may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Pamela K. Schulte,
Payroll Processing Branch
Minneapolis Postal Data C
US Postal Service
Twin Cities AMF MN 55111,
Commissioner of Economic Security,
Filed May 18, 1999
Department of Economic Security
File No. 2468 UCFE 98
Dorothy J. Buhr, Sisam, Smith & Buhr, P.A., Suite 360, 6600 France Avenue South, Minneapolis, MN55435-1804 (for relator)
Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner)
Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Anderson, Judge.
Relator Pamela Schulte disputes the denial of reemployment benefits, alleging that her absences did not constitute misconduct but were a result of sexual harassment and retaliation. Relator also claims that her reemployment hearing was fundamentally unfair because her supervisor was allowed to testify. Because the record does not support these contentions, we affirm.
Relator began working for respondent United States Postal Service in 1989 and was discharged on December 31, 1997. The Commissioner of Economic Security denied her reemployment insurance benefits due to a conclusion that relator was discharged for misconduct. The commissioner made the following findings of fact:
1. Relator did not go to a medical appointment arranged by the Postal Service on March 24, 1997.
2. Relator was absent from work from March 25, 1997 until April 7, 1997. She did not notify the Postal Service that she was going to be absent during that time.
3. In April 1997, relator was notified that she should inform her supervisors if she was going to be absent from work.
4. Relator was absent from work from November 4, 1997 through December 1, 1997. Although the commissioner noted that relator submitted a medical statement upon her return that purported to excuse these absences, the commissioner also noted that relator was absent without calling in on at least four of these days.
1. Standard of Review
We are to review the commissioner's representative's findings of fact in the light most favorable to the decision, and we will uphold the decision if the evidence reasonably tends to sustain those findings. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). But the ultimate determination of whether an employee was properly disqualified from receiving benefits is a question of law that this court reviews de novo. Id.
An employee who is discharged from a job for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.095, subd. 4 (1998). Relator argues that some of her absences were excused. But the record supports the commissioner's findings that relator's absences were often unexcused and that relator often failed to notify the employer of her absences. This court has recognized that absenteeism, even a single unexcused absence, may be disqualifying misconduct if it shows an employee's disregard for the employer's expectations. Del Dee Foods, Inc. v. Miller, 390 N.W.2d 415, 418 (Minn. App. 1986). Further, where an employee ignores repeated warnings that notice of absences is required, an employee's conduct shows "willful disregard of both his employer's interests and of the duties and obligations owed to his employer." Kemp v. United States Dep't of Agric., 385 N.W.2d 879, 882 (Minn. App. 1986).
3. Sexual Harassment
Relator claims to be a victim of sexual harassment. But the offering of evidence shows only a belief of harassment and not its actual occurrence. Moreover, relator never tied the alleged harassment to absences in March and April 1997 or to her failure to notify the employer of her absences.
4. Irrelevant Evidence
Relator alleges the commissioner considered irrelevant evidence--a false medical report delivered after the Postal Service decided to discharge relator. The commissioner might properly give that episode weight when evaluating the merit of the excuses given for prior absences. Moreover, the report was not critical evidence and there is no showing of prejudice to relator.
5. Supervisor Testimony
Relator alleges that her hearing was fundamentally unfair because the hearing officer considered the testimony of her supervisor, apparently the target of relator's sexual harassment complaint. But there is no showing of sexual harassment, no evidence of record that the supervisor was the perpetrator of sexually harassing behavior, and no evidence that relator was denied the right to cross-examine this witness. There also is no evidence that this witness's testimony was given undue weight.
 Relator testified that:
My Family Medical Leave slips are always questioned and I personally believe that it's because I have an active EEO sexual harassment case going. I believe that that's when things started.Although this court sees no cause to give relator relief in the circumstances of this case because she has failed to identify any evidence that might have been produced had the topic been more fully explored, we observe that relator was pro se and the hearing officer made no inquiry of relator beyond asking when the complaint was filed. Minnesota agency rules governing reemployment compensation procedure provide:
The referee should assist unrepresented parties in the presentation of evidence.
* * * *
The referee shall exercise control over the hearing procedure in a manner that protects the parties' rights to a fair hearing. The referee shall ensure that relevant facts are clearly and fully developed.
Minn. R. 3310.2921 (1997).
This court has previously expressed concern about the incomplete record arising when a reemployment insurance judge either hinders or does not help a pro se relator develop relevant issues that are identified. See Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 33 (Minn. App. 1997) (hearing officer erred in refusing testimony because an employee's evidence that she was discharged for reporting sexual harassment is relevant to a claim for reemployment insurance benefits to rebut her employer's evidence that the discharge was for misconduct); Poppler v. Dolphin Clerical, No. C0-98-1488 (Minn. App. Feb. 9, 1999) (expressing disapproval of summary questioning done at all levels of administrative review and stating, "the fault for an incomplete record cannot be placed with relator alone").