Opinion
No. C2-02-1501.
Filed: April 8, 2003.
Appeal from Department of Economic Security, File No. 21402.
Daniel R. Trost, Schreiber Jarstad, (for relator)
Wackenhut Corporation, The (1995) Monticello Loc, c/o Sheakley Uniservice, Inc., (for respondent Wackenhut Corporation)
Linda A. Holmes, (for respondent Department of Economic Security)
Considered and decided by Kalitowski, Presiding Judge, Minge, Judge, and Hudson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Relator challenges the determination that he was discharged for employment misconduct and therefore disqualified for unemployment benefits. Because the record supports the finding of employment misconduct, we affirm.
DECISION
Whether an employee engaged in disqualifying misconduct is a mixed question of fact and law. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). Findings of fact will be reviewed in the light most favorable to the decision. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996). These findings will not be disturbed as long as evidence in the record reasonably tends to sustain them. Schmidgall, 644 N.W.2d at 804. But whether the particular act at issue constitutes disqualifying misconduct will be reviewed de novo as a question of law. Id.
An employee who is discharged for misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2000). Employment misconduct is defined in relevant part as
any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee's duties and obligations to the employer.
Id., subd. 6(a)(1) (2000). To meet this standard, the employee's conduct must "(1) be intentional and (2) disregard standards of behavior the employer has a right to expect or the employee's duties and obligations to the employer." Houston v. Int'l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).
An employee's decision to knowingly violate a reasonable policy or directive may be misconduct, particularly "when there are multiple violations of the same rule involving warnings or progressive discipline." Schmidgall, 644 N.W.2d at 806-07 (citation omitted). An employee who takes time off from work after the employer denied the request or who fails to return to work as directed has been deemed to have engaged in misconduct. Del Dee Foods, Inc. v. Miller, 390 N.W.2d 415, 417 (Minn.App. 1986). If, however, the employee is absent from work due to illness and has properly notified the employer, the employee has not committed employment misconduct. Minn. Stat. § 268.095, subd. 6(b) (2000).
Leon Quarve, the relator, was employed by the Wackenhut Corporation, the respondent, as an armed security guard at a nuclear power plant. He had requested a specific vacation day. Since employees with greater seniority had previously asked for that day off, Wackenhut denied his request. On the morning of that day, Quarve called in sick. Because of the denied vacation request and because Quarve had been previously warned and suspended for improper use of sick leave, Wackenhut was suspicious he was not actually sick. His supervisor told him to go to the doctor if he was ill, but to report in to work if he was not ill. Because Quarve was not ill but only fatigued from working 12-hour shifts on several consecutive days and because he wished to assist his son who had been jailed, he refused to see a doctor. He then missed the day of work. He subsequently told Wackenhut that it could fire him, allow him to return to work, or suspend him. Wackenhut discharged Quarve for insubordination and unwillingness to cooperate. The commissioner's representative concluded that Quarve had been discharged for misconduct because he lied when he called in sick and because he failed to comply with a reasonable request that he see a doctor. Consequently, Quarve was disqualified from receiving unemployment benefits.
Quarve contends that the credible, competent evidence in the record fails to establish that he engaged in employment misconduct. We first address his claim that testimony by Wackenhut's manager and a statement contained within the department's report should not have been considered because they were hearsay. Hearsay evidence is admissible at unemployment insurance hearings "if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs." Minn. R. 3310.2922 (2001). Further, a report by a department employee "shall be competent evidence of the facts contained in it." Minn. Stat. § 268.105, subd. 1(b) (2000). The commissioner's representative properly considered this evidence.
Next, Quarve contends that there is no evidence to support the finding that he was suspended in August 1999 for attendance violations relating to calling in sick after previous requests for vacation had been denied. But testimony from Wackenhut's two witnesses as well as Quarve's own statement to the department support this finding.
Quarve next challenges the weight the representative gave to his written statement to the department about one week after his discharge, contending that the representative took a portion of the statement out of context. Further, he asserts that because he gave the statement after his discharge, it could not have been used as the basis for Wackenhut's decision. "A decision regarding the credibility of witnesses rests within the discretion of the Commissioner, and the testimony should not be reweighed on appeal." Youa True Vang v. A-1 Maintenance Serv., 376 N.W.2d 479, 482 (Minn.App. 1985) (citation omitted). We defer to the commissioner's representative as to the weight given this statement.
Finally, Quarve asserts that although the manager testified that Quarve was terminated based on a level 1 violation of the policy and insubordination, Wackenhut failed to submit any evidence as to its policies or accepted practices. Instead, Quarve contends that the evidence showed that he called in sick after five days of working twelve-hour shifts and was terminated for not providing a doctor's excuse. He asserts that there is no showing that requiring a doctor's excuse for calling in sick from fatigue was reasonable or an accepted employer practice. In notifying Quarve of his discharge, Wackenhut stated:
After complete review and investigation of pertinent information related to your call-off on 10/27/01, it has been determined that a Level I Violation: Insubordination; the willful refusal to carry out proper work related instructions by management or supervision has taken place. Because of your unwillingness to cooperate with an accepted practice (as agreed upon by UGSOA and TWC Management Personnel), your employment is subsequently terminated.
The commissioner's representative considered Quarve's arguments and rejected them.
The findings as a whole are reasonably supported by the evidence and the commissioner committed no error in determining that Quarve had been discharged for employment misconduct and was disqualified from receiving unemployment compensation.