This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).





Rickey McNutt,


Data Sales Co., Inc.,

Commissioner of Employment and Economic Development,


Filed August 2, 2005


Randall, Judge


Department of Employment and Economic Development

File No. 7682 04



Rickey McNutt, 1632 Knox Circle, Burnsville, Minnesota 55337-7105 (pro se relator)


Data Sales Co., Inc., 3450 W. Burnsville Parkway, Burnsville, Minnesota 55337-4203 (respondent)


Linda A. Holmes, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN 55101 (for respondent Commissioner of Employment and Economic Development)


            Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Forsberg, Judge.*


U N P U B L I S H E D   O P I N I O N



            Relator challenges the senior unemployment review judge’s determination that he was disqualified from receiving unemployment benefits.  Relator argues that his sister and other family members contacted his employer to let them know he could not attend work because he was incarcerated and that the findings to the contrary, based on his employer’s testimony, are erroneous.  We affirm.


            On January 9, 2004, relator Rickey McNutt was discharged from his position as a painter for Data Sales Co., a seller of remanufactured computer equipment.  Relator was discharged because he failed to report to work or directly contact his supervisor for three consecutive days, beginning on January 5, 2004. 

            On January 3, 2004, relator was incarcerated for driving while intoxicated (DWI).  Relator was not released from jail until January 15, 2004.  Relator was unable to contact Data Sales directly to inform them of the reason for his absence, but his sister did contact relator’s supervisor.  The senior unemployment review judge (SURJ) found that relator’s sister told Data Sales that relator “was having personal problems and he would not be able to report to work.”  Relator disputes this finding and claims that his sister told Data Sales of his incarceration.  It is undisputed that relator was incarcerated and unable to report to work until January 15, 2004. 

            Relator was disqualified from receiving unemployment benefits on April 27, 2004.  Relator’s subsequent appeals were denied based on determinations that relator’s failure to report to work or directly contact Data Sales were due to his incarceration, and thus, his discharge resulted from employment misconduct.  This appeal followed. 


            This court examines the decision of the senior unemployment review judge (SURJ) rather than the decision of the unemployment law judge (ULJ).[1]  Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).  We defer to the SURJ’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 of a SURJ 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).  Whether an employee’s acts constitute misconduct, however, is a question of law reviewed de novo by this court.  Ress, 448 N.W.2d at 523.

An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2003).[2]  Effective August 1, 2003, the statutory definition for employment misconduct was amended to provide:

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 displays clearly a substantial lack of concern for the employment.


Inefficiency, inadvertence, simply 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. § 268.095, subd. 6(a) (Supp. 2003).[3] 

            Relator argues that he tried to contact his supervisor from jail, but was unable to because Data Sales does not accept collect calls.  Relator then argues that his sister spoke with his supervisor on his behalf, and thus, he should not be disqualified from receiving benefits.  Finally, relator argues that the Data Sales vice president who testified before the ULJ made a number of conflicting statements. 

            Our issue is one of law, i.e., whether relator’s absence from work due to his incarceration constituted employment misconduct.  Relator does not dispute the accuracy of his incarceration.

            Generally, “[a]bsence from work due to incarceration for criminal acts is misconduct sufficient to disqualify an employee from receiving unemployment compensation benefits.”  Smith v. Am. Indian Chem. Dependency Diversion Project, 343 N.W.2d 43, 46 (Minn. App. 1984).  As in Smith, it is clear that relator did not intend to disqualify himself for unemployment benefits by his actions.  However, being incarcerated and unavailable for work is evidence of a “substantial lack of concern” for employment, which constitutes employment misconduct.  Minn. Stat. § 268.095, subd. 6(a); see also Smith, 343 N.W.2d at 45 (holding that unavailability for work due to incarceration amounts to disregard for attendance standards that an employer has a right to expect will be obeyed).  The SURJ’s determination is affirmed.  


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

[1] The term senior unemployment review judge was substituted for the term commissioner’s representative.  2004 Minn. Laws ch. 183, § 71.

[2] 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).

[3] The law in effect at the time of the discharge must be applied.  Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004) (clarifying Bray v. Dogs & Cats Ltd. (1997), 679 N.W.2d 182, 186 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).  Because amendments made to Minn. Stat. § 268.095 were effective August 1, 2003, and the discharge occurred on January 9­­­­, 2004, the 2003 amendments must be applied.