This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
David A. Selvig,
Commissioner of Economic Security,
Filed June 19, 2001
Department of Economic Security
File No. 632100
David A. Selvig, P.O. Box 126, Moose Lake, MN 55767-0126 (pro se relator)
Expresspoint Technology Services, Inc., Burnsville Location, c/o Automatic Data Processing, P.O. Box 6501, Diamond Bar, CA 91765 (pro se employer)
Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert St., St. Paul, MN 55101 (for respondent Commissioner)
Considered and decided by Crippen, Presiding Judge, Klaphake, Judge, and Stoneburner, Judge.
Pro se relator David A. Selvig challenges a decision by a representative of respondent Commissioner of Economic Security disqualifying him from receiving unemployment benefits. The commissioner’s representative determined that Selvig was discharged because of employment misconduct. Despite warnings from his employer, respondent Expresspoint Technology, Selvig continued to have excessive absences and tardiness, and failed to give proper notice to the employer. For the first time on appeal, Selvig claims he was discharged because of the rising costs of his medical benefits and because he took time away from work under the Families Medical Leave Act (FMLA). Because the evidence reasonably supports the decision of the commissioner’s representative that Selvig was discharged because of employment misconduct, we affirm.
An employee is disqualified from receiving benefits if discharged because of employment misconduct. Minn. Stat. § 268.095, subd. 4(1) (2000). “Employment misconduct” is defined as any intentional conduct that “disregards the standards of behavior that an employer has the right to expect of the employee” or any negligent conduct that “demonstrates a substantial lack of concern for the employment.” Id., subd. 6(a) (2000).
“The employer has a right to expect an employee to work when scheduled.” Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984) (citation omitted). Even if not willful or deliberate, chronic and excessive absenteeism and tardiness may amount to misconduct. Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985). Excessive tardiness or absences, particularly after warnings, may evidence an employee’s disregard of an employer’s interest. Evenson v. Omnetic’s, 344 N.W.2d 881, 883 (Minn. App. 1984). Although “absence because of illness or injury” is not employment misconduct, proper notice still must be given to the employer. See Minn. Stat. § 268.095, subd. 6(b).
Here, Selvig offers a variety of explanations for his repeated failures to report to work when scheduled, some of which he offers for the first time on appeal, including: (1) illnesses; (2) injuries from an assault and attempted robbery; (3) loss of his driver’s license and difficulty getting to work on the bus; (4) late returns from trips to the Twin Cities, Moose Lake, or Fargo; and (5) incarceration and lack of access to a telephone. Selvig acknowledges, however, that he knew he was supposed to call in at least one-half hour before his 10:00 a.m. start time if he was going to be late or absent. He further acknowledges that, despite several warnings, he continuously failed to timely report when he would be absent or tardy. Thus, the commissioner’s representative could reasonably conclude that, based on the evidence, Selvig committed employment misconduct because he continued to show a substantial disregard for his employer’s interests by failing to properly notify the employer when he would be absent or late for work.
For the first time on appeal, Selvig argues that the real reason he was discharged from his employment was due to Expresspoint Technology’s concern over his increasing medical costs, his past time away from work under the FMLA, and anticipated future absences for scheduled surgeries in July and August 2000. Because he raises this issue for the first time on appeal, we decline to address it. See Haskins v. Choice Auto Rental, Inc., 558 N.W.2d 507, 512 (Minn. App. 1997) (issues not raised below will not be considered on appeal). It would be particularly difficult to address Selvig’s arguments at this point, because he has offered no evidence to support his allegations and the employer was never given an opportunity to rebut his charges. See Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997) (when employer’s stated reason for discharge disputed, hearing process must allow evidence on competing reasons and provide factual findings on cause of discharge).
The decision of the commissioner’s representative disqualifying Selvig from receiving benefits is affirmed.