times prior to his departure” and that “[relator] failed to take any steps to change his travel plans prior to the time he left the country to go to Vietnam.”   Documentary and testamentary evidence together support the finding that “[relator] knew full well of the consequences of not returning by July 19, 2002, and he did not change his travel plans to return by July 19, 2002.”

2.         Disqualifying Misconduct

            Relator contends that his acts did not meet the statutory definition of misconduct. 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.  The statutory definition of misconduct relevant here was

            (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) (2002).[2]  “The definition of employment misconduct provided by this subdivision shall be exclusive.”  Minn. Stat. § 268.095, subd. 6(e) (2002). 

An employer has a right to establish and enforce reasonable work rules relating to absenteeism.  Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985) (citing Campbell v. Minneapolis Star & Tribune Co., 345 N.W.2d 803, 805 (Minn. App. 1984)); Flahave v. Lang Meat Packing, 343 N.W.2d 683, 686 (Minn. App. 1984).  Relator does not argue that respondent’s vacation policy was unreasonable or that he did not know the policy and its specific application to his own situation.  But he argues that his failure to follow the rules was not intentional because he did not learn until he was in Vietnam that he would not be able to return on time.[3] 

Relator’s testimony on this point is not clear.  The interpreter said,

[Relator] thought, when he bought a ticket he was to be back here on time to work but when he over there the Northwest, Northwest Airlines didn’t have any—Vietnam.  So at Vietnam he couldn’t get an airplane on time . . . they wouldn’t let him change.  They promised him when he bought a ticket but at Vietnam they don’t book a ticket for him . . . . I don’t think [relator] buy ticket through the Northwest Airlines he buy ticket through those Vietnam agents and they book ticket. . . . He got ticket, a half at the time and they promised him that he will come back on time.  But at Vietnam they didn’t keep their promise.

 

Relator introduced no documentary or other evidence of any of his alleged dealings with travel agents. 

But despite relator’s confusing and sometimes contradictory testimony, and the interpreter’s many interpretations in the third person, both of which go to the weight and credibility of relator’s testimony, three points remain clear: relator knew when respondent required him to be back at work; he caused respondent to think he would meet that requirement; and he left for Vietnam knowing he did not have a return ticket that would enable him to meet that requirement. 

Even accepting as true relator’s unsupported argument that he did not intend to stay in Vietnam when he was expected back at his job, we find misconduct.  Misconduct is not limited to intentional acts: negligent or indifferent conduct that demonstrates a substantial lack of concern for employment is also misconduct. Minn. Stat. § 268.095, subd. 6 (a)(2) (2002).   Absence from a job need not be intentional to be misconduct.  See, e.g., Jones, 361 N.W.2d at 120 (“Although there was no showing that [the employee’s] absenteeism was willful or deliberate, it was sufficiently chronic and excessive to demonstrate a lack of concern by [the employee] for her job.”).  Jones reversed a determination that unintentional absence was not misconduct when the reason for an employee’s final absence was outside her control.  Id.   

            Respondent had a right to require relator to limit the length of his vacation to the number of hours he had available and to expect that he would return to work when he said he would.  Those rights were not affected by relator’s misplaced trust in others.  Relator demonstrated indifferent conduct that demonstrated a substantial lack of concern for his employment.  His actions constituted employment misconduct.

            Affirmed.

 

HUDSON, Judge (dissenting)

I respectfully dissent.  I do not believe the record supports the commissioner’s representative’s finding that Nguyen intentionally disregarded his employer’s instructions and attendance policy.  Moreover, I disagree with the majority that Nguyen’s conduct was negligent or indifferent.  Rather, for two reasons I believe the record shows Nguyen demonstrated considerable regard for the rights and concerns of his employer and that his absence was beyond his control. 

First, Nguyen testified that he called his travel agent the same day his employer told him he would have to return to the United States by July 19, 2002.  Nguyen also testified that before he left for Vietnam the travel agent who booked his ticket told him the ticket either would or could be fixed.  There was no evidence in the record challenging this testimony.  While we are required to defer to the credibility determinations of the commissioner’s representative, here there is no conflicting evidence in the record challenging Nguyen’s testimony.  Indeed, if the unemployment law judge or employer determined that the record was incomplete they had a duty to further develop the record.  Minn. R. 3310.2921 (1999).

Second, there is evidence in the record that when Nguyen realized that the travel agent had not changed his ticket, Nguyen made several efforts while in Vietnam to get the ticket changed himself.  Thus, the record demonstrates that Nguyen made reasonable efforts to get his ticket changed before he left for Vietnam as well as while he was in Vietnam, and did not intentionally or negligently disregard the wishes of his employer. 

The majority cites Jones v. Rosemount, Inc., for the proposition that even an unintentional absence beyond the control of the relator constitutes misconduct.  361 N.W.2d 118, 120 (Minn. App. 1985).  But Jones is distinguishable from the case at hand.  In Jones,the relator had received three verbal warnings and two written warnings due to her chronic absenteeism.  Id. at 119.  After Jones’s last written warning, she was absent again through circumstances beyond her control.  Id. at 120.  But the Jones court held that regardless of Jones’s motives on that day, her chronic and excessive absenteeism demonstrated a lack of concern for her job.  Id.  In this case, however, the commissioner’s representative found that Nguyen only had one prior unexcused absence, not the excessive absenteeism seen in Jones.  Therefore, I do not believe Jones is applicable in this case.

Thus, given the remedial nature of the employment laws, the uncontradicted testimony that Nguyen believed his ticket would or could be changed, and Nguyen’s efforts in Vietnam to change his ticket, I am persuaded that the record does not support the finding that Nguyen intentionally or negligently disregarded his employer’s absenteeism policy.  Accordingly, Nguyen’s inability to get back from Vietnam by July 19, 2002, and his resulting absence, did not constitute misconduct under Minn. Stat. § 268.095, subd. 6(a) (2002).

 

 



[1] In his brief, relator claims that he told respondent the reason for his trip was a family emergency, i.e., visiting his dying father, but there is no evidence of this.

[2] Although this statute was revised in 2003, the commissioner’s representative appropriately applied the statute effective at the time of relator’s acts. The new version adds “good faith errors in judgment” to the list of activities that are not misconduct.  2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 13.  But, contrary to relator’s argument, leaving the country without a ticket that will enable one to return to the job by the correct date is not a good faith error in judgment. 

[3] The ULJ was aware that the interpreter was interjecting his own views into his answers, but accepted the testimony without correction.  We do not condone this practice.  See Code of Prof. Resp. for Interpreters in the Minn. State Court System, Canon 1 (“Interpreters shall render a complete and accurate interpretation . . . without altering, omitting, or adding anything to the meaning of what is stated or written, and without explanation.”), Canon 7 (“Interpreters shall limit themselves to interpreting or translating and shall not give legal advice, express personal opinions to individuals for whom they are interpreting, or engage in any other activities which may be construed to constitute a service other than interpreting or translating while serving as an interpreter.”).