This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-99-879

Chuck L. Shibley,
Relator,

vs.

Specialty Home Electronic Repair, Inc.,
Respondent,

Department of Economic Security,
Respondent.

Filed December 7, 1999
Affirmed
Harten, Judge

Department of Economic Security
Agency File No. 187UC99

Chuck L. Shibley, 635 Broadway Street NE, Apartment 2, Minneapolis, MN 55413-2154 (pro se relator)

Mark A. Greenman, 400 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for respondent employer)

Kent E. Todd, Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (respondent)

Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

Relator challenges the determination that he was fired for misconduct, arguing that it was not misconduct to remain at home caring for his child because he could not find child care. Because the evidence supports the determination that relatorís failure to obtain child care led to excessive absenteeism, which, in turn, sustains the conclusion that relator was fired for misconduct, we affirm.

FACTS

In January 1998, relator Chick L. Shibley began to work for respondent Specialty Home Electronics Repair (Specialty) on a Monday-to-Friday, 8-to-5 schedule. He received a written warning about his attendance problems in December 1998. In January 1999, relator missed nine days of work because he stayed home to care for his child, claiming that he was unable to afford child care. On February 2, he was discharged because of poor attendance. He applied for reemployment insurance benefits the following day.

On March 6, the Department of Economic Security found that relatorís inability to obtain daycare was not good cause, that he left his employment without good cause, and that he was disqualified from receiving benefits. He appealed this determination.

At the March 1999 hearing on his claim for benefits, relator argued that his inability to obtain daycare was due to Specialtyís failure to raise his wage from $9 to $10 hourly. He testified that "[The people at Specialty] were more than fair in trying to help me out [with the child care problem]. My issue is not this. My issue is getting raises."

In April 1999, the reemployment insurance judge affirmed the decision that relator was discharged for misconduct. Relator again appealed. In May, 1999, the commissionerís representative affirmed the decision. Relator appeals by writ of certiorari.

D E C I S I O N

The commissionerís determination that an employee committed misconduct is a mixed question of fact and law. A reviewing court will affirm if the findings of fact "are not without support in the evidence" and if "the conclusion on those facts is not contrary to the statutory mandate." Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).

Here, the commissionerís representative found that relator had been warned about his poor attendance in the fall of 1998, that his poor attendance then was due to his former wife failing to provide care for their child, that relator was again absent three days in January 1999 because she failed to provide care, that he was absent another six days because he lacked child care, and that he had failed to obtain responsible care for his child. These findings support the conclusion that relatorís absenteeism was misconduct and that he was discharged for misconduct. See Moeller v. Minnesota Depít of Transp., 281 N.W.2d 879, 882 (Minn. 979) (absenteeism qualifies as misconduct).

Relator relies on Prickett v. Circuit Science, Inc. 518 N.W.2d 602 (Minn. 1994) and McCourtney v. Imprimis Technology, Inc. 465 N.W.2d 721 (Minn. App. 1991), both finding no misconduct for parents whose absenteeism from work was due to their inability to obtain child care. But both cases are readily distinguishable.

In Prickett, the employee had been notified on Friday that as of the following Monday he would no longer work from 6:50 a.m. to 3:20 p.m. but from 3:20 p.m. to 11:30 p.m. He had temporary custody of his child and was unable to find nighttime care from professional agencies, from relatives, or from friends. Prickett, 518 N.W.2d at 603-04. Relatorís shift did not change, and day care between 8 a.m. and 5 p.m. is readily available.

In McCourtney, the employeeís infant was ill from birth. Over the next several months, the employee was frequently absent from work to provide care for the infant. She explored professional in-home care, back-up daycare, and short-term sick child care, but found no option that she could afford and that would accommodate her work schedule. McCourtney, 465 N.W.2d at 723. In contrast, relator simply testified that, at the time he quit, he could not afford child care unless he received a raise.

The conclusion that relator was fired for misconduct is supported by the findings, and the finding that he failed to obtain responsible child care so he could go to work is supported by the evidence.

Affirmed.