Sharmarke Ahmed, Relator, vs. Kaiser Contract Cleaning Specialists, Inc., Respondent, Department of Employment and Economic Development, Respondent.

Sharmarke Ahmed, Relator, vs. Kaiser Contract Cleaning Specialists, Inc., Respondent, Department of Employment and Economic Development, Respondent. A04-2177, Court of Appeals Unpublished, September 6, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2177

 

Sharmarke Ahmed,

Relator,

 

vs.

 

Kaiser Contract Cleaning Specialists, Inc.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed September 6, 2005

Affirmed

Kalitowski, Judge

 

Department of Employment and Economic Development

File No. 11026 04

 

Amy B. Mohberg, Central Minnesota Legal Services, 830 West St. Germain, Suite 309, P.O. Box 1598, St. Cloud, MN 56302 (for relator)

 

Kaiser Contract Cleaning Specialists Inc., P.O. Box 340, Kieler, WI 53812-0340 (respondent)

 

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 Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Relator Sharmarke Ahmed challenges the determination of the senior unemployment review judge that he is disqualified from receiving unemployment benefits because he was discharged for employment misconduct.  We affirm.

D E C I S I O N

            Appellate courts review the decision of the senior unemployment review judge (SURJ) rather than the decision of the unemployment law judge.[1]  Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).  And considerable deference is given to the SURJ's decision.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Appellate courts defer to the SURJ's findings of fact if they are reasonably supported by the evidence in the record.  Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  And these findings will only be disturbed if the record could not reasonably tend to support them.  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002). 

An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2003).[2]  The applicable statutory definition for employment misconduct provides:

Employment misconduct means any intentional, negligent, or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment.

Inefficiency, inadvertence, simply unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, good faith errors in judgment if judgment was required, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.

 

Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003) (emphasis added).  Thus, absence due to injury is not considered misconduct if "proper notice" is given to the employer.  But an employee who does not give proper notice of his absence and fails to comply with company attendance policies demonstrates a lack of concern for the employment and commits disqualifying misconduct.  See Edwards v. Yellow Freight Sys., 342 N.W.2d. 357, 359 (Minn. App. 1984).

            Here, the SURJ found that relator failed to provide proper notice and did not comply with respondent's attendance policy requiring employees to call in absences.  The SURJ determined that relator's actions constituted a substantial lack of concern for his employment and violated the employer's reasonable expectations.  Thus, relator's conduct constituted employment misconduct under the statute.

These findings of fact are amply supported by the record.  The employer's supervisor testified that relator had not called in during any of the days he was scheduled to work and that relator had not produced the doctors' notes when he was asked to do so.  Although relator disputed this testimony, the SURJ found the employer's testimony to be more credible than relator's testimony on these issues.  And when the record contains conflicting testimony, "this court must defer to the [senior unemployment review judge's] ability to weigh the evidence; we may not weigh that evidence on review." Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

Here, the record supports the SURJ's determination.  Importantly, the SURJ's determination of misconduct is not based merely on relator's absences due to illness.  Rather, the decision focused on relator's responsibility to provide proper notice and on the employer's reasonable expectations regarding compliance with its attendance call-in policy.

            We conclude that the record supports the determination of the SURJ that relator was discharged for misconduct and was therefore disqualified from receiving unemployment benefits.

            Affirmed.

[1] The legislature recently substituted the term "senior unemployment review judge" for the representative of the commissioner.  2004 Minn. Laws ch. 183, § 71.

[2] The revisor's office inadvertently substituted the term "ineligible for" for the term "disqualified from" in Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (Supp. 2003).  See Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (2002) (using term "disqualified from"); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 11 (making other changes to Minn. Stat. § 268.095, subd. 1, but retaining term "disqualified from"); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 20(j), (k) (directing revisor to change the term "disqualified from" to "ineligible for" only in Minn. Stat. § 268.095, subd. 12, and then to renumber to Minn. Stat. § 268.085, subd. 13b).