Cecilia Shaw, Relator v. First Advantage Background Services, Department of Employment and Economic Development ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1585
Cecilia Shaw,
Relator,
vs.
First Advantage Background Services,
Respondent,
Department of Employment and Economic Development,
Respondent.
Filed May 23, 2016
Affirmed
Reilly, Judge
Department of Employment and Economic Development
File No. 337701163-3
Cecilia Shaw, Elk River, Minnesota (pro se relator)
First Advantage Background Services, Tampa, Florida (respondent)
Lee B. Nelson, Department of Employment and Economic Development, St. Paul,
Minnesota (for respondent Department of Employment and Economic Development)
Considered and decided by Reilly, Presiding Judge; Connolly, Judge; and Stauber,
Judge.
UNPUBLISHED OPINION
REILLY, Judge
Relator argues the unemployment-law judge (ULJ) erred when it determined she
was ineligible to receive unemployment benefits because the decision was not supported
by substantial evidence. Because relator’s uncontradicted testimony provided substantial
evidence to support the ULJ’s decision, we affirm.
FACTS
Relator Cecilia Shaw worked for First Advantage Background Services (FABS) as
a software support analyst. In summer 2014 she was authorized to work from home;
however, the arrangement changed in January 2015 when she was informed that she needed
to work in the office from 8 a.m. to 5 p.m. Relator and FABS then agreed upon an
arrangement where relator would work in the office Monday through Thursday and
telecommute on Fridays. In February 2015, FABS warned relator that if her attendance
and commitment to a regular work schedule did not improve she would be discharged from
employment. According to her own testimony, relator continued to arrive at work as much
as two hours late at least two days a week and left work early at least one day a week. Her
reasons included dropping off and picking up her 17-year-old son from school, going to
court, going to the doctor, doing repairs on her home, and staying home for the repair
person. However, she testified that “90 percent of the reason[] why” she worked from
home and arrived late was due to her desire to avoid traffic.
In April 2015, FABS again warned relator that if her attendance did not improve
she would be terminated. She continued to arrive late, leave early, and work from home
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on days when she was required to work in the office through June 2015. FABS discharged
her from employment on June 30, 2015.
Relator applied for unemployment benefits and was determined to be ineligible
because she “was discharged for attendance and schedule consistency” issues, and admitted
that she was “warned multiple times” that she needed to improve her attendance. Relator
appealed the determination and an evidentiary hearing was held. Relator was the sole
participant at the hearing. The ULJ concluded that relator’s
conduct and actions in continuing to be tardy to work and leave
work early, after being warned about the need for her to
maintain a regular in-office work schedule, displayed clearly a
serious disregard of [FABS’s] interest and of standards of
behavior they had a right to expect of [relator] as an employee
so as to constitute employment misconduct.
The ULJ determined that relator was ineligible to receive unemployment benefits. Relator
filed a request for reconsideration, and the ULJ affirmed its decision. This certiorari appeal
follows.
DECISION
Relator argues the ULJ erred as a matter of law because its determination that she
committed disqualifying misconduct was based solely on relator’s testimony and is not
supported by any substantial evidence. We review a ULJ’s order to determine whether it
is “(1) in violation of constitutional provisions; (2) in excess of the statutory authority or
jurisdiction of the department; (3) made upon unlawful procedure; (4) affected by other
error of law; (5) unsupported by substantial evidence in view of the entire record as
submitted; or (6) arbitrary or capricious.” Minn. Stat. § 268.105, subd. 7(d) (Supp. 2015).
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Relator argues that the ULJ erred as a matter of law because the decision was based
solely on relator’s testimony and she was “clearly participating in the hearing under severe
emotional and physical distress,” which we construe as an argument that the decision was
made “upon unlawful procedure.” Minn. Stat. § 268.105, subd. 7(d)(3). Relator appears
to assume that FABS was required to participate in the hearing. However:
An application for unemployment benefits is not
considered a claim against an employer but is considered a
request for unemployment benefits from the trust fund. The
commissioner has the responsibility for the proper payment of
unemployment benefits regardless of the level of interest or
participation by an applicant or an employer in any
determination or appeal. An applicant’s entitlement to
unemployment benefits must be determined based upon that
information available without regard to a burden of proof.
Minn. Stat. § 268.069, subd. 2 (2014).
Thus, the ULJ was required to make a determination based on the information
available to it, regardless of FABS’s failure to participate in the hearing. See Haugen v.
Superior Dev., Inc., 819 N.W.2d 715, 722 (Minn. App. 2012) (“[T]he statute is not meant
to benefit employers specifically. Although employers fund the unemployment insurance
program . . . an employer does not pay unemployment benefits directly and a former
employee’s application for benefits is not a claim against an employer.”) (citing Minn. Stat.
§ 268.069, subd. 2 (2010)). There is no requirement that an employer participate in the
hearing. And although relator asserts she was “clearly” participating in the hearing under
severe emotional and physical distress, she provides no support for this assertion. Our
independent review of the hearing does not reveal indicia that relator was under distress
such that we can conclude that the procedure was unlawful.
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Relator also argues the ULJ’s decision was “not supported by any substantial
evidence.” Whether an employee engaged in conduct that disqualifies the employee from
unemployment benefits is a mixed question of fact and law. Colburn v. Pine Portage
Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984). We review findings of fact in the
light most favorable to the ULJ’s decision. Skarhus v. Davanni’s Inc., 721 N.W.2d 340,
344 (Minn. App. 2006). The ULJ’s determination was based on relator’s uncontradicted
testimony. We note that relator does not allege the factual findings misconstrue her
uncontradicted testimony.
Whether a particular act constitutes disqualifying misconduct is a question of law,
which this court reviews de novo. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d
519, 523 (Minn. 1989). Employment misconduct is defined as “any intentional, negligent,
or indifferent conduct, on the job or off the job that displays clearly . . . a serious violation
of the standards of behavior the employer has the right to reasonably expect of the
employee; or . . . a substantial lack of concern for the employment.” Minn. Stat. § 268.095,
subd. 6(a) (2014).
Despite two warnings that her employment was in jeopardy due to her absenteeism,
relator continued to show up to work late, leave early, and work from home on days she
was required to work in the office. An “employer has a right to expect an employee to
work when scheduled.” Del Dee Foods, Inc. v. Miller, 390 N.W.2d 415, 417-18 (Minn.
App. 1986). An employer also has a right to “establish and enforce reasonable work rules
relating to absenteeism.” Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App.
1985). “[R]efusing to abide by an employer’s reasonable policies and requests amounts to
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disqualifying misconduct.” Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn.
2002). We conclude there is substantial evidence to support the ULJ’s determination that
relator was ineligible to receive unemployment benefits because she was terminated for
misconduct.
Affirmed.
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