This opinion will be unpublished and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
Joel E. Mills,
Bigos Management, Inc.,
Department of Employment and Economic Development,
Filed September 6, 2005
Department of Employment and Economic Development
File No. 13753 04
Joel E. Mills, 3374 South Arizona Avenue, Camp Verde, AZ 86322-6101 (pro se relator)
Bigos Management, Inc., 6400 Barrie Road, Suite 1400, Edina, MN 55435-2320 (respondent)
Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101 (for respondent Department of Employment and Economic Development)
Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, Judge.
U N P U B L I S H E D O P I N I O N
Relator Joel Mills challenges the decision of the senior unemployment review judge that he was discharged for employment misconduct and thus disqualified from receiving unemployment benefits. We affirm.
D E C I S I O N
courts review the findings of the senior unemployment review judge (SURJ) rather than those of the unemployment
law judge (ULJ). Tuff v. Knitcraft Corp., 526 N.W.2d
50, 51 (
Whether a discharged
employee engaged in employment misconduct is a mixed question of fact and
v. Filmtec Corp., 644 N.W.2d 801, 804 (
discharged employee is disqualified from unemployment benefits only if the
conduct for which the individual was discharged constitutes employment
Here, the SURJ adopted the finding that relator chose not to follow the requirements set forth by his employer that he work from 8:30 a.m. to 5:00 p.m. and that he call his supervisor upon arrival and before leaving each day. This finding was made based on the following facts: (1) at the time of his discharge, relator was working as a roving maintenance technician; (2) on July 16, 2004, relator’s supervisor called relator at 3:00 p.m. to service a building; and (3) relator informed his supervisor that he was already home, that he had worked eight hours, and he refused to take the service call. But relator testified that he later realized he had only worked seven-and-a-half hours. On Monday, July 19, 2004, the supervisor gave relator a written warning. The warning letter stated that relator was expected to put in eight hours of work for eight hours of pay and that relator was expected to change his performance by:
Adhering to the company policy of hours 8:30 am to 5pm with a half an hour for lunch (as close to the middle of those hours) as the job at hand allows. Also, for the next 10 working days (or longer if necessary) you will call me when you arrive in the AM and before you leave at the end of the day. You will speak to me in a professional manner and their will be no more outbursts from you.
. . . .
If the poor behavior that you have exhibited continues to happen, you can expect further disciplinary action up to and including termination.
The supervisor met with relator on Monday, July 19, 2004, to give relator a copy of the warning letter. Relator testified that he refused to sign the warning when asked to do so because he disagreed with its contents. Relator failed to call his supervisor as directed and continued to work from 7:30 a.m. to 4:00 p.m. for the rest of the week. On Thursday, July 22, the decision was made to terminate relator, and he was discharged effective July 23, 2004.
Relator takes issue with the incident of July 16, 2004, and whether or not it warranted a warning or disciplinary action. But the SURJ based the determination of disqualification on relator’s refusal to work the hours set by his supervisor on July 19, 2004. The SURJ found that it was not an unreasonable request to ask relator to work from 8:30 a.m. to 5:00 p.m., nor did it create an unreasonable burden on relator. The SURJ concluded that relator’s “conduct was in serious violation of standards of behavior that the employer had the right to expect of Mills as an employee, and demonstrated a lack of concern by [relator] for the employment.” Because the record supports the SURJ’s findings, we affirm the decision that relator was discharged for employment misconduct.
The legislature recently substituted the term “senior unemployment review
judge” for the representative of the commissioner. 2004
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).