This opinion will be unpublished and

may not be cited except as provided by

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






Travis J. Gau,





American Express Financial Corporation,



Department of Employment and Economic Development,




Filed January 24, 2006


Hudson, Judge


Department of Employment and Economic Development

Agency File No. 5306 05



Travis J. Gau, 6349 Winnetka Avenue North, Brooklyn Park, Minnesota 55428 (pro se relator)


American Express Financial Corporation, TALX UCM Services, Inc., P.O. Box 283, St. Louis, Missouri 63166-0283 (respondent)


Linda Alison Holmes, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, Minnesota 55101-1351 (for respondent DEED)


            Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N



            A senior unemployment review judge (SURJ) adopted the findings and decision of an unemployment law judge (ULJ) that relator is disqualified from unemployment benefits because he was discharged for misconduct.  Relator challenges the SURJ’s decision.  Because we conclude that relator’s repeated failure to notify his employer of his absences was misconduct that disqualifies him from receiving benefits, we affirm.


            Relator Travis Gau worked for respondent American Express Financial Corporation as a regional sales director from August 2002 until March 2005.  He was warned about his attendance on December 22, 2004, and told that he needed to call and speak to his supervisor before 8:00 a.m. when he would be out sick and that he needed advance approval for other time off.  In January 2005, respondent granted relator’s request for a 21-day leave under the Family Medical Leave Act (FMLA) for what relator said was an anxiety problem.  Relator’s professional diagnosis was “cocaine induced psychosis.”  Relator’s leave ended on January 26.

            Relator called in sick on February 9 and 17.  He was notified that he could apply for another FMLA leave if he was not able to be at work, but he decided not to apply.  Relator left work without permission on February 21 and missed work without calling in on February 22, 23, and 24, and on March 2, 3, and 4.  Relator’s supervisor sent relator a letter telling him that he had not received approval to be absent from work on March 2, 3, and 4, that the supervisor had “unsuccessfully attempted to contact [him] by telephone” to discuss the matter, and that relator “ha[d] not responded to either of [the supervisor’s] attempts to reach” him.

            When relator returned to work, he was given a final written warning.  It provided that, for two months, relator could “not have any additional unplanned, unapproved, or unexcused absences.  Any unplanned absences will be unexcused . . . and repeated unexcused absences will lead to . . . termination.”  A week later, on March 15, relator left work at noon, and he missed work without calling in on March 16.  Respondent terminated him on that day.

            Relator then sought unemployment benefits.  A department adjudicator determined that relator was disqualified from unemployment benefits because he was discharged for misconduct, and relator appealed.  Under Minn. Stat. § 268.105, subd. 1(2004), a ULJ, after conducting an evidentiary hearing, affirmed that determination.  Relator appealed again, and a SURJ, under Minn. Stat. § 268.105, subd. 2a (2004), adopted the ULJ’s findings of fact and decision.  This certiorari appeal follows.


            This court reviews the ULJ’s factual findings (adopted by the SURJ) in the light most favorable to the decision and will not disturb them if there is evidence that reasonably tends to sustain them.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether an employee’s conduct disqualifies the employee from unemployment benefits is a mixed question of fact and law.  Id.  However, whether a particular act constitutes disqualifying misconduct is a question of law, which this court reviews de novo.  Id.

            Misconduct is defined as “any intentional, negligent, or indifferent conduct . . . (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee . . . .”  Minn. Stat. § 268.095, subd. 6(a) ( 2004). “This court has recognized the employer’s right to establish and enforce reasonable work rules relating to absenteeism.”  Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985) (citing Campbell v. Minneapolis Star & Tribune Co., 345 N.W.2d 803, 805 (Minn. App. 1984); Flahave v. Lang Meat Packing, 343 N.W.2d 683, 686 (Minn. App. 1984) (finding misconduct in chronic and excessive absences even though the employee had no control over the cause of his final absence).

            Relator argues that his absences were not misconduct.  For this argument, he relies on Minn. Stat. § 268.095, subd 6(a), which provides that “absence because of illness or injury with proper notice to the employer [is] not employment misconduct.”  (Emphasis added.)  Both the written warnings relator received indicate that he did not provide proper notice of his absences although he was repeatedly told that he had to call in and speak to his supervisor before 8:00 a.m. when he would be absent due to illness and that he had to get prior approval for other absences.  Moreover, testimony from relator’s supervisor indicated that relator repeatedly failed to comply with this policy.  The supervisor testified that “[March 2, 3, and 4] were three days that [relator] just left or never showed up for work and never called me and, you know, I was concerned about him because I was trying to call him and his spouse, and he was just gone for three days.”  He also testified that, a week after receiving his final written warning, relator “just left work at noon [with] no explanation to me [or] any of my fellow leaders. . . .  [H]e just left without any approval and didn’t call anybody, didn’t let anybody know about it.  I came into work on March 16 and found out that he left, and he did not call in on March 16 to let me know he was not coming in.  He was a no call/no show, did not follow the procedures written out in the final written warning.”  Relator in his application for unemployment benefits corroborated this: “[On March 15,] I went to lunch and to run an errand and I made a poor decision to not return as I knew based on a final written warning received on 03/08/2005 that I would be terminated.”  The record supports the ULJ’s finding, adopted by the SURJ, that relator was discharged “because of continued absenteeism, after warnings, without proper notice.”

            Relator raises two other arguments: that the ULJ made credibility determinations and that relator was not allowed to present additional evidence after the hearing.  Both arguments run counter to the law.  See Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995) (providing that, “[w]hen the parties have presented conflicting evidence on the record, this court must defer to the [factfinder’s] ability to weigh the evidence”);Minn. Stat. § 268.105, subd. 2(d) (2004) (“A senior unemployment review judge shall not . . . consider any evidence that was not submitted at the hearing before the unemployment law judge.”).

            Relator’s failure to give proper notices of his absences due to illness and to obtain prior approval of his other absences was misconduct.  He was properly disqualified from receiving benefits.