This opinion will be unpublished and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

A04-1623

 

Eugene N. Ashong,
Relator,

vs.

Independent School District #625,
Respondent,

Commissioner of Employment and Economic Development,
Respondent.

 

Filed June 21, 2005

Affirmed

Minge, Judge

 

Department of Employment and Economic Development

File No. 8902 04

 

 

Eugene N. Ashong, 10624 Wren Street NW, Coon Rapids, MN 55433-4025 (pro se relator)

 

Lee B. Nelson, Linda A. Holmes, 332 Minnesota Street, E200 First National Bank Building, St. Paul, MN 55101-1351 (for respondent commissioner)

 

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

 

 

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Relator challenges the denial of a new hearing and the determination that he was discharged for misconduct.  Because relator was properly notified of the hearing, failed to complete certain job duties, and was insubordinate, we affirm.

FACTS

Relator Eugene N. Ashong was employed as a custodian by respondent Independent School District #625 (St. Paul) from November 20, 2000 to May 3, 2004.  The school district presented evidence showing that on at least five occasions, relator did not lock one or more exterior doors at the school where he was working.  He received a verbal reprimand after the first incident and one day of unpaid suspension after the third incident.  When relator failed to lock the exterior door for a fourth time, the school district suspended him for five days without pay and issued a written warning.  Subsequently, relator yelled at and threatened a supervisor when she complained about his job performance.  Another staff member called the police.  Relator was placed on paid administrative leave and ultimately discharged. 

            Relator was initially denied unemployment benefits because he was discharged for employment misconduct.  Relator appealed the determination and a hearing was set before an unemployment law judge (ULJ).  Because relator failed to appear for the hearing, the ULJ heard testimony only from the school district.  The ULJ concluded that the school district had discharged relator for employment misconduct and that he was disqualified from receiving benefits.   

            Relator appealed the ULJ’s decision to the commissioner of the Department of Employment and Economic Development.  Relator claimed that he had missed the first hearing because a family member did not give him his mail, and he requested a new hearing.  The commissioner’s representative denied the request for a new hearing, affirmed the ULJ’s decision that relator was discharged for employment misconduct, and concluded that relator was disqualified from receiving benefits.  This certiorari appeal follows.

D E C I S I O N

 

I.

            The first issue is whether the commissioner’s representative erred by denying relator a new evidentiary hearing.  We give deference to the decision of the commissioner’s representative to grant or deny a request for a new hearing.  Goodwin v. BPS Guard Servs., Inc., 524 N.W.2d 28, 30 (Minn. App. 1994).  Generally, we do not reverse the commissioner’s representative’s refusal to remand a case when the refusal is based on a party’s failure to appear at the hearing.  Id.

Relator claims that he failed to appear at the hearing before the ULJ because his daughter did not give him the hearing notice sent by the Department of Employment and Economic Development.  There is no claim that the department improperly served relator or that the hearing notice was sent to the wrong address.  Because relator should have been aware of the hearing, the commissioner’s representative did not abuse its discretion in deciding not to remand for a rehearing. 

II.

The second issue is whether the commissioner’s representative erred in finding relator was discharged due to employment misconduct and thus disqualified from receiving benefits.

On certiorari appeal, we accord particular deference to the decision of the commissioner’s representative.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The determination of whether an employee committed a specific act of misconduct is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  We review findings of fact made by the commissioner’s representative in the light most favorable to the decision, and we will not reverse such findings if they are reasonably supported by the record.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  But whether a specific act or acts constitute misconduct is a question of law that we review de novo.  Scheunemann, 562 N.W.2d at 34.

When an employee is discharged for employment misconduct, he or she is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (Supp. 2003).[1]  Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003), defines employment misconduct as “any intentional, negligent, or indifferent conduct, on or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment.” 

The commissioner’s representative determined that, despite prior warnings, relator failed to lock the exterior doors at the school where he worked and that relator was insubordinate to a supervisor.  The commissioner’s representative concluded that relator’s behavior showed a substantial lack of concern for his employment and violated the reasonable standards of behavior expected by the school district.  The record supports the commissioner’s representative’s finding that relator failed to lock all exterior school doors after repeated warnings and that relator yelled at and threatened a supervisor.  Such conduct evinces both a substantial lack of concern for the employment and a violation of reasonable standards of behavior.  We conclude that the commissioner’s representative was correct in determining relator’s actions constituted misconduct that disqualifies him from receiving unemployment benefits.

            Affirmed.