Sharon Y. Young, Relator, vs. Cavalry Portfolio Services LLC, Respondent, Department of Employment and Economic Development, Respondent.

Sharon Y. Young, Relator, vs. Cavalry Portfolio Services LLC, Respondent, Department of Employment and Economic Development, Respondent. A04-2501, Court of Appeals Unpublished, October 4, 2005.

This opinion will be unpublished and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

A04-2501

 

Sharon Y. Young,

Relator,

 

vs.

 

Cavalry Portfolio Services LLC,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed October 4, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Department of Employment and Economic Development

File No. 16947 04

 

 

Sharon Y. Young, 255 West Maryland Avenue, St. Paul, MN 55117 (pro se relator)

 

Patrick J. Casey, 408 St. Peter Street, Suite 210, St. Paul, MN 55102 (for respondent-employer)

 

Linda A. Holmes, Minnesota Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent-department)

 

            Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

By writ of certiorari, relator challenges the order of the Department of Employment and Economic Development's senior unemployment review judge disqualifying her from receiving unemployment benefits.  Because the record reasonably supports the decision of the senior unemployment review judge that relator committed misconduct, we affirm.

FACTS

Relator Sharon Young worked for Cavalry Portfolio Services, a collection agency, from June 12 to August 30, 2004.  Cavalry's employee handbook states, "A no call no show absence of two days from the workplace constitutes job abandonment and is considered a voluntary resignation. The employee's separation date will be considered the last day worked."  In a signed statement dated July 21, 2004, Young acknowledged that she had read the handbook and knew that she was responsible for complying with it.

In the seven weeks Young worked for Cavalry, she missed work seven full days and left early on three other days, according to Cavalry's records.  On August 27 and 28, 2004, Young did not report to work and did not call in.  The next time she returned to work, on August 30, 2004, Cavalry discharged her for job abandonment.  Young worked less than a month at another collection agency before applying for unemployment compensation from Cavalry's account on October 17, 2004.

An adjudicator from the Department of Employment and Economic Development determined that Young was disqualified from receiving unemployment compensation because Cavalry discharged her for employment misconduct.  Young appealed the determination, and a hearing was set before an unemployment law judge (ULJ). The ULJ affirmed the adjudicator's ruling, and Young appealed the ULJ's decision to the senior unemployment review judge (SURJ).  The SURJ affirmed the ULJ's decision that Young was discharged for employment misconduct and concluded that Young was disqualified from receiving benefits.  This certiorari appeal follows.

D E C I S I O N

On appeal, we review the decision of the SURJ, not that of the ULJ, and give special deference to the SURJ's decision.  Tuff v. Knitcraft Corp., 526 N.W.2d, 50, 51 (Minn. 1995).  The determination of whether an employee committed a specific act of misconduct is a question of fact.  Scheunemann v. Radisson South Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  We review findings of fact made by the SURJ in the light most favorable to the decision and will not reverse such findings if they are reasonably supported by the record.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  But whether a specific act or acts constitute misconduct is a question of law, which we review de novo.  Id.

An employee discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (2004).  Employment misconduct is "any intentional, negligent, or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment."  Id., subd. 6(a).

An employer has a right to expect that employees will work when scheduled.  Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984).  An employer also has a right to establish and enforce reasonable rules governing absenteeism.  Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985).  Employment misconduct may include the following specific actions related to absenteeism: (1) chronic and excessive absenteeism, even if not willful or deliberate, id; (2) failure to notify one's employer in advance about absences, Flahave v. Lang Meat Packing, 343 N.W.2d 683, 686 (Minn. App. 1984); and (3) leaving work early without permission, Psihos v. R & M Mfg., 352 N.W.2d 849, 850 (Minn. App. 1984).

Among other findings of fact, the SURJ found that Young often failed to work when scheduled; that she was absent more than seven days during the seven weeks she worked for Cavalry; that she left work early without permission on July 30; and that she failed to notify Cavalry in advance about her absences on July 31, August 27, and August 28, despite her knowledge of company policy.  The record supports these findings.

Young claimed that her attendance records at Cavalry were inaccurate or falsified; that she asked for August 27 and 28 off two weeks in advance; that her manager agreed to give her those days off; and that she saw no reason to call in, because she had permission to be absent.  But Cavalry claimed that its records were accurate; that Young never filled out a required Time Off Request form; that Young did not have permission to take the two days off; and that Cavalry seldom approves requests for time off at the end of the month because the end of the month is a busy time for collection agencies.

When there is inconsistent testimony in the record, we defer to the credibility determinations of the SURJ.  Heitman v. Cronstroms Mfg., 401 N.W.2d 425, 427 (Minn. App. 1987).  Here, the SURJ reviewed the conflicting testimony and stated:

Young's testimony and evidence she had obtained permission to take the two days off is not believable.  A preponderance of the evidence leads us to conclude Young's conduct clearly displayed a serious violation of the attendance standards Calvary [sic] has the right to reasonably expect of her and a substantial lack of concern for her employment.

 

Young's absenteeism was chronic and excessive.  She was absent more than twenty percent of the time when she was scheduled to work, she left work early without permission, and she failed to notify her employer in advance about absences.  The SURJ reasonably concluded that Young's actions constituted employment misconduct and that she was disqualified from receiving unemployment benefits.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.