This opinion will be unpublished and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
Timothy J. Moot,
Commissioner of Employment and Economic Development,
Filed March 30, 2004
Department of Employment and Economic Development
File No. 877 03
Timothy J. Moot, 1715 Taconite Trail, Eagan, MN 55122 (pro se relator)
Mats Inc., 940 Aldrin Drive, Eagan, MN 55121-2274 (respondent)
Lee B. Nelson, Philip B. Byrne, Minnesota 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 Lansing, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
Timothy Moot appeals from a determination that he is disqualified from receiving unemployment benefits because he quit his job without a good reason caused by his employer. Although the record establishes adverse changes to Moot’s employment terms, the record reasonably supports the commissioner’s representative’s determination that the adverse changes were warranted by Moot’s employment misconduct, and we therefore affirm.
F A C T S
Mats Inc., an airfreight delivery service, employed Timothy Moot from October 2001 to November 18, 2002. Moot began as a utility driver and within a short time was assigned to a regular route. Moot was not guaranteed a minimum number of hours a week at the time he was hired or when he was assigned to a regular route. As a utility driver, Moot worked fifteen to twenty hours a week; as a route driver for the St. Cloud route he worked forty to fifty hours a week. The St. Cloud route assignment required that he start work at 9:30 a.m. to be available to make deliveries scheduled at specific times.
On November 15, 2002, a Friday afternoon, Moot orally told his supervisor that he would not be in the following Monday morning, November 18, until noon or a little before noon. The established company procedure was to turn in a note in advance. Moot knew about the procedure because of conflicts with his supervisor that had arisen over two previous time-off requests, one in September 2002 and one in October 2002.
Moot’s supervisor told him that he could not take the time off because no one was available to cover the route. Moot testified his supervisor said that he “would need to cover the route or somebody else would be out on the route, I think is the way he said it. Your route will be gone by then is what he said.” Moot told his supervisor that he was “firm about not coming in” and that the supervisor should do what he had to do. Moot testified that his Monday morning appointment was “personal” and nonmedical.
Moot did not report for work on Monday morning at his scheduled time of 9:30 a.m. His supervisor testified that Mats was forced to “double up on drivers causing service concerns and safety issues.” Moot called in at 11:30 a.m. and spoke with a dispatcher who told him that someone already had his route and that he needed to speak with the supervisor.
Mats removed Moot from the St. Cloud route and replaced him with the driver who had been the utility driver. Mats told Moot that he could continue working as a utility driver. Moot declined because he did not like the duties of that position and because he believed that the number of hours would not be equivalent to the St. Cloud route. The person who most recently held the utility-driver position averaged over forty hours a week, but Moot had only averaged about twenty when he was the utility driver. Moot was willing to accept a position similar to the St. Cloud route, but because he was only offered the utility driver position he did not return to work.
D E C I S I O N
“An applicant who quit employment shall be disqualified from all unemployment benefits except when . . . the applicant quit the employment because of a good reason caused by the employer.” Minn. Stat. § 268.095, subd. 1(1) (2002). “A substantial adverse change in the wages, hours, or other terms of employment by the employer shall be considered a good reason caused by the employer for quitting unless the change occurred because of the applicant’s employment misconduct.” Minn. Stat. § 268.095, subd. 3(2)(c) (2002).
In his brief on appeal, Moot states that he was relieved of his route and offered a utility position that he believed was far less lucrative, and “[a]t that point I quit.” Moot submits that he was justified in quitting because his work conditions were substantially changed. The commissioner’s representative noted that the evidence was conflicting on whether the utility position would result in fewer hours, but accepted for purposes of the determination that Moot’s assignment to the utility position was an adverse change in the wages, hours, or other terms and conditions of employment.
Moot maintains that because the adverse change is a good reason to quit caused by the employer, he should not be disqualified from receiving unemployment benefits. This argument overlooks the exception stated in the statute for a change that occurs because of the applicant’s employment misconduct. Minn. Stat. § 268.095, subd. 3(2)(c) provides that a substantial adverse change in the terms of employment is a good reason to quit unless the change occurred because of the applicant’s employment misconduct. Thus the dispositive question is whether the record reasonably supports the commissioner’s representative’s decision that Moot’s failure to report to work on Monday, November 18, 2002, constituted employment misconduct. See Tuff v. Knitcraft, 526 N.W.2d 50, 51 (Minn. 1995) (identifying review standard as whether evidence reasonably supports commissioner’s decision).
Employment misconduct is any intentional conduct that disregards the standards of behavior that an employer has the right to expect of the employee, or negligent or indifferent conduct that demonstrates a substantial lack of concern for the employment. Minn. Stat. § 268.095, subd. 6(a) (2002). To constitute misconduct the employee must intend to disregard either his duties or obligations to the employer or the standards of conduct the employer has a right to expect. Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149-50 (Minn. 2002).
The facts demonstrate that Moot did not observe the company’s procedures for providing advance written notice, provided little advance notice when he told his supervisor late on Friday afternoon that he would not be in on Monday morning, provided no emergency or medical reason for not working his scheduled hours, was unwilling to accept the refusal of his time-off request, told his employer that he should do what he had to do, and did not report for work on Monday morning.
An employer has a right to expect an employee to work when scheduled. Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984). Although Mats provided evidence of Moot’s previous problems of providing adequate notice for time off, the reason for reassigning the St. Cloud route was primarily Moot’s refusal to report to work on Monday morning, November 18, 2002. A single incident may support a determination of misconduct if an employee chooses a course of conduct that is adverse to the employer. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 806 (Minn. 2002). If an employee’s refusal to carry out a directive of the employer is deliberate, calculated, and intentional, then the refusal is misconduct. McGowan v. Executive Express Transp. Enters., 420 N.W.2d 592, 596 (Minn. 1988).
Mats had a clear and substantial interest in providing prompt deliveries and maintaining specific schedules on its assigned routes. Moot refused to comply with Mats’s reasonable employment expectations and provided no emergency or medical reason for his refusal. The facts reasonably support the commissioner’s representative’s determination that Moot’s refusal to report to work on time on November 18 constituted employment misconduct disqualifying him from unemployment benefits.