This opinion will be unpublished and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

A05-281

 

James M. Decker ,

Relator,

 

vs.

 

Von Hanson Meats & More, Inc.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

 

Filed November 15, 2005

Affirmed

Toussaint, Chief Judge

 

Department of Employment and Economic Development

Agency File No. 16306 04

 

 

James M. Decker, 3956 30th Avenue South, Minneapolis, MN 55406 (pro se relator)

 

Von Hanson Meats & More, Inc., 2018 Ford Parkway, St. Paul, MN 55116 (respondent)

 

Linda Alison Holmes, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent DEED)

 

 

            Considered and decided by Toussaint, Chief Judge; Randall, Judge; and Willis, Judge.

 

U N P U B L I S H E D  O P I N I O N

TOUSSAINT, Chief Judge

 

             Relator James M. Decker challenges the decision of the senior unemployment review judge (SURJ) that relator is disqualified from receiving benefits because he was discharged for misconduct.  Because evidence supports the SURJ’s findings, we affirm.

D E C I S I O N

Relator worked for respondent Von Hanson Meats & More, Inc. from February to August 2004, when he was discharged.  A department adjudicator determined that relator was not entitled to unemployment benefits because he was discharged for misconduct, and relator appealed.  Pursuant to Minn. Stat. § 268.105, subd. 1 (2004), an unemployment law judge (ULJ), after conducting an evidentiary hearing, affirmed that determination.  Relator appealed again, and a SURJ, pursuant to Minn. Stat. § 268.105, subd. 2(c) (2004), conducted de novo review and independently concluded relator was discharged for employment misconduct.

            Misconduct is defined as “any intentional, negligent, or indifferent conduct . . . (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee . .  . .”  Minn. Stat. § 268.095, subd. 6(a) (2004).  This court reviews the SURJ’s factual findings in the light most favorable to the decision and will not disturb them if there is evidence that reasonably tends to sustain them. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether an employee’s conduct disqualifies the employee from unemployment benefits is a mixed question of fact and law.  Id.  However, whether a particular act constitutes disqualifying misconduct is a question of law, which this court reviews de novo.  Id.

             “This court has recognized the employer’s right to establish and enforce reasonable work rules relating to absenteeism.”  Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985).  Respondent’s employee handbook provided that employee attendance “is key to meeting customer demand.”  To enforce this policy, “Employees must directly contact their location manager before the start of their shift if they will not be in to work.  If the location manager is not available, a message must be left with a telephone number where they can be reached.”  It further stated that, “Actions which may violate [respondent’s] expectations include . . . [l]ess than satisfactory attendance and punctuality, including reporting procedure violations . . . .”

            Relator was discharged for unsatisfactory attendance, specifically for not showing up and not calling in on three dates: April 18, May 28, and August 4, 2004.  While he disputes the documentary evidence and respondent’s owner’s testimony on the first two dates, he agrees with respondent’s account of what happened on August 4, when relator was scheduled to work.  The SURJ found that “[relator] did not call in or arrange for someone to call in on his behalf to report he would be absent because he was incarcerated on an outstanding arrest warrant.”  Relator testified that he was picked up by the police around midnight on August 3, held for a few hours on a Nebraska charge, and released, and that he did not call in to work until August 5.  Therefore, relator’s testimony supports the finding. A single incident that has a significant adverse impact on the employer may constitute misconduct.  Minn. Sta. 268-095, subd. 6(a); see also Del Dee Foods, Inc. v. Miller, 390 N.W.2d 415, 418 (Minn. App. 1986) (“[A]n employee engages in misconduct if he is absent even once without notifying his employer.”).  This incident alone was grounds for determining that relator was discharged for misconduct.

            For the two previous incidents, the SURJ found that relator had not shown up to work when he was scheduled, had not called in before the start of his shift, and had been warned about his absences.  The testimony of respondent’s owner, which the SURJ found more credible, supports the SURJ’s findings, and the record includes two written warnings describing the offenses and bearing relator’s signature.  

            Respondent’s handbook set out the expectation that employees would be at work when scheduled and would call in if they would be absent; it stated clearly that unsatisfactory attendance and failure to report an absence would violate respondent’s expectations.

            The record supports the SURJ’s finding that relator was discharged for misconduct and the conclusion that he is ineligible for unemployment benefits.

            Affirmed.