This opinion will be unpublished and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

A04-1975

 

Marty W. Beckius,

Relator,

 

vs.

 

New Prague Community Schools,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed July 12, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Department of Employment and Economic Development

File No. 8858 04

 

Howard L. Bolter, Borkon Ramstead Mariani Fishman & Carp, Suite 100, Parkdale I, 5401 Gamble Drive, Minneapolis, MN 55416-1552 (for relator)

 

Marie Skinner, Charles Long, Rider Bennett LLP, 333 South Seventh Street, Suite 2000, Minneapolis, MN 55402 (for respondent-employer)

 

Linda A. Holmes, Minnesota Department of Employment and Economic Development, 332 Minnesota Street, Suite E-200, St. Paul, MN 55101-1351 (for respondent commissioner)

 

            Considered and decided by Willis, Presiding Judge; Shumaker, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            Relator Marty Beckius challenges the decision of the senior unemployment review judge that he was disqualified from receiving unemployment benefits because of employment misconduct because he failed to report to work as directed by his employer.  Beckius argues (1) that he did not return to work because of an ongoing medical problem of which the employer was aware and (2) that he made a good-faith error in judgment by refusing to take FMLA leave and by providing a doctor’s note that lifted all work restrictions.  We affirm.

FACTS

            Relator Marty Beckius worked as a custodian for respondent New Prague school district from June 2002 until March 10, 2004.  He began his job at a primary school but was later reassigned to the high school.

            Before he began working for respondent, Beckius had been treated for colon cancer, and as a result he developed irritable bowel syndrome (IBS).  One of the symptoms of Beckius’s IBS was frequent bowel movements.  He contends that the IBS did not hinder his work performance at the primary school but that his condition was aggravated at the substantially larger high school where he had to cover more area, climb more stairs, and perform more job activities.

            Shortly after his transfer to the high school, Beckius complained to respondent about his new assignment, indicating that his IBS symptoms were aggravated by his new work duties.  His physician, Dr. Hammes, submitted a report dated September 12, 2003, stating that Beckius did not have a permanent disability, had not yet reached maximum medical improvement, and could continue to work with limitations.  The doctor indicated that Beckius “needs to have a chance to walk less distance and possibly rest more often . . . .”

            On October 23, 2003, Dr. Hammes wrote that Beckius had complained of an aggravation of his IBS symptoms since his transfer to the high school, and in November 2003, the doctor stated that it was “difficult to quantify” Beckius’s limitations but that the doctor believed that Beckius’s job tasks at the high school aggravated his IBS.  On November 19, 2003, another of Beckius’s physicians wrote that Beckius “should be assigned to a position that does not require him to walk as excessively.”  In December 2003, Dr. Hammes reported that Beckius was unable to climb stairs and could walk three hours or less.  Despite the physicians’ statements, Beckius never asked respondent for any work accommodations.

            On January 5, 2004, Dr. Hammes wrote that all restrictions on Beckius’s work were removed and that he could “walk as much as needed per shift.”  The doctor followed that statement with a letter one week later in which he indicated that he could not quantify Beckius’s problems and suggested that a full occupational-medicine work evaluation would be necessary.

            Beckius began taking sick leave on January 2, 2004, during which he requested that respondent reassign him to the primary school at which he began his employment.  On February 25, 2004, respondent notified Beckius that his position as custodian would remain at the high school and that he needed to report to work on March 1, 2004, the end of his sick-leave period.

            Beckius did not report to work as directed, and respondent terminated his job, effective March 10, 2004.  He applied for unemployment benefits, to which respondent objected.  After a hearing, an unemployment law judge (ULJ) ruled that Beckius was discharged for a reason other than misconduct and found that he remained eligible for benefits.  On appeal, the senior unemployment review judge reversed, stating that Beckius was “put on clear notice that his continued absence from work without authorization or proper medical excuse would result in employment termination . . . .”  Beckius appealed.

D E C I S I O N

            On certiorari appeal, we give particular deference to the decision of the senior unemployment review judge.[1]  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995) (reviewing decision by commissioner’s representative).  We review the senior unemployment review judge’s factual findings in the light most favorable to the decision, and we will not disturb those findings if the record reasonably tends to sustain them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  This court defers to the senior unemployment review judge’s ability to weigh conflicting evidence and to make credibility determinations about proffered testimony.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  However, whether an employee’s acts constitute misconduct is a question of law, which we review de novo.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

            An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.[2]  Minn. Stat. § 268.095, subd. 4 (Supp. 2003).  Employment misconduct is defined as “any intentional, negligent, or indifferent conduct, on the job 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.”  Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003).  Absence because of illness or injury is not considered misconduct, but only if “proper notice” is given to the employer.  Id.  But an employer has the right to “establish and enforce reasonable work rules relating to absenteeism.”  Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985).  Additionally, an employee who fails to properly notify an employer of intended absences and fails to comply with policies regarding attendance demonstrates a lack of concern for the employment and commits disqualifying misconduct.  See Edwards v. Yellow Freight Sys., 342 N.W.2d. 357, 359 (Minn. App. 1984).

            Beckius argues that his failure to return to work after his sick leave was exhausted did not constitute employment misconduct because his behavior fits the “illness” exception to the misconduct definition.  Minn. Stat. § 268.095, subd. 6(a).  Respondent does not dispute that Beckius suffered from IBS.  But the question is whether the IBS prevented Beckius from returning to work at the end of his sick-leave period.  The record demonstrates that it did not.

            Dr. Hammes had lifted all work restrictions for Beckius before the expiration of the sick-leave period.  Thus, medically he was able to return to his job at the high school and to perform all tasks.  Beckius claims that he asked his doctor to remove his work restrictions because he felt restrictions on his ability to work would jeopardize future employment.  Thus, he claims, he made a good-faith error in requesting the removal of the restrictions.  The credibility of the evidence is for the agency to determine, and this court will defer to credibility determinations that are reasonable given the record on review.  Whitehead, 529 N.W.2d at 352.  The record clearly supports the conclusion that Beckius had no medical restrictions on his work and that he could have returned after his sick-leave period had he wanted to do so.

            If Beckius’s IBS symptoms had not abated sufficiently for him to do all tasks of his job at the end of his sick leave, he had the option of so demonstrating by applying for additional sick leave under the Family Medical Leave Act (FMLA), of which Beckius admitted he was aware.  Beckius’s explanation of his failure to request FMLA leave was that he was afraid of doing so would jeopardize future employment and that his failure to request such leave was a good-faith error.  A reasonable inference to be drawn from Beckius’s failure to extend his sick leave is that his symptoms would no longer interfere with the proper performance of his job and thus further sick leave would not be required.  This was a credibility determination for the agency, and it is supported by the record.

            Beckius also could have asked respondent for job accommodations that would not aggravate his IBS symptoms.  He never did so, which reasonably supports the inference that he did not need accommodations to do his job.  The record supports that inference.

            Thus, the record amply supports the conclusion that Beckius intentionally refused to return to his employment after the exhaustion of his sick leave and such behavior is employment misconduct.

            Finally, Beckius asserts that the senior unemployment review judge relied on an outdated statute in making the determination regarding benefits.  Specifically, Beckius argues that the senior unemployment review judge relied on the definition of employment misconduct contained in the 2003 statutory supplement. At oral argument, respondent-commissioner wrongly conceded that the 2004 statutory definition of employment misconduct applied.  Beckius was terminated on March 10, 2004.  This court applies the statute in effect at the time of an employee’s discharge.  Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).  Because the 2004 statutes are not deemed effective until August 1, 2004, this court refers to the statute found in the 2003 supplement.  Therefore, the senior unemployment review judge applied the correct statute.  But under either statutory definition, Beckius’s failure to return to work as directed by the employer constitutes employment misconduct.

Affirmed.