This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Abdirisaq A. Abdi,
Commissioner of Employment and Economic Development,
Filed August 9, 2005
Department of Employment and Economic Development
File No. 7966 04
Abdirisaq A. Abdi,
Stanley Smith Security, Inc., 1611 West County Road B, Suite 125, Roseville, MN 55113 (respondent)
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 Minge, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.
Relator Abdirisaq Abdi was employed as a security guard by respondent Stanley Smith Security (Smith Security). On February 23, 2004, Smith Security discharged Abdi for alleged misconduct. According to Smith Security, there were a number of issues that led to Abdi’s discharge: excessive absenteeism, an inability to get along with co-workers, and engaging in non-work activities during work hours.
Willie Brown, the personnel manager for Smith Security, testified that between September 2003 and February 2004, “[Abdi] was absent eight times, he was late two times.” Brown acknowledged that whenever “Abdi was going to be absent, yes, he would call.” On February 4, 2004, Abdi received counseling for his absences and Smith Security issued an “employment counseling report” noting that Abdi had eight absences and two late arrivals since September 2003. The report states that Abdi was to have “[n]o late call[s] and absen[ces] for 60 days” and that he “[m]ust call [the] office” if he was going to be late or absent. The report also noted that “Abdi refused to sign it.” Abdi stated that he had never seen the report and did not remember being told that he could not be late or absent for 60 days.
On February 14, Abdi was assigned to work a shift at Metro Gravel. The shift was scheduled to begin at noon, but “[a]t 12:40, there was no guard still at that site. So [Abdi] was a no[-]call-no[-]show on that date.” According to Abdi, this was normally his day off, but Smith Security had called him that morning and asked him to work. He stated that he was late because of heavy traffic. He also testified that his prior absences had been due to medical emergencies involving his family. Abdi provided documentation for several of these emergencies.
According to Smith Security, Abdi had several “behavioral incidents” in which he had conflicts with other employees. On November 24, 2003, site supervisor David Chuol filed an incident report noting an altercation between Abdi and him. According to this report:
When [Chuol] arrived [at the site] [he] just asked Abdi a simple question, “How is it in the [building]?[”] [Abdi] replied, “What do you think it is?[”] I told him, [“]I just got here, that is why I am asking you.[”] [Abdi said,] [“]Shut up. I do not want to talk to you any more. [G]o!” [Chuol said,] [“]Abdi I am in charge for the second shift.[”] [Abdi replied,] [“]Shut up, shut up. [G]o out.[”]
Brown testified that he realigned the shifts in response to this incident, taking “Chuol from second shift and put[ting] [Chuol] on first shift. [Brown] took another officer . . . Peter Schissel . . . and put him on second shift. And after that, there were frictions between [Abdi] and  Schissel . . . causing [Schissel] to leave the account.”
On February 19, 2004, another site supervisor, Abulla Bagutti, filed an incident report calling Abdi a “problem maker” and stating that Abdi “[d]oesn’t want to work peacefully with other officers.” Bagutti also noted that, contrary to instructions from the client, Abdi had “a problem of reading at [his] post and talking on [his] cell phone a lot.”
Abdi disputes Smith Security’s account. He denied that he told Chuol to “shut up” and contends that the only person with whom he has ever had a problem was Bagutti, whom he accused of acting “unprofessionally.” Abdi also denied engaging in non-work activities on the job. He stated, “I know that they say you cannot read or you cannot . . . have [a] cell phone on duty and I know that policy so I [have] never done either.” Abdi further contends that “the only reason [he] was fired was because [he] filed a complaint letter against [Bagutti]” a few days before he was discharged.
The Department of Employment and Economic Development issued a determination that Abdi had not engaged in employment misconduct and was therefore not disqualified from receiving benefits. Smith Security appealed. The unemployment-law judge (ULJ) reversed the determination, finding that Abdi was discharged because of employment misconduct. Abdi then appealed and the senior unemployment review judge (SURJ) upheld the ULJ’s decision. This certiorari appeal follows.
On appeal, this
court reviews the decision of the SURJ rather than that of the unemployment-law
judge. Weaver v.
When employees are
discharged for employment misconduct, they are disqualified from receiving
Abdi asserts that
he was discharged, not for misconduct, but in retaliation for filing a complaint
against his supervisor. The SURJ was
required to determine which of these two conflicting reasons—misconduct or
retaliation—was the reason for Abdi’s termination, and we defer to the SURJ’s
determination. Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (
Our purpose here
is not to address the viability of a retaliatory-discharge claim. On appeal in unemployment-compensation cases,
we do not determine whether the employee should have been terminated, but
whether the employee should receive unemployment-compensation benefits. Ress v.
Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (
Here, after weighing the conflicting testimony, the SURJ expressly determined that the evidence submitted by Smith Security was credible. The SURJ noted:
The evidence in the present record shows that Abdi did not get along well with other security guards and with his supervisor. It also shows that he did not comply with the employer’s attendance policy, and he also violated the employer’s policies and procedures and those of the client by using a cell phone and reading while at the security desk.
Because the record contains evidence reasonably tending to support these findings, they will not be disturbed. White,332 N.W.2d at 26.
The SURJ subsequently concluded that Abdi had “engaged in intentional, negligent, or indifferent conduct, that shows a serious violation of the standards of behavior that the employer had the right to reasonably expect” and held that Abdi was discharged “because of employment misconduct” and was therefore disqualified from receiving unemployment benefits.
Employers have the
right to create and enforce reasonable rules relating to absenteeism. Jones
v. Rosemount, Inc., 361 N.W.2d 118, 120 (
Here, Abdi had been counseled regarding his absences and tardiness and was told that he was to have “[n]o late call[s] and absen[ces] for 60 days” and that he “[m]ust call [the] office” if he was going to be late or absent. Abdi contends that he never saw the report and was never told of this requirement, but the SURJ found that Abdi had been warned, and we defer to that determination. Whitehead, 529 N.W.2d at 352.
The issue is
whether Abdi’s absences and tardiness constitute misconduct within the meaning
of the statute. Abdi contends that his
absences were due to medical emergencies involving his family. Minn. Stat. § 268.095, subd. 6(a), provides
that “absence because of illness or injury with proper notice to the employer[
is] not employment misconduct.” The
statute does not specify that the injury or illness be to the employee, rather
than to a family member. We have
previously addressed the issue of whether a parent’s frequent absences to care
for a sick child constitutes disqualifying misconduct. McCourtney
v. Imprimis Tech., Inc., 465 N.W.2d 721, 724-25 (
Nevertheless, an “employer
has a right to expect an employee to work when scheduled.” Little
v. Larson Bus Serv., 352 N.W.2d 813, 815 (
Here, Brown conceded that Abdi notified Smith Security whenever he was going to be absent, and the record contains documentation for some, but not all, of Abdi’s absences. More importantly, however, Abdi had been warned about his absenteeism and tardiness and was told that he was to have “[n]o late call[s] and absen[ces] for 60 days” and that he “[m]ust call [the] office” if he was going to be late or absent. Less than two weeks after this warning, Abdi was once again tardy, did not call his employer, and was considered a “no[-]call-no[-]show.” Given Abdi’s work history and the recent warning, such behavior constitutes misconduct sufficient to disqualify him from receiving unemployment benefits.
The SURJ also found that Abdi “did not get along well” with his co-workers. Brown expressed concern about this situation, noting that “if there were to be a ruckus at the account, we stood a chance . . . of losing the account itself and then all the guys would be out of work.” The question is whether Abdi’s conduct constituted employment misconduct.
Pursuant to statute, “a single incident that does not have a significant adverse impact on the employer” is not disqualifying misconduct for unemployment-compensation purposes. Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003) (emphasis added). But here, the SURJ noted several incidents in which Abdi was not “getting along with” other employees. Such repeated behavior does not fall within the statutory exception for a single act and violates the standard of behavior that an employer has the right to expect of its employees. Cf. Snodgrass v. Oxford Props., Inc., 354 N.W.2d 79, 80 (Minn. App. 1984) (stating that an employee’s failure to cooperate with her employer indicates a willful disregard of her employer’s interests and violates the standards of behavior which the employer has the right to expect of its employees). Thus, Abdi was properly disqualified from receiving benefits.
In addition, the SURJ found that Abdi “violated the employer’s policies and procedures and those of the client” by reading and using a cell phone while on duty. Although Abdi testified that he “kn[e]w that they say you cannot read or you cannot . . . have [a] cell phone on duty and I know that policy so I [have] never done either,” the SURJ found the employer’s evidence to be more credible. Our standard of review requires us to defer to this assessment. Whitehead, 529 N.W.2d at 352.
The supreme court
has stated that “[a]s a general rule, refusing to abide by an employer’s
reasonable policies and requests amounts to disqualifying misconduct.” Schmidgall
v. FilmTec Corp., 644 N.W.2d 801, 804 (
 Effective August 1, 2004, the statutory title of the individual conducting review proceedings under Minn. Stat. § 268.105, subd. 2 (2004), was changed to “senior unemployment review judge.” Compare Minn. Stat. § 268.105, subd. 2 (2004), with Minn. Stat. § 268.105, subd. 2 (2002) (referring to the representative of the commissioner).
 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 the subsection to Minn. Stat. § 268.085, subd. 13b).
 A number of states have held that excessive absences, when justified by illness or family emergency and properly reported to the employer, are not willful misconduct. See, e.g., Garden View Care Ctr., Inc. v. Labor & Indus. Relations Comm’n of Missouri, 848 S.W.2d 603, 606 (Mo. Ct. App. 1993) (stating that “absences due to illness or family emergency are absences caused through no fault of [e]mployee and as such cannot be willful misconduct, especially if properly reported to [e]mployer” and noting similar decisions from other states).