This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Department of Employment and Economic Development
File No. 222604
Bryan K. Snyder, 29829 Lakeview Avenue, Red Wing, MN 55066-5661 (pro se relator)
William A. Szotkowski, Jacobson, Buffalo, Schoessler & Magnuson, Suite 210, 1360 Energy Park Drive, St. Paul, MN 55108 (for respondent Treasure Island)
Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Commissioner)
Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Stoneburner, Judge.
Relator challenges the decision by the commissioner’s representative that he was disqualified from receiving unemployment benefits because he was discharged for employment misconduct. Because the commissioner’s representative’s findings of fact have reasonable support for his conclusion in the record, we affirm.
Relator Bryan Snyder worked as a blackjack dealer for Treasure Island Resort and Casino (Treasure Island) from August of 1991 to January of 2004. After absences on January 8 and 9, 2004, relator’s shift leader terminated relator for “patterned absenteeism” on January 12, 2004.
Treasure Island’s policy explains that “regularity and promptness” by being at work when scheduled is essential for superior guest service. But Treasure Island also recognizes both planned and unplanned absences. Unplanned absences are called “occurrences” which include absences due to illness or any other unscheduled absence. Treasure Island’s policy states, “[g]enerally, all Treasure Island team members with at least 90 days on the job will be allowed six occurrences during a twelve-month period. A seventh occurrence in a twelve-month period may result in termination.”
During relator’s employment, relator received 38 written warnings for absenteeism or no call/no shows. Relator’s absences over this period generally occurred as soon as one of his six previous absences “fell off” his record because 12 months had passed. According to Treasure Island’s personnel manager, relator received a specific, written warning in October of 2003, for “patterned absences.” The warning stated that “[relator] must break this pattern of maintaining ‘6’ absences.” The warning also explained that relator “must not call in before or after his weekend or he may be recommended for termination.”
Relator does not deny that he has a history of unplanned absences, and that most occurred in the last three years of his employment. He explained that it did not matter what reason he gave to his shift leader for not coming into work (sick or not), because all absences are treated the same way. But, relator testified that for all of his absences, he “would have been sick other than the one that I called in where I was distraught. . . .” Relator then testified that he never went to the doctor for any of his illnesses, and had no medical records of those illnesses. Relator could not explain why several of his unplanned absences occurred around the weekends, but stated that he felt like a “victim of circumstance.”
All of the written warnings in 2003, except the October 16 warning, included the offer or suggestion to speak with a human resources representative regarding relator’s absences. Each of the 2003 warnings had check-marks in the “yes” box for “[i]s the employee’s job in jeopardy?” but relator declined counseling with the human resources representative each time, writing on the warning form responses such as “no need” or “no b.s.” He explained in the hearing with an unemployment law judge that he declined counseling with human resources because he did not think they would do anything for him or say anything. Relator acknowledged that he knew he could be terminated for his pattern of absences but did not see the rule prohibiting them in the Treasure Island handbook.
The Department denied relator’s application for benefits, concluding that his excessive absenteeism, followed by several warnings, showed misconduct and a disregard for Treasure Island’s best interests. Relator appealed. The ULJ found that the preponderance of the evidence supported that relator had fair notice of termination if his absenteeism persisted, that he could have gone to work if he wanted to on January 8 and 9, and that he demonstrated a substantial lack of concern for his employment. Again, relator appealed.
In April of 2004, relator sent a letter to the commissioner’s representative introducing new facts. First, he clarified that he did not go to the doctor when he was sick because Treasure Island had terminated his medical benefits because he had been leaving work early. He also submitted exhibits showing that another blackjack dealer from Treasure Island, whose employment was terminated after relator, received unemployment benefits even though he too was terminated for patterned absenteeism. The commissioner’s representative based his decision solely on the evidence before the ULJ, and affirmed. Relator challenged the decision of the commissioner’s representative by writ of certiorari to this court.
D E C I S I O N
Standard of Review
This courtexamines the decision of the commissioner’s representative rather than the decision of the unemployment law judge. Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997). Considerable deference is given to a decision by the commissioner’s representative. Tuff v. Knitcraft, Inc., 526 N.W.2d 50, 51 (Minn. 1995). We defer to the commissioner’s representative’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). The findings will only be disturbed if the record could not reasonably tend to support them. Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002). However, whether an employee’s acts constitute misconduct is a question of law reviewed de novo by this court. Ress, 448 N.W.2d at 523.
An employee discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4 (Supp. 2003). Minn. Stat. § 268.095, subd. 6(a), provides the definition for employment misconduct:
Employment misconduct means any intentional, negligent, or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment.
Absenteeism is a recognized form of misconduct in Minnesota. See e.g., Smith v. Am. Indian Chem. Dependency Diversion Project, 343 N.W.2d 43, 45 (Minn. App. 1984) (citing Moeller v. Minnesota Dep’t of Transp., 281 N.W.2d 879, 882 (Minn. 1979)). Several absences, along with warnings from the employer, will support the commissioner’s representative’s decision of relator’s lack of concern for employment. See e.g., McLean v. Plastics, Inc., 378 N.W.2d 104, 107 (Minn. App. 1985) (finding that excessive absences in 12 months, even though not willful, constituted misconduct after two warnings). An employee’s deliberate action in contravention of an employer’s warning also constitutes misconduct. See Schmidgall, 644 N.W.2d at 804-06 (failure to report injury during same shift after counseling and two written warnings by employer constitutes misconduct).
Relator argues that Treasure Island’s policy allowed for six occurrences in a 12-month period, and he never violated that policy. And, relator argues, the policy does not mention “patterned absenteeism.” Relator essentially contends that the evidence does not amount to showing a lack of concern for his employment. He counters instead that he showed concern for his employment by working many holidays, and he only missed work because of “trying times.”
Respondent argues that relator had multiple warnings, including a specific warning against “patterned absenteeism,” such that Treasure Island had the right to terminate him for misconduct for abusing his employer’s policy, and relator’s excuses for his absences were properly found not to be credible.
The commissioner’s representative did not err by finding that relator’s conduct “evinced a serious violation of the attendance standards an employer has the right to reasonably expect of an employee and a substantial lack of concern for his employment.” In Brown v. Nat’l Am. Univ., this court recognized that even if an employer’s policy did not expressly prohibit a behavior, “[w]hen a supervisor tells an employee that certain employment conduct is inappropriate, the supervisor thereby reveals a standard of employment behavior” under the statute. 686 N.W.2d 329, 333 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004). Treasure Island’s policy indicates that “generally” six unplanned “occurrence” absences are acceptable in a 12-month period.
Relator’s absences formed a chronic pattern that spanned three years. The multiple warnings relator received for his absences put him on notice that his manipulation of absences was unacceptable and violated his employer’s standards. He signed every one of the warnings in the record. The acknowledgement of these warnings indicates that relator knew that he was no longer covered under the “general” rule of the policy. The final occurrences, on January 8 and 9, followed these warnings and relator’s asserted reason for not coming in was found by the commissioner’s representative not to be reasonable or credible. This court defers to the commissioner’s representative’s evidentiary and credibility determinations. Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).
Relator’s argument that another blackjack dealer received unemployment benefits after being terminated for patterned absenteeism was not addressed by the commissioner’s representative or by respondent. The commissioner’s representative applied Minn. Stat. § 268.105, subd. 2 (2002), to the review of relator’s appeal. Section 268.105, subd. 2 (d) provides in part, “[t]he commissioner shall not, except for purposes of deciding whether to remand a matter to an unemployment law judge for a further evidentiary hearing, consider any evidence that was not submitted at the hearing before the unemployment law judge.” This new information was unrelated to relator’s employment termination. This court defers to the commissioner’s representative on evidentiary matters, and we conclude the commissioner’s representative did not abuse his discretion by excluding relator’s “new evidence.”
 The revisor’s office inadvertently substituted the term “ineligible for” for the term “disqualified from” in Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (Supp. 2003). See Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (2002) (using term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 11 (making other changes to Minn. Stat. § 268.095, subd. 1, but retaining term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 20(j), (k) (directing revisor to change the term “disqualified from” to “ineligible for” only in Minn. Stat. § 268.095, subd. 12, and then to renumber to Minn. Stat. § 268.085, subd. 13b).
 The statutory definition in effect at the time of the discharge is the definition that controls. See Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).