Opinion
No. C9-99-267.
Filed August 24, 1999.
Appeal from the Department of Economic Security, File No. 7746UC98.
Janet M. Wingad, (pro se relator)
Gary L. Huusko, (for respondent R D Batteries Inc.)
Kent E. Todd, (for respondent Commissioner of Economic Security)
Considered and decided by Crippen, Presiding Judge, Short, Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Janet M. Wingad received approval from R D Batteries Inc. (employer) to use five days of vacation time and six weeks of maternity leave for the birth of her child. When Wingad did not return on the expected date, the employer discharged her. The Department of Economic Security determined that Wingad was disqualified from receiving reemployment insurance benefits because she was discharged due to misconduct. By writ of certiorari, Wingad appeals from the commissioner's representative's decision of ineligibility. We affirm.
DECISION
The reemployment insurance fund is available only to persons involuntarily "unemployed through no fault of their own." Minn. Stat. § 268.03, subd. 1 (1998). A claimant is disqualified from benefits if the claimant was discharged from employment due to misconduct that adversely affected that employment. Minn. Stat. § 268.095, subd. 4(1) (1998); see also Minn. Stat. § 268.095, subds. 5, 6 (1998) (defining discharge and misconduct). We will not disturb a determination by the commissioner's representative that a claimant committed misconduct if the evidence reasonably sustains the decision and it is not contrary to the law. Colburn v. Pine Portage Madden Bros. , 346 N.W.2d 159, 161 (Minn. 1984); see Lolling v. Midwest Patrol , 545 N.W.2d 372, 377 (Minn. 1996) (noting appellate review of commissioner's factual findings is limited and viewed in light most favorable to decision).
Wingad argues the commissioner's findings and conclusion that she committed misconduct were without record support. See Minn. Stat. § 268.095, subd. 6(1) (defining "misconduct" as intentional conduct showing disregard to employer's interests). The record demonstrates: (1) Wingad was familiar with the employee handbook that describes forfeiture of her job if she failed to return from maternity leave and the requirement that she call her supervisor each day she used sick time; (2) the employer granted Wingad's request for five days of vacation time and six weeks of maternity leave to be used from August 18, 1998 through October 5, 1998; (3) the employer repeatedly communicated its expectation that Wingad would return to full-time work on October 6, 1998; (4) the employer informed Wingad that requests for sick time would not be granted if she was not sick; (5) on October 5, 1998, Wingad delivered a letter to the employer stating she was taking additional sick leave because her doctor believed "it would be helpful for [Wingad] to delay her return to work until 10/13 because she is breast feeding" and that she would return to work on October 13, 1998, in a part-time status; and (6) Wingad did not return to work on October 6, 1998, nor did she call in sick to the employer on that date. Wingad argues she was scheduled to return to work on October 7, 1998, but the transcript demonstrates the employer notified her and she understood her expected return date was October 6, 1998. Because Wingad was repeatedly notified by her employer of her expected return date but failed to contact her employer in compliance with the employee handbook or to show up on her expected return date, she deliberately chose a course of action that was adverse to the interests of her employer. See Colburn , 346 N.W.2d at 161 (concluding misconduct occurs when employee deliberately chooses course of action adverse to employer); Del Dee Foods, Inc. v. Miller , 390 N.W.2d 415, 418 (Minn.App. 1986) (noting that except in certain limited circumstances, employee engages in "misconduct" if absent even once without notifying employer); Fresonke v. St. Mary's Hosp. , 363 N.W.2d 328, 330 (Minn.App. 1985) (determining employee was discharged for misconduct because employee's failure to return to work following medical leave of absence was in deliberate and direct contravention of employer's directive to return to work, and employee failed to properly seek additional medical leave). Although Wingad argues breast feeding is a serious illness that excepts her from misconduct, she failed to support her argument with any medical documents or legal support. See Minn. Stat. § 268.095, subd. 4(1) (defining serious illness exception to misconduct); State v. Modern Recycling, Inc. , 558 N.W.2d 770, 772 (Minn.App. 1997) (quoting Schoepke v. Alexander Smith Sons Carpet Co. , 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) for conclusion that assignment of error in brief based on mere assertion and not supported by argument or authority is waived unless error is obvious on mere inspection). Given these facts and the scope of our review, we conclude the evidence supports the commissioner's representative's findings of fact and determination that Wingad was discharged due to misconduct.
Wingad argues the commissioner's representative erred by denying her request to remand for the purpose of obtaining the testimony of her former supervisor, which would rebut the determination of misconduct. But we conclude the commissioner's representative did not err by refusing to remand for additional testimony solely because Wingad did not present all the testimony she now feels would have been helpful. See Drellack v. Inter-County Community Council, Inc., 366 N.W.2d 671, 675 (Minn.App. 1985) (holding commissioner was within its discretion in refusing to remand to referee when relator had opportunity to submit evidence to referee); Schultz v. Machovec Food Market , 358 N.W.2d 155, 156 (Minn.App. 1984) (stating "[t]he Commissioner did not err by refusing to remand the matter for additional testimony solely because relator was not represented by counsel and did not present all the testimony it now feels would be helpful").