This opinion will be unpublished and

may not be cited except as provided by

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






Nicholas D. Juhl,





Northwest Manufacturing, Inc.,



Department of Employment and Economic Development,



Filed October 10, 2006


Randall, Judge


Department of Employment and Economic Development

File No. 1183205



James R. Waldhauser, Vincent A. Petersen, Cousineau McGuire Chartered, 1550 Utica Avenue South, Suite 600, Minneapolis, MN  55416 (for relator)


Steven J. Cahill, Pearson Christensen Cahill & Clapp, P.L.L.P., 403 Center Avenue, Suite 200, P.O. Box 1238, Moorhead, MN  56561-1238 (for respondent Northwest Manufacturing, Inc.)


Linda A Holmes, Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN  55101-1351 (for respondent department)

            Considered and decided by Kalitowski, Presiding Judge; Randall, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            On certiorari appeal from the decision by the ULJ affirming his earlier decision that relator was discharged for misconduct after he failed to report for work on July 21, 2005, due to personal reasons and without adequate notice, relator argues that his absence from work did not constitute employment misconduct because the absence did not cause a hardship on the employer and because there was some confusion as to whether relator had been approved to take the day off.  We affirm.


            Relator Nicholas Juhl began working for Northwestern Manufacturing, Inc. (Northwest) as a full-time technical assistant in November 2004.  From January 2005 to July 2005, relator missed a total of 20 workdays due to illness, which, according to relator, was primarily the result of his “problems with migraines.”  As a consequence of his absences, relator received a warning in May 2005 for his attendance problems.  Relator did not have any remaining sick leave or vacation time available as of July 21, 2005. 

            For approximately 11 days leading up to July 19, 2005, relator was on a road trip working for Northwestern.  During this time period, relator worked 96 hours.  While he was on the road, relator spoke with his supervisor, Warren Malwitz, about the possibility of taking July 20 and July 21 off from work.  Malwitz granted relator’s request to take July 20, but apparently did not grant the relator’s request to take July 21 off from work.  According to Northwest’s attendance policy, if relator wanted to take July 21 off, he needed approval of the request at least 24 hours in advance of taking the day off.

            On the evening of July 20, 2005, relator’s 17-year-old son’s car broke down.  Relator left a message with Malwitz stating that he was not coming into work on July 21 because he wanted to take care of some personal business.  Relator also claimed that he “deserved” the additional day off after his long work-related trip. 

            Relator was discharged for failing to come to work on July 21, 2005, without approval and without an adequate excuse.  Relator subsequently established a benefit account with the Minnesota Department of Employment and Economic Development (DEED).  A department adjudicator initially determined that relator was discharged from Northwest for employment misconduct, and, therefore, relator was disqualified from receiving benefits.  Relator appealed that decision, and, following a hearing on the matter, the unemployment-law judge (ULJ) determined that although relator was “absent from work an excessive amount of time,” he was not discharged because of the days he missed as a result of his illness.  Rather, the ULJ determined that relator was disqualified from unemployment benefits as a result of being absent on July 21, when he was not ill, and could have come to work and dealt with his personal business “at other times during the day.”  The ULJ further reasoned that relator’s intentional conduct constituted a serious violation of the standards of behavior that Northwest had a right to expect from relator as an employee.  The ULJ noted that Northwest had a right to expect relator to report to work on July 21, 2005, “particularly after the excessive amount of time that he was absent previously and the warning he received in May 2005.”  

            Relator requested reconsideration of the ULJ’s decision on August 31, 2005.   The ULJ affirmed his findings of fact and decision on September 26, 2005.  This certiorari appeal followed.


            On review of the ULJ’s decision, we may affirm, remand for further proceedings, or reverse or modify the decision.  Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005).  Reversal or modification is appropriate when relator’s substantial rights were prejudiced because the findings, inferences, conclusion, or decision are affected by error of law or unsupported by substantial evidence.  Id.     

            Disqualification from unemployment benefits is in order when an applicant has been discharged due to employment misconduct.  Minn. Stat. § 268.095, subd. 4(1) (2004).  Employment misconduct is defined by statute as “intentional, negligent, or indifferent conduct, on the job or off the job (1) that displays clearly 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.”  Minn. Stat. § 268.095, subd. 6 (2004). 

            Relator argues that the ULJ erred in concluding that the July 21, 2005 absence constituted employment misconduct.  We disagree.  A single incident where an employee deliberately chooses a course of action adverse to the employer can constitute misconduct.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984); see Del Dee Foods, Inc. v. Miller, 390 N.W.2d 415, 418 (Minn. App. 1986) (“An employee engages in misconduct if he is absent even once without notifying his employer.”). In determining whether an employee’s actions rise to the level of misconduct, this court considers whether the conduct adversely affected the business.  See Auger v. Gillette Co., 303 N.W.2d 255, 257 (Minn. 1981).  If the employee’s conduct shows disregard for the interests of the employer, the employee may be disqualified from unemployment compensation.  Id.

            Here, the evidence indicates that relator’s absence on July 21, 2005, had an adverse impact on Northwest.  Malwitz testified that relator caused a hardship to the company because he failed to report when he was scheduled to work.  The hardship caused by relator’s absence on July 21 was aggravated because that day was during the busy season and because relator, who works in quality control, had already previously been away for ten days.  When he returned from retrieving his son’s car at 7:30 a.m., relator failed to call or work any of his shift, which began at 7:00 a.m.  Instead of reporting to work at 7:30 a.m., relator decided to spend the day at his home working on the car.  He did not call his employer before he left to retrieve the car, even though he knew his employer would arrive at work 30 minutes after he departed.  Relator offers no explanation why he left to get the car instead of waiting 30 minutes to contact his employer.  Relator did not attempt to justify his failure to talk with his employer, testifying, “I don’t know.  I guess we just decided to get going.” 

            Relator argues that there was confusion as to whether he had been approved to take July 21 off of work, and that his decision to take the day off was simply a poor decision based on the confusion concerning whether he actually had permission to take the day off.  However, the ULJ determined that relator was not approved to take July 21, 2005, off from work.  See Jenson v. Dep’t of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000) (stating that this court defers to the ULJ’s determinations regarding witness credibility and conflicting evidence).  The evidence in the record supports that factual finding.  Relator’s supervisor testified, “we talked about the possibility of another day off, but that, that was not approved at that point.”  Relator was scheduled to work on July 21, 2005.  The first day, July 20, was confirmed.  The second day, July 21, was “left out in the open.”  The message relator left the evening of July 20 informing his supervisor that he would not report to work the following day supports the finding that relator was not approved to take July 21 off.  The ULJ did not err in concluding that relator’s absence from work on July 21, 2005, constituted employment misconduct.