This opinion will be unpublished and

may not be cited except as provided by

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






Olusegun Osunlana,



County of Ramsey,

Commissioner of Employment and Economic Development,


Filed June 22, 2004

Crippen, Judge


Department of Employment and Economic Development

File No. 6984 03


Olusegun Osunlana, 2170 Sixth Street North, North St. Paul, MN 55109-2805 (pro se relator)


Susan Gaertner, Ramsey County Attorney, Jeffrey G. Stephenson, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 560, St. Paul, MN 55102 (for respondent Ramsey County)


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


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

U N P U B L I S H E D   O P I N I O N


            Relator challenges the findings of fact of the commissioner’s representative and the ultimate determination that he was discharged for employment misconduct and therefore disqualified from receiving unemployment benefits.  Because the findings of fact are adequately supported by the record and show that relator committed employment misconduct, we affirm.


            Relator Olusegun Osunlana was employed by the Ramsey County Nursing Home as a nursing assistant.  The employer maintains procedures for requesting vacation time and requires approval for such requests.  Its employment policy states that “[c]hronic absenteeism will result in disciplinary action, which may result in the loss of your position.”  The policy defines chronic absenteeism as including three occurrences within a three-month period.  Relator was informed that employees were responsible for verifying whether requests had been granted and acknowledged in writing that he had been given a copy of the handbook that contains the policy. 

            On March 6, 2003, relator submitted a time-off request for March 15, 16, and 17.  On March 14, while relator was absent from work for reasons unrelated to this appeal, his employer posted a denial of the request “in the usual fashion” after being unable to find a replacement for relator’s shifts.  When the employer did not hear from relator on March 14, Sharon Langevin, the staffing coordinator, called relator to inform him that he was expected to work his scheduled shifts.  Relator told Langevin that he wanted to go out of town and would have to call her back.  Later that day, relator spoke with Joleen Magee, the assistant director of nursing, and told her that he had left town the day before, March 13, and would be unable to make his scheduled shifts.

            Relator failed to appear for work on March 15, 16, or 17, and was discharged on April 4, 2003, for excessive absences and insubordination, because he had been specifically directed to report to work and failed to do so.  Relator argues that he was not indifferent to his employer’s rules because (1) he did not know his request had been denied when he left for Chicago; (2) he was already in Chicago when he received the phone calls and was unable to return; and (3) after talking with his employer, he believed the absences would be excused. 


            Decisions of the commissioner’s representative are accorded particular deference.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Whether an employee engaged in conduct that disqualifies him from unemployment benefits is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  A determination of the commissioner’s representative regarding the reasons for an employee’s separation is a factual one that is reviewed in the light most favorable to the decision and may not be disturbed if there is evidence reasonably tending to sustain the finding.  See Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992).  Whether the employee’s acts constitute misconduct is a question of law reviewable de novo on appeal.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

            At the time of relator’s discharge, employment misconduct was defined as intentional conduct that disregards recognized standards of conduct or “negligent or indifferent” conduct that “demonstrates a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (2002) (amended 2003).  In 2003, the definition was amended to expand the scope of misconduct premised on negligent or indifferent acts.  Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003) (as amended by 2003 Minn. Laws, 1st Spec. Sess. ch. 3, art. 2, § 13).  The 2003 statute became effective on August 1, 2003.  See Minn. Stat. § 645.02 (2002) (providing that laws become effective August 1 of the year enacted unless otherwise specified). 

            The commissioner’s representative purported to decide relator’s case under the 2003 definition, but her findings equally support a decision under the 2002 statute.  In its brief to this court, the Department of Employment and Economic Development announced its intention to apply the law in effect at the time of the commissioner’s representative’s decision rather than the date of the employee’s discharge.  This court has recently held that the law to be applied to these appeals is the law in effect at the time of the employee’s discharge.  Bray v. Dogs & Cats Ltd. (1997), __ N.W.2d __ (Minn. App. May 11, 2004).  Because relator was discharged April 4, 2003, we apply the 2002 definition of employment misconduct.

            The commissioner’s representative made an ultimate finding that relator intentionally violated standards of behavior that respondent reasonably had a right to expect of him.  The representative added that “[a]t the very least” relator’s conduct was indifferent and demonstrated a substantial lack of concern for the employment.  These findings were premised on a more particular finding that relator was given a reasonable demand to work as scheduled and did not have an adequate reason to refuse compliance. The commissioner’s representative specifically disagreed with relator’s assertion that he had reason to believe he was excused from work, finding that both Langevin and Magee informed relator that his request had been denied and directed him to report to work for his scheduled shifts, and that Magee informed him that if he did not report to work, the absences would be considered unexcused.[1]

            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).  In determining whether an employee’s reasons for an absence were intentional, we consider “whether the employee’s behavior caused his failure to report to work” or whether the absence was “due to circumstances within the control of the employee.”  Winkler v. Park Refuse Serv., Inc., 361 N.W.2d 120, 124 (Minn. App. 1985).

            On appeal, relator again asserts his claim that he had reason to believe he was excused from working March 15-17, 2003.  But the record includes contrary evidence in the form of notes from both Langevin and Magee that detail their conversations with relator.  Testimony indicated that Langevin took these notes while contemporaneously speaking with relator.  The commissioner’s representative made specific findings based on this evidence.  More generally, the representative found that (1) the parties presented conflicting evidence in the case; (2) relator’s evidence was “inconsistent and contradictory, in and of itself, as well as being in conflict with [respondent’s] evidence”; and (3) the evidence presented by respondent was “more credible than [relator’s].”  This court must defer to the ability of the commissioner’s representative to weigh the evidence and may not reweigh that evidence on review.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995). 

            Relator claims that he traveled to Chicago before learning his leave request was denied.  The commissioner’s representative did not directly deal with an assertion to this effect, but the record includes evidence that relator was at home when he received the two telephone calls on March 14, and the representative made a general finding that relator’s evidence was less credible than respondent’s.  Langevin stated that she called relator at his home phone number and relator answered.  At that time, relator indicated to Langevin that he wanted to travel out of town.  It was only later in the day when he talked to Magee that he claimed he had left town the day before, on March 13.  Moreover, the significance of relator’s claim is eliminated by the undisputed fact that he left for Chicago without first checking to learn whether his request had been approved or denied.

            The record requires that we affirm the commissioner’s representative’s determination that relator committed employment misconduct when he failed to work his scheduled shifts.


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

[1] The commissioner’s representative added the general finding that relator “did not have a compelling reason for his absence.”  We read this statement only as a ratification of the finding of the commissioner’s representative that relator was directed to return to work.  Relator’s burden was not to establish a “compelling” reason for why he was unable to report to work, but only to show that he was not indifferent to his employer’s expectations.