This opinion will be unpublished and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

A05-1559

 

Reginald J. Domineck,

Relator,

 

vs.

 

The Bedding Group,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed March 28, 2006

Affirmed

Stoneburner, Judge

 

Department of Employment and Economic Development

File No. 361405

 

Reginald J. Domineck, 3731 Pierce Street Northeast, Columbia Heights, MN 55421 (pro se relator)

 

Jennifer S. Frank, Lindquist & Vennum, PLLP, 80 South Eighth Street, Suite 4200, Minneapolis, MN 55402 (for respondent The Bedding Group)

 

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

 

            Considered and decided by Willis, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

STONEBURNER, Judge

            Relator challenges the determination of the senior unemployment review judge (SURJ) that he committed misconduct.  Because we conclude that relator’s act in submitting false information on his timecard was misconduct, we affirm.

FACTS

Relator Reginald Domineck worked for respondent The Bedding Group.  Respondent, a union employer, does not offer paid sick leave, although employees who have been out sick may later ask to have the time they missed treated as vacation.  Respondent’s Company Rules of Conduct provide that “[t]he following offenses (upon first occurrence) may be cause for immediate dismissal (without prior warning) at the discretion of Company Management . . . . Unauthorized alteration of time cards.” 

Relator was discharged because he indicated on his timecard that he had worked three days when he had actually been out sick.  When he established a benefit account, a department adjudicator determined that he was discharged for misconduct and was disqualified from receiving benefits.  Relator appealed, and an unemployment law judge, after a telephone hearing and de novo review of the matter, affirmed that determination.  Relator appealed again, and a senior unemployment law judge (SURJ) conducted de novo review and affirmed.

D E C I S I O N

A determination that an employee is not entitled to benefits for reasons of misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).  But whether an employee’s acts constitute misconduct is a question of law, which this court reviews de novo.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). 

Misconduct is defined as “any intentional. . .conduct . . . 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).  Submitting false information on a timecard has been held to be misconduct.  See McKee v. Cub Foods, Inc., 380 N.W.2d 233, 236 (Minn. App. 1986) (holding that employee’s punching out on her time card after she had been shopping, not working, was misconduct).  More generally,“[d]ishonesty that is connected with employment may constitute misconduct.” Baron v. Lens Crafters, Inc., 514 N.W.2d 305, 307-08 (Minn. App. 1994)(finding misconduct when employee who had trained only some store managers said he had trained all store managers); see also Cherveny v. 10,000 Auto Parts, 353 N.W.2d 685, 688 (Minn. App. 1984)(employee’s dishonest answers to questions employer asked while investigating alleged employee theft were misconduct). 

Relator’s timecard shows that he wrote in start and quit times for three days when he had called in sick.  He testified that he intended to be paid for those days because he thought he was entitled to paid sick leave.  But the union contract under which relator worked does not provide sick leave.  Respondent’s plant manager testified, “Every union employee has a copy of the contract, and the contract has been gone through . . . several times during [relator’s] employment here, and he’s well aware that he did not have sick days.”  The plant manager further testified that, during relator’s termination conference, he told relator, “[Y]ou know you don’t have sick days, and . . . the union steward, . . . who was also present, . . . said, yeah, there’s no sick days.”

Relator testified that, if he could not be paid for the days he was out as sick leave, he wanted to be paid for them as vacation days. The plant manager testified, “It’s the company’s practice and my practice that if an individual is sick and wants to come to me after the sick day and talk to me about maybe taking vacation days for those days, I have approved that in the past.”  But he added, “[i]n [relator’s] case, I was not approached at all” and that, when relator was terminated, “[t]here was no mention of a vacation at that point.” Moreover, relator wrote hours on his timecard and submitted the timecard without either telling anyone that those hours were vacation or annotating the timecard to indicate vacation.  Relator’s action was conduct that disregarded the standard his employer had a right to expect and misconduct within the meaning of Minn. Stat. § 268.095, subd. 6(a). 

            Affirmed.