This opinion will be unpublished and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
Male KS Ancrum,
Department of Employment and Economic Development,
Filed February 7, 2006
Department of Employment and
File No. 11421 04
Penelope J. Phillips, Janet C. Ampe, H. Le Phan, Felhaber, Larson, Fenlon & Vogt, P.A., 220 South Sixth Street, Suite 2200, Minneapolis, MN 55402 (for relator)
Male KS Ancrum, c/o
Linda A. Holmes, Department of Employment and Economic Development, E-200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101-1351; and
Considered and decided by Wright, Presiding Judge, Dietzen, Judge, and Crippen, Judge.
Respondent began working as a security guard for relator in 2003. On April 15, 2004, respondent entered a Minneapolis Police Department precinct and reported that he had been kidnapped from work the previous night, assaulted, and robbed at gunpoint by two men. On April 23, relator placed respondent on unpaid administrative leave, informing him that he would not be allowed to return to work until he provided a statement to the police, obtained a mental-health medical release, and contacted relator’s workers’ compensation representative. Although respondent fulfilled all three conditions by July, a police report on the incident was not yet available and he was not permitted to return to work.
Following an August 2004 hearing, an unemployment law judge decided that respondent’s leave was involuntary, and respondent collected unemployment benefits between the weeks ending June 19 and September 4, 2004. Relator received the police report on October 28 and terminated respondent for misconduct the next day, informing him that the report indicated that he had not been truthful “regarding the events of last April.”
In January 2005, the review judge affirmed the decision of respondent’s eligibility, finding that although respondent complied with relator’s return-to-work requirements, he was not allowed to return “because [relator] began having concerns about [respondent’s] credibility” and decided to wait for the completed police report before allowing him to do so. The judge denied relator’s request that the matter be remanded for a new evidentiary hearing.
On certiorari appeal, the decision
of the review judge is accorded “particular deference,” and will be upheld if
it has reasonable support in the record.
Tuff v. Knitcraft Corp., 526
N.W.2d 50, 51 (
An employee on a voluntary leave of absence is ineligible for benefits for the duration of the leave of absence. Minn. Stat. § 268.085, subd. 13a(a) (2004). Although an employee who is discharged for misconduct is disqualified from receiving unemployment benefits, Minn. Stat. § 268.095, subd. 4(1) (2004), there is no like provision for an employer’s imposition of an involuntary leave.
Relator mischaracterizes the review judge’s decision as stating “that [respondent] was discharged for reasons other than misconduct,” and devotes its principal brief to challenging the decision on those grounds. But because the decision itself makes no mention of discharge, for misconduct or otherwise, relator’s argument is misplaced.
The record provides reasonable support for the review judge’s findings that respondent’s leave was not voluntary and that relator refused to allow him to return to work even after he had fulfilled the conditions set forth on April 23, 2004. As a result, there is no merit in relator’s assertion, raised for the first time at oral argument, that respondent’s leave was voluntary.
In its reply brief, relator argues, again for the first time, that respondent’s leave of absence should be deemed a suspension that became a discharge by operation of Minn. Stat. § 268.085, subd. 13 (providing that a suspension shall be considered a discharge after 30 days), and that the real issue in this matter is whether that discharge was for misconduct. Even if this argument were not deemed waived for relator’s failure to raise it earlier, it has no merit. The record provides no factual support for the notion that the April 2004 leave decision was in the nature of a punitive suspension. Relator never asserted misconduct before the October 2004 police report. In fact, in repeated statements before the unemployment law judge and in filings to the review judge, relator asserted that respondent was not terminated prior to October 29 and that he was on administrative leave prior to that date; the occurrence of a suspension was not asserted.
Relator further argues in its reply brief that involuntary leaves under subdivision 13a occur only when work is not available after a voluntary medical leave. Although the statute announces this variety of involuntary leave, it says nothing to limit the general category of involuntary leaves as a class of employment status that does not create ineligibility.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The issue of whether respondent’s involuntary leave constituted a suspension was first considered by the unemployment law judge; without deciding if a suspension and resulting discharge occurred, she observed that there then had been no showing of misconduct. The judge’s ultimate decision was based solely on the finding that respondent was placed on an involuntary leave.