This opinion will be unpublished and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. 11210 04
Jonathan T. Almquist,
Linda A. Holmes, Department of Employment and Economic Development, Suite E200, First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent commissioner)
Considered and decided by Hudson, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
Relator Jonathan T. Almquist challenges the senior unemployment review judge’s (SURJ) decision which adopted, without further review, the decision of the unemployment law judge (ULJ) that relator was terminated from employment for employment misconduct and is, therefore, disqualified from receiving unemployment benefits. We affirm.
Relator, whose employment involved a certain amount of driving to visit clients, received a DWI on June 13, 2004, and was informed at the time that his driver’s license would be suspended on June 21. Relator did not relay this information to his employer until June 21, when he told his supervisor that he was going to the department of motor vehicles to apply for a work permit, which would allow him to drive for employment purposes.
At the DMV, relator learned he could not get a work permit for several weeks and called his supervisor to report that he would not be returning to work. His supervisor told him to return by taxi, but relator declined to do so because of the cost. His supervisor had difficulty contacting relator for the rest of that day, but the president of the company finally reached relator by cell phone, and relator agreed to come to an 8:00 a.m. meeting on June 22.
Late at night on June 21, relator went to his office, retrieved his computer, and left a Post-it note informing his supervisor that he was taking “a couple of days” as personal leave. Relator did not attend the meeting on June 22 and could not be contacted for the entire day. The letter terminating his employment was drafted on June 22. Relator acknowledged that he did not follow the correct procedure for obtaining personal leave, which had to be approved by the supervisor.
Relator was initially found to be disqualified from receiving unemployment benefits, and after a hearing, the disqualification was affirmed by a ULJ. Relator appealed. A SURJ determined that no material facts were in dispute, declined further review, and affirmed the decision of the ULJ. This appeal by writ of certiorari followed.
Whether a discharged employee
engaged in employment misconduct is a mixed question of fact and law. Schmidgall
v. Filmtec Corp., 644 N.W.2d 801, 804 (
Generally, an employee who is
discharged due to employment misconduct is disqualified from receiving
In this case, the ULJ found that relator displayed a substantial lack of concern for his employment when he “took unauthorized time off from work on June 21 and June 22, 2004, . . . failed to give proper notice to the employer about his absences, and failed to maintain contact with the employer.” The record supports these determinative facts, which were not in material dispute.
The employer testified that Almquist had previously been orally warned about tardiness and absenteeism. The employer provided an “events list” that purportedly documented several incidents of tardiness or absenteeism and three oral warnings. Relator presented an exhibit challenging the events list, stating that he was with a client, working at home, or, in one case, on jury duty on the dates of the purported incidents. And relator testified that he was never told that his working hours were 8 a.m. to 5 p.m. or warned about tardiness or absenteeism. But relator admitted that he failed to return to work on June 21, did not attend a scheduled meeting on the morning of June 22, and failed to follow company policy to obtain personal leave. Relator also admitted that he was not in contact with his employer on June 22. The employer testified that it was the events of June 21 and 22 that led to relator’s termination from employment.
Absenteeism is a form of employment
misconduct. Smith v. Am. Indian Chem. Dependency Diversion Project, 343 N.W.2d
43, 45 (
 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