Opinion
No. C5-00-2220.
Filed August 14, 2001.
Appeal from the Department of Economic Security, File No. 642100.
Sonia S. Steiner, (pro se relator)
White Wolf, North Country, Inc., (respondent)
Kent E. Todd, (for Commissioner)
Considered and decided by Lansing, Presiding Judge, Harten, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Relator challenges a determination by the commissioner's representative that she is disqualified from receiving unemployment benefits. Because the record reasonably supports the commissioner's representative's determination that relator was discharged for misconduct, we affirm.
FACTS
Relator Sonia Steiner began part-time employment with respondent White Wolf in June 1997. Steiner was an hourly employee until March 2000, when she agreed she would work at least 40 hours per week and become a salaried employee. During March, April, and May 2000, Steiner worked fewer than 40 hours per week. In May 2000, White Wolf's owner, Steve Kopesky, warned Steiner that if she wanted to remain a salaried employee she would have to work at least 40 hours per week as they had agreed. Despite this warning, Steiner worked fewer than 40 hours per week in June 2000, and Kopesky terminated her employment after learning that she had scheduled herself to work only 12 days in July.
Steiner applied for unemployment benefits. The Department of Economic Security determined that Steiner was disqualified from receiving benefits because her acts constituted employment misconduct. She appealed, and an unemployment-law judge affirmed the department's decision. The commissioner's representative affirmed the unemployment-law judge, and Steiner appeals to this court by writ of certiorari.
DECISION
Appellate review in economic-security cases is narrow. McGowan v. Executive Express Transp. Enters., 420 N.W.2d 592, 594 (Minn. 1988). When reviewing a determination of the commissioner's representative, appellate courts must consider whether there is reasonable support in the record to sustain the determination. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).
An individual who is discharged for misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2000). Whether an employee has engaged in disqualifying misconduct is a mixed question of fact and law. McCourtney v. Imprimis Tech., Inc., 465 N.W.2d 721, 724 (Minn.App. 1991). The determination of whether the employee committed a particular act or acts is a question of fact. Tilseth v. Midwest Lumber Co., 295 Minn. 372, 375, 204 N.W.2d 644, 645-46 (1973); Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn.App. 1997). Reviewing courts will not disturb the commissioner's representative's factual findings when, viewed in the light most favorable to the decision, those findings are reasonably supported by the evidence. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996). But whether the act or acts constitute misconduct is a question of law on which appellate courts are free to exercise their independent judgment. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).
Misconduct disqualifying an employee from receiving unemployment benefits includes:
(1) 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; or
(2) negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.
Minn. Stat. § 268.095, subd. 6(a) (2000).
Steiner contends that she was discharged because White Wolf was downsizing, not because she failed to work 40 hours per week. Steiner raises the issue of downsizing for the first time on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (noting that reviewing courts do not consider matters not argued and considered in court below). But even if we were to consider Steiner's claim, the record shows that White Wolf hired a salesperson shortly before it terminated Steiner's employment, suggesting that White Wolf was not downsizing.
Kopesky testified that Steiner failed to work at least 40 hours per week during May 2000 and June 2000 and that she scheduled herself to work only 12 days in July 2000. And White Wolf submitted scheduling sheets showing that there were at least 12 weeks in the period from March 2000 through the end of June 2000 when Steiner scheduled herself to work fewer than 40 hours. Steiner asserts that she did in fact work 40 hours or more per week until her employment was terminated. The commissioner's representative determined that Steiner worked "substantially less than 40 hours per week," and the record supports that conclusion.
Steiner's failure to work at least 40 hours per week showed a disregard for the standards of behavior that White Wolf had a right to expect from her and a disregard for her duties and obligations. See Gilkeson v. Industrial Parts Serv., Inc., 383 N.W.2d 448, 452 (Minn.App. 1986) (concluding that employee committed misconduct by failing to follow policies and ignoring directions and requests); Smith v. American Indian Chem. Dependency Diversion Project, 343 N.W.2d 43, 45 (Minn.App. 1984) (noting that employer has right to expect an employee to work when scheduled and that absenteeism is misconduct). The record reasonably supports the commissioner's representative's determination that Steiner's acts constituted disqualifying misconduct.