This opinion will be unpublished and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

A05-1654

 

Randy L. Busch,

Relator,

 

vs.

 

Sealing Systems, Inc.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed April 25, 2006

Affirmed

Kalitowski, Judge

 

Department of Employment and Economic Development

File No. 126505

 

Randy L. Busch, 823 Cortland Circle, Shakopee, MN 55379 (pro se relator)

 

Sealing Systems Inc., 23230 West Thomess Boulevard, Loretto, MN 55357-2113 (respondent)

 

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

 

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

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Relator Randy Busch challenges the decision of the senior unemployment review judge that Busch is disqualified from unemployment benefits because he was discharged for misconduct.  We affirm. 

D E C I S I O N

Relator worked as a salesman for respondent Sealing Systems Inc., from June 2003 until November 2004, when he was discharged.  He applied for unemployment benefits, and a department adjudicator determined that he was qualified to receive benefits because his discharge was not for misconduct.  Respondent appealed, and after a telephone hearing and de novo review, an unemployment law judge (ULJ) determined that relator was disqualified from receiving benefits because he had been discharged for misconduct.  Relator appealed; following de novo review, a senior unemployment review judge (SURJ) affirmed the ULJ’s decision.

            Misconduct includes “any intentional, negligent, or indifferent conduct, on the job or off the job . . . 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 definition is exclusive; no other definition applies.  Minn. Stat. § 268.095, subd. 6(e) (2004).  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).  But factual findings are reviewed in the light most favorable to the decision and will not be disturbed if there is evidence that “reasonably tends to sustain” them.  Id. 

            Relator worked on Monday, November 1.  On Tuesday, November 2, relator called in after the start of the workday to say he would not be in.  On Wednesday, November 3, relator went to work but devoted a significant part of the day to making arrangements for a business he ran on the side.  On Thursday, November 4, relator again called in after the start of the workday to say he would not be in.  Respondent’s president told relator that, unless he came in on Friday, November 5, he would be fired.  Relator, who had been in the habit of working for respondent from home on Fridays, declined to come in on Friday and was fired.

            Relator testified that he had not worked on his own business on Wednesday.  But in his brief, relator acknowledges that he “spent a portion of that work day [Wednesday] engaged in activities related to his own business ventures.”  The SURJ found that “[respondent’s] marketing manager provided the more credible testimony [that relator] spent approximately half of that workday lining up work for his own business.”    Respondent’s president testified that he had no recollection of relator saying he was sick when he called in on Thursday.  Relator testified, “I do not recall why I missed on Thursday.  I have no idea why actually, but I did call and I talked to [respondent’s president] again that day to tell him, I think I might have been sick that day, actually.”  The SURJ found that “[b]ecause of [relator’s] inconsistent testimony we don’t find [his] testimony [that] he called in sick believable.”  The evidence reasonably tends to sustain the SURJ’s findings.  See id.

            Relator’s decision to work on his own business when he had punched in on respondent’s time clock violated “the standards of behavior [respondent] ha[d] the right to reasonably expect of [him].”  See Minn. Stat. § 268.095, subd. 6(a)(1).  In addition, relator’s decision not to come in to work on Friday in a week in which he had already taken two days off, after being told that this would result in his discharge, “display[ed] clearly a substantial lack of concern for [his] employment.”  See id., subd. 6(a)(2).  Thus, the SURJ properly determined that relator was disqualified from receiving benefits because he had been discharged for misconduct. 

            Affirmed.