This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-1734

Joseph P. LaFleur,

Relator,

vs.

Bradley Exterminating Co.,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed March 11, 1997

Affirmed

Klaphake, Judge

Department of Economic Security

File No. 3800 UC 96

Joseph P. LaFleur, 10009 Zenith Road, Bloomington, MN 55431 (Relator Pro Se)

Bradley Exterminating Co., 8100-26th Avenue South, Suite 130, Minneapolis, MN 55425-1304 (Respondent Employer Pro Se)

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for Respondent Commissioner)

Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Foley, Judge.[*]

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

Relator Joseph P. LaFleur filed a claim for reemployment insurance benefits after he was discharged by his employer, respondent Bradley Exterminating Co. (Bradley). LaFleur has obtained a writ of certiorari and seeks review of a decision by the Commissioner's representative. Because the Commissioner's representative's findings are reasonably supported by the record and because those findings support the conclusion that LaFleur was disqualified from receiving benefits because he was discharged for misconduct, we affirm.

D E C I S I O N

An employee is disqualified from receiving reemployment insurance benefits if he is discharged from work for "misconduct." Minn. Stat. § 268.09, subd. 1(b) (1994). Whether or not an employee has committed misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984). This court's review of the Commissioner's findings is limited to whether the evidence in the record reasonably tends to support those findings, but we may exercise our independent judgment with respect to questions of law. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

LaFleur was discharged because he failed to report to work as scheduled on Friday, March 22, and Monday, March 25, 1996. LaFleur had submitted a written request for time off to attend his son's playoff hockey game in Michigan. Bradley denied the request, and LaFleur's supervisor warned him not to leave and to report to work. LaFleur insists that he did not commit misconduct because he had a verbal, pre-employment agreement with Bradley that Bradley would let him have time off to attend his son's hockey games.

The facts[1] show, however, that Bradley agreed to let LaFleur have some Fridays off and that the agreement did not necessarily include taking time off during playoffs. Indeed, LaFleur acknowledged that he submitted a written request "because the playoffs weren't known" at the time he was hired. And the agreement does not excuse LaFleur for not reporting for work on Monday. Given these facts, the Commissioner did not err in concluding that Bradley did not breach any agreement with LaFleur. Rather, LaFleur made a deliberate choice not to report to work, even though his supervisor had warned him that he had to be at work and that he could not leave. Under these circumstances, LaFleur's absences were unexcused and amounted to disqualifying misconduct. See, e.g., Bibeau v. Resistance Tech., Inc., 411 N.W.2d 29, 31-32 (Minn. App. 1987) (employee who disobeys direct orders from employer commits disqualifying misconduct); Del Dee Foods, Inc. v. Miller, 390 N.W.2d 415, 418 (Minn. App. 1986) (unexcused absenteeism from work constitutes disqualifying misconduct); Daniels v. Gnan Trucking, 352 N.W.2d 815, 816 (Minn. App. 1984); Little v. Larson Bus Serv., 352 N.W.2d 813 (Minn. App. 1984) (employee who took week off even though request had been denied made "deliberate rational decision not to report to work"); Smith v. American Indian Chem. Dependency Diversion Project, 343 N.W.2d 43, 45 (Minn. App. 1984).

Affirmed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1 An employer has the burden to prove, by the preponderance of the evidence, that an employee has committed disqualifying misconduct. See Lumpkin v. North Central Airlines, Inc., 296 Minn. 456, 460, 209 N.W.2d 397, 400 (1973). In this case, Bradley chose not to appear or present evidence at the evidentiary hearing. We thus consider LaFleur's evidence and testimony as undisputed.