This opinion will be unpublished and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

A04-1847

Abdirisaq A. Abdi,

Relator,

 

vs.

 

Stanley Smith Security,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed August 9, 2005

Affirmed

Halbrooks, Judge

 

 

Department of Employment and Economic Development

File No. 7966 04

 

 

Abdirisaq A. Abdi, 1808 University Avenue Northeast #118, Minneapolis, MN 55418 (pro se relator)

 

Stanley Smith Security, Inc., 1611 West County Road B, Suite 125, Roseville, MN 55113 (respondent)

 

Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent commissioner)

 

            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

HALBROOKS, Judge

Relator challenges the decision of the senior unemployment review judge (SURJ) that he was disqualified from receiving unemployment benefits because he had been discharged for misconduct.  Relator disputes the findings that he was fired for missing work, being late, and not getting along with other employees and asserts that he was fired in retaliation for filing a complaint letter against his supervisor.  Because the record contains evidence reasonably tending to support the SURJ’s findings and because such conduct represents disqualifying misconduct, we affirm.

FACTS

Relator Abdirisaq Abdi was employed as a security guard by respondent Stanley Smith Security (Smith Security).  On February 23, 2004, Smith Security discharged Abdi for alleged misconduct.  According to Smith Security, there were a number of issues that led to Abdi’s discharge: excessive absenteeism, an inability to get along with co-workers, and engaging in non-work activities during work hours. 

Willie Brown, the personnel manager for Smith Security, testified that between September 2003 and February 2004, “[Abdi] was absent eight times, he was late two times.”  Brown acknowledged that whenever “Abdi was going to be absent, yes, he would call.”  On February 4, 2004, Abdi received counseling for his absences and Smith Security issued an “employment counseling report” noting that Abdi had eight absences and two late arrivals since September 2003.  The report states that Abdi was to have “[n]o late call[s] and absen[ces] for 60 days” and that he “[m]ust call [the] office” if he was going to be late or absent.  The report also noted that “Abdi refused to sign it.”  Abdi stated that he had never seen the report and did not remember being told that he could not be late or absent for 60 days. 

On February 14, Abdi was assigned to work a shift at Metro Gravel.  The shift was scheduled to begin at noon, but “[a]t 12:40, there was no guard still at that site.  So [Abdi] was a no[-]call-no[-]show on that date.”  According to Abdi, this was normally his day off, but Smith Security had called him that morning and asked him to work.  He stated that he was late because of heavy traffic.  He also testified that his prior absences had been due to medical emergencies involving his family.  Abdi provided documentation for several of these emergencies. 

According to Smith Security, Abdi had several “behavioral incidents” in which he had conflicts with other employees.  On November 24, 2003, site supervisor David Chuol filed an incident report noting an altercation between Abdi and him.  According to this report:

When [Chuol] arrived [at the site] [he] just asked Abdi a simple question, “How is it in the [building]?[”]  [Abdi] replied, “What do you think it is?[”]  I told him, [“]I just got here, that is why I am asking you.[”]  [Abdi said,]  [“]Shut up.  I do not want to talk to you any more.  [G]o!”  [Chuol said,] [“]Abdi I am in charge for the second shift.[”]  [Abdi replied,] [“]Shut up, shut up.  [G]o out.[”]

 

Brown testified that he realigned the shifts in response to this incident, taking “Chuol from second shift and put[ting] [Chuol] on first shift.  [Brown] took another officer . . . Peter Schissel . . . and put him on second shift.  And after that, there were frictions between [Abdi] and [] Schissel . . . causing [Schissel] to leave the account.”   

On February 19, 2004, another site supervisor, Abulla Bagutti, filed an incident report calling Abdi a “problem maker” and stating that Abdi “[d]oesn’t want to work peacefully with other officers.”  Bagutti also noted that, contrary to instructions from the client, Abdi had “a problem of reading at [his] post and talking on [his] cell phone a lot.” 

Abdi disputes Smith Security’s account.  He denied that he told Chuol to “shut up” and contends that the only person with whom he has ever had a problem was Bagutti, whom he accused of acting “unprofessionally.”  Abdi also denied engaging in non-work activities on the job.  He stated, “I know that they say you cannot read or you cannot . . . have [a] cell phone on duty and I know that policy so I [have] never done either.”  Abdi further contends that “the only reason [he] was fired was because [he] fil[]ed a complaint letter against [Bagutti]” a few days before he was discharged. 

The Department of Employment and Economic Development issued a determination that Abdi had not engaged in employment misconduct and was therefore not disqualified from receiving benefits.  Smith Security appealed.  The unemployment-law judge (ULJ) reversed the determination, finding that Abdi was discharged because of employment misconduct.  Abdi then appealed and the senior unemployment review judge[1] (SURJ) upheld the ULJ’s decision.  This certiorari appeal follows.

D E C I S I O N

On appeal, this court reviews the decision of the SURJ rather than that of the unemployment-law judge.  Weaver v. Minn. Valley Labs., Inc., 470 N.W.2d 131, 133 (Minn. App. 1991).  Our standard of review in economic-security cases is narrow.  McGowan v. Executive Express Transp. Enters., 420 N.W.2d 592, 594 (Minn. 1988).  The factual findings of the SURJ are “viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.”  White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).  On questions of law, this court is not bound by the SURJ’s conclusions, but exercises its own independent judgment.  Markel v. City of Circle Pines, 479 N.W.2d 382, 384 (Minn. 1992).  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).  But whether specific acts constitute misconduct is a question of law, which we review de novo.  Id. 

When employees are discharged for employment misconduct, they are disqualified from receiving unemployment benefits.[2]  Minn. Stat. § 268.095, subd. 4 (Supp. 2003).  Minnesota law 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.”  Id., subd. 6(a) (Supp. 2003).  Absence caused by illness is not employment misconduct if the employee provides the employer with proper notice.  Id.

Abdi asserts that he was discharged, not for misconduct, but in retaliation for filing a complaint against his supervisor.  The SURJ was required to determine which of these two conflicting reasons—misconduct or retaliation—was the reason for Abdi’s termination, and we defer to the SURJ’s determination.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  “When the parties have presented conflicting evidence on the record, this court must defer to the [SURJ’s] ability to weigh the evidence.”  Id.  Although the alleged retaliation was not explicitly addressed in the SURJ’s decision, by finding that Abdi was discharged for employment misconduct, the SURJ implicitly concluded that his termination was not retaliatory.

Our purpose here is not to address the viability of a retaliatory-discharge claim.  On appeal in unemployment-compensation cases, we do not determine whether the employee should have been terminated, but whether the employee should receive unemployment-compensation benefits.  Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989); see also Windsperger v. Broadway Liquor Outlet, 346 N.W.2d 142, 143 (Minn. 1984) (explaining that issue in economic security cases “is not whether [relator] should have been terminated, but whether, now that she is unemployed, she should be denied unemployment compensation benefits as well”).

Here, after weighing the conflicting testimony, the SURJ expressly determined that the evidence submitted by Smith Security was credible.  The SURJ noted:

The evidence in the present record shows that Abdi did not get along well with other security guards and with his supervisor.  It also shows that he did not comply with the employer’s attendance policy, and he also violated the employer’s policies and procedures and those of the client by using a cell phone and reading while at the security desk. 

 

Because the record contains evidence reasonably tending to support these findings, they will not be disturbed.  White,332 N.W.2d at 26.

The SURJ subsequently concluded that Abdi had “engaged in intentional, negligent, or indifferent conduct, that shows a serious violation of the standards of behavior that the employer had the right to reasonably expect” and held that Abdi was discharged “because of employment misconduct” and was therefore disqualified from receiving unemployment benefits. 

Employers have the right to create and enforce reasonable rules relating to absenteeism.  Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985).  Failing to comply with attendance policies demonstrates a lack of concern for the employment and generally amounts to disqualifying misconduct.  See Edwards v. Yellow Freight Sys., 342 N.W.2d 357, 359 (Minn. App. 1984) (holding that an employee committed misconduct by repeatedly failing to provide two hours’ notice of absences as required by employer). 

Here, Abdi had been counseled regarding his absences and tardiness and was told that he was to have “[n]o late call[s] and absen[ces] for 60 days” and that he “[m]ust call [the] office” if he was going to be late or absent.  Abdi contends that he never saw the report and was never told of this requirement, but the SURJ found that Abdi had been warned, and we defer to that determination.  Whitehead, 529 N.W.2d at 352.

The issue is whether Abdi’s absences and tardiness constitute misconduct within the meaning of the statute.  Abdi contends that his absences were due to medical emergencies involving his family.  Minn. Stat. § 268.095, subd. 6(a), provides that “absence because of illness or injury with proper notice to the employer[ is] not employment misconduct.”  The statute does not specify that the injury or illness be to the employee, rather than to a family member.  We have previously addressed the issue of whether a parent’s frequent absences to care for a sick child constitutes disqualifying misconduct.  McCourtney v. Imprimis Tech., Inc., 465 N.W.2d 721, 724-25 (Minn. App. 1991).  In McCourtney, we held that a mother’s frequent absenteeism because of a sick infant, despite good-faith efforts to obtain child care for the infant, which resulted in termination by her employer, was not misconduct disqualifying her from receiving unemployment-compensation benefits.  Id.; cf. Prickett v. Circuit Sci., Inc., 499 N.W.2d 506, 509 (Minn. App. 1993) (holding that “[f]ailure to report for a new shift assignment because of inability to obtain care for a dependent child is not misconduct if the employee makes a good-faith effort to obtain child care”), aff’d, 518 N.W.2d 602 (Minn. 1994).[3]

Nevertheless, an “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).  Thus, even if not willful or deliberate, a pattern of chronic and excessive absenteeism and tardiness may constitute misconduct.  Jones, 361 N.W.2d at 120. 

Here, Brown conceded that Abdi notified Smith Security whenever he was going to be absent, and the record contains documentation for some, but not all, of Abdi’s absences.  More importantly, however, Abdi had been warned about his absenteeism and tardiness and was told that he was to have “[n]o late call[s] and absen[ces] for 60 days” and that he “[m]ust call [the] office” if he was going to be late or absent.  Less than two weeks after this warning, Abdi was once again tardy, did not call his employer, and was considered a “no[-]call-no[-]show.”  Given Abdi’s work history and the recent warning, such behavior constitutes misconduct sufficient to disqualify him from receiving unemployment benefits.

The SURJ also found that Abdi “did not get along well” with his co-workers.  Brown expressed concern about this situation, noting that “if there were to be a ruckus at the account, we stood a chance . . . of losing the account itself and then all the guys would be out of work.”  The question is whether Abdi’s conduct constituted employment misconduct.

Pursuant to statute, “a single incident that does not have a significant adverse impact on the employer” is not disqualifying misconduct for unemployment-compensation purposes.  Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003) (emphasis added).  But here, the SURJ noted several incidents in which Abdi was not “getting along with” other employees.  Such repeated behavior does not fall within the statutory exception for a single act and violates the standard of behavior that an employer has the right to expect of its employees.  Cf. Snodgrass v. Oxford Props., Inc., 354 N.W.2d 79, 80 (Minn. App. 1984) (stating that an employee’s failure to cooperate with her employer indicates a willful disregard of her employer’s interests and violates the standards of behavior which the employer has the right to expect of its employees).  Thus, Abdi was properly disqualified from receiving benefits.

In addition, the SURJ found that Abdi “violated the employer’s policies and procedures and those of the client” by reading and using a cell phone while on duty.  Although Abdi testified that he “kn[e]w that they say you cannot read or you cannot . . . have [a] cell phone on duty and I know that policy so I [have] never done either,” the SURJ found the employer’s evidence to be more credible.  Our standard of review requires us to defer to this assessment.  Whitehead, 529 N.W.2d at 352.

The supreme court has stated that “[a]s a general rule, refusing to abide by an employer’s reasonable policies and requests amounts to disqualifying misconduct.”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Accordingly, the SURJ did not err by concluding that Abdi’s actions constituted misconduct disqualifying him from receiving unemployment compensation.

            Affirmed.