Opinion
No. A06-608.
Filed December 19, 2006.
Appeal from the Department of Employment and Economic Development, File No. 30906.
Dianne D. Norvell, (pro se relator).
Triangle Services, Inc., (respondent Triangle Services).
Linda A. Holmes, Lee B. Nelson, Minnesota Department of Employment and Economic Development, First National Bank Building, (for respondent Department of Employment and Economic Development).
Considered and decided by KALITOWSKI, Presiding Judge; LANSING, Judge; and DIETZEN, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
By writ of certiorari, Dianne Norvell appeals an unemployment law judge's (ULJ) determination that she was discharged for employment misconduct and is therefore disqualified from receiving unemployment benefits. Because substantial evidence supports the ULJ's determination that Norvell was discharged for repeated failure to follow her employer's reasonable procedure for providing notice of absence, we affirm.
FACTS
Triangle Services, a janitorial services provider, employed Dianne Norvell from August 29, 2003 until December 3, 2005. Triangle discharged Norvell after she was absent from work more than four times without providing proper notice. Triangle requires an employee who is unable to come to work to call in at least four hours before the start of the employee's shift. Triangle's policy also requires that the employee personally make the telephone call unless an emergency prevents a personal call.
Before December 1, 2005, Norvell received three written reprimands for not complying with Triangle's notice-of-absence policy. Each of the three times, Norvell failed to provide the required four-hour notice. In addition, for one of the absences, someone other than Norvell made the call. And, in another notice-of-absence call, Norvell's voice and another person's comments in the background indicated that Norvell was intoxicated. This series of written reprimands was preceded by several oral warnings for failure to comply with the notice-of-absence policy.
The final violation of the notice-of-absence policy occurred on December 1, 2005. On that day, one of Norvell's relatives telephoned to report that Norvell would not be coming to work because another relative had suffered a stroke. The call failed to comply with the personal-reporting requirement. Triangle tried unsuccessfully to reach Norvell several times during the three days after the phone call. When Norvell returned to work on December 4, 2005, her supervisor sent her home. Triangle terminated Norvell's employment the next day.
The Department of Employment and Economic Development determined that Norvell was disqualified from receiving unemployment benefits because she was discharged for employment misconduct. Following a hearing, an unemployment law judge found that, despite Triangle's warnings, Norvell was repeatedly absent from work without giving proper notice and was therefore disqualified because of employment misconduct. Norvell appeals.
DECISION
A discharge for employment misconduct results in disqualification from unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (Supp. 2005). "Employment misconduct" is intentional, negligent, or indifferent conduct that clearly displays either "a serious violation of the standards of behavior the employer has the right to reasonably expect" or "a substantial lack of concern for the employment." Id., subd. 6(a) (2004). Whether an employee committed a particular act is a fact question, but whether the act constitutes employment misconduct is a question of law. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). We affirm the determination of an unemployment law judge (ULJ) unless it is unsupported by substantial evidence or relies on an error of law. Minn. Stat. § 268.105, subd. 7(d)(4)-(5) (Supp. 2005).
An employer has the right to establish and enforce reasonable rules governing absences from work. Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn.App. 1985). Refusal to abide by an employer's reasonable policies and requests ordinarily amounts to employment misconduct. McGowan v. Executive Express Transp. Enters., 420 N.W.2d 592, 596 (Minn. 1988). Consequently, repeated failure to comply with an employer's notice-of-absence policy will result in the denial of unemployment benefits. Edwards v. Yellow Freight Sys., 342 N.W.2d 357, 359 (Minn.App. 1984) (affirming determination of employment misconduct and denial of benefits for employee's repeated failure to comply with notice-of-absence policy).
The ULJ found that after receiving several oral warnings for violation of Triangle's notice-of-absence policy, Norvell received written reprimands and warnings for three separate violations before termination of her employment after a fourth violation on December 1, 2005. The ULJ further found that Norvell's failure to give proper notice caused Triangle, a contract services provider, to incur overtime payments to other employees who filled in for Norvell.
Norvell acknowledges that she understood that she was required to call in personally four hours in advance of any work absence. In her brief, she also does not directly dispute her failure to comply with the policy in the four instances that provided a basis for her termination.
Instead, Norvell contends that Triangle should have given her another chance because she was a good employee and had trained many new hires during her two years with the company. She also contends that it was unfair for Triangle to terminate her employment based on the December 1 incident because she had a close relationship with her aunt who had suffered a stroke. She acknowledges that she was required to make the call herself but states she was having emotional problems because of her aunt's medical condition. Norvell claims that she did not return Triangle's follow-up phone calls over the next several days because she did not receive the messages. Triangle does not dispute that Norvell's aunt's condition was a valid reason for Norvell's absence but points to the repeated violations of the notice-of-absence policy, including the failure to make the phone call herself on December 1.
We conclude that substantial evidence supports the ULJ's findings and the determination that Norvell failed to follow Triangle's established and reasonable policy for providing notice for employee absences and that this failure constituted employment misconduct. Triangle does not contend that Norvell's work was deficient or that she failed to provide valuable service during her employment. But failure to comply with an employer's reasonable notice-of-absence policy is a recognized basis for disqualification for unemployment benefits. See Jones, 361 N.W.2d at 120 (concluding that pattern of violations related to absences may constitute employment misconduct regardless of reason for employee's absence on last day of work). The record indisputably establishes that Norvell repeatedly violated that policy.