This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2329

 

 

Joseph J. Mathews,

Relator,

 

vs.

 

L & M Radiator Inc.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

 

Filed August 30, 2005

Affirmed

Lansing, Judge

 

Department of Employment and Economic Development

File No. 15768 03

 

 

Joseph J. Mathews, 3548 Highway 73, Hibbing, MN 55746-8310 (pro se relator)

 

L & M Radiator Inc., 1414 East 37th Street, Hibbing, MN 55746-3645 (respondent L & M Radiator Inc.)

 

Linda A. Holmes, Minnesota Department of Employment and Economic Development, 1st National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent Department of Employment and Economic Development)

 

 

            Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

In this certiorari appeal from a denial of unemployment benefits, Joseph Mathews disputes the determination that he engaged in employee misconduct and contends that he was instead discharged for raising issues about the employer’s failure to make promised wage increases.  Because the record supports the determination that the employer terminated Mathews’s employment for violation of its attendance policy and does not support Mathews’s alternative argument, we affirm his disqualification from receiving unemployment benefits.

F A C T S

L & M Radiator Inc. discharged Joseph Mathews on July 23, 2003, from his employment as a welder for violation of attendance standards.  L & M’s employee guidelines permit five absences each year; Mathews’s final absence was his ninth that year.  Matthews’s supervisor orally warned him during an evaluation in January 2003 that, unless he improved his attendance, L & M would terminate his employment. 

Mathews missed seven nonconsecutive days of work for illnesses and injuries from March through July 2003.  Each time he called before the start of his shift to notify his supervisor that he would be absent from work.  He also missed a day in May because of car problems and again called before his shift to report that absence.  He did not, however, call L & M to notify his supervisor that he would not be at work on July 22, 2003.  The record shows that he did not report to work because of a home-related construction project and that he did not call because he had no access to a phone.  In response to the failure to notify L & M of his absence, his supervisor terminated Mathews’s employment the following day for violation of L & M’s attendance policy.

Mathews filed a claim for unemployment benefits that was denied based on a determination of employment misconduct.  He appealed to an unemployment law judge (ULJ), who conducted a telephone hearing in which Mathews did not participate.  The ULJ affirmed the denial of benefits.  On certiorari appeal from that denial, the commissioner’s representative affirmed, and Mathews appeals from this determination.

D E C I S I O N

A discharged employee is not qualified for unemployment benefits if the reasons for discharge constitute employment misconduct. Minn. Stat. § 268.095, subd. 4(1) (2002).  We apply the definition of employment misconduct in effect at the time of the termination.  Bray v. Dogs & Cats Ltd., 679 N.W.2d 182, 185 (Minn. App. 2004).  The law in effect in July 2003 defined employment misconduct as any “intentional conduct . . . that disregards the standards of behavior that an employer has the right to expect of the employee . . . or . . . negligent or indifferent conduct . . . that demonstrates a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (2002); Houston v. Int'l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002) (interpreting statutory definition). 

Absences caused by illness or injury are not misconduct if the employee provides notice to the employer.  Minn. Stat. § 268.095, subd. 6(b) (2002).  But excessive tardiness or absenteeism that is unrelated to illness or injury demonstrates an employee’s disregard of an employer’s interests.  McLean v. Plastics, Inc., 378 N.W.2d 104, 107 (Minn. App. 1985); Evenson v. Omnetic’s, 344 N.W.2d 881, 883 (Minn. App. 1984).  This principle is particularly applicable when the employee has been previously warned.  McLean, 378 N.W.2d at 107; Everson, 344 N.W.2d at 883.  Similarly, an employee’s failure to give proper notice of an absence may demonstrate a lack of concern for employment that constitutes disqualifying misconduct.  See Edwards v. Yellow Freight Sys., 342 N.W.2d 357, 359 (Minn. App. 1984).

Whether an employee is disqualified from receiving unemployment benefits is a mixed question of law and fact.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  The determination of whether the employee committed a particular act is a factual question, but the determination of whether the act constitutes employment misconduct is a question of law.  Scheunemann v. Radisson South Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  In our review of factual determinations, we defer to the findings of the commissioner’s representative if the findings are reasonably supported in the record; we exercise independent judgment on an issue of law.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).

The commissioner’s representative found that at least two of Mathews’s absences, including the final absence, were for reasons unrelated to illness or injury and that Mathews failed to provide notice of his final absence.  The representative also found that L & M orally warned Mathews on January 17, 2003, that his absenteeism was unacceptable and could result in termination.  Finally, the representative found that L & M terminated Mathews’s employment because he exceeded the number of permissible unpaid absences and failed to provide notice to the employer. 

In his pro se brief, Mathews disputes several of the findings and asserts that he was terminated in retaliation for seeking promised wage increases for himself and other employees.  Appellate review, however, is confined to the record.  Grinolds v. Indep. Sch. Dist. No. 597, 346 N.W.2d 123, 128 (Minn. 1984).  And the record does not include testimony or evidence submitted by Mathews.  Although remand is appropriate when procedural shortcomings prevent an employee from participating in the hearing, the commissioner’s representative found that Mathews’s excuse for not participating in the telephone hearing was not credible and that finding is not disputed on appeal.  See Schulte v. Transp. Unlimited, Inc., 354 N.W.2d 830, 832-33 (Minn. 1984) (observing that employee must be able to make intelligent decision about whether to attend hearing).  The record contains no evidence that Mathews sought a wage increase, that a wage increase was promised, or that his employer made a decision to terminate his employment for reasons other than his violation of L & M’s attendance policy. 

L & M’s attendance policy, which considers more than five unpaid nonvacation days to be excessive and grounds for discipline, diverges from the statutory definition of employment misconduct that excludes properly noticed absences related to illness or injury.  When the record is insufficiently developed to separate absences related to illness or injury from those that are not, reversal may be required.  But the record in this case adequately identifies at least two absences that were not related to injury or illness and also establishes that, in the most recent absence, which did not involve an emergency, Mathews provided no notice to L & M of his intent to be absent and did not call in to report that he would not be at work.  This absence, without notice, occurred after a warning that further absences could result in discharge. 

The findings of the commissioner’s representative are supported by the record, and these findings support a conclusion of employee misconduct that demonstrates an intentional disregard of standards that the employer has a right to expect. 

            Affirmed.