A05-1644

Bradley W. Malinowski,

Relator,

vs.

Slumberland, Inc.,

Respondent,

Department of Employment and Economic Development,

Respondent.

Filed July 25, 2006

Affirmed

Parker, Judge*

Department of Employment and Economic Development

File No. 669205

Bradley W. Malinowski, 2301 Ogden Avenue, Superior, WI 54880-4932 (pro se relator)

Slumberland, Inc., Duluth Location, 3060 Centerville Road, Little Canada, MN 55117-1105 (respondent employer)

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 Hudson, Presiding Judge; Kalitowski, Judge; and Parker, Judge.

U N P U B L I S H E D O P I N I O N

PARKER, Judge

Relator challenges the senior unemployment review judge’s (SURJ) decision that he was disqualified from receiving unemployment benefits because he had been discharged for employment misconduct after failing to complete employer-mandated chemical-dependency treatment in a timely fashion. We affirm.

D E C I S I O N

On certiorari appeal, we review the decision by the SURJ. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). The question of whether an employee engaged in employment misconduct is a mixed question of fact and law. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).

Factual findings

The SURJdetermines the fact question of whether an employee committed the alleged acts of misconduct. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). We review the SURJ’s findings under a clearly erroneous standard. Schmidgall,644 N.W.2d at 804. The SURJ’s findings are viewed in the light most favorable to the decision and will not be disturbed if there is evidence that reasonably tends to sustain them. Id. Deference is given to the SURJ’s ability to weigh the evidence and make credibility assessments, and we will not consider the weight of conflicting evidence on review. Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

Relator Bradley W. Malinowski worked for respondent Slumberland Inc. (Slumberland) as a sales associate. In October 2004, it was reported to Slumberland that relator smelled of alcohol while working. Relator submitted to a reasonable-suspicion drug test, which returned positive for cocaine. Relator was told to complete a substance-abuse evaluation and recommendations. It was recommended that relator complete a six-to-eight-week outpatient-treatment program and aftercare. On February 9, 2005, relator’s counselor wrote to Slumberland with notice that relator was discharged from treatment due to his inability to comply with the group’s expectation. Relator’s counselor did not have the correct address, and Slumberland did not receive the letter until March 29, 2005. Relator was discharged on the same day for failing to complete the program.

During a telephone hearing, relator admitted that he had been discharged from outpatient treatment after he received a DWI and after his counselor saw him drinking at a bar. Relator argued, however, that he completed the program and was going to begin aftercare in April. Relator testified that he completed the fourth step in the five-step program before being discharged and that he was to complete the fifth step on his own. Although relator claimed to have completed the program, he was unable to provide documentory support. A discharge summary indicated that relator completed all required assignments, but indicated that relator relapsed while working on the fourth step, was permitted to continue treatment, relapsed again, and then was discharged. The SURJ found that after two relapses, relator was discharged from treatment for failing to comply with group expectations. The evidence supports the SURJ’s finding that relator was discharged for failing to comply with group expectations after relapsing twice.

Employment misconduct

The SURJ decided that relator was discharged for failing to complete treatment, which constituted employment misconduct that disqualified relator from the payment of unemployment benefits. This court reviews de novo, as a question of law, whether a particular act constitutes employment misconduct that disqualifies an applicant from receiving unemployment benefits. Schmidgall, 644 N.W.2d at 804.

An employee who is discharged for misconduct is disqualified from benefits. Minn. Stat. § 268.095, subd. 4 (2004). Employment misconduct is “any intentional, negligent, or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment.” Minn. Stat. § 268.095, subd. 6(a) (2004).

Relator was discharged after he failed to complete employer-mandated chemical-dependency treatment successfully. An employee’s refusal to comply with an employer’s request is misconduct if that request is reasonable and not unduly burdensome. Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985). After relator tested positive for cocaine, he was told to attend treatment. Relator relapsed twice and was discharged from treatment before completion. Despite relator’s claim that he successfully completed the program, the record shows that he was discharged before he completed the fifth step of the outpatient program and was delayed in beginning aftercare.

Further, “[a]s a general rule, refusing to abide by an employer’s reasonable policies and requests amounts to disqualifying misconduct.” Schmidgall, 644 N.W.2d at 804. When relator was hired, he received a copy of Slumberland’s drug and alcohol policy. The policy provided that Slumberland expected employees to “observe company prohibitions against the presence of drugs or alcohol on the premises.” Relator was tested for drugs after he smelled of alcohol at work. The test results were positive for cocaine use. Slumberland’s policy also provided that “an employee may be terminated for . . . fail[ure] to successfully complete chemical dependency counseling or a rehabilitation program, when recommended by a health care professional.” While relator began treatment in November 2004, by February 2005, he had relapsed twice and was discharged before completion. Relator was required to complete all recommended treatment, including aftercare; thus, relator failed to successfully complete the recommended treatment in a timely manner.

Relator also argues that Slumberland waited too long to discharge him because his counselor wrote the discharge letter on February 9, 2005. But the record shows that Slumberland did not receive that letter until March 29, 2005, because the letter was returned to the sender twice due to an incorrect address. Further, Slumberland indicated that it needs written communication before it can terminate an employee. We will affirm the SURJ’s determination if the findings are supported by the evidence and the conclusion based on those facts is consistent with the statutory mandate. See Colburn v. Pine Portage Madden Bros. Inc., 346 N.W.2d 159, 161 (Minn. 1984). The evidence supports the SURJ’s findings. Relator was discharged after he failed to successfully complete chemical-dependency treatment in a timely manner. That failure constitutes employee misconduct; thus, relator is disqualified from receiving unemployment benefits.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.