This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Michael R. Krizak,
Freelance Professionals Inc.,
Department of Employment and Economic Development,
Department of Employment and Economic Development
File No. 8186 06
Michael R. Krizak,
Freelance Professionals Inc.,
Lee B. Nelson, First National Bank Building, Suite E200, 332 Minnesota Street, St. Paul, MN 55101-1351 (for respondent department)
Considered and decided by Minge, Presiding Judge; Willis, Judge; and Hudson, Judge.
In this certiorari appeal, relator Michael Krizak challenges a decision by the unemployment law judge (ULJ) that Krizak was disqualified from receiving unemployment benefits because he had been discharged for employment misconduct. Krizak contends that (a) the majority of his absences were excused; and (b) his former employer should have produced, and the ULJ should have obtained, attendance records. We affirm.
Respondent Freelance Professionals Inc. (Freelance), an employment agency, employed Krizak as a laborer from February 27, 2006, until May 16, 2006. Krizak was assigned to work at Weyerhaeuser Company, one of Freelance’s clients.
Krizak missed seven days of work during his less than three-month assignment to Weyerhaeuser. According to Freelance’s senior staffing coordinator, Krizak missed three days of work in early April for court appearances related to his divorce. Krizak did not provide advance notice of these absences, but rather called in each day to report that he would not be at work. The staffing coordinator spoke with Krizak about the importance of attendance and told him that if he knew of an absence in advance, he should inform his supervisor before the day of the absence. Then, on April 12 and 13, Krizak missed work again, this time reporting that he was out of town. On April 24 and 25, Krizak called in sick. When Krizak called in the second day, the staffing coordinator again informed him of the importance of attendance.
Because Krizak was a good worker, Weyerhaeuser was considering hiring him on a permanent basis and was willing to work with him to resolve his attendance problems. Krizak had been earning $11 per hour and was told that he would receive a pay increase of approximately three dollars per hour.
On May 17, Krizak phoned Weyerhaeuser and spoke with his supervisor about his expected raise. The supervisor told him that he qualified for an immediate raise to $12 per hour and another dollar-per-hour increase after two weeks, but that he would not receive the entire raise at the start of his permanent employment because he had missed too many days of work. Krizak told his supervisor that he would not be coming in that day, but that he would come in the following day. Krizak ended the conversation by saying “piss on you” and hanging up.
Despite the fact that Krizak was expected to call both Weyerhaeuser and Freelance in the event of an absence, a policy which Krizak had followed in the past, he did not call Freelance to report the absence. Instead, the Weyerhaeuser supervisor called Freelance to report what had happened. The supervisor stated that due to Krizak’s attendance issues, Weyerhaeuser no longer wanted him on assignment. Freelance’s staffing coordinator then called Krizak and left a message, informing him that he would not be returning to Weyerhaeuser. Krizak returned the message and inquired into the reasons for his termination. He told the staffing coordinator about his discussion with his supervisor, including his exact hostile statement. Krizak ultimately hung up on the staffing coordinator, but called back shortly thereafter, again wanting to know the reason for his termination. On the following day, Krizak called Freelance again, wanting to know the reason for his termination. Krizak swore at and hung up on the Freelance employee.
Krizak applied to respondent Department of Employment and Economic Development (DEED) for unemployment benefits. A DEED adjudicator initially determined that Krizak was discharged for reasons other than employment misconduct and was not disqualified from receiving benefits. Freelance appealed, and a de novo hearing was held. An unemployment law judge (ULJ) determined that Krizak was discharged for employment misconduct. Krizak requested reconsideration, and the ULJ affirmed. By writ of certiorari, Krizak now challenges the ULJ’s decision.
first issue is whether the ULJ erred in concluding that Krizak was discharged
for employment misconduct. We review a
ULJ’s decision to determine whether the substantial rights of the relator have
been prejudiced because the findings, inferences, conclusion, or decision are
“(1) in violation of constitutional provisions; (2) in excess of the statutory
authority or jurisdiction of the department; (3) made upon unlawful procedure;
(4) affected by other error of law; (5) unsupported by substantial evidence in
view of the entire record as submitted; or (6) arbitrary or capricious.”
§ 268.105, subd. 7(d) (2006).
an employee was discharged because of employment misconduct is a mixed question
of fact and law. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (
an employer discharges an employee for “employment misconduct,” the employee is
disqualified from receiving unemployment benefits.
[A]ny 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.
Inefficiency, inadvertence, simple 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.
A. Factual Claims
Krizak’s primary disagreements with the ULJ’s decision are factual. Krizak claims that the majority of his absences were excused. Krizak further claims that he did not miss three days in early April to make a court appearance because he switched shifts. Krizak acknowledges that he missed two or three days in mid-April due to an illness and death in his family, but he claims that he had his supervisor’s permission to do so. Krizak “cannot remember” whether he missed work on April 24 and 25. And Krizak recalls missing one day of work due to an illness but claims that he called in to give notice of his absence. Krizak claims that prior to his dismissal, he had never been informed that his attendance was an issue.
Krizak also contends that on the day his employment was terminated, he was actually calling in sick, and then inquired about his promised raise. Krizak denies telling the Weyerhaeuser supervisor “piss on you” or hanging up the phone on him. Krizak neither admitted nor denied using profane language when speaking with Freelance’s staffing coordinator. The staffing coordinator disputed Krizak’s claim that he actually worked on the days of his court appearances, noting that “[h]e was not paid for those three days” and his time record did not reflect that Krizak worked on those days.
When the credibility of a witness has a “significant effect on the outcome of a decision” the ULJ must explain the basis for credibility decisions. Minn. Stat. § 268.105, subd. 1(c). Acknowledging that Krizak’s testimony differed from that of Freelance’s staffing coordinator “in significant aspects,” the ULJ did not credit Krizak’s version of the events. But the ULJ did credit the staffing coordinator’s testimony, noting that it “was more complete, detailed, and specific.” And, in discrediting Krizak’s testimony, the ULJ noted that Krizak “was vague with regard to the dates that he was absent from work and also was internally inconsistent in various aspects.” Because we defer to the ULJ’s credibility determinations and there is adequate evidence to support these findings, we conclude that the ULJ did not abuse his discretion in determining that Krizak missed work without adequate notice and that he made the rude and hostile telephone call.
B. Legal Determination of Misconduct
We also consider the legal question of whether Krizak’s conduct constitutes employment misconduct. The language of Minn. Stat. § 268.095, subd. 6(a), previously quoted, determines what constitutes misconduct for purposes of this case.
Here, Krizak’s misconduct was substantial. Taken by itself, his rude and hostile telephone comments to his supervisor would not justify disqualification for unemployment benefits. Krizak’s basic problem is his numerous absences. Freelance staff members addressed relator’s absenteeism through multiple oral warnings. His absences were not isolated, but were significant considering the short time he worked at Weyerhaeuser. Krizak’s frequent, unexcused absences, culminating with the hostility in his final telephone calls, demonstrate an intentional, serious disregard of his employer’s interests and of his duties and obligations. That conduct, as found by the ULJ, cannot be excused as inadvertent, simply unsatisfactory, isolated, typical of the average, reasonable employee, or good faith errors of judgment. See id. Based on this record, we conclude the ULJ did not err in determining that Krizak engaged in employment misconduct under Minn. Stat. § 268.095, subd. 6(a), and that he is disqualified from receiving unemployment benefits.
Krizak contends that his employer should have produced its attendance records
to support its claim. The ULJ is
required to assist unrepresented parties in the presentation of evidence and to
conduct the hearing in a manner that protects the party’s right to a fair
To promote these
duties, the ULJ has the power to “issue subpoenas to compel . . . the
production of documents and other personal property necessary in connection
with the administration of the
Subpoenas are available to a party to compel . . . the production of documents or other exhibits upon a showing of necessity by the party applying for subpoenas. Subpoenas may be obtained by calling or writing the appellate office sufficiently in advance of the scheduled hearing to allow for the service of the subpoenas. The requesting party must identify the . . . documents to be subpoenaed, the subject matter of the evidence requested, and their necessity. A request for a subpoena may be denied if the . . . documents sought would be irrelevant, immaterial, or unduly cumulative or repetitious.
We cannot determine the significance of the actual attendance records to the issues on appeal. These records are not contained in the department’s file produced on appeal. Krizak does not claim that he sought the attendance records before the scheduled hearing. Even at the hearing, Krizak made no reference to these records. Although the records may be relevant, both Freelance’s staffing coordinator and Krizak testified as to Krizak’s absences. ULJ initiative in seeking attendance records may have been helpful. However, there is no indication that Krizak was confused or did not understand the nature of the proceedings or that lack of the records fundamentally compromised the integrity of this proceeding. We conclude that the employer did not have a duty to produce its attendance records at the hearing before the ULJ and that Krizak did not make a prima facie showing that the ULJ’s failure to take the initiative to require production of such records was reversible error.