This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-836

 

Daniel J. Faley,

Relator,

 

vs.

 

Central Car Wash,

Respondent

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed ≠≠≠January 18, 2005

Affirmed

Harten, Judge

 

Department of Employment and Economic Development

Agency File No. 299 04

 

Daniel J. Faley, 5100 Sixth Street Northeast, Apartment 30, Columbia Heights, MN 55421 (pro se relator)

 

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

 

Central Car Wash, Cin-Mar Corp., 1814 Central Avenue Northeast, Minneapolis, MN 55418 (respondent)

 

††††††††††† Considered and decided by Stoneburner, Presiding Judge; Klaphake, Judge; and Harten, 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 of the commissionerís representative that he was disqualified from unemployment benefits because he had been discharged for employment misconduct.† Because evidence supports the findings of fact on which that decision was based, we affirm.

FACTS

 

††††††††††† Relator Daniel Faley was hired as a car wash manager by Central Car Wash (respondent) in March 2003.† On 2 July 2003, the owner of the car wash, Marty Carder, posted a list of names of employees, including relator, who had been late for work.† Relator was offended and did not show up for work on 3 July or 5 July.†

††††††††††† On 14 November 2003, Carder met with relator to discuss reducing labor costs.† Relator became upset and angry; he screamed obscenities and threatened Carder.† Carder discharged relator.

††††††††††† The Department of Economic Security determined that relator had not been discharged for misconduct and was entitled to benefits.† Respondent appealed.† Following a hearing, an unemployment law judge determined that relator had been discharged for misconduct and was not entitled to benefits.† Relator appealed; the commissionerís representative affirmed that decision.† Relator brings this certiorori appeal.

D E C I S I O N

 

Employment misconduct means any intentional, negligent, or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment.

Inefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, good faith errors in judgment if judgment was required, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.

 

Minn. Stat. ß 268.095, subd. 6(a) (Supp. 2003).† The determination that an employee is disqualified for reasons of misconduct is a mixed question of law and fact; this court will affirm if the findings of fact have evidentiary support and if the conclusion based on them is not contrary to the statute.† Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).† The commissionerís representative found that relator had been discharged for misconduct.† The incidents on which that finding was based occurred in early July and November 2003.

††††††††††† July Incident

The commissionerís representative found that ď[relator] failed to report for scheduled shifts on [3] July . . . and [5] July . . . 2003.Ē† Relatorís own testimony provides supporting evidence for this finding.† He testified that:

I felt . . . if [Carder]ís going to put my name on the list, I laughed at it and thought but you know what, half these guys never show, what if I donít show up on your 4th of July weekend.† And, yes, I did not show up.†

 

Absenteeism qualifies as misconduct for purposes of the unemployment statute.† Prickett v. Circuit Science, Inc., 518 N.W.2d 602, 605 (Minn. 1994).† Relator admitted to absenteeism.

††††††††††† The commissionerís representative also noted that, ďAlthough there is some conflict in the evidence, a preponderance of the evidence shows that [relator] also failed to even notify Carder of his absences.Ē† Carder testified that relator did not call and did not show up when he was scheduled to work over the 4 July weekend; relator testified that he ďcalled and told [Carder] I would not be there, I was not feeling well, and I proceeded to take my son out of town on a fishing trip . . . .Ē[1]† Dishonesty connected with employment may itself constitute misconduct for unemployment purposes.† Baron v. Lens Crafters, Inc., 514 N.W.2d 305, 307-08 (Minn. App. 1994) (finding misconduct when professional relations manager lied about having trained store managers).† In any event, whether or not relator called in sick when he went on a fishing trip instead of reporting to work, his failure to show up for work and his claim that he was sick when he was not sick were misconduct.†

††††††††††† November Incident

††††††††††† The commissionerís representative found† :

On November 14, 2003, Carder called a meeting with [relator] to discuss the companyís financial status.† Among other issues Carder wanted to discuss with [relator] how to reduce labor costs.

 

During the meeting, [relator] became upset and began screaming obscenities at Carder.† [Relator] also threatened Carder . . . .†

 

Carderís testimony supports this finding: he said that relator had used numerous expressions of profanity and obscenity, accused him (Carder) of dishonesty, and threatened him.† When the unemployment law judge asked relator about the November incident, relator neither affirmed nor denied Carderís testimony.† Instead, relator talked about Carderís way of running his business and claimed he had been fired for a financial reason, i.e., he cost Carder too much.† The commissionerís representative was obliged to weigh the conflicting evidence provided by Carder and relator and this court defers to that ability to weigh evidence.† Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).† We do not weigh evidence on review.† Id.† Carderís testimony supports the commissionerís representativeís finding, and there is no basis to overturn it.

††††††††††† The findings that relator committed misconduct have evidentiary support, and the conclusion that he was discharged for misconduct is lawful.† We therefore affirm the commissionerís representativeís decision.

††††††††††† Affirmed.†



[1]With his brief on appeal, relator submits phone bills indicating that he called the car wash on the mornings of 3 July and 5 July.† Relator did not submit or refer to these bills before the unemployment law judge, and they are not part of the record.† Therefore, they may not be considered on appeal.† See Minn. R. Civ. App. P. 110.01 (ďThe papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.).